Rowe v The Roman Catholic Archbishop of Perth
[2022] WASC 320
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2022] WASC 320
CORAM: MASTER SANDERSON
HEARD: 12 SEPTEMBER 2022
DELIVERED : 16 SEPTEMBER 2022
PUBLISHED : 16 SEPTEMBER 2022
FILE NO/S: CIV 3175 of 2019
BETWEEN: MICHAEL DAVID ROWE
Plaintiff
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
Defendant
FILE NO/S: CIV 1284 of 2020
BETWEEN: MICHAEL DAVID ROWE
Plaintiff
AND
CATHOLIC HOMES INCORPORATED
First Defendant
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
Second Defendant
Catchwords:
Practice & procedure - Application to strike out and for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Both claims struck out - Judgment in each action for defendants
Category: B
Representation:
CIV 3175 of 2019
Counsel:
| Plaintiff | : | D Barlin |
| Defendant | : | EM Heenan |
Solicitors:
| Plaintiff | : | Pagin & Mak Lawyers |
| Defendant | : | Irdi Legal |
CIV 1284 of 2020
Counsel:
| Plaintiff | : | D Barlin |
| First Defendant | : | E M Heenan |
| Second Defendant | : | E M Heenan |
Solicitors:
| Plaintiff | : | Pagin & Mak Lawyers |
| First Defendant | : | Irdi Legal |
| Second Defendant | : | Irdi Legal |
Case(s) referred to in decision(s):
Rowe v The Roman Catholic Archbishop of Perth [No 2] [2022] WASCA 28
MASTER SANDERSON:
On 6 May 2022, the defendants in CIV 1284 of 2020 applied for summary judgment. The same day the defendants in CIV 3175 of 2019 applied to strike out certain paragraphs of the plaintiff's amended statement of claim. The two matters were heard together. Really the same issues are to be determined in both interlocutory applications. Both actions stand or fall together because they both involve the same underlying facts. These underlying facts were summarised by the Court of Appeal in Rowe v The Roman Catholic Archbishop of Perth [No 2] [2022] WASCA 28. Relevantly the facts are as follows:
1.The Church of St Anne, its presbytery and church hall are situated on land at Hehir Street, Belmont (the Hehir Street Land) which is vested in the respondent, a corporation sole. The appellant is the Rector of the Church of St Anne and he claims that the respondent holds the Hehir Street Land on trust for him and for a group of parishioners described as the 'St Anne's Community'. The respondent contests this claim. The dispute comes before this court by way of an appeal from the decision of Master Sanderson who refused to extend the operation of a caveat lodged by the appellant pursuant to the Transfer of Land Act 1893 (WA) against the title of the Hehir Street Land.
2.The appellant lodged the caveat to protect the equitable interests he contended he and the St Anne's Community held in the Hehir Street Land. In response to the service of a notice under s 138B(1) of the Transfer of Land Act, the appellant applied to the court for an order extending the operation of the caveat.
3.The claim made by the appellant is advanced in proceedings commenced by him (CIV 3175 of 2019) in which he seeks a declaration that the respondent held the Hehir Street Land upon constructive trust for him and the St Anne's Community, and certain other alternative and further relief. The appellant defines the St Anne's Community as those persons who (i) wish to avail themselves of the Rites of the Roman Catholic Church in force immediately prior to the Second Vatican Council and in particular the Rite of Holy Mass contained in the 1962 edition of the Roman Missal (Pre‑Vatican 2 Rites) and, (ii) regularly attend Holy Mass at St Anne's Belmont.
4.The claim is based on the principles of proprietary estoppel. In summary, the appellant alleges that he and others who had spent money on improving and maintaining the Hehir Street Land and the buildings on it did so on the assumption that the St Anne's Community would hold property in the same manner as a parish under the laws of the Roman Catholic Church. The appellant alleges that he and others were induced to make that assumption by a representation to that effect made by the then Archbishop, Archbishop Hickey, in 2010. Alternatively, the appellant alleges that the respondent knew that he and others made that assumption and acquiesced in it.
5.On the basis of findings made by him about the relevant principles of the canon law, the Master concluded that the pleaded assumption relied on by the appellant was 'fundamentally flawed'. The Master reasoned there was no basis upon which the appellant or the St Anne's Community could have assumed that they would ever have obtained any proprietary interest in the Hehir Street Land. The Master identified other difficulties with the appellant's claim to which reference will be made later.
6.On 21 May 2021 Murphy and Mitchell JJA granted an interlocutory injunction restraining the respondent from dealing with the Hehir Street Land until the determination of the appeal or further orders.
7.For the reasons that follow the appellant is unable to establish that he or the members of the St Anne's Community have or may have equitable interests in the Hehir Street Land. The appellant's claim does not have substance. The Master was correct to dismiss the application to extend the operation of the caveat.
The Court of Appeal examined the plaintiff's (appellant's) contentions in detail. They summarised the effect of counsel's submissions in [38] of the reasons. They then concluded at [39]:
There are a number of insurmountable difficulties with the appellant's case as explained in the appellant's oral submissions. These difficulties lead to the conclusion that the appellant and the members of the St Anne's Community neither have nor may have a proprietary interest in the Hehir Street Land. The appellant's claim is without substance.
That then is the end of the matter in both actions. The plaintiff seems to accept that is the position. In an attempt to overcome the fatal flaws in both actions, the plaintiff proposed to amend the statement of claim in each action. A copy of each of the draft amended pleadings appears as attachment LWM6 (CIV 3175 of 2019) and LWM7 (CIV 1274 of 2020) to the affidavit of Luke William Makaritis sworn 15 August 2022. In essence, the plaintiff intends to amend the pleadings to allege the existence of a charitable trust. To that end, the plaintiff's solicitors apparently wrote to the Attorney‑General alerting him to the possibility the litigation involved a charitable trust.
This proposed amendment does not save either of the plaintiff's claims. So far as the summary judgment application is concerned in CIV 1284 of 2020, the plaintiff is confined to his pleaded case. There is no basis for looking at an action that might be pleaded. So the fact that the plaintiff might wish to amend his statement of claim would not stand in the way of summary judgment being granted. There was no application to amend the statement of claim and for reasons which follow there could not be such an application.
Insofar as there may have been an application for amendment in CIV 3175 of 2019, that is not possible. There are two reasons why that is the case. First, the amendments foreshadowed in the attachments would require the substitution of the Attorney‑General as the plaintiff in place of Father Rowe who presently claims to sue as a representative of 'the St Anne's Community'. Second, if the proceedings are to be prosecuted either by the Attorney‑General or Father Rowe as a relator to the Attorney‑General, Father Rowe cannot be acting for members of the St Anne's Community he claims to represent. Those individuals can prosecute a claim in their own names.
Furthermore, no private citizen can commence a relator action. The Attorney‑General has exclusive power to decide whether to commence relator proceedings and that decision is final and unreviewable. So if proceedings in the nature of those foreshadowed in the proposed amended statement of claims were to be initiated, it would have to be done by the Attorney‑General. Of course, the Attorney‑General is free to take that step. The fact these present actions are at an end will make no difference to that position.
It is time both of these actions were terminated. In CIV 1284 of 2020, there will be judgment for the defendants. The plaintiff is to pay the defendants' costs, including reserved costs, such costs to be taxed if not agreed. In CIV 3175 of 2019, pars 74 to 99 of the amended statement of claim dated 26 February 2020 will be struck out as will pars 1, 2 and 4 of the prayer for relief. Leave to replead is refused. The chamber summons did not seek judgment but the paragraphs having been struck out, that should follow. Once again costs should follow the event.
For the sake of completeness, I note that in both actions, an extension of time is required to bring the applications. Such is the strength of the defendants' position in both actions, that extension ought be granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Associate
16 SEPTEMBER 2022
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