ASB Bank Limited v Urquhart
[2013] NZHC 2882
•31 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-1349 [2013] NZHC 2882
BETWEEN ASB BANK LIMITED Interpleader
ANDD J URQUHART, E MANI AND ORS First Claimants
ANDE WRIGHT AND ORS Second Claimants
ANDTE HUI AMORANGI KI TE TAI TOKERAU TRUST BOARD Third Claimant
Hearing: 15 July 2013
Counsel: C R Pidgeon QC for First Claimants
B Gray QC and P Cogswell for Second Claimants
Judgment: 31 October 2013
JUDGMENT OF KATZ J
This judgment was delivered by me on 31 October 2013 at 4:45 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Cogswell Law, Auckland
Simon Punshon, Kaitaia
Counsel: C R Pidgeon QC, Auckland
B D Gray QC, Auckland
ASB BANK LIMITED v URQUHART AND ORS [2013] NZHC 2882 [31 October 2013]
Introduction
[1] The Kaitaia Branch of the ASB Bank Ltd holds an account under the name of Parengarenga-Ahipara-Peria Maori Pastorate (“Pastorate”). That account has been frozen since 2002, when the ASB was faced with competing claims as to who is entitled to control the account.
[2] The Pastorate is a pastorate of the Anglican Church. It is common ground that the vestry of the Pastorate (the body of elected officials charged with controlling the affairs of the Pastorate) is entitled to have control of the ASB account. However, both the first claimants and the second claimants claim to be the duly elected vestry of the Pastorate. As such, they both claim to be entitled to operate the ASB account.
[3] Although Courts are traditionally reluctant to determine religious disputes where matters of faith or doctrine are at issue, Courts will intervene where civil or property rights are involved.1 In this case both claimants seek the intervention of the Court to resolve the current impasse. ASB abides the decision of the Court. The real contest is therefore between the first and second claimants.2
[4] There are a number of affidavits before the Court. I rely in particular on the affidavits of Canon Urquhart, Thomas Murray, Reverend Popata, and Bishop Brown Turei for the factual background. For my summary of the legal structure of the Anglican Church I draw heavily on the (uncontested) evidence of Matthew Ockleston, Deputy Chancellor of the Anglican Diocese of Auckland and the Chancellor of Te Pihopatanga o te Tai Tokerau and the Hui Amorangi ki te Tai Tokerau.
Constitutional structure of the Anglican Church
[5] The Anglican Church in Aotearoa, New Zealand and Polynesia (“Church”) is an unincorporated voluntary compact body. The rights, duties, powers and obligations of its ordained and lay members are derived from their mutual
agreement.
1 Mabon v Methodist Church of New Zealand [1998] 3 NZLR 513 (CA) at 523.
2 The third claimant no longer actively pursues any claim to the ASB account, and abides the decision of the Court.
[6] The Church is governed by a constitution adopted in 1857 and by a code of canons subsequently enacted by the general synod, which is the representative body of the Church.
[7] Constitutional and canonical changes within the Church in 1990 resulted in the cultural expression of the faith of the Church being expressed in three tikanga or strands, namely:
(a) Tikanga Pakeha;
(b) Tikanga Maori; and
(c) Tikanga Polynesia (sometimes known as Tikanga Pasifika).
[8] Maori ministry passed into the jurisdiction of Te Pihopatanga o Aotearoa (the Maori Anglican Church in Aoteaoroa). Te Pihopatanga o Aotearoa is governed by its Runanganui (synod/council). The constitution of the Church provides that Te Pihopatanga o Aotearoa has power to structure and organise itself in such manner as it shall from time to time determine and to establish representative bodies as prescribed by Part D of the Constitution of the Church.
[9] Te Pihopatanga o Aotearoa has structured itself into five regional Pihopatanga, which includes Te Pihopatanga o Aotearoa ki te Tai Tokerau. Each regional Pihopatanga is in turn subject to the governance of a Hui Amorangi. Within a Hui Amorangi, governance powers are exercised by the Pihopa (bishop), Hui Amorangi (synod) and Komiti Tumuaki (standing committee). Control is always in accordance with the constitution and the canons of the Church.
[10] Hui Amorangi ki te Tai Tokerau (“Tai Tokerau”) includes nine pastorates, including the Pastorate at issue in these proceedings. Each pastorate is in turn governed by a vestry, being a body of elected officials charged with controlling the affairs of the particular pastorate.
[11] The constitution of the Church provides that no person shall hold any licence or permission under the authority of the general synod or hold any office under that
authority unless and until that person has signed a declaration of adherence and submission to the authority of the general synod. The specified form of declaration contains a covenant to be bound by all regulations issued by the authority of the general synod.
[12] The constitution of the Church also authorises Hui Amorangi to make all such regulations, not inconsistent with the constitution or with any canon or regulation of the general synod, as may be necessary for the order and good governance of the Church. Pursuant to that authority, Tai Tokerau has adopted the statutes of the synod of the diocese of Auckland including in particular the Parish Statute 1986 (“Parish Statute”). The Parish Statute, amongst other things, provides
for local leadership by a vicar3 and includes provisions relating to the election of a
vestry. Of particular relevance to this case, clause 60 provides that the vestry shall control the assets of the parish.
[13] Both claimants assert that they are the relevant vestry in terms of clause 60 and are accordingly entitled to control the ASB account.
Factual background
[14] An Anglican priest must be licensed by a bishop and must act in accordance with the constitution, canons and regulations of the Church. All who receive authority in the Church owe a duty of obedience to their bishop.
[15] Canon Urquhart was appointed as parish priest of the Pastorate in the early
1970s, at a time when the Pastorate was a Maori pastorate within the diocese of Auckland. Following the restructuring of the Church in 1990, Canon Urquhart came under the authority of the (then) Te Pihopa o te Tai Tokerau. They had a difficult relationship. Disciplinary proceedings ensued. Ultimately, Canon Urquhart’s licence to officiate as a priest was terminated. Accordingly, although Canon Urquhart remains an ordained clergyman, he no longer has authority to exercise ministry on behalf of the Church within the Pastorate, Hui Amorangi or the Church
as a whole.
3 The definition of which is set out in full at [19] below.
[16] A rift developed between those who supported Canon Urquhart and those who did not. The majority of those in the Pastorate appear to have been strongly loyal to Canon Urquhart. They wanted him to remain as their parish priest. Following the termination of his licence they elected their own vestry, on
17 September 2002. They have continued to elect a vestry each year since then. Those who remained loyal to the mainstream Church hierarchy did likewise.
[17] The issue as to whether Canon Urquhart’s licence had been properly terminated has been the subject of previous Court proceedings.4 Allan J held that Canon Urquhart’s licence had been validly terminated and he therefore had no existing licence to minister in the Pastorate or to continue to occupy the vicarage. Allan J noted the need for the Pastorate to plan for a new vicar, and to be able to offer a vicarage to the appointee. He accordingly granted the third claimant an order for possession of the vicarage. Allan J was not, however, prepared to resolve the
associated dispute over entitlement to the Pastorate bank account. In his view it was necessary for both of the competing vestries to be before the Court, which they were not at that time.
[18] Despite the termination of his licence as an Anglican priest, Canon Urquhart has continued to perform services at a number of regular worship centres (16 are listed in his affidavit) in the Pastorate. It appears that attempts by the Anglican Church to introduce a new vicar into the Pastorate have had limited success. Only three regular worship centres in the Pastorate currently hold services under the auspices of the duly appointed vicar of the Pastorate.
Are the first claimants the duly elected vestry of the Pastorate?
The Parish Statute
[19] The key provisions of the Parish Statute for present purposes are clauses 2,
17, 18, 20, 36 and 60 which relevantly provide as follows:
4 Te Hui Amorangi ki te Tai Tokerau Trust Board v Urquhart HC Whangarei CIV-2004-488-580,
12 February 2007.
INTERPRETATION
[2] For the purposes of this Statute the word “Vicar” shall include any Missioner, Pastor or Co-Pastor or Co-Pastor or Deacon/Priest-in-Charge or any ordained minister who is recognised by the Bishop’s authority as having for the time being the charge of a parish, pastorate or mission district....
VESTRY
[17] In every parish there shall be a Vestry which shall consist of the Vicar, ex-officio, the two Churchwardens, the Synod representatives for the parish and not less than three or more than fifteen parishioners being communicants elected yearly as Vestry members by the parishioners at an annual meeting to be held on a date fixed by the Vicar, not being later than the 31st day of March ... shall arise.
ANNUAL MEETING OF PARISHIONERS
[18] [N]otice of the time and place of meeting for the election of a Churchwarden and Vestry members shall be given in the Church or churches in the parish on the two Sundays on which there shall be Divine Service in the Church or churches in the parish next before the meeting, and by written notice set up on or near the main door of the Church or churches in the parish at least ten days prior to the meeting.
MEETING OF PARISHIONERS AND VESTRY: CONVENER AND CHAIRPERSON
[20] Such meetings of parishioners and Vestry as are needful for the purpose of this Statute shall be convened and chaired ex-officio by the Vicar who shall have a substantive as well as a casting vote...
If there is no Vicar, or if the Vicar is unable to be present, the Churchwarden elected by the parishioners, or if the Churchwarden elected by the parishioners is unable to be present, the Churchwarden appointed by the Vicar shall convene and chair the meeting, with a substantive as well as a casting vote...
VESTRY MEETINGS
[36] Meetings of the Vestry for the despatch of business shall be held quarterly on days to be fixed by the Vicar and meetings shall be held at such other times as the Vicar or the Churchwardens shall think fit, or upon a requisition of a majority of the Vestry.
CONTROL OF FUNDS
[60] The Vestry shall have control of all rents and other income belonging to the Parish, and all sums of money given over to the parish by the Trustees of land or other property in the parish or elsewhere, and all collections and subscriptions collected under the authority of the Vestry, and no portion of any such funds shall be expended without the sanction of the Vestry duly assembled.
First claimants’ submissions
[20] The first claimants rely in particular on the following factors in support of their claim to be the duly elected vestry of the Pastorate:
(a) Canon Urquhart is supported by the majority of parishioners within the Pastorate.
(b)They supervise and arrange services at 16 different locations within the Pastorate, whereas the second claimants only arrange services at three locations, with a much smaller average congregation size.
(c) They gave notice of the meetings at which they were elected as vestry members at all churches within the parish, in accordance with the requirements of clause 18 of the Parish Statute.
Discussion
[21] The difficulty for the first claimants is that, even assuming the truth of each of these matters, it would not automatically follow that the first claimants are the duly elected vestry of the Pastorate.
[22] First, it is clear from the Parish Statute that the vicar is central to the election and ongoing activities of the vestry. The Parish Statute provides that:
(a) The vicar is an ex-officio member of the vestry (clause 17);
(b)The date of the annual meeting at which the vestry is to be elected is to be fixed by the vicar (clause 17);
(c) The vicar is to convene and chair vestry meetings unless there is no vicar or the vicar is unable to be present, in which event the churchwarden appointed by the vicar convenes and chairs the meeting (clause 20);
(d) The vicar has both a substantive and casting vote at vestry meetings
(clause 20);
(e) Dates of vestry meetings are to be fixed by the vicar (clause 36).
[23] However, the relevant “vicar” in terms of the definition in clause 2 of the Parish Statute is Reverend Urlich (and prior to that, Reverend Wright). They are recognised by the Bishop’s authority as having for the time being the charge of the parish or pastorate. The first claimants’ vestry therefore fails to satisfy the various requirements in the Parish Statute as to the involvement of the vicar in the election and meetings of the vestry. Rather, the vicar is an ex-officio member of the second claimants’ vestry.
[24] I also note that the first claimants’ vestry does not appear to include any synod representatives (clause 17). This is presumably because the first claimants are operating outside the formal structures of the Church.
[25] In general terms, the fundamental difficulty with the first claimants’ claim that they are the duly elected vestry of the Pastorate is that they are currently operating outside of the structure of the mainstream Anglican Church. As counsel for the second claimants expressed it:
Collectively the First Claimants wish to belong to the Church. They may believe they do so. Unhappily, they are currently out of communion.
[26] Canon Urquhart confirmed in cross-examination that the congregation led by him is one “based on authority derived from the people in the pastorate”. Indeed, Canon Urquhart’s congregation appears to have established its own religious organisation or entity, which has been registered as a charitable trust. This entity administers various funds under the control of the second claimants’ congregation. A separate bank account has been established. The separate entity established by the first claimants it is not governed by the Church or subject to its authority.
[27] Some churches are congregational. Their authority rests from agreement between members within a particular geographical location. For such bodies, property is owned locally and authority moves from local membership to office
bearers. The second claimants described this as a “bottom up” structure, which I accept as an accurate description. Often such bodies are majoritarian or democratic. If the Anglican Church was a “bottom up” structure it may well have been possible for the majority of members in a particular geographical area to decide to, in effect, break away from the central hierarchy of the Church and take any local assets with them.
[28] The Anglican Church, however, has a “top down” structure. The central authority is the general synod of the Church. Authority devolves down from the general synod – in this case to the Runanganui of the Pihopatanga and the Runanga of the Hui Amorangi. Within a Hui Amorangi, governance powers are exercised by the Pihopa, Hui Amorangi and Komiti Tumuaki. The first claimants do not, however, recognise the authority of Te Pihopa o te Tai Tokerau. Nor do they appear to recognise the authority of Te Hui Amorangi or Te Komiti Tumuaki.
[29] I have not overlooked that Canon Urquhart stated in cross-examination that he did recognise the authority of the general synod. However, such a statement does not advance matters in circumstances where Canon Urquhart does not recognise the authority of the various Church organs through which the authority of the general synod is exercised. For example, the authority of the bishop is derived from the synod, but Canon Urquhart does not recognise the authority of Te Pihopa o te Tai Tokerau. I also note that Canon Urquhart’s evidence that his authority to lead his congregation is derived directly “from the people in the pastorate” rests somewhat uneasily with a claim to recognise the authority of the general synod.
[30] In terms of the Church hierarchy, each priest and vestry must adhere to the constitution and canons of the Church and be accountable to the Pihopa, Hui Amorangi, Pihopatanga and the Church, as governed by the general synod. The priest of the Pastorate must operate under the episcopal guidance and authority of Te Pihopa o te Tai Tokerau. The Parish Statute, constitution and canons of the Church make it clear that ministry units and their vestry and officers (such as churchwardens) are under the authority of the Church. The first claimants, however, do not recognise the authority of the Church within the Pastorate. Nor do any of them hold licences to officiate on behalf of the Church.
[31] They operate independently and do not appear to participate in the broader life of the Church. They do not recognise the authority of Te Pihopa o te Tai Tokerau. They do not attend Hui Amorangi or otherwise operate within the accepted structure of the Pastorate or the Church. The first claimants’ vestry does not represent people led by a priest who is currently licensed by a bishop of the Church.
[32] Unfortunately, what began as a personality conflict between Canon Urquhart and those in authority over him within the Church, appears to have now become a conflict between congregations. I accept the second claimants’ submission that, regrettably, those loyal to Canon Urquhart are currently “out of communion” with the mainstream Church. They are not formally participating in, or obedient to, the various leadership bodies within the Church.
[33] The reality is that, despite their assertions to the contrary, the first claimants represent a congregation which is, in effect, a “breakaway” group from the mainstream Church. They are led by a priest whose loyal following is no doubt a tribute to his many years of devoted service to the community in the Far North. However, he no longer holds a licence to provide services under the auspices of the Anglican Church.
[34] While the first claimants are no doubt a group of committed and well intentioned people who have worked hard to provide ongoing religious services and pastoral care within the geographical area of the Pastorate, they are not the duly elected vestry of the Pastorate in terms of the Parish Statute. They accordingly have no claim to the ASB account in the name of the Pastorate.
Are the second claimants the duly elected vestry of the Pastorate?
[35] I now consider whether the second claimants are the duly elected vestry of the Pastorate and therefore entitled to access and control the ASB account.
[36] Firstly, I note that the second claimants are recognised as the lawful vestry of the Pastorate by the relevant entities within the Church hierarchy and are in turn obedient to those entities, including the Hui Amorangi and the Pihopatanga. They
accept, and operate under, the episcopal guidance and authority of Te Pihopa o te Tai
Tokerau.
[37] The first claimants submit, however, that the second claimants are not the duly elected vestry in terms of the Parish Statute because the notice requirements relating to annual meetings in clause 17 (set out in full at [19] above) were not complied with. In particular, the first claimants say that notice of annual meetings was not given at those churches which are effectively under the control of the first claimants.
[38] Reverend Popata’s affidavit provides some background to this issue. He was appointed to assume the role of priest in the Pastorate following the revocation of Canon Urquhart’s licence in 2002. He says that his experience in the Pastorate was a difficult one, due to the actions of Canon Urquhart and his supporters, including the first claimants. Reverend Popata attempted to commence his duties and started visiting the Pastorate churches and Marae ministries. He says that he was welcomed at some. At others, however, he was met by confrontation and abuse from Canon Urquhart’s supporters. He was informed that he was not welcome and was actively prevented from carrying out his duties. Reverend Popota’s evidence was that:
Even though this poor behaviour has continued, including upsetting funerals and other functions of the Church, the Pastorate continued to conduct elections for its officials right through the years....The Pastorate has advertised its elections at those Churches that it had access to and conducted elections each year.
[39] At trial Reverend Popata confirmed that annual meetings were advertised in the Pastorate “to the churches that we were welcomed at and performing Ministry to”. Under cross-examination, Reverend Popata accepted that he had not received any letter from the first claimants saying that he was not allowed to advertise meetings at their churches.
[40] Against this background, the key issue is whether the Parish Statute required that notice of annual meetings be given at all churches owned by the Church within the Pastorate, or whether it was sufficient to only give notice at those churches where the duly appointed vicar of the Pastorate (or his delegate) was actively conducting
services and performing ministry. In my view the latter interpretation is the correct one. It is consistent with a purposive interpretation of the Parish Statute and the central role of the vicar within a parish or pastorate, as set out in the Parish Statute.
[41] This view is further supported by the fact that the phrase “church or churches” in clause 18 is qualified by reference to those churches where Divine Service takes place on at least some Sundays. However, Canon Urquhart is no longer licensed by Te Pihopa o te Tai Tokerau to perform Divine Services under the auspices of the Anglican Church. “Divine Services” conducted under the formal auspices of the Church are provided at three churches within the Pastorate. Notice of the annual meeting was given at each of those three churches.
[42] By way of analogy, it is helpful to consider what the position would be if, due to declining membership (or some other reason) the Church decided to cease providing services at some churches in a pastorate. In that event it would either close those churches or allow possibly another Christian organisation to use them (as provided for in clause 77A of the Parish Statute). Would it be necessary in such circumstances for the Church to continue to give notice of its annual meetings at such churches, despite the fact that Divine Services were no longer being held at those locations under the auspices of the Church? In my view it would not. The present situation is analogous.
[43] The first claimants are seeking to have the benefits that would accrue to them if they were to participate fully in the life of the Church, without being willing to accept the burdens of such involvement (including the requirement to recognise the authority of the Church as exercised through Te Pihopa o te Tai Tokerau, Te Hui Amorangi and Komiti Tumuaki).
[44] For the reasons outlined above, I am satisfied that notice of annual meetings is not required to be given at the churches effectively under the control of the first claimants. The giving of notice at those churches within the Pastorate where religious services are currently being provided under the formal auspices of the Church meets the requirements of clause 18 of the Parish Statute.
[45] It follows that the second claimants are the duly elected vestry of the Pastorate. Their appointed nominees, namely Bardia Matiu, Reverend Frank Harrison, and Reverend Eru Wright are entitled to operate the ASB account.
Result
[46] I order and declare that the second claimants’ appointees, namely Bardia Matiu, Reverend Frank Harrison, and Reverend Eru Wright are lawfully authorised to operate any accounts held by ASB Bank Limited on behalf of the Parengarenga-Ahipara-Peria Maori Pastorate, including in particular account number 12-3096-0107614-00.
[47] My preliminary view is that, as the successful party, the second claimants are entitled to costs on a category 2B basis. If costs cannot be agreed based on this indication then leave is reserved to file memoranda. Any memorandum by the second claimants is to be filed within 20 working days of this judgment. Any memorandum from the first claimants is to be filed within 10 working days
thereafter. A decision on costs will then be made on the papers.
Katz J
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