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Summary – The Supreme Court has
handed down a judgment in the case involving the Anglican Diocese
of Newcastle and two priests who had been the subject of a
recommendation from a Church Board that they be defrocked. The
judgment deals with important issues relating to the employment
status of priests, the legal status of churches and circumstances
in which a court will interfere in the internal workings of a
church.
On 27 April 2012 Justice Sackar handed down judgment in the case
of
Sturt and Anor v the Right Reverend Dr Brian Farran, Bishop of
Newcastle and Ors. In these proceedings, Fr Sturt and Fr
Lawrence (the priests) sought orders against the
Anglican Bishop of Newcastle, the members of the Professional
Standards Board (PSB), the members of the
Professional Standards Committee of the Diocese of Newcastle (the
PSC) and the Primate of the Anglican Church of Australia.
Makinson and d'Apice acted for the defendants, other
than the Primate of the Anglican Church of Australia.
The facts are complex, but the essence of the relevant facts
are:
The Synod of the Diocese of Newcastle passed the
Professional Standards Ordinance 2005 (PS
Ordinance) on 15 October 2005.
Fr Sturt was granted a licence in respect of the office of
Rector of the Parish of Cardiff within the Diocese of Newcastle on
1 February 2006.
Fr Lawrence retired as Dean of Newcastle Cathedral and ceased
to hold a licence on 31 December 2008.
On 3 October 2009 "M" made a formal written complaint
against the priests, including, alleging their involvement in or
observance of a group sex event.
On or about 9 October 2009 Bishop Farran notified the priests
of suspension of Fr Sturt's licence whilst the complaint
was being investigated pursuant to the PS Ordinance.
There were a number of substantive issues raised in the
submissions by the parties with a number of sub-issues.
In this short report, we do not intend to deal with the full
range of issues, but we recommend that interested parties read the
judgment of Justice Sackar and if you have any queries in
connection with that please do not hesitate to contact Bill
d'Apice, Alex
Kohn or Indran
Sinnadurai of our office to discuss these.
Of relevance to clients in the church sector, His Honour drew
the following conclusions and made the following observations after
considering much of the case law relevant to each of the
issues:
The Anglican Church is a voluntary association;
He cited the High Court judgment in Macqueen, where Chief Justice Griffith observed that
"the Presbyterian Church, like any other religious body in
Australia, is in the eyes of the law a voluntary association
..."
Courts have routinely not interfered in the internal workings
of voluntary associations, especially religious organisations.
With a voluntary association, there is 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 the affairs of a voluntary association.
He cited with approval the High Court's decision in
Ermogenousthat "regard needs to be paid to the facts
of each case to determine whether or not there is a contract of
employment between a priest and a church body". He stated
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".
On the evidence available he concluded that the priests were
not performing their roles pursuant to a contract of
employment.
The PS Ordinance provides for a review procedure for
recommendations of the Board including a recommendation to depose a
person from Holy Orders.
His Honour concluded there was little doubt that the PS
Ordinance is drafted in language that manifests an intention to
affect legal rights. As consequence, he concluded that the
priests' claims were able to be considered by the Court,
i.e. they were justiciable.
The Court dealt with other substantive aspects of the case in
question and concluded that our clients had acted appropriately in
the circumstance and denied the priests the relief that they were
seeking.
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
