Special leave refused by the High Court - 16 November 2007
New South Wales
Court of Appeal
CITATION:
TRUSTEES OF THE ROMAN CATHOLIC CHURCH v ELLIS & ANOR [2007] NSWCA 117 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
11; 12; 13 December 2006
JUDGMENT DATE:
24 May 2007
JUDGMENT OF:
Mason P at 1; Ipp JA at 200; McColl JA at 201
DECISION:
Appeal upheld with costs. Cross-appeal dismissed with costs.
CATCHWORDS:
ASSOCIATIONS AND CLUBS – Rights, liabilities and duties of members – liabilities – generally – unincorporated association – church – tort liability – vicarious liability – where fluctuating membership – where intentional tort committed by a member since deceased – whether current and/or past members liable – whether trustees of association liable – whether archbishop liable - ASSOCIATIONS AND CLUBS – Procedure in actions by and against – who may be sued - CHURCHES AND RELIGIOUS ASSOCIATIONS – General matters – churches – generally – relationship of church and communicant – relationship between members – relationship of trustees to church – relationship of archbishop to church - CORPORATIONS – Types of corporations – corporation sole – whether Roman Catholic Archbishop of Sydney is a corporation sole for purposes of tort liability – where predecessor may have committed a tort - ESTOPPEL – Estoppel by deed – in general – whether draft settlement deed contained representation as to proper defendants in matter – whether defendants estopped from denying that they are not the proper defendants - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – “same interest” – “same liability” – what constitutes – whether requirement that defences need to be the same – order sought against unincorporated association with fluctuating membership – church – Uniform Civil Procedure Rules 2005, r 7.4 - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – unincorporated association – whether a judgment is against the members individually or funds of an association – Uniform Civil Procedure Rules 2005, r 7.5 - STATUTES – Acts of parliament – statutory powers and duties – liability – negligence – particular cases – interpretation – purpose or object underlying Act – whether trustees of church for the purposes of property matters can be subject to all legal claims involving the church – Interpretation Act 1987, s 33
Amey v Fifer [1971] 1 NSWLR 685 Amos Removals and Storage Pty Ltd v Small [1981] 2 NSWLR 525 Attorney General for Victoria v…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117
Case
[2007] NSWCA 117
Decision Date
CaseChat Overview and Summary
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (the Trustees) appealed to the New South Wales Court of Appeal against a decision concerning the tortious liability of an unincorporated association, specifically a church. The dispute arose from an intentional tort committed by a deceased member of the church, and the central question was whether current and/or past members, or the Trustees, or the Archbishop of Sydney, could be held liable for this tort.
The Court of Appeal was required to determine several key legal issues. These included whether the Uniform Civil Procedure Rules 2005 (NSW) permitted representative orders against an unincorporated association with fluctuating membership, particularly when the alleged tort was committed by a deceased member. The court also had to consider whether the Roman Catholic Archbishop of Sydney, as a corporation sole, could be held liable for a tort committed by a predecessor. Furthermore, the court examined whether a draft settlement deed could give rise to an estoppel preventing the defendants from denying they were the proper parties to be sued, and whether the Trustees, appointed for property matters, could be subjected to all legal claims involving the church.
The Court of Appeal reasoned that the Uniform Civil Procedure Rules 2005, specifically rule 7.4, allowed for representative orders against an unincorporated association where members share a "common interest" in the subject matter of the litigation and a "common obligation" to be represented. The court found that the requirement for representative orders did not necessitate that the defences of all members be identical. Regarding the Archbishop's liability, the court determined that the Archbishop, in his capacity as a corporation sole, was not liable for torts committed by his predecessors. The court also held that the draft settlement deed did not create an estoppel preventing the defendants from challenging their status as proper parties. Finally, the court concluded that the Trustees, by virtue of their appointment for property matters, were not liable for all legal claims against the church.
Consequently, the Court of Appeal upheld the appeal, setting aside the lower court's decision, and dismissed the cross-appeal. The Trustees were awarded their costs of the appeal, and the respondents were awarded their costs of the cross-appeal.