Venerable Dr Peter Carlsson v Right Reverend John Ford

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FEDERAL COURT OF AUSTRALIA

Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584

File number: SAD 58 of 2019
Judge: BESANKO J
Date of judgment: 26 April 2019
Catchwords: HUMAN RIGHTS – application for interim injunction under s 46PP of the Australian Human Rights Commission  Act 1986 (Cth) – where complaint to Australian Human Rights Commission pending – whether test under s 46PP is the same as test under s 46PO(6) – where Court proceedings pending – injunction sought by the applicant granted in part
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PE, 46PF, 46PG, 46PH, 46PO, 46PP

Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 10, 15, 19, 22‑30

Federal Court Rules 2011 (Cth) r 2.32

Cases cited:

Australian Broadcasting Commission v Lenah Game Meats Pty Limited [2001] HCA 63;(2001) 208 CLR 190

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57

Picos v Servcorp Limited [2014] FCA 922

Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238

Dates of hearing: 8 & 10 April 2019
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 50
Counsel for the Applicant: Mr J Wells QC
Solicitor for the Applicant: Sykes Bidstrup
Counsel for the Respondents: Mr R Harms
Solicitor for the Respondents: MinterEllison

ORDERS

SAD 58 of 2019
BETWEEN:

THE VENERABLE DR PETER CARLSSON

Applicant
AND:

THE RIGHT REVEREND JOHN FORD

First Respondent

THE SYNOD OF THE DIOCESE OF THE MURRAY OF THE ANGLICAN CHURCH OF AUSTRALIA INC

Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

26 APRIL 2019

THE COURT ORDERS THAT:

1.Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, act on or otherwise give effect to the claimed termination of the licence held by the applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as a priest in that diocese.

2.Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, withhold the payment to the applicant of all entitlements currently pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest.

3.Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the tenure of the applicant at his place of residence at…

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Details
Case
[2019] FCA 584
Decision Date

CaseChat Overview and Summary

Venerable Dr Peter Carlsson applied to the Federal Court for an interim injunction against the Right Reverend John Ford, the Bishop of the Murray Diocese of the Anglican Church of Australia, and the Diocese of the Murray itself. The applicant, who holds the position of Archdeacon, sought to prevent his alleged termination from that role and to protect his other entitlements. The dispute arose in the context of a complaint pending before the Australian Human Rights Commission, and the applicant sought an injunction under section 46PP of the Australian Human Rights Commission Act 1986 (Cth). The primary issue for the Court was whether the test for granting an interim injunction under section 46PP of the Act was the same as that under section 46PO(6) of the Act. The Court found that while the tests were similar, they were not identical. The Court also considered the balance of convenience and whether the existing injunction should continue, in whole or in part.

The Court concluded that the balance of convenience favoured the continuance of the existing injunction, except in relation to the position of Vicar General. The Court found that the applicant's position as Archdeacon carried significant entitlements, including a stipend, residence, and a motor vehicle. The role of Vicar General, on the other hand, did not involve any remuneration or allowances. The Court noted that the position of Vicar General was distinct from that of Archdeacon, and that the applicant's appointment as Vicar General had already determined upon the enthronement of a new Bishop. The Court therefore decided to grant the injunction in part, protecting the applicant's position as Archdeacon and his entitlements, but not his claimed position as Vicar General.

The Court made an order that the respondents and each of them would not act on or give effect to the claimed termination of the applicant's licence as Archdeacon, withhold any entitlements pertaining to that position, or terminate the applicant's tenure at his residence. The Court also ordered that an affidavit marked MFI A2 be kept confidential. The Court granted liberty to apply on two days notice, allowing either party to seek further orders if circumstances changed.

Orders

Orders of the court

1. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, act on or otherwise give effect to the claimed termination of the licence held by the applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as a priest in that diocese.

2. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, withhold the payment to the applicant of all entitlements currently pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest.

3. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the tenure of the applicant at his place of residence at 15 Willowbark Crescent, Murray Bridge SA 5253 or otherwise evict him from that place.

4. Pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth), the affidavit identified as MFI A2 be confidential.

5. Liberty to apply on two days notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The position of Archdeacon comes with a stipend, the provision of a residence, white goods for that residence, payment of outgoings in respect of the residence, and the provision of a motor vehicle and the costs associated with that motor vehicle. The position of Vicar General does not involve any remuneration or allowances.Evidence on the Application The applicant relied on two affidavits he swore, the first on 21 March 2019 and the second on 7 April 2019. The applicant sought to rely on a further affidavit from his solicitor which annexed a document detailing complaints made by others against the first respondent. This affidavit was marked MFI A2. I will not receive the affidavit because it comes too late and raises a number of issues which, if the affidavit is received in evidence, would in fairness require the Court to give the first respondent the opportunity to respond. As it has not been read, it will not be available for public inspection. In fact, I will make an order that pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth), the affidavit identified as MFI A2 be confidential. The respondents relied on an affidavit of the first respondent dated 4 April 2019. There was a short second affidavit of the first respondent which sought to correct one matter in his first affidavit. The respondents also relied on an affidavit sworn by Ms Donna Jones who is the Registrar and Public Officer of the Diocese. Finally, the respondents relied on an affidavit of Reverend Father David Price sworn on 4 April 2019. Father Price is the Dean of the Anglican Cathedral of St John the Baptist, Murray Bridge. I also received various Diocesan documents on the hearing of this application. They included the Constitution of the Diocese (Constitution) and the Parochial Administration Ordinance 2001 (Ordinance). The terms, “Archdeacon” and “Vicar General” are defined in s 27 of the Constitution as follows:“Archdeacon” means a clergyman appointed to such office by the Bishop who shall hold office for such period and shall have such powers and functions as the Bishop may from time to time determine.“Vicar General” means a clergyman appointed by the Bishop to the office of Vicar General pursuant to Section 28, to assist the Bishop in the administration of the Diocese. Section 28 of the Constitution deals with the appointment and the revocation or determination of the appointment of the Vicar General. As far as revocation or determination is concerned, subss 28(4) and (5) provide as follows:(4)The Bishop may revoke an appointment by an instrument or revocation under his hand and seal, and that instrument shall forthwith be registered in the Registry of the Diocese.(5)Upon the enthronement of a new Bishop of the See, the appointment of a Vicar General then holding office determines.Section 28 also deals with certain powers of the Vicar General. Subsections 28(6) and (7) provide as follows:(6)Upon appointment to, and while holding office, the Vicar General is empowered (subject to any written direction to him by the Bishop) to use, exercise, do and perform, all and every the powers, acts, and authorities, that may be exercised by the Bishop, except exclusively Episcopal powers, and the powers reserved to the Bishop by Sections 13, 15 and 26 of this Constitution.(7)In the event of the absence of the Bishop from the See, or of his incapacity, resignation, or death, or upon the happening of any event for which an Administrator is required by terms of this Constitution, or of the Ordinances, then the clergyman holding office as Vicar General shall, notwithstanding the provisions of the definition of the expression “The Administrator” in paragraph (1) of Section 27, be the Administrator of the Diocese.

Decision

Reasons for decision

I am satisfied that the balance of convenience favours the continuance of the existing injunction, save as to the position of Vicar General.Conclusion An injunction should be granted in the terms identified earlier in these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.