Zucco & Ors v Italian Aog Pentecostal Church & Ors No. Scgrg-97-1259 Judgment No. S6833

ZUCCO AND OTHERS v ITALIAN ASSEMBLY OF GOD PENTECOSTAL CHURCH INC AND OTHERS
[1998] SASC 6833

Application For Immediate Relief
Bleby J

The plaintiffs are eight persons who by their original Statement of Claim challenge the position of the second defendant (Mr Verlingieri) as acting pastor of the first defendant (“the Church”) and who seek a declaration that they are entitled to vote at business meetings or special meetings of the Assembly. The genesis of the action is a purported suspension of the plaintiffs in June 1997 from active membership of the Church by the second, third and fourth defendants constituting the Board of Deacons of the Church at the relevant time.
By an amendment to the Statement of Claim they now seek further relief in the following terms:

6...... A declaration that, as from the 1st day of August 1998, the second, third and fourth defendants no longer hold the position of Deacon of the Church.
6A.A declaration that the term of office of the second, third and fourth defendants as Deacons expired on the 31st day of July 1998 and that thereafter they did not hold nor were they entitled to assert a right to hold or to carry out any act or activities in the office or position as a Deacon of the Church.

An order that the second, third and fourth defendants be restrained from asserting the title of Deacon or acting as Deacon or carrying out any act or activities purportedly as Deacon of the Church.
An order that a Receiver be appointed to the Church pursuant to s29(1) of the Supreme Court Act, Section 61 of the Associations Incorporation Act and In Equity.

A declaration that the second, third and fourth defendants had no authority or power to incur debts or expend monies on behalf of the Church from the 1st of August 1998 and all times thereafter.

The plaintiffs have also applied for immediate relief pursuant to Rule 25.02 of the Supreme Court Rules 1987 in respect only of paragraphs 6-8 inclusive of the prayer for relief.
The issue came before me in a different form by way of a claim for interlocutory relief which I refused on 27 August 1998 for reasons which I then gave (Judgment No S6824). The relief was then declined because, on the pleadings as they then were, the present relief now claimed was not sought as final relief, and the interlocutory orders sought could not have affected or have been incidental to the granting or otherwise of the principal relief then being claimed. That position is now different, and I am asked to rule on the argument I then heard to the effect that the Board of Deacons no longer holds office in the Church. Although the relief claimed now comes before me by way of application for immediate relief, neither party sought to adduce further evidence or argument, and both were content to rely on the material and arguments placed before me on the previous interlocutory application.
I am satisfied that it is appropriate to determine the question by way of an application for immediate relief under Rule 25.02. There are circumstances of urgency which relate to the ongoing management of the Church which need to be resolved and the question is capable of speedy resolution without trial. The facts are in relatively small compass and there is no dispute about them. It is also important that the question be resolved either before or at the very latest at the same time as the resolution of the claim for the other relief so that whatever is to happen in consequence of the granting or refusing of that relief can be implemented by the person or persons responsible for the management of the affairs of the Church.
Article VIII of the Constitution of the Church provides that there shall 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. It is not necessary to elaborate on the function of the pastor. I have already done that to some extent in my previous judgment. However, the pastor is the Chairman of the Board of Deacons (Article XIV), but Article XIV(2) also provides:
“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.”
Although the position of the second defendant as acting pastor is under challenge in the proceedings, it is quite clear from this Article that even if the assembly is without a pastor, the Board of Deacons may continue to function by providing for its own chairman.
Because they have some bearing on the resolution of the present question, it is necessary to set out some other relevant provisions of the Constitution relating to the election and function of the Board of Deacons. Article IX relevantly provides:
“(2) There shall be an annual business meeting of the assembly, at which time the election of officers shall take place, and the report of all officers shall be read. This meeting shall be held each year at a date to be determined by the Board of Deacons at a time and place to be announced by the pastor. Due notice is to be given on the two Sundays prior to the date of meeting.
...
(5) The Board of Deacons, with the pastor, shall meet monthly for the transaction of routine business for the assembly, time and place to be announced by the pastor (sic)....”
Article XV is important, as it forms the cornerstone of the plaintiffs’ argument. It relevantly provides:
“(2) The Board of Deacons which shall consist of not less than three members of the Assembly, and may be nominated by the Pastor, or by a nomination Committee, or from the floor, and shall be elected by a majority vote at the general meeting for elections. The term of office for the Board of Deacons shall be for four years from the date of election.”
The only other rule which need be set out is Article XXII:
“The regular order of business for the annual meeting of the Assembly shall be as follows:
1...... Devotional.
2.     Reading of previous minutes by Secretary.
3...... Report of Treasurer.
4.     Report of Committees.
5...... Unfinished business.
6.     Election of Officers.
7...... New Business.
8.     Adjournment.”
Until recently 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 1998, and the argument of the plaintiffs is that their term of office expired on that day by virtue of the last sentence of Article XV(2) quoted above.
It is clear from the rules I have quoted that the Board of Deacons is required to meet monthly for the transaction of routine business (Article XIV(5)). They are custodians of the property of the assembly, are responsible for its maintenance, and may meet “as necessity may demand, upon the request of the pastor” (Article XIV(3)). These duties and other duties referred to in the rules indicate that they have a continuing function to perform.
They are to be elected at the annual business meeting of the assembly. The rules do not determine when that is to be held other than that it is to be held “each year at a date to be determined by the Board of Deacons”. The only other constraint on the time of holding an annual meeting may be contained in s39 of the Associations Incorporation Act 1985 if the Church is a prescribed association for the purposes of that Act. Whether or not it is a prescribed association depends upon the Church’s gross receipts for the previous financial year. I have no information as to whether the Church is a prescribed association. If it is, it is required to hold an annual general meeting within five months after the end of the financial year of the association. The Constitution does not prescribe when the financial year of the Church begins or ends. It is quite clear, however, that even if the Church is a prescribed association, the time span in a year in which an annual meeting be held can be quite considerable. In the year in which it is necessary to elect members of the Board of Deacons, it is unlikely to coincide exactly with the fourth anniversary of the election of members of the Board of Deacons.
Because the Board has an important ongoing function, reading the rules as a whole so that they can work as a practical document requires the last sentence of Article XV(2) be read as being directory only rather than mandatory. In my opinion it requires the construction that the term of office of the Board of Deacons will be until their successors are elected. That will occur at the annual meeting to be held in the fourth year after they were originally elected, when a fresh election is to take place. It does not mean that their tenure of office terminated on the fourth anniversary of their election. To construe the rule in that way leads to the absurdity that in some years there may be two functioning Boards of Deacons for portion of the same year or an hiatus, possibly of many months, when there is no Board of Deacons in office. The situation could also arise where a Board of Deacons ceases to hold office and there is no‑one capable of determining the date on which the annual business meeting of the Assembly is to be held in accordance with the requirements of Article IX(2).
There is no suggestion on the information before me that there has been an annual business meeting held in 1998 such as might have brought the term of office of the present Board of Deacons to a close. Indeed, there are certain practical and legal difficulties in doing so whilst the present litigation continues. When the annual business meeting takes place is not for this Court to determine, at least in these proceedings, and until it does occur, and a further election takes place, the present Board of Deacons continues to hold office.
If I am wrong in my construction of the Constitution, and the personal defendants did cease to hold office under Article XV on 31 July, then in my opinion they are entitled to continue to exercise the functions of the Board by way of holding over until a fresh election is held. In Robarts v The Mayor &c. of London (1882) 46 LT 623 the plaintiff claimed to be entitled to the office of Remembrancer of the City of London for life. There were a number of arguments put opposing that proposition, one of which was that under the then standing orders, the appointment was for a year, that the anniversary of his appointment had passed, that he was Remembrancer for the new year and could not be removed until the end of it. Kay J said, at p629:
“The chief case relied upon is a case in Strange, of Foote v. Prowse, Mayor of Truro. There ‘The mayor was to be chosen out of the aldermen, who are annuatim eligendi; the fact on a trial at bar was, that the aldermen present at his election had been in several years, and had none of them been re‑elected within a year. On a bill of exceptions, the court was of opinion, that the election of the mayor was void for want of an annual election of the aldermen. But upon error in the Exchequer Chamber, and two solemn arguments, the judgment was reversed; and it was held, that the words annuatim eligendi were only directory, and that an annual election of them was not necessary to make an election in their presence good; and King, C.J. de C.B., who delivered the opinion of the court, compared it to the case of a constable and other annual officers, who are good officers after the year is out, until another is elected and sworn. The reversal affirmed in Parliament.’ This case is cited as an authority for the proposition that, if a constable be allowed to remain over his year, he is a constable for another year, and cannot be removed until the end of another year. The case determines exactly the opposite of that. It determines that, pending the current year, if there be an election of a new constable, that is ipso facto a removal of the other constable who is in the office. So far from its being an authority for the purpose cited, I take it to be an authority the other way. I gather this proposition from it, that a person who is to be elected annually to an office, if he is elected, and his year expires, and nothing is done, but he is permitted to continue the office, holds it, in fact, on sufferance, and at the will of those who originally elected him; and though it might be that, during the first year, they could not turn him out, during the second year they may turn him out by the mere fact of the election of somebody else. On that authority it seems to follow that, supposing a person not to have been re‑elected at the moment of the expiration of the year for which he was properly Remembrancer, then it is possible, if that analogy applies to the case, that he may continue on sufferance, until that sufferance or will of the people who have the power of appointing is by some act put an end to...”

The decision was subsequently affirmed by the Court of Appeal: Robarts v Mayor and Corporation of London (1883) 49 LT 455, but the Court of Appeal did not deal expressly with that argument.

Mr Besanko QC for the plaintiffs acknowledges that principle, but argues that it is limited to officers appointed annually. He relies on the passage which I have quoted from the judgment of Kay J in Robarts (supra) and on Foote v Prowse, Major’de Truro 1 Strange 625; 93 ER 741 where it was held that a constable and “other annual officers” remain in office until a successor is elected. He also referred to Bray v Somer (1862) 2 B & S 374; 121 ER 1113. However, I do not find that case particularly helpful, as it was dealing, in part, with the construction of Canon 118 of the Canons of the Church of England which provided that church wardens and sidesmen “shall be reputed ever hereafter to continue until the new church wardens, that shall succeed them, be sworn”.
I can see no reason why the principle decided in Robarts (supra) should not be applied to any office of limited duration, even beyond one year. The fact that the only cases decided seem to have related to an office which was held for only one year does not establish the proposition that the principle only applies to such offices. Of course, the principle may not apply if the rules are drawn in such a manner as to make it quite clear that the tenure of the office ceases at a particular time. Such was the position held to apply in R v Philips (1720) 1 Stra 4, based on the particular rules in question. However, consistent with what I have already held in relation to the proper construction of this Constitution, I do not consider that Article XV(2) of the Constitution provides that tenure of the office must come to an end on the fourth anniversary of the election. The Deacons continue in office “on sufferance” until the Assembly puts an end to their tenure by electing others.
It is not necessary to determine whether the personal defendants are acting as de facto officers of the Church, and if so whether that only exposes them to liabilities or whether it also confers on them rights to manage in accordance with the Constitution. It is sufficient to hold that they are still lawfully in office under the Constitution or are validly holding over pending the election of a new Board of Deacons.
The application for relief claimed in paragraphs 6, 6A and 7 of the plaintiffs’ prayer for relief in the Statement of Claim is dismissed.
It is inappropriate to rule on the relief claimed in paragraph 8 of the plaintiffs’ prayer for relief (the appointment of a receiver) on an application for immediate relief. There are other parts of the Statement of Claim which contain allegations of misconduct of the Board of Deacons which may or may not ultimately justify the appointment of a receiver. That is a matter to be resolved upon the trial of the outstanding issues. I would only have considered appointing a receiver at this stage if there were no‑one holding the office of Deacon and no‑one who could manage the temporal affairs of the Church.

[1998] SASC 6833

2 September 1998