Wylde v Attorney-General (NSW) ex rel Ashelford

[1948] HCA 39

78 CLR 224

ATTORNEY-GENERAL FOR NEW SOUTH

WALES (AT THE RELATION OF ASHEL-

FORD AND OTHERS)

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Charities-Charitable - trusts-Churches vested in Church of England Property Trust,

Diocese of Bathurst-Sacrament of Holy Communion-Administered otherwise than in accordance with Prayer Book of 1662-Deviations and variations- SYDNEY,

AuthorizationAct of Uniformity 1662 (13 &14 Car. II., c. 4)-Church of Aug. 11-13,

England Constitutions Act Amendment Act of 1902 (N.S.W.), 88. 4, 5, Schedule 16, 17.

arts. 3, 24-Church of England Property Trust Act 1917 (N.S.W.) (No. 21 of 1917), 88. 4, 5, 19, 24.

Upon an information presented by the Attorney-General for New South Wales alleging breaches of charitable trusts by the bishop of a diocese, the Supreme Court, in its equitable jurisdiction, held: (1) that the Church of England in New South Wales was part of the Church of England, in England, both by reason of its history in New South Wales and of the provisions of the Church of England Constitutions Act Amendment Act of 1902 (N.S.W.); (2) that the order of administration of the Sacrament of Holy Communion contained in the Book of Common Prayer annexed to the Act of Uniformity 1662 was the only lawful administration of that Sacrament according to the rules of the Church of England in New South Wales; (3) that the use in churches of the Church of England of New South Wales of any order of administration of the Sacrament other than that contained in the said Book of Common Prayer and the practice of the above-mentioned ceremonies were breaches of trusts on which churches held in trust for purposes of the Church of England in New South Wales were held; the Supreme Court also declared that the ceremonies of the making of the Sign of the Cross coram populo and

78 CLR 225

of the ringing of a sanctus bell were illegal ceremonies according to the rules of the Church of England in New South Wales. Consequential injunctions were granted. On appeal,

(1) by Latham C.J. and Williams J. that the appeal should be allowed to the extent of making certain variations therein limiting the decree to breaches of trust proved, namely, the use of a certain Red Book, of the Sign of the subject to the trust proved, but that otherwise the appeal should be dismissed

(2) by Rich and Diron JJ. that the appeal should be allowed and the decree appealed from set aside;

(3) Subject to the said variations of the decree the appeal was dismissed in accordance with S. 23 (2) (b) of the Judiciary Act 1903-1947.

Decision of the Supreme Court of New South Wales Attorney-General Wylde, (1948) 48 S.R. (N.S.W.) 147, varied and otherwise affirmed pursuant to S. 23 (2) (b) of the Judiciary Act 1903-1947.

APPEAL from the Supreme Court of New South Wales.

A suit was brought in the equitable jurisdiction of the Supreme Court of New South Wales on the information, as re-amended, of the Attorney-General in and for the State of New South Wales on the relation of Henry Norman Ashelford and twenty-two other relators, members of the Church of England, Diocese of Bathurst. The defendants were Arnold Lomas Wylde, Bishop of the Diocese of Bathurst, and the Church of England Property Trust, Diocese of Bathurst.

The information was substantially as follows :- 1. The defendant Arnold Lomas Wylde (referred to as the defendant Bishop) was and had at all times material to this suit been Bishop of the Diocese of Bathurst in the State of New South Wales and Dean of the Cathedral Church at Bathurst in that diocese. As such Dean of that Cathedral Church the defendant Bishop had full charge and ordering of all such services in that Cathedral Church as were connected with episcopal and diocesan functions with the right at all times therein to celebrate Divine Service, administer the Sacraments and perform all other rites and ordinances of the Church of England.

2. The defendant The Church of England Property Trust Diocese of Bathurst was the body corporate of that name mentioned in the Church of England Property Trust Act 1917 (N.S.W.). All churches of the Church of England in the diocese (including the Cathedral Church) were Church Trust property within the meaning of that Act and had duly and in accordance with the provisions of that

78 CLR 226

Act been vested in that defendant for the use benefit and purposes

of the Church of England in the diocese. The defendant Bishop was and is a member of that body corporate.

3. According to the law and use of the Church of England it was illegal for any bishop or priest of the Church of England to use or (N.S.W.)

employ any order of administration of the Sacrament of Holy (AT THE

Communion other than that set forth in a certain book annexed ASHELFORD). and joined to a certain Act of the Parliament of England enacted

in 1662 and known as the Act of Uniformity 1662 which said book was entitled "The Book of Common Prayer and Administration of the Sacraments and other rites and ceremonies of the Church according to the use of the Church of England together with the Psalter or Psalms of David pointed as they are to be sung or said in Churches and the form and manner of making ordaining and consecrating of Bishops Priests and Deacons." Such book was commonly known and referred to as the "Prayer Book." Such Prayer Book had been in regular and common use in the churches of the Church of England in the diocese ever since the constitution of the diocese and contained the only order or administration of the Sacrament of Holy Communion which was legal and permissible in churches of the Church of England in the diocese.

4. The defendant Bishop had for some time past habitually and frequently administered and still did SO administer in the Cathedral Church the Sacrament of Holy Communion and in such adminis- tration used an order of administration of the Sacrament other than that contained in the Prayer Book. The order of administration of the Sacrament SO used by the defendant Bishop was contained in a book entitled "The Holy Eucharist" and commonly known in the diocese and referred to as "the Red Book."

5. The defendant Bishop as Dean of the Cathedral Church had authorized and permitted and still authorized and permitted the use by other priests in the Cathedral Church of the order of adminis- tration of the Sacrament of Holy Communion set forth in the Red Book.

6. The defendant Bishop in the course of his episcopal preroga- tives duties and functions celebrated services in other churches of the Church of England throughout the diocese. In such churches he frequently administered the Sacrament of Holy Communion and in such administration used the order contained in the Red Book.

7. The defendant Bishop had also authorized and encouraged and still authorized and encouraged the rectors and incumbents of such respective churches and other priests celebrating services in these respective churches to administer the Sacrament of Holy

78 CLR 227

Communion according to the order of administration contained in the Red Book and pursuant to such authorization and encourage- ment many priests used such order of administration in many churches of the Church of England in the diocese.

8. The Red Book also contained a prayer known as "The Epiklesis" and a rubric on page 20 thereof which were illegal additions to the Book of Common Prayer.

9. The Red Book also prescribed the practice by the celebrant of the Sacrament during the Absolution and Benediction respectively of the ceremony of making the sign of the cross which ceremony at each such time was unlawful according to the law of the Church of England.

10. The Red Book also prescribed the ringing during the adminis- tration of the Sacrament of a sanctus bell which ringing was an illegal ceremony according to the law of the Church of England.

11. The defendant Bishop while administering the Sacrament in churches of the Church of England in the diocese frequently practised the ceremonies mentioned in the two last preceding paragraphs.

12. Each respective use of the order of administration of the Sacrament contained in the Red Book and each respective authori- zation and encouragement of such use by the defendant Bishop and other priests while administering the Sacrament of the cere- monies mentioned in pars. 9 and 10 constituted breaches of the trusts upon which the Cathedral Church and the other respective churches of the diocese in which the order of administration and the ceremonies complained of were used and were respectively held and all members of the Church of England in the diocese who constituted a very large section of His Majesty's subjects in the State were by such illegal use and practices as were complained of deprived of the benefits of the trusts on which the Cathedral Church and other churches of the Church of England in the diocese were respectively held.

13. The defendant Bishop threatened and intended to continue to use and to authorize and encourage the use of the order of administration of the Sacrament contained in the Red Book.

The informant claimed :-

78 CLR 228

(2) That the defendant Bishop be restrained and enjoined from using or authorizing the use in the Cathedral Church of any order of administration of the Sacrament of Holy Communion other than that contained in the Prayer Book, and in particular from using the order of administration of the Sacrament contained in the Red (N.S.W.)

(3) That the defendant Bishop be restrained and enjoined from ASHELFORD). practising during his administration of the Sacrament of Holy

Communion in the diocese the ceremonies complained of.

(4) That the defendant Bishop be restrained and enjoined from using and from authorizing and encouraging the use of any order of administration of the Sacrament of Holy Communion other than that set forth in the Prayer Book in any churches of the Church of England in the Diocese of Bathurst, and in particular the use of the order of administration of the Sacrament contained in the Red Book.

(5) That the costs of the suit be provided for. In his statement of defence, dated 14th June 1944, and SO far as material to this report, the defendant Bishop, by par. 1, in answer to par. 2 of the information, did not admit that all the churches of the Church of England in the Diocese of Bathurst were church trust properties within the meaning of the Church of England Trust Property Act 1917, or that all those churches had duly or in accord- ance with that Act or otherwise vested in the Church of England Property Trust Diocese of Bathurst, or that the said churches were vested in that corporate body for the use benefit or purposes of the Church of England in the Diocese of Bathurst, or that the trusts upon which those churches were held were accurately or sufficiently set forth in par. 2.

In answer to par. 3 of the information the defendant Bishop (a) denied, by par. 2, the allegations that according to the law or use of the Church of England or at all it was illegal for any bishop or priest of the Church of England to use or employ any order of administration of the Sacrament of Holy Communion other than that set forth in the Book of Common Prayer of 1662 and, by par. 3, that the said Prayer Book contained the only order of adminis- tration of that Sacrament which was legal or permissible in churches of the Church of England in the said diocese and (b) said, by par. 4, that for many years past the order of administration of the Sacrament set forth in the Prayer Book had not been strictly followed and used in many of the churches in the diocese and that many deviations from and variations of the said order and form and of the order of other services set forth in the Prayer Book had existed

78 CLR 229

and had been permitted to exist in the diocese and that such devia- tions and variations had consisted of departures from the sanctions and directions contained in the rubrics in the said order of adminis- tration of the Sacrament and from the sequence of things said and done contained in that order and from the words of the prayers and other spoken portions of the order and that such deviations and variations had for many years been accepted without objection by (AT THE the members of the Church of England attending such churches ASHELFORD). in the diocese. Save as aforesaid it was admitted that the Prayer Book had been in regular and common use in the diocese ever since the constitution of the diocese by par. 5, that for many years deviations from and variations of the said order of administration of the Sacrament had been made with permission in many dioceses of the Church of England in Australia other than the diocese of Bathurst and in many churches of the Church of England in Canada, South Africa, New Zealand and elsewhere and it was submitted that by reason of the long existence of those deviations and variations it was not the fact that the Prayer Book contained the only order for the administration of the Sacrament of Holy Communion which was legal or permissible in the churches of the Church of England in the diocese of Bathurst; by par. 6, that in many churches of the Church of England for many years past deviations from and variations of the said order of administration in the Prayer Book had been made with permission by competent authority in the Church of England in England and it was submitted that by reason of the long existence of those deviations and variations in England the said order of administration was not the only legal or permissible order of administration of the Sacrament in the churches of the Church of England in the diocese; and by par. (7), that by an Act of the Parliament of England, entitled The Public Worship Regulation Act 1874, procedure was and still is regulated in England in respect of complaints and charges relating to unlawful ritual against an incumbent of any parish in the observance of the services rites and ceremonies ordered by the Prayer Book and by that Act it was provided that a complainant or complainants might if he or they thought fit represent the same in writing to the bishop of the diocese in which the parish was, accompanied by a declaration made by him or them affirming the truth of the statements contained in the representation and that if the bishop after considering the whole circumstances of the case was of opinion that proceedings should not be taken on the representation he might state in writing the reason for his opinion to be deposited in the registry of the diocese and transmit a copy to the person or persons complaining

78 CLR 230

C OF A. and to the person complained of and thereupon the proceedings on

such representation should come to an end. A bishop in England has an unfettered discretion in the exercise of the veto and if he exercised it no appeal or mandamus lay. In 1928 the National Assembly of the Church of England in England approved of a new (N.S.W.)

Book of Common Prayer known as the Book of 1928 providing (AT THE

therein for an order of the administration of the Sacrament of Holy ASHELFORD). Communion alternative to that contained in the Prayer Book and

Parliamentary sanction was sought for the use of such Book of 1928 and sanction was given by the House of Lords and refused by the House of Commons and thereupon the Upper House of the Con- vocation of Canterbury being the bishops of the Province of Canterbury in 1929 resolved "That in the exercise of their administrative discretion they will in their respective diocese consider the circumstances and needs of parishes severally and give counsel and direction in conformity with the following principles (1) That during the present emergency and until further order be taken the Bishops having in view the fact that the Convocations of Canterbury and York gave their consent to the proposals for deviations from and additions to the Book of 1662, as set forth in the Book of 1928, being laid before the National Assembly of the Church of England for Final Approval and that the National Assembly voted Final Approval to these proposals, cannot regard as inconsistent with loyalty to the principles of the Church of England the use of such additions or deviations as fall within the limits of these proposals. For the same reason they must regard as inconsistent with Church Order the use of any other deviations from or additions to the Forms and Orders contained in the Book of 1662. (2) That accordingly the Bishops, in the exercise of that legal or administrative discretion, which belongs to each Bishop in his own Diocese will be guided by the proposals set forth in the Book of 1928, and will endeavour to secure that the practices which are consistent neither with the Book of 1662 nor with the Book of 1928 shall cease. (3) That the Bishops, in the exercise of their authority, will only permit the ordinary use of any of the Forms and Orders contained in the Book of 1928 if they are satisfied that such use would have the good will of the people as represented on the Parochial Church Council and that in the case of the Occasional Offices the consent of the parties will always be obtained." There- after the said deviations and additions from and to the Prayer Book including the deviations and additions appearing in the order of administration of the Sacrament of Holy Communion contained in the Book of 1928 have been frequently and continuously used and

78 CLR 231

followed in churches in the Province of Canterbury and the defend- ant Bishop claimed that the order of administration of the Sacrament authorized by him for use and permitted by him to be used in the Diocese of Bathurst fell within the limits of the proposals referred to above and that such order was not inconsistent with the order of administration of the Sacrament of Holy Communion permitted in the Church of England in England.

By par. 8 of the statement of defence the defendant Bishop said that SO far as pars. 4, 5 and 6 of the information were intended to allege that the order of administration of the Sacrament which he used or permitted to be used in the Cathedral Church or in any other church of the diocese was different from the order of adminis- tration contained in the Prayer Book in any essential feature or was opposed in substance to the religious teaching of that Book he denied each and every such allegation.

In answer to par. 7 the defendant Bishop, by par. 9, denied that he encouraged or still encouraged any rector or incumbent of any church in the diocese to administer the Sacrament according to the order of administration contained in the Red Book, and, by par. 10, said that as Bishop of the diocese and by virtue of his office he had authorized and permitted the use of the order of administration of the Sacrament contained in the Red Book in the diocese as a comprehensive order for the administration of that Sacrament in an endeavour to overcome and put to an end the said many long existing deviations and variations in the diocese from the order of administration contained in the Prayer Book.

In answer to par. 8, the defendant Bishop, by par. 11 denied that the Red Book contained a prayer known as "The Epiklesis" and further denied that any prayer contained in the Red Book or any rubric on page 20 thereof or anything contained on that page was or were in direct or any conflict with the doctrines of the Church of England as expressed, inter alia, in article 28 of the Articles of Religion or elsewhere and, by par. 12, submitted that the said par. 8 raised matters of faith or doctrine and further submitted that the court had no jurisdiction to determine matters of faith or doctrine of the Church of England in connection with such matters in dispute as were raised in these proceedings or to determine therein that the matters SO complained of were in conflict with such matters of faith or doctrine of the Church of England and, by par. 13, further submitted that the Supreme Court of New South Wales in Equity had no ecclesiastical jurisdiction.

In answer to par. 9, the defendant Bishop, by par. 14, denied that the Red Book prescribed the practice by the celebrant of the

78 CLR 232

Sacrament during Absolution or Benediction respectively of the

ceremony of making the Sign of the Cross; and said, by par. 15, that the making of the Sign of the Cross as indicated by the text of the Red Book was not a ceremony in the administration of the Sacrament and, by par. 16, that the making of the Sign of the (N.S.W.)

Cross at the time of Absolution and Benediction in the administra- tion of the Sacrament whether it be by priest or by a member of the ASHELFORD). congregation was not unlawful according to the law or custom of the

Church of England or opposed to its teaching or practice and that the making of the Sign of the Cross at such times and at other times during the services of the Church of England had been observed by very many of the clergy and laity of the Church of England from time immemorial.

In answer to par. 10, the defendant Bishop denied, by par, 17, that the Red Book prescribed the ringing of a sanctus bell and, by par. 18, that the ringing of the sanctus bell was an illegal ceremony according to the law of the Church of England in New South Wales.

In answer to par. 11, the defendant Bishop, by par. 19, admitted that while administering the Sacrament in the Cathedral Church and other churches of the diocese he made the Sign of the Cross during Absolution and Benediction and that in certain churches in the diocese where a sanctus bell was ordinarily rung at the sanctus and at certain times during the Prayer of Consecration in the order of administration of the Sacrament such bell had been rung when he had been the celebrant of the Sacrament, and he repeated that such acts were not illegal ceremonies in the Church of England in New South Wales, and said that the making of the Sign of the Cross and the ringing of a sanctus bell during the order of adminis- tration of the Sacrament had been done and performed for many years in many churches of the Church of England in New South Wales, in England and elsewhere.

In answer to par. 12, the defendant Bishop, denied, by par, 20, that any of the matters therein alleged constituted a breach of the trusts upon which the Cathedral Church or other churches of the diocese in which the order of administration or the alleged ceremonies complained of were used were respectively held and, by par. 21, that all members of the Church of England in the diocese who constituted a very large section of His Majesty's subjects in New South Wales were by the uses and practices complained of (the illegality of which uses and practices he denied) deprived of the benefits of the trusts upon which the Cathedral Church and other

78 CLR 233

churches of the Church of England in the diocese were respectively held.

The defendant Bishop, by par. 22, denied the allegation in par. 13 of the information.

In further answer to all the matters complained of the defendant Bishop, by par. 23, said that by the rules and ordinances of the Synod of the diocese duly made and promulgated under the Church of England Constitutions Act Amendment Act of 1902 (N.S.W.), and by that Act made binding upon all members of the Church of England in New South Wales, there was provided a complete and adequate means of remedy and redress in respect of all the matters complained of, and said that the informant and the relators had not as they were bound to do resorted to and exhausted those means before filing the information; by par. 24, said that in SO far as the matters SO complained of related exclusively to acts permissions or teachings of himself as bishop, by a determination of the General Synod of the Church of England in Australia and Tasmania duly accepted by the Synod of the diocese complete and adequate means of remedy and redress were provided and that prior to the filing of the information these means had not been resorted to and exhausted by the informant and the relators and, by par. 25, submitted that they were matters of internal regulation and management of the Church of England in the diocese and that no steps were taken by the informant or the relators before filing the information to bring the matters SO complained of before the body, that is the Synod, constituted by the Church of England Constitutions Act Amendment Act of 1902, empowered by that Act to make ordinances upon and in respect of all matters and things concerning the order and good government of the Church of England in the diocese and the regulation of its affairs SO that such matters of complaint might be considered by the Synod and if it should see fit SO to do be regulated or otherwise dealt with by it.

On behalf of the defendant Church of England Property Trust Diocese of Bathurst, the secretary admitted the allegations con- tained in pars. 1 and 2 of the information but the various matters alleged in pars. 3 to 13 inclusive, not being known, were not admitted. In answer to the information the secretary said that the legal title to the churches of the Church of England in the diocese, including the Cathedral Church at Bathurst, and to the church grounds in and upon which the churches were erected was vested in the defendant trust and the defendant trust was the custodian of the legal estate in those churches and grounds for and for the use benefit and purposes of the Church of England in the diocese and

78 CLR 234

A. not otherwise and the custody care and control of the fabric of those

respective churches, including the Cathedral Church, and the maintenance and repair thereof and the care and control of the grounds and the keeping of order in those respective churches during services held therein were at all material times duly vested (N.S.W.)

in and entrusted to the churchwardens of the respective churches (AT THE

by ordinance of the Synod of the diocese and there was no duty or ASHELFORD). obligation imposed upon the defendant trust by law or otherwise

and it had no power or authority to prohibit forbid prescribe or in any way interfere with the ordering of services and the order of administration of the Sacrament of Holy Communion in the respective churches or any of them. The defendant trust submitted to such order as the court saw fit to make and it would act in accordance with such directions as the court saw fit to give.

Issue was joined on pars. 1 to 11 inclusive, 14 to 18 inclusive, part of par. 19, pars. 20 to 24 inclusive and the matters of fact alleged in par. 25 of the statement of defence. The informant submitted (a) that the matters of fact alleged in pars. 7, 23, 24 and 25 respectively of the statement of defence did not afford any ground of defence to any of the matters complained of, and (b) that since it was not alleged in the statement of defence that the use of the order of administration of the Sacrament of Holy Com- munion contained in the Red Book was authorized by ordinance of the Synod of the diocese the matters pleaded in par. 10 did not nor did any of them afford any ground of defence to any of the matters complained of.

Other than in respect of allegations admitted issue was joined with the defendant trust on its statement of defence.

Particulars were furnished by the informant to the defendant Bishop in respect of the following paragraphs in the information: pars. 7 and 13, that the encouragement complained of was contained in the presidential address of the Bishop to the Synod of the diocese on 12th May 1943; par. 8, (i) that the prayer known as "The Epiklesis " was printed in red on page 11 of the Red Book, (ii) that the words "when the bread and wine become the body of Our Lord Jesus Christ " printed on page 20 were in conflict with the doctrine of the Church of England, and (iii) that apart from article 28 of the Articles of Religion statements of the doctrine of the Church of England with which that prayer and/or that rubric were or was in conflict could be found in article 31 of the Articles of Religion and the rubric at the end of the order of administration of the Lord's Supper contained in the Prayer Book commonly known as the "black rubrie" par. 9, that the ceremony

78 CLR 235

of making the Sign of the Cross in the Absolution and the Benediction was prescribed in the Red Book by the sign or mark of a cross appearing at pages 17 and 30 respectively; par. 10, the ringing of a sanctus bell was prescribed in the Red Book (a) at page 20, by the words 'here a bell may be rung," (b) at page 21, by the words

the bell rings once to prepare us for our Lord's coming," and (c) twice at page 22, by the words ' the bell rings three times to call us to adoration'; and generally, that the matters complained of ASHELFORD). were all matters within pages 3 to 32 (both inclusive) of the Red Book which differed from the order of administration in the Prayer Book contained either by additions to or omissions from the form of service or the rubrics or directions in the Prayer Book contained or by the alteration of the order in which the various parts of the service occurs.

Admissions by or on behalf of the informant were substantially as follows

1. That since 1911 and prior to the commencement of this suit and before the publication of the Red Book the order of adminis- tration of the Sacrament of Holy Communion set forth in the Prayer Book had not been strictly followed and used in many of the churches in the diocese of Bathurst and that deviations from and variations of that order existed and the same consisted of departures from the sanctions and directions contained in the rubrics in the order and from the sequence of things said and done contained in the order and from the words in the prayers and other spoken portions of the order.

2. That the deviations from and variations of the order were not prohibited or restrained by the bishop of the diocese for the time being even when known to him.

3. That at various times over a period of years deviations from and variations of the order had existed in many churches of the Church of England in all the dioceses of the Province of New South Wales and such deviations and variations were not prohibited by the bishops of the respective dioceses even when known to them.

4. That the order of administration of the Sacrament of Holy Communion as set forth in the Prayer Book was not and had not for some years been the order of administration of that Sacrament in the Church of England in the Dominion of Canada, or in the Church of The Province of South Africa, or in the Episcopal Church of Scotland and that each and every of such churches, though not part of, or in connection with, the Church of England, was recognized by the Church of England in England and in Australia as being in full communion with it.

78 CLR 236

5. That the ringing of a sanctus bell at the times and places indicated in the Red Book were and had at various times over a period of years been done in some churches of the Church of England in New South Wales.

7 (a). That prior to 2nd October 1824 the Church of England in (N.S.W.)

Australia its chaplains and members were subject to the ecclesiastical (AT THE

jurisdiction of the Bishop of London and to the consistory court of ASHELFORD). that Bishop. (b) That on 2nd October 1824 the Church of England

in Australia by Royal Letters Patent under the Great Seal was constituted an Archdeaconry and part of the Diocese of Calcutta and over that Archdeaconry the Bishop of Calcutta by virtue of Royal Letters Patent under the Great Seal issued on 2nd May 1814 pursuant to an Act of the British Parliament, George III., C. 155, had full power and authority and jurisdiction spiritual and ecclesi- astical in accordance with the Ecclesiastical Laws of England. (c) That on 18th January 1836 by Royal Letters Patent the territories comprised within the said Archdeaconry were constituted a Bishopric of the Church of England styled the Bishopric of Australia. (d) That by Royal Letters Patent the See of Australia was sub- sequently divided into five dioceses-Sydney, Tasmania, Melbourne, Adelaide and Newcastle, (e) That in 1869 the Diocese of Bathurst was established by the surrender of portions of the See of Sydney and the See of Newcastle and that surrender was validated by The Bathurst and Grafton and Armidale Bishoprics Act 1877 (N.S.W.).

8. That a certain book contains an order of administration of the Sacrament of Holy Communion permitted by the former Bishop of Riverina to be used in that diocese while he was Bishop thereof, but that the further use of the said Book was prohibited by his successor.

9. That a certain other book contains an order of administration of the Sacrament permitted by the Archbishop of Brisbane to be used in the diocese of Brisbane and is used in many churches in that diocese.

The informant also admitted that the Lambeth Conference was a conference of all Bishops of the Church of England throughout the world and of Bishops of Churches in full communion with the Church of England and that, inter alia, the said Conference in 1920 passed the following resolutions :- While maintaining the author- ity of the Book of Common Prayer as the Anglican standard of doctrine and practice, we consider that liturgical uniformity should not be regarded as a necessity throughout the Church of the Anglican Communion. The conditions of the Church in many parts of the Mission Field render inapplicable the retention of that Book as the

78 CLR 237

one fixed liturgical model," and " Although the inherent right of a Diocesan Bishop to put forth or sanction liturgical forms is subject to such limitations as may be imposed by higher synodical authority, it is desirable that such authority should not be too rigidly exercised so long as those features are retained which are essential to the safeguarding of the unity of the Anglican Communion." The informant however did not admit that any Lambeth Conference had any power to pass any legislation binding on the Church of ASHELFORD). England either in England or New South Wales, or that any of the resolutions of any such conference could affect the law and use of the Church of England in New South Wales.

Admissions made by or on behalf of the defendant Bishop were substantially as follows :-

1. That the church at Canowindra was erected on land granted in August 1878 to trustees upon trust for the erection of a church in connection with the United Church of England and Ireland and subject to the conditions contained in the grant and that on 17th January 1895 the said land was transferred to the Church of England Property Trust Diocese of Bathurst; 2. that nineteen specified churches of the diocese were erected on lands vested since 1920 in the defendant trust upon trusts for the erection of a church " (twelve churches, including the Cathedral Church), ' for erection of a church (three churches), "for the church erected thereon" (one church), for the erection of a church and also burial ground (one church), for the erection of a church, site of a School House and a Parsonage" (one church), and ' to permit or suffer a church or building to be erected" (one church) (details being set out in Exhibit 'J") and 3. that the defendant Bishop had celebrated Holy Communion according to the Red Book in the principal churches of about one-half of the parishes of the diocese.

The suit was, in the absence of the Attorney-General, commenced upon the information of the Solicitor-General. After certain points of law had been argued in March 1945 on the motion of the inform- ant, and before they had been adjudicated upon, the informant, the Solicitor-General, took out a summons to amend the information by substituting the name of the Attorney-General for that of the Solicitor-General as informant. An order made on 23rd April 1945, granting the application was, on appeal, confirmed by the Full Court of the Supreme Court (Solicitor-General v. Wylde 1 ).

The information originally contained a charge of heresy but this charge was withdrawn and the information amended after the taking of evidence on commission in England during December 1946 and January 1947.

1(1945) 46 S.R. (N.S.W.) 83 : 62 W.N. 246. 78 CLR 238

Roper, C.J. in Equity, made a decree (a) declaring that the use in the churches of the Church of England in the Diocese of Bathurst of the order of administration of the Sacrament of Holy Communion set forth in a book entitled The Holy Eucharist" and commonly known as 'The Red Book" and the practice of administering the (N.S.W.)

Sacrament of Holy Communion in accordance with that order and (AT THE

the making of the Sign of the Cross by the celebrant of the said ASHELFORD). Sacrament of Holy Communion during the Absolution and Benedic-

tion respectively and the ringing during the administration of the Sacrament of a sanctus bell constituted breaches of the trusts on which the churches of the diocese were respectively vested in the defendant corporate body, and (b) restraining and enjoining the defendant Bishop from (i) using or authorizing the use in the Cathedral Church at Bathurst of any order of administration of the Sacrament of Holy Communion other than that contained in the Book of Common Prayer of 1662 and in particular from using the order of administration of the Sacrament contained in the Red Book; (ii) practising during his administration of the Sacrament of Holy Communion in the diocese the ceremonies thereinbefore mentioned; and (iii) using and authorizing and encouraging the use of any order of administration of the Sacrament of Holy Communion other than that set forth in the Book of Common Prayer in any churches in the diocese and in particular the use of the order contained in the Red Book.

The defendant Bishop was ordered to pay to the relators their taxed costs, including the taxed costs of the defendant trust as of a submitting defendant ordered to be paid by the relators to that defendant, and also half of the costs of the writ of commission to take evidence in England and of the taking of the evidence there- under.

From that decision the defendant Bishop appealed to the High Court.

Further facts and relevant statutory provisions are set forth in the judgments hereunder.

Kitto K.C. (with him Kerrigan) for the appellant. The court below held that any deviation from the order of service contained in the Book of Common Prayer of 1662 constituted a breach of the trusts upon which certain Church properties of the Church of England in the diocese of Bathurst were held, and that in particular a service conducted in accordance with a manual published and used by the appellant, the Bishop of Bathurst, constituted a breach of such trusts. Consequential injunctions were granted. It was

78 CLR 239

necessary for the informant to satisfy the court that, properly construed, the trusts of those church properties forbade any departures from the order of the Prayer Book, and, in particular, from the order of the Sacrament contained in the Prayer Book, and that such departures were appropriate to be restrained by the court in the exercise of its discretionary power to grant injunctions on pain of imprisonment. The history of the Book of Common Prayer of 1662 and its observance by the Church of England both in England and in New South Wales shows that meticulous adherence to the Prayer Book has never been given by the Church, nor has the Church a domestic rule requiring such adherence. The decree as granted puts the appellant into a special category-he must not deviate by omission, addition or alteration. The decree is oppres- sive and unreasonable even if the facts and the law as found by the judge of first instance are correct. The trusts are trusts " for the erection of a church." Properly construed those trusts mean the erection, and, doubtless, maintenance, of a church for the use of the Church of England in New South Wales, and do not mean the erection of a church wherein there shall be no deviation from the Book of Common Prayer of 1662. The question thus raised is not whether the Prayer Book is an accepted ritual or liturgy, or even whether it is the accepted ritual or liturgy of the Church of England in New South Wales, but whether (a) that liturgy must be written into the trusts, and (b) a variation thereof constitutes a diversion of the user of the properties from the Church of England. A diver- sion of the property does not necessarily follow from a breach of the ritual. To be successful the respondent must prove that though a service is conducted by a duly ordained and authorized clergyman of the Church of England for persons who are members of the Church of England, a departure from the strict order of the Prayer Book diverts the use of the property from the Church. It has not been decided in any case that a breach of ritual in the Church of England constitutes a breach of trust, but reports of cases in respect of other churches in England do show that that the adoption of a different doctrine or the control of the property by an unauthorized person attracts the equitable jurisdiction to protect the trusts (Milligan v. Mitchell 1 Attorney-General v. Munro 2 Attorney- General v. Murdoch 3 and Attorney-General v. Pearson 4 ) ). The

1(1833) 1 My. &K. 446 [39 E.R. 2(1848) 2 De G. &Sm. 122, at pp. 3(1849) 7 Hare 445, at pp. 469, 750] ; (1837) 3 My. &Cr. 72 [40 470 [68 E.R. 183, at pp. 193, E.R. 852]. 4(1817) 3 Mer. 353, at pp. 417-419 201-203 [64 E.R. 55, at pp. 89, [36 E.R. 135, at pp. 156, 157]. 90]. 78 CLR 240

A. withdrawal of the charge of heresy, or false doctrine, took away

the ground upon which diversion of trust in this case could be based. The only thing left is whether there is a rule of the Church of Eng- land in New South Wales that a service of Holy Communion not strictly in conformity with the Prayer Book is a non-user of the (N.S.W.)

church building for that Church, or, in other words, is there a rule (AT THE

which makes a service in which a departure occurs a non-Anglican ASHELFORD). user of that Church. Extreme difficulty would arise if it were

sought to read into a trust of the nature now under consideration a requirement that the rules of the incorporated body shall be completely observed. The Church of England in New South Wales is a voluntary association (Bishop of Natal v. Gladstone 1; Fielding V. Houison 2 ). In many cases the court has taken the view that a court of equity will not interfere to enforce rules of such an association unless to protect the right of the plaintiff in respect of the enjoyment of property (Cameron v. Hogan 3 ). Even if it is a rule of the Church as a voluntary association that the Prayer Book must be rigidly observed such a rule is not necessarily read into the trusts relating to its property. Such a rule would be a rule of procedure in worship for and among the members and if internal rules of this character were read into the trusts then, by allegations of trust, difficulties which members of voluntary associations have encountered as plaintiffs seeking injunctions where they have not been deprived of proprietary interests could be overcome (Cameron V. Hogan 4 Rigby v. Connol 5 Watt v. MacLaughlin 6 The Attorney-General suing to enforce a charitable trust cannot enforce any higher rights than a member of the association con- cerned could himself enforce. There is no right of property which exists under the rules of the Church in relation to the ritual to be observed in performing the services. The construing of a trust instrument does not extend to requiring complete adherence to all the internal rules which the association sets up for itself. The question is whether the enjoyment of the property is being allowed to other than the objects of the trust. The subject properties were being used for the purpose designated by the relevant trust. Rules such as a rule relating to forms of service are not contractual and confer no juridical rights on members of the Church. The Attorney- General stands in no better position he must show that the objects of the charity are being deprived of beneficial rights in such a way that the property is diverted from its trusts. The court below did

1(1866) L.R. 3 Eq. 1. 2(1908) 7 C.L.R. 393, at p. 406. 3(1934) 51 C.L.R. 358. 4(1934) 51 C.L.R., at pp. 370, 371, 5(1880) 14 Ch. D. 482, at p. 487. 6(1923) 1 I.R. 112, at pp. 115-120. 78 CLR 241

not deal with this difficulty in the respondent's case. It concluded H. C. that the observance of the Prayer Book was a fundamental rule of the Church in New South Wales. This begs the question. The rule may be fundamental if departure from it is a breach of trust; but the basis for finding a breach of trust is not established merely by calling a rule fundamental. However obligatory as an internal rule it may be, such a rule does not create juridical rights in property. On the evidence it was not open to the court below to ASHELFORD). find that the Church of England in New South Wales had a rule to the effect that whenever there was a deviation from the Prayer Book the property on which the deviation occurred was used otherwise than as a church of the Church of England in New South Wales within the meaning of the trusts proved in this case. Nor was it open to that court to conclude that there was any rule of the Church of England in New South Wales requiring adherence, strict or otherwise, to the Prayer Book in the public services. The constitution of the Church in New South Wales may be ascertained from the Church of England Property Management Act 1866, Church of England Trust Property Incorporation Act 1881 and the Church of England Constitutions Act Amendment Act of 1902. From 1866 onwards there has been legislative recognition of the Church of England in New South Wales by that name as a Church. The important provisions of the last-mentioned statute are SS. 3-5 and articles 3 and 24 of the schedule to that Act. By article 3 the Synod of each diocese was given a very full power of legislation on all matters relating to order and good government of the churches in the diocese it was in that sense that Synod could deal with matters of ritual. Article 24 recognizes that the Church has articles or formularies and that those may be subject to alteration by somebody described as a competent authority of the Church of England in England, and it limits the power of regulation by Synod to conforming with regulations made in England. Article 24, assuming that "liturgy" means Book of Common Prayer 1662, leaves open two things (a) can a Bishop permit a departure ?, and (b) is such a departure, or is an alteration made by Synod, a diversion of property from trusts established in this case ? That article recognizes a "liturgy" but whether it must be followed literally and whether departure constitutes non-user of property for the Church are questions left to be answered from sources aliunde. It is only the broad prohibition against the legislative power of the Synod being SO exercised as to make an alteration binding upon all members SO as to create a new and different liturgy from anything previously adopted. It cannot be inferred from the history of the

78 CLR 242

242

HIGH COURT Church that there is a rule of the Church of England to the effect

that breach of ritual involves diversion of something from the Church. Section 5 of the Church of England Constitutions Act Amendment Act of 1902 takes the church trust for the use of the Church and provides that the Church in using the property can (N.S.W.)

regulate its own affairs. The citation in the judgment of the court below 1 of Bishop of Natal v. Gladstone 2 stops short of the ASHELFORD). important passage. Whatever rules may be found to be adopted

by an unincorporated religious body are binding within the body itself (Bishop of Natal v. Gladstone 3 ). The Act of Uniformity 1662 did state that the rites of the Church of England in regard to certain services shall be as stated in the Prayer Book, which showed that it applied only to England. There are no exhaustive writings setting forth the consensual agreements of the Church in New South Wales. The Church of England was established between 597 A.D. and 686 A.D. During the long period preceding the Reformation the Church had no stereotyped ritual at all. The Church of England in England, until the Acts of Uniformity had no rule of rigidity in liturgy (Kemp v. Wickes (4) ). Uniformity was part of the establishment of the Church see Acts of Uniformity 1548; 1551-1552; 1558-1559 and Halsbury's Statutes of England, vol. 6, pp. 509, 515, 517. In 1645 A.D. the Book of Common Prayer, the fourth of such Books, then existing was abolished and the Directory imposed on England. The fifth Book of Common Prayer was prepared by Convocations and was annexed by Parliament to the Act of Uniformity 1662. The geographical limitation of that Act is most important. It did not apply to the Church in Scotland, the American Colonies or the Isle of Man. It was an Act laying personal obligations on the clergy of the Church in England, and providing certain personal penalties. It did not speak to the Church as a whole or impress statutory trusts on its properties. It imposed on the Church ab extra an obligation to observe the Book of Common Prayer so far as its clergy were concerned. Since the settlement of New South Wales other Acts have been passed in England relating to uniformity of services and the clerical obligation to adhere to the Book of Common Prayer: see Prayer Book (Table of Lessons) Act 1871, Act of Uniformity Amendment Act 1872, Public Worship Regulation Act 1874, Revised Tables of Lessons Measure 1922, and Halsbury's Statutes of England, vol. 6, pp. 543, 561, 567, 575. There is

1(1948) 48 S.R. (N.S.W.), at p. (4) (1809) 3 Phill. Ecc. 264, at pp. 268, 269 [161 E.R. 1320, at pp. 2(1866) L.R. 3 Eq., at pp. 35, 36. 1321, 1322]. 3(1866) L.R. 3 Eq., at p. 35. 78 CLR 243

distinction between a requirement imposed by statute and a rule that is adopted at an assembly. The Church as an unincorporated association never had a rule of its own: its members as citizens had the statute. The mutual contract between people who con- stitute themselves a Church of the Church of England in New South Wales must be based upon the Thirty-nine Articles of Religion and it must have regard to rites and ceremonies as being matters to which article 20 and article 24 are applicable. The Church did not adopt any internal rule that departure from the Prayer Book should be regarded as an user of the property not for the purposes of the Church of England. The Church, as a voluntary association, has shown mainly by its history that it never did adopt as a rule of its own a rule which Parliament prescribed for its citizens, con- sequently upon that Church coming to New South Wales, assuming identity with the Church in New South Wales, it cannot be accepted that the Church in New South Wales had the statutory rule which was never had by the Church in England. A plaintiff who takes upon himself the onus of proving a trust of the nature now under consideration, even conceding he could discharge it, does not dis- charge his onus by merely saying there is a departure from ritual. Upon a consideration of the identity of one body with another it is necessary to resort to fundamental doctrines (Free Church of Scotland V. Overtoun 1 ). The obligation of uniformity imposed upon the clergy was not universally obeyed. In fact there have been con- tinuous, various and wide-spread deviations as shown by the Report of the Royal Commission 1906, the evidence given herein by Canon R. C. Mortimer, Bishop Batty, Mr. N. C. Armitage and Dr. A. C. Don, the admissions made by the informant herein, and the resolutions of the Lambeth Conferences. It cannot be asserted that when the Church was founded in New South Wales it must be assumed to have brought here a submission to the many literal requirements which it had always repudiated in England. The Church in England claimed and exercised a right to deviate and particularly in its daughter churches. The evidence shows that in 1928 a revised Book of Common Prayer was rejected by the House of Commons, but, nevertheless, it has been widely used in England see also the preface to the Shorter Book of Common Prayer 1946. The history of the Church in England shows that the Church as a voluntary association has never shown that in a case of deviation it regards the property as being not used for itself, and that the Church, in the teeth of the Act of Uniformity 1662, achieved a measure of elasticity in its ritual. Prior to the Act of Uniformity

1(1904) A.C. 515. 78 CLR 244

244

HIGH COURT that elasticity was under the control of the Diocesan Bishop-his

jus liturgicum-the Act suspended it, but its exercise was, in a sense, again permitted by the Public Worship Regulation Act 1874 and thereafter the Bishop's "veto" has been freely and publicly used. The resolutions of the Lambeth Conferences must be taken as (N.S.W.)

strong evidence as to the attitude of the internal organization of the Church upon matters of ritual, and particularly as to whether con- ASHELFORD). formity with ritual is a sine qua non. Although the resolutions contain

some words approving of alterations and some words disapproving of them, every word, whether of approval or disapproving of them, is consistent with the view that these matters of liturgical con- formity or disconformity were matters which the Church was prepared to regard as being within its own organization. The conferences did not concern themselves with the peculiar legal constitution in England but with its own organization. It follows that it cannot be said that the Church of England in New South Wales regards a diversion from the Prayer Book as a diversion of property. Even the Parliament seems to have recognized that adherence to the liturgy was not regarded SO strictly and to have recognized an authority other than itself entitled to make exceptions to the Prayer Book: see Clerical Subscription Act 1865 (Imp.), Colonial Clergy Act 1874 (Imp.), Halsbury's Statutes of England, vol. 6, pp. 232, 1158, and the memorandum by Vaisey J. That memorandum points out that there was a jus liturgicum in bishops to direct rites and services. That right existed in England until the Act of Uniformity 1662 was enacted, and when the Church came to New South Wales, not bringing the Act of Uniformity, it would be logical that the Church brought its own rules. The Act of Uniformity never applied in New South Wales (Ex parte Rev. George King 1; Ex parte Ryan 2 Ex parte Thackeray 3; Fielding v. Houison 4 cf. Nelan v. Downes 5 ). No local statute ever applied the Act of Uniformity though ample opportunity occurred when the various Church Acts were enacted. It is made plain in the evidence that throughout the history of the Church in New South Wales there has been the like consistency in refusing to follow the Book of Common Prayer of 1662 as there has been in England since the Act was passed in 1662: see various Books produced by Bishops of various dioceses, and pamphlets showing forms of Divine Service for special occasions and authorized by the bishops, some of them being SO authorized by the Archbishop of

1(1861) 2 Legge (N.S.W.) 1307, at 2(1855) 2 Legge (N.S.W.) 876. 3(1874) 13 S.C.R. (N.S.W.) 1, at pp. 1314, 1325, 1327. 4(1908) 7 C.L.R., at pp. 423, 438. 5(1917) 23 C.L.R. 546, at p. 550. 78 CLR 245

Sydney. There is no writing relating to the consensual agree- ment that indicates rigidity of compliance with the Act was a rule of the voluntary association. The name Church of England in New South Wales only implies identity of doctrine and a general intention to proceed with the Church in England. It is incon- ceivable that the members of the voluntary association agreed, or must be deemed to have agreed, that they would adopt a rigidity in form of worship which did not apply to them by statute and which the Church in England had never perfectly observed. As shown by the evidence the conduct of the services of the Church in New South Wales excludes the possibility of such an implication. Article 24 of the schedule to the Church of England Constitutions Act Amendment Act of 1902 is indecisive; it does not expressly adopt the Book of Common Prayer it relates only to powers of Synod to create a binding alteration. It is really a clear example that the Church both in 1866 and 1902 avoided any express statement that the Book of Common Prayer must be rigidly followed, the inference being that it did not recognize any such obligation. The Church in New South Wales is in the same position as the Church in England minus the Act of Uniformity, that is the same as the de facto position of that Church. None of its services exactly follows the Book of Common Prayer, and the user of its property is not governed by a rule of liturgical rigidity as part of the trust. Trust obligations are obligations imposed on trustees; those trustees are bare trustees and are not required to police the services held in the churches; that is left to the clergy, the Diocesan Bishop and the Synod. As shown by the evidence of Chancellor K. M. Macmorran, Mr. N. C. Armitage and Dr. A. C. Don, the "Red Book" is a com- position taken from the Books of Common Prayer of 1662 and 1928. In England the use of such a book would not be corrigible. The identity of the Church is not destroyed by the use of the book, there not having been any departure from doctrine (Free Church of Scotland v. Overtoun 1; Halsbury's Laws of England, 2nd ed., vol. 11, p. 412, note (u) ). The property on which the book was used was being used for and by the Church of England in New South Wales. The trusts proved take the Church as they find it, that is as an unincorporated voluntary association with rules not enforceable at law or in equity except SO far as a breach of them may deprive a member of a right to the enjoyment of the property. A rule as to liturgy is not within the exceptions. The trusts cannot be construed as turning rules not legally enforceable as between the members into rules legally enforceable as against the trustees. The trust,

1(1904) A.C., at p. 612. 78 CLR 246

A. therefore, does not incorporate the rules of the Church as to liturgy.

The Church of England Constitutions Act Amendment Act of 1902 takes the trusts as it finds them and super-adds, SO far as consistent with them, the provisions of the schedule. It would not be consistent with the trusts to turn rules not legally enforceable into rules (N.S.W.)

legally enforceable, nor would the schedule do SO in regard to liturgy even if transcribed in its entirety into the trust instrument. It ASHELFORD). gives a limited power of legislation as to liturgy but it leaves the

existing rules as to liturgy as unenforceable as they ever were unless and until legislation by Synod otherwise provides. Even if there is a rule of rigid observance which is a term of the trusts, the whole of the facts in this case make it inappropriate that an injunction should go. It is not desirable in the public interest and the Court could not police it. The acts of the appellant are in accord with the acts of other bishops in England. The Church has means of correction and has not used them: see article 3 of the schedule to the Church of England Constitutions Act Amendment Act of 1902. The matter of the discretion of the Court in granting injunctions was dealt with in Attorney-General v. Birmingham, Tame, and Rea District Drainage Board 1 and Attorney-General v. Dean and Chapter of Ripon Cathedral 2.

[WILLIAMS J. referred to Attorney-General v. North Shore Gas Co. Ltd. 3.]

Although questions of doctrine are within the cognizance of the Court, the Court would consider it undesirable, in the exercise of its discretion, to intervene at all in a dispute as to liturgy. In considering the exercise of discretion in relation to a particular case the Court must look at the particular circumstances and not attempt to generalize. This is a case which by reason of the type of thing complained of and of the type of acquiescence the Court will stay its hand on the ground, inter alia, that these matters have been for three hundred years left to the Church Courts and can now well be left to those Courts. The order made is too rigorous. It seeks to compel what history shows to be impossible of performance. In any event the appellant should not be required to pay any part of the respondent's costs of evidence taken on commission in England. That evidence was taken with the charge of heresy as its prime object. In fact the charge was withdrawn by the respond- ent after the return of the commission, and at the trial the evidence of one of the respondent's witnesses was not read.

1(1910) 1 Ch. 48, at pp. 53, 60, 61. 2(1945) Ch. 239, at pp. 248-251. 3(1930) 10 L.G.R. (N.S.W.) 30. 78 CLR 247

Teece K.C. (with him Henry), for the respondent. The appellant has misconceived the nature of the suit. This is not a suit by a member of an unincorporated association to enforce rules against trustees or other members of the association, but it is a suit by the Attorney-General, not a member, for the administration of a charitable trust. The nature of the jurisdiction of the court in suits of this kind is shown in Ludlow Corporation v. Greenhouse 1 and Attorney-General v. Dublin Corporation 2. The suit is one in ASHELFORD). which the Attorney-General on behalf of His Majesty informs the court there is an abuse in the administration and use of property devoted to charitable trusts (Solicitor-General v. Wylde 3 ). In England where the Church of England is established there never has been an appeal to the court of equity to restrain a breach of trust regarding property devoted to the use of the Church of England but there are many decisions of the court in respect of non-conformist bodies (Attorney-General v. Pearson 4; Attorney- General v. Welsh 5; Milligan v. Mitchell 6; Attorney-General V. Munro 7 Free Church of Scotland v. Overtoun 8 ). Where the court is informed by the Attorney-General of a breach of a charitable trust it is its duty to correct the administration and it has not a mere discretion (Attorney-General v. Pearson 9; Free Church of Scotland v. Overtoun 10; Shore v. Wilson 11 ). The fundamental rules of the Church of England in New South Wales must be ascertained in order to determine whether or not there has been a breach of trust. There is no distinction in the Church of England in England between the rules of the Church and rules imposed upon it by law. The fact that the Church of England in England is established by law and the resultant difference between rules of the Church and rules of ordinary voluntary associations were referred to in Roffe-Silvester v. King 12. The rules of the Church are all rules of law and are all enforceable by the court. Not only is a departure from doctrine a breach of trust but SO also is a departure from ritual or form of service; such a departure is not a mere breach of internal rules. Courts have continually granted injunctions against the use of a form of service Tudor on Charities, 4th ed. (1906), p. 248 5th ed. (1929), p. 235. A breach of trust

The Bishop claims that the order of administration of Holy Com- munion in the Red Book falls within the limits of these proposals and that such order is not inconsistent with the order of adminis- tration of Holy Communion permitted in the Church of England in

78 CLR 308

England. The evidence of high dignitaries of the Church of England

taken on commission in England establishes that the text of the service in the Red Book contains nothing in the way of doctrine which differs in any essentials from that permitted in the 1662 and 1928 books. It is said to be a combination of these two Books. (N.S.W.)

The three introductions into the Red Book which are particularly (AT THE

objected to however are the rubric which refers to the consecration ASHELFORD).

" when the bread and wine become the Body and Blood of our Lord Jesus Christ, by the power of the Holy Ghost. This prayer is said in a low voice, to express the silence of Christ at his passion, and to show the reverence and awe which priest and people ought to feel at such a time", the ringing of the sanctus bell, and the making of the Sign of the Cross by the priest in the course of the Absolution and Benediction. None of these introductions are sanctioned by the book of 1662 or the book of 1928, SO that the order of adminis- tration of Holy Communion in the Red Book is not authorized by the resolutions of the Upper House of the Convocation of Canterbury in 1929 and seems to fall within the declaration that it is inconsistent with Church order to use any deviations from or additions to the form and order contained in the book of 1662 other than those which appear in the book of 1928.

But none of these circumstances pleaded, in my opinion, afford any defence to the present suit. It is not a proceeding against the Bishop for an ecclesiastical offence for failing to observe the direc- tions contained in the Book of Common Prayer relating to the administration of Holy Communion. It is a suit for the adminis- tration of the charitable trusts of property in which the Bishop is charged with committing breaches of those trusts. If a synod were to legislate under articles 18 and 19 of the schedule to the Act of 1902 to set up a tribunal for the trial of clergyman licensed by the bishop within the diocese for offences, it might well be that the ordinance could provide that such clergy should only be prosecuted for offences against doctrine or ritual with the permission of the bishop. But the use of the veto would not prevent violations of doctrine or ritual being breaches of the trusts of Church property if such violations were in law breaches of such trusts. The general power of legislation conferred on a synod of a diocese by article 3 of the schedule to the Act of 1902 does not permit the synod to divert property the subject of any specific trust. Under S. 5 of the Act the constitutions in the schedule are subject to such trusts. If a clergyman in the Diocese of Bathurst commits an offence against doctrine or ritual in a church which is not trust property,

78 CLR 309

the only question is whether he has committed an offence for which he can be prosecuted personally. But if he commits such an offence in a church which is subject to a charitable trust, then the question is whether he has committed a breach of that trust. The court of equity is not concerned with the personal offences of clergymen against ecclesiastical laws but it is concerned with the acts and omissions of clergymen or any other members of the community which are breaches of trust of property. The deviations and variations from the Book of Common Prayer introduced by the Book of 1928 have not been sanctioned by the English Parlia- ment and are therefore illegal deviations and variations in England. It was recognized, as needs it had to be, by the Church Assembly that these alterations could only be lawfully made if they were sanctioned by both Houses of Parliament in accordance with the Enabling Act and received the Royal Assent. When the House of Commons refused its sanction the Convocation of the Upper House of Canterbury decided to break the law. But it is the duty of a court of law to uphold the law and the only service which, in my opinion, is a lawful service of the Church of England in England and therefore in the diocese of Bathurst is a service which in order and form complies with the Book of Common Prayer with such amendments as are allowed by the Act of Uniformity Amendment Act of 1872.

The crucial question is whether it is a breach of trust to conduct a service of public worship in a church erected on land subject to a trust to erect a Church of England which is not a lawful service of the Church of England. It was contended that it would not be a breach of such a trust to hold divine services in the church which were not in the order and form prescribed by the Act of Uniformity provided there was no departure from the fundamental doctrines of faith of the Church or as it was put provided the church was not used for a non-Anglican purpose. I cannot accept this contention. In Gore-Booth v. Bishop of Manchester 1, Lord Coleridge said "It may be that some inference as to doctrine may be inferred from the practice. But if the practice be legal, the fact that some heretical opinion may be inferred from it does not make it illegal. And if the practice be illegal, the fact that only an orthodox doctrine can be inferred from it will not make it legal." In Combe V. De La Bere 2 Lord Penzance said :- Exact observance of the Prayer Book is enjoined by the Act of Uniformity, and to fail to

1(1920) 2 K.B. 412, at pp. 419, 2(1881) 6 P.D. 157, at p. 173. 78 CLR 310

H. C OF A. observe it is an offence not only against that statute, but against

the Queen's ecclesiastical laws

But it is also an offence against the canons of the Church. The 14th Canon declares that

All ministers likewise shall observe the orders, rites, and ceremonies prescribed in the Book of Common Prayer: as well in reading the (N.S.W.)

Holy Scriptures, and saying of prayers as in ministration of the (AT THE

Sacraments; without either diminishing in regard of preaching, ASHELFORD). or in any other respect, or adding anything in the matter or form

thereof,' and in further pursuance of the same object, the 36th Canon provides in imperative language that every clergyman about to be admitted by institution to any ecclesiastical living shall sign a declaration amongst other things, that he ' will use the form in the said book prescribed, in public prayer and administration of the Sacraments and none other.' In this unmistakeable manner have the canons of the Church added their sanction and authority to that of the Legislature for the strict observance of the forms prescribed by the Prayer Book, to the exclusion of all other forms not SO prescribed." It is to be noted that the English Gifts for Churches Act 1803 and the Gifts for Churches Act 1811, which are intituled Acts to promote inter alia the building of churches and which authorize in the case of the first Act private persons and in the case of the second Act the Crown to give land for the purposes of the Acts, authorize gifts for or towards erecting any churches where the liturgy and rites of the United Church of England and Ireland are or shall be used or observed.

The purpose of erecting a church is to provide a building for public worship. If it is a fundamental rule of the Church of England that the public worship of that Church shall be conducted in a particular order and form, then the conduct of public worship in a church of that Church otherwise than in accordance with that order and form is not a lawful service of the Church of England and is a misuse of the church. The church is not being used for the purpose and therefore not in accordance with the trust for which it was erected. The misuse may be restrained by an appropriate injunc- tion (Milligan v. Mitchell 1; Attorney-General v. Welsh 2 Attorney-General v. Murdoch 3 ). The court has a discretion and would only grant an injunction in respect of substantial deviations or variations from the order and form in the Book of Common Prayer. But it cannot be said that the deviations and variations from the proper order and form of administration of Holy Com-

1(1837) 3 My. &Cr. 72 [40 E.R. 2(1844) 4 Hare 572 [67 E.R. 775]. 3(1849) 7 Hare 445 [68 E.R. 183]. 78 CLR 311

munion complained of in the Red Book are not substantial. The evidence establishes that communicants of the Church of England may believe either in the doctrine of the Real Presence or in the Receptionist theory and that the order and form of service in the Red Book would be acceptable to believers in the former but unacceptable to believers in the latter doctrine. In Sheppard V. Bennett 1, Lord Hatherley L.C., in delivering the judgment of the Privy Council, said :- In the public or common prayers and devotional offices of the Church all her members are expected and entitled to join; it is necessary, therefore, that such forms of worship as are prescribed by authority for general use should embody those beliefs only which are assumed to be generally held by members of the Church.

If the Minister be allowed to introduce at his own will variations in the rites and ceremonies that seem to him to interpret the doctrine of the service in a particular direction, the service ceases to be what it was meant to be, common ground on which all Church people may meet, though they differ about some doctrines."

Exception was taken to his Honour's order that the Bishop should pay to the relators half of the costs of the writ of commis- sion to take evidence in England and of the taking of evidence thereunder, but I can see no reason for interfering with the exercise of his Honour's discretion.

For these reasons, subject to modifying the decree in the manner about to be mentioned, I would dismiss the appeal with costs.

Decree varied-

1by inserting in the declaration thereby made after the words " the Diocese of Bathurst" the following words "specified in the schedule to this decree": 78 CLR 312

said churches of the said Red Book and from making the Sign of the Cross and ringing or causing to be rung a Sanctus Bell during his administration in the said churches of the Sacrament of Holy Communion: (5) adding a schedule containing the names of the churches (N.S.W.)

in exhibit "J" and that of All Saints Church of England at Canowindra. ASHELFORD).

Appeal otherwise dismissed with costs. Solicitors for the appellant, R. C. Roxburgh &Co. Solicitors for the respondent, Allen, Allen &Hemsley.