Supreme Court New South Wales

• Medium Neutral Citation: Sturt and Anor v the Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors [2012] NSWSC 400
• Hearing dates: 23, 24, 25 May 2011, 4, 5, 6, 7 October 2011
• Decision date: 27 April 2012
• Jurisdiction: Equity Division
• Before: Sackar J

Decision

See paragraph 428

• Catchwords: VOLUNTARY ASSOCIATION - justiciability - contract of employment - domestic tribunal - procedural review - abuse of process - permanent stay - bias - right against self incrimination - reputation - oppression and unfairness - absolute privilege
• Legislation Cited: Anglican Church of Australia Act 1961 (NSW); Anglican Church of Australia Act 1976 (NSW); Anglican Church of Australia Constitution Act 1902 (NSW); Church of England Constitutions Act 1902 (NSW); Church of England in Australia Act 1961 (NSW); Commercial Arbitration Act 2010 (NSW); Commonwealth of Australia Constitution Act 1901; Corporations Act 2001 (Cth); Defamation Act 2005 (NSW); Evidence Act 1995 (NSW); Supreme Court Act 1970 (NSW)
• Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Aktas v Westpac Banking Corporation (2010) 241 CLR 79; Attorney-General (N.S.W.) v Grant (1976) 135 CLR 587; Baker v Gough [1963] NSWR 1345; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Briginshaw v Briginshaw (1938) 60 CLR 336; Buttes Gas and Oil Co v Hammer [1982] AC 888; Cameron v Hogan (1934) 51 CLR 358; Carter v The New South Wales Netball Association [2004] NSWSC 737; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; Cheng v Pharmacy Board of New South Wales [2005] NSWSC 1130; Clarke v Earl of Dunraven (The Satanita) [1897] AC 59; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Davies v Presbyterian Church of Wales [1986] 1 WLR 323; Dixon v Holden (1868-69) LR 7 Eq 488; Dolan v Australian and Overseas Telecommunications Corporation [1993] 42 FCR 206; Dr SS v Health Care Complaints Commission [2002] NSWCA 391; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Forbes v Eden (1867) LR 1 HL 568; G v Medical Board of the Australian Capital Territory [1994] ACTSC 42; Gibbons v Duffell (1932) 47 CLR 520; Glebe Administration Board v Commissioner of Pay-roll Tax (NSW) (1987) 10 NSWLR 352; H v Andrews [2006] SASC 392; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Jago v District Court (NSW) (1989) 168 CLR 23; JGE v English Province of Our Lady of Charity [2011] EWHC 2871 (QB); Kuwait Airways Corp v Iraqi Airways Co (No.6) [2002] UKHL19; Lamb v Munster (1882) 10 QBD 110; Lincoln v Daniels [1962] 1 QB 237; Macqueen v Frackelton (1909) 8 CLR 673; Maloney v NSW National Coursing Assn Ltd (No 2) [1978] 1 NSWLR 161; Mann v O'Neill (1997) 191 CLR 204; Micallef v Donnelly [2002] FCA 221; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Morley v Australian Securities and Investments Commission [2010] NSWCA 331; Newcombe v Medical Board (SA) [2007] 96 SASR 564; NSW Bar Association v Muirhead [1988] 14 NSWLR 173; Pappas v New World Oil Developments Pty Ltd [1993] 43 FCR 594; Pyneboard v Trade Practices Commission (1983) 152 CLR 328; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; R v McLoughlin; Ex parte Director of Public Prosecutions (Re Cooney) [1988] 31 A Crim R 256; Raguz v Sullivan [2000] 50 NSWLR 236; Rajski v Carson (1988) 15 NSWLR 84; Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511; Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201; Reid v Howard (1995) 184 CLR 1; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Scandrett v Dowling (1992) 27 NSWLR 483; Sorby v The Commonwealth (1983) 152 CLR 281; Stephens v Stephens [2010] FamCA 184; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Trivett v Nivison [1976] 1 NSWLR 312; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Uniting Church in Australia Property Trust (NSW) v Vincent (1994) BC9402935; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Vakauta v Kelly (1989) 167 CLR 568; Walton v Gardiner (1993) 177 CLR 378; Weissensteiner v The Queen (1993) 178 CLR 217; Whitehorn v The Queen (1983) 152 CLR 657; Wylde v Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224
• Texts Cited: Robert C. Post 'The Social Foundations of Defamation Law: Reputation and the Constitution,' 74 California Law Review 691 (1986).; Spencer Bower, 'Law of Actionable Defamation (2nd ed, 1923)
• Category: Principal judgment
• Parties: Graeme Leslie Sturt - first plaintiff; Graeme Russell Lawrence - second plaintiff; Brian George Farran - first defendant; Colin Alan Elliott - second defendant; Trevor Clifton Waring - third defendant; Barbara Janice Howard - fourth defendant; Michael Ian Elliott - fifth defendant; Geoffrey James Spring - sixth defendant; Glen Miller Pope - seventh defendant; Margaret Joy Payne - eighth defendant; Lynne Maree Graham - ninth defendant; Dymphna Rees Peterson - tenth defendant; Philip John Aspinall (in his capacity as Primate of the Anglican Church of Australia) - eleventh defendant
• Representation: Counsel: R D Marshall, Ms A Rao - plaintiffs; G O Blake SC, WAD Edwards - first to tenth defendants; G C Lindsay SC - eleventh defendant; Solicitors: Turnbull Hill, lawyers - plaintiffs; Makinson & d'Apice, lawyers - first to tenth defendants; Toomey Pegg, lawyers - eleventh defendant
• File Number(s): 2011/6125

Judgment

The proceedings

Introduction

1 These proceedings arise out of disciplinary processes brought against each of Father Sturt and Father Lawrence purportedly pursuant to internal legislation made by the Synod of the Diocese of Newcastle entitled the Professional Standards Ordinance 2005 (PS Ordinance).

2 The case raises a myriad of complex issues in respect of which the parties have submitted detailed and voluminous materials and submissions.

3 The allegations levelled at and findings made about the plaintiffs at the disciplinary hearing which took place in December of 2010 are unseemly. If true or untrue they are distressing to the plaintiffs and have no doubt had a potentially adverse impact on their reputations. They have no doubt been distressing and potentially damaging to others involved in the process. There also is no doubt that these events have arguably impacted upon the reputation of the Anglican Church of Australia.

4 This case is about how the plaintiffs came to be the subject of those hearings and the legitimacy of the processes that were or were not followed before and during the proceedings.

5 Although some aspects of the factual materials necessarily must be examined this case is not, nor could it be about who was or was not telling the truth about those allegations. The merits of the allegations have not and could not be tested simply by reason of the nature of the proceedings in this court and the relief sought.

6 Equally although the issues involve allegations of sexual misconduct on the part of the plaintiffs and other males, this case is not nor could it be about the church and the whole issue of homosexuality whether concerning its clergy or its parishioners. That issue which it must be acknowledged is likely to produce strong views either way is far removed from the purview of these proceedings.

7 The case involves issues about whether the plaintiffs were subjected to illegitimate, unfair, harsh and oppressive procedures by virtue of the proceedings before the Professional Standards Board (PSB) and whether the PSB's recommendations ought or ought not stand. More importantly whether in the first instance the plaintiffs are able to have their grievances adjudicated upon at all by this court.

The Parties

8 Each of the first plaintiff (Father Sturt) and the second plaintiff (Father Lawrence) hold Holy Orders in the Anglican Church of Australia and are resident within the Diocese of Newcastle.

9 The first defendant is the Right Reverend Brian Farran, Bishop of Newcastle.

10 The second, third and fourth defendants collectively are the members of the PSB constituted in order to hear the proceedings against Fathers Sturt and Lawrence. The PSB made a determination in respect of Father Sturt recommending he be deposed from Holy Orders and in addition a determination in respect of Father Lawrence recommending that he also be deposed from Holy Orders.

11 The fifth to tenth defendants collectively are the members of the Professional Standards Committee of the Diocese of Newcastle (the PSC) being the body which, following a complaint from a person known as "M" in respect of each of Father Sturt and Father Lawrence referred certain questions as to whether each was fit, whether temporarily or permanently, to hold a particular or any office licence or position of responsibility in the Anglican Church of Australia or to remain in Holy Orders by reason of certain specified conduct, to the PSB.

12 The eleventh defendant is the Primate of the Anglican Church of Australia.

The relief sought

13 Relief is sought by way of an order quashing the determinations and recommendations made by the second to fourth defendants on 15 December 2010 sitting as the PSB. Alternatively a declaration that their determinations and recommendations are invalid or void.

14 Further an order is sought that the first defendant be permanently restrained from giving effect to the determinations and recommendations.

15 Further an order is sought that the first defendant or any properly constituted tribunal of the Anglican Diocese of Newcastle be permanently restrained from hearing or deciding the complaints against the plaintiffs heard by the PSB on 13 and 15 December 2010.

Background Facts

16 On 24 December 1902 the Anglican Church of England Constitutions Act 1902 (NSW) (the 1902 Act) including the original 1902 NSW Constitutions in their original form came into force (applicable to the dioceses with territory inside New South Wales including the Diocese of Newcastle).

17 On 1 January 1962 the Church of England in Australia came into being under the Church of England in Australia Act 1961 (NSW) (the 1961 Act) and cognate Acts including the 1961 Constitution (National Constitution) in its original form.

18 On 21 December 1965 Father Lawrence was ordained as the Deacon of the Anglican Church at St Albans Church Griffith. On 30 November 1966 he was ordained as an Anglican Priest at St Albans Church Griffith.

19 On 2 February 1977 Father Sturt was ordained as Deacon at the Pro Cathedral Church of St Paul at Hay and on 30 November 1977 Father Sturt was ordained as an Anglican priest at the Church of St Albans at Griffith.

20 On 24 August 1981 the Church of England in Australia was renamed the Anglican Church of Australia (including a renaming of the 1902 and 1961 Act).

21 On 26 May 1982 Father Sturt was licensed as Rector of the Parish of Tocumwall-Finley in the Diocese of Riverina.

22 On 29 June 1984 Father Lawrence subscribed to a declaration of submission to the Synod of the Diocese of Newcastle and all ordinances made by it upon taking office as Dean of Newcastle Cathedral.

23 On 1 March 1988 there were substituted 1902 NSW Constitutions which replaced the Constitutions annexed to the 1902 Act.

24 On 27 January 2000 Father Sturt subscribed a declaration of submission to the Synod of the Diocese of Newcastle and all ordinances made by it upon taking up the office of Rector of a Parish in the Diocese.

25 In October 2004 the General Synod of the Anglican Church of Australia resolved to adopt "faithfulness in service" as a code of personal behaviour for clergy and endorsed a model Professional Standards Ordinance.

26 On 15 October 2005 the Professional Standards Ordinance 2005 (the PS Ordinance) was passed by the Synod of the Diocese of Newcastle.

27 On 1 February 2006 Father Sturt was granted a licence in respect of the office of Rector of the Parish of Cardiff, Diocese of Newcastle.

28 On 31 December 2008 Father Lawrence retired as Dean of Newcastle Cathedral and ceased to hold a licence.

29 On 3 October 2009 "M" made a formal written complaint to the director of Professional Standards of the Anglican Diocese of Melbourne against inter alia Fathers Sturt and Lawrence. The complaint included allegations that a group sex event participated in by Father Lawrence and observed by Father Sturt occurred in the early 1980s at a clergy conference in Narrandera, Diocese of Riverina.

30 On or about 9 October 2009 Bishop Farran notified the plaintiffs of the suspension of Father Sturt's licence whilst the complaint was being investigated pursuant to the PS Ordinance.

31 On 28 October the PSC referred the matter concerning Father Sturt to the PSB pursuant to the PS Ordinance. The PSC also referred the matter concerning Father Lawrence to the PSB pursuant to the PS Ordinance.

32 A directions hearing was held on 24 November 2010 before the President of the PSB at which a Mr Woodward, solicitor appeared on behalf of both Fathers Sturt and Lawrence. He informed the President that Father Lawrence did not intend to appear or make responses before the PSB and that he would no longer represent Father Lawrence before the PSB. However Mr Woodward made an application for the hearing concerning Father Sturt to be held in camera. The application was refused.

33 On 13 December 2010 the PSB commenced the hearing. It rejected a renewed application by Mr Woodward that the proceedings concerning Father Sturt be held in camera. A short adjournment then took place. Mr Woodward then indicated that he had instructions to take no further part in the proceedings on behalf of Father Sturt and withdrew from the hearing. Neither Fathers Sturt nor Lawrence attended the hearing. The hearing then took place.

34 On 15 December 2010 the PSB convened a second day of hearing at which again neither Father Sturt nor Father Lawrence appeared. The PSB made determinations and recommendations in respect of both priests. Each of the determinations and recommendations were then transmitted to Bishop Farran for his consideration in accordance with the PS Ordinance.

35 On 16 December 2010 a summons was filed on behalf of the plaintiffs commencing the proceedings in this court.

The issues

36 There would appear to me to be at least five substantive issues raised by the submissions of the parties. There are of course sub-issues. The substantive issues are as follows:

(a) Justiciability;

(b) Constitutional ground;

(c) Permanent stay;

(d) Claims for judicial review;

(e) Discretionary considerations

37 It is convenient to deal with each of these issues separately.

Justiciability

38 It is important first to understand in a little more detail the relief sought by the plaintiffs. In their further amended statement of claim (FAS of C) filed by leave which I granted on 25 May 2011 the plaintiffs seek:

a) Declarations to the effect that the determinations purportedly made against them respectively by the second, third and fourth defendants as members of the Professional Standards Board of the Anglican Diocese of Newcastle (the Board) were invalid because:

(i) Upon the proper construction of the Anglican Church of Australia Constitution Act 1961 (NSW) (the 1961 Act), no jurisdiction could be conferred on the Board to perform the functions purportedly entrusted to it by the Professional Standards Ordinance 2005 (Newcastle) (the PS Ordinance);

(ii) The proceedings of the Board were flawed by want of procedural fairness or other grounds warranting intervention on judicial review of administrative decisions;

(iii) No proceedings could be conducted on the reference to the Board by the fifth to tenth defendants acting as the Professional Standards Committee of the Anglican Diocese of Newcastle (the Committee) because the conduct of any such proceedings was bound to be oppressive; and

b) An injunction restraining the defendants from proceeding with any further enquiry into the underlying subject matter of the referrals made to the Board to the Committee.

39 The plaintiffs submit that they were parties to a contract of employment or contract of service. To that extent they must rely upon conventional principles to prove the requisite intention to create contractual relations. In the alternative they assert they were parties to a consensual compact. In this regard they put that case a number of ways but ultimately they rely upon the PS Ordinance as conferring contractual rights upon them. Again and in the alternative they assert that "reputational" interests give them sufficient standing to challenge the processes they assert they were wrongly subjected to.

40 The question of justiciability is of course a threshold question and will if determined against the plaintiffs bring an end to the matter. It should be logically determined first.

The notion of justiciability

41 There may be many reasons why it might be suggested a court is incompetent to hear a particular dispute.

42 In Buttes Gas and Oil Co v Hammer [1982] AC 888, the House of Lords held that as there was a long standing principle of English law which was inherent in the very nature of the judicial process, that municipal courts would not adjudicate on the transactions of foreign states; accordingly where such issues were raised in private litigation, the court would exercise judicial restraint, and abstain from deciding the issues raised. The court noted further that as the issues raised on the pleading concerned the conduct of four foreign states, and where it was sought to have aspects of the transactions declared unlawful under international law the issues were non-justiciable. Lord Wilberforce noted at 931 - 932:

Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of "act of state" but one for judicial restraint or abstention. The respondents' argument was that although there may have been traces of such a general principle, it has now been crystallised into particular rules (such as those I have mentioned) within one of which the appellants must bring the case-or fail. The Nile, once separated into a multi-channel delta, cannot be reconstituted. In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.

43 In Kuwait Airways Corp v Iraqi Airways Co (No. 6) [2002] UKHL 19 the House of Lords took a different view and said at [24] - [26]:

[24] On behalf of IAC Mr Donaldson submitted that the public policy exception to the recognition of provisions of foreign law is limited to infringements of human rights. The allegation in the present action is breach of international law by Iraq. But breach of international law by a state is not, and should not be, a ground for refusing to recognise a foreign decree. An English court will not sit in judgment on the sovereign acts of a foreign government or state. It will not adjudicate upon the legality, validity or acceptability of such acts, either under domestic law or international law. For a court to do so would offend against the principle that the courts will not adjudicate upon the transactions of foreign sovereign states. This principle is not discretionary. It is inherent in the very nature of the judicial process: see Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 932. KAC's argument, this submission by IAC continued, invites the court to determine whether the invasion of Kuwait by Iraq, followed by the removal of the ten aircraft from Kuwait to Iraq and their transfer to IAC, was unlawful under international law. The courts below were wrong to accede to this invitation.

[25] My Lords, this submission seeks to press the non-justiciability principle too far. Undoubtedly there may be cases, of which the Buttes case is an illustration, where the issues are such that the court has, in the words of Lord Wilberforce at page 938, 'no judicial or manageable standards by which to judge [the] issues': 'the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force and to say that at least part of these were "unlawful" under international law.' This was Lord Wilberforce's conclusion regarding the important interstate and other issues arising in that case: see his summary at page 937.

[26] This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at page 931D. Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case.

44 In the present case the defendants assert the plaintiffs have relevantly no civil right to articulate and hence there is nothing for a court to entertain. In particular they say there is not nor could there be for example a contract of employment or contract of service and point to the fact that a clergyman holds office and has not been traditionally regarded as an employee. Further the defendants submit that absent a property right (of which there is none) the plaintiffs have no standing. In addition "reputational" interests they submit do not provide an adequate basis or standing for the relief claimed. I should note that initially the defendants conceded Father Sturt's claims were justiciable. Having received submissions and heard argument I permitted the defendants to withdraw their concession.

45 It should be acknowledged at the outset that the church is a voluntary association, that in and of itself has significant consequences in terms of the plaintiffs ability to articulate their rights.

46 It should also be acknowledged that courts have routinely not interfered in the internal workings of voluntary associations especially religious organisations: Attorney-General (NSW) v Grant (1976) 135 CLR 587 at 613 per Murphy J.

47 With a voluntary association there is therefore a need to identify with some precision whether some civil or proprietary right has been infringed which as a matter of law requires enforcement before intervening in such an organisations affairs.

Is there a contract of employment

48 At the date of the disciplinary proceedings each of Father Sturt and Father Lawrence were at different stages of their careers.

49 Before reviewing the principles it is important to revisit the facts relevant to this issue in a little more detail.

Father Sturt

50 At the date the complaint was made Father Sturt had since 1 February 2006 been licensed to officiate as Rector of Cardiff and to occupy the rectory at Cardiff. The licence relevantly was in the following terms:

To our beloved in Christ

THE REVEREND GRAEME LESLIE STURT

Greeting:

We do by these presents give and grant unto you our Licence and Authority to preach the Word of God, Read the Common Prayers, Minister the Holy Sacraments, and perform all other Ecclesiastical Duties belonging to the office of RECTOR in the PARISH OF CARDIFF within our Diocese and Jurisdiction, to which you are hereby appointed on the presentation of the Presentation Board of the Diocese.

You having first taken the Oaths, and made and subscribed the Declarations which in this case are required by the Canons of the Anglican Church of Australia to be taken, made and subscribed, and you having also declared that you will conform to all Ordinances and Regulations of the Synod of the Diocese of Newcastle for the time being in force.

Reserving to us and our successors Bishops of Newcastle power at any time to revoke this Licence and Appointment.

51 Father Sturt not only resided in the rectory he of course received a stipend. The stipend was recorded on a pay slip which indicated his rate of pay including a deduction for superannuation. The monies came from the Anglican Diocese of Newcastle (which had an ABN number).

52 Of course prior to his being licensed to officiate at Cardiff he had previously been licensed from time to time at various parishes. His licenses for earlier parishes including Narrandera (1977 - 1993) for example contained a proviso which stated:

Provided always that you shall have no claim upon Us or Our successors in respect of any stipend, fees, dues or emoluments in respect of such office.

53 Father Sturt gave unchallenged evidence that Bishop Farran, the first defendant some time in late 2005 spoke to him by telephone and asked him to come to Newcastle to discuss the Parish of Cardiff. When he attended upon the Bishop he had a conversation with him in the company of a parishioner. Although he could not remember the precise terms of the conversation it involved the possibility of his becoming Rector of the Parish of Cardiff.

54 On 18 November 2005 he received an offer by email. That offer stated relevantly the terms and conditions as follows:

Dear Graeme

The Presentation Board of the Parish of Cardiff has concluded its search process after careful prayer and reflection. Upon its recommendation and with my own concurrence I write to offer you the position of Rector of the Parish of Cardiff.

Please make this offer a matter of your own prayer. I would appreciate learning of your response within fourteen days as required by the Ordinance and given that this process has been in train for some time.

I enclose with this letter a copy of the parish profile that was developed at the parish consultation and that was used as a major resource for your selection as the next priest for this parish. This consultation report does indicate the next missional goals before the parish which will require your collaborative leadership in the parish.

You will appreciate that a primary task now of priests is to develop a missional church. This is a particular change of culture. It will require much energy from you, real understanding of the context in which the parish is situated, and missiological principles that will shape your priorities.

I am hopeful that the Diocese will be able to offer you real support in equipping you for this ministry.

This offer of the Parish of Cardiff is made with the Diocesan stipendiary package. This includes:

Stipend: $36,276 per annum

Car depreciation allowance: $7,260 per anum

Car Running: 27.5 cents per kilometer

Usual contributions for Long Service Leave: $948

Superannuation: $1,813

(15% of rector's stipend, i.e. 5% from diocese, 5% from parish, 5% by priest)

Telephone and energy costs as per the budget allowance.

(Please note that these are 2005 figures and will be automatically updated in 2006)

I would expect you to live in the rectory or clergy house provided by the parish and that the parish would maintain this residence to a proper standard.

If this arrangement is to be changed, we would need to not only discuss this between ourselves but also seek approval from Diocesan Council.

Your ministry is vital to the effectiveness of the Church. I want to celebrate with you this offer of priestly responsibility. Together I hope that we can offer a vital Anglican presence that opens up awareness of the Kingdom of God in Cardiff.

In order to be as useful a church to God as is possible, I make this offer to you with these understandings:

that you will stay in this position for at least five years. I expect not to disturb you with any other offer nor will any other bishop who follows the National Bishops' Conference protocols.

there will be a consultation with the parish 18 months into your new tenure to gain perspective on the pursuit of their goals as identified in the parish consultation that determined your selection as priest. This will be a useful reality checking exercise.

You will act professionally in this wondrous responsibility. I would expect that you

- practise the Diocesan Professional Code of Conduct

- avail yourself of professional supervision

- have the guidance of a spiritual director

- respect yourself by ensuring that you take your day off and your annual leave when it falls due.

in regard to annual leave - four weeks including four Sundays - should be taken in the calendar year. Please be aware that the Diocese has the stipulation that only two weeks annual leave can be carried forward into the next calendar year.

that you will attend the Clergy School, the two one-day clergy conferences, the annual clergy retreat and Deanery meetings. In addition, seven other days are available for attending educational and professional development events. It is important that you exercise pastoral care towards the diocesan administration by submitting the appropriate leave forms.

I am delighted to offer you this position. I look forward to commissioning you into a ministry that is both yours and mine. You have my confidence to accept this offer.

Please be assured of my own prayerful support for you as you deliberate this offer. As well, my door is always open to you, so please never think you are imposing upon me if you wish to contact me. I am here to support you.

Grace and peace,

Dr Brian Farran

Bishop of Newcastle

55 On 23 November 2005, Father Sturt accepted the offer by email.

56 He was still residing at the rectory at the date of the hearing before this court, but his activities were suspended in 2009 pending the investigation of allegations.

Father Lawrence

57 Father Lawrence, was originally ordained as a Deacon of the Anglican Church on 21 December 1965, at St Albans Griffith. He was ordained as a priest on 30 November 1966.

58 On 20 December 1983 he was elected by the Cathedral Chapter to be the Dean of Newcastle. The offer of the Office of Dean was made to Father Lawrence by the then Bishop of Newcastle, Alfred Holland.

59 On 29 June 1984 Father Lawrence subscribed to a Declaration of Submission to the Synod of the Diocese of Newcastle and all ordinances made by it, upon taking office as Dean of Newcastle Cathedral.

60 Father Lawrence received a monthly stipend. He lived in the deanery in Newcastle and had use of a motor vehicle registered in the parish's name.

61 He retired from full-time ministry on 31 December 2008.

62 However in January 2009, unhappy as he asserts with retirement he had a conversation with Bishop John Parkes the Bishop of Wangaratta. As a result he thereafter from time to time until October 2009 performed some locum work. He acted in the position of Priest in Charge at Euroa until mid April 2009. Thereafter he acted as Archdeacon of Hulme in Beechworth.

63 Although there is no evidence I infer he was paid a stipend for his part-time work.

64 In October 2009 as a result of the complaint his activities at Beechworth were suspended.

The principles

65 The High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 had to consider whether certain delivery cyclists were employees or independent contractors. The majority said at 37, [33] - [34]:

[33] The tokens - "employer", "employee", "principal" and "independent contractor" - which provide the currency in this field of discourse have survived for a very long time and have been adapted to very different social conditions. As was pointed out in Scott v Davis, vicarious liability derived originally from mediaeval notions of headship of a household, including wives and servants; their status in law was absorbed into that of the master.

[34] The nature of employment relationships has changed greatly since the age of feudal status. This particularly is true over the course of the last century, in which not only the character of employment but also the common law of negligence developed apace. In Darling Island Stevedoring and Lighterage Co Ltd v Long, Fullagar J expressed the view, surely correctly, that the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.

66 In addition the majority stated plainly that by itself for example the mere fact that a business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that the person is an employee. In deciding however that the relationship was one of employer and employee the majority considered seven factors.

67 The first consideration was that the couriers were not skilled labour or labour which required special qualifications. Secondly, the couriers had little control over the manner of performing their work. Thirdly, the couriers were presented to the public as emanations of the company. They wore uniforms bearing the company logo. The fourth factor was the policy of deterrence effect, that is of making the employer responsible for the acts of its employees which may encourage employers to take steps to attempt to avoid negligent acts on the part of the employees. Fifthly, the fact the company superintended the couriers finances. There was also no scope for the couriers to bargain for the rate of their remuneration. Sixthly couriers were provided with equipment, but had to be responsible for the cost of repairs on losses of equipment. Finally there was considerable scope for the actual exercise of control, the couriers had little latitude in the manner work was allocated.

68 Attempting to apply these factors to the situation of Fathers Sturt and/or Lawrence is not necessarily an easy task. It must of course be readily acknowledged that there has been a long held view that persons such as they hold office and are not employees. Even if the court were to find they were employees that may not in any event advance the arguments they seek to advance. This is hardly a dispute over the non payment of a stipend or a failure to pay or provide annual leave or superannuation.

69 In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR at 95 the High Court had to consider whether a person who had assumed the position of Archbishop of the Autocephalous Greek Orthodox Church in Australia had formed a legally binding contract with the respondent incorporated association. The industrial magistrate who had heard the matter at first instance found on the facts that the appellant had been employed under a contract of employment. It had been submitted to him that there could be no binding contract for employment for a minister of religion. The Full Court in overturning the decision of the magistrate had proceeded from a starting point that an intention to enter a contractual relationship about the remuneration and maintenance and support of a minister of religion is not to be presumed. The majority took the view that the appellant was not providing services to the corporate respondent but rather to members of the local Greek Orthodox church in Adelaide.

70 The High Court rejected that reasoning and upheld the magistrate on the basis that he had appropriately considered whether or not the parties had intended to create legal relations and carefully considered the objective circumstances prior to reaching that conclusion. However the majority in the court made some important remarks as follows at 105 - 106:

Intention to create contractual relations

"It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.'' To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts'' Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations'' requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention'' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. In this context of intention to create legal relations there is frequent reference to "presumptions''. It is said that it may be presumed that there are some "family arrangements'' which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition. More importantly, the use of the language of presumptions may lead, as it did in this case, to treating one proposition (that an intention to create legal relations is not to be presumed) as equivalent to another, different proposition (that generally, or usually, or it is to be presumed that, an arrangement about remuneration of a minister of religion will not give rise to legally enforceable obligations). References to the usual "non-contractual status of a priest or minister'' and factors which "generally militate against'' a finding of intention to create legal relations illustrate the point. The latter proposition may then be understood as suggesting, in some way, that proof to the contrary is to be seen as particularly difficult and yet offer no guidance at all about how it may be done. Especially is that so when the chief factor said to justify the proposition that an intention to create legal relations must be proved (the essentially spiritual role of a minister of religion) is then put forward as the principal reason not to find that intention in a particular case, and any other matters suggesting that there may be an intention to create legal relations are treated as dealing only with "collateral'' or "peripheral'' aspects of the relationship between the parties. In practice, the latter proposition may rapidly ossify into a rule of law, that there cannot be a contract of employment of a minister of religion, distorting the proper application of basic principles of the law of contract.

71 And then at 109 - 110:

Finally, reference must also be made to the statements, found in several cases, that the relationship between a minister of religion and a church is pre-eminently or even entirely spiritual, not contractual. That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister's conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no means follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract, and the respondent in this appeal did not seek to advance any such absolute proposition. Rather, the respondent advanced the more limited proposition, adopted by Doyle CJ and Bleby J, that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a minister of religion but must affirmatively be proved. Nevertheless, it is as well to identify some aspects of the more absolute proposition earlier identified that the relationship between minister and church is pre-eminently or even entirely spiritual because, in the end, the conclusion at which the majority of the Full Court arrived, was that the only arrangement or relationship which the appellant had was with a church not the respondent, and was a spiritual, not a contractual relationship.

First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies:

"Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse". (Emphasis added)

Secondly, the "essentially spiritual" character of the relationship may take on a different character when one of the parties to the arrangement (the putative employer) is not itself a spiritual body but is, as Staughton LJ said in Coker, "a school, or a duke, or an airport authority" or, we would add, an incorporated body having the characteristics of the present respondent. To say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister's spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment.

72 Earlier in Davies v Presbyterian Church of Wales [1986] 1 WLR 323, the House of Lords had to consider whether the appellant was an employee such that he could apply to the Employment Appeal Tribunal in relation to a claim by him of unfair dismissal. Lord Templeman who wrote the leading speech said (at 328):

On behalf of the applicant it was first submitted, on the authority of Edwards v. Bairstow [1956] A.C. 14 that the decision of the industrial tribunal that the applicant was employed under a contract of service was not susceptible to reversal by an appellate court because the tribunal instructed itself correctly as to the law, took into account all relevant circumstances and reached a conclusion which was reasonable. In my opinion this submission confuses fact and law. The decision in Edwards v. Bairstow has nothing to do with this case. An appeal from the industrial tribunal is expressly conferred by statute on a question of law. The question to be determined is a question of law, namely, whether upon the true construction of the book of rules a pastor of the church is employed and is under a contract of service. If the industrial tribunal erred in deciding that question, the decision must be reversed and it matters not that other industrial tribunals might have reached a similar erroneous conclusion in the absence of an authoritative decision by a higher court.

On behalf of the applicant it was then submitted that when he was appointed pastor he entered into a contract with the church on the terms and conditions specified in the book of rules. He agreed to preach, conduct religious services and give religious instruction, to comfort the sick and bereaved, and to propagate the faith in his pastorate for the benefit of the church and its members. He became subject to dismissal for disciplinary reasons. He was employed by the church full-time and in consideration for his services he became entitled to a stipend and to occupy a manse. He was a servant employed under a contract of service and not an independent contractor performing services because he was engaged full-time under the general supervision of the church authority and subject to the control of the rota committee with regard to his activities on Sundays.

My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. 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. In Forbes v. Eden (1867) L.R. 1 H.L. Sc. & Div. 568; 5 Macph. (H.L.) 36, 50, Lord Cranworth said:

"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. 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."

Until the applicant was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse. But the committee of the sustentation fund were not liable to pay the stipend otherwise than out of the income of the fund and the managing trustees of the manse were not liable to discharge the rates and expenses of the manse otherwise than out of voluntary contributions and church funds made available to them for that purpose. There was no contract of service between the applicant and the church, only obligations on the part of the church to administer church property in accordance with the trusts contained in the book of rules, and an obligation to ensure that no member of the church was unlawfully deprived of a benefit from church property to which that member was entitled under the rules. There is indeed an agreement between all members of the church to perform and observe the provisions of the book of rules, but that agreement will only be enforceable at law in respect of any property rights to which a member is entitled under the terms of the agreement. By no stretch of imagination can such an agreement constitute a contract of service. Similar conclusions were reached by Joyce J. In In re Employment of Ministers of the United Methodist Church (1912) 107 L.T. 143, by Parker J. in In re Employment of Church of England Curates [1912] 2 Ch. 563, and by the Court of Appeal in President of the Methodist Conference v. Parfitt [1984] Q.B. 368. I would dismiss this appeal.

73 All of the other members of the House of Lords agreed.

74 The majority of the High Court in Ermogenous pointed out when considering Lord Templeman's speech (at 108):

No doubt as Lord Templeman observed in Davies, there is an agreement between the members of an unincorporated body to perform and observe the rules of the body, but the extent to which that agreement is enforceable at law, other than in respect of property rights to which a member is entitled under the rules is at least open to question.

75 There is a helpful discussion of the principles in Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201 per Nicholas J at [76] - [81]. His Honour referred to Ermogenous (supra) and then said:

[76] A contract of service is of its nature a bilateral contract (Dietrich v Dare (1980) 54 ALJR 388, p 390).

[77] In Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, Handley, JA said (p 310):

"Family, social, and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention. See Balfour v Balfour [1919] 2 KB 571. There are other arrangements which attract the same principle. Thus in Cameron v Hogan (1934) 51 CLR 358 (which in some respects merits reconsideration by the High Court) the majority at 370-371 said of voluntary associations:

"They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, ... religious ... or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract."

These principles have retained their full force in relation to religious associations. See President of Methodist Conference v Parfitt [1984] QB 368 and Davies v Presbyterian Church of Wales [1986] 1 WLR 323 (HL). Mr Maconachie also relied upon Rogers v Booth [1937] 2 All ER 761, a case in which a Salvation Army officer failed in a claim for worker's compensation because she was not employed under a contract of service. The officer had signed a document containing provisions which negatived any such intention. However Sir Wilfred Greene MR at 754 held that independently of these provisions the character of the relationship demonstrated that the parties did not intend to enter into rights and obligations enforceable in a court of law".

[78] It is pointed out in Carter & Harland: Contract Law in Australia (4th edition, para 401) "... since a contract is a "legally binding agreement", it would be paradoxical if an agreement could be held a contract in the face of the parties' intention that it should not give rise to legal rights and obligations. Therefore, a common positive intention not to contract will be respected".

[79] In Air Great Lakes Pty Ltd v K S Easter Holdings Pty Ltd (1985) 2 NSWLR 309, Mahoney, JA said (p 331):

" ... The law would not, I think, impose the relationship of contract where, eg, A though he was play-acting and B knew of that fact. A's actual subjective intention would be effective to prevent the contract arising. A fortiori, if both A and B had the intention that no contract should result, and each knew of it, then none would be imposed. And, I think, this notwithstanding that a reasonable bystander would take from what they said and did that there was an exchange of congruent promises and a mutual purpose to contract. I put aside for this purpose special cases, of estoppel, third party rights, and the like.

The result is therefore that intention to contract, in the subjective sense, is relevant to but not determinative of the existence of a binding contract. It acts, in a sense, as a limiting factor, that is, as a reason for not giving to what on the face of it is an exchange of congruent promises, the legal consequences which would otherwise be given to it. And on this basis, it is, in principle, relevant to know what was the actual subjective intention of each party, in the example that I have given, in order to determine whether the legal relationship of contract is to be held to exist. More correctly, it is relevant to know the intention of the one party where it is the intention of or known to the other".

[80] The issue of intention arose in Babsari Pty Ltd v Douglas Chee Yin Wong & Ors [1999] QSC 326. The plaintiff claimed contribution from the fourth defendants (the Chows) and from the eighth defendant (Westpac) on the basis that they were all co-guarantors of another party's (Asean) debt which the plaintiff had discharged. Chesterman, J found that in the circumstances there was no agreement between Westpac and the Chows by which the latter agreed to guarantee the debts of Asean, and thus the Chows were never co-sureties with the plaintiff, and the claim for contribution failed.

[81] His Honour concluded a review of the principles with the following observations and findings:

"40 One further opinion should be noted. The authors of Halsbury's Laws of Australia , Volume 6, para [110-35] say:

"Element of subjective intention necessary. Subject to the doctrine of estoppel, an intention to create a legally enforceable contract is a necessary element in the formation of a contract. Thus, a contract cannot be inferred from a person's conduct where the other party entertained no belief that the first person intended to contract."

76 Like any other issue which the plaintiffs seek to prove they must satisfy a court on the balance of probabilities as to the facts relevant to whether they should be regarded as employees at law.

77 Although not determinative of the issue one aspect of such a relationship is for example the element of control. As Mason J (as he then was) said in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24:

It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.

78 The decision of MacDuff J in JGE v The English Province of Our Lady of Charity [2011] EWHC 2871 is somewhat instructive on this issue.

79 In JGE the court was called upon to consider whether the defendants, (The English Province of Our Lady of Charity and the Trustees of the Portsmouth Roman Catholic Diocesan Trust) should be held vicariously liable for the torts of alleged sexual abuse by Father Baldwin, a Roman Catholic priest. MacDuff J found the trust should be held vicariously liable, however His Lordship could not agree the relationship could be characterised as a contract of employment. His Lordship noted various aspects of the relationship that militated against such a finding, including the fact that the priests were informed of appointments verbally, with no offer and acceptance and no (express) terms and conditions and there was effectively no control over priests once appointed. Commenting upon the importance of the control test in such a determination, His Lordship noted at [29]:

A priest is free to conduct his ministry as he sees fit with little or no interference from the bishop whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. Although I was told that a parish visit would be every five years, it could have been more frequent. The bishop had no power of dismissal. Dismissal from office would have to be effected through the church in Rome...

Within each diocese is a bishop whose appointment is from Rome. The bishop appoints a priest to each parish within the diocese. The bishop must exercise episcopal vigilance. There is clearly some element of control within this, although there is nothing in the way of penalty or enforcement; the purpose is to oversee and advise. The bishop may only redeploy the priest in another parish if the latter consents.

80 His Lordship found the priest is more appropriately regarded as exercising his ministry as a "co-operator and collaborator rather than as someone who is subject to the control of his superior," and agreed with the submission that a bishop and priest would "not regard their relationship as being one that could be adjudicated upon by the civil courts"... "Father Baldwin would have been considered as a holder of office rather than an employee of the defendant," (at [29]).

81 As the High Court made plain in Ermogenous, regard must obviously be paid to the facts of each case. Further the mere fact that the plaintiffs are priests does not entitle the defendants let alone the court to proceed upon a presumption that no contract of employment will exist.

82 The evidence here however in my view in relevant respects is scant. True there is evidence of factors which point to existence of a relationship of employer/employee. But on the important issue of control there is very little if any at all.

83 Father Sturt can point to his licence and details of his remuneration and the terms and conditions under which (at the date of the relevant proceedings) he performed his work. However in neither of his two affidavits does he say anything of relevance as I see it which goes to the manner in which he performed his duties. I can infer obviously that he officiated at church services, marriages, baptisms and funerals and presumably provided pastoral care. But apart from that and apart from also inferring he did those things consistently with the rites of the church I am left really only to speculate how he filled his days. As a matter of common sense I would infer he obviously injected his own personality and style into the role and I dare say his interaction with parishioners would not be the subject of a script. That said there is simply no evidence of his activities from which I could gauge what if any level of supervision existed.

84 The material put forward by Father Lawrence is even scanter. Apart from evidence about the offer for him to be Dean and of course the payment of a stipend and matters of that sort there is no relevant material dealing for example again with the issue of control.

85 In his case of course he had been retired on and from 31 December 2008. He did perform locum work but there are really no details about how he was paid (if at all) during that period or indeed precisely what he did or how he did it. I would however up until December 2008 draw inferences similar to those I have drawn about Father Sturt in relation to his spiritual duties but that does not really assist all that much.

86 I must say I am unpersuaded on the state of the evidence that either plaintiffs performed their role pursuant to a contract of employment. There are in my view simply insufficient details, notwithstanding my ability to draw certain inferences.

What of the consensual compact

87 It is important however in examining the issue of justiciability to observe as I have already that the Anglican Church of Australia is a voluntary association of a religious character. The rules of the church are no more or less enforceable that the rules of other voluntary associations. It is clear from many authorities that courts have shown a marked disinclination to adjudicate upon religious or political controversies except to the extent necessary to decide disputes about property. That does not turn upon any presumptions, it turns upon the very nature of such bodies and generally an analysis of their rules. As Murphy J said in Attorney-General (N.S.W.) v Grant (1976) 135 CLR 587 at 613:

As the United States cases indicate, courts may properly determine church property disputes on neutral principles and also interfere where decisions of ecclesiastical government are based on fraud, collusion or arbitrariness. Otherwise, only marginal inquiry into church government is permissible. In cases such as this, the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine (Watson v Jones; Gonzales v Archbishop of Manila (another non-constitutional case)). It has not been suggested in this case that the decisions of the General Assembly of the Presbyterian Church are affected by fraud, collusion or arbitrariness.

In my opinion, the New South Wales Parliament did not intend by the passage of the uniting Acts that the courts should hear and decide controversies over religious doctrine or the practice or procedure of church government

88 Unsurprisingly questions of justiciability must be addressed by reference to the facts of a particular case and more importantly as I have also observed the particular claims made for relief.

89 There is no doubt that from the nineteenth century the legal status of the church in New South Wales was settled. As Dixon J (as he then was) said in Wylde v Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224 at 285 - 286:

But although in the beginning and for a not inconsiderable period the position of the Church of England in New South Wales appears to have been that of the Church established by law, time changed its relation to the law. It is not easy to trace the steps by which the result was reached but eventually it came to be considered as a body like other Churches established upon a consensual basis. The Ecclesiastical Court was disused and forgotten, the Acts of Council referring to it ceased to be law as did other early legislation in which might be seen a recognition of the Church as an institution established by law. But the chief reason doubtless is to be found in the grant of representative government and the separation of the colonies. The Church itself resolved in effect upon the principle of voluntary association and a measure was actually proposed in parliament at Westminster to enable the Church of England overseas so to organize itself.

90 In Scandrett v Dowling (1992) 27 NSWLR 483 the Court of Appeal considered the structure of the church in Australia but especially New South Wales. In particular it had to consider the width of s 2 of the 1961 Act. Section 2 was in the following terms:

The several articles and provisions of the Constitution contained in the Schedule to this Act (hereinafter called the Constitution) and any canons and rules to be made under or by virtue or in pursuance thereof are and as provided in the Constitution shall be for all purposes connected with or in any way relating to the property of the Church of England in Australia binding on the Bishops, clergy and laity being members of the Church of England in Australia in the several Dioceses of the Church of England within the State of New South Wales.

91 The case involved an application by members of the church who sought to restrain a bishop who had proposed to ordain women as priests. It was contended that he was about to do so without the authorisation of the General Synod.

92 The argument was advanced that the National Constitution which was a schedule to an Act of the New South Wales Parliament, (Act 16 of 1961), had legally binding effect on all members of the church in New South Wales not only in regard to church property but also in regard to the organisation of the church. Therefore it was put the obligations and duties it created were enforceable in the same way as those created by any statute. In addition it was contended that all members of the church in New South Wales were parties to a consensual compact embodied in the Constitution and that this compact had contractually binding legal effect on every member.

93 Priestley JA (with whom Hope JA agreed) expressed the view that section 2 of the Constitution made it "as clear as words could make it" that the binding legal effect of the Constitution was limited to purposes connected with or in any way relating to the property of the church and added at 512 - 513:

Matters of faith and organisation not connected or related to Church property are not made any more binding at law then they were before the Act was passed.

94 His Honour also expressed the view that the parties to the consensual compact upon which the plaintiffs relied were bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of the State courts of law and commented (at 513):

The consensual compact is thus based on religious, spiritual and mystical ideas, not on common law contract. It has the same effect as a common law contract when matters of church property become involved with the other matters dealt with by the consensual compact. I do not think the claims made in this case get out of the area of the consensual compact which does not have the legally binding effect here relied on.

95 In a most comprehensive survey of the history of the church especially in New South Wales His Honour made a number of important observations about what in his view the particular rights there under consideration involved. In relation to bishops and other clergy His Honour expressed the view at 515 that:

A Bishop of the Church is as such the holder of an office of the Church. A priest of the Church is as such the holder of an office of the Church and is ordained for the office and work of a priest in the Church of God not limited to any Diocese of the Church. A priest can only exercise priestly functions in a Diocese when licensed to act as a priest by the Bishop of the Diocese.

96 In terms of the rights of clergymen in the context of the Constitution His Honour said at 522:

In New South Wales, once the Church became recognised as a voluntary association whose Church law was not State law and whose disciplinary and other tribunals were not State tribunals, it consequently also became recognised that all "Church" property had to be owned by trustees upon religious charitable trusts, with the procedural incidents, in case of court proceedings, flowing from that. No party to such proceedings needs to rely upon the idea of consensual compact asserted by the plaintiffs here. There is no need for a consensual compact concerning matters of Church discipline and organisation to be binding as a civil contract. In cases not involving Church property, the sentences of the Church tribunals will have effect; eventually the person sentenced will either submit to the sentence, or be excused from it, or cease to be a member of the Church. Where Church property is involved, the civil law of trusts and property will apply, and bring about the implementation, or otherwise, of the sentence. For this law to operate, no reliance on civil contract law is necessary. (Of course, civil contracts distinct from the consensual compact may be involved.)

97 His Honour also remarked at 554:

The basis of the consensual compact or contract thus must be a willingness to be bound to it because of shared faith, or, in the Latin phrase used in some of the materials, in foro conscientiae. Its binding effect does not come from the availability of the secular sanctions of State courts of law. The availability of these latter sanctions when spiritual matters become mixed with Church property matters is an incident of the consensual compact or contract which means that in those cases where property is involved the consensual compact or contract is given the same effect, in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract.

98 Further His Honour said at 557 - 558:

As there appears, my view is that the consensual compact into which members of a church voluntary association enter is not described correctly as a civil contract. It could perhaps be described as a contract partly civil and partly spiritual. I do not think it can be described as a wholly civil contract because there are undoubtedly instances, when no property or civil right is involved, in which the secular courts will not enforce it. In cases where property or civil rights are involved the compact will, in a practical sense, be enforced; and in such cases it may not really matter whether the contract is described as a consensual compact binding in foro conscientiae which is, in those cases, incidentally subject to enforcement in the secular court, or as one partly binding in conscience and partly binding as a common law contract

99 In conclusion His Honour reiterated that he did not consider the court should treat the parties to the consensual compact as having agreed to its terms in the contemplation that it created legal relations between them. When questions arose concerning the consensual compact which also involved questions relating to church property secular courts should decide them to the extent necessary to enable the property questions to be decided. The church property referred to was "necessarily property held on trust by a trustee or trustees", (at 564).

100 Mahoney JA who wrote a separate judgment nonetheless refused relief but for different reasons. His Honour thought that the court should conclude that in general legally binding rights and obligations could arise from the rules of the Anglican Church. In general terms, he thought, that the history and the terms of the rules of the church suggested that albeit only as rules of a voluntary association, they were intended as capable of giving rise to legally enforceable rights and obligations (at 505).

101 His Honour however said (at 510):

Reference was made in argument to the possibility of enforcement of the rules here in question as involving proprietary rights because of, for example, the possibility of payment of stipends to ordained priests or matters of this kind. But this matter was, if not abandoned, at least not argued at length. Any such proprietary rights would, in my opinion, be "incidental and accidental": Cameron v Hogan (at 378); and not a basis for court intervention.

102 The decision of the Court of Appeal provides no support in my opinion for the plaintiffs in this case insofar as they purport to rely upon the National Constitution as giving rise to contractual rights sufficient to bring these proceedings. Absent an ability to suggest some right of property which has been infringed, the 1961 Act and National Constitution are therefore not in my view a fruitful resource in aid of the plaintiffs' case. It would in my opinion logically follow by parity of reasoning that the 1902 Act and Constitutions per se are also of little comfort to the plaintiffs. Section 4 of the Act refers to the provisions of the Constitutions being binding for all purposes relating to "the property of the Church". The reasoning in Scandrett would by parity of reasoning logically apply and likewise provide the plaintiffs with little comfort.

103 In Macqueen v Frackelton (1909) 8 CLR 673 the High Court comprising Griffith CJ, O'Connor and Isaacs JJ heard an appeal from the Full Court of Queensland.

104 In the proceedings the Presbytery of Brisbane, a court of the Presbyterian Church of Queensland adopted a report of a Commission appointed by them to enquire into a certain alleged unsatisfactory state of affairs in connection with a church of which the plaintiff was the minister. The report contained certain findings of fact and concluded with a recommendation that the plaintiff be called upon to resign. He however refused to resign and the presbytery resolved to report the matter to the General Assembly, the Supreme Court of the Church in Queensland, with a recommendation that that body should dissolve the pastoral tie between the plaintiff and his congregation. The plaintiff indicated he wished to appeal the resolution of the Presbytery. The plaintiff sought injustice relief against all members of the Presbytery (excluding himself) arguing that the resolution was contrary to the rules prescribed by the Constitution of the church and a declaration the rules had been breached.

105 Having received all relevant reports and recommendations the General Assembly required the plaintiff to appear before it and inform it whether he had authorised the commencement of the litigation in the Queensland court. Having admitted he had done so the General Assembly resolved that he be suspended from office for six months. This had the consequence of dissolving his pastoral tie and the loss of his ministerial involvements.

106 The plaintiff brought a further action against the General Assembly for a declaration that the sentence was illegal and void. The plaintiff succeeded on all issues at trial but on appeal to the Full Court of Queensland, the plaintiff was unsuccessful in the first action but he was successful in the second. Importantly however the High Court refused the plaintiff's application for leave. It was refused on the basis that no civil right of the plaintiff had been infringed.

107 Griffith CJ observed that the "Presbyterian Church like any other religious body in Australia, is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or consensual compact to which they are parties" (at 679).

108 His Honour expressed the view that the only way in which the respective rights of the parties could be regarded in a court is in the aspect of rights arising under a consensual compact. His Honour was of the view though that the interpretation of the compact was for the court and not for the parties to the contract to determine. He said at 690 - 691:

The powers of a Court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them. The contrary contention, translated into plain English, is that a minister of the Presbyterian Church, by adhering to the Constitution of the Church, in effect enters into a contract not substantially distinguishable from the submission made by members of another well known ecclesiastical organization, every member of which is required to take a vow that he will in his relations to his religious superiors be perinde ac cadaver. In other words, the minister surrenders all his future prospects in life into the hands of an infallible General Assembly. It is impossible, in my judgment, to hold that the Constitution, with its elaborate provisions for the protection of accused persons and for securing them a fair trial set out in the Rules of Discipline, can be summed up as a compact by which a minister holds his office and emoluments at the will of the General Assembly.

109 His Honour then went on to consider whether there had been a breach of the compact. He considered the Rules of Discipline were a carefully framed code securing to accused persons a fair and deliberate trial before they were condemned. Any charge had to be investigated "according to a procedure calculated to secure the utmost fair play and full deliberation". He further thought the procedure adopted "disregarded all the provisions agreed to for the protection of the accused", which went to the "root of the authority of Assembly to pronounce a sentence of suspension" (at 693), His Honour noted at 693 - 694:

It remains to consider whether the plaintiff has established that he has, by reason of the action complained of in the second action, suffered any infringement of a civil right, or, in other words, sustained any loss of money or property. The actual and necessary result of the action complained of was that he was not only deprived of his emoluments as minister of the Ann Street Church, but prevented from exercising his functions as a minister elsewhere in Queensland, and so possibly earning some remuneration.

The general rule of law is that an action will lie for any breach of contract, if only for nominal damages. If the natural and actual result of a breach of contract is to create actual pecuniary loss, there is no doubt that an action will lie, and the measure of damages is the amount of the loss actually sustained, provided that such loss was in the contemplation of the parties to the contract as the natural result of a breach. It is quite immaterial whether the plaintiff could have recovered his stipend from the Ann Street congregation by action or not. Unless, therefore, the appellants can invoke some exceptional rule to protect them, an action will lie against them for damages. It is suggested that the General Assembly are in the position of arbitrators, against whom an action will not lie in the absence of malice or fraudulent misconduct. This rule does not, however, extend to protect an arbitrator from the consequences of an act done by himself or at his instance in execution of an award upon a matter not submitted to him. Such an action, moreover, is not founded on contract. There is ordinarily no contract, express or implied, between the parties to a submission and the arbitrator. I do not know of any rule of law which requires malice to be proved in an action for breach of contract. So far as the Presbytery of Brisbane are concerned, the action complained of is that they excluded the plaintiff from the enjoyment of the emoluments of his office in execution of an order of the General Assembly which was a breach of the compact to which they were parties, as they must have known. If an action for damages will lie, it is not material that they are not formally claimed.

110 It was also submitted to the court that an action could not lie until the plaintiff had exhausted all of his rights under the compact whatever they may be. His Honour said at 695:

It was also urged that in any case an action would not lie until the plaintiff had exhausted all his rights under the compact, namely, by appealing to the General Assembly of Australia. In my opinion it is no answer to a breach of contract to say that the plaintiff might have obtained redress for the breach in some other way, unless there is an express or implied stipulation that failing to obtain redress in that other way shall be a condition precedent to the right to complain of the breach. I can find no such stipulation, express or implied, in the compact now under consideration. The same view was taken by the Judicial Committee in the case of Long v. Bishop of Cape Town.

111 In the same case O'Connor J at 696 - 697 commented:

It has long been settled by British Courts that a religious body not being a State Church is merely a voluntary association bound together by a consensual compact-that the rights of its members inter se depend entirely on the terms and conditions of the compact; that the terms and conditions constitute a contract in which every member binds himself to the whole body and to every other member to act in accordance with its provisions. If, as is generally the case, the Church has by its Constitution created bodies clothed with executive and judicial powers for managing and controlling its spiritual disciplinary and business interests, the Civil Courts will not in general interfere with their acts and decisions. It is only when such bodies exceed their powers, and assume to themselves an authority which the contract has not given them, that the Civil Courts will intervene, and then, only, when the party complaining of the wrongful act or decision establishes the fact that he has thereby been injured in his property or in the exercise of some civil right. Any member who has been so injured may obtain redress in the Civil Courts, and his proceedings must be directed against those of his fellow members who have contrary to the contract assumed authority to do the act or give the decision which has caused him injury. If his complaint is against a body of members, such as the General Assembly of the Presbyterian Church of Queensland, he is not bound to join each member as a party. He may, as in the present case, proceed against individuals selected by the Court to represent the whole body for the purpose of the proceedings: Skerret v. Oliver. In pursuance of these well-established principles, the plaintiff has in the first action proceeded against certain members of the Presbyterian Church of Queensland representing the Presbytery of Brisbane, and in the second action against certain members representing the General Assembly of the Presbyterian Church of Queensland, and the Presbytery of Brisbane. His complaint against both bodies is that they have, in breach of the contract which binds them and him as members of the Church, acted beyond their jurisdiction in making against him the declarations and orders which have caused him the injuries which he comes to the Court to have redressed.

112 Further His Honour said (at 700 - 702):

A voluntary association might certainly bind its members by a contract stipulating that the interpretation of the terms and conditions of association should be exclusively in the hands of a judicial body empowered to decide without question the limits of its own jurisdiction. It might further provide that the penalty of questioning the decisions of that tribunal should be expulsion from the association or a temporary loss of its benefits. Men may thus, if they think fit, submit themselves absolutely to the will and pleasure of the association which they have voluntary created. If they do so they have no right to complain of any exercise of power so long as it is not malicious. But there is no such self-surrender or abnegation of rights to be found in this contract. On the contrary it abounds in provisions for securing to members the preservation of rights and the fair trial of accusations. No word of the contract gives colour to the contention that any member of the Church has debarred himself from the exercise of that right which belongs to every person who enters into a contract with others-the right of appealing to the Courts to have the contract interpreted when the other parties to it are acting to his injury beyond the scope of the contract. In another way the defendants' counsel endeavoured to find in terms of the contract the unlimited jurisdiction that has been claimed. The plaintiff, it is urged, promised by his vow to submit himself "to the government and discipline established and practised in the Church." It was contended that the Presbyterian Church had always exercised unlimited control over its members in matters of Church government and discipline, and that it was to the government and discipline so established and practised that the plaintiff had submitted himself. But two answers at once suggest themselves. Whatever may have been the government and discipline practised in the Church in other times, there are numerous provisions of the present disciplinary codes that are entirely contradictory of the position that the minister's rights are at the absolute mercy of the Presbytery or the General Assembly. But the alleged foundation of fact is wanting also. The Church, since it has ceased to be a State Church, has not exercised without question the unlimited powers now claimed. The issues involved in the Cardross Case and other cases cited in argument show that the right to such unlimited and unquestioned power has never been recognized by the Civil Courts. I take it, then, as established that it is open to this Court to examine the terms of the contract which gives jurisdiction to the judicial tribunals of the Church, and to determine whether the General Assembly could on the materials before it find that the plaintiff had been guilty of insubordination or had committed a breach of discipline. I assume for the present that they had jurisdiction to try him, and that their mode of proceeding was authorized by the Constitution of the Church. It is not necessary to decide for this purpose whether the plaintiff was right or wrong in his view as to the powers of the Presbytery in dealing with the disputes between him and his congregation. It is clear that he honestly believed they were acting beyond their jurisdiction, and he sought the intervention of the Civil Court to protect him from what he believed to be a violation of his rights. As I have already pointed out, the law gave him a right to raise the question of the true interpretation of the contract, and to raise it in that way. It is clear, therefore, that the General Assembly could not legally come to the conclusion that the plaintiff's exercise of a legal right was a breach of discipline and an act of insubordination.

113 Justice Isaacs who dissented in the result nonetheless formed the view that relevantly there was an enforceable contract. He considered that the contract was to be interpreted by conventional methods at 704 - 705.

114 The principles in MacQueen v Frackelton (1909) 8 CLR 673 have been considered extensively and approved in numerous subsequent cases, see in particular Micallef v Donnelly [2002] FCA 221 at [9], and Baker v Gough [1963] NSWR 1345 at 1276 - 1277 (which I will consider separately). See also Glebe Administration Board v Commissioner of Pay-roll Tax (NSW) (1987) 10 NSWLR 352 where His Honour Lee A-JA cited with approval the characterisation of the church by Isaacs J at 704 as a voluntary association, the social compact of which is "at once the source and measure of the rights of those who compose the body," and notably a decision of the New South Wales Court of Appeal in Uniting Church in Australia Property Trust (NSW) v Vincent, unreported: (1994) BC9402935 at 9 where Kirby P, as he then was, noted with approval the remarks of Gibbs J at 600 and quoted with approval the comments of Griffith CJ at 690 that the "powers of a Court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them."

115 In Forbes v Eden (1867) LR 1 HL 568 (discussed by the High Court in Macqueen), the appellant Mr Forbes was ordained a Minister of the Episcopal Church of Scotland in 1848. Prior to his ordination in accordance with the law of that church he subscribed to the Thirty-Nine Articles and also the Canons of the Episcopal Church in Scotland acted in the year 1838. The General Synod made alterations to the Code of Canons of 1838 by introducing new Canons in 1863. The appellant asserted that the latter Canons departed from the recognised Constitution and acknowledged practice of the church and therefore had violated the contract into which he entered by subscribing to the Code of 1838. As a matter of conscience he contended that he could not obey the new Code and was liable for penalty in the event that he did not. There was no suggestion that he had incurred any actual damage. This case was brought rather upon the possibility of his sustaining damage by reason of his conscientious adherence to his own views and obligations driven as he asserted by adherence to the 1838 Code. The Lord Chancellor determined that the Canons of 1838 could not properly be regarded as a contract between the members of the church when the appellant was ordained. He said at 576:

They are principally, if not altogether, directed to the regulation of order and discipline, and contain nothing with regard to the fundamental doctrines or articles of faith upon which the constitution of a religious community depends.

116 His Lordship then went on to discuss whether indeed even assuming the Canons did have contractual force there was in fact any breach. He determined there was none.

117 However His Lordship did say at 575:

Supposing the Appellant to have really sustained damage by reason of the Code of 1863, it would have been open to the Court to consider whether the General Synod had authority to make the canons from which this civil injury had arisen.

118 Lord Cranworth said at 581 - 584:

Save for the due disposal and administration of property, there is no authority in the Courts either in England or Scotland to take cognisance of the rules of a voluntary society entered into merely for the regulation of its own affairs:...

There is no jurisdiction in the Court of Session to reduce the rules of a voluntary society, or, indeed, to inquire into them at all, except so far as may be necessary for some collateral purpose. The only remedy which the member of a voluntary association has, when he is dissatisfied with the proceedings of the body with which he is connected, is to withdraw from it. If, connected with an office in a voluntary association, there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house or land, or a chapel, or a school, then, incidentally, the Court may have imposed on it the duty of inquiring as to the regularity of the proceedings affecting the status in the society of any individual member of it. But here there is no question of this sort....

A religious body, whether connected with the state or not, forms an imperium in imperio of which the Synod is the supreme body, when there is not, as there is in the Church of England, a temporal head. If this is so, I feel it impossible to say that any canons which they establish can be treated as being ultra vires. The authority of the Synod is supreme. It may indeed be that a Synod or general assembly, of a religious body has no power to affect civil rights already acquired under existing canons or rules. But that is very different from saying that the canons or rules themselves have no force amongst those who have no such complaint to make.

119 In the same case Lord Colonsay remarked at 588:

A Court of Law will not interfere with the rules of a voluntary association unless to protect some civil right or interest which is said to be infringed by their operation. Least of all will it enter into questions of disputed doctrine, when not necessary to do so in reference to civil interests.

120 His Lordship further said at 589:

His demand rests entirely on the allegation that he is exposed to pecuniary consequences in respect of the position in which he is placed with reference to the refusal of a licence to his curate. That is a question which may yet have to be tried between him and his curate, if either of them fails to fulfil the contract which has been entered into between them. But at present we cannot go into that question. It is not a matter which is properly raised here, and therefore I apprehend there is no relevancy in this action as regards that demand, and I apprehend that we cannot go into those further questions of reduction and declaration which are made, as it were, the prelude to dealing with that petitory conclusion.

121 However, in Cameron v Hogan (1934) 51 CLR 358 the plaintiff in those proceedings (the respondent on the appeal) had sued the defendants (the appellants) who comprised six officers and eighteen members who formed the Central Executive of the Australian Labor Party of the State of Victoria, a voluntary association. The proceedings involved an allegation that the appellants had failed contrary to the rules of the party to approve and endorse him as the candidate for a state election which was imminent when he was the sitting member. Second there was an allegation that they had wrongly resolved to exclude him from the party and more to the point that he had not been given an adequate opportunity of answering certain charges put against him. The trial judge Gavan Duffy CJ had held that the appellants were not justified by the rules in refusing to endorse him as the candidate for the imminent election and that proper procedures had not been followed. His Honour expressly held that there was an actionable breach of contract between the plaintiff and the defendants but that the plaintiff had no such substantial or proprietary interest in the property of the association as to justify either an injunction or declaration but he did award the plaintiff nominal damages of one shilling.

122 In reversing the decision of the trial judge the plurality comprising Rich, Dixon, Evatt and McTiernan JJ made a number of important statements as follows at 370 - 371:

Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint.... There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.

123 Their Honours also noted at 371 - 372:

In the next place, the difficulty of framing an action by one member of a large body of persons for damages for breach of a contract constituted by his admission to membership has always been very great...

But if these procedural difficulties were overcome and an enforceable contract of membership of an unpropertied voluntary association were found to have been in contemplation, it would become necessary to consider whether a breach of contract had been committed, and who was responsible.

124 In Baker v Gough [1963] NSWR 1345 Jacobs J (as he then was) heard an application for declaration and injunction brought by a person who had been a chaplain at the Kings School against the members of the School Council including the Archbishop of Sydney. The injunction which was sought against the Archbishop was to restrain him from revoking or purporting to revoke the plaintiff's licence to act as chaplain at the school. Further an injunction was sought restraining other defendants from attempting to exclude the plaintiff from the chapel of the school or from rights and privileges attached to the office of chaplain and to restrain them from discontinuing the payment of his stipend. His Honour found that the particular ordinance pursuant to which the Council purported to dismiss the chaplain came into existence pursuant to the 1902 Act as a result of a resolution of the Synod of the Diocese of Sydney. In the course of discussing the ordinance and its alleged invalidity His Honour necessarily had to consider the nature of the right or rights the plaintiff was asserting for the purposes of the relief claimed. His Honour said at 1275 - 1276:

The first question, therefore, is whether the provision in cl. 10 (a) of the ordinance can be regarded merely as a term of a contract of employment or whether it must be given a wider significance. The question is not dissimilar from that which I had to consider in Howes v. Gosford Shire Council where again it seemed to me that the issue turned on the characterization of the rights purported to be created. I there considered the distinction between rights arising merely under a contract of employment and rights created otherwise, in that case by statutory provision, and I referred to a number of the more recent cases in England where, provided that the rights in question did not arise merely under a contract of master and servant, the fact that they arose in connexion with such a relationship did not deter the court from inferring and granting relief. I do not propose to go through those cases again or to refer again to the principle which it seemed to me was established by them. Mr. St John has submitted that the present case is indeed one of a statutory right conferred upon the plaintiff because, he submits, the right to pass the ordinance in question came from a statute and the ordinance can be regarded as delegated or subordinate legislation. He therefore submits that the case is not really distinguishable from Howes' Case. Although I appreciate the force of this submission, I do not think that it is correct. It seems to me that there is a great difference between finding a statutory source for a right to make ordinances, by-laws, articles of association or the like, which are designed primarily to adjust rights and obligations between individuals in the community, and a provision made either by a public statute or by a regulation or order of the Executive issued or made pursuant to such a statute.

However, the problem does not end there. I have been referred to a number of cases, particularly in England, where relief has been granted to a plaintiff in equity because he been dismissed from office or otherwise affected in his position in life by a failure of another party to deal with him in accordance with rules laid down either in some consensual compact of an unincorporated association or under a trust deed. There are that group of cases which may be described as the "Schoolmaster Cases" (see Rendall v. Blair; Fisher v. Jackson. Contrast Hayman v. Governors of Rugby School) where under the terms of the trust deed under which the school was administered no limitation or restriction was placed on the circumstances of the dismissal of a schoolmaster.

There is Daugars v. Rivaz where a pastor was held entitled to assert in a court of equity a right to position and emoluments, not granted to him personally because the trust under which they were paid had been created centuries before, simply because the trust in question provided for the pastor and his remuneration and the plaintiff as the present pastor in 1860 was held entitled personally to enforce those rights. More recently there are cases such as Hawick v. Flegg, Lee v. The Showmen's Guild of Great Britain, Beaker v. Jones, in all of which the provisions of a mutual compact were enforced at the suit of one party to that compact even though the granting of relief involved the enforced continuation of mutual relations between the parties.

It does not seem to me sufficiently to explain these cases to say that since all members of an unincorporated association have some interest in the property of the association therefore they all have an interest to sue on behalf of the association to enforce its rules. The trust cases to which I have referred cannot be explained on this basis. No private rights of any kind exist in the schoolmaster or the clergyman which can be said to arise in the strict sense in them as beneficiaries under a trust. I do not think that this case turns on the fact that the plaintiff happens to be a member of the Church of England and therefore a party to the mutual compact of that church. His rights arise, if they arise at all, under the terms of the ordinance. I have come to the conclusion that he has rights created in himself personally because although a simple application of the principles of contract or the principles of trusts may make it difficult to define the reasons why those rights exist, they have been held to exist in a long line of authority which has recognized them. The authority which particularly binds me and which is particularly apposite is one to which I have not yet referred, namely, Macqueen v. Frackelton. In that case a minister who was suspended from his office and from acting as a minister in the Presbyterian Church in Queensland for six months obtained relief upon the ground that the decision of the General Assembly against him was beyond its power and that the suspension was illegal and null and void. He obtained in the order of the High Court a declaration to that effect with liberty to apply for an injunction should that be necessary.

It has been sought to distinguish this case before me mainly upon two grounds. First it has been said that in fact no injunction was granted and since the jurisdiction of this Court may depend upon the right to grant an injunction, relief of the kind granted in Macqueen's Case is not available here. I shall deal with this presently. It is also submitted that the plaintiff in Macqueen's Case was in fact prevented from exercising his functions as a minister anywhere in Queensland and therefore there was a loss of livelihood. These grounds of distinction may go to the question whether this Court can grant relief but they do not affect the question whether individual rights are created in a plaintiff. It seems to me that Macqueen's Case is clear authority for the view that the ordinance creates rights in the plaintiff personally: cf. Halsbury's Laws of England 2nd ed, vol. XI, p. 971. It seems to me that the cases establish that those rights arise not only because of the existence of the compact binding the members of the Church of England in this State but probably for another reason, namely, that where the rules of an association purport to set up some form of domestic tribunal to exercise jurisdiction over persons who are either members of the organization under whose rules the domestic tribunal is set up or who have contractual relations with the organization so that the rules purport to confer jurisdiction over such a person, then if the domestic tribunal exceeds its jurisdiction either in relation to a member or in relation to a non-member who is purported to be made subject to the tribunal then relief may be granted in the courts and the appropriate court for seeking such relief is the court of equity. A recent example of such an exercise of the court's jurisdiction is found in Davis v. Carew-Pole. It seems to me that some such principle is the only explanation of many of the English cases to which I have referred. That such a jurisdiction should exist in some court is to me quite understandable. In the case of the domestic tribunals none of the prerogative writs lies. It is a principle of law that any tribunal should act within its powers and should act according to the principles of natural justice. It would be a sorry state of affairs if there was no court which could superintend in a proper manner the acts of such a tribunal. The courts in the past have not declined to exercise jurisdiction and, although I appreciate the force of the arguments based on pure theory of contract or of trust which have been placed before me, I do not propose now to refuse to recognize the right of a plaintiff to assert such matters.

125 His Honour concluded that the ordinance was the source of rights and the plaintiff was entitled to seek enforcement of them.

126 In Clarke v Earl of Dunraven and Mount-Earl (the Satanita) [1897] AC 59, the House of Lords was called upon to consider the terms upon which certain competitors had entered a yacht race. Two yachts were entered by their respective owners for a club race each undertaking with the club to be bound by certain sailing rules. By those rules the owner of any yacht disobeying any of the rules was to be liable for "all damages arising therefrom". One of the yachts in breach of the rules through improper navigation ran into and sank another yacht. The question was whether liability arose by reason of a breach of the rules.

127 Their Lordships found the rules of the club were intended to have contractual force. Lord Herschell said at 63:

My Lords, I am of the same opinion. I cannot entertain any doubt that there was a contractual relation between the parties to this litigation. The effect of their entering for the race, and undertaking to be bound by these rules to the knowledge of each other, is sufficient, I think, where those rules indicate a liability on the part of the one to the other, to create a contractual obligation to discharge that liability. That being so, the parties must be taken to have contracted that a breach of any of these rules would render the party guilty of that breach liable, in the language of rule 24, to "pay all damages," in the language of rule 32, to be "liable for all damages arising therefrom." The language is somewhat different in the two rules; but I do not think they were intended to have, with regard to payment or liability to damages, any different effect. It is admitted that the appellant broke one of those rules, and, having broken or disobeyed that rule, it is quite clear, on the assumption of a contract such as I have described, that there arose the liability to "pay all damages," or "to be liable for all damages arising therefrom".

128 In Raguz v Sullivan [2000] 50 NSWLR 236 the Court of Appeal had to consider the legal status of an agreement entered in between the Australian Olympic Committee and the Judo Federation of Australia for the selection of athletes for the 2000 Olympic Games.

129 The Chief Justice and the then President of the Court of Appeal wrote a joint judgment which was concurred in by Priestley LJ. They said at [67] - [68]:

[67] Beyond Australian Olympic Committee and Judo Federation of Australia the framework was open-ended as to parties, initially. However, after selection on the shadow team, individual athletes were invited to adhere to the selection agreement through execution of nomination forms and team membership agreements. By these means, each adherent promised in favour of the others that he or she would abide by the rules attending the contest in which they were engaged, that is, for Olympic nomination and selection. Such a multipartite agreement is enforceable, notwithstanding traditional notions of offer and acceptance: Clarke v Earl of Dunraven; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 80ff; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177ff. In Integrated Computers , McHugh JA said (at 11,117) that:

"... a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. ... The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement."

[68] The Judo Federation of Australia's offer to embark on the nomination process in accordance with the selection agreement if the athletes in turn submitted to the arbitration conditions was consideration for the multipartite agreement. The mutual promises to submit to arbitration were also consideration passing from each athlete to the other.

130 None of the authorities I have referred to above has affected my view that neither the 1961 Act and/or National Constitution or the 1902 Act and Constitutions would per se appear to me to be the repository of rights in the relevant sense that could enable the plaintiffs to seek the particular ruling sought. However the disciplinary action here of course took place pursuant to the PS Ordinance. However courts in a number of the authorities referred to above have, especially where disciplinary actions are involved, been inclined to find the requisite contractual relations sufficient to permit a plaintiff access to a court. The terms of the PS Ordinance are central in my view to the question of the plaintiffs ability to bring these proceedings.

The PS Ordinance

131 For this purpose of course I will assume that the PS Ordinance has been validly brought into existence. The plaintiffs of course rely upon the PS Ordinance in one context but otherwise submit it is invalid. The PS Ordinance, as will be made clear, provides a particular procedure to be followed by the church in the Diocese of Newcastle where disciplinary proceedings are brought against the persons concerned.

132 The first thing to observe is the obvious, namely it is an ordinance devoted entirely to professional standards within the church and more particularly within the Diocese of Newcastle.

133 The PS Ordinance contains a Position Statement. It is stated that the Diocese regards any professional misconduct by a church worker especially sexual misconduct as very serious. Further that the Diocese is committed to support, seek justice for and promote the welfare of those who suffer because of sexual misconduct, abuse or harassment including the complainant, members of the complainant's family and close associates, the parish and wider church community. The Diocese is also committed to support and seek justice for and promote the welfare of those who are accused of sexual misconduct, abuse or harassment, again including accused workers, members of their families, the parish and the wider church community. Importantly it contains a statement, namely that the Diocese will be "open and accountable" and "in dealing with these matters it will act with integrity and transparency".

134 There are a number of pertinent definitions, as follows:

"Church worker" means a person who is or who at any relevant time was:

(a) a member of the clergy; or

(b) a person holding a licence issued by the Bishop;

(c) any person who is or has at any time been elected to or appointed to any position by the Bishop, Synod, Diocesan Council, Parish Council, Incumbent, Rector or Priest-in-Charge

"examinable conduct" means conduct wherever or whenever occurring the subject of information which, if established, might call into question:

(a) the fitness of a Church worker, whether temporarily or permanently, to hold a particular or any office, licence or position of responsibility in the Church or to be or remain in Holy Orders or in the employment of a Church body; or

(b) whether, in the exercise of a Church worker's ministry or employment, or in the performance of any function, the Church worker should be subject to certain conditions or restrictions.

135 The PS Ordinance in part 4 has provisions dealing with the protocol to be followed in the receipt of information and actions to be undertaken in the investigative process. Part 5 deals with the creation of what is described as the Professional Standards Committee (PSC). In section 23 of part 5 there is the following provision:

Subject to the provisions of this Ordinance the PSC has the following powers and duties:

(a) to implement the protocol to the extent that the protocol is not inconsistent with this Ordinance;

(b) to receive information;

(c) to offer advice to the Director of Professional Standard;

(d) to act on information in accordance with the provisions of this Ordinance, and the protocol to the extent that it is not inconsistent with this Ordinance;

(e) to appoint suitable persons to fulfil the several roles required to implement the protocol in each particular case;

(f) where appropriate, to arrange for the conciliation or mediation of any complaint the subject of information;

(g) to investigate information in a timely and appropriate manner;

(h) where appropriate, to recommend to the Diocesan Council any changes to the protocol;

(i) subject to any limit imposed by the Diocesan Council to authorise such expenditure on behalf of the Synod or the Church body as may be necessary to implement, in a particular case, the protocol and the provisions of this Ordinance;

(j) to advise any relevant Church authority or Church body as to the financial or other needs of a person affected by conduct the subject of information and as to any possible or actual legal proceedings against such Church body or Church authority arising out of the alleged conduct of a Church worker;

(k) to refer any information in its possession to a member of a law enforcement, prosecution or child protection authority of a State or Territory or of the Commonwealth of Australia to which the information is or may be relevant;

(l) to maintain proper records of all information received, meetings held and of action taken in relation to such information; and to keep such records in a secure place;

(m) to exercise such other powers and functions are conferred on it by this or any other Ordinance.

136 Part 8 is the section dealing with examinable conduct. The following provisions are relevant:

29. (1) A member of the Clergy and a Church authority in the diocese shall as soon as possible refer any information in his her or its possession or knowledge to a member of the PSC unless that information is already known to the PSC.

(2) This section does not affect the operation of the Ordinance Concerning Confessions 1989 of General Synod or any other Ordinance or legislative instrument relating to confessions in force in the diocese.

30. Subject to this Ordinance, where the PSC considers that the subject matter of information constitutes examinable conduct it shall investigate the information.

34. (1) the PSC may by notice in writing to a respondent require the respondent to provide a detailed report to the PSC within the time specified in the notice in relation to any matter relevant to the investigation.

(2) It is the obligation of a respondent:

(a) truthfully to answer any question put by or on behalf of the PSC in the exercise of powers conferred by this Ordinance;

(b) not to mislead the PSC or a member or delegate of the PSC;

(c) not unreasonably to delay or obstruct the PSC or a member or delegate of the PSC in the exercise of powers conferred by this Ordinance

137 Part 9 deals with the creation of a Professional Standards Board and the following provisions are relevant:

40. There shall be a Professional Standards Board constituted and appointed in accordance with the provisions of this Part.

42. Subject to the provision of this Ordinance the function of the Board is to inquire into and determine a question or questions referred to it pursuant to section 59 and questions within its jurisdiction referred to it by an equivalent body to the PSC and to make a determination referred to in section 74 and where appropriate to make a recommendation in accordance with the provisions of this Ordinance.

44. The members of the Board in a particular case shall be appointed from a panel comprising:

(a) a President and a Deputy President, shall be appointed by Diocesan Council, such persons being lawyers who have held a practicing certificate in an Australian jurisdiction for more than 10 years before the date of their appointment.

(b) five members of the clergy of at least seven years' standing; and

(c) Five lay persons who are practicing members of a Christian church.

(d) the Business Manager shall be secretary of the Board with authority to keep the Bishop informed orally of the progress of the referral of matters.

53. (1) There shall be a secretary to the Board who shall be appointed by or in accordance with a resolution or Regulation of the Diocesan Council, and whose duties shall be defined by the President.

(2) The secretary to the Board may act in a corresponding capacity for another diocese either generally or for a particular case or matter.

54. (1) in any proceedings of the Board where the Board is constituted by two or more members:

(a) Any question of law or procedure will be determined by the presiding member; and

(b) Any other question will be determined by majority decision of the members, and in the case of an equality of votes the opinion of the presiding member shall prevail.

(2) Where the Board is constituted by a member sitting alone who is not the President or the Deputy President, any question of law that arises must be referred to the President or Deputy President for decision and any decision made on such a reference is a decision of the Board.

(3) The Board must act with fairness and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

(4) The Board may inform itself from the record of any court or tribunal and may adopt any findings, and accept as its own, the record of any court or tribunal.

56. The Board must give reasons for any determination, other than by way of directions in the course of an inquiry, unless the determination is made by consent of the respondent.

138 Part 10 deals with reference of matters to the PSB and the procedure to be adopted both in questions posed of the Board, for example, the following provisions are relevant:

67. (1) Subject to sub-section (2), the Board must give the following persons reasonable notice of the time and place of a sitting of the Board:

(a) the Director; and

(b) the respondent; and

(c) such other persons as the Board believes have a proper interest in the matter.

(2) The Board is not obliged to give notice of a sitting to a person whose whereabouts cannot, after reasonable enquiries, be ascertained.

68. In any proceedings before the Board:

(a) the referring body and any person may be represented by a legal practitioner or, with leave of the Board, by any other person;

(b) the referring body or its appointed representative shall do all in its power to assist the Board and shall carry out any directions of the Board;

c) The Board:

(i) must give the referring body and the respondent a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions to the Board; and

(ii) must give any other person to whom notice of the proceedings was given or who satisfies the Board that he or she has a proper interest in the matter a reasonable opportunity to make submissions to the Board.

69. (1) Subject to sub-section (2), a sitting of the Board on a reference before the Board is an open sitting.

(2) On any such sitting before the Board, the Board has an absolute discretion:

(a) to direct that no person other than:

(i) the respondent and any person representing him or her in the proceedings; and

(ii) witnesses or persons making submissions (while giving evidence or making those submissions (while giving evidence or making those submissions); and

(iii) officers of the Board or persons assisting the Board ; and

(iv) members of or persons appointed by the referring body, be present in the room while the Board is sitting; or

(b) to direct that a particular person (other than a person referred to in paragraph (a)) not be present in the room while the Board is sitting.

70. The Board may make a determination in any proceedings in the absence of a person affected by the determination if satisfied that reasonable efforts were made to give that person an opportunity to appear.

73. In making any determination the Board shall take into account:

(a) the conduct of the Church worker as it finds it to have been;

(b) in the material before the Board, any other fact or circumstance relevant to the determination of the question or questions before it; and

(c) any failure of the Church worker to comply with a provision of this Ordinance or with a direction of the Board.

74. If, after investigating the question or questions referred to it about a Church worker, the Board is satisfied that:

(a) the Church Worker is unfit, whether temporarily or permanently, to hold a particular or any office licence or position of responsibility in the Church or to be or remain in Holy Orders or in the employment of a Church body; or

(b) in the exercise of a Church worker's ministry or employment or in the performance of any function, the Church worker should be subject to certain conditions or restrictions;

the Board may determine accordingly and may:

(c) recommend that the Church worker be counselled;

(d) recommend that the Church worker be suspended from office or employment or from performing the function as the case may be for such period determined by the Board;

(e) recommend to the Church authority that the licence or authority of the Church worker be revoked;

(f) recommend to the relevant Church authority that the Church worker's contract of employment (if any) be terminated;

(g) recommend to the relevant Church authority that the Church worker cease to hold any office then held;

(h) recommend to the relevant Church authority that a prohibition order be made in terms specified by the Board;

(i) recommend to the relevant Church authority that the Church worker's holding of office or employment or performance of the function as the case may be, shall be subject to such conditions or restrictions as the Board may specify;

(j) recommend that the operation of a determination shall be suspended for such period and upon such conditions as the Board shall specify;

(k) recommend that the Church worker should be deposed from Holy Orders;

(l) make such other recommendation as the Board sees fit.

75. The Board shall cause a copy of each determination and recommendation to be provided:

(a) to the relevant Church authority; and

(b) to the respondent; and

shall cause relevant details to be forwarded for entry into the national register.

77. A person who has been deposed from Holy Orders in accordance with this Ordinance or in accordance with the provisions of any ordinance act, Ordinance, constitution, statute, legislative measure or provision of the general synod or the diocesan synod of another diocese of this Church;

(a) is incapable of:

(i) officiating or acting in any manner as a bishop, priest or deacon of this Church;

(ii) accepting or holding an office in this Church capable of being held only by a person in Holy Orders;

(b) ceases to have any right privilege or advantage attached to the office eof bishop priest or deacon;

(c) shall not hold himself or herself out to be a member of the Clergy; and

(d) is not capable of holding an office in the Church which may be held by a lay person without the prior consent of the Bishop.

139 Part 12 of the PS Ordinance provides for a review procedure by which decisions which a determination or recommendation that has the effect of deposing a person from Holy Orders or terminating, removing or suspending the person concerned can be removed.

140 Review may be made on a number of basis including whether for example there has been a breach of natural justice or the PSB acted outside jurisdiction, (cl 83).

141 I have set the provisions out in some little detail. They portray in my mind an elaborate protocol for the church to address allegations of sexual misconduct in a structured way, so as to ensure a fair and an accountable investigation followed by an equally fair and transparent process if matters are to be the subject of a hearing before the PSB. This is reminiscent of the "framed code" Griffith CJ considered in Macqueen v Frackelton.

142 There is little doubt in my mind that the PS Ordinance is drafted in language that manifests an intention to affect legal rights and obligations. Given the nature of the conduct which is sought to be examined and what is potentially at stake it seems to me that it cannot be gainsaid that that is the intention of the PS Ordinance. It has been put by the Primate, and I agree, that the plaintiffs each have an accrued right to hold and to hold themselves out as entitled to hold, Holy Orders in the Anglican Church of Australia which right is clearly at risk as a result of steps undertaken or purportedly taken under the PS Ordinance. There is also equally little doubt that a priest enjoys certain rights, privileges or advantages attached to the office (so described). These would include the actuality or prospect of receiving emoluments of the office of a priest. One example which was given was to solemnise a marriage under and for the purposes of the Marriage Act 1961 (Cth). Of course in doing so the priest is entitled to make a charge for the delivery of services. There is also the prospect envisaged by s 77(d) that if deposed from Holy Orders the person may not be able to hold an office which would otherwise be held by a lay person without the prior consent of the bishop. Examples of this would be a church warden or a member of a parish council.

143 Treating the PS Ordinance in this way is, it seems to me, entirely consistent with the decisions of Macqueen v Frackelton, Baker v Gough and Raguz v Sullivan.

144 On matters of discipline and if the PS Ordinance is invoked in the Diocese of Newcastle, I consider its language should properly be construed as giving those threatened or who's careers are placed in jeopardy contractual rights to ensure the integrity of the process. Those rights, as here, can be enforced against the members relevantly of the PSC or PSB and if need be the bishop (the first defendant).

145 The process of investigation of allegations and in turn the public ventilation of such allegations are it seems to me to be contractually governed by the promised procedure with its promised safeguards.

146 This contractual regime would in and of itself permit either plaintiff in my opinion to complain about a failure on the part of the church as it were (but relevantly members of the PSC and/or PSB) to observe the appropriate and/or promised procedures and if not to seek relief in the courts. In my view the plaintiffs claims are justiciable.

Reputation

147 The plaintiffs also rely upon reputational interests to provide them as they contend with sufficient standing to bring their respective claims. Because of my findings above it is strictly unnecessary for me to consider this argument. I should observe the defendants contest such a proposition. However if I am otherwise in error I consider I should deal with this issue.

148 There is no doubt of potential for long lasting damage to a persons reputation where as here the process involves the investigations and potential finding of unchaste conduct on the part of a priest.

149 However the nature of reputational interests is perhaps open to debate. A question that does arise is whether reputation is property. There are cases in the law of libel and of passing off which regard reputation as property. This may be important if, as here, it is contended by the defendants that only such interests could arguably provide the plaintiffs with the requisite standing.

150 In "Law of Actionable Defamation" (2nd ed, 1923) the author George Spencer Bower stated at 240:

For purposes of the civil law of defamation, reputation is regarded as a species of property

151 In Dixon v Holden (1868-69) LR 7 Eq 488 Malins LC said at 492:

I am told that a Court of Equity has no jurisdiction in such a case as this, though it is admitted it has jurisdiction where property is likely to be affected. What is property? One man has property in lands, another in goods, another in a business, another in skill, another in reputation; and whatever may have the effect of destroying property in any one of these things (even in a man's good name) is, in my opinion, destroying property of a most valuable description. But here it is distinctly sworn to, and cannot be denied, that the effect of this will be seriously damaging to the Plaintiff's business of a merchant.

Now the business of a merchant is about the most valuable kind of property that he can well have. Here it is the source of his fortune, and therefore to be injured in his business is to be injured in his property. But I go further, and say if it had only injured his reputation, it is within the jurisdiction of this Court to stop the publication of a libel of this description which goes to destroy his property or his reputation, which is his property, and, if possible, more valuable than other property.

In this case I go on general principle, and I am fortified by authority. General principle is in favour of it, but authority is not wanting.

152 The law of libel of course also presumes good reputation: Cornwall v Richardson (1825) Ry M 305.

153 Some academic writers have discussed the issue. Robert Post, then Acting Professor of Law at the University of California, Berkley in an article entitled 'The Social Foundations of Defamation Law: Reputation and the Constitution', 74 California Law Review 691 (1986) said at 693 - 695:

The concept of reputation that is most easily available to contemporary observers is that of reputation in the marketplace. This concept of reputation can be understood as a form of intangible property akin to goodwill. It is this concept of reputation that underlies our image of the merchant who works hard to become known as creditworthy or of the carpenter who strives to achieve a name for quality workmanship. Such a reputation is capable of being earned, in the sense that it can be acquired as a result of an individual's efforts and labor. Thomas Starkie well described this concept of reputation over a hundred and fifty years ago:

Reputation itself, considered as the object of injury, owes its being and importance chiefly to the various artificial relations which are created as society advances. The numerous gradations of rank and authority, the honours and distinctions extended to the exertion of talent in the learned professions, the emoluments acquired by mechanical skill and ingenuity, under the numerous subdivisions of labour, the increase of commerce, and particularly the substitution of symbols for property in commercial intercourse- all, in different degrees, connect themselves with credit and character, affixing to them a value, not merely ideal, but capable of pecuniary admeasurement, and consequently recommending them as the proper objects of legal protection.

For Starkie the reputation protected by defamation law is something that a person can earn through "the exertion of talent" or the exercise of "mechanical skill and ingenuity." To injure such a reputation without justification is to unjustly destroy the results of an individual's labor. The resulting loss is "capable of pecuniary admeasurement" because the value of reputation is determined by the marketplace in exactly the same manner that the marketplace determines the cash value of any property loss.

The concept of reputation as property explains why defamation law proscribes aspersions on an individual's character even in contexts that are not narrowly oriented toward business relationships. This is because character can be viewed - and at the time Starkie was writing was in fact viewed: - as "the fruit of personal exertion". On this account character "is not inherited from parents; it is not created by external advantages; it is no necessary appendage of birth, or wealth, or talents, or station; but the result of one's own endeavors,the fruit and reward of good principles, manifested in a course of virtuous and honourable action. Such character is understood to be a form of "capital" since it "creates funds" and the potential for "patronage and support". The reputation for good character, as distinct from the possession of the character itself, can also be understood as the result of individual exertion. From this perspective defamation law safeguards "that repute which is slowly built up by integrity, honourable conduct, and right living. One's good name is... as truly the product of one's efforts as any physical possession." The potential financial importance of a reputation for good character was stressed by Max Weber, who in his travels in the United States observed that qualifying for "admission" to certain voluntary religious sects was "recognized as an absolute guarantee of the moral qualities of a gentleman," a guarantee that immediately translated into "credit worthiness." Benjamin Franklin even went so far as to define "character in terms of the amount of 'credit' a community would extend to a person, based on an estimate of his 'good repute,' his 'affluence,' and his 'felicity.' Unjustified aspersions on character can thus deprive individuals of the results of their labors of self-creation, and the ensuing injury can be monetarily assessed.

154 Serious doubts however have been expressed about reputation being property. For example Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 said:

When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways-as a vindication of the plaintiff to the public and as consolation to him for a wrong done

155 Also Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 said at 349:

The worth of reputation

Defamation may cause identifiable economic consequences for the person who is defamed. This was not said to be the case in this matter. In the present, as in so many cases of defamation, the wrong that was done to the appellant was alleged to have caused him personal distress and hurt and to have caused harm to his personal and his professional reputation; it was not alleged that his professional earnings had diminished by an identified amount. Assigning a money sum as sufficient to remedy those harms and to vindicate the appellant's reputation translates losses which have no market value into amounts of money:...Because reputation is not bought and sold, it is only in the courts that money values are assigned to the consequences of infliction of harm to reputation.

156 There are obvious constraints on the property test and it might also be a bit fanciful for example to suggest that officers of voluntary associations are trustees of fellow members' personal or business reputation.

157 I consider it is right however to say that a person has a real interest in ensuring that his or her reputation which the law presumes is good be not unjustifiably damaged as a result of an unfair or oppressive disciplinary procedure. The precise relief available may however be a matter of debate.

158 There is no doubt that any findings of sexual misconduct or unchaste conduct would seriously damage a priest's reputation especially if widely published. For example the PSC is empowered (s 20) to release to the public such material as it may determine with respect to any information it receives. Equally the PSB is obliged to cause a copy of each of its determinations and recommendations be sent to the relevant church authority, the respondent and forward details to the national register. The national register means any national register established pursuant to an ordinance of the General Synod for the purpose of recording determinations of the Board and/or equivalent bodies. A bishop upon receipt of a PSB determination is to deliver a copy of the instrument to the bishop of the relevant diocese in which the person who is the subject of the instrument was ordained.

159 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577 - 578 Mason CJ, Dawson, Toohey and Gaudron JJ said as follows:

As earlier indicated, the Full Court took the view that the report did not affect the rights, interests or legitimate expectations of the appellants in a way that required procedural fairness. The appellants claimed that their business reputation was an interest which had been adversely affected by the report. This was rejected by the Full Court on the basis, as stated by McPherson J., that there was nothing to show that any existing business "reputation or goodwill [on the part of the appellants in Queensland was] ... placed in jeopardy by the Report of the Commission". But the law proceeds on the basis that reputation itself is to be protected. And the Commission's report, published in the manner required by s. 2.18 of the Act, could only ensure that, thereafter, the appellants' reputations in Queensland would be of the worst kind.

It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel M.R. said in Fisher v Keane:

"according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct."

And, as recently as 1990, Brennan J. said in Annetts that:

"Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made."

The same is true of business or commercial reputation. And it matters not that, instead of an express finding, there is, as here, an adverse recommendation based on the reports of other bodies or authorities. That being so, the appellants were entitled to procedural fairness.

160 In the same case Brennan J said at 592:

Reputation in this context is not restricted to reputation which is valuable in business: natural justice is required to be observed whenever a statutory authority contemplates a publication which would affect reputation by diminishing the estimation in which the bearer of the reputation stands in the opinion of others. The bearer of the reputation has an interest which is subject to adverse affection if the statutory authority publishes the contemplated report and that is sufficient both to attract the requirement of natural justice and to give locus standi to seek judicial review if natural justice is denied .

161 There are two sides to the issue of reputation of course. Again as the Primate rightly points out the Anglican Church of Australia has an entitlement to protect the goodwill in its name. Attorney-General ex rel Elisha and Others v Holy Apostolic & Catholic Church of the Easter (Assyrian) Australia New South Wales Parish Association (1989) 37 NSWLR 293 at 318 per Young J. It is clearly entitled to have (more relevantly here the Diocese of Newcastle) procedures of the sort set out in the PS Ordinance as part of keeping good order amongst its members but protecting its reputation where a member strays. A priest who has been found to have engaged in sexual misconduct or unchaste conduct does no good for the reputation of the church. However, inappropriate or invalidly conducted disciplinary processes do not either.

162 In Carter v The New South Wales Netball Association [2004] NSWSC 737 the plaintiff who was the member of the defendant, a voluntary association, sought declaratory relief to the effect that the decision of a disciplinary committee was invalid and of no effect. The plaintiff alleged the committee had failed to afford her natural justice. His Honour Palmer J said, as follows:

[100] The Defendant's first submission is that, even if the Plaintiff has been denied natural justice, her complaint is not justiciable because it arises out of the internal affairs of a voluntary association and does not involve property rights. The Defendant relies on Cameron v Hogan (1934) 51 CLR 358. I should observe that the law in this area has moved on a little in the last seventy years.

[101] It has long been established that the Courts will intervene in the decisions of voluntary or domestic tribunals if the proceeding has not been conducted in good faith and honestly. There are many manifestations of lack of good faith or honesty: they include failure to accord procedural fairness, decisions which are absurd or unreasonable, decisions "contrary to fundamental principles of common justice" and decisions for which there is no evidence: see Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 at 568-569 per Hayne JA and the cases there cited.

[102] For some time the Courts usually declined on discretionary grounds to interfere in the decision of a domestic tribunal, even if the decision was made in bad faith or dishonestly, unless the plaintiff's property rights were affected. It was thought that the Courts should not be concerned with merely social or voluntary arrangements but if property rights were involved then the Court would act: see Cameron v Hogan (supra).

[103] Later, the law came to recognise that a person's livelihood might depend upon membership of a voluntary association so that if a decision of a domestic tribunal expelling the person from membership was made without good faith or dishonestly, the Court would intervene: see e.g. Lee v Showmen's Guild of Great Britain [1952] 1 QB 329 at 343; Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 at 246; Australian Football League v Carlton Football Club (supra).

[104] In the present case, the Plaintiff seeks to protect no right of property nor does her livelihood depend directly on membership of the Defendant. She is not a professional netball coach and her previous employment was unrelated to the Defendant's activities. But she is now unemployed and, it is to be assumed, she may have to seek employment in the future. As matters presently stand, by virtue of the entry of her name on the database maintained by the Commission, one area of employment which is, as a matter of reality, closed to her, is any employment involving direct, unsupervised contact with children. That is not a narrow or insignificant area of activity: it stretches from coaching, child minding or employment in a school to activities which one would not immediately connect with children yet which may frequently involve contact with children when they are alone, such as driving a taxi or any number of occupations which require the employee to make visits to people's homes.

[105] Just as important as the matter of the Plaintiff's future employment is that the Plaintiff is now branded as a "child abuser", both by the decision of the Disciplinary Committee and by her inclusion in the database of the Commission. Most damaging to her reputation and self esteem is that she is branded as a child abuser in her own local community. There could be no doubt in anyone's mind that Mr and Mrs Hirst, Mr Watt and Mr O'Donnell will have lost no opportunity to publicise that the charge of "child abuse" , expressly and repeatedly made by the "No Excuse for Abuse Committee" in Mr Watt's letter has been proved against the Plaintiff.

[106] The words "child abuse" are heavily charged. Our community regards with revulsion those who victimise or prey upon children. A known "child abuser" would be shunned by many, perhaps ostracised. As matters presently stand, by virtue of her entry in the database of the Commission, the Plaintiff can rightly be described by her opponents as a "child abuser" because entry in that database is only made after the conclusion of relevant disciplinary proceedings involving child abuse, sexual misconduct or acts of violence: see CCYP Act s.39(1), s.33. Knowing that the Plaintiff is registered with the Commission, most people would not stay to listen to any explanation by her that the "child abuse" in her case consisted of "excessively enthusiastic coaching" of a netball team, to use the words which the Defendant's Counsel considered apt. The tag "child abuser" is enough in itself to evoke the revulsion embedded in those words.

[107] Thus it is that the decision of the Disciplinary Committee in the present case has actually produced a consequence which, quite apart from its potential to damage the Plaintiff's future employment prospects, has damaged the Plaintiff's reputation in her community. That the Plaintiff herself perceives her reputation and self-esteem to have been damaged as a result of the Disciplinary Committee's decision is quite clear from her evidence as to the emotional and psychological stress which she has suffered, especially her inability to leave her home to face people.

[108]...In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, the majority said:

"It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR said in Fisher v Keane ((1879) 11 Ch D 353) 'according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.'

And, as recently as 1990, Brennan J said in Annetts (1990) 170 CLR 596) that: 'Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.' "

At 585, Brennan J said:

"The judgment of this court in Annetts v McCann shows that where an inquisitorial power is being exercised without observing the rules of natural justice and reputation is at risk, the court may order that the rules of natural justice be observed and the court can thus, to an extent, protect the reputation at risk."

[109]. In my opinion, in the present case the direct effects of the Defendant's decision on the Plaintiff's reputation and its indirect effect on her livelihood, by reason of notification under s.39 CCYP Act , is sufficient to warrant the exercise of the Court's discretion in favour of intervention, if the Plaintiff makes out her complaint.

163 For the purposes at least of complaining about any breach of the rules of natural justice or procedural fairness I consider that the plaintiffs would have sufficient interest to litigate about the alleged inappropriate procedures and seek the appropriate relief. On this basis alone I consider the claims in relation to natural justice are justiciable. It may be that such an interest would not permit the court to entertain claims for a permanent stay based upon an alleged abuse of process I do not have to consider this however, because of my views on the nature of the PS Ordinance and the relief I consider, the plaintiffs can generally claim by reason of the alleged defects and/or irregularities in the procedures followed pursuant to it.

Constitutional ground

164 The constitutional issue as I have understood it involved as pleaded two arguments. Review Ground 4 (FAS of C [70] and [72], and Review Ground 5 (FAS of C [73] - [75]). I note that Review Ground 5 is no longer pressed.

Review Ground 4

165 By Review Ground 4, both plaintiffs contend that by reason of Chapter IX of the National Constitution, tribunals thereunder established have exclusive jurisdiction in matters involving the discipline of clergy.

166 The plaintiffs submit that parts 9 and 10 of the PS Ordinance are inconsistent with the National Constitution and beyond the power of the Newcastle Diocese because they seek impermissibly to usurp the disciplinary functions of the constitutionally recognised tribunals in Chapter IX of the National Constitution.

167 As is already plain part 9 of the PS Ordinance deals with the PSB, its membership and its various activities, and part 10 deals with reference of matters to the PSB.

168 In addition it is contended by the plaintiffs that s 54(3) of the National Constitution does not permit questions of discipline or unchastity to be referred to a body such as the PSB.

169 The plaintiffs essential contention appears to be that the National Constitution proscribes the disciplinary powers of the church to be exercised in accordance with Chapter IX and by necessary implication this excludes the possibility of a PSB conducting proceedings of the kind under consideration here.

170 In further elaboration of the point the plaintiffs submit that upon the proper construction of the National Constitution no jurisdiction could be conferred onto the PSB to perform the functions purportedly entrusted to it pursuant to the PS Ordinance.

171 It is important to retrace a little history.

172 The 1961 Act (which as originally enacted was named the Church of England in Australia Act 1961 (NSW) and was renamed the Anglican Church of Australia Act 1961 (NSW) by the Anglican Church of Australia Act 1976 (NSW)) was enacted as part of a legislative scheme throughout Australia for the establishment of the Church of England in Australia on 1 January 1962 (which was renamed the Anglican Church on 24 August 1981). The schedule to the 1961 Act was the National Constitution in its original form which has been amended on several occasions pursuant to the power contained in Chapter XI, (National Constitution).

173 Section 2 of the 1961 Act provides subject to certain provisos that the National Constitution is to be binding upon the members of the Anglican Church "for all purposes connected with or in any way relating to the property of the Church of England in Australia".

174 Section 4 of the 1961 Act provides that subject to certain provisos any provision of the 1902 Act which are inconsistent with the provisions of the 1961 Act or the National Constitution shall to the extent of any inconsistency be inoperative.

175 Section 9 of the 1961 Act provides that a tribunal mentioned in Chapter IX of the National Constitution shall be deemed to be an arbitrator for the purposes of the Commercial Arbitration Act 2010 (NSW) (as amended).

176 In 1902 the New South Wales Parliament passed the Anglican Church of Australia Constitution Act 1902 (NSW) (the 1902 Act) which has annexed to it as schedule 1 the then Constitution of the Church of England in Australia.

177 Section 2(1) of the 1902 Constitution as amended: (Amended 1902 Constitution) under the head "Power of Synod Generally" is in the following terms:

The Synod of each Diocese may make ordinances upon and in respect of all matters and things concerning the order and good government of the Anglican Church of Australia and the regulation of its affairs within the Diocese subject only to the Anglican Church of Australia Constitution Act 1961 and any other Act in force in this state.

178 Under the heading "Specific Powers" s 3(4) is in the following terms:

The Synod of each Diocese shall have power to determine by ordinance in what cases the licence of a member of clergy licensed by the Bishop of the Diocese may be suspended or revoked. Any such licence may be suspended or revoked by the Bishop of the Diocese at the request of the member of the clergy, or (after opportunity given to that member of the clergy to show cause) in such of the said cases as the Synod shall by ordinance determined save as aforesaid, the licence shall not be suspended or revoked, except as a consequence of a judgment or finding of the tribunal or of some court of competent jurisdiction.

179 It is plain from s 3(1) of the Amended 1902 Constitution that the ambit of s 2(1) is not limited by anything in s 3(4). Section 3(1) is in the following terms:

Nothing in this Section shall limit the power conferred on the Synod of a diocese under clause 2.

180 When considering the terms of s 2(1) it is as well to recall the words of the Full Court of the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9 - 10:

The power to make laws "for the peace, welfare, and good government" of a territory is indistinguishable from the power to make laws "for the peace, order and good government" of a territory. Such a power is a plenary power and it was so recognized, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies. The plenary nature of the power was established in the series of historic Privy Council decisions at the close of the nineteenth century: Reg. v. Burah; Hodge v. The Queen; Powell v. Apollo Candle Co.; Riel v. The Queen. They decided that colonial legislatures were not mere agents or delegates of the Imperial Parliament.

Lord Selborne, speaking for the Judicial Committee in Burah, said that the Indian legislature "has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself". Later, Sir Barnes Peacock in Hodge, speaking for the Judicial Committee, stated that the legislature of Ontario enjoyed by virtue of the British North America Act 1867 (Imp.): "authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament ... " In Riel Lord Halsbury L.C., delivering the opinion of the Judicial Committee, rejected the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure the peace, order and good government of the territory. His Lordship went on to say that such a power was "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to". In Chenard & Co. v. Joachim Arissol, Lord Reid, delivering the opinion of the Judicial Committee, cited Riel and the comments of Lord Halsbury L.C. with evident approval. More recently Viscount Radcliffe, speaking for the Judicial Committee, described a power to make laws for the peace, order and good government of a territory as "connot[ing], in British constitutional language, the widest law-making powers appropriate to a Sovereign": Ibralebbe v. The Queen.

These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words "for the peace, order and good government" are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony. Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v. Road Carriers; Fraser v. State Services Commission; Taylor v. New Zealand Poultry Board), a view which Lord Reid firmly rejected in Pickin v. British Railways Board, is another question which we need not explore.

181 Likewise here there is little doubt in my mind that the grant of legislative power in clause 2(1) is plenary in nature.

182 The plaintiffs of course submit that the National Constitution, in particular Chapter IX by necessary implication must exclude the possibility of a body such as the PSB conducting proceedings of the kind under consideration here against the plaintiffs, hence the PS Ordinance is invalid. There is certainly nothing express in the language of Chapter IX which in my view would lead to this conclusion.

183 However for my part I can find nothing implicit either in the language of the National Constitution which deprives the PS Ordinance of the validity it otherwise has.

184 Part II, s 7 of the National Constitution recognises that a diocese is the unit of organisation of the church "and shall be the see of a bishop".

185 Sections 43 and 47 of the National Constitution expressly recognise the continuing existence of the diocese and diocesan constitutions which pre-existed it.

186 Section 51 is in the following terms:

Subject to this Constitution a diocesan synod may make ordinances for the order and good government of this Church within the diocese, in accordance with the powers in that behalf conferred upon it by the constitution of such diocese.

187 Section 71 is in the following clear and I consider unequivocal terms:

(1) Every consensual compact and every enactment in force in the Church of England in the dioceses of Australia and Tasmania, or in any province or diocese which has become or becomes a province or diocese to which this Constitution applies shall insofar as they are not inconsistent with this Constitution, continue in force in this Church or in the province or diocese, until altered under this Constitution or under the constitution of the province or diocese.

This sub-section extends to any determination rule or regulation made by the Synod known as the General Synod of the Church of England in the dioceses of Australia and Tasmania, any constitution act canon or ordinance made by the provincial synods of New South Wales, Victoria, Queensland, and Western Australia respectively, and any constitution act canon ordinance rule or regulation made by the diocesan synod of any diocese in Australia.

Nothing in this Constitution shall authorise the synod of a diocese or of a province to make any alteration in the ritual or ceremonial of this Church except in conformity with an alteration made by General Synod.

(2) The law of the Church of England including the law relating to faith ritual ceremonial or discipline applicable to and in force in the several dioceses of the Church of England in Australia and Tasmania at the date upon which this Constitution takes effect shall apply to and be in force in such dioceses of this Church unless and until the same be varied or dealt with in accordance with this Constitution.

188 Pursuant to s 26 of the National Constitution the synod may make canons rules and resolutions relating to the order and good government of the church including "canons in respect of ritual, ceremonial and discipline" etc. However s 30 provides that any canon passed by the General Synod shall apply to every diocese and any ordinance of any diocesan synod inconsistent with the canon shall to the extent of the inconsistency have no effect, provided any canon "affecting the ritual ceremonial or discipline of the Church shall be deemed to affect the order and good government of the Church within a diocese, and shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon" (s 30(3)).

189 Pursuant to s 53 there shall be a diocesan tribunal of each diocese, the Special Tribunal and the Appellate Tribunal and there may be a provincial tribunal of any province.

190 Section 54 provides inter alia that the diocesan tribunal shall be the court of the bishop, and shall consist of a president who shall be the bishop or a deputy president appointed by him and not less than two other members. Section 54(2) provides that a diocesan tribunal shall in respect of a person licensed by the bishop of the diocese or any other person in holy orders resident in the diocese, "have jurisdiction to hear and determine charges of breach of faith ritual ceremonial or discipline and of such offences as may be specified by any canon ordinance or rule". Section 54(2A) provides that a diocesan tribunal shall have and always be deemed to have had jurisdiction to hear a charge relating to an offence of unchastity and offence involving sexual misconduct or an offence relating to a conviction etc... in respect of a member of clergy if the relevant act of the clergyman occurred within the diocese, the member of the clergy was licensed by the bishop of the diocese or was resident in the diocese within 2 years before the charge was laid, or the clergyman is in prison. These provisions amongst others of the National Constitution are not expressed in terms suggestive of a conferral of exclusive jurisdiction on diocesan tribunals or indeed a limitation upon the legislative competency of diocesan synods to establish other bodies.

191 The language employed in the National Constitution does not it seems to me exclude other tribunals otherwise validly brought into existence dealing with issues of discipline. It seems to me that the better view when properly understood is that the diocesan synod has generally concurrent power with the General Synod to legislate upon discipline.

192 For my part, as I have already observed s 71 of the National Constitution is in clear and I believe unequivocal terms. It recognises the concurrent power of a diocese to legislate for example on discipline. In my view one finds further express recognition of the concurrent power in s 74(9)(a) which deals with the definition of "discipline". It is in the following terms:

In this Constitution "discipline" means -

(a) in Chapters II to VII and X to XII the obligation to adhere to, to observe and to carry out (as appropriate) -

(i) the faith, ritual and ceremonial of this Church; and

(ii) the other rules of this Church which impose on the members of the clergy obligations regarding the religious and moral life of this Church; and

(b) in Chapter IX, as regards a person in Holy Orders licensed by the bishop of a diocese or resident in a diocese both -

(i) the obligations in the ordinal undertaken by that person; and

(ii) the ordinances in force in that diocese.

193 I should say that I do not regard any implied prohibition or limitation upon the functions of the Diocesan Tribunal of the Diocese of Newcastle as being necessary for the efficacy of the National Constitution. It seems to me that the complete answer to this aspect of the plaintiff's submissions is that the tenor and terms of the National Constitution clearly as I have said in my view contemplate concurrent power on the part of the Diocese to legislate on matters of discipline, hence there is simply no room for any implication.

194 It is of course clear pursuant to s 51 of the National Constitution that a diocesan synod may make ordinances for the order and good government of the church within the diocese (of course subject to the Constitution) and of course in accordance with the powers in that behalf conferred upon it by the Constitution of the diocese. That does not in my mind translate into an impediment to be placed upon the Synod of the Diocese of Newcastle preventing it from legislating parts 9 and 10 of the PS Ordinance as far as they deal with the discipline of clergy.

195 The plaintiffs of course rely upon s 9 of the 1961 Act. That provision deems a tribunal in Chapter IX of the National Constitution to be an arbitrator within the relevant legislation. That has the effect of conferral of power on the tribunal to administer the oath and/or take an affirmation, and further deems specified persons to be a party to an arbitration agreement within the meaning of the Act. It seems to me that whilst a disciplinary body established in the diocese will not have the coercive powers of the type specified in s 9 of the 1961 Act, this cannot mean that a diocese is prohibited from establishing such a body. All it means is that any such disciplinary body in the absence of the co-operation of witnesses and persons having custody and control of documents will not necessarily be able to fulfil its functions in the same way as a chapter IX Tribunal. That in my view does not translate into a valid argument excluding concurrent power on behalf of a diocese to enact its own disciplinary legislation.

196 It follows that where a diocese has powers under its own diocesan constitution to legislate on matters of discipline it can do so relevantly in relation to that diocese and for the order and good government of the church within that diocese but arguably not in relation to the order and good government of the church as a whole. In any event it is not strictly necessary to me to form any final views about this matter having determined that there is simply no impediment on the part of the Diocesan Synod consistent with its concurrent powers to legislate on matters of discipline.

197 Reliance was also placed by the plaintiffs upon the Constitution Alteration (Chapter IX) Canon 2004, which if it comes into force will amend the National Constitution by the insertion of a section 63A. The proposed section 63A(1)(a) specifies that:

...a diocese may establish by ordinance any board or other body whose jurisdiction includes jurisdiction to inquire into the conduct of a person specified in such ordinance, including a person in respect of whom a diocesan tribunal may exercise jurisdiction.

198 As I understood the argument the plaintiffs submit that the proposed amendment to the National Constitution would somehow or other (contextually) be taken as some form of recognition that the PSB could not otherwise co-exist with diocesan tribunals.

199 The Explanatory Memorandum for the proposed Bill for the proposed amendment includes as one of its objects the following:

To remove any doubts about the validity and powers of Professional Standards Boards constituted under the model Professional Standards Ordinance being enacted by Diocese and of the Episcopal Standards Board constituted under the proposed Episcopal Standards Canon.

200 At best this material is equivocal but on balance I do not consider it assists the plaintiffs on their construction arguments even if it is legitimate to take it into account.

201 In addition the plaintiffs rely upon the Holy Orders Relinquishment and Deposition Canon 2004 as supporting their proposition as to the proper construction of the National Constitution. The Canon was passed by the General Synod pursuant to its powers under s 26 of the 1961 Constitution which is relevantly in the following form:

Subject to the terms of this Constitution synod may make canons rules and resolutions relating to the order and good government of this Church including canons in respect of rituals, ceremonial and discipline and make statements as to the faith of this Church and declare its views on any matter affecting this Church or affecting spiritual, moral or social welfare, and may take such steps as may be necessary or expedient in furtherance of union with other Christian Communions.

202 At first blush it is a little difficult to see what, if any relevance the 2004 Canon has in determining the existence of an implied prohibition or limitation. In my view the Canon simply cannot be used to read down what I regard to be the clear effective language of section 71 of the Constitution. But there is a further problem; in the 2004 Canon the word "tribunal" is defined as follows:

A tribunal established in accordance with the provisions of chapter IX of the Constitution and includes a body established by canon or by an ordinance of a diocese.

203 The meaning of tribunal for the purposes of the Canon is clearly expanded to encompass a body established by an ordinance of the diocese which may have power to recommend the deposition from Holy Orders of a member of the clergy and which clearly and unequivocally includes the Professional Board established by the PS Ordinance.

204 But more importantly in my opinion however in 2004 the General Synod resolved (resolution 54/04 of 6 October 2004) as follows:

That this Synod urges all Diocesan Synods which have not done so to pass the Model Professional Standards Ordinance and amendments suggested from time to time by the standing committee or implement equivalent provisions.

205 That resolution was of course passed pursuant to section 26 of the 1961 Constitution.

206 It urged diocesan synods to enact legislation similar to the PS Ordinance. This provides in my opinion powerful support for the proposition that the General Synod clearly understood that for a diocese to pass such an ordinance was within the legislative competence of each diocese and to enact such legislation insofar as it was necessary to do so, it sought unequivocally to authorise all diocese to do just that.

207 In summary I am not persuaded that any provision of the National Constitution prohibits the co-existence of a body which exercises functions in connection with the fitness of clergy to hold office or remain in Holy Orders. The mere fact that there may conceivably be an overlap in function I do not think is to the point. This case does not raise a question of a person being brought before both tribunals but rather before one as opposed to the other.

208 The General Synod (by its resolution authorised by s 26 of the National Constitution) expressly recognises that legislation of the type enacted by the Newcastle Synod as the PS Ordinance is within the legislative competence of a diocesan synod. That position in my view is clearly correct.

209 Whilst the opinions published by the Anglican Appellate Tribunal are not binding upon this court, nonetheless the court should acknowledge in particular the undoubted eminence of the legally qualified members of the Tribunal, and the views of relevance expressed therein should not be disregarded. I would not hesitate to ignore such decisions if I thought they were wrong in law but that is not the case here. They are in my mind highly persuasive in a number of areas. Most importantly there appears to be a settled view about the basic legal character of the "federal scheme" embodied in the National Constitution, (see the 1989 Melbourne Opinion and the 1991 Women Priests Opinion).

210 Incidentally there are no decisions of the Appellate Tribunal in my view that remotely assist the plaintiffs, quite the contrary. None of the decisions I was referred to has done anything other than confirm my view on the construction and Constitutional questions.

211 In my view the PS Ordinance is a valid legislative enactment of the Synod of the Anglican Diocese of Newcastle by virtue of s 2(1) of the Amended 1902 Constitution under the 1902 Act. It is also a valid enactment pursuant to s 3(4) of the Amended 1902 Constitution.

212 I reject Review Ground 4.

Permanent stay

Review Ground 1 - oppression and unfairness

213 The plaintiffs have sought an order that the first defendant or any properly constituted tribunal be permanently restrained from hearing or deciding the complaints against each of the plaintiffs heard by the PSB on 13 and 15 December 2010.

214 The relief is based upon the allegation that the proceedings were conducted in circumstances of oppression and unfairness and in circumstances where the plaintiffs could not get a fair hearing and were at risk of later prosecution by the New South Wales police for the same acts and omissions.

215 Further their inability to access documentary materials such as diaries, minutes of clergy meetings, receipts for travel and accommodation expenses and the like made the process unfair and oppressive.

216 And furthermore, the inability to access persons who might assist the plaintiffs in relation to allegations dating from 1984, who are for example now deceased, and the general unreliability or unavailability of persons with appropriate recollections in order to assist also caused prejudice.

217 It is submitted that the references should be stayed as an abuse of process and that the determinations and recommendations in relation to both plaintiffs should be quashed.

218 The plaintiffs essential contention is that the court should be satisfied that the delay brought about by a situation where the continuation of any disciplinary proceedings based on the relevant complaints would be so unfairly and unjustifiably oppressive or involve unacceptable injustice or unfairness as to constitute the equivalent of an abuse of process. The plaintiffs rely upon Jago v the District Court (NSW) (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378.

219 The defendants have a number of responses. The first response is that the PSB does not have the power to stay a reference on the grounds of abuse of process arising from delay. Alternatively if it did have such a power it did not act erroneously by proceeding to hear the references. And lastly even if it had the power and acted erroneously the court has no power to grant a permanent injunction or alternatively should decline to do so as a matter of discretion.

What does the process require

220 By reason of s 54(3) of the PS Ordinance the PSB has a number of express obligations. Section 54(3) is in the following terms:

The Board must act with fairness and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.

221 The PSB is obliged to give reasons (s 56). It has to give reasonable notice of the time and place of sitting of its hearings to, amongst others, the respondent (s 67(1)(b)).

222 The respondent is entitled to be legally represented (s 68(a)) and further the PSB must give the respondent a reasonable opportunity to call or give evidence to examine or cross examine witnesses and to make submissions (s 68(c)(i)).

223 Under part 12 of the PS Ordinance a respondent who is aggrieved by a "reviewable" decision (which includes a determination or recommendation of the PSB) which if acted upon may have the effect of deposing the respondent from Holy Orders or terminating the respondent's contract of employment or removing or suspending the capacity of the respondent to gain income as a church worker may apply for a review of that decision (s 81).

224 An application may be made for review on any one or more of the following grounds (s 83):

(a) that a breach of the rules of natural justice happened in relation to the making of the reviewable decision which materially affected the decision;

(b) that procedures that were required by this ordinance to be observed in relation to the making of the reviewable decision were not observed, and the non observance materially affected the decision; or

(c) that the Board did not have jurisdiction to make the reviewable decision; or

(d) that the reviewable decision was so devoid of any plausible justification that no reasonable Board could have made it; or

(e) the availability of fresh and compelling evidence which, if available at the time, would be likely to have materially affected the Board's decision; or

(f) that the Board seriously misdirected itself as to the applicable law.

How was the process conducted

225 Before embarking upon a consideration of the matters raised under this ground and because it will be relevant, not only to subsequent grounds to be considered, but potentially to the discretion if any is to be exercised by me in the matter, it is important to refer in detail to a number of factual matters.

226 Mr Michael Elliott the Director of Professional Standards for the Diocese of Newcastle and a member of the PSC on 3 October 2009 received a letter from the complainant M, enclosing a complaint in respect of Father Sturt and a complaint in respect of Father Lawrence both dated 1 October. The letter had attached materials.

227 The details of the complaint allege that the complainant had had sexual experiences with Father Lawrence from about 1981, at which point the complainant was approximately 16 years of age.

228 He alleges further sexual experiences with Father Lawrence and another person on an occasion when he was approximately 17 years of age.

229 He also asserts that when he was approximately 18 years of age or thereabouts there was an incident which occurred at a clergy conference in 1984 in the Riverina, the details of which I shall return to in due course.

230 In any event, many years later it is asserted in about August 1993, when he was approximately 28 years of age and as part of a therapeutic exercise he composed a poem which described the details of the events which occurred in a motel room during the conference.

231 The poem purports to identify both plaintiffs as being involved in the incident. In the complaint the principal reason he advances as to why he brought the complaint so late was that Father Lawrence had taken up a locum in the diocese where his parents lived and he regarded that as "audacious and arrogant" because he regarded what at least Father Lawrence had done many years previously as a betrayal of the trust of his parents.

232 His complaint against Father Sturt was, in particular, that on the particular night in 1984 in the motel room he (Father Sturt) had witnessed what Father Lawrence and another person were doing to the complainant and that Father Sturt must have known that it was grossly inappropriate and yet he did nothing to prevent it or raise concerns about it.

233 The matter was investigated by the PSC.

234 However on 9 October 2009 the Bishop of Newcastle wrote to each of the plaintiffs advising them that complaints had been made alleging inappropriate behaviour. Each of the plaintiffs was stood down from their ministry and their licence suspended during the investigation.

235 In February 2010 Father Lawrence was interviewed by a Detective Sarah Lugsden in a voluntary interview at Newcastle Police Station. At this stage he was informed of the identity of the complainant M. He was also given some details of the allegations. There is no issue in the proceedings but that the police later informed Father Lawrence that following investigations the matter would be taken no further.

236 On 19 February 2010 Mr Woodward, solicitor, informed Mr Elliott that he had been consulted by Father Sturt. He also confirmed that his client had been interviewed by constable Lugsden. The letter demanded that Father Sturt be reinstated within 7 days otherwise proceedings would be commenced for declaratory relief in the Supreme Court and damages would be claimed.

237 On 25 February 2010 Mr Elliott responded indicating he was continuing with his investigation and would proceed as expeditiously as he could. On the same day, Mr Woodward responded asking whether Mr Elliott would accept service of the summons to be issued in the court.

238 On 3 March Mr Elliott wrote to Mr Woodward. He requested that if Father Sturt wished to resume his ministry within the diocese he would be requested to sign certain undertakings and have his position reviewed within six months.

239 On the same day Mr Woodward responded by asserting that his clients had been denied procedural fairness, denied that his clients were guilty of any professional misconduct or professionally unsatisfactory conduct and rejected any notion of his clients providing any undertaking.

240 On 23 March 2010 Mr Elliott responded indicating that some detail of the allegations had been provided to Father Sturt but that the Diocese would be able to provide full detail of the allegations and that Father Sturt would have an opportunity to respond to them in due course.

241 On 12 April Mr Elliott wrote to Father Sturt. Mr Elliott noted that he had still not received any formal advice from New South Wales Police as to their investigations and he was unable for the time being to progress the matter any further. He indicated that both he and Bishop Farran had requested the New South Wales Police to expedite the matter.

242 In early August 2010 Mr Woodward telephoned Mr Elliott. He complained that it had been almost 12 months since both of his clients had been stood aside from their ministry and yet still they had not received what he described as a "single word of notice" about the specifics of the allegation. He enquired when those details might be available. Mr Elliott indicated that he would write to Mr Woodward.

243 On 4 August Mr Woodward received some correspondence addressed to Father Sturt. The letter indicated that advice had been received on 30 July from New South Wales Police to the effect that there was no criminal action pending in the matter and that the case was to remain suspended. Mr Elliott indicated that he was now in a position to commence internal processes. He quoted from s 30 of the PS Ordinance and indicated that he had referred the matter to the PSC who he understood would convene to consider the matter the next day (5 August). Father Sturt was informed that he was not required to attend but he would be notified in due course of the process.

244 On 11 August 2010 Mr Elliott wrote to Father Sturt. He was informed that the PSC regarded the particular allegations as relevantly examinable conduct for the purposes of the PS Ordinance and that the PSC regarded themselves as having a responsibility to investigate the allegations. He was provided with what were described as preliminary allegations. Father Sturt was also informed that pursuant to s 34 of the PS Ordinance he was required to provide his initial response to the allegations in writing by Thursday 19 August. He was told that he would be given a further opportunity to give a detailed response throughout at the conclusion of the investigation process. He was reminded that it was highly inappropriate for him to have any contact with the complainant or any member of his family but that he should expect contact from a Mr Geoffrey Hodgson who had been appointed by the PSC to conduct a record of interview with Father Sturt in due course. What was attached to the letter details events which it was asserted took place in a motel room with others including the complainant and Father Lawrence in 1984 in Narrandera, New South Wales. Mr Woodward also received it seems a copy of that letter of 11 August.

245 On 11 August it was apparent that Mr Woodward was acting for both Fathers Sturt and Lawrence and a Mr Gregory Goyette (a church worker who it seems was also the subject of investigation). On that day Mr Woodward received the detailed allegations alleged against Mr Goyette and Fathers Sturt and Lawrence. In relation to Father Lawrence there were allegations concerning sexual misconduct dating from 1981 in respect of the complainant and asserting an ongoing sexual relationship with the complainant from about 1981 until around 1985. There was also an allegation about the clergy function in Narrandera in 1984 involving himself, Father Sturt, the complainant and two other persons.

246 On 12 August Mr Woodward wrote to Mr Elliott. Mr Woodward informed Mr Elliott that his client Father Sturt "denied each and every one of the allegations". In particular he denied that he was at the event which had taken place in Narrandera in 1984. He denied that he had attended such an event with the nominated persons. He suggested that Father Lawrence was not even in Narrandera in May 1984. It was further pointed out by Mr Woodward that invoking s 34 of the PS Ordinance requiring Father Sturt to respond to the allegation would not be adhered to, and that Mr Woodward's letter should be regarded as a complete response by Father Sturt. Mr Woodward received similar materials in relation to Father Lawrence.

247 Mr Woodward referred to a recent investigation in another matter and what he described as the "disgraceful aftermath of those proceedings" and further stated that his client did not intend to engage in any interview with Mr Hodgson or anybody else from the PSC. It was further put firmly by Mr Woodward that in the context of "recent events" there was no basis for any confidence on his part or his client's part presumably, that Mr Elliott or anyone associated with him had any capacity to undertake an impartial investigation. Mr Woodward specifically refused to give any undertaking that he or his client would not contact the complainant. If it was regarded as necessary for that to happen it would indeed occur. Mr Elliott was asked specifically to refrain from contacting or corresponding directly with Father Sturt and that he should in due course correspond only with Mr Woodward.

248 On 19 August Mr Elliott wrote to Mr Woodward. He referred to a conversation which it was asserted Mr Woodward had had with the diocesan prosecutor Mr Phillip Lloyd. Pursuant to s 34 Mr Hodgson was going to make initial contact with Mr Woodward to arrange a suitable time for a formal confirmation that Father Sturt would not be participating in any interview.

249 On 25 August 2010 Mr Woodward sent to Mr Elliott three statements on behalf of Father Sturt, Father Lawrence and Mr Goyette indicating that they were aware of the requirements of s 34 of the relevant PS Ordinance but were refusing to answer any further questions in respect of the complaint and reserved their rights to give evidence at any hearing

250 On 22 September Mr Elliott wrote to Father Sturt giving him an update of the investigative process. He indicated that in relation to the allegation as documented in the correspondence he was now able to indicate that the incident had taken place on the night of 2 February 1984.

251 On 18 November Mr Woodward received a letter from Mr Elliott. The letter attached what was described as "Notices to Respondents". It also indicated that a copy of the notices had been sent directly to Father Sturt. The notices were under the hand of Mr John Cleary, secretary of the Newcastle PSB. The notice (purporting to be dated 17 March) indicated that on 17 March the President of the PSB made directions that there be a directions hearing of the matter on 24 November and that the respondent was at that hearing to notify the Director of Professional Standards of the names of the persons he wished to be cross examined during the proceedings. Further, that he should notify the names of any persons and/or their addresses which he knew or suspected had knowledge of the facts by no later than 4pm, 7 December. Furthermore that the respondent was to prepare a statutory declaration as the evidence in chief and to notify the names of any witnesses that were proposed to be called, again by 7 December. That the hearing of the allegations had been fixed for two days, namely Monday 13 and Wednesday 15 December which was to be held at the Institute of Engineers Conference Centre in Newcastle. The notice also went on to indicate that if there was no appearance at the time and place appointed the hearing "may proceed" in the respondents absence. The notice also indicated that the respondents were entitled to legal representation. The notice went on to state as follows:

If you intend to examine any of the witnesses whose evidence has been served upon you, you must notify the Director of Professional Standards by 6 April, 2010, the names of each of them.

252 Mr Woodward in his evidence before the court indicated that the letter of 18 November was the first occasion upon which he had received any notice of a directions hearing of 24 November and further that he was unaware of and certainly was not party to any proceeding or meeting of the PSB said to have taken place on 17 March 2010. He was unchallenged on this.

253 On 19 November Mr Woodward wrote to Mr Elliott. Mr Woodward indicated the incongruous nature of the various dates mentioned. He indicated however that he had received a brief of evidence and had read it as at the date of the letter. He commented that it was obvious that most of the material related to other respondents and had no relevance whatsoever to the case brought against Father Sturt. He indicated that he would be asking the tribunal at the directions hearing to exclude from consideration irrelevant material. He indicated that he would require only 2 witnesses to be in attendance ultimately, the complainant and another witness identified in the allegations. He expressed the view that he thought the case against Father Sturt should easily be capable of resolution within 2 days. If his relevance objections were overruled however he opened up the prospect of requiring more persons for cross examination.

254 Mr Elliott in his materials before the court indicated that on or about 28 October he sent both to Father Sturt and Father Lawrence certain questions that they should answer. He also indicated that on or about 18 November he sent what is described as a brief of documents containing fifth one tabs to the Reverend Dr Barbara Howard, one of the three members of the PSB and to Professor Trevor Waring also one of the members of the PSB. He also caused the brief to be delivered to Mr Colin Elliott (no relation) the President of the PSB and that what was delivered to Mr Elliott was identical to that which had been sent to Dr Howard. There were some differences in the documentation sent however to Professor Waring, but they are not of any significance.

255 Mr Lloyd was briefed to appear as the representative of the PSC at the hearing involving both Fathers Sturt and Lawrence. On 18 November Mr Elliott caused an identical copy of the brief which had been forwarded to the PSB members to be forwarded to Mr Lloyd.

256 On 23 November Mr Elliott forwarded to Father Sturt a further copy of the notice purportedly dated 17 March 2010 with some typographical errors corrected. The letter reiterated that the directions hearing was to take place on 24 November. He also sent further documents to Father Sturt.

257 I should observe that the brief of evidence delivered to Mr Woodward and others comprised materials which I should describe briefly (it is contained in Exhibit MIE 2 - court book 9). Importantly it contained numerous statements by the complainant dated 1 and 3 October 2009, one made to New South Wales Police on 22 December 2009, a statement from the complainant's mother of 10 April 2010, a statement from his father dated 10 April 2010, and a statement from one of the persons alleged to have been in the motel room in 1984.

258 The brief also contained correspondence passing between other persons and the complainant's parents, various diagrams and handwritten materials. It also contained a series of photographs and historic extracts from a publication from the Diocese of Riverina, entitled 'Four Rivers'. There were materials which concerned persons other than Fathers Sturt and Lawrence. It also included a diagram of the motel room where the alleged events took place in 1984 seemingly prepared on 14 August 2010 and other diagrams.

259 The brief also contained explicit letters and/or cards purporting to be communications from Fathers Sturt and/or Lawrence to the complainant in or about June 1984. It contained alleged handwriting samples of Father Lawrence. It contained historical documents, for example a register of services of the Parish of Hillston for 1984 covering the period 1 January to 17 February of that year. A list of alleged attendees at the seminar in Narrandera for the period 31 January to 3 February 1984. This indicates attendance by the complainant and a member of his family and also the attendance of Father Lawrence (there does not appear to be any material suggesting the attendance of Father Sturt). There is a note of an interview with Father Barry Patterson asserting the attendances of Fathers Sturt, Lawrence and another person named in allegations at the seminar in Narrandera in 1984 and an interview with a Father David Cole indicating recollections that Father Lawrence was present at the 1984 seminar. It also contained other miscellaneous photographs.

260 The brief also contained a further statement by the complainant of 8 October 2010 concerning amongst other persons the plaintiffs. There were extracts from diaries and a copy of a book purportedly given by Father Lawrence to the complainant for his 18th birthday with an inscription to the plaintiff dated 26 January 1983.

261 A transcript was taken of the directions hearing which took place on 22 November 2010. It was a directions hearing said to be in relation to both Fathers Sturt and Lawrence. Mr Colin Elliott presided on behalf of the PSB. It is not clear whether other members of the PSB were present. They are not noted on the transcript. However Mr Lloyd appeared for the PSC and Mr Woodward appeared for both Fathers Lawrence and Sturt. After confirming the hearing dates for 13 and 15 December Mr Woodward indicated that as far as Father Lawrence was concerned he did not intend to appear or make any further responses to the complaints that had been made against him other than to deny the allegations which he had already done in correspondence.

262 Mr Woodward advised the PSB he would not be acting further for Father Lawrence and that those instructions were fortuitous because he had formed the view that it would be impossible for him to have represented both Fathers Lawrence and Sturt by reason of "serious" conflict of interest as he put it.

263 He told the PSB that it had been agreed by both of his clients however that he could remain in the matter for Father Sturt. Mr Woodward indicated that the two days allotted would be sufficient time to conclude the matters. He indicated that having read the brief much of the material contained in it he believed was of no relevance to allegations against Father Sturt. He described the material without being disrespectful as "scuttlebutt evidence". He put on behalf of Father Sturt (clearly on instructions) that he was not present in the motel room on the relevant occasion. He raised again the spectre of possibly cross examining more persons than might be needed.

264 Mr Woodward indicated that he would inform Mr Lloyd of those materials which he thought were objectionable to see if agreement could be reached.

265 Mr Elliott confirmed the dates and the place for the hearing and then asked Mr Woodward if Father Sturt would be giving evidence. Mr Woodward indicated that Father Sturt would be giving evidence and that he would endeavour to get a statement from Father Sturt to the tribunal before the hearing. Mr Woodward said he would also attempt to give a list of witnesses that he required for cross examination.

266 Finally Mr Woodward raised whether or not the proceedings were to be heard in "open forum". He indicated that his client maintained a position of "absolute innocence" in relation to the allegations.

267 He further indicated that it was important that his reputation be preserved as far as possible. He also indicated that he had been involved in other matters recently concerning the Catholic Diocese and although his client had been completely exonerated both in the criminal courts and a professional standards body there was a groundswell of public opinion against him from people. He did not wish there to be an adverse impact on his client as the result of being exonerated. Mr Elliott informed Mr Woodward that unless otherwise ordered the hearing would be open. Mr Elliott reminded Mr Woodard that the PSB did have power in relation to publication and matters of that sort including who to admit to the hearing.

268 Mr Elliott invited Mr Woodward to make further application on the day of the hearing. Mr Woodward indicated that he expected to be instructed to renew the application requesting that the matter proceed in camera when the hearing commenced. The directions hearing then came to an end.

269 On 3 December Mr Woodward wrote to the defendant seeking further and better particulars of the allegations.

270 On 3 December Mr Woodward sent what is described as a 'Notice to Produce Documents' to Mr Elliott seeking minutes of various meetings relating to the seminar in 1984, diaries, reservations, receipts and all other documents in relation to amongst others Fathers Sturt and Lawrence in respect of the motel room in Narrandera in 1984. He also sought copies of all applications to the Victims Compensation Tribunal or the Anglican Church in relation to the allegations.

271 On 6 December Mr Woodward sent a communication to Mr Elliott complaining about the extent of response in relation to the request for particulars. On 8 December Mr Woodward again wrote to Mr Elliott. The letter identified materials in the brief of evidence to which objection was taken. This comprised objections to a very large amount of the material. In almost all cases the objection was on the grounds of relevance.

272 On 8 December the Anglican Diocese of Newcastle issued a media statement. The media statement is in the following terms:

Statement re Pending Professional Standards Matters

Current disciplinary proceedings by the Anglican Diocese of Newcastle against The Very Reverend Graeme Lawrence, the Reverend Graeme Sturt, the Reverend Bruce Hoare, the Reverend Andrew Duncan and former church worker Mr. Gregory Goyette have progressed with a recent formal referral of the matters by the Diocesan Professional Standards Committee to a formal sitting of the Professional Standards Board. The board hearings are expected to be conducted in December 2010 and January 2011. In all 5 cases the matters relate to alleged examinable conduct under the Diocesan Code of Conduct.

273 The media release was under the hand of Mr Elliott as Director of Professional Standards.

274 On 9 December the Newcastle Herald quoted from the media release. It indicated amongst other things that matters had been referred to the police but no action had been taken. It further noted that the PSB would be "headed" by retired NSW Magistrate Coll Elliott. The article further went on to indicate that the Diocese had advised that the hearings would be open to the public but made no further comment.

275 On 13 December at the first day of the hearing Mr Woodward appeared before the Professional Standards Tribunal. On that day it comprised Mr Elliott as president, Professor Trevor Waring and the Reverend Dr Barbara Howard as members. The transcript of those proceedings indicate that both matters for hearing involved Father Lawrence and Father Sturt.

276 Mr Lloyd announced his appearance and further indicated that the matter would proceed against Mr Woodward's client, "in isolation first". Mr Woodward announced his appearance for Father Sturt. It was indicated that a Mr Martin Rush, Counsel was also in attendance but he was involved in other proceedings for one of the other respondents to be heard later in the week. Mr Rush then made an application in relation to his client. Mr Lloyd made it clear that whatever misunderstandings had occurred the only matter proceeding at the present moment was that against Father Sturt. I should say that the quality of transcription on this and subsequent occasions is not altogether clear. It is sometimes difficult to discern precisely what is being said.

277 Mr Woodward reminded the PSB that when the matter was last before Mr Elliott there had been an application that proceedings be held in camera for reasons that were then advanced. Although he intimated that he accepted the application had been rejected he wished to make application again that the proceedings be heard in camera. He then elaborated on those reasons.

278 Mr Woodward indicated that his client was concerned about the risk of prosecution if he were to give evidence and that that was a risk his client did not want to take.

279 Mr Lloyd made submissions that in a practical sense (in his view) no use could be made of any utterance or any other information generated in the proceedings in any other criminal proceedings. It is a little difficult to understand this submission.

280 For some reason Mr Rush who remained then made submissions in relation to his client pointing out that absolute privilege did not apply in proceedings before the PSB. The proceedings on this first day were for a time a little disjointed.

281 The President, Mr Elliott reiterated that the hearing only concerned Father Sturt and that Mr Rush could renew his application in respect of his client on 28 February.

282 The President gave a ruling saying amongst other things, he could not imagine admissions given in the proceedings might be admitted into evidence in a criminal court. He indicated amongst other things again that the PSB operated so as to require the respondent to give frank forthcoming and honest answers, and that he could not imagine any criminal court accepting his evidence given in the proceedings.

283 Mr Elliott also indicated further that if it was possible under the Evidence Act to give a certificate the PSB would not hesitate to do so, a matter which he believed the authorities would take into account in another place. In any event he declined the application for the hearing to be in camera. Mr Lloyd then made application that the identity of certain persons not be disclosed in the proceedings. That included the complainant and persons related to him. Mr Woodward was invited to make submissions but did not. Mr Woodward indicated that he needed to obtain some instructions from his client and requested and obtained a short adjournment for that purpose. It is not clear from the transcript how long Mr Woodward took to obtain those instructions but upon resumption he indicated to the PSB that his instructions were to take no further part in the proceedings on behalf of Father Sturt and to withdraw further from them. Leave for him to withdraw was granted.

284 After Mr Woodward withdrew, the matter proceeded against Father Sturt. It is accepted that not all the materials which were in the brief of evidence were in due course tendered either against Father Sturt or indeed against Father Lawrence. So far as Father Sturt is concerned I was provided with a document dated 5 October 2011 which makes plain that which was and that which was not tendered in relation to Father Sturt. Importantly so far as the complainant was concerned Exhibit 2 was his statement to the police of 29 December 2009.

285 The first witness called was the complainant. Mr Lloyd made a submission that the overt acts relied upon in respect of Father Sturt concerned a group sex event following a conference in Narrandera in 1984. He submitted it was necessary for the PSB to determine whether that group sex event qualified as a joint enterprise. He said "that is very important". He also said that any inferences may readily be drawn upon a consideration of the whole of that material and that it would show that the complainant was groomed and abused by one respondent and that that respondent had a relationship with Fathers Sturt, Lawrence and two other persons mentioned. Some brief evidence in chief as it were was taken from the complainant and further it was confirmed that in 1984 the complainant was approximately 19 years of age. The complainant indicated that he had received cards for example from Mr Goyette and from Father Lawrence. He also identified a letter from Father Lawrence to him. The evidence was then interrupted by a person described in the transcript as "unidentified speaker". This appears highly likely to be Mr Lloyd who then made a submission as to the relevance of certain photographs which were rather explicit together with postcards in the same vein. He referred to some authorities. The President discussed questions of admissibility with Mr Lloyd both on this and other issues and it is plain from the transcript that he was acutely aware of the prejudicial value of some of the materials but also observed that the respondent had indeed withdrawn from the proceedings. Mr Lloyd then raised for the PSB's consideration whether on the one hand the complainants' allegations were a "fantasy" or whether indeed the events as alleged occurred. The discussion in relation to all manner of matters continued for some little time in the presence of the complainant who was ultimately stood down.

286 The next witness was Father William Patterson who was it seems interspersed. He gave evidence that in 1984 he was serving in the Diocese of Riverina and he recalled attending the clergy seminar at Narrandera in 1984. He recalled Father Sturt and Father Lawrence and others being present at the seminar. He did not witness any inappropriate behaviour at the seminar.

287 The complainant was then recalled. He was shown a series of photographs in the first instance. He identified a number of persons in the photographs. He was then asked to explain effectively why he had complained in 2009. He explained that he had been in counselling and had come to the position either where he would have to come forward and as he put it tell the whole story to the church authorities or not. He ultimately decided that the right thing to do was to tell the church authorities. The catalyst however was when Father Lawrence moved in to the diocese where his parents lived. The complainant was then excused.

288 A Ms Jennifer Gardener was then called. She gave some evidence in relation to a conversation she had with the complainant some years previously. The conversation did not relate however to Fathers Sturt or Lawrence.

289 The next witness called was the complainant's mother. She confirmed that she was asked to look after her mother-in-law over the particular weekend in 1984 so that her father-in-law could go to the conference. She had a diary entry for the event. She gave evidence as to other events concerning her son and other persons. She was asked a particular question by Professor Warring about her son speaking to her in 1987 about an incident that occurred at a clergy function. She said he had simply said that he had upset his grandfather by coming in very late in the morning. She said nothing further however about the events.

290 Mr Michael Elliott the Director of Professional Standards was then called. He was called ostensibly to indicate that Father Sturt had not participated in an interview and to prove some correspondence between himself and Mr Woodward on behalf of Father Sturt. There was then a debate about the relevance of s 34 and certain answers which had been given by or on behalf of Father Sturt in correspondence.

291 The next witness was another person who had been allegedly in the motel room that evening. He was called via skype from Perth. In substance he recalled going to a seminar in Narrandera. He could not recall the date. He recalls the complainant and Father Lawrence attending. He can recall having some drinks on the night but he cannot remember how many. He cannot remember any other details about the event.

292 Mr Elliott was recalled. He was called to prove some exchanges which had occurred between himself and Mr Woodward. He was asked about certain handwriting comparisons which he had also undertaken.

293 Mr Lloyd then formally tendered some materials.

294 Mr Lloyd then addressed the PSB. I will return to the details of aspects of the address in due course.

295 At the conclusion of the hearing Mr Elliott, the President indicated that time would be needed to consider the matter. He would be conferring with his colleagues and suggested the matter could be mentioned again on the Wednesday at approximately 11.30am. The PSB then adjourned.

296 On the next hearing date 15 December Mr Lloyd tendered some additional material and indicated what he was relying on in relation to the case against Father Lawrence. He referred to materials which had already been tendered via the complainant. He also unsurprisingly referred to the complainant's evidence.

297 The President then delivered an ex tempore determination in relation to Father Sturt. In substance he found the events proven and that his conduct, that he also found to have taken place as alleged, brought disgrace upon the church. He announced that his recommendation was that Father Sturt be deposed from Holy Orders and that a copy of the determination and recommendations should go to the Bishop. The other two members of the PSB concurred with the reasons and recommendations of the President.

298 A short adjournment was then taken and the proceedings then recommenced against Father Lawrence. Mr Lloyd opened the matter briefly. The President indicated that he saw no difficulty in the evidence taken in the Sturt matter being used again in the Lawrence matter. He remarked that the matters were intertwined.

299 Mr Michael Elliott was called again to prove some formal matters and to prove communications between himself, Mr Woodward and matters similar to that which he had proved against Father Sturt. Handwriting examples were also tendered.

300 The complainant was called again and some evidence taken from him in chief. He was asked specifically whether sexual acts occurred between himself and Father Lawrence, to which he answered yes. He was also asked about a book which Father Lawrence had given him. He confirmed he was at the event in Narranderra in 1984.

301 The final evidence called in the matter concerning Father Lawrence was the complainant's mother.

302 After a short adjournment Mr Lloyd addressed the PSB. Again I will return to the address later. The hearing then adjourned for a short time following which the President announced his detailed reasons ex tempore. He again concluded that Father Lawrence should be deposed from Holy Orders. The transcript does not record the other members of the tribunal individually acknowledging their agreement with the President's announcement but it may comfortably be assumed that they did agree. The matter then adjourned.

303 The ex tempore determinations were then formally reduced to typewritten form and sent to the Bishop accordingly.

304 The materials which were tendered against Father Lawrence were identified in a document tendered before me and dated 6 October 2011. I will not set out the details of that.

305 A good deal of evidence was put before the court on the question of the abuse of process submission. It was intended to point to difficulties that face the plaintiffs by reason of the passage of the time which had elapsed since January 1984.

The evidence on the issue of prejudice

Evidence of Father Sturt

306 Father Sturt gave evidence before me about attending clergy conferences. He says nothing about his attendance at the particular conference in 1984. He gave evidence of his practice of keeping accommodation receipts in his office and providing certain materials to his accountant. He gave evidence as to his general practice in making bookings for trips. He also gave evidence as to his banking arrangements in 1984 and having driven a car which was provided to him by the parish. He also indicated that he moved parishes from time to time.

307 When at Narrandera he had retained all of his records in cardboard boxes but when he moved he went through the boxes and disposed of many records. Those records which he did dispose of included his old work diaries and his pre-1994 financial record. He used an accountant then whom he identified as Ms Leonie Jolly. She attended to his affairs.

308 He first made contact in December 2010 with Ms Jolly's husband to see if he could retrieve his early records. He gave evidence as to attempts to retrieve certain tax and other records relating to the period which includes 1984.

309 He identified people who it was said had attended the Narrandera clergy conference in 1984 who are now deceased. None of those include obviously Father Lawrence but importantly it did not include any of the other persons who it is alleged participated in the events in the motel room in 1984. The other two at least are, according to the evidence, alive. Father Sturt was not cross examined on any of this evidence.

Evidence of Father Lawrence

310 Father Lawrence gave evidence before me which was unchallenged that he also attended seminars and kept receipts from time to time including for travel accommodation and meals. He could not recall whether log books were kept for vehicles. Upon return to Griffith where he was based had he attended such conferences he would have made claims for reimbursement for travel accommodation and meal expenses presenting those receipts to the parish treasurer. He indicated in his evidence that he no longer had any records or receipts for travel accommodation and/or meals for 1984. He refers to a service register at St Albans for Thursday 2 February and Friday 3 February indicating that he officiated at St Albans at times during this period. This however did not exclude his presence from the motel room on the night in question.

311 Father Lawrence points to what he says are the incomplete records which do not permit him to precisely retrace his steps as it were over 2 and 3 February 1984.

312 I should say in passing that the conference appears to have commenced on 31 January and gone through to at least 2 February 1984. Father Lawrence estimates that the drive time between Narrandera and Griffith, where he was at the time, was one to one and a half hours. He also said he was unable to access any banking records and there do not appear to be, according to him, any extant diocesan records any longer in existence.

313 However during February 1984 whilst resident in Griffith, he shared the rectory with Mr Gregory Goyette. It will be recalled that Mr Goyette, a church worker is a person in respect of whom complaint was also made. Mr Goyette did not give evidence before me nor was it suggested that he was unavailable. Father Lawrence however in his statement explicitly denied the allegations.

314 Ms Leonie Jolly put on a number of statements in the proceedings. She acknowledges that she acted for Father Sturt as his accountant and has attempted to obtain copies of 1984 tax records (copies of which she no longer holds). They do not appear to be available nor has she now any tax records going back over the years that could relate to Father Sturt. Ms Jolly also gave evidence that she was also Father Lawrence's accountant over many years. Again she confirms she has no relevant financial records for Father Lawrence for the 1984 tax year.

The principles

315 The plaintiffs claim a permanent stay by reason of alleged prejudice they necessarily confronted arising from the long period of time passing after the alleged conduct had occurred.

316 It is a little difficult to discern precisely how the plaintiffs put their case but it would appear that a claim is being brought under s 23 of the Supreme Court Act 1970 (NSW) calling in aid the inherent jurisdiction of the court, I presume in respect of the administration of justice in New South Wales. There is no doubt that pursuant to its inherent jurisdiction the court does obviously have power to order a stay of proceedings as to ensure that its processes are not abused.

317 It must be said however that there is no legal principle as such in the common law which recognises the existence of a special right to a speedy trial or for that matter a trial within a reasonable time. Mason CJ in Jago v District Court of NSW (1989) 168 CLR 23 (at 34) said:

In any event a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.

318 In recent times there have been numerous complaints made against clergymen of different religions where the complaints of sexual misconduct have been made many years after the conduct in question.

319 Although a court can obviously stay its own processes it is also empowered to grant such relief where for example a statutory judicial tribunal is exercising protective functions. Walton v Gardiner (1993) 177 CLR 378. In that case the majority comprising Mason CJ, Deane and Dawson JJ said at 395:

In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective - i.e. protective of the public - in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds. In particular, in a context where the disciplinary power of the Tribunal extends both to the making of an order permanently removing a medical practitioner from the Register with consequent loss of entitlement to practise and to the imposition of a fine of up to $25,000, there is plainly an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings. In that regard, it is relevant to mention that we do not read any of the provisions of the Act as expressly or impliedly cutting down the scope of the general supervisory jurisdiction of the Court of Appeal to stay proceedings in the Tribunal on abuse of process grounds.

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. As we read their Honours' judgments, the members of the Court of Appeal all utilized such an adapted weighing process in the present case.

It follows that the Department's argument that the Court of Appeal exceeded its jurisdiction to stay proceedings in the Tribunal must be rejected.

320 As is clear from the above in the exercise of the jurisdiction appropriate account must be taken of the protective character of such proceedings and the importance of protecting the public from incompetent or dangerous (in that case medical) practitioners.

321 The PSB however under the PS Ordinance is not a statutory tribunal at all but a domestic body and the application of the doctrine of permanent stay in such a context is by no means clear. There is certainly no authority which expressly confirms that the Supreme Court has jurisdiction to grant a permanent stay to a domestic body on Walton v Gardiner grounds.

322 There are of course two possibilities. The rules of the domestic body may, I consider pursuant to the consensual compact, expressly or of course impliedly provide to a member of the association a right to invoke such notions.

323 The PS Ordinance, of course by providing in s 54(3) that the PSB should act with fairness and according to equity and good conscience, does not provide in my view an express power upon the PSB under the PS Ordinance to stay a reference by reason of an alleged abuse of process arising from the delay or for that matter any other reason. Section 83 which provides the basis upon which a review of the PSB's decision can be entertained does not in my view take the matter any further. Section 83(a) is simply a reflection of s 54(3). Section 83(b) does not take the matter any further, in my view. Section 83(c) might arguably take the matter further. It is open to be argued that if a tribunal process could be characterised as an abuse of process that it would not have jurisdiction to make the relevant decision. Section 83(d), (e) and (f) however again in my view do not take the matter any further.

324 The use of the term or terms "equity and good conscience" in s 54(3) have some history. In Qantas Airlines Ltd v Gubbins (1992) 28 NSWLR 26 the New South Wales Court of Appeal had to consider that phrase, and the majority Gleeson CJ and Handley JA said at 30 - 31 the following:

The words "equity, good conscience and the substantial merits of the case" are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found: see generally, Santos Ltd v Saunders (1988) 49 SASR 556 at 564 per Legeo J. In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.

In other contexts such words have been construed as requiring the tribunal to apply the ordinary law. Section 7 of the now repealed Small Debts Recovery Act 1912 provided that the Small Debts Court should hear and determine civil actions for the recovery of small debts "in a summary way, and according to equity and good conscience". In Ex parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6 at 9 [1961] NSWR 139 at 1142, Kinsella J said:

"... I am not sure what the magistrate meant to imply in using the words 'according to equity and good conscience' in his brief judgment, but I am clearly of opinion that as used in s 7 of the Small Debts Recovery Act they do not give the court power to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law."

In a very different context in the former British India the words were interpreted as a direction to the courts to apply English law if applicable to Indian society and circumstances: see Waghela Rajsanji v Shekh Masludin (1887) LR 14 Ind App 89 at 96 and compare Barlow v Orde (1870) LR 3 PC 164.

In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the tribunal from its duty to apply the general law in deciding the issues raised by the defences of release by deed.

325 It was submitted by the defendants that the court would exercise extreme caution before exercising a jurisdiction which it is not clear it has, especially in relation to a consideration of whether or not to stay the internal processes of a voluntary association such as the Anglican Church of Australia conducted according to the rules of that association.

326 In Cheng v Pharmacy Board of New South Wales [2005] NSWSC 1130 Nicholas J had to consider whether the proceedings of the Pharmacy Board of New South Wales in the circumstances of that particular case ought to be permanently stayed on the ground that the delay in bringing the process was "unconscionable unreasonable and unexplained" and constituted a breach of the Board's duty under the relevant legislation. Having reviewed the authorities His Honour said at [46]:

Due regard to the principles in these cases leads to the conclusion that in these proceedings the plaintiff has the burden of demonstrating that the justice of the case requires the court to exercise its discretion in favour of an order that they be permanently stayed. It is said that such an order may only be made in exceptional circumstances and that the plaintiff's burden of persuasion is a heavy one (Re a Medical Practitioner (1993) 2 TasR 90, para 12). In exercising its discretion sometimes it may be difficult to keep in mind that the purpose of an order is not to punish a dilatory authority but to relieve an applicant from injustice in the proceedings.

327 So much can be said about whether or not the PS Ordinance contains any express rights. The question however is whether such rights ought be implied into the PS Ordinance. It is difficult to see on a proper construction of the PS Ordinance why it would be reasonably necessary for the PSB to have such an implicit power in order to perform its functions. True it is the function of the PSB is to enquire into and determine a question or questions referred to pursuant to s 59. In turn s 59 requires the PSB to consider the fitness of a church worker for example, whether temporarily or permanently to hold a particular office or licence or to continue to hold Holy Orders (s 59(1)(a)); and whether the exercise of a church worker's ministry or employment or performance of any functions should be subject to any condition or restriction (s 59(1)(b)), and to make determinations and if need be recommendations accordingly (s 42).

328 There is no doubt that the PSB clearly in performing its task has to exercise an evaluative and discretionary power in the protection of the public to determine present fitness. It is not easy to discern why beyond the express rights given to persons appearing before the PSB it would be reasonably necessary to have this additional power to stay the proceedings.

329 The approach of reasonable necessity which is well understood in the context of implication of statutory powers was considered by Rath J in Trivett v Nivison [1976] 1 NSWLR 312. The plaintiff in those proceedings sought a declaration that the actions of the Committee of the Racing Associations of New South Wales had had to observe the rules of natural justice (by implication) before cancelling or revoking the plaintiff's licence as a trainer. Rath J said at 317 - 319:

At the outset, in the consideration of these rival contentions, I propose to examine the basis for applying the principles of natural justice to the proceedings of a domestic tribunal such as the committee of this association. The association and its committee have no statutory basis whatsoever, and, in so far as they are required, in their dealings with other persons, to apply principles of natural justice, the only juristic basis is to be found in contract. The basis in contract is recognized in cases dealing with the discipline of a member by a voluntary organization to which he belongs: see, for example Australian Workers' Union v. Bowen (No. 2) (1948) 77 C.L.R. 601, at p. 628, where Dixon J., as he then was, said: "It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis." Lord Denning has said that it is a fiction created by lawyers so as to give the courts jurisdiction to treat the rules of such a body as a contract: Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch. 591, at p. 606. But he also said that such rules are a contract in legal theory. The same classification in legal theory must, in my view, be found in a case such as the present, where the relationship involved is not that of a club and its members, but that of a club, or rather association of clubs, to a non-member. The consensual basis here lies in the acceptance both by the plaintiff and the defendants, as the committee, of the rules as governing the procedure for cancellation of the plaintiff's licence...

... Because the relationship of the parties here rests in contract, then whether such a term is to be implied will, in my view, depend on normal principles as to implied terms. It is only if such a term cannot be implied that it would become necessary to consider whether art. 48 was itself void as contrary to public policy. The test of implication is whether the introduction of the term is compelled for the purpose of giving business efficacy to the contract: see Peters American Delicacy Co. Ltd. v. Champion (1928) 41 C.L.R. 316, at p. 322.

330 I do not consider that the PSB should by implication have the powers assigned to it to stay the proceedings by reason of the delay. It is one thing to require a reasonable opportunity to be heard, it is another to ensure nobody is heard.

331 But I must say that even assuming the PSB did have such power I am simply unable to find that the PSB should have exercised those powers and stay the proceedings in the circumstances of this case. I will return to this matter.

332 Independently however of the powers and functions of the PSB the question does arise whether the court pursuant to its general supervisory powers under s 23 of the Supreme Court Act 1970 (NSW) should permanently stay the proceedings. The principles in Walton v Gardiner have as far as I am aware never been applied to disciplinary proceedings of a private body. I am by no means satisfied that this court has jurisdiction to permanently stay the proceedings of the PSB on Walton v Gardiner grounds. As is obvious from what I have already said the PSB is not a statutory tribunal and it is not a body in my view in the nature of a court. That distinction was helpfully articulated by Mahoney JA in NSW Bar Association v Muirhead [1988] 14 NSWLR 173 at 209 where His Honour said:

The categorisation of a person or body as a "court" is determined, in the end, by the purpose for which the term is used: see X v Amalgamated Television Services Pty Ltd (No 2) (at 601-602). But in determining what is the categorisation of a body for such a purpose it is of assistance to consider two things: the essential nature of the power exercised; and whether, be its nature judicial or otherwise, it is given to a body or individual which is of the nature of a court.

In considering the nature of the power exercised, it is necessary to determine, in relation to the body or person exercising the power, what is the effect of what it does, how it does it and the context in which it does it.

The judicial function has been contrasted with the administrative function. In each, the holder of an office ascertains the facts, applies the law to it, and gives a decision or arrives at a conclusion as to the rights of the citizen concerned. But, it has been suggested, a distinction between the judicial and the administrative function is that, in the sense to which I shall refer, the decision of the judicial officer takes on a life of its own whereas that of the administrative officer does not.

333 As I have said I am not aware of any authority which has applied principles in Walton v Gardiner to the disciplinary proceedings of a private body and for good reason.

334 Upon the assumption however that I am wrong and that the principles applicable to permanent stays of disciplinary proceedings have application to the PSB, the question will be what principles ought to be applied.

335 There is no doubt that the plaintiffs must discharge what is clearly regarded as a heavy burden in order to demonstrate that the justice of the case requires the court to exercise a discretion in its favour and permanently stay proceedings. The plaintiff must show in my opinion exceptional circumstances.

336 A determination of whether the delay in the particular circumstances should result in a stay requires the court to engage in a balancing process between the respective interests of the parties and the interests of justice.

337 Clearly the question of what might or might not amount to exceptional circumstances or what might be the correct balance to be struck between the interests of the parties and the more general notion of the interests or dictates of justice will very much turn on its context.

338 In H v Andrews [2006] SASC 392, Gray J refused a stay in the context of allegations of sexual misconduct against a teacher involving a pupil occurring more than 30 years previously. His Honour said at [73]:

The prejudice that the plaintiff is said to suffer must be weighed against competing public interest considerations. There is strong public interest in ensuring that students are protected from teachers who may engage in inappropriate sexual behaviour with those students. This public interest is substantial. Parents and children have legal obligations with respect to education. Children must attend school. Trust is reposed in the schools, the Department and critically in the teachers. Public confidence must be maintained in the institution. Proper and thorough investigation of complaints must be undertaken.

339 In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare (R v McLoughlin; ex parte Director of Public Prosecutions (Re Cooney) [1988] 31 A Crim R 256, at 263-264).

340 I have been referred to numerous cases involving allegations of sexual misconduct by medical practitioners where courts have refused to grant a permanent stay on the grounds of an abuse of process arising from delay: G v Medical Board of Australian Capital Territory [1994] ACTSC 42; Dr SS v Health Care Complaints Commission [2002] NSWCA 391; Newcombe v Medical Board (SA) [2007] 96 SASR 564.

341 There is no doubt as I have said previously that in any disciplinary proceeding especially those involving a clergyman there is clearly a considerable reputational interest on the part of the church in having allegations aired and, one accepts aired fairly. It is vital that any persons who are licensed as clergymen have the confidence not only of the church but of the community they serve. Equally persons who have been sexually exploited are entitled not only to speak up but to be listened to and taken seriously even if they speak belatedly.

342 It is not unimportant when considering whether or not to grant a permanent stay to consider the nature of the charge or allegation leaving to one side its gravity. If the question posed involved for example the ability to recall in 2010 or 2011 the colour of a motor vehicle which passed an intersection in 1984 one could readily understand an inability on the part of anybody perhaps to resurrect such recollection especially in the absence of relevant records. Here the allegations are of quite a specific kind and of course deal amongst other things with sexual misconduct or unchaste conduct by way of group sex in a motel room in 1984. Both plaintiffs instructed their solicitor to deny the allegations. True it is that the precise basis of the denial has not been exposed, but I am entitled to infer that their recollections were such, and Mr Woodward having considered his ethical responsibilities was such as to permit their formal denial to take place. Indeed Father Lawrence went as far as to deny the allegations in his evidence before the court. To reply somewhat glibly on the basis that it is easy to make allegations but difficult to refute them can be said of many circumstances in life.

343 The church on the other hand in my opinion should have been permitted as it was to investigate the complaints against the plaintiffs. There is a clear public interest that where such allegations of this sort are made, even after a significant lapse of time, the church be permitted to investigate those complaints especially when made in relation to its clergy.

344 I am not satisfied that the fact of the complaint not having been made sooner has caused any significant prejudice to either Father Sturt or Father Lawrence so as to warrant, even it were open to the PSB and/or this court, to grant a permanent stay in all the circumstances.

345 It must be recalled that both plaintiffs felt able to deny the allegations. They instructed their solicitor to do so. No suggestion was put to the PSB to suggest prejudice. There was no attempt to have the proceedings adjourned. There is no evidence for example of what if anything Mr Goyette could have added by way of corroboration to Father Lawrence, notwithstanding the fact they lived together in the rectory. All of the persons who took part in the alleged events are alive. Apart from the complainant one of the witnesses who was apparently present was called before the PSB and of course gave his recollection of the events. There is little doubt it seems according to Father Patterson who gave evidence that both Fathers Sturt and Lawrence and for that matter Father Hoare were present at the seminar. There is no evidence before me as to what if any corroboration might have been provided by Father Hoare who was it seems also the subject of complaint.

346 The state of the evidence particularly in relation to documents which are no longer accessible to the plaintiffs is entirely equivocal. There is no suggestion beyond speculation that such documents, even were they to exist and were available, would prove anything or assist the plaintiffs.

347 The mere fact that some persons who attended the seminar are dead does not account for all who did. More to the point as I have said, it is not suggested that any of the other members of clergy apart from Father Hoare were privy to the events in the motel room in any event.

348 For the various reasons above I do not consider the plaintiffs should have had the proceedings stayed and I do not consider the PSB acted outside their jurisdiction in hearing the matter. As a matter of discretion I would in any event refuse relief. This is not a matter in my view where on the facts of this case it was impossible to provide a fair hearing to the plaintiffs. Review Ground 1 is rejected.

Claim for judicial review

Review Grounds 2 and 3

349 It is well established that insofar as the court has jurisdiction to entertain judicial review of determinations of statutory bodies, jurisdiction is confined to judicial review of legal error and it does not extend to merits review. It can also be stated generally that absent some civil right prerogative procedures are inappropriate.

350 I regard the matters pleaded in Review Ground 2 (denial of procedural fairness) and Review Ground 3 (irrationality and unreasonableness), as involving attempts on the part of the plaintiffs to engage in a merits review of the proceedings as it were. There is no doubt Fathers Sturt and Lawrence disagree with and more importantly are dissatisfied by the decisions made by the PSB.

351 In Review Ground 2 it is asserted that the proceedings before the PSB were conducted in a manner that denied the plaintiffs a reasonable opportunity to clear their names and occasioned breaches of the requirement of procedural fairness. In particular it is asserted that the plaintiffs could not reasonably be expected to give evidence before the PSB by reason of the fact they were afforded no absolute privilege as a defence to allegations of defamation that were made against them.

352 Further that they could not reasonably be expected to give evidence because they had no privilege against self incrimination which could be recognised such as s 128 of the Evidence Act 1995 (NSW).

353 They also complain about the nature of certain directions given on 24 November as being contrary to their implied right of an accused person not to incriminate himself and they also complain about the delivery of the brief to the PSB.

354 Further they complain that the PSB determined not to hear the matter in camera and that procedural issues arose by reason of materials being tendered by the director in the proceeding without dealing with objections taken by the plaintiffs' solicitor to the materials.

Absolute privilege

355 The plaintiffs point to the fact that in their submissions proceedings before Chapter IX Tribunals (constituted under the National Constitution) appear to attract absolute privilege from defamation.

356 Pursuant to s 27 of the Defamation Act 2005 (NSW) a Chapter IX Tribunal would be according to the plaintiffs an "Australian tribunal". They submit the PSB does not conform however to such a definition.

357 Section 27 of the Defamation Act 2005 (NSW), is described as providing the defence of absolute privilege and it is in the following terms:

27 Defence of absolute privilege

(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:

(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to):

(i) the publication of a document by order, or under the authority, of the body, and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law, and

(iii) the publication of matter while giving evidence before the body, and

(iv) the publication of matter while presenting or submitting a document to the body, or

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii) the publication of matter while giving evidence before the court or tribunal, and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or

(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or

(d) the matter is published by a person or body in any circumstances specified in Schedule 1.

358 The term "Australian tribunal" is defined as follows:

"Australian tribunal" means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).

359 In addition to the statutory defence referred to above the defence is also available at common law. The parties only and briefly directed attention to the statute. They did not advert to the common law. There is clearly some overlap between the availability of the defence at common law and pursuant to statute.

360 The High Court in Mann v O'Neill (1997) 191 CLR 204 considered the defence of absolute privilege. Brennan CJ, Dawson, Toohey and Gaudron JJ said at 211 to 214:

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]".

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts". Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern". The privilege extends to members of tribunals and to "advocates, litigants, and witnesses". And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

It is sometimes said that absolute privilege is founded on public policy considerations. It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell, it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of ... official functions."

Whatever the position with respect to communications between officers of State, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from "inherent necessity". And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice".

It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated". Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.

361 Generally speaking at common law occasions are rare which attract the defence of absolute privilege. Outside the traditional categories of judicial proceedings or parliamentary proceedings the demonstration that the extension of absolute privilege is necessary has on the authorities proved near to impossible.

362 In my view, whether one was considering a tribunal specified in Chapter IX of the National Constitution or a hearing conducted before the PSB it would be difficult in my opinion to comply with the necessity test. Although the parties did not address the issue, absent malice, statements made in both contexts may well be of course protected by "qualified privilege": Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Aktas v Westpac Banking Corporation (2010) 241 CLR 79.

363 In Lincoln v Daniels [1962] 1 QB 237 the Court of Appeal had to determine whether communications sent by the defendant to the secretary of the Bar Council alleging professional misconduct by the plaintiff were to be afforded the defence of absolute privilege on the basis that the documents constituted a step in an enquiry before the bench of the plaintiffs Inn of Court. Devlin LJ stated the proposition thus at 253:

It is settled that to come within the principle a tribunal must proceed in a manner that is similar to a court of justice, that its object must be to arrive at a judicial and not an administrative determination, and that it must be recognised by law.

364 His Lordship (at 263) in applying the principle came to the view that it was not strictly necessary in order to protect those who are to participate in the proceedings that they be afforded absolute privilege or that preparatory steps towards those proceedings be afforded that defence. Sellers LJ reached the same conclusion (at 252).

365 There has been a clear trend in the authorities indicating a reluctance on the part of courts to extent the occasion of absolute privilege.

366 In Gibbons v Duffell (1932) 47 CLR 520 at 528 Gaven Duffy CJ, Rich and Dixon JJ said:

The truth is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson (1892) 1 Q.B. 431). Its application should end where its necessity ceases to be evident

367 In Rajski v Carson (1988) 15 NSWLR 84 (at 91 - 92) Kirby P and Hope JA said:

Limiting the extensions of absolute privilege:

Whilst we acknowledge that there is force in these arguments, we have concluded that they do not represent the preferable construction of the statute. No authority binds the Court to accept them. There are reasons of principle which suggest that the opposite construction is to be preferred.

The starting point of our reasoning is that absolute privilege in defamation can amount to a serious derogation from ordinary civic rights. Whilst the purpose of Parliament must be faithfully upheld by the courts, it is not readily to be assumed that Parliament intended to derogate from the ordinary protection of civil rights, except to the extent that Parliament made such derogation clear. In Gibbons v Duffell (1932) 47 CLR 520, the High Court of Australia held that a report, made in the course of his duty by an inspector of police to a superior officer, which contained defamatory references to a subordinate officer, was not the subject of absolute privilege. Evatt J, in the course of his judgment, said (at 534 - 535):

"'... Absolute immunity from the consequences of the defamation', as Mr E E Williams wrote in 1909,

'is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded to those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civil protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' (25 Law Quarterly Review p 200).

Extension of the privilege by reason of analogies to recognized cases is not justified. Even if it were, there is no analogy between the Police Force preserving the State from 'internal enemies' and the Army preserving it from 'external enemies'."

Since those words were written in 1909 and reiterated by Evatt J in 1932, legislatures have expanded the categories of bodies attracting absolute privilege. What began with judicial proceedings, strictly so-called and later extended to Parliamentary proceedings, was expanded to other categories of publication as the list of protected provisions referred to in and about s 17 of the Defamation Act 1974 demonstrates. The reluctance of the courts to extend the numbers of occasions on which no action at all will lie, although a defendant published words with the full knowledge of their falsity and even with the express intention of injuring the plaintiff, is expressed to be the law in England, as well as Australia: see, eg, Law v Llewellyn [1906] 1KB 487 and Beresford v White (1914) 30 TLR 591. The principle of restraint in extending the defence of absolute privilege is supported by the textwriters: see, for example, the comment of the editor of Gatley on Libel and Slander , 8th ed (1981) 183, par 431 at 183. Indeed he appears to have foreseen the very problem which has arisen in this appeal.

368 In my view it would be difficult to mount a case at common law to contend that either a Part IX Tribunal or the PSB should qualify and pass the necessity test on the authorities.

369 So far as the statute is concerned neither a Part IX Tribunal nor the PSB is included in the schedule to the Defamation Act 2005. The question is whether either would fall within definition of the term "Australian tribunal" as defined in s 4 of the Act.

370 The majority in Scandrett v Dowling made it abundantly plain that after the church became recognised as a voluntary association church law was not state law and "its disciplinary and other tribunals were not State tribunals" (at 522). I think a Part IX Tribunal could not conform to the definition of "Australian tribunal". Neither could the PSB.

371 The mere fact that IX Tribunals have the power to administer the oath and might be described as a commercial arbitrator is I think not to the point. In that event as I have already stated I think neither body would have its proceedings protected by absolute privilege pursuant to the statute.

372 However the mere fact absolute privilege applies or does not apply before the PSB as opposed to another relevant tribunal cannot of itself smack of oppression or inferences.

Right against self incrimination

373 The plaintiffs further complain about section 34 of the PS Ordinance. It is in the following terms:

34. (1) The PSC may by notice in writing to a respondent require the respondent to provide a detailed report to the PSC within the time specified in the notice in relation to any matter relevant to the investigation.

(2) it is the obligation of a respondent:

(a) truthfully to answer any question put by or on behalf of the PSC in the exercise of powers conferred by this Ordinance;

(b) not to mislead the PSC or a member or delegate of the PSC;

(c) not unreasonably to delay or obstruct the PSC or a member or delegate of the PSC in the exercise of powers conferred by this Ordinance.

374 The plaintiffs contend in addition that s 34 is invalid because it is inconsistent with the privilege against self incrimination.

375 There is no doubt that the privilege against self incrimination is a fundamental common law right. It is not simply a rule of evidence. It operates so that a person cannot be compelled "to answer any question, or to produce any document or thing, if "to do so may tend to bring him into the peril and possibility of being convicted as a criminal", Reid v Howard (1995) 184 CLR 1 at 12, citing Sorby v The Commonwealth (1983) 152 CLR 281 at 288 per Gibbs CJ, see Lamb v Munster (1882) 10 QBD 110 at 111.

376 The privilege can be invoked by a person liable to a civil penalty including loss of office and does not depend upon exposure to criminal prosecution: Mason, Wilson and Dawson JJ in Pynboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 325 - 336.

377 The privilege can be abridged by statute or waived.

378 Section 34 of the PS Ordinance is not a statute so even if it purported to abridge the rule it would be of no effect. Even if it had statutory force the abridgment would have to be express and there is no such suggestion in the language in my view in the PS Ordinance. Nor in my view does s 34 as part of a consensual compact amount to a waiver on the part of members of the association who may be required by it to provide information. In that regard it is the submission of the Primate that on its proper construction s 34 is to impose upon the plaintiffs an obligation similar to that recognised as resting on a legal practitioner facing a disciplinary hearing. The Primate relies upon the decision of Re Veron; Ex parte Law Society (NSW) [1966] 1 NSWR 511 (1966) 84 WN 136 at 141 - 142. I do not agree. In that type of case of course the court is dealing with an officer of the court whose paramount duty is to the court and in addition no consideration in any event was given to the right against self incrimination in the judgment. That said the church would be expected to presume that the truth would be no stranger to any of its clergymen, but it is another matter altogether to construe s 34 as abridging such a fundamental right or that by membership there is a waiver in the sense of an abandonment or renunciation of such a right. I do not consider the language of the PS Ordinance supports such a notion: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 586 - 588 [49] - [54] and 599 - 600 [88] - [90]. If a clergyman refuses by reason of the right against self incrimination to provide an account of allegations so be it. The PSB would (as discussed below) be able to rely upon that refusal not as an admission and consistently with its powers pursuant to s 73 of the PS Ordinance.

379 Pursuant to s 34 I consider there is clearly an obligation not to mislead or obstruct the proceedings, but I do not consider it displaces the privilege against self incrimination and it should be construed accordingly. Here the plaintiffs did what they were entitled in my view to do namely to deny the allegations. They also declined to make admissions. They were not obliged to do so. I consider s 34 to be a valid enactment which could not, but more to the point, is not intended to abridge the plaintiffs right against self incrimination.

380 Of course a claim for a privilege against self incrimination cannot be used as an admission.

381 It is well understood in a criminal prosecution that the failure of accused to give evidence is not itself evidence nor is it an admission. The High Court (Mason CJ, Deane and Dawson JJ) in Weissensteiner v The Queen (1993) 178 CLR 217 at 229 said:

The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct. But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence. That was recognized in Reg v Kops. But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.

382 The same principle appears apposite in an administrative context: Dolan v Australian and Overseas Telecommunications Corporation [1993] 42 FCR 206 at 212 - 216.

383 However as Lee J pointed out in Pappas v New World Oil Developments [1993] 43 FCR 594 at 595, the failure to adduce evidence on central issues on which the witness may be expected to give evidence will permit a court to be satisfied that inferences adverse to the case of that party may properly be drawn notwithstanding that the ground for refusal to provide evidence may be rooted in the privilege against self incrimination.

384 I should say I see nothing wrong here with what the PSB did or said at any point (including 24 November direction hearing). It was entitled in evaluating the credibility of the complainant ultimately to consider for example that apart from bare denials there was no opposing version, notwithstanding the fact that ample opportunity had been afforded to the plaintiffs to provide one had they wished. The plaintiffs did precisely I assume what they were advised to do, and that was to take no part in the proceedings. They exercised their informed freedom of choice. I do not consider s 34 to be invalid nor the instrument of unfairness or oppression.

Other matters

385 The plaintiffs also argue that the defendants could not reasonably have been expected to give evidence because they could not get the protection of s 128 of the Evidence Act, and that somehow the conduct of a directions hearing with directions given about evidence in some way amounts to a breach of procedural fairness. I cannot see it myself. Again they chose not to give any evidence to contest the allegations and not to be heard. That was their right.

A hearing in camera

386 Complaint is made that the PSB should have heard the matters in camera.

387 Pursuant to s 69(1) of the PS Ordinance and subject to ss (2) sitting of the PSB is to be an open sitting. However s 69(2) gives the PSB an absolute discretion to make any number of orders which would involve potentially hearing the matter in camera. But it is in its absolute discretion whether it chooses to do so or not. It is not immediately apparent to me how or why it could be put the PSB erred in determining to hear the matter in open forum, as it were. Indeed there are many compelling reasons why a church would wish to be seen to be doing so. Further it is by no means clear to me (although no submission has been made by the plaintiffs to this effect) that things said by either plaintiff, were they to have chosen to give evidence, could make them liable for defamation in the absence of malice. It might be thought that a good case in favour of qualified privilege could have been put permitting either plaintiff to make statements in response to allegations or attacks made upon them which might have been defamatory of the complainant or some other person.

388 The balance of the matters do not raise in my view any matters of substance. By the deliberate absence of the plaintiffs and the absence of the solicitor Mr Woodward the complaints raised in paragraphs 55, 57 and 58 are a little disengeneous and without substance.

389 I reject Review Ground 2

Review Ground 3

390 The matters raised under this ground (FAS of C [60] - [69]) are in my view an attempt at an unashamed merits review.

391 The plaintiffs wish to argue that the PSB erred in admitting evidence which was prejudicial and in particular by placing reliance upon the poem allegedly written in 1993 by the complainant. There are then a series of alleged errors relating to the way in which the PSB dealt with matters of evidence or made its finding or explained itself in its determinations.

392 I must say that the allegation that the PSB erred for example in admitting evidence is really no more than a submission that the PSB ought to have made different findings not based upon that material. It is to be observed that pursuant to s 54(3) the PSB was not to be bound by technicalities or legal forms nor the rules of evidence and was entitled to inform itself on any matter and in such manner as it thought fit. I do not believe the plaintiffs have put a compelling argument as to why there was any prohibition on the PSB considering any of the material that was before it. To that end I do not accept that the plaintiffs have shown any reviewable error in the relevant sense.

393 Incidentally of course it must be recognised that the issue of a prerogative writ is not available in respect of the breach of the rules of a private body which does not exercise powers of public significance; a sporting club or for example an independent school: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [79] per Basten JA.

394 But even assuming the plaintiffs have sufficient standing to seek judicial review I am unpersuaded that given the latitude accorded to the PSB pursuant to the PS Ordinance and in particular s 54(3) the plaintiff is able to point to any impermissible piece of evidence wrongly being received or considered by the PSB. It is no part of my role upon such a review (assuming an entitlement to it) to substitute my own decision for that of the PSB even if I disagree with what they have done: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 41.

395 The allegations for example that the PSB erred in drawing certain inferences or making certain findings is again as I think nothing more than an invitation to the court to substitute its own decision for that of the original decision maker. Take for example the poem written in 1993. It was open to the PSB to determine that the poem was written in the circumstances alleged by the complainant, albeit some 9 years after the event, and written as part of the complainant's struggle to come to terms with what had occurred years before and on its testimony at least by implication that which had haunted him for a significant period of time. The weight to be given to the findings and the significance to be placed upon the poem it seems to me was a matter entirely within the purview of the PSB. The credibility of the complainant was a central issue in the process. This was confronted by the PSB. How they evaluated the material was a matter for them. They were entitled to accept all or part only of his evidence. It is clear they were also entitled to evaluate the extent to which there was corroboration like for example the 'Four Rivers' publication. Cubillo v Commonwealth (No 2) (2000) 103 FCR 1.

396 In circumstances where both Father Sturt and Father Lawrence declined to take up the opportunity to appear before the PSB and even at a minimum make submissions, it is difficult to see how there was denial of procedural fairness. The only view reasonably open in my mind is that Mr Woodward gave advice to both plaintiffs and as a result they made an informed decision not to participate in the case of Father Lawrence at all, and in the case of Father Sturt, potentially participate in some ways, subject to whether the PSB resolved to hear the matter in camera. I find it difficult to accept that in the circumstances they were denied a reasonable opportunity to be heard. The disappointment or dissatisfaction with the outcome cannot amount to a breach of the rules of natural justice. I see nothing untoward with the approach adopted by the PSB. They evaluated the evidentiary materials as in my view they were entitled to do. The material before them clearly permitted them to reach the conclusions they did, and I reject Review Ground 3.

Review Ground 3A - bias

397 The ground is only pressed by Father Lawrence.

398 The PSB is said to have erred in proceeding to hear and determine the allegations made against Father Lawrence in circumstances where it had just heard and determined the allegations against Father Sturt. It is asserted in so doing the PSB was affected by actual bias against Father Lawrence, alternatively the PSB was affected by apprehended bias against him. In either case the determination as far as it affects Father Lawrence is invalid or void and should be quashed.

399 Authority in New South Wales supports the proposition that allegations of apprehended bias are not available in applications for judicial review of the decision of domestic bodies such as the PSB. In Maloney v NSW National Coursing Assn Ltd (No 2) [1978] 1 NSWLR 161 Glass JA made the following comment at 170 - 171

The passages I have quoted from these various decisions furnish, in my view, adequate support for the proposition that the requirements of natural justice are in some respects different where domestic tribunals are concerned. They also adumbrate the reasons why this is so. In the administration of justice by courts proper, and those acting in a similar capacity, public policy requires that there should be no doubt about the purity of that administration: Allinson v. General Council of Medical Education and Registration [1894] 1 Q.B. 750, at pp. 758, 759., per Lord Esher M.R. The rules being enforced have no consensual basis. The parties have not chosen the tribunal. The judges and those being judged are drawn from two groups of people so numerous and so placed in relation to each other that it is not only desirable, but also eminently feasible, to insist that the former should be purged of all bias towards the latter, whether real or apprehended. Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking it does not so operate and, in particular, it cannot operate with respect to tribunals such as that set up by Art. 10 in the articles of the defendant association: cf. S.A. de Smith, Judicial Review of Administrative Action, 3rd ed., p. 232.

400 The High Court in Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 said when discussing the concept of actual bias:

But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be "real". The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that "preconceived opinions-though it is unfortunate that a judge should have any-do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.

401 It goes without saying that a finding of actual bias should not be made lightly and cogent evidence would be necessary for making such a finding. It would therefore be entirely appropriate to take into account the classic expression of the level of satisfaction needed where such a grave allegation is made as articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, see also s 140 of the Evidence Act 1995.

402 To qualify as actual bias the mind of the decision maker must be so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. Actual bias requires the presence in the decision maker, clearly, as a pre existing state of mind which disables him or them in the present circumstances from undertaking or rendering themselves unwilling to undertake any proper evaluation of the relevant materials before them. Actual bias will of course exist where the decision maker has prejudged the case against the applicant or acted with such partisanship or hostility as to show that the decision maker had a mind made up against the applicant and was simply not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, see discussion per Gleeson CJ and Gummow J at 531 - 532.

403 The test for apprehended bias of course is an objective one. Whereas the test for actual bias is a subjective one. In Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48 the High Court: Gummow, Hayne, Crennan and Bell JJ noted at [33]:

Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about any actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done at least for the most part on the basis of what the judge had said and done. But to allow an inquiry about whether a judge had in fact pre judged some issue to enter into a debate about what a fair minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.

404 On the evidence of this case I fail to detect anything in what members of the PSB said or did prior to hearing and determining the matter against Father Lawrence that could cogently and persuasively point to actual bias on their part.

405 But that is not an end to the matter. In Vakauta v Kelly (1989) 167 CLR 568 the High Court determined that a person can indeed waive apprehended bias. The facts of the case concerned a trial judge who made comments critical of the evidence given by the defendants medical witnesses in previous cases. Counsel confirmed in proceedings that the remarks were recorded on the transcript, however did not object to comments made by the judge and made no formal application about them. In addressing apprehension of bias Brennan, Deane and Gaudron JJ noted at 572:

Where such comments are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment.

406 There is very little authority on whether or not a party can waive actual bias, however in the same case Dawson J (albeit in the minority in the result) said at 577 (where it is clear His Honour was addressing both actual bias and an apprehension of bias):

No objection was taken to the continuation of the trial before his Honour either formally or in effect. The purpose for which certain of his Honour's remarks were raised by counsel was to have them recorded on the transcript, presumably for use in the event of an appeal, and the failure to identify any other purpose necessarily implied that no other point was then taken.

If those remarks, or his Honour's response, displayed bias, actual or ostensible, then the failure of counsel to object did, I think, amount to a waiver of the objection.

407 I consider that comment of Dawson J, albeit in passing, provides support for the proposition that actual bias can indeed be waived.

408 During the course of the proceedings I invited Counsel to bring any authorities to my attention on this issue. I was referred to the decision of Strickland J in Stephens v Stephens [2010] FamCA 184 in which Justice Strickland helpfully set out extracts relating to actual bias and waiver.

409 His Honour there determined that waiver could be express or implied and referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

410 His Honour also considered waiver could be express or implied. His Honour was placed in the invidious position of having to determine his own subjective state of mind. He dismissed the allegation of bias by reason of a lack of evidence.

411 There is simply no basis here to reasonably infer that the PSB was motivated by actual bias and I am not satisfied that such existed in fact. Notwithstanding the fact that there was a short gap only between the two hearings, evidence was in fact called and presented in relation to the complaint about Father Lawrence and it is unrealistic to suggest that in hearing the matter regarding Father Lawrence the PSB would have had a predisposition or inclination adverse to him. That does not prove that one let alone all three members of the PSB were motivated by actual bias.

412 Mr Woodward got instructions to withdraw from the proceedings and neither of his clients were prepared to participate in any way in the process. As their solicitor he knew that the PSB was going to deal with both matters during the relevant period. The plaintiffs and Father Lawrence in particular should be taken to have waived any right to object to the process on this basis. I reject Review Ground 3A.

Review Ground 3B

413 Review Ground 3B alleges a breach of prosecutors duty. These grounds made serious allegations in respect of the conduct of Mr Lloyd the representative of the PSC at the hearing before the PSB. Mr Lloyd put on a statement in the proceedings before me. He was not cross examined. Mr Lloyd is a retired police prosecutor.

414 It is submitted that the court should not entertain Review Ground 3B as it goes nowhere. Further it was submitted by the defendants that the authorities make clear that although a breach of "prosecutors duties" may have ethical and professional consequences it cannot ground an application for judicial review in aid of prerogative writ for example. In Whitehorn v the Queen (1983) 152 CLR 657 at 665 Deane J made the following comments:

The fact that criminal proceedings in this country are adversary in character means that what is required by the standards of fairness and detachment which should be observed by the Crown in the calling of witnesses may be modified by the informed consent of the accused. The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of a trial judge, particularly in summing up to the jury or in dealing with an application for an adjournment or for discharge of the jury, to seek to ensure that an accused receives a fair trial and the powers of an appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial. The question whether a trial judge may withdraw a case from the jury or direct an acquittal on the ground that, notwithstanding that there is evidence which would sustain a conviction, a failure by the Crown to call a particular witness has resulted in a situation where a conviction would be unsafe or unreasonable, has not been argued and need not be considered here.

415 Here of course it is suggested that by reason of some breach of "prosecutors duties" this would lead to the court determining that the determination was invalid or void and should be quashed. Natural justice directs itself to the decision maker as opposed to a person appearing for one of the parties before the decision maker. I accept the defendants submission that there is no juristic basis for treating a breach of "prosecutors duties" as amounting to a denial of natural justice. Mr Lloyd took no part in the deliberation process.

416 I also consider in any event it is very doubtful whether "prosecutors duties" apply at all in the context of proceedings before a domestic tribunal such as the PSB. It is therefore indeed questionable whether a person in the position of Mr Lloyd was indeed subject to any duty. He was really not fulfilling the role of a "prosecutor" but rather appearing for the PSC before the PSB. The mere fact that he had to make allegations of the kind he made does not turn him into a prosecutor.

417 In a very different context the Court of Appeal in Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [678] - [777] considered the nature of the prosecutorial duty in circumstances which in that case involved proceedings for civil penalty pursuant to the Corporations Act 2001 (Cth). The appellants contended that Counsel appeared for ASIC in such a matter or a duty akin to that of a prosecutor in a criminal trial. The court rejected the notion that by analogy from criminal procedure it was appropriate to impose upon Counsel appearing for ASIC in such proceedings a prosecutorial duty at [689]. There was no issue but that ASIC accepted in argument that it was obliged in the conduct of the proceedings to act fairly. The debate in the Court of Appeal turned upon ultimately whether or not in that particular case ASIC was or was not obliged to conduct the case in a particular way, importantly by calling a particular witness. I should observe that this and other issues in that case are reserved before the High Court.

418 For the reasons outlined above I reject Review Ground 3B.

Discretionary barriers to relief

419 Although it is true that I have rejected various grounds for relief noted above, and the question of remedy does not arise, I should say something about the exercise of discretion. First certiorari does not lie to a decision of a private or domestic tribunal: Bird v Campbelltown Anglican Schools Council [2007] NSWC 1419 at [11]. The only remedies thus claimed by the plaintiff which I could have granted were declaration (order 3), injunction (order 4), and a stay (order 5).

420 Each of these remedies of course are by their nature discretionary and not matters of right. If I had been left to exercise a discretion, I would exercise my discretion against granting any relief. There are a number of reasons why I have come to this view.

421 First it does seem to me that all if not most of the matters which are the subject of the FAS of C could have been raised before the PSB during the hearing which each of Father Sturt and Father Lawrence deliberately chose not to participate in. The fact that Father Sturt and Father Lawrence chose to wait until the PSB proceedings were concluded and not to participate in them is in my mind a very significant factor.

422 Indeed had they participated in the process (whether by giving evidence or not), they had rights pursuant to the PS Ordinance to seek a review pursuant to s 83 (part 12). This internal review procedure would have been conducted by a barrister of not less than 10 years standing appointed by the president of the New South Wales Bar Association who would thereafter be the reviewer, (S 81). Application for review is available on a number of grounds set out in s 83.

423 It seems to me that the scope of the review available under s 83 of the PS Ordinance would plainly have enabled Fathers Sturt and Lawrence to address all of the allegations of oppression, unfairness, breach of procedural fairness and lack of jurisdiction which they seek to pursue in these proceedings.

424 Sections 88, 89 and 94 of the PS Ordinance give the reviewer very wide latitude as to the relief that he or she might think appropriate in the circumstances, including quashing or setting aside the reviewable decision (s 94(a)), remitting the determination for further consideration subject to directions (s 94(b)), making a declaration of rights (s 94(c)), and making determinations to effectively restrain the PSB from doing anything which the reviewer considered necessary to do justice between the parties (s 94(d)).

425 The mere fact that the review is not to be conducted by way of a rehearing of the merits or a hearing de novo does not detract from my view that the matters they have sought to agitate in these proceedings would have been arguably open to them to raise in such a process.

426 Secondly and more to the point the plaintiffs had the benefit of independent and competent legal advice as to their rights. It is clear from references in the transcript that their solicitor Mr Woodward had had experience with similar matters previously. Having taken advice, each plaintiff decided not to participate in the process. In the case of Father Lawrence from the very outset. He chose to deny the allegations and leave it at that. Father Sturt took a slightly different position but I do not consider it materially different. I am prepared to proceed on the basis that he denied the allegations and after his application to have the matter determined in camera was decided adversely to him he chose not to participate further. It was never entirely clear that he would have done so if the PSB had decided to hold the hearing in private.

427 Their participation could of course have taken many forms. Initially they could have sought an adjournment in order to put materials together on the issue of prejudice to seek to persuade the PSB not to proceed with the matters or to consider excluding materials. Equally they could have appeared in a limited way for the purposes of cross examining the various witnesses and making, for example a no case to answer submission. Equally they could have given evidence themselves and/or called additional evidence to corroborate their assertions. They chose none of these courses. They adopted a considered and deliberate forensic strategy. They were entitled to take that course but they should in my opinion and in the interests of justice abide by its consequences.

Conclusion

428 In all of the circumstances I do not consider the plaintiffs are thereby entitled to any relief and I dismiss the proceedings accordingly. I would invite the parties to prepare short minutes to reflect my conclusion.

429 I will reserve the question of costs. On that issue I would invite the parties to have the matter re listed before me for the purposes of hearing submissions on the question of costs.

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Decision last updated: 03 May 2012