Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie; Plenty & Plenty v Dickson - [2006] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PLENTY & PLENTY v SEVENTH-DAY ADVENTIST CHURCH OF PORT PIRIE; PLENTY & PLENTY v DICKSON & ANOR
[2006] SASC 361
Judgment of The Honourable Justice Duggan
30 November 2006
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - MATTERS NOT GIVING RISE TO BINDING CONTRACT - AGREEMENTS NOT INTENDED TO CREATE LEGAL RELATIONS
CHURCHES AND RELIGIOUS ASSOCIATIONS - GENERAL MATTERS - CHURCHES - GENERALLY - NATURE OF ASSOCIATION - RELATIONSHIP BETWEEN MEMBERS
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - REMOTENESS - GENERAL PRINCIPLES
Action for damages against defendant church - plaintiffs disfellowshipped from defendant church for alleged misconduct - plaintiffs successful in seeking declaration that disfellowshipping was null and void by reason of denial of natural justice and procedural fairness - writ of summons seeking declaration also included claim for damages - damages sought for breach of contract and breach of duty of care causing plaintiffs psychiatric and physical harm as well as loss of reputation - whether church manual constituted a binding contractual agreement between parties or merely a consensual compact - whether intention to create legal relations between parties to this voluntary association - whether relationship between parties involved creation of proprietary rights giving rise to contractual obligations - found, relationship between plaintiffs and defendant church did not give rise to any contractual obligations - consideration of whether, if contractual obligations did exist, plaintiffs suffered any compensable loss - where plaintiffs claimed damages for emotional distress and loss of esteem - whether breach of contract relied upon led to plaintiffs being physically inconvenienced and suffering distress consequent upon that inconvenience - found, no element of requisite physical inconvenience demonstrated in present case - Held: action for damages for breach of contract must fail.
Baltic Shipping Co v Dillon (1993) 176 CLR 344; Cameron v Hogan (1934) 51 CLR 358; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; South Australia v The Commonwealth (1962) 108 CLR 130, applied.
Addis v Gramophone Company Ltd [1909] AC 488; Carter v NSW Netball Association [2004] NSWSC 737; Hamlin v Great Northern Railway Co (1856) 1 H & N 408; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (2003) 226 LSJS 214; Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121; Scandrett v Dowling (1992) 27 NSWLR 483, discussed.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Boncristiano v Lohmann [1998] 4 VR 82; McKinnon v Grogan [1974] 1 NSWLR 295; Rose and Frank Company v JR Crompton & Bros Ltd [1923] 2 KB 261; Thorpe v Lochel (2005) 31 WAR 500, considered.

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - COMMON LAW
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
Where plaintiffs claimed damages arising from defendant church breaching its duty of care not to cause injury to them or their reputation - where pleaded that Mr Plenty suffered from gastrointestinal problems and that both plaintiffs suffered from heart problems caused by stress relating to disfellowshipping - found, plaintiffs did not suffer any physical injury as a result of disfellowshipping - where plaintiffs claimed to be suffering mental illness consequent upon conduct of defendant church - whether either or both plaintiffs suffering from recognisable psychiatric illness - whether, if plaintiffs were suffering from such illness, disfellowshipping caused or contributed to illness - where evidence of stress due to plaintiffs' history of litigation and disputations with persons and authorities other than defendant church - found, that neither plaintiff suffering from recognisable psychiatric illness - even if plaintiffs were suffering from such an illness, held that defendant church's conduct was not a cause of illness - where, in any event, Mr Plenty already compensated for "depressive illness" in assessment of damages in an unrelated matter, but where reference made in assessment to disfellowshipping as a cause of illness - Held: action for damages for breach of duty of care must fail.
Tame v New South Wales (2002) 211 CLR 317, applied.
Halech v State of South Australia (2006) 93 SASR 427; Plenty v Dillon (1988) 50 SASR 407; Plenty v Dillon (1991) 171 CLR 635; Plenty v Dillon & Will (1997) 194 LSJS 106, discussed.

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
Action for defamation against Mr Dickson and South Australian Conference of Seventh-Day Adventist Church - where consent order made that plaintiffs have judgment against defendants for damages to be assessed by trial judge - where Dickson was Communications Director for Conference - where Dickson wrote letter published in Letters to the Editor columns of The Adverstiser implying that Mrs Plenty had provided false information contained in an article in previous edition of same newspaper - where letter also stated plaintiffs were disfellowshipped from defendant church for "continuing attitudes and actions which were felt contrary to church standards of behaviour" - found, to average reasonable reader, contents of letter could imply conduct more serious than actual allegations which led to disfellowshipping - Held: plaintiffs to be awarded compensatory damages in the amount of $10,000 each.
Plenty v Dillon & Will (1997) 194 LSJS 106, discussed.

PLENTY & PLENTY v SEVENTH-DAY ADVENTIST CHURCH OF PORT PIRIE; PLENTY & PLENTY v DICKSON & ANOR
[2006] SASC 361
Civil

DUGGAN J. The plaintiffs sought a declaration that their disfellowshipping from the Seventh-Day Adventist Church at Port Pirie (“the church”) was void and of no effect. The declaration was sought by way of a writ of summons which included a claim for damages. At the request of the parties, I ordered that the application for a declaration should be determined first.
At the conclusion of the trial of this issue, I made a declaration in the terms sought by the plaintiffs: Plenty & Plenty v Seventh-Day Adventist Church of Port Pirie (2003) 226 LSJS 214.
The basis upon which the claim for damages was made was not clear from the original statement of claim filed in the action. However, as a result of amendments to the pleadings, it became evident that damages are sought for breach of contract and breach of duty of care. The claim for damages arises out of the circumstances in which the plaintiffs were disfellowshipped.
I heard a further matter in conjunction with this action. It arose in the aftermath of the disfellowshipping. The Communications Director of the South Australian Conference of the Seventh-Day Adventist Church wrote a letter to the editor of “The Advertiser” newspaper which was published in the paper on 29 February 1980. The plaintiffs thereupon issued proceedings against the South Australian Conference of the Seventh-Day Adventist Church and its Communications Director claiming damages for defamatory statements made in the published letter: Plenty & Plenty v Dickson and the South Australian Conference of the Seventh-Day Adventist Church (SCCIV-80-3169).
Subsequently, a master of the court made a consent order that the plaintiffs have judgment against the defendants in the defamation action for damages to be assessed. I agreed to the request of the parties to undertake the assessment of those damages in conjunction with the hearing of the claim for damages arising out of the disfellowshipping.
The claim for damages in contract and for breach of duty of care arises from psychiatric and physical harm claimed to have been suffered by the plaintiffs as a result of the disfellowshipping. Damages are also sought for loss of reputation as a result of the disfellowshipping.
The plaintiffs became members of the church at Port Pirie in late 1958. In 1959, they went to live for a time on a farming property in Western Australia. They remained members of the church in that State and returned to live in South Australia in 1974. Their membership of the church was transferred back to Port Pirie at the same time.
The circumstances of the disfellowshipping, which is a form of expulsion from the church, are set out in my reasons for granting the declaration. It is convenient to incorporate here some of the background which I summarised in those reasons:
It is necessary at the outset to refer to two matters which were of relevance in the events leading to the plaintiffs' disfellowshipping. The first concerned a dispute which arose between the plaintiffs and a number of other members of the church. Up until the time shortly before Mrs Plenty assumed the role of superintendent of the Sabbath school the classes for that school were conducted in the back room of the church. Persons attending the classes used an internal door to go from the church into the back room. However, on the last day on which Mrs Plenty's predecessor held office as Sabbath School Superintendent he issued a direction that access to the back room was to be from an outside door and not the internal door. The reason which Mrs Plenty was later given for this direction was that the pulpit and the baptismal font were located underneath a false floor in the church and that people walking from the church through the internal door to the back room were walking over, or at least near, these sacred parts of the church.
Mrs Plenty disagreed with this decision and the issue was debated within the church. Mr Plenty joined his wife in her opposition. The matter came before a church business meeting on 22 July 1978 and the meeting voted in favour of the requirement that the back door was to be used to gain access to the meeting room. This dispute simmered for some time and Mr and Mrs Plenty resigned from all positions held by them in the church. They also wrote to Pastor Cobbin, the President of the Seventh-Day Adventist Conference in Adelaide requesting his intervention. Eventually, Pastor Cobbin went to Port Pirie to discuss the matter and, in July 1979, a church business meeting voted to rescind the earlier decision so as to allow the internal door to be used in order to gain access to the back room.
The second event concerned a charge laid against Mr Plenty for assaulting a police officer. The charge arose out of an incident which is alleged to have occurred when two police officers went to the plaintiffs' farm in October 1978 to serve a summons on one of their children. The police officers claimed that Mr Plenty ordered them from his property and assaulted one of the officers. Mr Plenty was convicted of assault, but appealed against the conviction. In the meantime, Mr Plenty took action against the police officers for assault and trespass arising out of the same incident. Mr Plenty was unsuccessful in this action both at first instance and on appeal to the Supreme Court. However, he appealed to the High Court which decided in his favour on the ground that, at common law, a police officer intending to serve a summons is not authorised, without the consent of the person in possession of the land and without any implied leave or licence, to go onto the land to serve the summons.
In August 1979 it was reported in the Port Pirie Recorder that Mr Plenty had been found guilty of the assault. This was at a time when the conviction was under appeal. Then, on 29 August 1979, Mr Plenty wrote a letter to the editor of the Recorder commenting on the earlier report and criticising the magistrate for deciding against him. He also made general criticisms of the justice system. In addition, the plaintiffs placed a notice in the Recorder on 24 October 1979 which stated that the conviction against Mr Plenty was the subject of an appeal and the official transcript of evidence provided by the court had been altered in a manner unfavourable to him.
. . . . . .
I turn then to the events immediately associated with the proceedings which were taken against the plaintiffs within the church. At a board meeting which was convened on 19 November 1979, the board voted in favour of a recommendation to the next church business meeting that the names of Mr and Mrs Plenty be removed from the church roll.
A further board meeting was held on 25 November 1979. At this meeting the decision taken at the previous Board meeting was rescinded after it was pointed out that the Board had no power to make such a recommendation. The following resolution was substituted:
"Moved Name of Bro Syd Plenty be brought into question at forthcoming Business meeting on Dec 1st for the following reason –
1)     disorderly conduct which brings reproach upon the cause
2)     wilful & habitual falsehood
a)     Convicted of attempted assault on a police-officer.
b)     Subsequent correspondences relating to above as appearing in local papers.
3)persistent refusal to recognise properly constituted Church authority or to submit to the order & discipline of the Church.
a) Church Board letters.
Seconded and carried.”
Another resolution was passed in relation to Mrs Plenty. It stated:
Moved that name of Sis D Plenty to be brought into question at forthcoming Business meeting on Dec 1st for the following reason –
1)     wilful and habitual falsehood.
a)     false statements made at time of Bro S Plenty's court case.
b)    subsequent correspondences relating to the said court case as appearing in local papers.
2)persistent refusal to recognise properly constituted Church Authority or to submit to the order & discipline of the Church.
eg:- Church Board letters.
Following the board meeting of 25 November, separate letters were forwarded to the plaintiffs. The letters stated that the church membership of Mr and Mrs Plenty would be "brought into question" at a church business meeting to be held on the following Saturday 1 December 1979. The letters set out the resolutions passed at the board meeting of 25 November as constituting the reasons for this course of action. They also stated that the plaintiffs had the opportunity to be heard in their defence.
It was common ground at the hearing before me that the plaintiffs had no warning prior to the receipt of the letters of 26 November that these allegations of misconduct would be made against them.
The plaintiffs did not attend the church business meeting on 1 December 1979. Prior to the meeting, the allegations had been narrowed to the following:
Disorderly conduct which brings reproach upon the cause of God eg. letters written to the newspapers containing exaggerated accusations.
Attitude towards those in authority.
The plaintiffs were unaware of the revised changes until after the meeting at which they were disfellowshipped. At the meeting held on 1 December 1979, the members voted to remove the plaintiffs’ names from the roll for above reasons. The plaintiffs were advised by letter dated 2 December 1979 that their membership of the church had been terminated for “disorderly conduct which brings reproach upon the cause of God” and “attitude towards those in authority”.
For the reasons which I set out in my earlier judgment, I concluded that the plaintiffs were not given adequate information concerning the charges made against them so as to enable them to properly defend themselves. Furthermore, they were given no opportunity to make submissions on penalty after being found guilty of the charges in their absence.
In the result, I found that a case had been made out for a declaration that the purported disfellowshipping of the plaintiffs from the defendant church was void and of no effect.
The claim in contract
The claim for damages for breach of contract arises in the following way. Paragraph 3 of the statement of claim states that the members of the church follow a religious doctrine pursuant to a “consensual compact”, which is set out in the Seventh-Day Adventist Church Manual (“the manual”). Paragraph 4(A)(19) of the statement of claim pleads that:
At all material times, the defendant’s ministry, officers and laity, had a contractual duty to protect the defendant’s members, and to ensure that they received fair treatment, and, the plaintiffs rely upon the whole of the 1976 Edition of the said Manual.
The contents of the manual are referred to below. Particular reliance is placed on those parts of the manual which provide for the procedure to be followed in the disciplining of church members. However, the first question which arises is whether there is a binding agreement between the church and the plaintiffs, the terms of which are set out in the manual, or whether there is simply a “consensual compact” between the plaintiffs and the church in the sense in which that term is used by Priestly JA in Scandrett v Dowling (1992) 27 NSWLR 483. This concept was also referred to by Palmer J in Carter v NSW Netball Association [2004] NSWSC 737; BC 200405171 at [86]:
The phrase “consensual compact” was used by Priestly JA in Scandrett v Dowling (1992) 27 NSWLR 483, at 513, and by Young J (as his Honour then was) in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421, at 425, to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law.
It is essential for the creation of a contract that there be an agreement as to its terms and, further, an intention to create legal relations: Rose and Frank Company v JR Crompton & Bros Ltd [1923] 2 KB 261 at 282. If the agreement regulates business relations, there will usually be no difficulty in inferring such an intention: ibid at 282.
However, in the case of a voluntary association, the position is often different. In Cameron v Hogan (1934) 51 CLR 358, the court held that the rules of the political party in that case did not create enforceable contractual rights and duties between members, or between executive officers and members. Rich, Dixon, Evatt and McTiernan JJ said at 370:
Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v. Eden (1867) LR 1 Sc & Div HL at p 581 Lord Cranworth said: “Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.” (Compare per Jessel M.R., Rigby v Connol (1880) 14 Ch D at p 487; per Barry J., O'Keefe v Cardinal Cullen (1873) IR 7 CL at p 343.) Gavan Duffy J. considered that such statements should be understood as relating only to the jurisdiction of Courts of equity. There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract. (Compare per Jessel M.R., Rigby v. Connol (1880) 14 Ch D at p 487, and per Scrutton L.J., Rose and Frank Co. v. JR Crompton and Bros. Ltd (1923) 2 KB at p 288.).

Their Honours went on to hold that the members of the political party did not have a tangible proprietary right by reason of their membership of the party. This conclusion was relevant to the issue as to whether the plaintiff was entitled to a declaration or injunction by reason of his exclusion from the association. Their Honours said at 377-378:
The foundation of the jurisdiction to grant an injunction is the existence of some civil right of a proprietary nature proper to be protected. The property under the control of the central executive and that under the control of the branches might, if all the members concurred in dissolving the association, be distributed among them, but if so, it would be by reason of a decision under the rules authorizing that distribution. Except for this, the respondent has no interest capable of enjoyment. There is much to be said for the view that payments made by members to the Branch or by the Branch or the Union to the central executive or State electorate council are final: that they are subscriptions to an object, and that no resulting interest however contingent remains in the member. No doubt indirectly in choosing delegates members may affect the mode in which the fund is expended. But whatever view may be taken of the exact and technical situation of the legal and equitable property in the various assets “belonging” to the Party, it is reasonably clear that membership of the association carries with it no tangible or practical proprietary right. The association must be conducted, and money is needed to carry it on. There must be some margin of revenue over current expenditure, some continuing possessions for use by its officers, some rights incidentally acquired in process of fulfilling its objects. But the existence of such property is incidental and accidental. The organization is a political machine designed to secure social and political changes. It furnishes its members with no civil right or proprietary interest suitable for protection by injunction.
The limitations imposed by Cameron v Hogan on invoking the court’s power to allow judicial review of the decisions of voluntary organisation have been questioned from time to time: see eg. McKinnon v Grogan [1974] 1 NSWLR 295. However, the decision must govern the present case and, in any event, the criticisms do not relate to the necessity adverted to in the judgments for a clear indication that the members contemplated a legal relationship before the rules of the association can be treated as an enforceable contract.
In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 the Archbishop of the autocephalous Greek Orthodox Church in Australia sued the defendant association for unpaid annual leave and long service leave. The association had invited the plaintiff to assume the position of Archbishop. An issue between the parties was whether there was an intention to enter into a contractual relationship with respect to remuneration and maintenance. Gaudron, McHugh, Kirby, Hayne and Callinan JJ pointed out at 105-106:
“It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty”. Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 at 457, per Dixon CJ, Williams, Webb, Fullagar and Kitto JJ. To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet “[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts” South Australia v The Commonwealth (1962) 108 CLR 130 at 154, per Windeyer J.
Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances South Australia v The Commonwealth (1962) 108 CLR 130 at 154; Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 at 367, per Windeyer J, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties Masters v Cameron (1954) 91 CLR 353 at 362, per Dixon CJ, McTiernan and Kitto JJ; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549, per Gleeson CJ. (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348-353, per Mason J; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436; 186 ALR 289. It is not a search for the uncommunicated subjective motives or intentions of the parties.
Some of the matters relevant to the determination of the relevant intention of the parties were referred to by Windeyer J in South Australia v The Commonwealth (1962) 108 CLR 130 at 154:
An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law.
It becomes necessary, therefore, to have regard to the nature of membership of the church and, in particular, to the church manual which defines the relationship between the church and its members.
Membership of the church takes place after a period of instruction, which is followed by baptism into the church. The names of new members are placed on a church roll.
The manual is issued under the authority of the General Conference of Seventh-Day Adventists. It was first published in 1932. An opportunity to change or revise the manual arises at the General Conference held every five years.
The manual which was current at the time of the disfellowshipping of the plaintiffs was the 1976 edition (P 1).
It is important to note that the manual is not confined to a series of rules regulating the church and its members. Much of its content takes the form of a prescription of the way of life expected of its members. The text is laden with biblical references and extracts from the writings of Ellen White, a prominent member of the church in the late 19^th and early 20^th centuries. There are also extensive exultations on the Christian way of life. Instructions are given in relation to everyday matters, such as the preservation of good health, dress, recreation and entertainment. The manual also contains instructions on the conduct of church services and meetings.
In my reasons for judgment on the application seeking declaratory relief, I concluded that judicial review of the decision of the church to disfellowship the plaintiffs was available because of the injury to reputation alleged by the plaintiffs: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578. It was unnecessary, therefore, for me to consider whether there might be other grounds for judicial review, in particular, the enforcement of a proprietary right or contractual obligations.
In so far as the existence of a proprietary right is relevant to whether contractual obligations exist (Cameron v Hogan at 370), the present case is to be distinguished from those cases in which a member of a proprietary club is improperly expelled and thereby deprived of the facilities of the club. The right to use the facilities for which the member has paid a subscription may be enforceable in contract: Cameron v Hogan ibid at 373.
It is stated in the manual that the payment of tithes is a scriptural obligation which every believer owes to God. It is stipulated that the proceeds of tithes are not to be used or dispersed by the local church, but must be passed on to the conference treasurer. The income from tithes provides funds for the local conference, the Union, and the General Conference. It is not to be spent on paying church or institutional debts, or on building operations.
Presumably, other funding can come from donations but, in my view, the mere paying of tithes or the making of donations does not give rise to a proprietary right.
It is clear that, for the most part, the manual deals with rights and duties of a religious nature which are not intended to be enforced at law. In my view, the relationship between the church and its members does not involve the creation of proprietary rights which, in turn, give rise to contractual obligations.
The next question is whether the section of the manual which deals with discipline creates contractual obligations relevant to the present case.
The provisions in the section of the manual dealing with discipline lack the particularity and precision which is sometimes evident in the rules of an association or club. They begin with an instruction based on Matthew 18:15-18 which, according to the statement of claim, was breached. The passage from Matthew refers to the requirement of an initial approach to a wrongdoer by the person wronged. In the event that this does not resolve the matter, the person wronged is advised to take witnesses to the wrongdoer in a further attempt to reach a resolution. Only if this fails, is it appropriate for the church to intervene. According to the plaintiffs, this prerequisite to the use of church discipline was not followed prior to the proceedings to disfellowship them.
The manual speaks of the power to discipline being derived from God and states that the church is responsible for dealing with sin. The manual goes on to make it clear that the function of the disciplinary system within the church is to deal with sins. It states that action must be taken if grievous sins are involved. This may be done by way of censure or disfellowshipping. The breaches with which the plaintiffs were charged are identified in the manual as examples of grievous sins.
The manual states at p 252:
The work of the church in its administration of order and discipline, is an ecclesiastical function, and in no sense has to do with civil or legal procedure; therefore, the church does not recognize the right of any member to bring a lawyer to represent him in any church meeting or council called to administer order or discipline, or for the transaction of any business relating to the church.
In my view, these aspects of the administration of the disciplinary system within the church cannot be regarded as giving rise to contractual obligations. They are heavily grounded in religious belief and practice and purport to exclude the civil law.
This is not to say that the remedy of judicial review is unavailable. The courts will embark upon judicial review if one of the preconditions identified in Cameron v Hogan is fulfilled. However, in the present case, the intention to create legal relations necessary for the formation of a contract between the church and its members is absent.
It must be acknowledged that the manual recognises the “fundamental principle of justice that every member has the right to be heard in his own defense”. This section of the manual also states that due notice is to be given to a member of the church of the “intention to try his case, thus giving him opportunity to appear in his own behalf”. However, when these provisions are considered in the context of the disciplinary procedures as a whole, they are insufficient to give rise to contractual implications.
In Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 43 SASR 121, the Full Court dealt with an appeal from a decision to strike out the application for judicial review sought by the plaintiffs. Jacobs and Matheson JJ expressed the view that a passage in the manual supported the argument that the members of the church contemplated the creation of legal rights inter se or as between a member and the church. The relevant passage states at pp 243-244 (1981 Ed):
Settlement of Grievances of Members against the Church
The same principles that influence resolution of differences among members apply to the settlement of grievances of members against church organizations and institutions.
A church member should not instigate litigation against any entity of the church except under circumstances where the church has not provided adequate process for orderly settlement of the grievance within the church, or where the nature of the case is such that it is clearly not within the authority of the church to settle.
Settlement of Grievances of the Church Against Members
There may be times when church organizations or institutions will have grievances against church members. At such times, church administrators must, in Christian forbearance, keep in mind the Biblical counsel for settling disputes among Christians and apply that counsel to the settlement of grievances of the church against its members. The church should, in preference to litigating matters in a secular court, make every reasonable effort in co-operation with the member to provide a process by which orderly settlement of the problem can be accomplished.
After quoting this passage, Jacobs J said at 125:
While I think the Rules as a whole clearly discourage litigation, they appear to recognise a right of recourse to the Courts, if only as a last resort, and that is in my view a “clear and positive indication that the members contemplated the creation of legal relations” sufficient to distinguish this case from Cameron v Hogan.
It now appears that this passage was not inserted in the manual until after the decision to disfellowship the plaintiffs. As was pointed out previously, an opportunity arises to amend the manual every five years and this passage first appeared in the 1981 edition. The fact that it was not inserted until the later edition does not appear to have been raised during the hearing of the appeal in relation to the strike out application.
In any event, with the advantage of a complete hearing into the matter, I cannot, with respect, agree that the passage points to an intention to create legal relations. When read in context, it would seem that the passage is not referring to the enforcement of rights created by the manual, but rather rights derived from the civil law. That this is so is apparent from the following passage in the same section on church discipline taken from the 1981 edition at pp 242-243:
Settlement of Differences Among Members - Every effort should be made to settle differences among church members and contain the controversy within the smallest possible sphere. “Contentions, strife, and lawsuits between brethren are a disgrace to the cause of truth. Those who take such a course expose the church to the ridicule of her enemies and cause the powers of darkness to triumph. They are piercing the wounds of Christ afresh and putting Him to an open shame. By ignoring the authority of the church they show contempt for God, who gave to the church its authority.” – Testimonies, vol 5, pp 242, 243.
Civil litigation is often carried on in a spirit of contention that results from and reveals human selfishness. It is the kind of adversary proceedings that must be discouraged by a church that seeks to exhibit the spirit of Christ. Christian unselfishness will lead followers of Christ to “suffer … [themselves] to be defrauded” (1 Cor. 6:7) rather than to “go to law before the unjust, and not before the saints” (1 Cor. 6:1).
While there are, in the modern world, occasions for seeking decrees of civil courts, Christians should prefer settlement within the authority of the church, and should limit the seeking of such decrees to cases that are clearly within the jurisdiction of the civil courts and not within the authority of the church or for which the church agrees it has no adequate process for orderly settlement. Such suits before civil courts should never become revengeful adversary proceedings but should develop out of a desire to seek arbitration and to settle differences amicably. Examples of such cases may include, but are not limited to, the settlement of insurance claims, the issuance of decrees affecting the boundaries and ownership of real property, the deciding of some matters involving the administration of estates, and the awarding of custody of minor children. While the church should set up procedures within the constraints of legal practice to avoid the type of litigation referred to in 1 Corinthians 6, it should constantly be on guard against turning from its gospel mission and taking up the duties of a civil magistrate. (See Luke 12:13, 14 and Testimonies, vol 9, pp 216-218.)
In the section on settlement of grievances of members against the church, the manual states:
The same principles that influence resolution of differences among members apply to the settlement of grievances of members against church organizations and institutions.
For these reasons, I have reached the conclusion that the relationship between the church and the plaintiffs was not such as to give rise to any contractual obligation between the parties. The evidence does not support the claim that there was an intention to create a legal relationship.
But even if the plaintiffs could rely on an action based on breach of contract, there would be considerable difficulty in the way of establishing compensable loss.
The plaintiffs claim that the disfellowshipping has had a variety of consequences for which they claim damages. Damages are claimed for loss of reputation or esteem and emotional distress. The plaintiffs also claim that they are entitled to damages for estrangement within their family, physical ailments and loss of church facilities.
I deal first with the claim for damages based on emotional distress and loss of esteem arising out of the breach of contract contended for by the plaintiffs. The question whether or not claims under these headings are available in Australia was addressed in Baltic Shipping Co. v Dillon (1993) 176 CLR 344. The plaintiff was a passenger on a cruise vessel which sunk ten days into a 14 day cruise. She sued the owner of the ship for breach of contract. The heads of damage under which she was compensated at first instance included a claim for disappointment and distress.
Not without reservation on the part of some members of the court, the court acknowledged the general rule as stated in Hamlin v Great Northern Railway Co (1856) 1 H & N 408 at 411; (1856) 156 ER 1261 and Addis v Gramophone Co Ltd [1909] AC 488 that damages for breach of contract in respect of distress, anxiety and disappointment are not recoverable. It is unnecessary to explore the rationale for the rule which is discussed in the judgments of the members of the court.
A number of recognised exceptions to the rule were listed by Mason CJ at 362:
First, damages for injured feelings were recoverable in the action for damages for breach of promise of marriage. Secondly, it is beyond question that a plaintiff can recover damages for pain and suffering, including mental suffering and anxiety, where the defendant's breach of contract causes physical injury to the plaintiff (Damages for pain and suffering consequent upon physical injury caused by breach of contract may be awarded: Godley v Perry, Burton & Sons (Bermondsey), [1960] 1 WLR 9, at p 13; [1960] 1 All ER 36, at p 39; and damages for pain and suffering may include compensation for injured feelings. The class of physical injury for which damages are available includes nervous shock: Mount Isa Mines Ltd v Pusey (1970), 125 CLR 383.) Thirdly, there are cases in which damages for breach of contract have included compensation for the physical inconvenience suffered by the plaintiff in certain circumstances. They include the physical inconvenience suffered by a plaintiff when the defendant's train did not carry him to the stipulated destination (Hobbs v London and South Western Rly Co.; but cf. Hamlin v Great Northern Rly Co.) and that suffered by a plaintiff who purchased property with defects not revealed in the surveyor's report upon which the plaintiff relied (Perry v Sidney Phillips and Son, [1982] 1 WLR 1297; [1982] 3 All ER 705; Watts v Morrow, [1991] 1 WLR 1421; [1991] 4 All ER 937). Fourthly, courts have included compensation for an element of subjective mental suffering where the plaintiff has sustained physical inconvenience as a result of the defendant's breach of contract and the mental suffering is directly related to that physical inconvenience (Hobbs v London & South Western Rly Co. (1875) LR 10 QB at p 116; per Cockburn CJ; p 124, per Archibald J.; Bailey v Bullock, [1950] 2 All ER 1167, at pp 1171-1172; Athens-MacDonald Travel Service Pty. Ltd. v Kazis, [1970] SASR 264, at pp 274-275 per Zelling J.; and see Watts v Morrow, [1991] 1 WLR, at pp 1439-1440; [1991] 4 All ER, at pp 954-955, per Ralph Gibson LJ.; p 1445; pp 959-960, per Bingham LJ.). Finally, there are other cases in which the plaintiff has recovered damages for distress, vexation and frustration where the very object of the contract has been to provide pleasure, relaxation or freedom from molestation.

Mr Walsh QC, for the plaintiffs, argued that the fourth exception was relevant to the present case. This exception contemplates a breach of contract which leads to physical inconvenience and distress consequent upon that inconvenience: Deane and Dawson JJ at 381. The mental distress flowing from such inconvenience is compensable. An example is physical inconvenience resulting in stress following a breach of contract by a builder involving deficiencies in the construction of a home: Boncristiano v Lohmann [1998] 4 VR 82. See also Thorpe v Lochel (2005) 31 WAR 500 at pp 506-508.
In my view, there is no element of physical inconvenience in any relevant sense in the present case. Mr Walsh claimed that physical inconvenience resulted from the plaintiffs’ deprivation of the use of the church buildings and the hall. I do not accept that the plaintiffs were prevented from using the church buildings and the hall. In fact, they were invited back to take part in the life of the church after the disfellowshipping and did so for some time. I accept the evidence called by the defendant that the plaintiffs were not prevented from using the church facilities.
The fifth exception is also inapplicable. Sometimes referred to as the “holiday” cases, this exception encompasses situations where a holiday, entertainment or enjoyment is stipulated as part of the contract. There is no basis for applying this exception to the present case.
Later in these reasons, I state my conclusion that the plaintiffs have failed to prove that they suffered any recognised psychiatric disorder as a result of the circumstances surrounding their disfellowshipping. I also state my finding that the disfellowshipping has not led to any physical injury to either plaintiff. There is no evidence of any financial loss arising from these events.
It follows that, even if the plaintiffs could establish a breach of contract by the church by reason of the manner in which the disciplinary proceedings were conducted, no compensable loss has resulted.
The claim for damages based on breach of contract must fail.
Duty of care
I turn then to the claim for damages arising out of breach of duty of care. Paragraph 11A of the statement of claim pleads that, having regard to the relationship between the church and the plaintiffs as provided for in the manual, the church owed a duty of care to the plaintiffs not to cause injury to them or their reputation. According to the statement of claim, this duty was breached by reason of the purported disfellowshipping of the plaintiffs. The circumstances of the disfellowshipping which are complained of in this respect are set out in paragraphs 5 to 11 of the statement of claim.
The principal harm upon which the claim for damages in both contract and tort is based is the mental and physical injury which the plaintiffs claim they suffered as a result of the disfellowshipping.
The claim in tort for emotional distress
The mental injury claimed by the plaintiffs is described in the statement of claim as “emotional distress”. However, the evidence for the plaintiffs went further than this description and led to an assertion that the plaintiffs suffered from mental illness consequent upon the conduct of the church.
In so far as this type of damage is claimed as a consequence of a breach of duty of care, it is to be assessed in accordance with the principles discussed in Tame v New South Wales (2002) 211 CLR 317.
The court in Tame noted that damages resulting from negligent acts were recoverable for a recognisable psychiatric injury and not for emotional distress. It was common ground in that case that:
… save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness (See, eg., White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469, per Lord Goff of Chieveley). Bearing in mind that the requirement of causation is satisfied if a defendant’s conduct is a cause of the damage complained of, and the manifold circumstances in which one person’s conduct may be a factor in inducing an emotional response in another, the consequence of imposition of such responsibility would be to impose an unacceptable burden on ordinary behaviour.
Per Gleeson CJ at [7].
See also Gaudron J at [44] and Gummow and Kirby JJ at [194].
In order for a duty of care to arise, it is necessary, as a first step, that a recognisable psychiatric illness was reasonably foreseeable. When summarising Tame’s case in Halech v State of South Australia (2006) 93 SASR 427, Besanko J commented at [121]:
The normal fortitude, sudden shock and direct perception rules have been rejected as definitive tests of liability or control mechanisms. However, they, and in particular the normal fortitude rule, will still provide assistance in determining whether, having regard to the facts, a “recognisable psychiatric illness” was reasonably foreseeable (Gleeson CJ at 333 [18] and 335–336 [29]; Gaudron J at 343–344 [62], and Gummow and Kirby JJ at 384–385 [200]–[201] and 394 [225]). It is not necessary that the particular type of disorder be reasonably foreseeable; what must be reasonably foreseeable is a psychiatric illness as commonly understood, and not necessarily whether it is an illness referred to in the DSM-IV-TR. In addition to this requirement, the plaintiff may only recover damages for a “recognisable psychiatric illness”.
In Tame’s case, Gummow and Kirby JJ at [203] referred to two other aspects which are relevant for present purposes:
Expert evidence about the foreseeability of psychiatric harm is not decisive. Such evidence cannot usurp the judgment that is required of the decision-maker. Further, it is not necessary that the particular type of disorder that eventuated be reasonably foreseeable; it is sufficient that the class of injury, psychiatric illness, was foreseeable as a possible consequence of the defendant’s conduct Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390, 402-403, 413-414.
It is appropriate at this point to consider the medical evidence led in relation to the claim that both plaintiffs suffered from a psychiatric condition caused or contributed to by the disfellowshipping.
The claim by Mr Plenty – the psychiatric evidence
For a time Mr Plenty was treated by Dr Hutchins, a general practitioner practising at Port Pirie. In a report dated 17 February 1989 (P 22), Dr Hutchins said that Mr Plenty exhibited symptoms of a depressive illness which had been evident for many years. He said that, initially, the problem was caused by anxiety and frustration over the handling of various court cases in which Mr Plenty was involved. Dr Hutchins was of the view that Mr Plenty had developed a “marked depressive illness” which required treatment. He said that Mr Plenty was reluctant to accept treatment because it might have a “dulling” effect on his mind.
In 1992, Dr Clayer, a psychiatrist, examined Mr Plenty at the request of the solicitors who were then acting for Mr Plenty in connection with his claim against the police for damages for trespass. In a report dated 20 October 1992, (P 28) Dr Clayer traced the history of that case (Plenty v Dillon (1988) 50 SASR 407; (1991) 171 CLR 635) and another case involving court action against Mr and Mrs Plenty taken by the Deputy Commissioner of Taxation. This case led to an altercation between Mr Plenty and police officers who attended Mr Plenty’s residence with a warrant for his arrest. Mr Plenty claimed the warrant had been mistakenly issued.
Dr Clayer stated in his report:
The overall picture, therefore, from the years 1978 to the present time, has been one in which Mr and Mrs Plenty appear to have been, on a number of occasions, subjected to quite extraordinary and distressing approaches by the police. During these years Mr Plenty has had to consult his local medical officer, Dr J N Hutchins, for episodes of anxiety which have been, at times, so severe as to lead to depressive illness. This, according to Dr Hutchins, was so severe as to cause memory loss, vagueness and an inability to be responsible for his day-to-day activities.
Dr Clayer expressed the view that Mr Plenty’s depression began in late 1978. It continued and built up to “a greater severity” in 1999 when Mr Plenty appeared before the High Court. He said that, after the High Court decision in 1991, Mr Plenty suffered severe indigestion and in June 1991 he experienced severe chest pains which were investigated by his general practitioner. He said that Mr Plenty was referred to a doctor for stress tests and diagnosed as having suffered from a heart attack at some previous date. Mr Plenty refused to have an angiogram on this occasion.
Dr Clayer’s report also referred to the disfellowshipping incident. Dr Clayer said:
A further effect in Mr and Mrs Plenty’s life resulting from the actions of the police is that a statement was placed in the local press describing them having been found guilty (incorrectly). As a result of that, Mr Plenty received a letter from the Seventh-Day Adventists’ Church, of which he had been a member since his marriage, accusing him of disorderly conduct which brings reproach upon the cause and wilful and habitual falsehood. Mr Plenty checked with his lawyer about the propriety of discussing such a matter before the church when it was still subjudice before the court, and was told that he should not respond. The church, however, then proceeded to dis-Fellowship Mr and Mrs Plenty from the church. It was in the same court action that the magistrate apparently stated that Mrs Plenty and her daughter, in giving evidence, stood loyally behind Mr Plenty, implying dishonesty.
The above actions led to publication of comments in the Press and letters, including at least one from the Church, which caused Mr and Mrs Plenty further embarrassment.
Dr Clayer concluded:
In summary, therefore, I wish to advise you that I am of the opinion that since 1978 Mr S G Plenty has suffered intermittently with periods of anxiety and depression. These periods of anxiety and depression are the result of what appears to have been a persecutory attitude on the part of the police stationed at Port Pirie.
His symptoms have been of such severity that he has required treatment by his local medical officer, Dr N Hutchins, almost continuously over those years.
Dr Clayer examined Mr Plenty again in August 1994. He prepared a report dated 22 August 1994 (P 30) for the solicitors who were acting for Mr Plenty in the matter of Plenty v Dillon. Dr Clayer also examined Mrs Plenty on this occasion. In this report Dr Clayer referred to various disputes between the plaintiffs and the church. Dr Clayer also referred to the newspaper article of 20 February 1980, which is the subject of Plenty v Dickson.
In a letter dated 4 August 1994 requesting this report, the plaintiffs’ solicitors asked Dr Clayer to distinguish between the harm suffered by the plaintiffs as a result of the disfellowshipping and that suffered as a result of the various other difficulties which the plaintiffs had encountered.
In his concluding remarks in this report, Dr Clayer stated:
Clearly, I cannot in 1992, attribute the conditions diagnosed in Mr Plenty to the police action, and then attribute those same conditions in 1994 to the church, particularly as in 1992 the church actions were attributed by Mr and Mrs Plenty to the police behaviour but are now being reported as having their origins before the police/court action.
At the same time, I cannot deny that the longstanding dispute with the church has contributed to the emotional, psychological and physical problems that both Mr and Mrs Plenty have experienced. It is certain that the enjoyment of social life by both Mr and Mrs Plenty has been seriously affected by the church’s behaviour. To a large extent, Mr and Mrs Plenty became socially isolated by their disfellowship and to a lesser extent, became isolated from some members of their family by that dispute. It is also certain that Mr and Mrs Plenty have, at times, been distressed and occasionally depressed by their treatment by the church.
In summary, I cannot completely disentangle the problems that Mr and Mrs Plenty have encountered with the church from the very significant problems they experienced with the police, as causative factors of the psychiatric problems that have developed in this couple. My basic opinion, however, remains as it is described in my report of October 1992.
On 25 August 1997, Dr Clayer reported to the plaintiffs’ present solicitors a short time prior to a hearing before Judge Kelly to assess damages in the Plenty v Dillon matter. In this report, (P 32) Dr Clayer said:
In my opinion, Mr Plenty did develop some degree of depression as a result of the Church action and the concomitant police action. Mr Plenty appears to have developed obsessive compulsive behaviour and, as a consequence of that, his life and personal happiness, together with that of his wife, has been adversely affected.
Dr Clayer gave evidence before Judge Kelly on 11 September 1997. He said that the incident involving the trespass by the police then before the court had implications for the mental health of both Mr and Mrs Plenty. Dr Clayer also said that the disfellowshipping affected Mr Plenty in that he began to feel anxious and humiliated. He said Mr Plenty was becoming obsessional and “over determined in the way that he pursued his litigation”.
When giving evidence on Mr Plenty’s condition at the time of the assessment before Judge Kelly, Dr Clayer said:
It’s a little bit hard to say that he is very depressed. It depends on what your experience with depression is. My experience with depression is with people who are severely depressed, that they sit and stare into space and can’t move and try and kill themselves. On that kind of experience, I would say that Mr Plenty is certainly seriously depressed but I wouldn’t say he is very depressed because that would apply to a different type of condition.
Dr Clayer was cross-examined at the hearing before Judge Kelly on the part played by the disfellowshipping in Mr Plenty’s condition:
QIf I can take you back to your report, that second to last paragraph, would it be fair to say that you recognised that there may be a quite separate impact on Mr Plenty by the disfellowshipping, that is separate to the impact of the police action?
AIt’s separate from but it’s consequent upon the police action, I feel. I think this has been said repeatedly. The two were so intermingled – they were separate. They couldn’t be in a pragmatic way separated, certainly not in a psychological sense.
Dr Clayer was not called at the hearing before me. However, his reports were tendered and I have taken his views into account. Nevertheless the views were not tested by cross-examination.
Dr Wurm, a psychiatrist, examined the plaintiffs at the request of their solicitors on 24 August 1998. The examination was for the purposes of the present litigation. He prepared a report dated 16 November 1998 (P 58). Mr Plenty told Dr Wurm that he felt the problem with the church had contributed to the deterioration of his health. He said that Mr Plenty’s mental state was characterised by depression. He concluded that Mr Plenty was suffering from major depression and that his condition was consistent with the stated cause, namely, disfellowshipping. This report was quite short and the impact of the other stressors in Mr Plenty’s life and the long history of litigation in which the plaintiffs have been involved were not mentioned.
The plaintiffs were re-examined by Dr Wurm on 13 October 1999. This resulted in a report to the plaintiffs solicitors dated 22 October 1999 (P 59). Dr Wurm said he found no significant change in the conditions of the plaintiffs since his report of November 1998, except that Mr Plenty appeared to be more “mentally frail”.
Dr Wurm prepared a further report dated 30 September 2003 (P 60). This followed an interview with the plaintiffs on 21 August 2003. Mr Plenty told Dr Wurm that he saw himself “ground down” by what he described as 35 years caught up in the legal system.
Dr Wurm stated in his report:
In addition to the clinical examination I carried out a formal assessment of depression using the Montgomery and Asberg Depression Rating Scale. This yielded figures which supported the diagnosis of a moderate degree of depression. In DSM terms the diagnosis is major depression.
In my opinion Mr Plenty’s condition of depression was consistent with the stated cause.
Dr Wurm said that Mr Plenty would continue to experience a moderate degree of depression in the future. He said it is likely that he will need psychiatric treatment in the future.
In neither report did Dr Wurm refer to the history of stress associated with the plaintiff’s long and complex history of litigation and disputation with various persons and authorities.
Dr Wurm was called to give evidence for the plaintiffs in the present case. He said that he examined Mr Plenty six weeks before he give evidence and, although he said he was still greatly impressed by Mr Plenty’s distress and despair, he did not think that he was then suffering from a diagnosable major depressive illness.
Dr Wurm was asked about the opinion which he expressed in a report dated 7 May 2004 (P 63), that both Mr and Mrs Plenty were suffering from “depression in the clinical sense”. He said that condition was a medically recognisable disorder.
Dr Blakemore, a psychiatrist, examined Mr Plenty on behalf of the defendant four times in March and April 2005. At the request of the plaintiffs, Dr Wurm was present on three of these occasions. Dr Wurm said that, at the time he received Dr Blakemore’s report dated 1 June 2005 (D 78), he thought that although Mr Plenty still had some disturbance and distress, he no longer felt that it warranted a formal diagnosis of a depressive illness. He said he agreed with Dr Blakemore’s opinion to that effect. In cross-examination, Dr Wurm conceded that there have been a series of events going back to 1968 which have led to Mr Plenty’s present condition.
Later in this evidence, the following cross-examination took place:
QAll I am putting to you is that in light of the other answers or some of the answers that you gave to me earlier, you are not meaning to suggest that was the only cause of his major depression at that time?
AI must admit I think I had a bit of tunnel vision there.
HIS HONOUR
QWhat does tunnel vision mean in that application?
AI think I was so impressed with the hard luck story of Mr and Mrs Plenty with regard to the disfellowshipping, that I just focused so strongly on that.
However, at a later stage (568), Dr Wurm added that he thought that the most significant stressor was the church issue.
I have said that Dr Blakemore examined Mr Plenty on four occasions in March and April 2005. Dr Wurm was present on three of those occasions. Dr Blakemore took an extensive history from both plaintiffs. In his comprehensive report dated 1 June 2005 (D 78), he described Mr Plenty’s presentation throughout the interviews:
Mr Plenty gave his history generally articulately, thoroughly, “back-tracking” at times to provide more detail, and generally seemed well prepared, making the same points generally, and using much the same language as he had used to write the summary. This history, Mr Plenty’s general response to other questions, and his demeanour generally, was organised, he was very much in control of himself, and some aspects of his story, for example, his complaints about the alleged depression and factors in it, when repeated, using virtually the same words on occasions, appeared somewhat rehearsed. Despite these complaints, about which he spoke with feeling, there was no actual abnormality of emotion present, Mr Plenty did not appear depressed, he was emotionally continent, and was able to maintain his composure and control in his response to all sorts of potentially difficult questions. Mr Plenty was orientated and alert in each interview, and on each occasion followed the thread of the interviews with quick attention and concentration, responded amiably and with good humour to brief mental state testing. Mr Plenty’s presentation was essentially similar at each interview.

Dr Blakemore said that Mr Plenty did not appear to be suffering from any psychiatric illness. He continued:
While he complains now of depression, experienced as a result of the disfellowshipping, and, particularly, of his resultant inability subsequently to mix and worship with people of like faith, and some psychiatric illness diagnosis may have been applicable at some earlier time, accepting that Mr Plenty does experience some depression, any emotional difficulties do not now appear to be experienced to such a degree that any psychiatric illness diagnosis is applicable. Mr Plenty’s presentation was that of a man emotionally competent, emotionally continent, very much in control of himself emotionally, any depression if he was experiencing any depression, and he did not appear depressed, did not prevent him from conducting himself in this particular type of interview very astutely, in a way not consistent with somebody suffering a depressive or other psychiatric illness.
Prior to the interviews, Dr Blakemore had been asked to express an opinion whether, if Mr Plenty did suffer from a psychiatric illness, it could be attributed to one or a number of eleven causes. Those causes included: a motor vehicle accident in Western Australia on 7 June 1968 and its sequelae; disputes with the Australian Taxation Office; the police trespass; a dispute with his previous solicitors and other disputes with various legal advisers who had represented the plaintiffs; the relationship of the plaintiffs with their family; and the disfellowshipping from the church. Dr Blakemore said that most of these factors were likely to have affected Mr Plenty emotionally.
Dr Blakemore said in evidence that Mr Plenty was controlled and very astute during the interviews. According to Dr Blakemore, Mr Plenty gave the impression that he was capable of a good deal of rhetoric and he did not seem to Dr Blakemore to be genuine.
Dr Blakemore said that Mr Plenty appeared to attribute his depression to different causes and that this was not appropriate behaviour for somebody who was suffering from a depressive illness.
Dr Blakemore said that he could not be definite about Mr Plenty’s condition years ago. He said he paused to wonder whether Mr Plenty was psychiatrically ill at any time.
Dr Blakemore referred to a report dated 20 December 1988 (D 81) from Dr Griffin, a psychiatrist who interviewed Mr Plenty on 8 December 1988. On that occasion, Mr Plenty told Dr Griffin he was suffering a deep depression which, in Mr Plenty’s view, resulted from the motor vehicle accident on 7 June 1968. The disfellowshipping was not mentioned in Dr Griffin’s report. Dr Blakemore thought that the report from Dr Griffin suggested that Mr Plenty wished to shape the opinion which Dr Griffin was to provide so as to relate it to depression arising out of the motor vehicle accident. Dr Blakemore said that if Mr Plenty was suffering a depressive illness relating to a particular matter or matters, then that matter “would have come out emotionally”. He said that, at the very least, this meant that Mr Plenty was not suffering a significant emotional illness resulting from the disfellowshipping.
Dr Blakemore said in his report on Mr Plenty that there had been no mention in the history given to Dr Clayer of any emotional symptoms arising from the disfellowshipping. It was pointed out in cross-examination that in Dr Clayer’s report of 20 October 1992 Dr Clayer referred to the disfellowshipping. I have set out the passage in [67]. Dr Blakemore replied that, although the disfellowshipping was mentioned in the report, it was not put forward as a cause of the depression.
Dr Blakemore conceded that Dr Wurm may have been correct when he said in his report of 16 November 1998 (P 58) that, at that time, Mr Plenty was suffering from major depression. However, he expressed concern about the accuracy of the history provided to Dr Wurm.
I formed an unfavourable view of Mr Plenty as a witness. I have made allowance for the fact that the relevant events took place a long time ago and that Mr Plenty struggled to recall many of them. However, he frequently prevaricated under cross-examination and it became clear that he was ever conscious of the implications which his answers would have for the success of his case.
Mrs Plenty had a good recall of events and gave an account which was generally reliable. However, although the plaintiffs have been justified in some of the causes which they have undertaken in defence of their rights, it is clear that they have lost objectivity in a number of instances. I base this solely on the evidence in the present case and nowhere is it better illustrated than in the letter dated 1 May 1978 addressed to the Deputy Commissioner of Taxation, Adelaide (D21).
The letter provides a useful catalogue of the many issues about which Mr and Mrs Plenty were complaining up to this point in time, which was shortly before the disfellowshipping. It records the stressors which the plaintiffs explained were affecting them at this time and it provides some support for Dr Blakemore’s comment concerning Mr Plenty’s resort to rhetoric during the psychiatric examinations.
I prefer the evidence given by Dr Blakemore. I agree with his observation that great care needs to be taken in forming an opinion based on the information given to the various psychiatrists by Mr Plenty. It is clear that, over the years, Mr Plenty has exhibited a readiness to blame other people for his setbacks and their effects. That is not to say that he has not had genuine and well-founded complaints in some respects.
However, the letter D 21 demonstrates the tendency to which I have referred, and care needs to be taken in considering opinions based on his psychiatric condition which depend, to any extent, on the information supplied by him. This is particularly so where any psychiatric or psychological condition which he may have had could have been caused by any one or more of a significant number of stressors.
In summary, therefore, Dr Hutchins expressed the view in 1989 that Mr Plenty had developed a marked depressive illness, but there is nothing but a short report from him. Furthermore, he is not a trained psychiatrist.
In 1992, Dr Clayer referred to Dr Hutchins’ report but, in his own reports, he did not state his own categorical opinion that Mr Plenty was suffering from a recognised psychiatric illness or condition.
After considering all the evidence, I accept Dr Blakemore’s view that Mr Plenty was not suffering from any psychiatric illness at the time of the examinations conducted by him. Although Dr Blakemore concedes that Mr Plenty may have suffered from such a condition in the past, this is no more than a concession on something about which he was unable to express a positive opinion.
I have had close regard to the evidence of Dr Wurm that, at the time he interviewed Mr Plenty in August 2003, he diagnosed him as suffering from a major depressive illness which was consistent with the stated cause, namely, the disfellowshipping. However, I am not satisfied that Mr Plenty suffered from such an illness and, even if he did, I am not satisfied on the balance of probabilities that he suffered from such a condition as a result of the disfellowshipping which occurred approximately 27 years ago. After taking into account the whole of the evidence, including the medical evidence, I am not satisfied that the defendant’s conduct was a cause of any psychiatric illness suffered by Mr Plenty. On the other hand, the possibility that the disfellowshipping caused emotional distress to Mr Plenty is clearly open.
The proceedings in Plenty v Dillon
In any event, it seems that Mr Plenty was compensated for the condition which he claims to have suffered from in the assessment of damages in Plenty v Dillon.
I have referred to this action which the plaintiffs took against the police for trespass following the visit of the police to their property in October 1978. The High Court ordered that there be judgment in favour of the plaintiffs for damages to be assessed. The matter was remitted to the Supreme Court for the assessment of damages.
The assessment was listed for hearing before Judge Kelly, who was then a master of the Supreme Court. The hearing took place in September 1997. Judgment was delivered on 19 September 1997. In the statement of claim, the plaintiffs claimed damages against the police for “emotional distress and personal injury” caused by the police as a result of the trespass.
When opening the case for the plaintiffs, their counsel said:
The incident has a number of characteristics to it, which has resulted in consequences for which the plaintiff claims damages. The first is the trespass itself. The second is that the trespass resulted in an arrest for assault and a conviction for assaulting police, which was overturned on the grounds that I have mentioned. The third is that the plaintiff was excluded from his church, again, as a result of his conviction.
There is a fourth element that arose. You may recall that, as the learned trial judge recorded, there were others present on the occasion of this incident. They were his daughter Sandra and the man who ultimately became her husband Mr Michael Weerts. In the event that happened Mr Weerts gave evidence on behalf of the defendant at the trial. The circumstances in which that came about led to an estrangement between the plaintiff and his daughter. That estrangement has happily now been resolved but there was a considerable time in which the plaintiff was estranged from his daughter.
……
That, itself, has caused its own damage to the plaintiff because at the heart of that lay the estrangement that flowed from it. That continued until Easter 1996 so at some time before the trial in 1987 the estrangement occurred when it became evident that Mr Weerts had been subpoenaed. That estrangement continued until Easter 1996 when there appears to have been a reconciliation. That, on the plaintiffs’ case, obviously enough, has caused enormous distress and upset and is a matter in which we contend damages.
In his reasons for judgment, Judge Kelly summarised the case for Mr Plenty (1997) 194 LSJS 106 at pp 107-108:
He seeks both aggravated and exemplary damages for the trespass itself. He also claims consequential damage which can be categorised thus:
1.For the onset or really the exacerbation of an anxiety and, arguably, depressive illness described in the evidence and the medical reports.
2.For his being “disfellowshipped” (as he puts it) or his membership of his Church being terminated (as his Church puts it) based upon the fact of his conviction for assault and the circumstances surrounding same and related correspondence thereon.
3.For the temporary exacerbation of a back complaint.
4.For the “falling out” with one of his daughters and the tension created within his wider family because of the “disfellowshipping”.
5.For his inability to make any decision regarding improvements to a commercial property owned by him whereby he could have earnt more rental than he has.
Judge Kelly then referred to Mr Plenty’s medical condition at p 109:
Mr Plenty is a rather mentally devastated man. The medical reports detail his problems. I do not intend to reproduce them here. Suffice to say there is really no argument against the medical proposition that Mr Plenty is in a state of serious depression which has gradually grown worse over many years. This depression has exhibited itself in many ways (insomnia, insecurity, feelings of persecution, lack of confidence, an amnesia attack and so on), and again I will not go into detail. There may also be a condition of anxiety present but by and large I think the term used by Dr Clayer “seriously depressed” describes the situation.
It would also seem that this illness will be hard to recover from if at all. The conclusion of this case will not, it appears, be the end of the depression. I suspect there may be some improvement but the medical people are certainly not confident.
How does Mr Plenty himself feel? Again, without detailing the evidence (and I accept he and his wife’s veracity) he uses words like “depressed, insecure, downtrodden, lost confidence, devastated, humiliated” and so on. In relation to his being “disfellowshipped” (which, on his case, is a consequence of the trespass) he uses not dissimilar language - “shunned, offended, devastating, hurtful, the last straw” and so on. His wife speaks of her observations similarly.
His Honour then went on to deal with the causes for the condition. He referred to the Western Australian incident, the incident in Port Pirie when Mr Plenty went to sit for a driver’s licence examination and was arrested by the police and the trespass incident in 1978. He continued at pp 110-111:
I have no doubt that being “disfellowshipped” was, too, an event which caused the utmost distress to the plaintiff and materially contributed to his “now” condition. Whether it can be regarded as of equal or more serious consequence than the trespass incident is a moot point. I think probably the honours are even in that respect but it must be remembered that the real exacerbation or possibly onset occurred after the trespass. It cannot be argued that it was really the church activity which triggered his problems. If this church incident were to be entirely divorced from the consequences of the trespass incident then I would have to assess damages in a very different light. Namely an assessment (difficult though it would be) of what effect the trespass had on the plaintiff as distinct from what effect both incidents had on the plaintiff. That is unnecessary because I am quite convinced of a causal link between the two.
And later t p 111:
Why was Mr Plenty “disfellowshipped”? I can come to no other conclusion than that his membership was terminated because of the Church’s view that he had done considerable wrong in his conduct (including his letter writing) surrounding the trespass incident and his conviction for assault. Attempt has been made to suggest that the termination of his membership was due to other factors. I reject that view as being most unlikely on the Plentys’ evidence (which I accept) and in light of the correspondence between they and the church. I am convinced that a causal link has been demonstrated.
So I go back to my initial question - “what caused Mr Plenty’s feelings of devastation, humiliation and his serious depression”?
The answer, as a firm probability, lies in the incident of the trespass to land which, causally, brought about the church incident. These are the two basic and overwhelmingly major elements in his illness. Of the two it was the defendant’s trespass that caused either the substantial exacerbation or the onset of the progressive depressive illness which in turn was exacerbated by the church incident and the two are causally related.
Judge Kelly awarded damages as follows:

$

Aggravated damages (trespass incident) 15,000

Exemplary damages (trespass incident) 5,000

Injury to Mr Plenty’s back (trespass incident) 2,000

Estrangement from Mr Plenty’s daughter No award – causation not established

Loss of rental Insufficient evidence for award

The depressive illness 100,000

Interest was fixed at $45,000.

When awarding $100,000 for the depressive illness, the judge said that this condition related back to the “trigger” of the trespass and to the causally related church incident. He said the combination left the plaintiff in his present state. He also said that the condition seemed likely to continue.
It appears, therefore, that Mr Plenty has already been compensated for the injury which he claims to have suffered in the circumstances of the present case, albeit in a matter in which the cause of action and the defendants were different from the cause of action and the defendants in the present matter.
Mrs Plenty
In a report dated 26 May 1995 (P 23), Dr Betty, the plaintiffs’ then general practitioner, prepared a short letter concerning their medical history. It would appear that he relied on notes left by the plaintiffs’ previous general practitioner, Dr Hutchins. Dr Betty reported that Mrs Plenty “reports feeling exhausted, not sleeping and feeling anxious about the situation. Also she noted headaches and neck pain.” He said that the experiences of the plaintiffs over a considerable period of time had resulted in a significant effect on their health.
Dr Clayer’s report of 22 August 1994 (P 30) refers to Mrs Plenty, although the report is mainly directed towards Mr Plenty’s condition. His comments appear to be based on material emanating from Dr Hutchins. Dr Clayer stated in the report that he could not deny that the long standing dispute with the church had contributed to the emotional, psychological and physical problems that both Mr and Mrs Plenty had experienced.
Dr Wurm examined Mrs Plenty on 24 August 1998. Referring to her in his report of 16 November 1998 (P 58), he said:
Regarding the church business, Mrs Plenty had had a lifelong involvement and belief in the church and said that she had been absolutely devastated by the disfellowship. All the more so because she and her husband had never really received any clear explanation which could justify that action. She said she still felt the pain of disfellowship. She suffered from depressed moods, severe insomnia and a generally lowered level of confidence and ability to enjoy life. She had slowed down and found that her concentration and memory were “hopeless”. She said that she retained her faith and that this was the only thing that kept her going. Her general health was good. Mrs Plenty contrasted her current impaired mental state with her past personality – she saw herself as having been a cheerful, outgoing, calm person with a good sense of humour and enjoyment of life.
On examination, Mrs Plenty presented well and gave a good account of herself and the difficulties which she and her husband have encountered. I found her to be more responsive than her husband, but still significantly depressed and suffering from a considerable degree of general malaise. Her condition also warrants the diagnosis of major depression.
Dr Wurm prepared another report on Mrs Plenty on 30 September 2003 (P 60), following an interview he had with the plaintiffs on 21 August 2003. He said:
Assessment by means of the Montgomery and Asberg Depression Rating Scale resulted in a score consistent with a depressive disorder of moderate severity. The diagnosis is major depression and generalised anxiety disorder.
In my opinion Mrs Plenty’s condition is understandable and consistent with the stated cause. I have not prescribed treatment.
I cannot qualify the ongoing effects of Mrs Plenty’s psychological problems.
Dr Wurm said that Mrs Plenty had been suffering from psychological disorders resulting from the “church business” for many years. He said that it would take years for her to get back to reasonable feelings of well-being.
Dr Wurm commenced his evidence on 14 March 2006. He said that he had seen Mr and Mrs Plenty approximately six weeks before that date and, although they were distressed and appeared to be tense and anxious, they were not, in his view, suffering from any diagnosable major depressive illness. However, he said that, in the case of Mrs Plenty, he thought that there was sufficient in her condition to warrant a diagnosis of anxiety disorder. He said that anxiety disorder is a medically recognised disorder. He said that the central features of an anxiety disorder are tension associated with headaches, stomach ache, and various other aches and pains. He said the main feature of depression is disorder of the mood, again with some physical manifestations.
Dr Wurm confirmed that he had been present on each occasion when Dr Blakemore interviewed Mrs Plenty. He said that during this period he noted that there was some depression, but he formed the view that she was not suffering from clinical depression. However, he said that at this point he thought that Mrs Plenty’s condition warranted a diagnosis of anxiety disorder. He then added that he could not be absolutely sure that the diagnosis of anxiety disorder was made at that time, but he said he thought that was the case. The following discussion then took place in examination-in-chief:
Q.What was your opinion at that time?
A.Well, I thought that Mrs Plenty was suffering from a great deal of anxiety and it was manifested in a lot of physical illness and disturbance and if Dr Blakemore had asked me my opinion I would have said “I think the diagnosis of anxiety disorder is appropriate”.
Q.Is that the three occasions that you were present, or did it vary between those three occasions?
A.I can't remember.
Q.You don't have notes of course unfortunately in relation to those attendances?
A.No.

Dr Blakemore examined Mrs Plenty on 17 December 2004, 13 January 2005 and 7 February 2005. Dr Wurm was present on each occasion. Dr Blakemore took an extensive history from Mrs Plenty.
Dr Blakemore made the following assessment in his report of 25 May 2005 (D 77):
Mrs Plenty is not suffering a psychiatric illness, no psychiatric illness diagnosis is applicable, with specific reference to the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, text revision).
I accept that Mrs Plenty does suffer some times of depression and some tension, but presently, any emotional difficulties do not appear to be experienced to a psychiatric illness degree, Mrs Plenty does not appear to be incapacitated in her day-to-day activities by psychiatric illness, and I note, particularly, her pursuit of her singing career. Importantly, Mrs Plenty’s clinical presentation was unremarkable, there was no indication of mood abnormality or other abnormality, and this presentation was not that of somebody suffering a psychiatric illness.
Dr Blakemore said that a number of stressors which are referred to in his report, including the disfellowshipping, are likely to have contributed to Mrs Plenty’s times of anxiety and depression. However, he said that, as Mrs Plenty is not suffering a psychiatric illness, no psychiatric treatment is presently indicated.
Dr Blakemore also summarised entries relating to Mrs Plenty from the notes of her general practitioners:
Mrs Plenty’s G.P. notes, were available from April 1979, and they indicate that she first consulted her doctor about any emotional problems in May 1995, at the same time as she was requesting a medical report for her solicitor. The next mention of stress followed a consultation in May 1996, and also mentioned in the notes was a motor accident two-weeks before. There was another mention of Mrs Plenty being very stressed, “(?) to do with the car accident and the legal system”, in a note of 18^th October 1996. Mrs Plenty’s doctor’s notes of 10^th January 1997 mention stress with legal problems, and the next mention of any stress was in the notes of October 1997.
The next consultation after this was in November 1997, where the notes relate that “anxiety/depression” was diagnosed and there was a note that the antidepressant drug, Aropax, was prescribed, medication that I understand from Mrs Plenty that she did not take. The next consultation was not until October 1998 when a swelling of the left side of Mrs Plenty’s neck was noted, and she eventually had surgery in September 2000, a benign thyroid tumour being removed.
The last mention then of any emotional difficulties in Mrs Plenty’s doctor’s notes was that of November 1997.
In his evidence, Dr Blakemore confirmed the view expressed in his report on Mrs Plenty that she was not, at the time of the consultations he had with her, suffering a psychiatric illness. He was also firmly of the view that, at the time he spoke with her, she was not suffering from an anxiety disorder. She said she got very anxious about various matters, but, in Dr Blakemore’s view, her nervous tension did not develop into an illness. He said her symptoms would not qualify as an illness unless they were significantly disruptive and that is not how she described her life.
Dr Blakemore went on to describe various types of anxiety disorders. However, he said that Mrs Plenty did not describe symptoms which were indicative of any of these types of anxiety disorders. He said her clinical presentation was unremarkable. He referred to the difficulties of assessing whether a person suffered a psychiatric disorder 30 years ago. He also pointed out that there were very few complaints about emotional problems encountered by Mrs Plenty in the reports of doctors who examined her over the years. He said there may have been “ups and downs of emotions in that period of time”, but it is highly unlikely that there was any significant emotional illness suffered over the period.
Again, in the case of Mrs Plenty, I prefer the evidence and reasoning of Dr Blakemore. As he pointed out, although Mr and Mrs Plenty were examined by a number of doctors over the years, there is no reference to emotional problems experienced by Mrs Plenty until Dr Betty’s report of 26 May 1995.
Dr Clayer does not note anything significant about her condition. There are some references in reports regarding the stress she was under, but Dr Wurm made the first reference to Mrs Plenty suffering from a depressive disorder in his report of 30 September 2003 (P 60).
Dr Blakemore then examined Mrs Plenty in Dr Wurm’s presence on three occasions at the end of 2004 and the beginning of 2005. He said she was not suffering from any psychiatric illness, but accepted that there had been signs from time to time of emotional distress and tension.
When Dr Wurm examined Mrs Plenty in March 2006, he said that she was not suffering from a diagnosable depressive illness, but her condition then was such as to warrant a diagnosis of anxiety disorder.
Dr Blakemore disagreed with the diagnosis of anxiety disorder. He said there were no symptoms to support such a diagnosis.
In my view, Dr Blakemore researched the relevant medical history of the plaintiffs thoroughly and I accept the reasoned analysis of their respective conditions which he has provided. I accept the relevance of the comments which he made about the difficulties of assessing whether a person suffered from a psychiatric disorder so many years ago. It is just as difficult, in a case such as the present, to assign a cause or causes for such a condition.
It has not been established to my satisfaction on the balance of probabilities that Mrs Plenty suffered a recognisable psychiatric illness at any time.
Physical injury
It is pleaded in the statement of claim that Mr Plenty has suffered a heart attack and has digestive problems as a result of the stress occasioned by the disfellowshipping.
Dr Betty stated in his report of 26 May 1995 (P 23) that the medical notes kept by Dr Hutchins referred to Mr Plenty suffering from stomach upsets with flatulence and diarrhoea. The notes also refer to chest pains.
Mr Plenty gave evidence that, in September 2001, he suffered a heart attack. He said that he had suffered indigestion for some months prior to that.
Dr Kelly, a general practitioner practising in Crystal Brook, stated in his report of 26 August 2002 (P 50) that he understood Mr Plenty had suffered a myocardial infarction on 22 September 2001. He had received treatment in the Port Pirie Hospital and was seen by Dr Limaye, a cardiologist. An angiogram was recommended but was declined by Mr Plenty. The report stated that Mr Plenty felt that many of his symptoms could be explained by gastrointestinal problems.
Dr Kelly stated in the report that Mr Plenty was treated for eradication of H. Pylory, which was associated with a peptic ulcer.
Mr Plenty’s heart condition was examined more closely by Professor Horowitz, the Professor of Cardiology at the University of Adelaide. Dr Horowitz provided two reports which were tendered at the hearing. He also gave evidence.
Professor Horowitz said that he first saw Mr Plenty on 15 October 2003. He said in a report dated 15 October 2003 (P 64) that Mr Plenty appeared to have had a history of angina and that when he saw Dr Limaye he did an exercise test which was strongly positive. He said that Mr Plenty had few, if any, risk factors of the conventional type for coronary disease. His cholesterol levels were satisfactory and he had only transient high blood pressure.
In a report to the plaintiffs’ solicitors on 5 June 2004 (P 65), Professor Horowitz referred again to the history of angina which he said was first noted in early 2001. He said this culminated in a diagnosed myocardial infarction in September 2001, with ongoing myocardial ischaemia which was apparent as a result of a strongly positive exercise test. Professor Horowitz said that he found no abnormalities on physical examination, but that he had no doubt that Mr Plenty was suffering from myocardial ischaemia and that he had no reason to doubt the previous diagnosis of a small heart attack. He added that it was entirely possible that stress may have contributed to the emergence of myocardial ischaemia. However, he said it was less certain that stress would have been the cause of the underlying ischaemic heart disease. He said that Mr Plenty was likely to have developed coronary atheroma from causes which were essentially unknown, although stress could not be excluded. He said the emergence of angina pectoris, and possibly of myocardial infarction, could well have been largely due to stress.
Professor Horowitz stated in the report that Mr Plenty had minimal residual disability as a result of his heart attack and that, with appropriate treatment, he could be rendered asymptomatic. He said the myocardial infarction suffered by Mr Plenty was small and had not significantly impaired his capacity for work. He noted that Mr Plenty had refused to consider invasive therapy and that, if he did undergo therapy, his prognosis might be near normal for the next ten years.
Professor Horowitz said in evidence that Mr Plenty had only a very small heart attack and that his heart at the time when he was seen was virtually undamaged as a pump. However, he said the exercise test showed signs of strain appearing on the heart, which implied that he had significant narrowings in his coronary arteries. He said it was unfortunate that Mr Plenty was not going to let himself be properly treated. He said that he was at continuing risk if he did not have an angiogram.
The hearing of this matter had to be adjourned for some months and when it resumed on 7 August 2006, Mr Plenty was recalled to give evidence. He said that he underwent a triple bypass operation on 30 June 2006. No further medical evidence was called.
The evidence does not establish that Mr Plenty’s heart condition resulted from stress caused or contributed to by the disfellowshipping.
Dr Gibson, a gastroenterologist, saw Mr Plenty in December 2002. It was his view that the oesophageal symptoms such as indigestion and chest pain were due to angina pectoris. He said that he had agreed to endoscope Mr Plenty. It would seem that Mr Plenty did not undergo an endoscopy, but I have referred to the existence of H.Pylory. Again, however, there is nothing in the evidence to connect any gastrointestinal problem which Mr Plenty may have to stress caused by the disfellowshipping.
The statement of claim was amended so as to plead that Mrs Plenty sustained ischaemic heart disease as a result of stress due to the disfellowshipping and that she continues to be susceptible to cardiac failure as a result.
In a report dated 10 February 2006 (P 54), Dr Kelly stated that Mrs Plenty probably developed ischaemic heart disease in the latter part of 2005. He said she was admitted to the Port Pirie Hospital in late October with chest pain. A coronary stress test was positive for ischaemia.
The defendants tendered two letters from Dr Ashby, a cardiologist, to Dr Kelly dated 9 January 2006 (D 75) and 2 February 2006 (D 76). Dr Ashby said that he saw Mrs Plenty in the early part of 2006. He said in his second report that Mrs Plenty had had a lot of stress over the last 25 years due to her problems with the church and “she basically wanted me to say that the stress had caused her current potential cardiac problem”. He continued:
At this stage I am not even sure Deanne has a cardiac problem as she does not want to have a coronary angiogram. I note she does get anginal like chest pain and had a strongly positive stress test. Even if she does have coronary disease I am not sure that we can say the stress from the church has caused any of this as the stress has been going on for 25 years and she also does have the risk factors of a positive family history and high cholesterol. Thus I have declined to do her report for her at this stage as I don’t think it would be what she wants me to say. From a cardiac point of view I still think she probably needs an angiogram and she says she will think about this following her trial.
The evidence fails to establish that Mrs Plenty has suffered any physical injury as a result of the disfellowshipping.
I have no doubt that the plaintiffs suffered considerable distress as a result of being disfellowshipped by the church. However, it has not been proved that they suffered from a recognised psychiatric illness. The evidence also fails to establish on the balance of probabilities that they suffered from any physical injury caused or contributed to by the disfellowshipping. There is no evidence of any financial loss as a result of the disfellowshipping.
The plaintiffs’ claim for damages for breach of duty of care must fail.
The defamation action
The plaintiffs issued proceedings against Alex Raymond Dickson (the first defendant) and the South Australian Conference of the Seventh-Day Adventist Church (the second defendant) claiming damages for defamation (Supreme Court Action No. 3169 of 1980). At the time the proceedings were commenced, the first defendant was the communications director of the second defendant.
The proceedings arose out of a letter written by the first defendant which was published in the Letters to the Editor columns of The Advertiser on 29 February 1980.
The letter commented on an article which had previously appeared in The Advertiser. The article reported on a decision of the Sex Discrimination Board dismissing a complaint by Mrs Plenty and her two daughters. The complaint alleged that there had been discrimination against Mrs Plenty and her daughters by the magistrate who heard the case in which Mr Plenty was charged with assaulting a police officer on the occasion of the police visit to the property in October 1978.
Mrs Plenty and her daughters gave evidence before the magistrate and the article reported a finding by the magistrate that, while Mrs Plenty was “loyally standing up for her husband”, he could give no weight to her evidence. The article went on to state that the Sex Discrimination Board ruled it had no jurisdiction to hear the complaint.
The article included the following extract:
Mrs Plenty said last night she planned to appeal to the Supreme Court over the Sex Discrimination Board’s decision.
She would challenge the board on its ruling that it had no jurisdiction to hear the case.
“I have been terribly discriminated against by the magistrate and it has affected my personal life as a Christian,” she said.
“The church has taken the view that, if the magistrate has chosen not to believe me, I have been telling falsehoods.
I have been cut off from membership at my church.”
Mrs Plenty said a letter from the board of the Seventh-Day Adventist Church at Port Pirie had told her of her dismissal from December 1.
Her husband had also been cut off from membership of the church for having been found guilty of assaulting a policeman.
Mr Plenty has appealed against the conviction to the Supreme Court.
Mrs Plenty said: “We give our evidence honestly in the courtroom, and it was a grave injustice of the magistrate when he said he would give little weight to our evidence because we were loyally standing behind our husband and father”.
The letter which is the subject of the defamation action was in the following terms:
Church action
Sir – I refer to “The Advertiser” 20/2/80, concerning the dismissal of Mrs Plenty from the membership of the Seventh-Day Adventist Church at Port Pirie.
As reported, the article gives inference by Mrs Plenty that she was dismissed because of a court magistrate’s attitude to her evidence in a case of sex discrimination.
It is unfortunate that this has been implied. The facts are that Mrs Plenty and her husband were dismissed from church membership because of continuing attitudes and actions which were felt contrary to church standards of behaviour.
Mr and Mrs Plenty appealed to the church authorities for reconsideration of the action taken by the Port Pirie Church Board and their appeal will be considered in the near future.
A R DICKSON
Communications Director SA, Conference of Seventh-Day Adventists
The letter refers to an article published in The Advertiser on 20 February 1980, but it would appear that this is a reference to the article referred to above which was published on 25 February 1980.
A letter from Mrs Plenty was published in The Advertiser on 14 March 1980. It stated:
Church action
Sir – I refer to the letter “Church action” written by A. R Dickson, Communications Director of the SA Conference of Seventh-Day Adventists (“The Advertiser,” 29/2/80).
I am deeply saddened at the necessity of writing this letter to correct the gross inaccuracies and hurtful innuendo made against myself and my husband.
It is a pity that Mr Dickson did not take the opportunity of first acquainting himself with the facts before disputing the accuracy of “The Advertiser’s” articles which stated that I was disfellowshipped from the church as a consequence of the discrimination by the magistrate in my husband’s case of assault.
The facts are, that the Port Pirie SDA Church has, in writing, accused me of telling “wilful and habitual falsehood at the time of Mr Plenty’s court case”, and my husband and I were deprived by circumstances of offering any form of defence against this abusive, untrue statement. Without being heard, we were immediately disfellowshipped.
I am shocked and hurt by Mr Dickson’s letter, and the inhumane actions of the church, as no-one has ever come to either my husband or myself and told us of any unchristian-like behaviour. In fact only weeks before, the Port Pirie minister had asked me to teach several new young people coming to our church, and only a few days before I was asked to go collecting for our missions in the business centre of Port Pirie.
MRS D PLENTY
Port Pirie
The statement of claim asserts that the letter implies that false information was supplied by Mrs Plenty. It is also claimed that the statement in the letter that the plaintiffs “were dismissed from church membership because of continuing attitudes and actions which were felt contrary to church standards of behaviour” is false and reflects in a serious way on the characters of the plaintiffs.
On 22 May 1991, a master made a consent order in the defamation action that the plaintiffs have judgment against the defendants for damages to be assessed.
Mrs Plenty said in evidence that she was horrified when she read the letter in the newspaper because it was not true. She said it was not correct to say that she and her husband were dismissed from church membership because of “continuing attitudes and actions which were felt contrary to church standards of behaviour”. She added that she and her husband were never told that this was the reason for their disfellowshipping.
Earlier in these reasons, I set out the events leading to the disfellowshipping of the plaintiffs. The particulars of the charges which were notified to the plaintiffs are set out in that summary. Prior to the church meeting at which the disfellowshipping took place, the charges were amended so as to allege:
Disorderly conduct which brings reproach upon the cause of God eg. letters written to the newspapers containing exaggerated accusations.
Attitude towards those in authority.
When the plaintiffs were advised by letter dated 2 December 1979 that they had been disfellowshipped, they were told that their membership of the church had been terminated for “disorderly conduct which brings reproach upon the cause of God” and “attitude towards those in authority”.
The article in The Advertiser stated that Mr Plenty had been cut off from membership for assaulting a policeman. This was one of the original charges and it is understandable that Mrs Plenty may have been under the impression that it was a matter which led to his disfellowshipping. The broad and somewhat ambiguous reasons subsequently given by the church for the disfellowshipping could well have been understood by the plaintiffs to include the charge of assault. I have said that they were not at the meeting at which the vote was taken to disfellowship them.

However that may be, the church and Mr Dickson decided to correct what they understood to be a misstatement of the reasons for the disfellowshipping which had appeared in the newspaper article. Mr Dickson’s letter stated that Mr and Mrs Plenty were dismissed from membership “because of continuing attitudes and actions which were felt contrary to church standards of behaviour”.
Looked at from the point of view of the church, this may have appeared to be a correct statement. However, I referred in my earlier judgment on the declaration application to the ambiguity of the wording of the charges and the letter advising of the disfellowshipping. Despite the perceived need for the church to correct the statement in the newspaper article which appears to have emanated from Mrs Plenty, it was unwise to attempt a description of the conduct for which the plaintiffs had been disfellowshipped.
Members of the church are committed to a strict code of behaviour and the plaintiffs were disfellowshipped for an alleged failure to abide by that code. However, Mr Dickson’s letter has to be judged from the position of the average reasonable reader. To such a reader, the phrase “continuing attitudes and actions which were felt contrary to church standards of behaviour” could well imply conduct more serious than the allegations which led to the disfellowshipping.
It is relevant to take into account the circulation of the newspaper and the effect which the publication appears to have had on the plaintiffs. It is of some relevance to note that Mr Dickson’s letter referred to the fact of an appeal against the decision.
I do not agree with the submission that the plaintiffs have already been compensated for the defamatory statement by Judge Kelly’s award of damages in Plenty v Dillon& Will (1997) 194 LSJS 106.
The statement of claim seeks an award of aggravated or exemplary damages. However, I do not think the case calls for this component in the award. Aggravating features can be taken into account in the award of compensatory damages.
In all the circumstances, I award the sum of $10,000 by way of damages to each plaintiff as compensation for the defamation in the article.
As I have stated earlier in these reasons, the claims for damages in contract and tort will be dismissed.

$
Aggravated damages (trespass incident)	15,000
Exemplary damages (trespass incident)	5,000
Injury to Mr Plenty’s back (trespass incident)	2,000
Estrangement from Mr Plenty’s daughter	No award – causation not established
Loss of rental	Insufficient evidence for award
The depressive illness	100,000