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Sturt and Lawrence v Right Reverend Dr Brian Farran, Bishop of Newcastle [2012] NSWSC 400 (Supreme Court of New South Wales, Sackar J, 27 April 2012)

The plaintiffs are priests of the Anglican Church of Australia. These proceedings arose out of disciplinary processes brought against Fathers Sturt and Lawrence purportedly pursuant to internal legislation made by the Synod of the Diocese of Newcastle entitled the Professional Standards Ordinance 2005 (PS Ordinance). The plaintiffs brought the proceedings against the Bishop of Newcastle, the members of the Professional Standards Board (PSB) convened to hear their case, the members of the Professional Standards Committee (PSC) of the Diocese of Newcastle, and the Anglican Primate of Australia. The PSB had made a determination in respect of the priests that they be deposed from Holy Orders (defrocked).

Although the background to the case involved allegations of sexual misconduct by the priests and others, this hearing dealt with:

  • 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;
  • whether the plaintiffs were subjected to illegitimate, unfair, harsh and oppressive procedures by virtue of the proceedings before the PSB and whether the PSB's recommendations ought or ought not stand.
    The following relief was sought:
  • 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 were invalid or void.
  • an order that the first defendant be permanently restrained from giving effect to the determinations and recommendations.
  • an order 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.

Following a complaint made on 3 October 2009 about certain conduct by Fathers Sturt and Lawrence at a clergy conference in the 1980s, action was initiated by the Bishop of Newcastle. On 9 October 2009, Father Sturt’s licence was suspended (Father Lawrence had already retired). On 28 October 2009, the PSC referred the matter concerning the priests to the PSB pursuant to the PS Ordinance. A directions hearing was held on 24 November 2010 before the President of the PSB at which a 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 the solicitor made an application for the hearing concerning Father Sturt to be held in camera. The application was refused.
On 13 December 2010 the PSB commenced the hearing. It rejected a renewed application by the solicitor that the proceedings concerning Father Sturt be held in camera. A short adjournment then took place. The solicitor 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.

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

On 16 December 2010 a summons was filed on behalf of the plaintiffs commencing the proceedings in this court. The issues for determination were:

  • (a) Justiciability;
  • (b) Constitutional ground;
  • (c) Permanent stay;
  • (d) Claims for judicial review;
  • (e) Discretionary considerations.

The issue of justiciability was of course a threshold question: was the court able to adjudicate on this matter? The Anglican Church is a voluntary association, and courts have routinely not interfered in the internal workings of voluntary associations, especially religious organisations. With a voluntary association there is a need for the court to identify whether there is a civil or proprietary right that has been infringed, which as a matter of law requires enforcement, before intervening in such an organisation’s affairs.

His Honour went on to discuss the presence of a contract of employment in the situation of Holy Orders. Father Sturt was a Rector of a parish, lived in a rectory and received a stipend. The stipend was paid just like any salary, via a pay slip from the Diocese of Newcastle (which has an ABN), with superannuation deducted. He had several previous postings as a priest. Father Lawrence had been Dean of Newcastle before his retirement, receiving a stipend, living in the Deanery and having a car provided.

His Honour acknowledged that there has been a long held view that priests ‘hold office and are not employees’. His Honour considered Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 in which 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 High Court found on the facts that the appellant had been employed under a contract of employment because there was a clear intention to create legal relations between the parties. However, this was a case of an incorporated association. The High Court had said with respect to unincorporated associations that (at [32]-[33]):

No doubt... 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. As was pointed out in Cameron v Hogan, there are at least two difficulties that arise if action is brought to enforce a contract said to have been made with an unincorporated body. First, there is difficulty in properly constituting the action by sufficiently identifying all the proper parties to the suit (difficulties that may not always be met by constituting the action as a representative proceeding). Secondly, there is the further difficulty of identifying who it is who is said to be responsible for the breach which is alleged. Are all members of the body to be said to be in breach of the contract; are only some to be said to be in breach? These are not mere formal difficulties. They invite close attention to identifying the contract that is alleged to have been made and, in particular, the identification of its parties.

His Honour then referred to the element of control over employees in contracts of employment. He said that the English case of JGE v The English Province of Our Lady of Charity [2011] EWHC 2871 was instructive. There, in a case also involving sexual misconduct, it was held that the Church trust was vicariously liable, but that there was no contract of employment as such. This was because there was a lack of control over priests in the work that they did.

His Honour concluded that there was no contract of employment in this case. He went on to say (at 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.

Were there any other rights available on which the plaintiffs could rely? His Honour considered the matter in considerable detail, but could find little to assist the plaintiffs. He turned to the PS Ordinance itself. He said (at 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.

Therefore, his Honour held that the matters complained of by the plaintiffs were justiciable.

On the issue of constitutionality, His Honour reviewed the constitutional underpinnings of the Anglican Church of Australia. He concluded (at [211]) that the PS Ordinance was a valid legislative enactment of the Synod of the Anglican Diocese of Newcastle by virtue of section 2(1) of the Amended 1902 Constitution under the Anglican Church of Australia Constitution Act 1902 (NSW). It was also found to be a valid enactment pursuant to section 3(4) of the Amended 1902 Constitution.

His Honour refused a permanent stay of the proceedings against the plaintiffs, and refused a judicial review of the proceedings. In this respect, His Honour said (at [349]-[350] and [384], [396]):

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. 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...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 [of the PS Ordinance] to be invalid nor the instrument of unfairness or oppression...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.

As to discretionary remedies, His Honour stated that (at [419]-[420]):

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...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). 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.

Therefore, although His Honour found that the plaintiffs’ case was justiciable, he rejected the plaintiffs’ claims, and dismissed the proceedings. Costs were reserved.

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Implications of this case
This case again raises the question of the justiciability of issues within a voluntary association. This matter continues to vex the courts, owing to the nature of unincorporated associations. They are not recognised legal entities, so that finding grounds for bringing actions against them can be fraught with difficulty, as His Honour acknowledged in this case. His Honour cited with approval the High Court case of Ermogenous on this point, even though it concerned an incorporated association. In that case, the High Court had said that each case must be considered on its own facts, and just because the case involved priests there was no need to decide that there could not be a contract of employment. This is particularly important in an unincorporated association, since there continues to be a lack of justiciability without some contract or other issue that involves rights upon which to sue.

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