Brady v Presbyterian Church of Aotearoa New Zealand

[2012] NZHC 1019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2549 [2012] NZHC 1019

BETWEEN  LAISARINI HANIPALE BRADY First Plaintiff

SO'OLEFAI FALE AND SOTIATA FALE Second Plaintiffs

LAISARINI HANIPALE BRADY, SOTIATA FALE AND LUPEMATASILA SIAOSI

Third Plaintiffs

LEOTA SENERITA HENDRIKSE AND EDWIN HENDRIKSE

Fourth Plaintiffs

ANDTHE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND

First Defendant

NORTHERN PRESBYTERY Second Defendant

TONY SPANDOW Third Defendant

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

ALISTAIR HALL LAWYERS Fifth Defendants

Hearing:         14 May 2012

Counsel:         O Woodroffe for plaintiffs

S A Barker and N J Williams for defendants

Judgment:      14 May 2012

ORAL JUDGMENT OF GENDALL J

Solicitors:

Woodroffe Law Partnership, PO Box 6505, Wellesley Street, Auckland for plaintiffs

Buddle Findlay, P O Box 2694, Wellington for defendants

BRADY v THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND HC AK CIV-2012-404-2549 [14 May 2012]

[1]      This is an interlocutory application for interim injunction brought by the first plaintiff  on  behalf  of  198  members  of  a  group  which  comprised  part  of  a congregation of a Presbyterian Church known as St Paul’s Church in Manurewa. Because the application is one for interim relief, I have heard it argued this morning at short notice.  The defendants, I am told, had only been served with the substantive proceedings, interlocutory application and other papers late on Friday, 11 May 2012, and I have only been given the file today.   So, the matter has to be dealt with in haste.

[2]      As is always the case when dealing with interim injunction applications at short notice, the Court cannot determine ultimate issues on the merits, or even seek to entertain them.  But the Court must do the best it can to ensure that, within the established approach for interim relief, the interests of justice, which involve all parties, can best be served.

[3]      Without getting into detail on the merits, the claim in its substantive form essentially seeks to have quashed trespass notices, issued under the Trespass Act

1980 by officeholders of the particular congregation or church group against the plaintiffs and others.  Those notices restrict or prevent the plaintiffs entering upon the church property (that is the building) at which services are held, and upon other property which seems to be the church manse and another home of one of the church officers.  Amongst other arguments or contentions, the plaintiffs’ position is that the trespass notices were invalidly issued and should be set aside after the substantive hearing is completed.

[4]      For an order for interim injunction to be granted, the Court has to be satisfied that the substantive proceeding is capable of supporting a claim for a perpetual injunction or other equitable relief, and the plaintiffs’ position needs to be focused in the meantime.  The proceedings issued by Ms Woodroffe on behalf of the plaintiffs seek a declaratory judgment that the “lawful occupiers” of church properties are all members of the congregation of the church, and that one church occupier has no right to serve another occupier with a trespass notice.   Secondly, they plead as a

cause of action that there has been harassment, intimidation and bullying and interference with the plaintiffs’ group of 198 members.

[5]      The  pleadings  set  out  in  some  detail  a  number  of  factual  matters  or allegations.  The plaintiff’s claim a mandatory restraining injunction, restraining the interference with the claimed rights of the plaintiffs’ group from enjoying uninterrupted use of the properties, further orders relating to church accounts being frozen, and declarations that seven trespass notices be declared invalid.  There are other pleadings relating to alleged misuse of power, negligence and breach of promise, and a declaration is sought in respect of alleged other breaches of duties by the group or defendants described as “Northern Presbytery”.  Other relief sought by the plaintiffs is for exemplary and general damages and a declaration that the fifth defendant (lawyers) acted “in breach of their duties”.

[6]      It seems the trespass notices arose after confrontations or disputes occurred between the plaintiffs’ group and others in the congregation, including the officeholders of what is known as the Session.   Trespass notices were served to prevent certain persons from entering the church property.  It seems the notices were dated 19 December 2011 and I gather served in about February 2012.

[7]      Because of an intimation that some of the plaintiffs’ group intended to ignore

the trespass notices, fresh notices were issued on 10 April 2012.   Thereafter, on

29 April 2012, there was some form of altercation or clash at the church where one of the plaintiffs was arrested and charged by the Police with assault and obstruction. These proceedings were later issued and served on Friday, 11 May 2012.

[8]      The application for interim relief is described in terms of restraining the defendants from acting in a particular way (that is, preventing the plaintiffs from entering church properties).   In reality, this may be akin to a mandatory interim injunction authorising the plaintiffs’ group to enter the church building, and requiring the removal of the existing trespass notices.  In the absence of those notices, and in the absence of other lawful reason, they would have that right.

[9]      On a preliminary basis, there is an argument advanced by Mr Barker on behalf of the defendants that the fundamental issue is that property rights exist in those entrusted by the constitution of the Presbyterian Book of Order to deal with access to church property and to make decisions affecting its use and the right of others to use it, with the Council of the church charged with the responsibility of managing and administering the physical premises.  The Book of Order, being the constitution, governs that position of the Presbytery and as between members of a the congregation who may “belong to the church”.

[10]   In dealing with an application for interim injunction, the well-known considerations are those expressed by Lord Cooke, then Justice Cooke, in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd,[1] adopting principles covered in the decision of the House of Lords in American Cyanamid Co v Ethicon Ltd.[2]    It was said that there are two considerations, namely is there a serious question to be tried

[1] Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).

[2] American Cyanamid Co v Ethicon Ltd [1975] AC 396.

and, if so, where does the balance of convenience lie, but in the end there is the overriding consideration of the ultimate discretion of the Court to grant interim relief, namely where the interests of justice would best be served.

[11]     Obviously there is a serious question to be tried because, as Ms Woodroffe says, the plaintiffs dispute the validity of the trespass notices.  They say that if those notices are invalid neither the plaintiffs nor anyone else can be prevented from entering the church property by the defendants.  The plaintiffs say that the notices were invalidly issued because under the constitution of the Council or the Presbytery, the necessary steps to obtain the trespass notices had not been followed.  All those are going to be questions of fact and law for determination at the ultimate hearing. There can be no doubt that those who are occupiers of a property and responsible for its management can issue trespass notices against others.  Whether they were validly issued in this case remains to be seen.

[12]     The major issue is where does the balance of convenience lie, namely in what situation is the least likelihood of harm to arise?  The issue must be to balance the

risk of doing an injustice.[3]   If an interim injunction, which is to an extent mandatory, is granted, then the plaintiffs’ group would return, I imagine in the interim to the church building from time to time and on Sundays to worship.  On the other hand, the prospect of disturbance, intimidation and bullying  (and  this was one of the grounds which Ms Woodroffe advanced as to the unhappy things that have been happening) exists.  The likelihood of that continuing, given the passions that appear to have been aroused, cannot be discounted.  There is a risk of on-going violence, despite the Christian ethics being “Love your neighbour” and “Do unto others as you would have them do unto you”.  It is a factor that I have to weigh on the scales in deciding whether to grant interim relief.   So, too, if the interim relief effectively determines  the  substantive  relief,  then  that  is  a  factor  the  Court  will  take  into account.    Another  feature  that  the  Court  must  consider  in  the  exercise  of  its discretion is the urgency of the situation and whether harm, which could not be remedied by an award of damages, would occur to the plaintiffs or, for that matter, to the defendants.

[3] Cayne v Global Natural Resources plc [1984] 1 All ER 225 (CA) at 287.

[13]     The delay since the first trespass notices were issued and served is four to five months.   It is significant.   If the notices were to be set aside as a matter of urgency, proceedings should have been brought months ago.   The ability of the plaintiffs to worship and to congregate, as a congregation, is not presently inhibited. They are presently prevented by the trespass notices from going into the buildings, without  facing Police action.    I suppose that  they and  many people  regard the buildings as “the church” and that might be a colloquial way of expressing it, but they are just buildings.

[14]     Weighing  all  the  considerations  as  best  I can,  I am  satisfied  that  if  the plaintiffs  succeed  in  their  proceedings,  they  would  be  entitled  to  an  award  of damages.   How that would be measured would be a matter for the then presiding Judge.  As such, it would be sufficient to remedy or compensate them if their rights have been wrongly inhibited in the meantime by the issue of the trespass notices and

the enforcement of them.

[15]     By  a  wide  margin,  I  find  that  the  balance  of  convenience  favours  the defendants.  This is not a case for the granting of interim relief.  Accordingly, the interlocutory application, in my discretion, is declined.  The matter is to be placed in the earliest possible list before an Associate Judge for timetabling and thereafter the allocation of a fixture so the substantive proceedings can be heard and determined.

[16]     In the meantime, costs are reserved.

J W Gendall J

Addendum

In  delivering  the  oral  decision  at  short  notice,  I  omitted  to  refer  to  all  the interlocutory orders sought by the plaintiffs.  However, I add for completeness that items (c), (d), (e), (f), (g) and (h) are not properly or appropriately the subject of interim orders so as to be necessary to preserve existing rights pending determination of these substantive proceedings.   The balance of convenience favours the church Council having control of the use of church funds and acting under the Book of Orders in the meantime.