Sturt v the Right Reverend Dr Brian Farran, Bishop of Newcastle
[2012] NSWSC 400
•27 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: Sturt and Anor v the Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors [2012] NSWSC 400 Hearing dates: 23, 24, 25 May 2011, 4, 5, 6, 7 October 2011 Decision date: 27 April 2012 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph 428
Catchwords: VOLUNTARY ASSOCIATION - justiciability - contract of employment - domestic tribunal - procedural review - abuse of process - permanent stay - bias - right against self incrimination - reputation - oppression and unfairness - absolute privilege Legislation Cited: Anglican Church of Australia Act 1961 (NSW)
Anglican Church of Australia Act 1976 (NSW)
Anglican Church of Australia Constitution Act 1902 (NSW)
Church of England Constitutions Act 1902 (NSW)
Church of England in Australia Act 1961 (NSW)
Commercial Arbitration Act 2010 (NSW)
Commonwealth of Australia Constitution Act 1901
Corporations Act 2001 (Cth)
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Aktas v Westpac Banking Corporation (2010) 241 CLR 79
Attorney-General (N.S.W.) v Grant (1976) 135 CLR 587
Baker v Gough [1963] NSWR 1345
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Briginshaw v Briginshaw (1938) 60 CLR 336
Buttes Gas and Oil Co v Hammer [1982] AC 888
Cameron v Hogan (1934) 51 CLR 358
Carter v The New South Wales Netball Association [2004] NSWSC 737
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
Cheng v Pharmacy Board of New South Wales [2005] NSWSC 1130
Clarke v Earl of Dunraven (The Satanita) [1897] AC 59
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1
Davies v Presbyterian Church of Wales [1986] 1 WLR 323
Dixon v Holden (1868-69) LR 7 Eq 488
Dolan v Australian and Overseas Telecommunications Corporation [1993] 42 FCR 206
Dr SS v Health Care Complaints Commission [2002] NSWCA 391
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Forbes v Eden (1867) LR 1 HL 568
G v Medical Board of the Australian Capital Territory [1994] ACTSC 42
Gibbons v Duffell (1932) 47 CLR 520
Glebe Administration Board v Commissioner of Pay-roll Tax (NSW) (1987) 10 NSWLR 352
H v Andrews [2006] SASC 392
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jago v District Court (NSW) (1989) 168 CLR 23
JGE v English Province of Our Lady of Charity [2011] EWHC 2871 (QB)
Kuwait Airways Corp v Iraqi Airways Co (No.6) [2002] UKHL19
Lamb v Munster (1882) 10 QBD 110
Lincoln v Daniels [1962] 1 QB 237
Macqueen v Frackelton (1909) 8 CLR 673
Maloney v NSW National Coursing Assn Ltd (No 2) [1978] 1 NSWLR 161
Mann v O'Neill (1997) 191 CLR 204
Micallef v Donnelly [2002] FCA 221
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Morley v Australian Securities and Investments Commission [2010] NSWCA 331
Newcombe v Medical Board (SA) [2007] 96 SASR 564
NSW Bar Association v Muirhead [1988] 14 NSWLR 173
Pappas v New World Oil Developments Pty Ltd [1993] 43 FCR 594
Pyneboard v Trade Practices Commission (1983) 152 CLR 328
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v McLoughlin; Ex parte Director of Public Prosecutions (Re Cooney) [1988] 31 A Crim R 256
Raguz v Sullivan [2000] 50 NSWLR 236
Rajski v Carson (1988) 15 NSWLR 84
Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511
Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201
Reid v Howard (1995) 184 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Scandrett v Dowling (1992) 27 NSWLR 483
Sorby v The Commonwealth (1983) 152 CLR 281
Stephens v Stephens [2010] FamCA 184
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Trivett v Nivison [1976] 1 NSWLR 312
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Uniting Church in Australia Property Trust (NSW) v Vincent (1994) BC9402935
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Vakauta v Kelly (1989) 167 CLR 568
Walton v Gardiner (1993) 177 CLR 378
Weissensteiner v The Queen (1993) 178 CLR 217
Whitehorn v The Queen (1983) 152 CLR 657
Wylde v Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224Texts Cited: Robert C. Post 'The Social Foundations of Defamation Law: Reputation and the Constitution,' 74 California Law Review 691 (1986).
Spencer Bower, 'Law of Actionable Defamation (2nd ed, 1923)Category: Principal judgment Parties: Graeme Leslie Sturt - first plaintiff
Graeme Russell Lawrence - second plaintiff
Brian George Farran - first defendant
Colin Alan Elliott - second defendant
Trevor Clifton Waring - third defendant
Barbara Janice Howard - fourth defendant
Michael Ian Elliott - fifth defendant
Geoffrey James Spring - sixth defendant
Glen Miller Pope - seventh defendant
Margaret Joy Payne - eighth defendant
Lynne Maree Graham - ninth defendant
Dymphna Rees Peterson - tenth defendant
Philip John Aspinall (in his capacity as Primate of the Anglican Church of Australia) - eleventh defendantRepresentation: Counsel:
R D Marshall, Ms A Rao - plaintiffs
G O Blake SC, WAD Edwards - first to tenth defendants
G C Lindsay SC - eleventh defendant
Solicitors:
Turnbull Hill, lawyers - plaintiffs
Makinson & d'Apice, lawyers - first to tenth defendants
Toomey Pegg, lawyers - eleventh defendant
File Number(s): 2011/6125
Judgment
The proceedings
Introduction
These proceedings arise out of disciplinary processes brought against each of Father Sturt and Father Lawrence purportedly pursuant to internal legislation made by the Synod of the Diocese of Newcastle entitled the Professional Standards Ordinance 2005 (PS Ordinance).
The case raises a myriad of complex issues in respect of which the parties have submitted detailed and voluminous materials and submissions.
The allegations levelled at and findings made about the plaintiffs at the disciplinary hearing which took place in December of 2010 are unseemly. If true or untrue they are distressing to the plaintiffs and have no doubt had a potentially adverse impact on their reputations. They have no doubt been distressing and potentially damaging to others involved in the process. There also is no doubt that these events have arguably impacted upon the reputation of the Anglican Church of Australia.
This case is about how the plaintiffs came to be the subject of those hearings and the legitimacy of the processes that were or were not followed before and during the proceedings.
Although some aspects of the factual materials necessarily must be examined this case is not, nor could it be about who was or was not telling the truth about those allegations. The merits of the allegations have not and could not be tested simply by reason of the nature of the proceedings in this court and the relief sought.
Equally although the issues involve allegations of sexual misconduct on the part of the plaintiffs and other males, this case is not nor could it be about the church and the whole issue of homosexuality whether concerning its clergy or its parishioners. That issue which it must be acknowledged is likely to produce strong views either way is far removed from the purview of these proceedings.
The case involves issues about whether the plaintiffs were subjected to illegitimate, unfair, harsh and oppressive procedures by virtue of the proceedings before the Professional Standards Board (PSB) and whether the PSB's recommendations ought or ought not stand. More importantly whether in the first instance the plaintiffs are able to have their grievances adjudicated upon at all by this court.
The Parties
Each of the first plaintiff (Father Sturt) and the second plaintiff (Father Lawrence) hold Holy Orders in the Anglican Church of Australia and are resident within the Diocese of Newcastle.
The first defendant is the Right Reverend Brian Farran, Bishop of Newcastle.
The second, third and fourth defendants collectively are the members of the PSB constituted in order to hear the proceedings against Fathers Sturt and Lawrence. The PSB made a determination in respect of Father Sturt recommending he be deposed from Holy Orders and in addition a determination in respect of Father Lawrence recommending that he also be deposed from Holy Orders.
The fifth to tenth defendants collectively are the members of the Professional Standards Committee of the Diocese of Newcastle (the PSC) being the body which, following a complaint from a person known as "M" in respect of each of Father Sturt and Father Lawrence referred certain questions as to whether each was fit, whether temporarily or permanently, to hold a particular or any office licence or position of responsibility in the Anglican Church of Australia or to remain in Holy Orders by reason of certain specified conduct, to the PSB.
The eleventh defendant is the Primate of the Anglican Church of Australia.
The relief sought
Relief is sought by way of an order quashing the determinations and recommendations made by the second to fourth defendants on 15 December 2010 sitting as the PSB. Alternatively a declaration that their determinations and recommendations are invalid or void.
Further an order is sought that the first defendant be permanently restrained from giving effect to the determinations and recommendations.
Further an order is sought that the first defendant or any properly constituted tribunal of the Anglican Diocese of Newcastle be permanently restrained from hearing or deciding the complaints against the plaintiffs heard by the PSB on 13 and 15 December 2010.
Background Facts
On 24 December 1902 the Anglican Church of England Constitutions Act 1902 (NSW) (the 1902 Act) including the original 1902 NSW Constitutions in their original form came into force (applicable to the dioceses with territory inside New South Wales including the Diocese of Newcastle).
On 1 January 1962 the Church of England in Australia came into being under the Church of England in Australia Act 1961 (NSW) (the 1961 Act) and cognate Acts including the 1961 Constitution (National Constitution) in its original form.
On 21 December 1965 Father Lawrence was ordained as the Deacon of the Anglican Church at St Albans Church Griffith. On 30 November 1966 he was ordained as an Anglican Priest at St Albans Church Griffith.
On 2 February 1977 Father Sturt was ordained as Deacon at the Pro Cathedral Church of St Paul at Hay and on 30 November 1977 Father Sturt was ordained as an Anglican priest at the Church of St Albans at Griffith.
On 24 August 1981 the Church of England in Australia was renamed the Anglican Church of Australia (including a renaming of the 1902 and 1961 Act).
On 26 May 1982 Father Sturt was licensed as Rector of the Parish of Tocumwall-Finley in the Diocese of Riverina.
On 29 June 1984 Father Lawrence subscribed to a declaration of submission to the Synod of the Diocese of Newcastle and all ordinances made by it upon taking office as Dean of Newcastle Cathedral.
On 1 March 1988 there were substituted 1902 NSW Constitutions which replaced the Constitutions annexed to the 1902 Act.
On 27 January 2000 Father Sturt subscribed a declaration of submission to the Synod of the Diocese of Newcastle and all ordinances made by it upon taking up the office of Rector of a Parish in the Diocese.
In October 2004 the General Synod of the Anglican Church of Australia resolved to adopt "faithfulness in service" as a code of personal behaviour for clergy and endorsed a model Professional Standards Ordinance.
On 15 October 2005 the Professional Standards Ordinance 2005 (the PS Ordinance) was passed by the Synod of the Diocese of Newcastle.
On 1 February 2006 Father Sturt was granted a licence in respect of the office of Rector of the Parish of Cardiff, Diocese of Newcastle.
On 31 December 2008 Father Lawrence retired as Dean of Newcastle Cathedral and ceased to hold a licence.
On 3 October 2009 "M" made a formal written complaint to the director of Professional Standards of the Anglican Diocese of Melbourne against inter alia Fathers Sturt and Lawrence. The complaint included allegations that a group sex event participated in by Father Lawrence and observed by Father Sturt occurred in the early 1980s at a clergy conference in Narrandera, Diocese of Riverina.
On or about 9 October 2009 Bishop Farran notified the plaintiffs of the suspension of Father Sturt's licence whilst the complaint was being investigated pursuant to the PS Ordinance.
On 28 October the PSC referred the matter concerning Father Sturt to the PSB pursuant to the PS Ordinance. The PSC also referred the matter concerning Father Lawrence to the PSB pursuant to the PS Ordinance.
A directions hearing was held on 24 November 2010 before the President of the PSB at which a Mr Woodward, solicitor appeared on behalf of both Fathers Sturt and Lawrence. He informed the President that Father Lawrence did not intend to appear or make responses before the PSB and that he would no longer represent Father Lawrence before the PSB. However Mr Woodward made an application for the hearing concerning Father Sturt to be held in camera. The application was refused.
On 13 December 2010 the PSB commenced the hearing. It rejected a renewed application by Mr Woodward that the proceedings concerning Father Sturt be held in camera. A short adjournment then took place. Mr Woodward then indicated that he had instructions to take no further part in the proceedings on behalf of Father Sturt and withdrew from the hearing. Neither Fathers Sturt nor Lawrence attended the hearing. The hearing then took place.
On 15 December 2010 the PSB convened a second day of hearing at which again neither Father Sturt nor Father Lawrence appeared. The PSB made determinations and recommendations in respect of both priests. Each of the determinations and recommendations were then transmitted to Bishop Farran for his consideration in accordance with the PS Ordinance.
On 16 December 2010 a summons was filed on behalf of the plaintiffs commencing the proceedings in this court.
The issues
There would appear to me to be at least five substantive issues raised by the submissions of the parties. There are of course sub-issues. The substantive issues are as follows:
(a) Justiciability;
(b) Constitutional ground;
(c) Permanent stay;
(d) Claims for judicial review;
(e) Discretionary considerations
It is convenient to deal with each of these issues separately.
Justiciability
It is important first to understand in a little more detail the relief sought by the plaintiffs. In their further amended statement of claim (FAS of C) filed by leave which I granted on 25 May 2011 the plaintiffs seek:
a) Declarations to the effect that the determinations purportedly made against them respectively by the second, third and fourth defendants as members of the Professional Standards Board of the Anglican Diocese of Newcastle (the Board) were invalid because:
(i) Upon the proper construction of the Anglican Church of Australia Constitution Act 1961 (NSW) (the 1961 Act), no jurisdiction could be conferred on the Board to perform the functions purportedly entrusted to it by the Professional Standards Ordinance 2005 (Newcastle) (the PS Ordinance);
(ii) The proceedings of the Board were flawed by want of procedural fairness or other grounds warranting intervention on judicial review of administrative decisions;
(iii) No proceedings could be conducted on the reference to the Board by the fifth to tenth defendants acting as the Professional Standards Committee of the Anglican Diocese of Newcastle (the Committee) because the conduct of any such proceedings was bound to be oppressive; and
b) An injunction restraining the defendants from proceeding with any further enquiry into the underlying subject matter of the referrals made to the Board to the Committee.
The plaintiffs submit that they were parties to a contract of employment or contract of service. To that extent they must rely upon conventional principles to prove the requisite intention to create contractual relations. In the alternative they assert they were parties to a consensual compact. In this regard they put that case a number of ways but ultimately they rely upon the PS Ordinance as conferring contractual rights upon them. Again and in the alternative they assert that "reputational" interests give them sufficient standing to challenge the processes they assert they were wrongly subjected to.
The question of justiciability is of course a threshold question and will if determined against the plaintiffs bring an end to the matter. It should be logically determined first.
The notion of justiciability
There may be many reasons why it might be suggested a court is incompetent to hear a particular dispute.
In Buttes Gas and Oil Co v Hammer [1982] AC 888, the House of Lords held that as there was a long standing principle of English law which was inherent in the very nature of the judicial process, that municipal courts would not adjudicate on the transactions of foreign states; accordingly where such issues were raised in private litigation, the court would exercise judicial restraint, and abstain from deciding the issues raised. The court noted further that as the issues raised on the pleading concerned the conduct of four foreign states, and where it was sought to have aspects of the transactions declared unlawful under international law the issues were non-justiciable. Lord Wilberforce noted at 931 - 932:
Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of "act of state" but one for judicial restraint or abstention. The respondents' argument was that although there may have been traces of such a general principle, it has now been crystallised into particular rules (such as those I have mentioned) within one of which the appellants must bring the case-or fail. The Nile, once separated into a multi-channel delta, cannot be reconstituted. In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.
In Kuwait Airways Corp v Iraqi Airways Co (No. 6) [2002] UKHL 19 the House of Lords took a different view and said at [24] - [26]:
[24] On behalf of IAC Mr Donaldson submitted that the public policy exception to the recognition of provisions of foreign law is limited to infringements of human rights. The allegation in the present action is breach of international law by Iraq. But breach of international law by a state is not, and should not be, a ground for refusing to recognise a foreign decree. An English court will not sit in judgment on the sovereign acts of a foreign government or state. It will not adjudicate upon the legality, validity or acceptability of such acts, either under domestic law or international law. For a court to do so would offend against the principle that the courts will not adjudicate upon the transactions of foreign sovereign states. This principle is not discretionary. It is inherent in the very nature of the judicial process: see Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 932. KAC's argument, this submission by IAC continued, invites the court to determine whether the invasion of Kuwait by Iraq, followed by the removal of the ten aircraft from Kuwait to Iraq and their transfer to IAC, was unlawful under international law. The courts below were wrong to accede to this invitation.
[25] My Lords, this submission seeks to press the non-justiciability principle too far. Undoubtedly there may be cases, of which the Buttes case is an illustration, where the issues are such that the court has, in the words of Lord Wilberforce at page 938, 'no judicial or manageable standards by which to judge [the] issues': 'the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force and to say that at least part of these were "unlawful" under international law.' This was Lord Wilberforce's conclusion regarding the important interstate and other issues arising in that case: see his summary at page 937.
[26] This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at page 931D. Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case.
In the present case the defendants assert the plaintiffs have relevantly no civil right to articulate and hence there is nothing for a court to entertain. In particular they say there is not nor could there be for example a contract of employment or contract of service and point to the fact that a clergyman holds office and has not been traditionally regarded as an employee. Further the defendants submit that absent a property right (of which there is none) the plaintiffs have no standing. In addition "reputational" interests they submit do not provide an adequate basis or standing for the relief claimed. I should note that initially the defendants conceded Father Sturt's claims were justiciable. Having received submissions and heard argument I permitted the defendants to withdraw their concession.
It should be acknowledged at the outset that the church is a voluntary association, that in and of itself has significant consequences in terms of the plaintiffs ability to articulate their rights.
It should also be acknowledged that courts have routinely not interfered in the internal workings of voluntary associations especially religious organisations: Attorney-General (NSW) v Grant (1976) 135 CLR 587 at 613 per Murphy J.
With a voluntary association there is therefore a need to identify with some precision whether some civil or proprietary right has been infringed which as a matter of law requires enforcement before intervening in such an organisations affairs.
Is there a contract of employment
At the date of the disciplinary proceedings each of Father Sturt and Father Lawrence were at different stages of their careers.
Before reviewing the principles it is important to revisit the facts relevant to this issue in a little more detail.
Father Sturt
At the date the complaint was made Father Sturt had since 1 February 2006 been licensed to officiate as Rector of Cardiff and to occupy the rectory at Cardiff. The licence relevantly was in the following terms:
To our beloved in Christ
THE REVEREND GRAEME LESLIE STURT
Greeting:
We do by these presents give and grant unto you our Licence and Authority to preach the Word of God, Read the Common Prayers, Minister the Holy Sacraments, and perform all other Ecclesiastical Duties belonging to the office of RECTOR in the PARISH OF CARDIFF within our Diocese and Jurisdiction, to which you are hereby appointed on the presentation of the Presentation Board of the Diocese.
You having first taken the Oaths, and made and subscribed the Declarations which in this case are required by the Canons of the Anglican Church of Australia to be taken, made and subscribed, and you having also declared that you will conform to all Ordinances and Regulations of the Synod of the Diocese of Newcastle for the time being in force.
Reserving to us and our successors Bishops of Newcastle power at any time to revoke this Licence and Appointment.
Father Sturt not only resided in the rectory he of course received a stipend. The stipend was recorded on a pay slip which indicated his rate of pay including a deduction for superannuation. The monies came from the Anglican Diocese of Newcastle (which had an ABN number).
Of course prior to his being licensed to officiate at Cardiff he had previously been licensed from time to time at various parishes. His licenses for earlier parishes including Narrandera (1977 - 1993) for example contained a proviso which stated:
Provided always that you shall have no claim upon Us or Our successors in respect of any stipend, fees, dues or emoluments in respect of such office.
Father Sturt gave unchallenged evidence that Bishop Farran, the first defendant some time in late 2005 spoke to him by telephone and asked him to come to Newcastle to discuss the Parish of Cardiff. When he attended upon the Bishop he had a conversation with him in the company of a parishioner. Although he could not remember the precise terms of the conversation it involved the possibility of his becoming Rector of the Parish of Cardiff.
On 18 November 2005 he received an offer by email. That offer stated relevantly the terms and conditions as follows:
Dear Graeme
The Presentation Board of the Parish of Cardiff has concluded its search process after careful prayer and reflection. Upon its recommendation and with my own concurrence I write to offer you the position of Rector of the Parish of Cardiff.
Please make this offer a matter of your own prayer. I would appreciate learning of your response within fourteen days as required by the Ordinance and given that this process has been in train for some time.
I enclose with this letter a copy of the parish profile that was developed at the parish consultation and that was used as a major resource for your selection as the next priest for this parish. This consultation report does indicate the next missional goals before the parish which will require your collaborative leadership in the parish.
You will appreciate that a primary task now of priests is to develop a missional church. This is a particular change of culture. It will require much energy from you, real understanding of the context in which the parish is situated, and missiological principles that will shape your priorities.
I am hopeful that the Diocese will be able to offer you real support in equipping you for this ministry.
This offer of the Parish of Cardiff is made with the Diocesan stipendiary package. This includes:
Stipend: $36,276 per annum
Car depreciation allowance: $7,260 per anum
Car Running: 27.5 cents per kilometer
Usual contributions for Long Service Leave: $948
Superannuation: $1,813
(15% of rector's stipend, i.e. 5% from diocese, 5% from parish, 5% by priest)
Telephone and energy costs as per the budget allowance.
(Please note that these are 2005 figures and will be automatically updated in 2006)
I would expect you to live in the rectory or clergy house provided by the parish and that the parish would maintain this residence to a proper standard.
If this arrangement is to be changed, we would need to not only discuss this between ourselves but also seek approval from Diocesan Council.
Your ministry is vital to the effectiveness of the Church. I want to celebrate with you this offer of priestly responsibility. Together I hope that we can offer a vital Anglican presence that opens up awareness of the Kingdom of God in Cardiff.
In order to be as useful a church to God as is possible, I make this offer to you with these understandings:
that you will stay in this position for at least five years. I expect not to disturb you with any other offer nor will any other bishop who follows the National Bishops' Conference protocols.
there will be a consultation with the parish 18 months into your new tenure to gain perspective on the pursuit of their goals as identified in the parish consultation that determined your selection as priest. This will be a useful reality checking exercise.
You will act professionally in this wondrous responsibility. I would expect that you
- practise the Diocesan Professional Code of Conduct
- avail yourself of professional supervision
- have the guidance of a spiritual director
- respect yourself by ensuring that you take your day off and your annual leave when it falls due.
in regard to annual leave - four weeks including four Sundays - should be taken in the calendar year. Please be aware that the Diocese has the stipulation that only two weeks annual leave can be carried forward into the next calendar year.
that you will attend the Clergy School, the two one-day clergy conferences, the annual clergy retreat and Deanery meetings. In addition, seven other days are available for attending educational and professional development events. It is important that you exercise pastoral care towards the diocesan administration by submitting the appropriate leave forms.
I am delighted to offer you this position. I look forward to commissioning you into a ministry that is both yours and mine. You have my confidence to accept this offer.
Please be assured of my own prayerful support for you as you deliberate this offer. As well, my door is always open to you, so please never think you are imposing upon me if you wish to contact me. I am here to support you.
Grace and peace,
Dr Brian Farran
Bishop of Newcastle
On 23 November 2005, Father Sturt accepted the offer by email.
He was still residing at the rectory at the date of the hearing before this court, but his activities were suspended in 2009 pending the investigation of allegations.
Father Lawrence
Father Lawrence, was originally ordained as a Deacon of the Anglican Church on 21 December 1965, at St Albans Griffith. He was ordained as a priest on 30 November 1966.
On 20 December 1983 he was elected by the Cathedral Chapter to be the Dean of Newcastle. The offer of the Office of Dean was made to Father Lawrence by the then Bishop of Newcastle, Alfred Holland.
On 29 June 1984 Father Lawrence subscribed to a Declaration of Submission to the Synod of the Diocese of Newcastle and all ordinances made by it, upon taking office as Dean of Newcastle Cathedral.
Father Lawrence received a monthly stipend. He lived in the deanery in Newcastle and had use of a motor vehicle registered in the parish's name.
He retired from full-time ministry on 31 December 2008.
However in January 2009, unhappy as he asserts with retirement he had a conversation with Bishop John Parkes the Bishop of Wangaratta. As a result he thereafter from time to time until October 2009 performed some locum work. He acted in the position of Priest in Charge at Euroa until mid April 2009. Thereafter he acted as Archdeacon of Hulme in Beechworth.
Although there is no evidence I infer he was paid a stipend for his part-time work.
In October 2009 as a result of the complaint his activities at Beechworth were suspended.
The principles
The High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 had to consider whether certain delivery cyclists were employees or independent contractors. The majority said at 37, [33] - [34]:
[33] The tokens - "employer", "employee", "principal" and "independent contractor" - which provide the currency in this field of discourse have survived for a very long time and have been adapted to very different social conditions. As was pointed out in Scott v Davis, vicarious liability derived originally from mediaeval notions of headship of a household, including wives and servants; their status in law was absorbed into that of the master.
[34] The nature of employment relationships has changed greatly since the age of feudal status. This particularly is true over the course of the last century, in which not only the character of employment but also the common law of negligence developed apace. In Darling Island Stevedoring and Lighterage Co Ltd v Long, Fullagar J expressed the view, surely correctly, that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.
In addition the majority stated plainly that by itself for example the mere fact that a business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that the person is an employee. In deciding however that the relationship was one of employer and employee the majority considered seven factors.
The first consideration was that the couriers were not skilled labour or labour which required special qualifications. Secondly, the couriers had little control over the manner of performing their work. Thirdly, the couriers were presented to the public as emanations of the company. They wore uniforms bearing the company logo. The fourth factor was the policy of deterrence effect, that is of making the employer responsible for the acts of its employees which may encourage employers to take steps to attempt to avoid negligent acts on the part of the employees. Fifthly, the fact the company superintended the couriers finances. There was also no scope for the couriers to bargain for the rate of their remuneration. Sixthly couriers were provided with equipment, but had to be responsible for the cost of repairs on losses of equipment. Finally there was considerable scope for the actual exercise of control, the couriers had little latitude in the manner work was allocated.
Attempting to apply these factors to the situation of Fathers Sturt and/or Lawrence is not necessarily an easy task. It must of course be readily acknowledged that there has been a long held view that persons such as they hold office and are not employees. Even if the court were to find they were employees that may not in any event advance the arguments they seek to advance. This is hardly a dispute over the non payment of a stipend or a failure to pay or provide annual leave or superannuation.
In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR at 95 the High Court had to consider whether a person who had assumed the position of Archbishop of the Autocephalous Greek Orthodox Church in Australia had formed a legally binding contract with the respondent incorporated association. The industrial magistrate who had heard the matter at first instance found on the facts that the appellant had been employed under a contract of employment. It had been submitted to him that there could be no binding contract for employment for a minister of religion. The Full Court in overturning the decision of the magistrate had proceeded from a starting point that an intention to enter a contractual relationship about the remuneration and maintenance and support of a minister of religion is not to be presumed. The majority took the view that the appellant was not providing services to the corporate respondent but rather to members of the local Greek Orthodox church in Adelaide.
The High Court rejected that reasoning and upheld the magistrate on the basis that he had appropriately considered whether or not the parties had intended to create legal relations and carefully considered the objective circumstances prior to reaching that conclusion. However the majority in the court made some important remarks as follows at 105 - 106:
Intention to create contractual relations
"It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.'' 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'' 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 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 (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. It is not a search for the uncommunicated subjective motives or intentions of the parties. In this context of intention to create legal relations there is frequent reference to "presumptions''. It is said that it may be presumed that there are some "family arrangements'' which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition. More importantly, the use of the language of presumptions may lead, as it did in this case, to treating one proposition (that an intention to create legal relations is not to be presumed) as equivalent to another, different proposition (that generally, or usually, or it is to be presumed that, an arrangement about remuneration of a minister of religion will not give rise to legally enforceable obligations). References to the usual "non-contractual status of a priest or minister'' and factors which "generally militate against'' a finding of intention to create legal relations illustrate the point. The latter proposition may then be understood as suggesting, in some way, that proof to the contrary is to be seen as particularly difficult and yet offer no guidance at all about how it may be done. Especially is that so when the chief factor said to justify the proposition that an intention to create legal relations must be proved (the essentially spiritual role of a minister of religion) is then put forward as the principal reason not to find that intention in a particular case, and any other matters suggesting that there may be an intention to create legal relations are treated as dealing only with "collateral'' or "peripheral'' aspects of the relationship between the parties. In practice, the latter proposition may rapidly ossify into a rule of law, that there cannot be a contract of employment of a minister of religion, distorting the proper application of basic principles of the law of contract.
And then at 109 - 110:
Finally, reference must also be made to the statements, found in several cases, that the relationship between a minister of religion and a church is pre-eminently or even entirely spiritual, not contractual. That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister's conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract, and the respondent in this appeal did not seek to advance any such absolute proposition. Rather, the respondent advanced the more limited proposition, adopted by Doyle CJ and Bleby J, that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a minister of religion but must affirmatively be proved. Nevertheless, it is as well to identify some aspects of the more absolute proposition earlier identified that the relationship between minister and church is pre-eminently or even entirely spiritual because, in the end, the conclusion at which the majority of the Full Court arrived, was that the only arrangement or relationship which the appellant had was with a church not the respondent, and was a spiritual, not a contractual relationship.
First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies:
"Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse". (Emphasis added)
Secondly, the "essentially spiritual" character of the relationship may take on a different character when one of the parties to the arrangement (the putative employer) is not itself a spiritual body but is, as Staughton LJ said in Coker, "a school, or a duke, or an airport authority" or, we would add, an incorporated body having the characteristics of the present respondent. To say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister's spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment.
Earlier in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, the House of Lords had to consider whether the appellant was an employee such that he could apply to the Employment Appeal Tribunal in relation to a claim by him of unfair dismissal. Lord Templeman who wrote the leading speech said (at 328):
On behalf of the applicant it was first submitted, on the authority of Edwards v. Bairstow [1956] A.C. 14 that the decision of the industrial tribunal that the applicant was employed under a contract of service was not susceptible to reversal by an appellate court because the tribunal instructed itself correctly as to the law, took into account all relevant circumstances and reached a conclusion which was reasonable. In my opinion this submission confuses fact and law. The decision in Edwards v. Bairstow has nothing to do with this case. An appeal from the industrial tribunal is expressly conferred by statute on a question of law. The question to be determined is a question of law, namely, whether upon the true construction of the book of rules a pastor of the church is employed and is under a contract of service. If the industrial tribunal erred in deciding that question, the decision must be reversed and it matters not that other industrial tribunals might have reached a similar erroneous conclusion in the absence of an authoritative decision by a higher court.
On behalf of the applicant it was then submitted that when he was appointed pastor he entered into a contract with the church on the terms and conditions specified in the book of rules. He agreed to preach, conduct religious services and give religious instruction, to comfort the sick and bereaved, and to propagate the faith in his pastorate for the benefit of the church and its members. He became subject to dismissal for disciplinary reasons. He was employed by the church full-time and in consideration for his services he became entitled to a stipend and to occupy a manse. He was a servant employed under a contract of service and not an independent contractor performing services because he was engaged full-time under the general supervision of the church authority and subject to the control of the rota committee with regard to his activities on Sundays.
My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation.
The duties owed by the church to the pastor are not contractual. The law imposes on the church a duty not to deprive a pastor of his office which carries a stipend, save in accordance with the procedures set forth in the book of rules. The law imposes upon the church a duty to administer its property in accordance with the provisions of the book of rules. In Forbes v. Eden (1867) L.R. 1 H.L. Sc. & Div. 568; 5 Macph. (H.L.) 36, 50, Lord Cranworth said:
"There is no authority in the courts either of England or Scotland to take cognisance of the rules of a voluntary society, entered into merely for the regulation of its own affairs, save only so far as it may be necessary that they should do so for the due disposal or administration of property. If funds are settled to be disposed of amongst members of a voluntary association, according to their rules and regulations, then the court must necessarily take cognisance of their rules and regulations, for the purpose of satisfying itself who is entitled to the funds, - so if the rules of a religious association prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building. This is the principle on which courts have administered funds held in trust for dissenting bodies. There is no direct power in the courts to decide whether A or B. holds a particular station, according to the rules of a voluntary association. But if a fund held in trust has to be paid over to the person who, according to the rules of the society, fills that character, then the court must make itself master of the question necessary to enable it to decide whether A or B. is the party so entitled."
Until the applicant was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse. But the committee of the sustentation fund were not liable to pay the stipend otherwise than out of the income of the fund and the managing trustees of the manse were not liable to discharge the rates and expenses of the manse otherwise than out of voluntary contributions and church funds made available to them for that purpose. There was no contract of service between the applicant and the church, only obligations on the part of the church to administer church property in accordance with the trusts contained in the book of rules, and an obligation to ensure that no member of the church was unlawfully deprived of a benefit from church property to which that member was entitled under the rules. There is indeed an agreement between all members of the church to perform and observe the provisions of the book of rules, but that agreement will only be enforceable at law in respect of any property rights to which a member is entitled under the terms of the agreement. By no stretch of imagination can such an agreement constitute a contract of service. Similar conclusions were reached by Joyce J. In Inre Employment of Ministers of the United Methodist Church (1912) 107 L.T. 143, by Parker J. in In re Employment of Church of England Curates [1912] 2 Ch. 563, and by the Court of Appeal in President of the Methodist Conference v. Parfitt [1984] Q.B. 368. I would dismiss this appeal.
All of the other members of the House of Lords agreed.
The majority of the High Court in Ermogenous pointed out when considering Lord Templeman's speech (at 108):
No doubt as Lord Templeman observed in Davies, there is an agreement between the members of an unincorporated body to perform and observe the rules of the body, but the extent to which that agreement is enforceable at law, other than in respect of property rights to which a member is entitled under the rules is at least open to question.
There is a helpful discussion of the principles in Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 per Nicholas J at [76] - [81]. His Honour referred to Ermogenous (supra) and then said:
[76] A contract of service is of its nature a bilateral contract (Dietrich v Dare (1980) 54 ALJR 388, p 390).
[77] In Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, Handley, JA said (p 310):
"Family, social, and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention. See Balfour v Balfour [1919] 2 KB 571. There are other arrangements which attract the same principle. Thus in Cameron v Hogan (1934) 51 CLR 358 (which in some respects merits reconsideration by the High Court) the majority at 370-371 said of voluntary associations:
"They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, ... religious ... 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."
These principles have retained their full force in relation to religious associations. See President of Methodist Conference v Parfitt [1984] QB 368 and Davies v Presbyterian Church of Wales [1986] 1 WLR 323 (HL). Mr Maconachie also relied upon Rogers v Booth [1937] 2 All ER 761, a case in which a Salvation Army officer failed in a claim for worker's compensation because she was not employed under a contract of service. The officer had signed a document containing provisions which negatived any such intention. However Sir Wilfred Greene MR at 754 held that independently of these provisions the character of the relationship demonstrated that the parties did not intend to enter into rights and obligations enforceable in a court of law".
[78] It is pointed out in Carter & Harland: Contract Law in Australia (4th edition, para 401) "... since a contract is a "legally binding agreement", it would be paradoxical if an agreement could be held a contract in the face of the parties' intention that it should not give rise to legal rights and obligations. Therefore, a common positive intention not to contract will be respected".
[79] In Air Great Lakes Pty Ltd v K S Easter Holdings Pty Ltd (1985) 2 NSWLR 309, Mahoney, JA said (p 331):
" ... The law would not, I think, impose the relationship of contract where, eg, A though he was play-acting and B knew of that fact. A's actual subjective intention would be effective to prevent the contract arising. A fortiori, if both A and B had the intention that no contract should result, and each knew of it, then none would be imposed. And, I think, this notwithstanding that a reasonable bystander would take from what they said and did that there was an exchange of congruent promises and a mutual purpose to contract. I put aside for this purpose special cases, of estoppel, third party rights, and the like.
The result is therefore that intention to contract, in the subjective sense, is relevant to but not determinative of the existence of a binding contract. It acts, in a sense, as a limiting factor, that is, as a reason for not giving to what on the face of it is an exchange of congruent promises, the legal consequences which would otherwise be given to it. And on this basis, it is, in principle, relevant to know what was the actual subjective intention of each party, in the example that I have given, in order to determine whether the legal relationship of contract is to be held to exist. More correctly, it is relevant to know the intention of the one party where it is the intention of or known to the other".
[80] The issue of intention arose in Babsari Pty Ltd v Douglas Chee Yin Wong & Ors [1999] QSC 326. The plaintiff claimed contribution from the fourth defendants (the Chows) and from the eighth defendant (Westpac) on the basis that they were all co-guarantors of another party's (Asean) debt which the plaintiff had discharged. Chesterman, J found that in the circumstances there was no agreement between Westpac and the Chows by which the latter agreed to guarantee the debts of Asean, and thus the Chows were never co-sureties with the plaintiff, and the claim for contribution failed.
[81] His Honour concluded a review of the principles with the following observations and findings:
"40 One further opinion should be noted. The authors of Halsbury's Laws of Australia , Volume 6, para [110-35] say:
"Element of subjective intention necessary. Subject to the doctrine of estoppel, an intention to create a legally enforceable contract is a necessary element in the formation of a contract. Thus, a contract cannot be inferred from a person's conduct where the other party entertained no belief that the first person intended to contract."
Like any other issue which the plaintiffs seek to prove they must satisfy a court on the balance of probabilities as to the facts relevant to whether they should be regarded as employees at law.
Although not determinative of the issue one aspect of such a relationship is for example the element of control. As Mason J (as he then was) said in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24:
It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.
The decision of MacDuff J in JGE v The English Province of Our Lady of Charity [2011] EWHC 2871 is somewhat instructive on this issue.
In JGE the court was called upon to consider whether the defendants, (The English Province of Our Lady of Charity and the Trustees of the Portsmouth Roman Catholic Diocesan Trust) should be held vicariously liable for the torts of alleged sexual abuse by Father Baldwin, a Roman Catholic priest. MacDuff J found the trust should be held vicariously liable, however His Lordship could not agree the relationship could be characterised as a contract of employment. His Lordship noted various aspects of the relationship that militated against such a finding, including the fact that the priests were informed of appointments verbally, with no offer and acceptance and no (express) terms and conditions and there was effectively no control over priests once appointed. Commenting upon the importance of the control test in such a determination, His Lordship noted at [29]:
A priest is free to conduct his ministry as he sees fit with little or no interference from the bishop whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. Although I was told that a parish visit would be every five years, it could have been more frequent. The bishop had no power of dismissal. Dismissal from office would have to be effected through the church in Rome...
Within each diocese is a bishop whose appointment is from Rome. The bishop appoints a priest to each parish within the diocese. The bishop must exercise episcopal vigilance. There is clearly some element of control within this, although there is nothing in the way of penalty or enforcement; the purpose is to oversee and advise. The bishop may only redeploy the priest in another parish if the latter consents.
His Lordship found the priest is more appropriately regarded as exercising his ministry as a "co-operator and collaborator rather than as someone who is subject to the control of his superior," and agreed with the submission that a bishop and priest would "not regard their relationship as being one that could be adjudicated upon by the civil courts"... "Father Baldwin would have been considered as a holder of office rather than an employee of the defendant," (at [29]).
As the High Court made plain in Ermogenous, regard must obviously be paid to the facts of each case. Further the mere fact that the plaintiffs are priests does not entitle the defendants let alone the court to proceed upon a presumption that no contract of employment will exist.
The evidence here however in my view in relevant respects is scant. True there is evidence of factors which point to existence of a relationship of employer/employee. But on the important issue of control there is very little if any at all.
Father Sturt can point to his licence and details of his remuneration and the terms and conditions under which (at the date of the relevant proceedings) he performed his work. However in neither of his two affidavits does he say anything of relevance as I see it which goes to the manner in which he performed his duties. I can infer obviously that he officiated at church services, marriages, baptisms and funerals and presumably provided pastoral care. But apart from that and apart from also inferring he did those things consistently with the rites of the church I am left really only to speculate how he filled his days. As a matter of common sense I would infer he obviously injected his own personality and style into the role and I dare say his interaction with parishioners would not be the subject of a script. That said there is simply no evidence of his activities from which I could gauge what if any level of supervision existed.
The material put forward by Father Lawrence is even scanter. Apart from evidence about the offer for him to be Dean and of course the payment of a stipend and matters of that sort there is no relevant material dealing for example again with the issue of control.
In his case of course he had been retired on and from 31 December 2008. He did perform locum work but there are really no details about how he was paid (if at all) during that period or indeed precisely what he did or how he did it. I would however up until December 2008 draw inferences similar to those I have drawn about Father Sturt in relation to his spiritual duties but that does not really assist all that much.
I must say I am unpersuaded on the state of the evidence that either plaintiffs performed their role pursuant to a contract of employment. There are in my view simply insufficient details, notwithstanding my ability to draw certain inferences.
What of the consensual compact
It is important however in examining the issue of justiciability to observe as I have already that the Anglican Church of Australia is a voluntary association of a religious character. The rules of the church are no more or less enforceable that the rules of other voluntary associations. It is clear from many authorities that courts have shown a marked disinclination to adjudicate upon religious or political controversies except to the extent necessary to decide disputes about property. That does not turn upon any presumptions, it turns upon the very nature of such bodies and generally an analysis of their rules. As Murphy J said in Attorney-General (N.S.W.) v Grant (1976) 135 CLR 587 at 613:
As the United States cases indicate, courts may properly determine church property disputes on neutral principles and also interfere where decisions of ecclesiastical government are based on fraud, collusion or arbitrariness. Otherwise, only marginal inquiry into church government is permissible. In cases such as this, the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine (Watson v Jones; Gonzales v Archbishop of Manila (another non-constitutional case)). It has not been suggested in this case that the decisions of the General Assembly of the Presbyterian Church are affected by fraud, collusion or arbitrariness.
In my opinion, the New South Wales Parliament did not intend by the passage of the uniting Acts that the courts should hear and decide controversies over religious doctrine or the practice or procedure of church government
Unsurprisingly questions of justiciability must be addressed by reference to the facts of a particular case and more importantly as I have also observed the particular claims made for relief.
There is no doubt that from the nineteenth century the legal status of the church in New South Wales was settled. As Dixon J (as he then was) said in Wylde v Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224 at 285 - 286:
But although in the beginning and for a not inconsiderable period the position of the Church of England in New South Wales appears to have been that of the Church established by law, time changed its relation to the law. It is not easy to trace the steps by which the result was reached but eventually it came to be considered as a body like other Churches established upon a consensual basis. The Ecclesiastical Court was disused and forgotten, the Acts of Council referring to it ceased to be law as did other early legislation in which might be seen a recognition of the Church as an institution established by law. But the chief reason doubtless is to be found in the grant of representative government and the separation of the colonies. The Church itself resolved in effect upon the principle of voluntary association and a measure was actually proposed in parliament at Westminster to enable the Church of England overseas so to organize itself.
In Scandrett v Dowling (1992) 27 NSWLR 483 the Court of Appeal considered the structure of the church in Australia but especially New South Wales. In particular it had to consider the width of s 2 of the 1961 Act. Section 2 was in the following terms:
The several articles and provisions of the Constitution contained in the Schedule to this Act (hereinafter called the Constitution) and any canons and rules to be made under or by virtue or in pursuance thereof are and as provided in the Constitution shall be for all purposes connected with or in any way relating to the property of the Church of England in Australia binding on the Bishops, clergy and laity being members of the Church of England in Australia in the several Dioceses of the Church of England within the State of New South Wales.
The case involved an application by members of the church who sought to restrain a bishop who had proposed to ordain women as priests. It was contended that he was about to do so without the authorisation of the General Synod.
The argument was advanced that the National Constitution which was a schedule to an Act of the New South Wales Parliament, (Act 16 of 1961), had legally binding effect on all members of the church in New South Wales not only in regard to church property but also in regard to the organisation of the church. Therefore it was put the obligations and duties it created were enforceable in the same way as those created by any statute. In addition it was contended that all members of the church in New South Wales were parties to a consensual compact embodied in the Constitution and that this compact had contractually binding legal effect on every member.
Priestley JA (with whom Hope JA agreed) expressed the view that section 2 of the Constitution made it "as clear as words could make it" that the binding legal effect of the Constitution was limited to purposes connected with or in any way relating to the property of the church and added at 512 - 513:
Matters of faith and organisation not connected or related to Church property are not made any more binding at law then they were before the Act was passed.
His Honour also expressed the view that the parties to the consensual compact upon which the plaintiffs relied were bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of the State courts of law and commented (at 513):
The consensual compact is thus based on religious, spiritual and mystical ideas, not on common law contract. It has the same effect as a common law contract when matters of church property become involved with the other matters dealt with by the consensual compact. I do not think the claims made in this case get out of the area of the consensual compact which does not have the legally binding effect here relied on.
In a most comprehensive survey of the history of the church especially in New South Wales His Honour made a number of important observations about what in his view the particular rights there under consideration involved. In relation to bishops and other clergy His Honour expressed the view at 515 that:
A Bishop of the Church is as such the holder of an office of the Church. A priest of the Church is as such the holder of an office of the Church and is ordained for the office and work of a priest in the Church of God not limited to any Diocese of the Church. A priest can only exercise priestly functions in a Diocese when licensed to act as a priest by the Bishop of the Diocese.
In terms of the rights of clergymen in the context of the Constitution His Honour said at 522:
In New South Wales, once the Church became recognised as a voluntary association whose Church law was not State law and whose disciplinary and other tribunals were not State tribunals, it consequently also became recognised that all "Church" property had to be owned by trustees upon religious charitable trusts, with the procedural incidents, in case of court proceedings, flowing from that. No party to such proceedings needs to rely upon the idea of consensual compact asserted by the plaintiffs here. There is no need for a consensual compact concerning matters of Church discipline and organisation to be binding as a civil contract. In cases not involving Church property, the sentences of the Church tribunals will have effect; eventually the person sentenced will either submit to the sentence, or be excused from it, or cease to be a member of the Church. Where Church property is involved, the civil law of trusts and property will apply, and bring about the implementation, or otherwise, of the sentence. For this law to operate, no reliance on civil contract law is necessary. (Of course, civil contracts distinct from the consensual compact may be involved.)
His Honour also remarked at 554:
The basis of the consensual compact or contract thus must be a willingness to be bound to it because of shared faith, or, in the Latin phrase used in some of the materials, in foro conscientiae. Its binding effect does not come from the availability of the secular sanctions of State courts of law. The availability of these latter sanctions when spiritual matters become mixed with Church property matters is an incident of the consensual compact or contract which means that in those cases where property is involved the consensual compact or contract is given the same effect, in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract.
Further His Honour said at 557 - 558:
As there appears, my view is that the consensual compact into which members of a church voluntary association enter is not described correctly as a civil contract. It could perhaps be described as a contract partly civil and partly spiritual. I do not think it can be described as a wholly civil contract because there are undoubtedly instances, when no property or civil right is involved, in which the secular courts will not enforce it. In cases where property or civil rights are involved the compact will, in a practical sense, be enforced; and in such cases it may not really matter whether the contract is described as a consensual compact binding in foro conscientiae which is, in those cases, incidentally subject to enforcement in the secular court, or as one partly binding in conscience and partly binding as a common law contract
In conclusion His Honour reiterated that he did not consider the court should treat the parties to the consensual compact as having agreed to its terms in the contemplation that it created legal relations between them. When questions arose concerning the consensual compact which also involved questions relating to church property secular courts should decide them to the extent necessary to enable the property questions to be decided. The church property referred to was "necessarily property held on trust by a trustee or trustees", (at 564).
Mahoney JA who wrote a separate judgment nonetheless refused relief but for different reasons. His Honour thought that the court should conclude that in general legally binding rights and obligations could arise from the rules of the Anglican Church. In general terms, he thought, that the history and the terms of the rules of the church suggested that albeit only as rules of a voluntary association, they were intended as capable of giving rise to legally enforceable rights and obligations (at 505).
His Honour however said (at 510):
Reference was made in argument to the possibility of enforcement of the rules here in question as involving proprietary rights because of, for example, the possibility of payment of stipends to ordained priests or matters of this kind. But this matter was, if not abandoned, at least not argued at length. Any such proprietary rights would, in my opinion, be "incidental and accidental": Cameron v Hogan (at 378); and not a basis for court intervention.
The decision of the Court of Appeal provides no support in my opinion for the plaintiffs in this case insofar as they purport to rely upon the National Constitution as giving rise to contractual rights sufficient to bring these proceedings. Absent an ability to suggest some right of property which has been infringed, the 1961 Act and National Constitution are therefore not in my view a fruitful resource in aid of the plaintiffs' case. It would in my opinion logically follow by parity of reasoning that the 1902 Act and Constitutions per se are also of little comfort to the plaintiffs. Section 4 of the Act refers to the provisions of the Constitutions being binding for all purposes relating to "the property of the Church". The reasoning in Scandrett would by parity of reasoning logically apply and likewise provide the plaintiffs with little comfort.
In Macqueen v Frackelton (1909) 8 CLR 673 the High Court comprising Griffith CJ, O'Connor and Isaacs JJ heard an appeal from the Full Court of Queensland.
In the proceedings the Presbytery of Brisbane, a court of the Presbyterian Church of Queensland adopted a report of a Commission appointed by them to enquire into a certain alleged unsatisfactory state of affairs in connection with a church of which the plaintiff was the minister. The report contained certain findings of fact and concluded with a recommendation that the plaintiff be called upon to resign. He however refused to resign and the presbytery resolved to report the matter to the General Assembly, the Supreme Court of the Church in Queensland, with a recommendation that that body should dissolve the pastoral tie between the plaintiff and his congregation. The plaintiff indicated he wished to appeal the resolution of the Presbytery. The plaintiff sought injustice relief against all members of the Presbytery (excluding himself) arguing that the resolution was contrary to the rules prescribed by the Constitution of the church and a declaration the rules had been breached.
Having received all relevant reports and recommendations the General Assembly required the plaintiff to appear before it and inform it whether he had authorised the commencement of the litigation in the Queensland court. Having admitted he had done so the General Assembly resolved that he be suspended from office for six months. This had the consequence of dissolving his pastoral tie and the loss of his ministerial involvements.
The plaintiff brought a further action against the General Assembly for a declaration that the sentence was illegal and void. The plaintiff succeeded on all issues at trial but on appeal to the Full Court of Queensland, the plaintiff was unsuccessful in the first action but he was successful in the second. Importantly however the High Court refused the plaintiff's application for leave. It was refused on the basis that no civil right of the plaintiff had been infringed.
Griffith CJ observed that the "Presbyterian Church like any other religious body in Australia, is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or consensual compact to which they are parties" (at 679).
His Honour expressed the view that the only way in which the respective rights of the parties could be regarded in a court is in the aspect of rights arising under a consensual compact. His Honour was of the view though that the interpretation of the compact was for the court and not for the parties to the contract to determine. He said at 690 - 691:
The powers of a Court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them. The contrary contention, translated into plain English, is that a minister of the Presbyterian Church, by adhering to the Constitution of the Church, in effect enters into a contract not substantially distinguishable from the submission made by members of another well known ecclesiastical organization, every member of which is required to take a vow that he will in his relations to his religious superiors be perinde ac cadaver. In other words, the minister surrenders all his future prospects in life into the hands of an infallible General Assembly. It is impossible, in my judgment, to hold that the Constitution, with its elaborate provisions for the protection of accused persons and for securing them a fair trial set out in the Rules of Discipline, can be summed up as a compact by which a minister holds his office and emoluments at the will of the General Assembly.
His Honour then went on to consider whether there had been a breach of the compact. He considered the Rules of Discipline were a carefully framed code securing to accused persons a fair and deliberate trial before they were condemned. Any charge had to be investigated "according to a procedure calculated to secure the utmost fair play and full deliberation". He further thought the procedure adopted "disregarded all the provisions agreed to for the protection of the accused", which went to the "root of the authority of Assembly to pronounce a sentence of suspension" (at 693), His Honour noted at 693 - 694:
It remains to consider whether the plaintiff has established that he has, by reason of the action complained of in the second action, suffered any infringement of a civil right, or, in other words, sustained any loss of money or property. The actual and necessary result of the action complained of was that he was not only deprived of his emoluments as minister of the Ann Street Church, but prevented from exercising his functions as a minister elsewhere in Queensland, and so possibly earning some remuneration.
The general rule of law is that an action will lie for any breach of contract, if only for nominal damages. If the natural and actual result of a breach of contract is to create actual pecuniary loss, there is no doubt that an action will lie, and the measure of damages is the amount of the loss actually sustained, provided that such loss was in the contemplation of the parties to the contract as the natural result of a breach. It is quite immaterial whether the plaintiff could have recovered his stipend from the Ann Street congregation by action or not. Unless, therefore, the appellants can invoke some exceptional rule to protect them, an action will lie against them for damages. It is suggested that the General Assembly are in the position of arbitrators, against whom an action will not lie in the absence of malice or fraudulent misconduct. This rule does not, however, extend to protect an arbitrator from the consequences of an act done by himself or at his instance in execution of an award upon a matter not submitted to him. Such an action, moreover, is not founded on contract. There is ordinarily no contract, express or implied, between the parties to a submission and the arbitrator. I do not know of any rule of law which requires malice to be proved in an action for breach of contract. So far as the Presbytery of Brisbane are concerned, the action complained of is that they excluded the plaintiff from the enjoyment of the emoluments of his office in execution of an order of the General Assembly which was a breach of the compact to which they were parties, as they must have known. If an action for damages will lie, it is not material that they are not formally claimed.
It was also submitted to the court that an action could not lie until the plaintiff had exhausted all of his rights under the compact whatever they may be. His Honour said at 695:
It was also urged that in any case an action would not lie until the plaintiff had exhausted all his rights under the compact, namely, by appealing to the General Assembly of Australia. In my opinion it is no answer to a breach of contract to say that the plaintiff might have obtained redress for the breach in some other way, unless there is an express or implied stipulation that failing to obtain redress in that other way shall be a condition precedent to the right to complain of the breach. I can find no such stipulation, express or implied, in the compact now under consideration. The same view was taken by the Judicial Committee in the case of Long v. Bishop of Cape Town.
In the same case O'Connor J at 696 - 697 commented:
It has long been settled by British Courts that a religious body not being a State Church is merely a voluntary association bound together by a consensual compact-that the rights of its members inter se depend entirely on the terms and conditions of the compact; that the terms and conditions constitute a contract in which every member binds himself to the whole body and to every other member to act in accordance with its provisions. If, as is generally the case, the Church has by its Constitution created bodies clothed with executive and judicial powers for managing and controlling its spiritual disciplinary and business interests, the Civil Courts will not in general interfere with their acts and decisions. It is only when such bodies exceed their powers, and assume to themselves an authority which the contract has not given them, that the Civil Courts will intervene, and then, only, when the party complaining of the wrongful act or decision establishes the fact that he has thereby been injured in his property or in the exercise of some civil right. Any member who has been so injured may obtain redress in the Civil Courts, and his proceedings must be directed against those of his fellow members who have contrary to the contract assumed authority to do the act or give the decision which has caused him injury. If his complaint is against a body of members, such as the General Assembly of the Presbyterian Church of Queensland, he is not bound to join each member as a party. He may, as in the present case, proceed against individuals selected by the Court to represent the whole body for the purpose of the proceedings: Skerret v. Oliver. In pursuance of these well-established principles, the plaintiff has in the first action proceeded against certain members of the Presbyterian Church of Queensland representing the Presbytery of Brisbane, and in the second action against certain members representing the General Assembly of the Presbyterian Church of Queensland, and the Presbytery of Brisbane. His complaint against both bodies is that they have, in breach of the contract which binds them and him as members of the Church, acted beyond their jurisdiction in making against him the declarations and orders which have caused him the injuries which he comes to the Court to have redressed.
There has been a clear trend in the authorities indicating a reluctance on the part of courts to extent the occasion of absolute privilege.
In Gibbons v Duffell (1932) 47 CLR 520 at 528 Gaven Duffy CJ, Rich and Dixon JJ said:
The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson (1892) 1 Q.B. 431). Its application should end where its necessity ceases to be evident
In Rajski v Carson (1988) 15 NSWLR 84 (at 91 - 92) Kirby P and Hope JA said:
Limiting the extensions of absolute privilege:
Whilst we acknowledge that there is force in these arguments, we have concluded that they do not represent the preferable construction of the statute. No authority binds the Court to accept them. There are reasons of principle which suggest that the opposite construction is to be preferred.
The starting point of our reasoning is that absolute privilege in defamation can amount to a serious derogation from ordinary civic rights. Whilst the purpose of Parliament must be faithfully upheld by the courts, it is not readily to be assumed that Parliament intended to derogate from the ordinary protection of civil rights, except to the extent that Parliament made such derogation clear. In Gibbons v Duffell (1932) 47 CLR 520, the High Court of Australia held that a report, made in the course of his duty by an inspector of police to a superior officer, which contained defamatory references to a subordinate officer, was not the subject of absolute privilege. Evatt J, in the course of his judgment, said (at 534 - 535):
"'... Absolute immunity from the consequences of the defamation', as Mr E E Williams wrote in 1909,
'is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded to those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civil protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' (25 Law Quarterly Review p 200).
Extension of the privilege by reason of analogies to recognized cases is not justified. Even if it were, there is no analogy between the Police Force preserving the State from 'internal enemies' and the Army preserving it from 'external enemies'."
Since those words were written in 1909 and reiterated by Evatt J in 1932, legislatures have expanded the categories of bodies attracting absolute privilege. What began with judicial proceedings, strictly so-called and later extended to Parliamentary proceedings, was expanded to other categories of publication as the list of protected provisions referred to in and about s 17 of the Defamation Act 1974 demonstrates. The reluctance of the courts to extend the numbers of occasions on which no action at all will lie, although a defendant published words with the full knowledge of their falsity and even with the express intention of injuring the plaintiff, is expressed to be the law in England, as well as Australia: see, eg, Law v Llewellyn [1906] 1KB 487 and Beresford v White (1914) 30 TLR 591. The principle of restraint in extending the defence of absolute privilege is supported by the textwriters: see, for example, the comment of the editor of Gatley on Libel and Slander , 8th ed (1981) 183, par 431 at 183. Indeed he appears to have foreseen the very problem which has arisen in this appeal.
In my view it would be difficult to mount a case at common law to contend that either a Part IX Tribunal or the PSB should qualify and pass the necessity test on the authorities.
So far as the statute is concerned neither a Part IX Tribunal nor the PSB is included in the schedule to the Defamation Act 2005. The question is whether either would fall within definition of the term "Australian tribunal" as defined in s 4 of the Act.
The majority in Scandrett v Dowling made it abundantly plain that after the church became recognised as a voluntary association church law was not state law and "its disciplinary and other tribunals were not State tribunals" (at 522). I think a Part IX Tribunal could not conform to the definition of "Australian tribunal". Neither could the PSB.
The mere fact that IX Tribunals have the power to administer the oath and might be described as a commercial arbitrator is I think not to the point. In that event as I have already stated I think neither body would have its proceedings protected by absolute privilege pursuant to the statute.
However the mere fact absolute privilege applies or does not apply before the PSB as opposed to another relevant tribunal cannot of itself smack of oppression or inferences.
Right against self incrimination
The plaintiffs further complain about section 34 of the PS Ordinance. It is in the following terms:
34. (1) The PSC may by notice in writing to a respondent require the respondent to provide a detailed report to the PSC within the time specified in the notice in relation to any matter relevant to the investigation.
(2) it is the obligation of a respondent:
(a) truthfully to answer any question put by or on behalf of the PSC in the exercise of powers conferred by this Ordinance;
(b) not to mislead the PSC or a member or delegate of the PSC;
(c) not unreasonably to delay or obstruct the PSC or a member or delegate of the PSC in the exercise of powers conferred by this Ordinance.
The plaintiffs contend in addition that s 34 is invalid because it is inconsistent with the privilege against self incrimination.
There is no doubt that the privilege against self incrimination is a fundamental common law right. It is not simply a rule of evidence. It operates so that a person cannot be compelled "to answer any question, or to produce any document or thing, if "to do so may tend to bring him into the peril and possibility of being convicted as a criminal", Reid v Howard (1995) 184 CLR 1 at 12, citing Sorby v The Commonwealth (1983) 152 CLR 281 at 288 per Gibbs CJ, see Lamb v Munster (1882) 10 QBD 110 at 111.
The privilege can be invoked by a person liable to a civil penalty including loss of office and does not depend upon exposure to criminal prosecution: Mason, Wilson and Dawson JJ in Pynboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 325 - 336.
The privilege can be abridged by statute or waived.
Section 34 of the PS Ordinance is not a statute so even if it purported to abridge the rule it would be of no effect. Even if it had statutory force the abridgment would have to be express and there is no such suggestion in the language in my view in the PS Ordinance. Nor in my view does s 34 as part of a consensual compact amount to a waiver on the part of members of the association who may be required by it to provide information. In that regard it is the submission of the Primate that on its proper construction s 34 is to impose upon the plaintiffs an obligation similar to that recognised as resting on a legal practitioner facing a disciplinary hearing. The Primate relies upon the decision of Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511 (1966) 84 WN 136 at 141 - 142. I do not agree. In that type of case of course the court is dealing with an officer of the court whose paramount duty is to the court and in addition no consideration in any event was given to the right against self incrimination in the judgment. That said the church would be expected to presume that the truth would be no stranger to any of its clergymen, but it is another matter altogether to construe s 34 as abridging such a fundamental right or that by membership there is a waiver in the sense of an abandonment or renunciation of such a right. I do not consider the language of the PS Ordinance supports such a notion: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 586 - 588 [49] - [54] and 599 - 600 [88] - [90]. If a clergyman refuses by reason of the right against self incrimination to provide an account of allegations so be it. The PSB would (as discussed below) be able to rely upon that refusal not as an admission and consistently with its powers pursuant to s 73 of the PS Ordinance.
Pursuant to s 34 I consider there is clearly an obligation not to mislead or obstruct the proceedings, but I do not consider it displaces the privilege against self incrimination and it should be construed accordingly. Here the plaintiffs did what they were entitled in my view to do namely to deny the allegations. They also declined to make admissions. They were not obliged to do so. I consider s 34 to be a valid enactment which could not, but more to the point, is not intended to abridge the plaintiffs right against self incrimination.
Of course a claim for a privilege against self incrimination cannot be used as an admission.
It is well understood in a criminal prosecution that the failure of accused to give evidence is not itself evidence nor is it an admission. The High Court (Mason CJ, Deane and Dawson JJ) in Weissensteiner v The Queen (1993) 178 CLR 217 at 229 said:
The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct. But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. That was recognized in Reg v Kops. But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.
The same principle appears apposite in an administrative context: Dolan v Australian and Overseas Telecommunications Corporation [1993] 42 FCR 206 at 212 - 216.
However as Lee J pointed out in Pappas v New World Oil Developments [1993] 43 FCR 594 at 595, the failure to adduce evidence on central issues on which the witness may be expected to give evidence will permit a court to be satisfied that inferences adverse to the case of that party may properly be drawn notwithstanding that the ground for refusal to provide evidence may be rooted in the privilege against self incrimination.
I should say I see nothing wrong here with what the PSB did or said at any point (including 24 November direction hearing). It was entitled in evaluating the credibility of the complainant ultimately to consider for example that apart from bare denials there was no opposing version, notwithstanding the fact that ample opportunity had been afforded to the plaintiffs to provide one had they wished. The plaintiffs did precisely I assume what they were advised to do, and that was to take no part in the proceedings. They exercised their informed freedom of choice. I do not consider s 34 to be invalid nor the instrument of unfairness or oppression.
Other matters
The plaintiffs also argue that the defendants could not reasonably have been expected to give evidence because they could not get the protection of s 128 of the Evidence Act, and that somehow the conduct of a directions hearing with directions given about evidence in some way amounts to a breach of procedural fairness. I cannot see it myself. Again they chose not to give any evidence to contest the allegations and not to be heard. That was their right.
A hearing in camera
Complaint is made that the PSB should have heard the matters in camera.
Pursuant to s 69(1) of the PS Ordinance and subject to ss (2) sitting of the PSB is to be an open sitting. However s 69(2) gives the PSB an absolute discretion to make any number of orders which would involve potentially hearing the matter in camera. But it is in its absolute discretion whether it chooses to do so or not. It is not immediately apparent to me how or why it could be put the PSB erred in determining to hear the matter in open forum, as it were. Indeed there are many compelling reasons why a church would wish to be seen to be doing so. Further it is by no means clear to me (although no submission has been made by the plaintiffs to this effect) that things said by either plaintiff, were they to have chosen to give evidence, could make them liable for defamation in the absence of malice. It might be thought that a good case in favour of qualified privilege could have been put permitting either plaintiff to make statements in response to allegations or attacks made upon them which might have been defamatory of the complainant or some other person.
The balance of the matters do not raise in my view any matters of substance. By the deliberate absence of the plaintiffs and the absence of the solicitor Mr Woodward the complaints raised in paragraphs 55, 57 and 58 are a little disengeneous and without substance.
I reject Review Ground 2
Review Ground 3
The matters raised under this ground (FAS of C [60] - [69]) are in my view an attempt at an unashamed merits review.
The plaintiffs wish to argue that the PSB erred in admitting evidence which was prejudicial and in particular by placing reliance upon the poem allegedly written in 1993 by the complainant. There are then a series of alleged errors relating to the way in which the PSB dealt with matters of evidence or made its finding or explained itself in its determinations.
I must say that the allegation that the PSB erred for example in admitting evidence is really no more than a submission that the PSB ought to have made different findings not based upon that material. It is to be observed that pursuant to s 54(3) the PSB was not to be bound by technicalities or legal forms nor the rules of evidence and was entitled to inform itself on any matter and in such manner as it thought fit. I do not believe the plaintiffs have put a compelling argument as to why there was any prohibition on the PSB considering any of the material that was before it. To that end I do not accept that the plaintiffs have shown any reviewable error in the relevant sense.
Incidentally of course it must be recognised that the issue of a prerogative writ is not available in respect of the breach of the rules of a private body which does not exercise powers of public significance; a sporting club or for example an independent school: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [79] per Basten JA.
But even assuming the plaintiffs have sufficient standing to seek judicial review I am unpersuaded that given the latitude accorded to the PSB pursuant to the PS Ordinance and in particular s 54(3) the plaintiff is able to point to any impermissible piece of evidence wrongly being received or considered by the PSB. It is no part of my role upon such a review (assuming an entitlement to it) to substitute my own decision for that of the PSB even if I disagree with what they have done: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 41.
The allegations for example that the PSB erred in drawing certain inferences or making certain findings is again as I think nothing more than an invitation to the court to substitute its own decision for that of the original decision maker. Take for example the poem written in 1993. It was open to the PSB to determine that the poem was written in the circumstances alleged by the complainant, albeit some 9 years after the event, and written as part of the complainant's struggle to come to terms with what had occurred years before and on its testimony at least by implication that which had haunted him for a significant period of time. The weight to be given to the findings and the significance to be placed upon the poem it seems to me was a matter entirely within the purview of the PSB. The credibility of the complainant was a central issue in the process. This was confronted by the PSB. How they evaluated the material was a matter for them. They were entitled to accept all or part only of his evidence. It is clear they were also entitled to evaluate the extent to which there was corroboration like for example the 'Four Rivers' publication. Cubillo v Commonwealth (No 2) (2000) 103 FCR 1.
In circumstances where both Father Sturt and Father Lawrence declined to take up the opportunity to appear before the PSB and even at a minimum make submissions, it is difficult to see how there was denial of procedural fairness. The only view reasonably open in my mind is that Mr Woodward gave advice to both plaintiffs and as a result they made an informed decision not to participate in the case of Father Lawrence at all, and in the case of Father Sturt, potentially participate in some ways, subject to whether the PSB resolved to hear the matter in camera. I find it difficult to accept that in the circumstances they were denied a reasonable opportunity to be heard. The disappointment or dissatisfaction with the outcome cannot amount to a breach of the rules of natural justice. I see nothing untoward with the approach adopted by the PSB. They evaluated the evidentiary materials as in my view they were entitled to do. The material before them clearly permitted them to reach the conclusions they did, and I reject Review Ground 3.
Review Ground 3A - bias
The ground is only pressed by Father Lawrence.
The PSB is said to have erred in proceeding to hear and determine the allegations made against Father Lawrence in circumstances where it had just heard and determined the allegations against Father Sturt. It is asserted in so doing the PSB was affected by actual bias against Father Lawrence, alternatively the PSB was affected by apprehended bias against him. In either case the determination as far as it affects Father Lawrence is invalid or void and should be quashed.
Authority in New South Wales supports the proposition that allegations of apprehended bias are not available in applications for judicial review of the decision of domestic bodies such as the PSB. In Maloney v NSW National Coursing Assn Ltd(No 2) [1978] 1 NSWLR 161 Glass JA made the following comment at 170 - 171
The passages I have quoted from these various decisions furnish, in my view, adequate support for the proposition that the requirements of natural justice are in some respects different where domestic tribunals are concerned. They also adumbrate the reasons why this is so. In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration: Allinson v. General Council of Medical Education and Registration [1894] 1 Q.B. 750, at pp. 758, 759., per Lord Esher M.R. The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate and, in particular, it cannot operate with respect to tribunals such as that set up by Art. 10 in the articles of the defendant association: cf. S.A. de Smith, Judicial Review of Administrative Action, 3rd ed., p. 232.
The High Court in Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 said when discussing the concept of actual bias:
But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be "real". The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that "preconceived opinions-though it is unfortunate that a judge should have any-do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.
It goes without saying that a finding of actual bias should not be made lightly and cogent evidence would be necessary for making such a finding. It would therefore be entirely appropriate to take into account the classic expression of the level of satisfaction needed where such a grave allegation is made as articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, see also s 140 of the Evidence Act 1995.
To qualify as actual bias the mind of the decision maker must be so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. Actual bias requires the presence in the decision maker, clearly, as a pre existing state of mind which disables him or them in the present circumstances from undertaking or rendering themselves unwilling to undertake any proper evaluation of the relevant materials before them. Actual bias will of course exist where the decision maker has prejudged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was simply not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, see discussion per Gleeson CJ and Gummow J at 531 - 532.
The test for apprehended bias of course is an objective one. Whereas the test for actual bias is a subjective one. In Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48 the High Court: Gummow, Hayne, Crennan and Bell JJ noted at [33]:
Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about any actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done at least for the most part on the basis of what the judge had said and done. But to allow an inquiry about whether a judge had in fact pre judged some issue to enter into a debate about what a fair minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
On the evidence of this case I fail to detect anything in what members of the PSB said or did prior to hearing and determining the matter against Father Lawrence that could cogently and persuasively point to actual bias on their part.
But that is not an end to the matter. In Vakauta v Kelly (1989) 167 CLR 568 the High Court determined that a person can indeed waive apprehended bias. The facts of the case concerned a trial judge who made comments critical of the evidence given by the defendants medical witnesses in previous cases. Counsel confirmed in proceedings that the remarks were recorded on the transcript, however did not object to comments made by the judge and made no formal application about them. In addressing apprehension of bias Brennan, Deane and Gaudron JJ noted at 572:
Where such comments are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment.
There is very little authority on whether or not a party can waive actual bias, however in the same case Dawson J (albeit in the minority in the result) said at 577 (where it is clear His Honour was addressing both actual bias and an apprehension of bias):
No objection was taken to the continuation of the trial before his Honour either formally or in effect. The purpose for which certain of his Honour's remarks were raised by counsel was to have them recorded on the transcript, presumably for use in the event of an appeal, and the failure to identify any other purpose necessarily implied that no other point was then taken.
If those remarks, or his Honour's response, displayed bias, actual or ostensible, then the failure of counsel to object did, I think, amount to a waiver of the objection.
I consider that comment of Dawson J, albeit in passing, provides support for the proposition that actual bias can indeed be waived.
During the course of the proceedings I invited Counsel to bring any authorities to my attention on this issue. I was referred to the decision of Strickland J in Stephens v Stephens [2010] FamCA 184 in which Justice Strickland helpfully set out extracts relating to actual bias and waiver.
His Honour there determined that waiver could be express or implied and referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
His Honour also considered waiver could be express or implied. His Honour was placed in the invidious position of having to determine his own subjective state of mind. He dismissed the allegation of bias by reason of a lack of evidence.
There is simply no basis here to reasonably infer that the PSB was motivated by actual bias and I am not satisfied that such existed in fact. Notwithstanding the fact that there was a short gap only between the two hearings, evidence was in fact called and presented in relation to the complaint about Father Lawrence and it is unrealistic to suggest that in hearing the matter regarding Father Lawrence the PSB would have had a predisposition or inclination adverse to him. That does not prove that one let alone all three members of the PSB were motivated by actual bias.
Mr Woodward got instructions to withdraw from the proceedings and neither of his clients were prepared to participate in any way in the process. As their solicitor he knew that the PSB was going to deal with both matters during the relevant period. The plaintiffs and Father Lawrence in particular should be taken to have waived any right to object to the process on this basis. I reject Review Ground 3A.
Review Ground 3B
Review Ground 3B alleges a breach of prosecutors duty. These grounds made serious allegations in respect of the conduct of Mr Lloyd the representative of the PSC at the hearing before the PSB. Mr Lloyd put on a statement in the proceedings before me. He was not cross examined. Mr Lloyd is a retired police prosecutor.
It is submitted that the court should not entertain Review Ground 3B as it goes nowhere. Further it was submitted by the defendants that the authorities make clear that although a breach of "prosecutors duties" may have ethical and professional consequences it cannot ground an application for judicial review in aid of prerogative writ for example. In Whitehorn v the Queen (1983) 152 CLR 657 at 665 Deane J made the following comments:
The fact that criminal proceedings in this country are adversary in character means that what is required by the standards of fairness and detachment which should be observed by the Crown in the calling of witnesses may be modified by the informed consent of the accused. The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a trial judge, particularly in summing up to the jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of an appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial. The question whether a trial judge may withdraw a case from the jury or direct an acquittal on the ground that, notwithstanding that there is evidence which would sustain a conviction, a failure by the Crown to call a particular witness has resulted in a situation where a conviction would be unsafe or unreasonable, has not been argued and need not be considered here.
Here of course it is suggested that by reason of some breach of "prosecutors duties" this would lead to the court determining that the determination was invalid or void and should be quashed. Natural justice directs itself to the decision maker as opposed to a person appearing for one of the parties before the decision maker. I accept the defendants submission that there is no juristic basis for treating a breach of "prosecutors duties" as amounting to a denial of natural justice. Mr Lloyd took no part in the deliberation process.
I also consider in any event it is very doubtful whether "prosecutors duties" apply at all in the context of proceedings before a domestic tribunal such as the PSB. It is therefore indeed questionable whether a person in the position of Mr Lloyd was indeed subject to any duty. He was really not fulfilling the role of a "prosecutor" but rather appearing for the PSC before the PSB. The mere fact that he had to make allegations of the kind he made does not turn him into a prosecutor.
In a very different context the Court of Appeal in Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [678] - [777] considered the nature of the prosecutorial duty in circumstances which in that case involved proceedings for civil penalty pursuant to the Corporations Act 2001 (Cth). The appellants contended that Counsel appeared for ASIC in such a matter or a duty akin to that of a prosecutor in a criminal trial. The court rejected the notion that by analogy from criminal procedure it was appropriate to impose upon Counsel appearing for ASIC in such proceedings a prosecutorial duty at [689]. There was no issue but that ASIC accepted in argument that it was obliged in the conduct of the proceedings to act fairly. The debate in the Court of Appeal turned upon ultimately whether or not in that particular case ASIC was or was not obliged to conduct the case in a particular way, importantly by calling a particular witness. I should observe that this and other issues in that case are reserved before the High Court.
For the reasons outlined above I reject Review Ground 3B.
Discretionary barriers to relief
Although it is true that I have rejected various grounds for relief noted above, and the question of remedy does not arise, I should say something about the exercise of discretion. First certiorari does not lie to a decision of a private or domestic tribunal: Bird v Campbelltown Anglican Schools Council [2007] NSWC 1419 at [11]. The only remedies thus claimed by the plaintiff which I could have granted were declaration (order 3), injunction (order 4), and a stay (order 5).
Each of these remedies of course are by their nature discretionary and not matters of right. If I had been left to exercise a discretion, I would exercise my discretion against granting any relief. There are a number of reasons why I have come to this view.
First it does seem to me that all if not most of the matters which are the subject of the FAS of C could have been raised before the PSB during the hearing which each of Father Sturt and Father Lawrence deliberately chose not to participate in. The fact that Father Sturt and Father Lawrence chose to wait until the PSB proceedings were concluded and not to participate in them is in my mind a very significant factor.
Indeed had they participated in the process (whether by giving evidence or not), they had rights pursuant to the PS Ordinance to seek a review pursuant to s 83 (part 12). This internal review procedure would have been conducted by a barrister of not less than 10 years standing appointed by the president of the New South Wales Bar Association who would thereafter be the reviewer, (S 81). Application for review is available on a number of grounds set out in s 83.
It seems to me that the scope of the review available under s 83 of the PS Ordinance would plainly have enabled Fathers Sturt and Lawrence to address all of the allegations of oppression, unfairness, breach of procedural fairness and lack of jurisdiction which they seek to pursue in these proceedings.
Sections 88, 89 and 94 of the PS Ordinance give the reviewer very wide latitude as to the relief that he or she might think appropriate in the circumstances, including quashing or setting aside the reviewable decision (s 94(a)), remitting the determination for further consideration subject to directions (s 94(b)), making a declaration of rights (s 94(c)), and making determinations to effectively restrain the PSB from doing anything which the reviewer considered necessary to do justice between the parties (s 94(d)).
The mere fact that the review is not to be conducted by way of a rehearing of the merits or a hearing de novo does not detract from my view that the matters they have sought to agitate in these proceedings would have been arguably open to them to raise in such a process.
Secondly and more to the point the plaintiffs had the benefit of independent and competent legal advice as to their rights. It is clear from references in the transcript that their solicitor Mr Woodward had had experience with similar matters previously. Having taken advice, each plaintiff decided not to participate in the process. In the case of Father Lawrence from the very outset. He chose to deny the allegations and leave it at that. Father Sturt took a slightly different position but I do not consider it materially different. I am prepared to proceed on the basis that he denied the allegations and after his application to have the matter determined in camera was decided adversely to him he chose not to participate further. It was never entirely clear that he would have done so if the PSB had decided to hold the hearing in private.
Their participation could of course have taken many forms. Initially they could have sought an adjournment in order to put materials together on the issue of prejudice to seek to persuade the PSB not to proceed with the matters or to consider excluding materials. Equally they could have appeared in a limited way for the purposes of cross examining the various witnesses and making, for example a no case to answer submission. Equally they could have given evidence themselves and/or called additional evidence to corroborate their assertions. They chose none of these courses. They adopted a considered and deliberate forensic strategy. They were entitled to take that course but they should in my opinion and in the interests of justice abide by its consequences.
Conclusion
In all of the circumstances I do not consider the plaintiffs are thereby entitled to any relief and I dismiss the proceedings accordingly. I would invite the parties to prepare short minutes to reflect my conclusion.
I will reserve the question of costs. On that issue I would invite the parties to have the matter re listed before me for the purposes of hearing submissions on the question of costs.
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Decision last updated: 03 May 2012
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