Zucco & Ors v Italian Aog Pentecostal Church & Ors No. Scgrg-97-1259 Judgment No. S6824

ZUCCO AND OTHERS v ITALIAN ASSEMBLY OF GOD PENTECOSTAL CHURCH INC AND OTHERS
[1998] SASC 6824

Chamber Application
Bleby J

Italian Assembly of God Pentecostal Church Inc (the first defendant) is incorporated under the Associations Incorporation Act 1985. It is a church which operates and has a place of worship in an Adelaide suburb, largely for the purposes of the Italian community, although its membership is not restricted to that. Membership is available to “all those who give evidence of their faith in the Lord Jesus Christ, and who voluntarily subscribe to (the) tenets of faith (of the Assembly) and agree to be governed by its constitution and by‑laws” (Constitution, Article VII). Article VII provides for a category of active membership, which consists of those who are on the membership roll and who constitute the legal voting membership of the Assembly. There is also a category of inactive membership consisting of enrolled members who “without good cause absent themselves from the services of the Assembly for a period of three consecutive months or more, and who cease to contribute of their means to its support, who may be out of harmony with its teachings or its ministries, or who shall be under charges for misconduct, or who may have fallen under condemnation through sinful or worldly practices”. Inactive members have no voting rights.
Article VIII provides that there should be a Board of Deacons of not less than three members of the Assembly to whom, together with the Pastor, is committed the “spiritual and administrative management of the Assembly”. The constitution provides for many functions to be performed by the Board of Deacons or by the Pastor and the Board of Deacons. The Pastor is the Chairman of the Board of Deacons (Article XIV). A member of the Board of Deacons is to be elected by a majority vote at the annual business meeting of the Assembly (Article IX(2) and Article XV(2)). Article XV(2) also provides:
“The term of office for the Board of Deacons shall be for four years from the date of election.”
Vacancies on the Board of Deacons are filled by the Board selecting from the list of candidates at the previous election the candidate or candidates who received the next largest number of votes. If there are no such candidates, a vacancy may be filled by any member of the Assembly in good standing (Article XVI(2)(c)).
Article XIV(2) provides:
“(2) The Board of Deacons is chosen to serve the Church and therefore shall act in an advisory capacity with the pastor in all matters pertaining to the assembly in its spiritual life and in the ministry of its ordinances. They shall act in the examination of applicants for membership, and also in the administration of the discipline of the assembly.
...In the event the assembly is temporarily without a pastor, or the pastor is unable to be present, the Board of Deacons shall be empowered to provide for its own chairman from its membership in order to transact business for the assembly.”
Not surprisingly, the Pastor occupies a key role in the organisation of the Assembly. Article XIV(1) provides:
“(1) The Pastor shall be considered as the spiritual overseer of the assembly and shall direct all of its activities. He shall be the president of the corporation and shall act as chairman of all the business meetings of the assembly and of the Board of Deacons. He shall be an ex‑officio member of all committees or departments. He shall provide for the services of the assembly and shall arrange for all special meetings, conventions or revival campaigns. No person shall be invited to speak or preach in the assembly without his approval.”
Article XV(1) provides that the Pastor is elected by a secret ballot at the annual business meeting of the Assembly or at a special meeting called for that purpose. The Pastor must command a two‑thirds majority vote for an election. The Pastor may be elected to serve for a fixed term of one or two years or for an indefinite term as may be determined at the time of his election. Article XVI(1) contains the following provision:
“Where a vacancy in the pastorate shall occur, a supply shall be arranged for by the Board of Deacons until a pastor shall be chosen as prescribed in (a) of this Article.”
Article XVII(3) provides:
“(a).. Any member of the Assembly who shall wilfully absent himself from the regular services for a period of three consecutive months, or who shall be under charges, shall be temporarily suspended from active voting membership pending investigation and final decision in his case.
(b)Unscriptural conduct or doctrinal departure from the tenets of faith held by this Assembly shall be considered sufficient grounds upon which any person may be disqualified as a member.”
It is not entirely clear from the constitution how charges are brought. It may be that they are catered for by Article XVII(5) which vests in the Pastor and the Board of Deacons authority to revise the membership roll and to remove a name for cause. Appeal may then be made to the Board for reconsideration with a further appeal to the congregation.
The plaintiffs are a group of eight persons who claim to be members of the first defendant. They commenced these proceedings on 27 August 1997. By their Statement of Claim they allege that on 30 June 1997 the defendants caused a letter to be forwarded to each of them asserting that their active membership of the Church had been suspended.
It is not in dispute that the three personal defendants, Verlingieri (the second defendant), Morganella (the third defendant) and Zotti (the fourth defendant) were at all material times validly appointed as deacons of the Church.
On 31 December 1996 the former Pastor of the Church, Vincenzo Borromeo, resigned as Pastor. It is common ground that no other pastor has as yet been elected in accordance with the requirements of Article XV(1). The plaintiffs allege that at that time the second, third and fourth defendants were the only deacons holding office as members of the Board of Deacons. It is further alleged that the second defendant asserted authority to send the letters of suspension as Pastor of the Church. They allege that there had been no valid appointment of the second defendant as Pastor, and that the action suspending them could only be taken by the Pastor together with the Board of Deacons, which must comprise three deacons separate from the Pastor. They therefore allege that their suspension is invalid. They also deny any conduct which would have justified their suspension in any event. They seek a declaration that the second defendant has not held the position of Pastor and an injunction restraining him from acting or holding himself out as Pastor. They further seek an order that an annual business meeting or a special meeting of the Assembly be held for the purpose of electing a new Pastor, and a declaration that they remain as active members of the Church and are entitled to vote at any such meeting. The plaintiffs do not seek a declaration that the Board of Deacons is not validly appointed or does not hold office.
The defendants allege that when Mr Borromeo resigned there were in fact five members of the Board of Deacons, namely the three personal defendants and two others who have since been expelled. They allege that by resolution of the Board of Deacons on 1 January 1997 the second defendant was appointed to serve as acting Pastor in accordance with Article XVI(1) of the constitution. The appointment was therefore valid, as was the resolution to suspend the plaintiffs. They say that there is nothing in the constitution that prevents a deacon from serving as acting Pastor. No relief is claimed by way of counter‑claim.
Save for an outstanding appeal against a decision of a Master dismissing the defendants’ application for a direction that the trial proceed by way of affidavit evidence only, all interlocutory steps appear to have been completed, and the matter is otherwise ready for trial.
It appears that since 1 January 1997 the second defendant has continued to conduct services of worship in the Church without objection and without any attempt to restrain him from doing so, at least until after the month of July 1998. I have also noted that there has been no challenge to the appointment of the three personal defendants as members of the Board of Deacons. However, the fourth anniversary of the date of their election occurred on 31 July. The view appears to have been taken by the plaintiffs that the defendants ceased to hold office as from that day by virtue of Article XV(2) of the constitution, and whatever the position of the second defendant may have been as acting Pastor of the Church, he no longer held that office either after that date. Since then, some of the plaintiffs and others have disrupted services taken by the second defendant or have caused such an obstruction to the commencement of such services that they had to be abandoned.
By application dated 14 August 1998 the defendants sought orders in the following terms:
“2..... A declaration that on a true construction of the Constitution of the firstnamed Defendant, the second, third and fourth named Defendants continue to hold office as Deacons of the firstnamed Defendant notwithstanding the expiration of their term of office on 31 July 1998.
3.A declaration that, upon a true construction of the Constitution of the firstnamed Defendant, the secondnamed Defendant has not ceased to be Acting Pastor of the firstnamed Defendant by reason only of the expiration of his term of office as Deacon of the firstnamed Defendant on 31 July 1998.
4...... An injunction restraining the Plaintiffs
4.1... from disturbing, hindering or molesting the secondnamed Defendant in the performance of the function of officiating at public worship in the first Defendant’s church at 76 First Avenue, St Peters in the State of South Australia; and
4.2 from disturbing, hindering or molesting members of the congregation of the firstnamed Defendant in the performance of public worship at the said church.”
That application was made specially returnable on the same day. On that day I ordered that the plaintiffs be restrained from interfering with the performance by the second defendant of the functions pertaining to the office of acting Pastor of the Church conducted by the first defendant until further order. That order was intended as an interim order only pending determination of the defendants’ application. In the meantime, on 17 August 1998 the plaintiffs have filed an application seeking the following relief:
“1..... A declaration that, as from the 1st of August 1998, the second, third and fourth defendants no longer hold the position of Deacon of the first defendant.
2.A declaration that, as from the 1st of August 1998, the second defendant no longer holds the position of acting pastor of the first defendant.
3...... An interlocutory injunction restraining the second, third and fourth defendants from asserting the title of Deacon or acting as Deacon of the first defendant until further order.
4.An interlocutory injunction restraining the second defendant from asserting the title of acting pastor or acting as acting pastor of the first defendant until further order.
5...... An order appointing a Receiver of the first defendant pursuant to Section 29(1) of the Supreme Court Act, Section 61 of the Associations Incorporation Act, 1998 and in Equity.”
I deal first with the application contained in paragraph 2 of the defendants’ application and that contained in paragraphs 1 and 3 of the plaintiffs’ application. These relate to the question of whether the Board of Deacons currently holds office under the rules of the first defendant. As I mentioned before, it is common ground that at all material times until 31 July 1998 the second, third and fourth defendants were properly members of the Board of Deacons. The only challenge thus far in the action has concerned their ability to appoint the second defendant as acting Pastor and their authority to cause the purported suspension of the plaintiffs. Their appointment as deacons has not been challenged in the principal proceedings.
Paragraph 1 of the plaintiffs’ interlocutory application seeks a declaration in the nature of final relief. It is a declaration which has not been claimed in the Statement of Claim or in any of the pleadings to date. Whether or not they presently hold office cannot affect the principal relief presently being sought by the plaintiffs. It follows that in my opinion paragraphs 1 and 3 of the plaintiffs’ interlocutory application cannot be said to be incidental to their claim but really raise quite a different issue. Likewise, the relief claimed in paragraph 2 of the defendants’ interlocutory application can have no bearing on the granting or otherwise of the principal relief sought against them.
If by way of amendment or separate proceedings the question of the tenure of the members of the Board of Deacons becomes the subject of an application for principal relief, the question may arise as to whether they should be restrained from acting in the meantime, and what alternative provision (if any) should be made for the management of the Association. In those circumstances the question of whether they continue as de facto officers or are lawfully holding over may arise. However, it is not necessary on this application to resolve that question, although I heard substantial argument on it.
It also follows that if the position of the Board of Deacons is not currently under challenge in the principal proceedings, there is no reason to consider granting the relief claimed in paragraph 5 of the plaintiffs’ interlocutory application, that is the appointment of a receiver. There is no other evidence before me which would justify such appointment on any other grounds.
I turn then to the position of the second defendant and to the relief claimed in paragraph 3 of the defendants’ application, and in paragraphs 2 and 4 of the plaintiffs’ application. The validity of the appointment of the second defendant as acting Pastor is challenged in the principal proceedings. What the plaintiffs now claim is an additional reason why the second defendant now no longer holds office. It is alleged that that is because his office as Deacon has expired, that it was in that capacity that he was appointed acting Pastor, and his appointment as acting Pastor falls with the termination of his office as a Deacon. Once again, the question of whether he presently validly holds the office of acting Pastor cannot affect the granting or otherwise of the principal relief claimed by the plaintiffs. As in the case of the deacons, paragraph 2 of the plaintiffs’ interlocutory application seeks final relief in respect of something which is not the subject of the plaintiffs’ present claim.
In the case of paragraph 3 of the defendants’ application, that too seeks a declaration concerning a matter which can have no bearing on the outcome of the principal proceedings, and in any event it requires an assumption to be made that the second defendant was validly appointed acting Pastor on 1 January 1997, a matter which is the subject of dispute on the pleadings. In fairness to Mr Manetta, who appeared for the defendants, he conceded that the relief sought on both paragraphs 2 and 3 of his clients’ interlocutory application was not necessary in order to secure the relief which they seek in paragraph 4.
There is another reason why the relief sought in the paragraphs I am now discussing should not be granted. It is assumed by both applications and by the pleadings that if the second defendant was validly appointed to a position on 1 January 1997, it was to the position of acting Pastor. The office of acting Pastor is not referred to in the constitution of the Church. The only power that the Board of Deacons had upon the resignation of Mr Borromeo and the creation of the vacancy in the office of Pastor was to arrange for “supply”, “until a pastor shall be chosen as prescribed in (a) of this Article.” (Article XVI(1)). The reference to “(a)” is a misnomer and can only refer to the preceding paragraph of Article XVI(1), which provides for election of a pastor at the end of a fixed term appointment, and which in turn picks up the procedure contained in Article XV(1), namely election by the Assembly.
There are therefore questions expressly raised on the pleadings as to whether the Board of Deacons could validly appoint an acting Pastor and whether they did so, or merely arranged for “supply”. If the latter, there arises for determination the powers of a person who is the subject of an arrangement for “supply”. I cannot assume that such a person has all the powers and functions of the pastor during a vacancy. No argument has been addressed to me on that question. However, I would not make an order on either application before me based on an assumption that he does. That is one of the questions to be resolved at trial. Therefore, I am not prepared to grant the relief sought in paragraph 3 of the defendants’ interlocutory application and in paragraphs 2 and 4 of the plaintiffs’ application.
I turn to paragraph 4 of the defendants’ application. It is plain that the second, third and fourth defendants held office as deacons on 1 January 1997, and had power to arrange for supply. Whatever else it may mean, I consider that arranging for supply means making arrangements for the ongoing conduct of the public worship of the Church. There is a convention in many Christian churches and congregations for the arrangement of “supply” for the conduct of public worship during a vacancy in the office or during the absence of the parish priest, incumbent or minister. That is a meaning given recognition in the Shorter Oxford English Dictionary, where one of the meanings attributed to the word is:
“Now only in ref. to persons: The act, or position, of supplying a vacancy, or officiating temporarily instead of another, esp. as a minister or preacher; on s. = acting in such a capacity 1580.”
That does not mean that such a person necessarily has all the powers and functions of the person whose vacancy or absence he or she is relieving.
To the extent that “supply” includes at least the function of leading public worship, there is a serious question to be tried that the Board of Deacons can so arrange for one of their own number to carry out that function without necessarily assuming all the functions of the pastor under the constitution, and therefore coming within the scope of the plaintiffs’ challenge in the Statement of Claim. There is an arguable case that the Board of Deacons validly appointed the second defendant at least to perform that function. Once having made that arrangement as a continuing one, it matters not that the Board of Deacons may not now hold office. I pass no judgment on that question. The arrangement of supply, at least for the purpose of conducting public worship, continues.
The balance of convenience for the continuation of the essential functions of the Church clearly demands that public worship continue for those who wish to participate in it. It also demands that the second defendant, having been at least appointed to perform that function during the vacancy, be enabled to continue to do so until a pastor is appointed. The balance of convenience is further weighted in favour of his doing so by the fact that, although the dispute in the Assembly has been simmering for almost 18 months, there has, until now, been no challenge to the second defendant’s right to continue to perform that function.
I am satisfied on the material before me that there have been attempts to disrupt the public worship led by the second defendant since 31 July and a strong case is therefore made for an interlocutory order pending trial to enable him to continue to do so. Having considered the matter, I think that the terms of the interim injunction which I granted are too wide and make the assumptions that I have not been prepared to make in dealing with these applications. There is, however, a strong case for the granting of an interlocutory injunction in the terms of paragraph 4 of the defendants’ application, and I so order. I stress, however, that such an order is only pending trial and says nothing about the second defendant’s entitlement to the office of pastor of the Church.

There is a suggestion in some of the affidavits before me of attempts by the personal defendants and those aligned with them to exclude persons from public worship. There is no application before me with respect to such alleged conduct, and it is not the subject of any order I now make. However, I trust that with the order I now make the public worship of the Church for those who wish to participate in it will continue unimpeded until the broader issues are resolved.
The plaintiffs also seek directions for an early trial of the matter. I have a great deal of sympathy for that application. It seems to me that it was never intended by the constitution that arrangements for “supply” should continue for longer than necessary to organise the election of a replacement pastor. It is now over 18 months since the previous pastor resigned. It is not apparent to me why a replacement pastor could not have been elected between the months of January and June 1997, but then I am not privy to all the events which occurred during that time. Since the purported suspension of the plaintiffs, however, further action in that regard has obviously been paralysed by these proceedings and the demand that the plaintiffs are entitled to vote at any such meeting. It is imperative that their status be resolved as soon as possible so that the Assembly can proceed to the election of a pastor.
There is currently outstanding, however, the appeal to which I have already referred against the failure of a Master to direct that the trial proceed by way of affidavit evidence only. I am unable to take any steps towards the early trial of the matter whilst that appeal is outstanding. However, if that question can be resolved, and subject to there being no further amendments to the pleadings, I would be prepared to give further consideration to that aspect of the plaintiffs’ application. I will also hear the parties as to the costs of these applications.

[1998] SASC 6824

27 August 1998