Brady v Presbyterian Church of Aotearoa New Zealand

[2012] NZHC 3526

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2549 [2012] NZHC 3526

BETWEEN  LAISARINI HANIPALE BRADY First Plaintiff

ANDSO'OLEFAI FALE AND SOTIATA FALE Second Joint Plaintiffs

ANDLAISARINI HANIPALE, SOTIATA FALE AND LUPEMATASILA SIAOSI

Third Joint Plaintiffs

ANDLEOTA SENERITA HENDRIKSE AND EDWIN HENDRIKSE

Fourth Joint Plaintiffs

ANDTHE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND

First Defendant

ANDNORTHERN PRESBYTERY Second Defendant

ANDREVEREND TONY SPANDOW Third Defendant

ANDLES PARLANE, TEPU DEBBIE COOMBS AND FILEMONI FA'AVALE Fourth Defendants

ANDALISTAIRE HALL Fifth Defendant

Hearing:         20 & 21 November 2012

Appearances: Mr Illingworth QC and Ms Woodroffe for plaintiffs

Mr Barker and Ms De Joux for first to fourth defendants
Mr Corlett for fifth defendant

Judgment:      8 February 2013

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

BRADY & Ors V THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND & Ors HC AK CIV-

2012-404-2549 [8 February 2013]

This judgment was delivered by me on

08.02.13 at 4.30 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

Woodroffe Law Partnership, P O Box 6505, Auckland – [email protected]/

[email protected]
(Counsel: Mr G Illingworth QC, 59 High Street, Auckland – [email protected]

Buddle Findlay, P O Box 2694, Wellington – [email protected]

Brookfields Manukau, P O Box 76 004, Manukau, Auckland –[email protected]

Background

[1]     The third defendant is the Reverend Spandow, a Minister at St Paul's Presbyterian Church in Manurewa.  In early 2011, the plaintiffs became concerned about Mr Spandow’s friendship with a Sunday School teacher, who was also a member of the congregation.  By letter dated 5 May 2011, the second named fourth plaintiff (Mr Hendrikse) made a complaint to the Northern Presbytery concerning Mr Spandow’s conduct.  A panel of assessors considered this complaint and concluded that it did not involve conduct that was unbecoming.   The Book of Order (the document that governs the governance of the Presbyterian Church of New Zealand) provides that a determination made by assessors is final, and that there is no right of

appeal.1

[2]      This  dispute  continued  to  brew.  Factions  formed.  Broadly  speaking,  the plaintiffs belong to the faction affronted by what it considers to be Mr Spandow unacceptable conduct.  Another faction, in turn, object to the way in which the first group have expressed their dissent about how Mr Spandow’s conduct  has been managed.   Mr Spandow no longer commands their respect.   It hardly needs to be said, of course, that the Court cannot delve into the rights and wrongs of the matter.

[3]      In or around May and June 2011, the complaint concerning the Minister was raised during meetings of the Session.  The Session of the Church comprises elected elders who have been ordained as such.   The Session, together with the Board of Managers, comprises the Council of the Church.

[4]      The Session was advised that the Presbytery was dealing with the complaint. Warnings were also given regarding appropriate behaviour.  On 26 July 2011, there was a special meeting of the Session.   The minutes from the meeting record that, inter alia:

a)        A motion was passed that the first plaintiff, Ms Hanipale-Brady, and

1 The Book of Order of the Presbyterian Church of Aotearoa New Zealand (2010) at 15.16.

the second named third plaintiff, Mr Siaosi, were suspended from the Session and from speaking at any Church meetings for three months. They would be readmitted to the Session, by vote in the Session, after making a public apology to the Church.

b)Such “unbecoming” behaviour from Ms Hanipale-Brady included verbally abusing the Session Clerk and Mr Spandow, telling the Ministers of the Church to stop attending Bible study, calling the Session Clerk a liar and a fool, questioning Mr Spandow’s and the Clerk’s presence at a Samoan service and meeting on 24 July 2011, and continually screaming at and abusing Mr Spandow and the Clerk at that meeting.

c)       Such  “unbecoming”  behaviour  from  Mr  Siaosi  included  verbally abusing and shouting at Mr Spandow, questioning why Mr Spandow was reading the Bible in the Samoan meeting, verbally abusing the Clerk and threatening to break the Clerk’s finger, moving in a violent manner towards Mr Spandow, and refusing to shake Mr Spandow’s hand after the meeting.

[5]      Ms Hanipale-Brady spoke to the charges, stating that she had lost respect for Mr Spandow and the Clerk, Mr Fa’avale (who is the third named fourth defendant). She continued to interrupt other speakers.

[6]      Mr Siaosi was not present at this meeting. The motion was re-read and voted on verbally.   It was carried.   Mr Filemoni clarified that Ms Hanipale-Brady and Mr Siaosi could attend meetings and Services, but not speak.

[7]      Ms Hanipale-Brady apologised to Session members, but not to Mr Spandow or Mr Fa’avale and left.  Discussion followed about the fact that Mr Siaosi was not at the  meeting.    However,  the  majority  of  the  Session  took  the  view  that  since witnesses had seen his behaviour, the Session could not delay barring his attendance.

[8]      On 15 August 2011, the Clerk of the Northern Presbytery determined that the appointment of Ms Hanipale-Brady to the Session was invalid.  While the plaintiffs claim that this decision was made without allowing Ms Hanipale-Brady an opportunity to be heard, the validity of this determination has not otherwise been disputed.

[9]      On 30 July 2011, Mr Siaosi assaulted the third named fourth defendant (Mr Fa'avale).   Mr Siaosi  was charged  with  assault, and was dealt with  by way of diversion after entering a guilty plea.

[10]     Over  the  following  months,  Mr  Siaosi  allegedly made  seven  threatening phone calls to Mr Spandow.   Mr Siaosi denies that he rang Mr Spandow on 19

December 2011 and made threats against him.

[11]     A further complaint about Mr Spandow’s conduct was made to the Northern

Presbytery by letter dated 26 September 2011.   In his letter dated 14 November

2011, the Presbytery Clerk, Mr Robinson, confirmed that the Presbytery Council had approved the establishment of a Commission of Presbytery to consider the situation at St Paul's Manurewa.  This was confirmed by notice to all members and associate members of the congregation dated 24 November 2011.   This Commission has subsequently been dissolved by decision of the Council of the Northern Presbytery, and a new Commission has been appointed.  I interpolate that this latter Commission is expected to undertake its tasks shortly.

[12]     On 18 December 2011, there was an altercation between the second plaintiff

(Mr Fale Snr) and Ms Hanipale-Brady, and Mr Fa'avale.  The Police were called.

[13]     Mr Fa'avale alleges that he was assaulted twice by Mr Fale Snr, and once by Ms Hanipale-Brady.   Ms Hanipale-Brady disputes this, and says that she merely reached out with her left hand and touched his cheek.

[14]     Mr  Fale  Snr  also  disputes  the  allegation,  stating  that  he  walked  up  to

Mr Fa’avale and spoke to him, to which Mr Fa’avale replied, “your mouth stinks.”

Mr Fa’avale then hit Mr Fale Snr’s face with an open hand.  Mr Fale Snr states that as the two men continued to tussle, Mr Spandow also held onto Mr Fale Snr and assaulted him.  Mr Fale Snr further states that this occurred in Mr Spandow’s office, where nobody but Mr Spandow and Mr Fa’avale was present.

[15]     Again, it is necessary to note that the rights and wrong of this incident cannot be resolved on the hearing of the present application.

[16]     Mr Spandow, Mr Parlane (the first named fourth defendant) and Mr Fa’avale sought advice from a Minister at a neighbouring parish, who recommended that legal advice be sought with a view to issuing trespass notices against Ms Hanipale-Brady and others.   Following consultation with Mr Alistair Hall, a local lawyer (and the fifth defendant), the following trespass notices were served on 19 or 20 December

2011 against Ms Hanipale-Brady, Mr Fale Snr, and Mr Siaosi.

[17]     A trespass notice relating to 217 Weymouth Road, Manurewa, was executed by Mr Parlane on behalf of St Paul's Presbyterian Church;

[18]     A trespass notice relating to 215 Weymouth Road, Manurewa, was executed by Mr Spandow as occupier;

[19]     Mr Fa’avale executed a trespass notice relating to Mr Fa’avale’s residential

address.

[20]     The issues in these proceedings relate to the trespass notice in respect of 217

Weymouth Road only.

[21]     On  21  December  2011,  there  was  a  special  meeting  of  the  Session. Mr Parlane has given evidence that at that meeting, the Session approved the steps taken in issuing the trespass notice by a majority vote 21 to 6.

[22]     On 8 January 2012, Ms Hanipale-Brady and  Mr Fale Jnr went onto  the

Church premises.  The Police were called, and a warning was given.

[23]     On 5 April 2012, counsel for the plaintiffs, Ms Woodroffe, emailed Mr Hall. Ms Woodroffe disputed the legality of the trespass notices, and advised that her clients would be attending the Church both during and after Easter.

[24]     On 6 April 2012, there was an urgent meeting of the Session.  A unanimous decision was made to execute new trespass notices so as to remove any doubt as to the legality of the first trespass notices.

[25]     Fresh trespass notices were then served on Ms Hanipale-Brady, Mr Fale Jnr, and Mr Siaosi when they went onto Church premises to attend a Samoan Group meeting on 6 April 2012.

[26]     By email dated 14 April 2012, counsel for the plaintiffs disputed the legality of the new trespass notices and gave notice that the service of the Samoan group in the  Samoan  language  on  Sunday  15  April  2012  at  3  pm  was  to  be  led  by Ms Hanipale-Brady.

[27]     On 15 April 2012, Ms Hanipale-Brady, Mr Fale Jnr, and Mr Siaosi again entered the Church premises.   The Police were called.   Ms Hanipale-Brady and Mr Fale have been charged with trespass under the Trespass Act 1980.

[28]     A  further  incident  occurred  on  29  April  2012,  when  Mr  Fale  Jnr  again entered the church premises.   The Police were called.   Mr Fale Jnr smashed a window, and was arrested for wilful trespass and obstructing the Police.  Mr Fale Jnr apparently admitted the charge brought against him as a result of the incident and was ordered to pay restitution of $300.

[29]    The plaintiffs filed their statement of claim on 9 May 2012.   This has subsequently been amended, with the latest iteration dated 12 September 2012.  The defendants have applied for strike-out and/or defendant summary judgment on the

basis that the claims are untenable and cannot succeed.  In the alternative, the first to fourth defendants (inclusive) have sought an order for security for costs.

[30]     During the course of his submissions, Mr Illingworth QC signalled a number of modifications to the causes of action pleaded.  The damages claim brought as part of the first cause of action is withdrawn, although the plaintiffs will proceed with the cause of action.  In regard to the second cause of action, the alleged exclusion from the Church premises, the plaintiffs accepts that references to the "plaintiff group" cannot be maintained and they are withdrawn.  The claim for an order that no legal costs of the defendants be paid from congregational funds is withdrawn as is the claim for general damages of $100,000.  The plaintiffs continue with their claim for a declaration of right.   The third cause of action, which alleges negligence in the course of carrying out an enquiry, is withdrawn because, counsel says, the plaintiffs are satisfied with the advice from the Church that a fresh enquiry is to be carried out into the question of Mr Spandow’s conduct.

Causes of action

[31]     The following is a summary of the causes of action and the relief which the plaintiffs seek, taken from the submissions filed for the first to fourth defendants, following the amendments that counsel has signalled are made which are set out above.

a)       A declaration that the trespass notices issued against Ms Hanipale- Brady, Mr Fale Snr and Mr Siaosi were invalid. The plaintiffs also seek costs in relation to this;

b)A declaration that the plaintiffs have been wrongfully excluded from the Church property;

c)        A declaration that the trespass notices are invalid;

d)       A  permanent  injunction  restraining  the  second,  third,  and  fourth

defendants from preventing the plaintiffs from entering and attending services at the Church property;

e)        A permanent injunction restraining Mr Spandow from preventing Ms

Hanipale-Brady from preaching during the Samoan language services;

f)        An order that all Church bank accounts be frozen until a further Order of the Court, and

g)        Costs.

[32]     The plaintiffs further allege that Mr Spandow and Mr Fa'avale unlawfully dismissed and/or suspended Ms Hanipale-Brady and Mr Siaosi from the Session. The plaintiffs further seek:

a)        A declaration that the motion suspending/dismissing Ms Hanipale- Brady and Mr Siaosi from Session is invalid;

b)        General damages for inconvenience, hurt, humiliation and stress of

$50,000 each to Ms Hanipale-Brady and Mr Siaosi; and c)     Costs.

[33]     The plaintiffs seek summary judgment in regard to the claimed relief.

[34]     The defendants seek orders striking out the plaintiffs’ claims and seek

summary judgment in the alternative.

Preliminary issues

[35]     The applications for summary judgment and strike out raise numerous issues.

[36]     First, the first to fourth defendants say that the first and second defendants, the Presbyterian Church of Aotearoa New Zealand and the Northern Presbytery, not being incorporated bodies, cannot be proceeded against in the courts.

[37]     Secondly,  there  is  the  issue  of  whether  the  affairs  of  the  Church  are justiciable in a civil court.   The defendants’ view is that where a dispute of the present kind has arisen, it is the Book of Order that is the source of authority and by reference  to  which  the  Church,  its  officers  and  congregation,  are  to  deal  with disputes of the kind that has brought the parties to the Court.

[38]     Thirdly, what, if any, recognised legal rights have been breached that enable the plaintiffs to sue the Church?  More broadly, it is said for the defendants that the constitution of a religious body is a consensual compact binding on the conscience of the individual members and its provisions are without contractual force.

Strike-out and summary judgment

[39]     I will not consider the authorities on strike out and summary judgment in detail.  I consider that the summary contained in McGechan on Procedure accurately reflects the current state of the law.2    In particular I remind myself of the citation from Couch v Attorney-General3 per Elias CJ and Anderson J that it is inappropriate to  strike  out  a  claim  summarily unless  the  Court  can  be  certain  that  it  cannot

succeed.

[40]     As to the jurisdiction to enter judgment on a defended summary judgment application, r 12.2 of the High Court Rules requires that judgment should only be given against a plaintiff if the defendant has satisfied the Court “that none of the causes of action in the plaintiff’s statement of claim can succeed”.  In both summary judgment and strike-out, the possibility of amending the statement of claim should

also be taken into account.

2 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [15.1.02].

3 Couch v Attorney-General [2008] NZSC 45 at [33].

Justiciability

[41]     The plaintiffs reject any authority on the part of the Church Council to exclude them from the Church premises and, in particular, they attack the trespass notices that Church Council served on them.  I shall deal with the wider issue of the entitlement to exclude the Church members in general, and follow that by looking at particular aspects of the trespass notices the Church Council used to exclude the plaintiffs.

[42]     However, the question remains whether the Courts will entertain a claim that Church congregation members bring against those having control of the Church premises even if the plaintiffs have rights in the matter.   This will involve consideration of:

a)        the fact that the Church is not incorporated, and

b)the approach that the courts have traditionally taken to intervening in the affairs of Churches.

[43]     With  regard  to  the  first  point,  Mr  Barker  referred  me  to  the  following statement of the legal position as it was described in The Law of Torts in New Zealand:4

23.7     Unincorporated Associations

As a general rule, unincorporated associations such as social or sporting clubs cannot sue or be sued in the association’s name. Normally action must be taken by each individual member who has been the victim of a tort and, similarly, against each member who has committed a tort.

[44]     The congregation  that  attends  St  Paul’s  Church,  and  the various  Church

officeholders, are unincorporated individuals.  They are not parties to the litigation. The first defendant is incorporated and therefore is able to be the object of Court

4 Stephen Todd (ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) [23.7] (footnotes omitted).

proceedings, though it submits that it is a property owning trust only and does not have any connection with the present dispute.  The second defendant is a governance group of the Presbyterian Church in New Zealand, and is not incorporated.

[45]     Mr Illingworth QC for the plaintiffs answered the incorporation point by submitting that the Court will intervene in the affairs of voluntary associations to protect the rights of its members.  He described the body of authority, known as the “club cases”.5 Alternatively, he did not accept that the local Church and its officeholders could legitimately claim to be in control of the Church premises.  In effect,  it  was  his  client's  case  that  the  proceeding  raised  the  question  of  who controlled the property of the organisation known as The Presbyterian Church of Aotearoa  New  Zealand.     Mr  Illingworth  said  that  the  question  is  answered

unequivocally  by  the  Presbyterian  Church  Property  Act  1885  (“the  Act”).    He referred to the fact that the Act created a body corporate which was collectively known  as  The  Presbyterian  Church  Property  Trustees.     The  body  corporate comprises an elected trustee who is capable of suing and being sued.

[46]     I  accept  that  description  of  the  trustees  under  the  Act.    That  does  not, however, deal with the question of the status of the first and second defendants.  I consider that Mr Barker’s submission that they cannot be sued is correct.  On behalf of his clients, Mr Illingworth applied to join the Presbyterian Church Property Trustees  (“the  PCPT”).  I  will  deal  with  that  application  at  a  later  part  in  this judgment.

Litigation against unincorporated bodies

[47]     For  the  defendants,  it  was  Mr  Barker's  submission  that  the  Presbyterian

Church  of  Aotearoa  New  Zealand  is  a  voluntary  unincorporated  association.6

Accordingly, by its very nature it does not have separate legal personality, so it cannot sue or be sued.   He referred to Hostick v The New Zealand Railway &

Locomotive Society Waikato Branch Inc, where Asher J  refers to the  following

5 See discussion at [82].

6 Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart HC WHA CIV-2004-488-580 (27

February 2007) at [13].

extract from Chitty on Contracts:7

Liability of unincorporated associations.  An unincorporated association is not a legal person and therefore cannot sue or be sued unless such a course of action is authorised by express or implied statutory provision as in the case of a trade union or savings bank...

[48]     Mr Barker pointed out that the footnote to the text reproduced above from The Law of Torts in New Zealand notes that an exception to the general rule exists when a statute provides for action against an unincorporated body (for example, the Friendly Societies Act 1909, which included machinery whereby a club could sue or be sued).   This exception does not apply to the Presbyterian Church of Aotearoa New Zealand.   He also referred to JGE v The Trustees of the Portsmouth Roman

Catholic Diocesan Trust.8     This recent decision of the United Kingdom Court of

Appeal  considered  whether  the  Trustees  of  the  Portsmouth  Roman  Catholic Diocesan Trust may be vicariously liable for the alleged torts of one of their priests. As noted by Ward LJ:9

[18]     Intuitively one would think that, as a priest is always said to be a "servant of God", the Roman Catholic Church itself would be the responsible defendant.  But the Church has no legal personality and cannot be a party.  I shall therefore concentrate on the Bishop.  The central question for the decision is whether the bishop employed Father Baldwin and, if not, was the relationship between them akin to employment.

[49]     I accept the submission made for the defendants that it is not open to the plaintiffs to sue the first and second defendants.  So far as the governing bodies of the local congregation are concerned, these comprise individuals who need to be brought into the proceedings as individuals or to be proceeded against by the appointment of a representative.  Neither of those steps has occurred. Unfortunately, when the proceedings were initially drafted, which predated Mr Illingworth's appointment as counsel, no thought was apparently given to this issue or the question

of  whether  the  difficulty  could  be  circumvented  by  the  appointment  of  a

7 Hostick v The New Zealand Railway & Locomotive Society Waikato Branch Inc [2006] 3 NZLR 842 (HC) at [26] citing HG Beale (ed) Chitty on Contracts (vol 1, 29th ed, Sweet & Maxwell, London

2004) at [9-068].

8 JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA CIV 938.

9 At [18].

representative (or representatives) for the governing bodies of the Church.  However, no doubt because of the plaintiffs’ view of who is in control of the premises, this issue was not seen as a problem.  The plaintiffs are of the view that it is not the local Church Council who is the correct defendant in the proceedings.  I shall return to the point of the correct parties subsequently.

Litigation involving churches

[50]     The second and alternative point involves the issue of whether the Courts have jurisdiction to enquire into the affairs of churches.   The Courts have long recognised that the constitution of a religious body, as a consensual compact binding on the conscience of the individual members, and its provisions, are without contractual force and, with certain limited exceptions, are not justiciable in a civil court.

[51]   There is a distinction between "voluntary" societies, and those that are otherwise.  Forbes v Eden referred to this distinction, and held that there is no doubt that the Court has the power to enquire into the affairs of voluntary societies in certain circumstances.10   In Forbes v Eden, the Court was considering the case of a Scottish Presbyterian Minister who took proceedings against his Bishop and the Synod of his church.  The Synod made changes to the canons of the Church in 1863.

In essence, Mr Forbes was of the view that it was not open to the Church to change the code that involved different regulations of order and discipline in the church.11

In his speech, Lord Cranworth said:

Save  for  the  due  disposal  and  administration  of  property,  there  is  no authority in the courts either of England or Scotland to take cognisance of the rules of a voluntary society, entered into merely for the regulation of its own affairs, save only so far as it may be necessary that they should do so for the due disposal or administration of property. If funds are settled to be disposed of amongst members of a voluntary association, according to their rules and regulations, then the court must necessarily take cognisance of their rules and regulations, for the purpose of satisfying itself who is entitled to the funds, - so if the rules of a religious association prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building.

10 Forbes v Eden (1867) LR 1 Sc & Div 568.

11 At 576.

This is the principle on which courts have administered funds held in trust for  dissenting  bodies.  There  is  no  direct  power  in  the  courts  to  decide whether  A  or  B.  holds  a  particular  station,  according to  the  rules  of  a voluntary association. But if a fund held in trust has to be paid over to the person who, according to the rules of the society, fills that character, then the court must make itself master of the question necessary to enable it to decide whether A or B. is the party so entitled.

[52]     Lord Cranworth expressed the view that the matters that Mr Forbes had put in issue in the proceedings were not such as the Court would enquire into.  He said:12

This seems to me to dispose of the whole case, for I cannot think that the statements of the Appellant allege the violation of any legal right which enabled the Court of session to enquire into the power of the general synod to frame the canons of 1863.

[53]     A more recent English  decision on the nature of church organisations is Davies v Presbyterian Church of Wales.13    That case involved a dispute between a minister, Mr Davies, and the Church.   Mr Davies apparently fell out with his congregation and his ministry was purportedly terminated.  Mr Davies claimed that he had been employed under a contract of service and that his contract had been breached, which entitled him to take proceedings before a body known as the Employment Appeal Tribunal (Bristow).  The context of that case is rather different from  the  present,  involving  as  it  does  relationships  between  a  minister  of  the

Presbyterian Church and the Church itself.  The House of Lords concluded that the duties owed by the pastor to the Church are not contractual or enforceable and that a pastor is called and accepts a call.  Lord Templeman in his speech said:14

A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of  rules but  an industrial tribunal  cannot  determine  whether a reasonable church would sever the link between minister and congregation.

The duties owed by the church to the pastor are not contractual. The law imposes on the church a duty not to deprive a pastor of his office which carries a stipend, save in

accordance with the procedures set forth in the book of rules. The law imposes upon the church a duty to administer its property in accordance with the provisions of the

book of rules.

12 At 582.

13 Davies v Presbyterian Church of Wales [1986] 1 All ER 705 (HL).

14 At 709.

[54]     The authorities of Forbes and Davies  were concerned with the relationship between clergymen and the church, but it is implicit in the submissions that were made by the first to fourth defendants that the same considerations applied to all aspects of the organisation of a church and therefore to the relationship that the congregation member has to the church.  I accept the validity of that reasoning.

[55]     A New Zealand case that recently considered the issue is Marshall v National Spiritual Assembly of the Bahá'is of New Zealand Inc,15 where Randerson J observed:16

[23]      Ms Katz submitted that the constitutional documents of the UHJ and the defendant NSA did not give rise to any legally enforceable rights and duties at the suit of the plaintiff or any other member of the Bahá'i faith. She submitted that the source of the powers vested in the UHJ and the defendant were essentially spiritual in nature. She also contended that they did not derive from statute, nor from any implied contract between the members such as would arise in the case of an incorporated society: Lee v Showmen's Guild of Great Britain [1952] 2 QB 329.

……..

[31]      Ms Katz reviewed authorities in New Zealand as well as a number of overseas jurisdictions.  It is unnecessary for me to examine all the authorities relied upon.  They support the proposition that the Courts have traditionally shown a reluctance to intervene where purely spiritual or religious issues are at stake.  Such matters are best left to the church or other religious body in question.   However, the authorities also show the Courts have been prepared to intervene where civil, economic, or proprietary rights are alleged to have been infringed.

[56]     After reviewing the authorities, Randerson J said:17

[35]     Here,  there  is  no  suggestion  that  the  plaintiff's  economic  or proprietary rights have been affected.  To the extent that her rights may have been unlawfully infringed, they relate to her right of membership of the Baha’i faith and the voting rights in relation to the National Assembly.  These rights are undoubtedly important to the plaintiff but according to the authorities, they are not generally

15 Marshall v National Spiritual Assembly of the Bahá'is of New Zealand Inc [2003] 2 NZLR 205 (HC).

16 At [23] and [31].

17 At [35].

given the same weight as a potential infringement of economic or proprietary rights.

[57]     I   shall   return   to   the   issue   of   possible   judicial   review   proceedings subsequently.  However, the various authorities that I have referred to make it clear that the voluntary nature of the church, particularly when coupled with the additional feature that the case is concerned with matters involving faith and doctrine , mean that the Courts are reluctant to intervene where no property or monetary interest or something of that kind is at stake.

[58]     The complaint of wrongful exclusion from the premises is the second cause of action but I shall deal with it out of order because the outcome of this cause of action will impact upon the causes of action relating to the trespass notices.

[59]     The form of the pleadings makes it clear that the plaintiffs are claiming that in their capacity of congregation members, they have been wrongfully excluded from the Church property.   I will give further consideration to the question of the correct legal characterisation of that right further on in this judgment.  For present purposes it seems to be beyond argument that it could not be viewed as a right of property which the plaintiffs risk losing through the actions of the defendants or other persons.  The rights of access that they have to the property do not derive from a leasehold interest, which, for example, could be regarded as a right which is under threat of expropriation.

[60]     I accept that decisions excluding the plaintiffs from the Church property arguably do not engage issues of faith and doctrine.  The underlying dispute may, in so far as it has to do with the standards of personal conduct that are applicable to a Minister of the Church.   It is the response of the plaintiffs in not accepting the majority’s view that Mr Spandow should continue in office, and the reasonableness of the defendants’ reaction to the plaintiffs’ dissent, that are the matters the Court would have to weigh, if it were to assess whether the plaintiffs ought to have been excluded from the property.   Notwithstanding that such an enquiry would not, at least arguably, engage matters of faith and doctrine, I conclude that the dispute between the two factions is not a matter that the Courts would traditionally enquire

into.

The possibility of judicial review

[61]     Mr Illingworth submits, in the alternative, that the Court could scrutinise the defendants’ decisions by using the Court’s jurisdiction to review the use of the public power.

[62]     This is an additional procedural route that the plaintiffs consider is open to them in respect of their grievances. I have decided that the plaintiffs may not proceed against the first and second defendants because they are unincorporated associations and the issues are not justiciable.   However, in the event that I am wrong, I will consider the possibility of judicial review.

Judicial review under s 4 of the Judicature Amendment Act 1972

[63]     Section 4(1) of the Judicature Amendment Act 1972 (JAA) empowers, inter alia, the High Court to review an exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power. McGechan on Procedure outlines  four  requirements  that  must  be  met  for  the  power  under  s  4  to  be

exercised:18

a)        The exercise, refusal to exercise, or proposed or purported exercise;

b)        Of a “statutory power” (as defined in s 3 of the JAA);

c)        By any “person” (as defined in s 3 of the JAA); and

d)       Which  is  sufficiently  public  in  nature  and  effect  to  warrant  the

exercise of the Court’s supervisory jurisdiction.

[64]     I  accept  that  there  has  been  an  exercise  of  a  statutory power.    For  the purposes of this judgment, I will assume that it is not beyond argument that members

18 McGechan on Procedure, above n 2, at [JA4.01].

of the congregation are entitled to insist that the controlling body of the congregation acts in accordance with the statutory delegation of the power of management and control of the Church property present in s 38 and sch 2 of the Presbyterian Church Property Act (discussed below).  Whether individual members of the congregation would be entitled to seek redress from the Courts because this authority had been arguably exceeded is a moot point.  This may be ultimately important because my conclusion, that  membership in the Church does not give rise to any rights to invoke the assistance of the Court, was reached on the basis that there is no source of rights such  as  the  contract  between  the  members  which  would  entitle  the  Court  to intervene.   By purporting to exclude congregation members from the Church property, the relevant defendants have exercised their power of control pursuant to s

38 and sch 2 of the Presbyterian Church Property Act.

[65]     I accept that the third element above has been  made out. I now turn to considering whether the exercise of this power is sufficiently public to warrant the Court’s intervention.

[66]     I was referred to the case of OY v Assessors,19  which was said to provide support for the view that there was such a jurisdiction and that it was exercisable in the present case.  In OY, the church appointed assessors to consider whether charges should be laid before the Complaints Hearing Committee. It was said for OY, apparently, that to continue matters before the Complaints Hearing Committee in the circumstances  would  amount  to  an  abuse of  process.    The Complaints  Hearing Committee decided that the judicial commission, as appointed by the Council of Assembly of the Presbyterian Church, could consider whether it was an abuse of process for the complaints to continue to be heard given that OY had been acquitted of criminal charges based upon the same allegations, and that he had asked the Complaints Hearing Committee to strike out or stay the proceedings before that Committee.    Nonetheless,  the  Judicial  Commission  determined  that  proceedings were not an abuse of process so that the Complaints Hearing Committee was able to proceed.    OY  then  filed  proceedings  seeking  judicial  review  of  the  Complaints

Hearing Committee’s determination to proceed.  Asher J concluded, in the judicial

19 OY v Assessors [2010] 2 NZLR 832.

review proceedings, that an interim order was justified staying the hearing of the disciplinary charges before the Complaints Hearing Committee until a substantive hearing in the review proceedings could be carried out.

[67]     Asher J referred to Keith J’s statement in Royal Australasian College of

Surgeons v Phipps:20

Over  recent  decades  Courts  have  increasingly  been  willing  to  review exercises of power which in substance are public or have important public consequences, however their origins and the persons or bodies exercising them might be characterised...   The courts have made it clear that in appropriate situations, even although there may be no statutory power of decision or the power may in significant measure be contractual, they are willing to review the exercise of the power including review for breaches of natural justice.

[68]     Subsequently, the judgment in OY continued at [12]:

Given the interim nature of this hearing and the concession on the part of the defendants, it is not necessary to consider the issue of jurisdiction further.  I am satisfied that it is seriously arguable that the court does have jurisdiction to intervene.

[69]     As Mr Barker correctly pointed out, there was therefore a concession.  The reasoning behind the judgment included that there had been a concession that there was an extant jurisdiction, as was described in Royal Australasian College of Surgeons. He said that the question of the existence of such a jurisdiction was moot. He further said that the decisions taken by governing bodies of St Paul’s were not in substance public decisions and they did not have important public consequences.

[70]     Mr Barker referred in support of this submission to the English case of R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth,  Ex  parte  Wachmann.21     That  case  was  concerned  with  an application for judicial review that was brought by Rabbi Wachmann against the Chief Rabbi.  The Chief Rabbi had enquired into allegations of moral unfitness on

the part of Rabbi Wachmann, arising from conduct within his congregation.  As a

20   Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 at 11-12.

21 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036 (QB).

result of the Chief Rabbi’s conclusion as to Rabbi Wachmann’s lack of moral and religious fitness, the executive and counsel of the relevant congregation terminated his employment.    The applicant supported his case by reference to what the Judge described  as  “the landmark  decision” of  the  Court  of Appeal  in  R  v Panel  on Takeovers and Mergers, Ex parte Datafin plc,22 and in particular, a passage from the judgment of Donaldson MR at 577:

Possibly the only essential elements [required to attract the High Court’s supervisory jurisdiction] are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is of consensual submission to its jurisdiction.

[71]     It is the reference to the “public element” which Mr Barker drew attention to. In R v Chief Rabbi, after considering the relevant authorities, including the Datafin, case Simon Brown J stated:23

To say of decisions of a given body that they are public law decisions with public law consequences means something more than that they are decisions which may be of great interest or concern to the public or, indeed which may have consequences for the public.   To attract the court’s supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision – making power in question.

[72]     In R v Chief Rabbi, the Court concluded that it could not be suggested that the Chief Rabbi performs public functions in the sense that he is regulating a field of public life, and but for his officers, the Government would impose a statutory regime.24    On the contrary, his functions are essentially intimate, spiritual and religious functions that the Government could not and would not seek to discharge in his place, were he to abdicate his regulatory responsibility.

[73]     It has been questioned in Bahá'is, whether the conclusions in R v Chief Rabbi

regarding the ambit of the public element necessary before the Court will intervene in cases of this kind coincide with the state of the New Zealand authorities.25

22 R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] 1 All ER 564 (CA).

23 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann, above n 20, at 254.

24 At 1041-1042.

25 Marshall v National Spiritual Assembly of the Bahá'is of New Zealand Inc, above n 17, at [56].

[74]     Returning to Royal Australasian College of Surgeons, I note that the Court of

Appeal referred to the issue in these terms:26

...What is in issue is whether the power or right [the College] was exercising in carrying out the review was done by or under the Constitution of a body corporate.

[75]     In this case, the body that purported to exclude the congregation members was  the Church  Council.  The Council  is  not  a body corporate.   Therefore,  the statutory power of judicial review contained in s 4 of the JAA would not seem to apply.

Judicial review outside of the JAA

[76]     Outside the scope of the JAA, there is no doubt that the courts will entertain applications to review decisions of those bodies that it considers it must oversee the decisions of, in order to provide rights of recourse to the public whose lives and affairs will be impacted.  Cases such as Ex parte Datafin Plc are examples of the Court's intervention to review the decision of a body that had no statutory basis on the grounds, broadly speaking, of the wide public effect of its decisions.

[77]     In the case of Mercury Energy Ltd v Electricity Corporation of New Zealand

Ltd,27 the Privy Council stated:28

Judicial review was a judicial invention to secure that decisions are made by the executive or by a public body according to law even if the decision does not otherwise involve an actionable wrong.

[78]     In that case, the Court was concerned with a state-owned enterprise, which was a public body. Its shares were held by Ministers of the Crown, who are responsible to the House of Representatives and accountable to the electorate.  The Corporation carried on business in the interests of the public.   It was a body established by statute. Its decisions were to be made in the public interest and could

adversely affect the rights and liabilities of private individuals without affording

26 Royal Australasian College of Surgeons v Phipps, above n 20, at 13.

27 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).

28 At 388.

them any redress.  It was for those reasons, the judgment continued:29

... Their Lordships take the view that in these circumstances the decisions of the Corporation are in principle amenable to judicial review both under the Act of 1972 as amended and under the common law.

[79]     The legitimacy of judicial review is based in the rule of law and the need for public bodies to act according to the law.  It is a means to hold those who exercise public power accountable for the way in which such power is exercised, especially when decisions lie outside the effective control of the political process.30

[80]     Based upon this brief review of the authorities, it would not seem that a decision of the Church Council, excluding a number of congregation members from the Church and standing them down from membership of governance organs of the congregation, can be described as the exercise of power that is in substance public, or that has important public consequences.   The result is that the circumstances which are pleaded by the plaintiff do not disclose a viable cause of action based upon judicial review.

[81]     The  origins  and  purposes  of  the  exercise  of  jurisdiction  to  review  such decisions were never intended to extend to the decisions of a local church council dealing with members of its congregation.  In the absence of some statutory right to intervene, it is not arguable that judicial review will lie.   I do not accept that an application   for   judicial   review   would   be   sustainable   under   the   Judicature Amendment Act 1972.  My conclusion is that in the absence of any other basis to support review by the High Court, the claim for declarations cannot succeed.  There would be no basis for issuing a declaration unless there was some extant underlying right upon which it could operate.   Assuming that the decisions of the Church Council cannot be judicially reviewed, there is no basis for a remedy in the form of a declaration.

[82]     The  next  point  that  needs  to  be  considered  is  the  comparison  that  the

29 At 388.

30 See Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Thomson

Brookers, Wellington 2009) at [21.1].

plaintiffs apparently make between membership of the congregation of the church and the purportedly similar position that arises in litigation between members of a club and the club itself.  There was no detailed discussion of authority, although Mr Illingworth did make reference to Lee v Showmen's Guild.31   Cases such as Lee were concerned with situations where there was a contract between the members of the club.    That  is  not  the  position  with  respect  to  members  of  the  congregation.

Therefore, the claims based upon an alleged breach of process on the part of the Church Council and other governance elements of St Paul's Church when dealing with the suspension of the various plaintiffs would not appear to be arguable.

[83]     In  Royal  Australasian  College  of  Surgeons,  the  Court’s  judgment  was couched in terms that suggested that this is a developing area of the law.32   In such areas the Court’s exercise is to proceed with caution.  One of the reasons for this is that exposure of the issues is best achieved where there is also an identification and resolution of factual issues in the background to legal determinations in developing areas of the law.

The power to exclude congregation members from the property

[84]     The determinations that I have made to this point are to the effect that the dispute between the parties is not justiciable for dual reasons, namely that there are no contractual rights vested in the plaintiffs, there is no legal entity presented as a defendant against whom judgement could be entered, and judicial review is not available as a source of rights.  In case I am in error in these conclusions, I will go on and consider other suggested bases of legal rights upon which the plaintiffs seek to mount their claims.  In particular, consideration will be given to the implied licence argument which the plaintiffs put forward.

Exclusion from the church premises

[85]     The next point is whether the Court will intervene in the Church’s right to

prohibit access to the Church.

31 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329 at 341, per Denning LJ.

32 Royal Australasian College of Surgeons v Phipps, above n 20, at 12.

[86]     Mr Illingworth pointed out that s 15(1) of the Presbyterian Church Property Act 1885 vests property in the trustees “for the use or purposes of any congregation of a Presbyterian Church”.  Mr Barker, on the other hand, submitted that even if it was  a  justiciable  issue,  members  of  the  congregation  came  onto  the  property pursuant  to  an  implied  licence.    He  submitted  that  any  implied  licence  was conditional upon the congregation member behaving in an appropriate manner and fulfilling his or her obligations.  He said that the implied licence had been revoked at the  instigation  of  the  Church  Council,  who  was  responsible  for  the  use  and

management of the Church property pursuant to the Book of Order,33  in that the

relevant counsel had ratified and approved the steps of issuing the trespass notices at meetings held respectively on 21 December 2011 and 6 April 2012.

[87]     If it was within the Court’s remit to rule on questions of reasonableness on the part of the Church Council, then a number of sub-issues would need to be examined.   The reasonableness of the way in which the plaintiffs comported themselves, whether they posed a threat to the good order of the Church, and indeed, the physical safety of any of its members or officers, would be prominent amongst such sub-issues.   Another question might be the reasonableness of the  plaintiffs giving reign to their anger as to the alleged conduct of Mr Spandow, and the backing that he allegedly received from the Church Council.

[88]     In case I am wrong about whether the plaintiffs are able to bring claims against the Church Council (as opposed to the merits of those claims), I will consider the issues  that  the trial  court  would  be called  upon  to  consider concerning the question of access by the plaintiffs to the church were the matter to proceed to trial.

[89]     The first question to be examined is who has control over the property.  That in turn involves a question of who owns the property.   A further issue is in what circumstances congregation members can be excluded from the Church premises.

[90]     Dealing first with the question of ownership of the property, I accept that it has been established for the purposes of the present applications that the property is

33 Book of Order, above n 1, at [16.3].

owned  by the  trust.    The  trust,  which  was  incorporated  under  the  Presbyterian Church Property Act, is authorised and directed to hold property that belongs to the Church.  That fact is established by the affidavit of Mr Worn.  That does not resolve the issue to be decided on this application, which is whether the Church Council had power to exclude congregation members.  That requires some consideration of the distribution  of functions  between  the incorporated  trustees  and  the local  church council.

[91]     Mr Illingworth drew my attention to s 38 of the Presbyterian Church Property

Act, which provides:

38        If trusts not defined property to be held for purposes in Schedule

If any property shall be so given, devised, or bequeathed, or if any property shall be purchased or acquired by the trustees or any other person or persons

for all or any such purposes or objects as aforesaid, without defining or declaring the trusts thereof, then such property shall be held, managed, and dealt with upon and for the purposes mentioned and set forth in Schedule 2

hereto, or such of them as the trustees shall deem to be applicable. And a statement or declaration in any instrument that such property is, or is to be,

held for the purposes of a Presbyterian church (and naming such church) shall be sufficient authority to the trustees to exercise the powers conferred by this Act in respect of such property or any part thereof.

[92]     The substance of that provision is that if there are no specific trusts that relate to a property that has been received by the Church (for example, as the result of a bequest), then the incorporated trustees are to hold that property on the terms set out in sch 2 of the Act.  That schedule provides:

Subject  to  this  Act,  every  place  of  worship  and  every  schoolhouse  or building used for school purposes shall be in the immediate possession, charge, and control of the managers, and they shall have full power to make any alteration in, or addition to, any place of worship, manse, [schoolhouse, or  building  used  for  school  purposes],  or  to  re-erect  the  same  when necessary:

[Provided that no such alteration or addition or re-erection shall be commenced or made if the cost thereof is estimated to be more than [[$600]] (or such greater sum as may from time to time be approved by resolution of the General Assembly of the [[Presbyterian Church of Aotearoa New Zealand]]), and no new buildings shall be so erected, until the plans of the alterations or additions, or of the building to be re-erected or erected, have been approved by the Presbytery of the bounds.]

[93]     It was Mr Barker’s submission that s 38 related only to acquisitions pursuant

to  s  37,  and  such acquisitions  were only those  resulting from  a person  giving, devising or bequeathing to the trustees any property for any purposes, and so on.  He went on to note that if the property was acquired by the means described in s 37 without defining or declaring the trusts, then the property would be held by the trustees on the terms set out in sch 2 to the Act.

[94]     Mr Illingworth submitted that there was a doubt in point of fact as to whether the property had been  acquired by the means  contemplated by s 37, and if so, whether there were trusts regulating the basis on which the property was to be held and managed.  If that was so, the question of who had the right to control access to the Church property at Manurewa was therefore a matter of doubt, and assertions by the defendants that pursuant to paragraph 2 of sch 2 to the Act that the property shall be “in the immediate possession, charge and control of the managers ...” was a matter of doubt.  In other words, it remained unclear whether the persons who issued the trespass notices had the authority to do so.

[95]     On the day of the hearing of these applications, the first to fourth defendants filed a further late affidavit of Mr J M Van Lier, who is the executive officer for the trustees comprising the Presbyterian Church Property Trustees (“PCPT”).  He said he had made enquiries about the property at St Paul’s at Manurewa and says that the Church and manse are not held pursuant to any specific trusts. On that basis, the PCPT treat the property as held pursuant to the general trusts set out in the Presbyterian Church Property Act, including sch 2.

[96]     Mr Illingworth was critical of this evidence.  He pointed out that Mr Van Lier based his knowledge on a review of the records for the parish property.  He further was critical of the fact that Mr Van Lier said that he had “determined” that the property was not subject to any specific trusts.

[97]     I do not consider that these objections have any substance.  The way in which Mr Van Lier has satisfied himself about the various matters are wholly typical of the way that officers in large entities such as corporations and charities form their views. As to the use of the word “determined” that was simply a way of his expressing the

view that he had come to the conclusions that he did.

[98]     Mr Van Lier’s affidavit contains averments of fact based upon the Church records.    There  has  been  no  affirmative  suggestion  by  the  plaintiffs  that  the Manurewa property is in fact held on specific trust of the kind recognised in ss 37 and 38.  Even though Mr Van Lier’s affidavit was filed late, Mr Illingworth, quite fairly, did not suggest that this caused prejudice.  He did not indicate that this was an area in which the plaintiffs would wish to adduce further evidence themselves.  It is correct that he characterised the point about s 38 as being one that had not been raised in the pleadings, but it seems to me that the issue of who had authority to manage the Manurewa property was always going to be a live one, and that the impact of the Act and the schedules thereto could well hold the key to that issue.

[99]     In the absence of any evidence to the contrary,  I agree that it has been established that it is not arguable that there is a trust specific to the Manurewa Church property of the kind to which s 34 refers. This means that sch 2 applies.  I accept that the Court must be cautious about coming to a firm conclusion on issues of fact where it has before it only the limited materials typically provided for the purpose of strike out and summary judgment applications.  However, the question of the management of the Manurewa Church property involves consideration of circumscribed  factual  matters,  with  the  preponderance  of  the  enquiry  being concerned with what the provisions of the Act are, rather than factual matters.   I therefore conclude that the Court is well able to decide the issue of who exercises control over the Church property.

[100]   In my view, the defendants have been able to establish the question of control of the property with sufficient certainty that the Court can accept, on the balance of probabilities, the necessary facts upon which to found the proposition that the property is managed in accordance with paragraph 20 of sch 2 to the Act.

[101]   Paragraph  2 of sch 2 to the Act states that the  property shall be in the “immediate  possession,  charge  and  control  of  the  managers”.    The  next  issue concerns  whether the  managers had  authority to  exclude congregation  members

pursuant to the authority arising from the schedule to the Act, and secondly whether it was the managers who exercised the power to exclude the plaintiffs from the property.

Was the Church Council entitled to exercise the power of exclusion in the particular circumstances?

[102]   If it is correct that the use and management of the Church property is the responsibility of the elders in Session, in conjunction with the Board of Managers, (the Church Council), then there can be little doubt that they have an implied right in some circumstances to take steps to exclude persons from the property where such persons have caused or threaten to cause harm to the property itself or to other occupiers.

[103]   The defendants’ case was that the plaintiffs can only come onto the property as a result of implied licence, which can be revoked.    While that might be an accurate description of the legal category into which the rights of the plaintiffs fall, it does not advance understanding of the issue of whether the Church Council acted in a way that was justifiable by revoking the implied licence or otherwise.  To answer this question, the Court must consider the question of what criteria it ought to have observed in the course of purportedly exercising its authority,  and what factual situation would have justified them in exercising that authority.

[104]   Even though the authority vested in the defendants has not expressly been qualified, I would accept that there must be limits on the way it could be exercised. In the absence of detailed argument on the point, I would assume that the authority could only be exercised in a way that furthered the objects of the Act.

[105]   On the basis of the foregoing assumption, it would appear that the question of whether the authority has been properly exercised by the Church Council must be affected by the standards and values embedded in the Book of Order.  I consider that it can be accepted, that a congregation member who persistently and  flagrantly defied the authority of those who have responsibility for maintaining good order and a proper environment at the Church could hardly complain on being excluded from the Church.  Those remarks are even more applicable to persons who use physical

force against fellow congregation members.

[106]  I have already concluded that the provisions of the Act and the factual circumstances proved here in combination establish that the managers had control of the Church premises.  It was argued in this case that the congregation members who are the affected plaintiffs had an implied licence to enter onto the land.   Such an implied licence would have had to have been revoked prior to the trespass warnings by a person with authority to do so.

[107]   It  follows  from  the  foregoing  conclusions  that  I  do  not  agree  with  the plaintiffs’ stance, which is to the effect that they had an unqualified right as members of the congregation to come onto the property.  My view is that the Church Council had the power to revoke the implied licence.  The question of whether the point had been reached where they were entitled to do that is not straightforward.

[108]   I accept that Mr Siaosi was charged with assault, and received diversion after entering a guilty plea from the charge arising out of events at the Church.  There is no doubt that an assault on a fellow congregation member would be quite unacceptable behaviour and would concern the Church Council.  It is also clear that Mr Fale Jnr broke a window.  Beyond those statements of the factual position, no firm findings of fact can be made given the allegations and counter-allegations that are made in the affidavits.

[109]   Again, assuming that the Court does have jurisdiction to enquire into these matters, in the case of the two plaintiffs who committed misconduct, there remains a further enquiry about the reasonableness of the conditions upon which they should be readmitted to congregational activities.

[110]   If, for the purposes of argument, it is assumed that Mr Spandow’s conduct was wanting, the plaintiffs could claim that they have been vindicated on that issue. However, the continued exclusion of the plaintiffs from the Church premises is justified, not just on the basis of the view that they took on the main issue which started this whole dispute, but also because of the way they allegedly behaved when

an opposing faction took a different view.  It is possible that the defendants could be vindicated on the main issue, and yet still be found to be in the wrong because of the way that they expressed their dissent.  It might be thought, to put the matter shortly, that they were correctly excluded from the church premises.

[111]   My  conclusion,  in  regard  to  the  question  of  entitlement  to  exclude  the plaintiffs from the premises, is that it is possible that the plaintiffs may have an arguable case that the implied power vested in the Church Council to exclude congregation members from the Church property, arising as it does from provisions contained in the Act, may be the legitimate subject of a judicial review application. Given the conduct of some of the plaintiffs, they may not be able to establish the necessary factual grounds to establish that they are entitled to relief.  That is not a decision  which  is  open  to  the Court  hearing  summary judgment  and  strike out applications to make. However, inquiring into those sorts of matters must be academic, if in fact, there was no firm platform of fact upon which the Court could reach a conclusion about what actually happened at the Church on the dates in question.

The trespass notices

[112]    The trespass notices were issued in order to prevent the relevant plaintiffs from coming on to the Church property.  The defendants contend that the right of control over the premises vested in the managers ought properly to be exercised so as to exclude the plaintiffs for reasons of maintaining good order at the Church.

[113]   In Wilcox v Police,34 Tipping J said:

The civil wrong of trespass consists of setting foot on the land of another, or remaining there, without that other’s permission, express or implied, unless there is some other legal justification for doing so.

[114]   From this formulation, the case for the plaintiffs was that they were not trespassers for the reason that they were not coming on to the land “of another”, but

were in fact coming on to land over which they had an equal entitlement to visit.  At

34 Wilcox v Police [1994] 1 NZLR (HC) 243 at 246.

the heart of the trespass claim are the same issues that I considered under the right of access part of this judgment.  The issue comes down to whether the plaintiffs had an unconditional right to occupy the property by virtue of the trust arrangements on which  the  property  was  held  by the  managers,  or  whether  they had  some  less unqualified entitlement to come on to the property by way of an implied licence.  In this regard, I will not repeat what I have said in the section concerning the power to exclude the plaintiffs.

[115]   The justiciability of the question of whether certain defendants were entitled to serve trespass notices covers the same ground as the discussion set out above about the power to exclude from church premises.  The issue of justiciability impacts upon the validity of the trespass notices.  If it were open to the plaintiffs to challenge the  exercise  of  the  delegated  power  to  manage  the  premises  as  an  exercise  of statutory function or power, it is possible that the plaintiffs (or some of them) could obtain declarations that their exclusion from the Church property was unjustified.  If they were successful in that contention at trial, the way would be open to them to obtain declarations to that effect.  However, there remain additional questions about the trespass notices which require some comment.

[116]   There was considerable discussion on the question of whether the trespass notices were actually issued by an “occupier”, as that term is understood in s 4 of the Trespass Act. The plaintiffs contend that they had co-extensive rights as occupiers of the property, and that the other parties who served the trespass notices did not have the  necessary  exclusivity  of  possession  of  the  property  so  that  they  could  be described as the occupiers.  I do not consider that that contention is legally arguable. That conclusion is the corollary of the earlier conclusion reached that  the legal arrangements with regard to the Church property meant that the Church Council was the body responsible for managing the property.   Consistently with that view, the plaintiffs’ entitlements were limited to those of an implied licensee.

[117]   The other point involves the authority of those of the defendants who were instrumental in bringing about the service of trespass notices.  In the end, arguments about the authority of the defendants who initiated the trespass proceedings do not

make any headway, because it seems plain that the Church Council has ratified the service of the trespass notices on the individual plaintiffs.  Even if there was a want of authority at an earlier point, it has been cured.

[118]   In addition to the points just made, questions about justiciability emerge again when the process of issue of the trespass notices comes under discussion.

[119]   Even if parts of the plaintiffs’ claim were struck out, others would remain and there would therefore be no point in making an order as sought by the defendants. That conclusion would have reflected the consideration that the validity of trespass notices hinges on the question of what, if any, actual misconduct the plaintiffs were guilty of, and whether the response of issuing them with trespass notices was a proportionate one.

[120]   If the case turned on that issue, it would not be appropriate for the Court to determine the question on a summary judgment/strike-out basis.

[121]   It is not necessary for the Court to determine the alternative submission the Church Council put forward, which was to the effect that the question of validity of the  trespass  notices  could  be  determined  only  as  part  of  the  process  of  the appropriate  court  hearing  and  determining  criminal  charges  based  upon  those notices.

[122]   While it is not strictly necessary to do so, it might be useful to briefly discuss the question of the viability of the cause of action based upon breach of statutory duty.   Part of the way in which the plaintiffs plead their case in the first cause of action involves aspects of the trespass notices giving rise to separate issues.  As part of the pleading of that cause of action, the plaintiffs allege that they are the "lawful occupiers" of the Church property, therefore the various defendants have no lawful authority to issue trespass notices against them.  The conclusion that I have come to concerning the effect of s 20 of the Act is entirely inconsistent with the pleading that the  plaintiffs  are  lawful  occupiers  of  the  premises.    It  is  also  contrary  to  the conclusion reached that they have an implied licence as congregation members to

come onto the property.  However, the other part of the first cause of action proceeds on the basis that even if the defendants had lawful authority to issue a trespass notice, there were no justifiable grounds for doing so in the circumstances of this case.  If, these issues were in fact justiciable, I would have concluded that the cause of action raises matters of fact that are not appropriate for resolution on a summary basis.  If the dispute between the parties was justiciable, it would be clear that the factual uncertainties would make this case one in which it would be wrong to issue summary remedies of strikeout for summary judgment.

[123]   A further issue that arises in connection with  the trespass  notices is the viability of the damages claim which the plaintiffs bring purportedly based upon breach of the provisions of the Trespass Act.   This part of the claim is dealt with further on in the judgment.

Expulsion of Plaintiffs from Session – the fourth cause of action

[124]   The first and second plaintiffs claim that they were unlawfully dismissed or suspended  from  membership  of  the  Session.     The  claim  is  brought  against Mr Spandow and Mr Fa’avale, who is the Session Clerk.  The plaintiffs’ claim is that the relevant defendants did not comply with the procedural provisions of the Book of Order in  chapter 15,  which is  concerned  with  the broad  subject  of disciplinary proceedings.  That part of the Book of Order provides for the exercise of discipline in regard to conduct unbecoming to persons at all levels of the Church hierarchy down  to  associate  members  of  a  congregation.    The  nub  of  the  case  is  that Ms Hapinale-Brady, Mr Fale Snr and Mr Siaosi were not given proper notice of their charges, not given an opportunity to respond to them before they were suspended, and that the decision was pre-determined.  For that reason a declaration is sought that the “motion” suspending and dismissing the plaintiffs in question was invalid.  The plaintiffs are seeking general damages.

[125]   Consistent with my earlier conclusions, this claim cannot succeed for the reasons that can be broadly described as the justiciability problems. There is no legal source of rights available to the plaintiffs and the Court will not intervene in circumstances  where  no  proprietary civil  or  economic  interest  is  engaged.  This

question is essentially a religious function.

[126]   The first two fourth defendants make the further point that congregation members must comply with the Book of Order35 and that members must accept the discipline and government of the Church.36

[127]    It is also necessary to mention that the defendants have put forward a second basis upon which Ms Hapinale-Brady’s expulsion from the Session is justified. They contend that she was never properly appointed to it, and that determination has since been made by the Clerk of the Northern Presbytery.  This last mentioned decision is apparently not under review, and accordingly, in the case of Ms Hapinale-Brady, she could not be restored to the Session unless and until she succeeded in having the Northern Presbytery’s Clerk’s decision reversed.   If it were necessary for me to decide that point on this ground, I would accept that point as fatal to the claim of Ms Hapinale-Brady.

[128]   It is not necessary to deal with the further submission for the defendants that they simply put the motion forward and that they did not make the decision.  They put forward an opinion, which was not reviewable.   The defendants say that the position is analogous to R v Sloan,37  where it was said that decision of inspectors under the Gaming and Lotteries Act 1977 took the view that the defendant was operating a game of chance at his premises and wrote a warning letter.   He was advised to cease the operation immediately or else enforcement action would take place.  Judicial review was sought of what the defendant claims was the inspectors’

decision to give the warning, which was underwritten by the opinion that the operation was unlawful.

[129]   The argument was rejected on the ground that the statute under consideration in that case did not confer upon inspectors the power to decide whether an activity was unlawful.  All they could do is form an opinion and then, on the basis of that

opinion, institute the necessary procedures for the decision being made by the only

35 The Book of Order, above n 1, at [2.2].

36 At [4.2].

37 R v Sloan [1991] NZLR 474 (HC) at 478.

competent authority, the Court.38   That case was argued as analogous to the present one,  in  that  the  defendants  did  not  make  the  ultimate  decision  to  exclude  the plaintiffs  from  the  Session.    If  the  decision  was  actually  made  by  the  Church Council,  there  may  well  be  force  in  the  contention  that  only  the  Council  is answerable for procedural shortcomings in the making of the decision and that it does not advance the case of the plaintiffs to raise issues concerning procedural inadequacies against those whose role was limited to placing the matter before the body which had to deliberate on the question.  However, in the context of the present applications, the point is not needed to be considered further.

[130]   It seems clear in this case that the decision was actually made by the Church Council.   That body is not incorporated, and proceedings against them are unsustainable on that ground and also on the ground of general non-justiciability of church matters where no civil or proprietary right is in issue.   I also accept that judicial review does not lie against a determination of the Church Council for the reasons set out in the section relating to judicial review.

[131]   I therefore conclude that the fourth cause of action cannot succeed and that judgment ought to be entered for the defendants on that cause of action.

Suspension of first plaintiff as preacher

[132]   A related cause of action associated with the fourth cause of action is based upon the claims for relief arising out of the alleged withdrawal of the entitlement of the first plaintiff to preach at Samoan-language services at the Church.

[133]   The same substantial issues arise as those that were called for consideration with regard to the suspension from the Session.

[134]   It  was  the  defendants’  position  that  controlling  the  right  to  preach  was

Mr Spandow’s prerogative.   It was said that it was for Mr Spandow to determine

who should and should not preach at his church.  Mr Spandow apparently decided

38 At 479.

that, in exercise of this alleged right, he should withdraw Ms Hapinale-Brady’s

entitlement to preach because of what he viewed as her misconduct.

[135]   The  same  points  about  justiciability  and  the  non-availability  of  judicial review are raised for the defendants in regard to this cause of action.  Further, the defendants contend that even if the Court accepted jurisdiction to deal with the matter, Ms Hapinale-Brady cannot succeed because the Book of Order expressly vests in the Reverend the sole right and discretion as to who will preach.39   The first plaintiff accepts that the question of who is to preach is a matter within the dispensation of the Minister.  The only way in which the first plaintiff could continue with the cause of action was if she were able to show that the decision to prevent her

preaching was flawed.

[136]   I do not consider that this claim can succeed because of the lack of legal rights which  the plaintiff can  invoke to  justify the Court's  intervention.    I also broadly agree with the grounds put forward by the defendants.   I consider that the plaintiff is unable to support the intervention of the Court by way of judicial review, which could have, in theory at least, lead to an examination of the process pursuant to which Mr Spandow made the determination to omit the plaintiff from the roster of preachers.  In addition to raising questions of the source of any right on the part of the Court to intervene in this matter, this issue in particular would require the Court to become involved in consideration of matters having a particularly religious or faith-related aspect.

[137]   The decision to prevent Ms Hapinale-Brady preaching seems to be justified by the Minister, the third defendant, on the basis that he had reorganised the roster for certain preaching duties and had not included the name of the first plaintiff on it. In other words, the decision is not put forward as being one based upon personal inadequacies of the first plaintiff as a preacher.   The implication is that it was a routine organisational decision.  There is no explicit linking of her being stood down

as a preacher to the part that she has played in the acrimony in the congregation.

39 The Book of Order, above n 1, at [6.4(f)], [6.8(I)] and [6.11(a)].

[138]   Were it open to Ms Hapinale-Brady to bring a dispute of this kind before the Court, I would readily accept that there are disputed questions of fact that would make it inappropriate for the Court to strike out this cause of action or to enter summary judgement in favour of the defendants on it.

Claim against fifth defendant in negligence

[139]   The claim which the plaintiffs bring against the fifth defendant alleges:

That the fifth defendant, before signing the trespass notice in respect of the Church property purporting to be on behalf of the lawful occupier, had a duty to ensure that they had proper authority from the lawful occupier to issue the trespass notice.

[140]   It is thereafter alleged that the fifth defendant did not have "lawful authority" to issue the trespass notices.40   I understand that the cause of action against the fifth defendant is intended to be a claim in negligence.

[141]   The plaintiffs say that while this is a novel cause of action, it should not be struck out.  They refer to the judgement In Couch v Attorney General41 where Elias CJ said:

[32]      It  is  often  not  easy  to  decide  whether  a  duty  of  care  not  previously recognised by authority is owed to the plaintiff, as Woodhouse J in Takaro acknowledged and as is amply demonstrated on the authorities. It may be unrealistic to expect that the pleadings and arguments to support a claim will always  be  adequate  at  an  early  stage  of  the  proceedings.  Caution  in disposing of such cases on a summary basis is necessary both to prevent injustice to claimants and to avoid skewing the law with confident propositions of legal principle or assumptions about policy considerations, undisciplined by facts.

[33]     It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing. And in both X (minors) v Bedfordshire  County  Council  and  Barrett  v  Enfield  London  Borough Council liability in negligence for the exercise or non-exercise of a statutory duty or  power was identified as just such a confused or developing area of law.

[142]   The plaintiffs also assert that because the solicitor was acting for the Church of  which  they were  members,  this  is  a  case  where  the  duty of  the  solicitor  is

40   Statement of Claim paragraph 80.

41   Couch v Attorney General [2008] NZSC 45.

analogous to that of the solicitors in the so-called "Wills” cases. In this respect it is submitted that this case is analogous to White v Jones42  and Gartside v Sheffield, Young & Ellis,43 where the client’s and beneficiaries’ (as a third party) interests were the same.  The further submission was made that, as in those cases, the duty owed to the plaintiffs  is  consistent  with  the duty that  was owed  to  the  Church  Council members who instructed the solicitor.

[143]   I do not accept that the submission is correct.  The factual circumstances are entirely different from the case where a testator intends to confer an advantage on a beneficiary but is thwarted in so doing because of negligence on the part of the solicitor, meaning that the testamentary intentions of the testator are not carried into effect.  In a case of the present kind, the instructions which the solicitor receives are not intended to advantage the third party, the plaintiff, at all.   The relationship between the client instructing solicitor and the third party in the present context is an adversarial one.  The instructions to the solicitor are intended to result in a state of affairs which is arguably disadvantageous to the third party.

[144]   That being my view of the correct interpretation of the facts which ought to be adopted, I do not consider that applying the dictum in Couch requires the Court to dismiss the application to strike out.

[145]   The pleading against the fifth defendant also contains reference to a breach of a statutory obligation.  I shall give brief consideration to the claim on that footing. My understanding of the plaintiffs’ claim is that they allege that not only did the fifth defendant’s actions contravene the provisions of the Trespass Act, but also that where provisions of the Act are breached, a claim to damages or compensation arises on the part of persons for loss or damage that they might have suffered.

[146]   In regard to this part of the claim, I accept the submissions that Mr Corlett, counsel for the fifth defendant, made to the following effect:

42   White v Jones HC Auckland CP 1008-87, 10 September 1987.

43   Gartside v Sheffield, Young & Ellis [1983] NZLR 37 (CA).

(i)The primary objective of the Trespass Act is to provide criminal sanctions for trespasses committed by offenders on others’ property and nothing else (see ss 3, 4 and 11 of the Act);

(ii)The provisions of the Trespass Act do not stipulate that an issuer or, for that matter, anyone involved with giving advice in relation to the issue of a trespass notice, owes a duty to recipients of such notices, and

(iii)The Trespass Act makes no provision for a recipient of a trespass notice to pursue a civil claim indicating that Parliament intended that no civil cause of action arises under the Act.

[147]   Based on the evidence filed in support of the applications, I regard it as established that the Church Council is the occupier of the property and that therefore it fell within the class of persons who is entitled to serve trespass notices.  While the status of occupier is a necessary pre-condition to serving a trespass notice, it is not necessarily sufficient to justify the issue of a trespass notice in all circumstances.

[148]   Whether civil rights of action for breach of the Act are available raises the question of whether the legislature intended to confer a right of action which could be the basis of an award of damages in circumstances where the provisions of the Act had been breached.44

[149]   Broadly speaking, it is of course correct that providing a remedy in damages where a statutory process has been misused will have the effect in future of deterring further breaches of the statutory enactment.  That consideration is a relatively weak argument upon which to mount a claim for damages for such breach.

[150]   It may also be relevant that an aggrieved person who is wrongfully excluded from occupation of property has civil rights of action in trespass, for his or her ejectment from the land.   In appropriate circumstances, the action of putting the

person off the property may amount to a breach of the contractual license which

44 Atkinson v  Newcastle and Gateshead Waterworks Co (1877) 2 Ex D 441 (CA) noted in The Law of

Torts in New Zealand, above n 4, at [8.2].

would give rise to a damages claim for its breach.  Frequently, there would therefore be an extant remedy for breach of the Act.

[151]   A claim of this kind would be novel.  The plaintiffs have not referred to any authority in which the Court has previously recognised a statutory cause of action arising out of the provisions of the Act.

[152]   For the foregoing reasons I am unable to accept that the claim for damages for breach of the Act is a recognised a cause of action.  In my view it ought to be struck out and I so order.

Joinder of the incorporated trustees

[153]   The plaintiffs seek to join the incorporated trustees under the Act as  an additional defendant in the proceeding.  Notwithstanding the position of the first to fourth defendants, there would not seem to be any objection to that course being allowed.   There would certainly be no procedural prejudice that those defendants could point to that would result from the joinder.  An order could properly be made to that effect.

[154]   The next question is what effect the making of such an order would have on the applications for strike-out and summary judgment.  In my view, they would not in any way lessen the plaintiffs’ difficulties.  The problems arising from their attempts to serve unincorporated bodies, the lack of judicial review and the general disinclination of the Courts to exercise jurisdiction on the affairs of churches, would remain.  Because the effect of the orders that I am going to make will be to bring the proceedings to an end, no point would be served in making the order sought and I therefore decline to do so.

Summary

[155]   The  conclusions  that  I  have  reached  in  this  judgment  can  now  be summarised.

[156]   The Church Council is an unincorporated association, and therefore cannot be

proceeded against.

[157]   The issues here are not justiciable.  The submission that the Court ought not to embark upon adjudicating on matters which are in dispute between the members of the congregation of St Paul’s Church is accepted.   The links between the congregation members, while consensual, are not contractual in nature. This can be distinguished from the line of authority known as the “club cases”.

[158]   As part of the issue of justiciability, the correctness or otherwise of  the governing body's actions in this dispute in excluding the plaintiffs from the premises and expelling the relevant plaintiffs from the Session and other meetings, involve questions of judgement about the propriety of the conduct of various people, as judged from a Christian perspective.  Judgments in such an area necessarily involve elements of faith, doctrine beliefs and standards.  Incursion by the Courts into such areas has long been recognised to be undesirable.

[159]   There are no recognisable legal rights which have been breached.

a)        There is no civil cause of action arising under the Trespass Act.

b)The first defendant has control of the premises by virtue of s 38 and sch 2 of the Presbyterian Church Property Act. They had authority to exclude   the   plaintiffs   from   the   property.   Whether   they   were reasonable in revoking any implied licence is not a justiciable matter, and subject to disputed questions of fact.

[160]   Judicial review in respect of the relevant causes of action is not available. The Judicature Amendment Act 1972 does not apply. The line of authority as per Ex parte Datafin does not apply.

[161]    The breach of statutory duty claim against the fifth defendant is struck out. The fifth defendant also did not owe any duty of care to the plaintiffs.

[162]   There is nothing served in making an order to join the incorporated trustees.

[163]   Having regard to these conclusions, there is no requirement to deal with the defendants' application for security for costs.

Orders

[164]   Given the conclusions of this judgment that none of the plaintiffs’ claims can succeed, the plaintiffs’ applications for summary judgment are dismissed and the defendants’ applications for summary judgment/strike out orders are granted.

[165]   The parties should confer on the question of costs and if they are not able to agree they are to file memoranda not exceeding eight pages on each side within 15

working days of the date of this judgment.

J.P. Doogue

Associate Judge