Rowe v The Roman Catholic Archbishop of Perth [No 2]
[2022] WASCA 28
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [No 2] [2022] WASCA 28
CORAM: BUSS P
MURPHY JA
TOTTLE J
HEARD: 3 NOVEMBER 2021
DELIVERED : 4 MARCH 2022
FILE NO/S: CACV 25 of 2021
BETWEEN: MICHAEL DAVID ROWE
Appellant
AND
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH
First Respondent
REGISTRAR OF TITLES
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2020] WASC 487
File Number : CIV 2009 of 2020
Catchwords:
Real property - Torrens system - Caveat - Removal of caveat - Where caveat asserts interests created by proprietary estoppel - Where no serious question as to existence of proprietary interest established - Order for removal of caveat upheld
Legislation:
Roman Catholic Church Property Act 1911 (WA), s 3, s 4
Transfer of Land Act 1893 (WA), s 138B, s 138C(1), s 138C(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | P J Hannan |
| First Respondent | : | E M Heenan |
| Second Respondent | : | No appearance |
Solicitors:
| Appellant | : | Pagin & Mak Lawyers |
| First Respondent | : | Irdi Legal |
| Second Respondent | : | No appearance |
Case(s) referred to in decision(s):
Currie v Currie [No 2] [2017] WASC 312
Currie v Currie [No 2] [2019] WASCA 2
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd [1992] 8 WAR 42
Donis v Donis [2007] VSCA 89; (2007) 19 VR 577
Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641
Pettitt v Pettitt [1970] AC 777
Rowe v Roman Catholic Archbishop of Perth [2020] WASC 487
Rowe v Roman Catholic Archbishop of Perth [2021] WASCA 93
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Sullivan v Sullivan (2006) 13 BPR 24,755; [2006] NSWCA 312
Waltons Stores (Interstate) Ltd v Maher [1998] HCA 7; (1988) 164 CLR 387
JUDGMENT OF THE COURT:
Introduction
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.[1] 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]
[1] Roman Catholic Church Property Act 1911 (WA) s 3 and s 4.
[2] Rowe v Roman Catholic Archbishop of Perth [2020] WASC 487 (primary reasons).
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.
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.
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.
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.
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.[3]
[3] Rowe v Roman Catholic Archbishop of Perth [2021] WASCA 93 [53].
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.
Factual background
There was no material dispute about the facts and the following account of the background is derived largely from the summary contained in the primary reasons.
The Hehir Street Land was acquired by the respondent in 1979. Before 2008 St Anne's Church was under the pastoral care of the Cloverdale Parish of the Archdiocese of Perth.
From 1996 with the permission of Archbishop Hickey, Pre‑Vatican 2 Rites were offered in the Pro‑Cathedral of St John in Victoria Avenue, Perth. The main celebrant was the appellant.
In 2008 Archbishop Hickey decided that the Church of St Anne, Belmont would be the permanent location for the 'Latin Mass community' that then worshipped at the Pro‑Cathedral of St John. On 16 April 2008 Archbishop Hickey sent a letter to the appellant confirming his decision and stating that it was his intention to establish the Belmont community as a 'quasi-parish' with the appellant as the parish priest and rector of St Anne's Church. The material parts of the 16 April 2008 letter were as follows:
I wish to confirm the choice of the Church of St Anne, Belmont as the permanent location for the Traditional Latin Mass Community that currently worships at St John's Pro-Cathedral.
It is my intention to establish the Belmont community as a quasi-parish, with you as its parish priest and rector of St Anne's Church. A decree will be issued after the relinquishment of St John's Pro Cathedral.
The Belmont parishioners who do not identify with the quasi-parish will continue to belong to the combined pastoral area under Cloverdale and will be cared for by the parish priest of Cloverdale.
Since the parish has transferred control of the Belmont church property to the Archdiocese, the Archdiocese will be responsible for major structural works and repairs to the buildings, leaving the normal maintenance and furnishings to the parish community. In case of doubt for a particular matter, please refer to the Finance Office.
I expect you to live in the parish house and perform your duties to the community as its parish priest. Your title will therefore no longer be Chaplain to the Traditional Latin Mass Community but Parish Priest of the quasi-parish.
As with every parish your income will come from the First Collection. You will need to set up a Presbytery Account from which you will regularly draw your stipend. Should the collections fall short you will be subsidized. If there is an excess, the normal tax will be applied to help priests who fall short.
The Second Collection is for the running of the Church and the upkeep of the buildings.
Since 17 March 2010, St Anne's Church has been used exclusively by the Latin Mass community with the appellant as its chaplain.
By letter dated 9 July 2010 Archbishop Hickey appointed the appellant as the Rector of the Church of St Anne. The material parts of the 9 July 2010 letter were as follows:
It is my great pleasure to appoint you Rector of the Church of St Anne, Belmont.
It will be your responsibility to [take] care of this holy place, to acknowledge its past history as the centre of the vibrant parish of St Anne's for many years under the care of the Marist Fathers.
I also appoint you the Spiritual Leader of the community that has chosen to attend the Traditional Latin Rite here in St Anne's Church.
…
It is my request that the St Anne's Community acts like an intentional parish, parallel in many aspects to a territorial parish. The term 'quasi‑parish' conveys much of what I have in mind.
Canon 516 §1 refers to a 'quasi-parish' as one that will eventually be a territorial parish. The term is therefore not exact but it contains the essential point that you will be the pastor of this community.
I hereby give you many of the rights and responsibilities of a parish priest.
1The care of the St Anne's Community under the authority of the diocesan Bishop, especially teaching sanctifying and ruling with the cooperation of other priests and the lay faithful. (Canon 519)
…
6The administration of finances according to Diocesan regulations. Two collections are to be taken up, the Presbytery Collection from which the stipend of the priest is paid (subsidized by the Diocese if insufficient) and certain other expenses, and the Church Collection for the upkeep of the church buildings and church requirements.
In 2019, the current Archbishop, Archbishop Costelloe, informed the appellant that the Cloverdale Parish owned St Anne's canonically, and that the Hehir Street Land belonged to the Cloverdale Parish. The appellant was also informed that Archbishop Costelloe had given the Cloverdale Parish priest permission to sell some of the Hehir Street Land and use the sale proceeds for the Cloverdale Parish. This conflicted with the appellant's view of the ownership of the Hehir Street Land.
For the purposes of the application to extend the operation of the caveat the respondent accepted that between 2009 and October 2019, money, labour and material were expended on the Hehir Street Land and the buildings on it on the basis that the Latin Mass community had been established as a quasi-parish at St Anne's Church.
The appellant lodged the caveat the subject of the application to the Master on 11 August 2020. The s 138B of the Transfer of Land Act notice was issued by the Registrar of Titles on 16 September 2020.
Primary reasons
The Master noted that there was no dispute between the parties as to the principles applicable on an application to extend a caveat and relevantly, the primary question was whether there was a serious question to be tried. Ultimately the Master concluded that the appellant had not established a triable issue as to the existence of the equitable interests for which he contended.[4]
[4] Primary reasons [32].
The Master reviewed the basis of the appellant's claim as pleaded in his amended statement of claim in proceedings CIV 3175 of 2019.[5] The Master noted that the primary relief claimed by the appellant was a declaration that the respondent holds the legal title of the Hehir Street Land on trust for the appellant and the St Anne's Community. The Master observed:[6]
It must be said the relief sought by Fr Rowe does have about it some logical difficulty. If a declaration in terms of par (1) of the prayer for relief was made, presumably Fr Rowe and the 'St Anne's community' would be entitled to call for a transfer of the two lots into their names. Whatever may be the position of the 'St Anne's community' it is not a body corporate or an unincorporated association. It is a collection of individuals who, from time to time, worship at St Anne's Church. There is then a logical difficulty in deciding who would actually be the registered proprietors of the land - apart, of course, from Fr Rowe. If Fr Rowe were to pass away, to whom would the land pass? Presumably, the land would pass to the beneficiaries named in Fr Rowe's will. That could be anyone. I point out these logical difficulties at this stage because they form the basis of the defendant's opposition to this application.
[5] GAB 50 - 67.
[6] Primary reasons [20].
The Master referred to the evidence adduced from experts about canon law but stated that the appellant's claim fell to be determined in accordance with the legal principles applicable in this State and not in accordance with canon law. The Master stated it was only if the appellant was able to establish some equitable rights that an order would be made extending the operation of the caveat.[7]
[7] Primary reasons [24].
The Master recorded that the respondent advanced three reasons why the appellant had no caveatable interest in the Hehir Street Land. He summarised those reasons as follows:[8]
(a)First, if, as the appellant claimed, the 'St Anne's community' held the relevant property, then there could be no basis to recognise a constructive trust or equitable charge over the Hehir Street Land in favour of the appellant.
(b)Second, the appellant failed to identify what property was allegedly held by the 'St Anne's community', resulting in there being no allegation as to why the Hehir Street Land would be held on constructive trust or subject to an equitable charge in favour of the appellant.
(c)Third, the appellant's estoppel claim was underpinned by the allegation that 'the St Anne's community would hold property in the same manner as a Parish under the laws of the Roman Catholic Church' when, in fact, canon law is to the effect that neither the appellant nor the 'St Anne's community' would hold any property in the Hehir Street Land in their own right or on trust.
[8] Primary reasons [25].
The Master referred to the fact that the canon law experts agreed on the following principles:[9]
(a)a 'parish' is a 'juridical person' separate from the parish priest and the parishioners;
(b)the 'temporal goods' owned by a parish are known as 'ecclesiastical goods';
(c)the property in ecclesiastical goods is vested in a parish, not the parish priest or the parishioners; and
(d)the parish priest has authority to administer the ecclesiastical goods of his parish, which must be done in accordance with canon law, but has no property in them.
[9] Primary reasons [27].
By reference to these principles the Master explained why he accepted the third reason advanced by the respondent as to why the appellant and the St Anne's Community could not establish an interest in the Hehir Street Land:
Based on these principles, neither the [appellant] nor the 'St Anne's community' could hold any property at Canon Law to the Hehir Street land, it being ecclesiastical goods. It follows then the pleaded assumptions giving rise to the estoppel are fundamentally flawed. If the position at Canon Law was that the parish priest and the parishioners could have a proprietary interest in ecclesiastical goods and had made assumptions and spent money in the belief that proprietary interest would be recognised, then there may be an argument. But there being no basis at Canon Law on which [the appellant] and the 'St Anne's community' could have assumed they would have ever obtained any proprietary interest in the ecclesiastical goods, nothing done or not done by the [respondent] could make no difference.
Furthermore, counsel for the [respondent] makes the point that at Canon Law neither the [appellant] nor the 'St Anne's community' could or would have any property in the ecclesiastical goods of the 'quasi-parish'. Effectively, what was being submitted was that as the 'St Anne's community' is a quasi-parish, it is one step further removed from the principles which would apply to a parish.
The Master explained also why he considered that the respondent's first and second reasons had been made good:[10]
Returning then to the first and second points made by counsel for the [respondent], I am satisfied these have been made good. The question really is this - on what basis can a constructive trust or equitable charge on Hehir Street land in favour of [the appellant] be said to arise? True it may be that the 'St Anne's community' made contributions to the upkeep and improvement of Hehir Street land. But that is what parish communities do. An Archdiocese is not responsible for the upkeep of each and every aspect of each and every parish. There is nothing in the pleading or in the evidence that suggests that the St Anne's Parish was in any different position to any other parish in the Archdiocese of Perth - other, perhaps, than that their services were conducted in Latin. But there is simply nothing in the pleaded facts which would render it unconscionable for the [respondent] to deny [the appellant] and the 'St Anne's community' a proprietary interest in Hehir Street land.
[10] Primary reasons [30].
The Master rejected a submission by the appellant that by not applying for summary judgment in proceedings CIV 3175 of 2019, the respondent acknowledged that there was a 'serious question to be tried'.[11]
[11] Primary reasons [31].
Transfer of Land Act provisions
A caveator who is served with a notice under s 138B(1) of the Transfer of Land Act may apply to the Supreme Court for an order extending the operation of the caveat.[12] On hearing such an application the court, if satisfied that the caveator's claim has or may have substance, may make an order extending the operation of the caveat for such period as is specified in the order.[13] If not so satisfied the court must dismiss the application.[14] The principles applicable to applications to extend the operation of caveats were not in dispute. The principles were reviewed by Owen J (as his Honour then was), with whose reasons Malcolm CJ and Walsh J agreed, in Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd.[15]
[12] Transfer of Land Act 1893 (WA) s 138C(1).
[13] Transfer of Land Act 1893 (WA) s 138C(2)(a)(i).
[14] Transfer of Land Act 1893 (WA) s 138C(2)(b).
[15] Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd [1992] 8 WAR 42, 48 - 50 (Owen J), 44 - 45 (Malcolm CJ & Walsh J).
The critical issue
The appellant relied on 12 grounds of appeal (reduced at the hearing from 17 grounds). The grounds attack various aspects of the Master's reasons many of which are peripheral to the central and critical issue on which success in this appeal depends. That issue is whether the appellant can satisfy the court that his claim has or may have substance. The only grounds of appeal that engage with this issue to a material extent are grounds 14 and 17. It is unnecessary to refer to any of the other grounds. Grounds 14 and 17 are as follows:
14.The learned Master erred in fact in finding that the 'St Anne's community' does not hold 'ecclesiastical goods' such as the Hehir Street land for the purposes of Canon Law. Accordingly, the Master should have found that:
(a)the [St Anne's community] is a 'quasi-parish';
(b)the Hehir Street Land (including the structures thereon such as St Anne's Church) formed part of the 'ecclesiastical goods' owned by that 'quasi-parish'; and
(c)[the appellant], although he did not own those 'ecclesiastical goods', is bound to administer those 'ecclesiastical goods' for the benefit of the St Anne's 'quasi-parish'.
17.The learned Master erred in law in finding rights conferred by or subject to Roman Catholic Canon Law cannot form part of a claim for equitable relief prosecuted in a civil (rather than a canonical) court. … The learned Master should have held that CIV 3175/2019 asserts property rights, which rights may be protected in a civil court even on reliance on Roman Catholic Canon Law. The Master thereby erred in concluding CIV 3175/2019 was not triable.
Proprietary estoppel - general principles
As described earlier, the appellant's claim to an equitable interest in the Hehir Street Land is a claim of proprietary estoppel through encouragement or acquiescence or both encouragement and acquiescence.[16]
[16] GAB 61 - 63; Amended statement of claim filed on 26 February 2020 [74] - [79] and [80] - [85].
In Meagher, Gummow & Lehane's Equity: Doctrines and Remedies, the doctrines of proprietary estoppel by encouragement and proprietary estoppel by acquiescence are summarised as follows:[17]
The estoppel associated with Dillwyn v Llewelyn is otherwise known as estoppel by encouragement. It binds the donor of property where after the making of an imperfect gift, the donor induces the donee to act on the assumption that the imperfect gift is effective or on the expectation that it will be made effective. The other estoppel, that descended from Ramsden v Dyson is otherwise known as estoppel by acquiescence or standing by. By that estoppel, equity binds the owner of the property who induces another to expect that an interest in the property will be conferred on that other person.
[17] Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014) [17-065].
The estoppels serve the 'same fundamental purpose', that is, the 'protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted'.[18] The estoppel serves to vindicate the expectation or assumption of the plaintiff against a defendant who seeks unconscionably to resile from the expectation he or she has created or the assumption in which he or she has acquiesced.[19] A corollary of this principle is that a plaintiff is not entitled to relief that goes further than vindicating the expectation or assumption.
[18] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 [1] (French CJ, Kiefel, Bell & Keane JJ), [89] (Gageler J) citing Waltons Stores (Interstate) Ltd v Maher [1998] HCA 7; (1988) 164 CLR 387, 419 (Brennan J), 404 (Mason CJ & Wilson J); Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 - 675.
[19] Sidhu v Van Dyke [77] (French CJ, Kiefel, Bell & Keane JJ) citing Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 [18] - [20].
The elements common to estoppel by encouragement and estoppel by acquiescence are as follows:[20]
(a)the plaintiff assumes the future acquisition of ownership of property;
(b)the defendant knows the plaintiff holds the assumption;
(c)the plaintiff's assumption was induced, encouraged or acquiesced in by the defendant;
(d)the plaintiff relies on the assumption to his or her detriment;
(e)it is lawful for the defendant to satisfy the plaintiff's assumption; and
(f)it would now be against the conscience for the defendant to be permitted to depart from the assumed state of affairs.
[20] Currie v Currie [No 2] [2019] WASCA 2 [89] - [90] (Murphy, Mitchell & Beech JJA) citing Currie v Currie [No 2] [2017] WASC 312 [113] - [121], [137] - [138], [149], [181] - [182] (Le Miere J). See also Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014) [17-095].
To found an estoppel by encouragement, the representation, assurance or promise must be clear in the sense that the words used by the defendant must be able to be understood by the plaintiff in a particular sense, thereby providing the basis for the assumption or expectation upon which the plaintiff acts. In Sullivan v Sullivan,[21] Hodgson JA, with whom McColl JA agreed, expressed the point as follows:[22]
Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way and to act in reliance on that interpretation, thereby suffering detriment if the representor departs from what was represented or promised. Generally, if there is a grey area in what is represented or promised, but it was reasonable for the representee to interpret it as extending at least to the lower limit of the grey area and to act in reliance on it as so understood, I see no reason why the Court should not regard the representation or promise as sufficiently certain up to this lower limit.
[21] Sullivan v Sullivan (2006) 13 BPR 24,755; [2006] NSWCA 312.
[22] Sullivan v Sullivan [85] (Hodgson JA), [101] (McColl JA).
Proprietary estoppel cases are exceptions to the general rule that a person who spends money on the property of another does not thereby acquire a proprietary interest in the other's property.[23]
The estoppels alleged by the appellant
[23] Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234; Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014) [17-090].
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' was the foundation of both the estoppel by encouragement and the estoppel by acquiescence claims. In the context of the estoppel by encouragement claim, the assumption was termed 'the Establishment Assumption' and it was alleged to have been induced by the making of the 'Establishment Representation' - a representation formulated in the same terms as the Establishment Assumption. In the context of the estoppel by acquiescence claim, the assumption was termed 'the Property Holding Assumption'.
The Establishment Representation was alleged to have been made to 'Catholics who had regularly attended Holy Mass in the Pro-Cathedral according to Pre-Vatican 2 Rites' and the same persons were alleged to have made the Establishment Assumption. The appellant alleges that in reliance on the Establishment Assumption, he and others, including but not limited to members of the St Anne's Community, funded the improvement and maintenance of the Hehir Street Land and buildings.
The appellant alleges the Property Holding Assumption was made to those who funded the improvement and maintenance of the Hehir Street Land and buildings.
Unless it is necessary to distinguish between them, in the balance of these reasons, the Establishment Assumption and the Property Holding Assumption will be referred to collectively as 'the Assumption'.
Analysis
The oral submissions of the appellant's counsel were directed to establishing that the appellant and the members of the St Anne's Community held equitable interests in the Hehir Street Land. Those submissions, and the clarification of the appellant's case in the course of exchanges between counsel and the Court, provide a convenient basis for an evaluation of the claim.
Relevantly, the appellant's counsel:
(a)did not challenge the findings made by the Master about canon law and accepted that a parish or quasi-parish is an entity under canon law separate and distinct from the parish priest and the parishioners;[24]
[24] Appeal ts 8.3 and 14.3.
(b)contended the St Anne's Community was an unincorporated association and constituted a juridical person at canon law in the nature of a quasi-parish;[25]
[25] Appeal ts 7.10.
(c)acknowledged the appellant did not advance a claim made independently of canon law, that is, one based simply on the principles of equity;[26]
(d)clarified that the effect of the Establishment Representation and the Assumption was that the Hehir Street Land would be treated as being held by a parish under canon law;[27]
(e)accepted that a consequence of the Assumption (as the effect of the Assumption was explained at the hearing) was that the individual members of the St Anne's Community assumed that they would not have any interest in the Hehir Street Land under canon law;[28]
(f)accepted that the Assumption did not give rise to equitable interests in the Hehir Street Land but argued that it was the expenditure of money on the development and upkeep of the land which created the equitable interests;[29]
(g)contended the parish priest of a parish or quasi-parish has the responsibility to protect or enforce the rights of the parish;[30]
(h)contended that:
(i)because the canonical juridical entity - the St Anne's Community - could not sue in the civil courts, the individual members of the St Anne's Community are 'the only people who can essentially call themselves the canon law juridic entity';[31]
(ii)'someone [had to enforce the quasi-parish's rights] and the best - or equivalent of that is the parishioners themselves';[32] and
(iii)in effect, the individual members of the St Anne's Community were entitled to claim an equitable interest because otherwise the juridic entity would be left without a remedy.[33]
[26] Appeal ts 16.5.
[27] Appeal ts 24.2, 24.8, 25.3 and 31.10 - 32.1.
[28] Appeal ts 25.8, 26.9, 27.2 and 30.4.
[29] Appeal ts 34.9 - 35.4.
[30] Appeal ts 26.2 and 26.10.
[31] Appeal ts 32.9.
[32] Appeal ts 27.3.
[33] Appeal ts 33.3.
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.
First, the Master's undisputed factual finding that for the purposes of canon law a parish is a juridical person, separate from the parish priest and the parishioners, forecloses the possibility that the group of parishioners who fall within the appellant's definition of the St Anne's Community could ever constitute a juridical person in the nature of a parish or quasi-parish for the purpose of canon law. Put another way, the individual members of the St Anne's Community cannot be equated with the juridic entity under canon law of the parish or quasi-parish.
Second, the Master's undisputed factual finding that the property in ecclesiastical goods vests in the parish and not in the parish priest or the parishioners gives rise to the fundamental flaw in the Assumption to which the Master referred.[34] On the appellant's case those who expended funds on the Hehir Street Land on the basis it would be owned by a parish under canon law did not assume that the individual parishioners would have equitable interests in the Hehir Street Land (so much was acknowledged by the appellant's counsel). Thus, it does not follow from an acceptance of the Assumption and the relevant expenditure, that the individuals within the St Anne's Community would hold equitable interests in the Hehir Street Land. And, on the other hand, a failure by the respondent to honour the Assumption would not deprive those individuals of equitable interests and would not be unconscionable for the purposes of the principles of proprietary estoppel.
[34] Primary reasons [27].
Third, the Master's undisputed finding that a parish priest has authority to administer the ecclesiastical goods of his parish in accordance with canon law but does not have any property in the ecclesiastical goods means that, even if it is assumed for the purposes of argument that the appellant had authority to sue in the civil courts (something that may be doubted), he did not have any proprietary interest in the Hehir Street Land.
Fourth, the proposition that the individuals who are part of the St Anne's Community have equitable interests in the Hehir Street Land because they are the only persons capable of representing the canon law juridical entity in the civil courts is a construct without any foundation in principle. There are four further difficulties with this proposition. First, it elevates the appellant's case above the Assumption that the Hehir Street Land would be treated as being held by a parish under canon law. The case advanced by the appellant would require the making of an assumption that the individual parishioners would hold equitable interests as representatives of the quasi-parish. Second, the proposition makes the unfounded implicit assumption that a parish holding ecclesiastical goods under canon law has an interest in those goods that is to be equated with a proprietary interest for the purposes of the civil law which can only be protected by action by the parishioners. Third, the proposition implicitly assumes that which it seeks to establish - that the members of the St Anne's Community have equitable interests in the Hehir Street Land - because otherwise the juridic entity would be left without remedy in the civil courts. Fourth, as the respondent submitted, this proposition is predicated on the existence of an infringement of a civil right actionable in the civil courts when none has been established.[35]
[35] Respondent's submissions filed on 20 May 2021 [12]; appeal ts 45.7.
Fifth, counsel for the appellant's assertion at the hearing that although the Assumption did not give rise to equitable interests in the Hehir Street Land, the expenditure of money by the appellant and the St Anne's Community on the development and upkeep of the land created equitable interests in the land, is without merit. It is a well established general principle that one person who does work or expends money on the property of another does not acquire a proprietary interest in the property of the other. See Pettitt v Pettitt.[36] There is no reasonably arguable foundation for the proposition that the mere expenditure of money by the appellant and the St Anne's Community on the development and upkeep of the land was capable of creating, at civil law, equitable interests in the land.
[36] Pettitt v Pettitt [1970] AC 777, 804 (Lord Morris of Borth-y-Gest), 808 - 811 (Lord Hodson), 818 (Lord Upjohn).
Observation on the Establishment Representation
The reasons given above are sufficient to determine the appeal against the appellant. For completeness, reference should be made to a further difficulty with the appellant's case. Before the Master the respondent did not contest the wide range of matters pleaded in support of the Establishment Representation. In the course of the appeal hearing, the appellant's counsel clarified that the Establishment Representation was constituted by the contents of the letter dated 9 July 2010 by which he was appointed Rector of the Church of St Anne (read in the context of the letter dated 16 April 2008) and not the other matters pleaded by the appellant.[37]
[37] Appeal ts 11.
The Master did not decide the application by reference to whether or not the Establishment Representation was sufficiently certain to form the basis of an estoppel and, given the respondent's position at first instance, this appeal should not be determined by reference to that question. It may be observed, however, that the letters relied on by the appellant provide, at best, a weak foundation for the Establishment Representation. The only express references to church property are those in the 16 April 2008 letter. These include that the parish has transferred control of the 'Belmont church property to the Archdiocese', that the Archdiocese 'would be responsible for major structural works and repairs to the buildings leaving normal maintenance and furnishings to the parish community', and the reference to the 'Second Collection' being for the running of the Church and the upkeep of the buildings. These references appear to be contrary to the notion that the St Anne's Community would have any form of ownership interest in the land and buildings. Consequently, whether the Establishment Representation can be established depends on what may be inferred from the Archbishop's observations in the letter of 9 July 2010 to the effect that the St Anne's Community was to act like an 'intentional parish', parallel in many respects to a territorial parish and that the term 'quasi-parish' conveyed much of what his Grace had in mind. It is doubtful that the Establishment Representation emerges from those observations with sufficient certainty to form the basis of an estoppel.
Conclusion
The appeal will be dismissed and the parties will be heard on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
4 MARCH 2022
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