Bayston v Scotch College [2002] VSC 516

"The Commission having read the submissions from the State Negotiators, and from the Councils of Schools in Victoria and having heard the Commissioners representing those approving and disapproving union with the majority of the independent members voting with the Commissioners representing those disapproving union resolved to award Scotch College to the Continuing Church on the condition that those members of the existing council who desire to continue to serve after June 22nd 1977 are to continue in office until the close of the General Assembly of the Presbyterian Church of Victoria in 1979 and that the existing regulations of the General Assembly of Victoria requiring a certain percentage of the membership of the Council to be communicant members of the Presbyterian Church of Victoria be amended as soon as possible to remove this requirement in relation to existing members of the Council."

6. This award was challenged by the persons associated with the school who objected to that institution being placed in the control of the Presbyterian Church. In the litigation which ensued[1] the Attorney-General, at the relation of the Old Scotch Collegians' Association ("OSCA") contended, inter alia, that the award was void and that the Presbyterian Church was not entitled to appoint the council of the school. The terms of settlement of that litigation entered into in March 1980 provided that the property of the school should be transferred to a new company, the firstnamed defendant, Scotch College, and that the management and conduct of the school should be assumed by the first council of that company. The company itself was incorporated on 30 April 1980 and on 29 April 1980 the Attorney-General pursuant to s. 24 of the Companies Act 1961 granted a licence allowing it to omit the word "Limited" from its name. This licence was granted subject to certain conditions including the requirement that the memorandum and articles of the company "are strictly followed".

9. The constitution of the company is contained in its memorandum and articles of association, a draft of which was annexed to the terms of settlement. The terms of this constitution, especially those with respect to the selection of the school council, represented, I was told, a compromise worked out between the two interest groups struggling for control of the school. The members and directors of the new company were to be the members of the school council comprising 17 members appointed for a 12-month period commencing on 1 November in each year, with a right of members to be reappointed. The members of the school council fall into three groups, which groups are appointed in different ways. Group A members who number five persons are appointed by the General Assembly of the Presbyterian Church; Group B members who number five persons are nominated by the OSCA and, once nominated, must be appointed by the General Assembly. In this sense, the Group B members are, for all practical purposes, the appointees of the OSCA. The Group C members, with which this litigation is concerned and who number seven persons, are appointed following an involvement by both the retiring school council and the Presbyterian Church. These members are nominated by the retiring council and submitted to the General Assembly for approval or rejection. If approved the nominee is appointed by the General Assembly. If a nominee is rejected, the school council may submit another nominee and, subject to one qualification, this process continues until a nominee is accepted, or at least not rejected, by the Assembly. The qualification I refer to is that after a second rejection the Assembly may not reject a further nominee unless the nominee is "not reasonably suitable to act" and, further, the Assembly provides written grounds for its rejection. There are procedures, too, for default approval and default appointment of the Group C nominees if the various steps are not taken within the stipulated periods.

12. It will be recalled that the members of the school council are appointed or re-appointed annually. They retire on 31 October of each year[2]. Article 29 provides that, unless and until all the members of a particular group have been appointed, the members of that group for the preceding year remain in office.

15. It is convenient at this point that I set out the text of the articles relating to these matters and which I am to construe.

"26. The Council shall consist of seventeen members divided into three groups as follows: five group A members; five group B members and seven group C members. 27. ... [Constitution of first school council]. 28. (1) Save as expressly provided otherwise in these Articles, the members of the Council other than the first Council - (a) shall be appointed by the General Assembly in or about the month of October in each calendar year in the manner hereinafter appearing; and (b) shall hold office from the 1st November in the calendar year of appointment or from the date of appointment (whichever is later) and retire on the 31st October next following - which period of office is hereinafter referred to as `the twelve months period beginning 1st November'. (2) A member of the Council retiring in accordance with this Article shall be eligible for re-appointment. 29. Notwithstanding anything to the contrary in these Articles, none of the Councillors of any group shall retire pursuant to the provisions of Article 28 in any year until all the members of that group for the succeeding year have been appointed in accordance with the provisions of these Articles. 30. With the exception of the first Council - (a) all group A members shall be appointed by the General Assembly in the manner appearing in Article 31; (b) all group B members shall be nominated by the OSCA and appointed by the General Assembly in the manner appearing in Article 32; and (c) all group C members shall be nominated by the Council and approved and appointed by the General Assembly in the manner appearing in Article 33. 31. ...[Process of appointment of Group A members]. 32. ...[Process of nomination and appointment of Group B members]. 33. (1) In each calendar year the members of the Council retiring in that year shall select seven persons for appointment as group C members for the twelve months period beginning 1st November in that year and as soon as practicable after selection and in any event not later than 1st September in that year shall nominate those persons for appointment by giving notice of the names of those persons to the Clerk of the General Assembly. (2) Within thirty days of the Council giving notice in accordance with this Article the General Assembly shall either approve the persons nominated or reject the nomination of any one or more of them by giving notice to the Secretary stating which of the nominations is or are approved and which rejected. (3) Where the General Assembly rejects a nomination made by the Counsel then within thirty days of the General Assembly giving notice of rejection the Council shall select and nominate a further person for appointment by giving notice to the Clerk of the General Assembly and within thirty days after that the General Assembly shall give notice to the Secretary stating whether that further person has been approved as a group C member or his nomination rejected. (4) Should any person nominated by the Council die or otherwise cease to be a candidate for approval by the General Assembly after the date of his nomination and before the date of his rejection by the General Assembly or, if he be approved by the General Assembly, before the date of his appointment to the Council, then the Council shall nominate another person in place of the firstmentioned person. (5) If, within thirty days of the nomination of a person having been received by the Clerk of the General Assembly, that person shall not have been rejected by the General Assembly, then that person shall be deemed to have been approved by the General Assembly. (6) The General Assembly may reject nominations made pursuant to this Article to the places of group C members falling vacant in any year pursuant to Article 28 on more than one occasion but shall not reject nominations made pursuant to this Article to the places of group C members falling vacant in any year pursuant to Article 28 on more than two occasions unless - (i) the nominee or nominees rejected is or are not reasonably suitable to act; and (ii) the particular grounds of rejection are stated in writing by the General Assembly and notified to the Secretary who shall inform the Council thereof. (7) The persons approved by the General Assembly shall be appointed as soon as practicable and in default of appointment within thirty days after approval of all group C members they shall be deemed to have been appointed. (8) Failure to comply with the provisions as to time specified in Article 32(1) or 33(1) shall not invalidate compliance with the provisions of such Articles made out of time. 34. A member of the Council shall cease to hold office and his office shall be vacant accordingly if - ... (d) being a group A member of the Council a resolution for his removal is passed by the General Assembly - and that resolution is notified by the General Assembly to the Council; (e) being a group B member of the Council a resolution for his removal is passed by the OSCA - and that resolution is notified by the OSCA to the Council; and (f) being a group C member of the Council a resolution for his removal is passed by the General Assembly and a like resolution is passed by the OSCA and the resolutions are notified to the Council, and any vacancy so created shall be a casual vacancy."

21. It seems that these procedures, which were devised in 1980 to enable the school council to comprise representatives of persons agreeable to the contending interest groups, have not been entirely successful, notwithstanding the evident goodwill and cooperation which exists between the members of these groups on other issues at council level at least. Problems with respect to these matters have arisen in 1992, 1996, 2000, 2001 and may well arise in the current year, 2002.

24. Since 1981, the decision with respect to the approval or rejection of Group C nominees has been delegated by the General Assembly of the Presbyterian Church to a commission, formerly known as the "Commission to Take Charge of Institutions" and latterly as the "Schools Commission". This delegation, which is made annually, is effected pursuant to the constitution of the Presbyterian Church and no point is taken about it. In October 1986, the delegation contained a direction to the Schools Commission with respect to its functions of appointing Group A members of the school council and of approving or rejecting Group C nominees to the school council. The instruction is as follows:

"... instruct the Commission that in making appointments to Groups `A' and `C' of the Councils of those schools [ie Scotch College and PLC] it should appoint persons committed to upholding the trusts on which those schools are held and who have a vital church connection."

This instruction has been repeated in each of the subsequent annual resolutions of delegation made by the General Assembly. The expression "vital church connection" has been understood by the Schools Commission as requiring that the nominee be a person who is an active member of a congregation or parish and a regular attendee of the services of that congregation or parish. The congregation or parish in this requirement is not limited to a congregation of the Presbyterian Church: I was told that the view of the Schools Commission and of the Presbyterian Church was and is that a nominee would satisfy this requirement if they were an active member of a congregation or parish of any Christian church.

29. In 1992, the question of vital church connection was raised for the first time as a bar to the approval of a Group C nominee. In that year, the school council nominated Mrs Pam Marshall as a Group C member. The Schools Commission adopted the course of neither approving nor rejecting her. This was because she lacked a vital church connection. The Clerk of the General Assembly and the sixthnamed plaintiff, the Very Reverend Edward Ross Pearsons, said that he did not have a detailed recollection of the matter other than she was not rejected so as not to disturb relations between the Council and the Assembly. The effect of this decision was that she was deemed to be approved pursuant to Article 33(5). I note that in the 1996 year she was approved and appointed by the Assembly. In 2000, however, she was neither approved nor rejected and, accordingly, remained a member of the school council.

32. By letter dated 3 January 1996, Reverend Pearsons wrote to the chairman of the school council expressing the concern of the Schools Commission that there was not "a direct Presbyterian presence in Group C". He noted that the new council members nominated by the Schools Council in 1995 had "an active Church association" but he requested the Council to have regard to the need to restore "a realistic Presbyterian presence" in future nominations. The Council chairman, responding, indicated that he did not see it as a proper exercise of the nominating responsibilities of council that the retiring school council should only consider for nomination persons with a vital church connection.

35. Among the Group C candidates submitted for approval for the year 1996/7 was Dr Jill Spargo. Reverend Pearsons informed the school council by letter dated 17 September 1996 that the General Assembly "declined to appoint" her as she did not have a vital church connection. The terms of this letter were not expressed as indicating an affirmative decision to reject and so Dr Spargo was also treated as having been neither approved nor rejected and was therefore deemed to have been approved by the application of the default provisions of Article 33(5) and, in due course, appointed pursuant to the default provision of Article 33(7). In each of the following years, the Schools Commission has neither approved nor rejected Dr Spargo, taking the view that she should be permitted to remain on the school council under the default procedures notwithstanding her want of a vital church connection "so as not to cause ill-feeling".

38. And so things stood until 1999. On 22 July, shortly before the school council met to consider its nominations for that year, its chairman wrote to the Clerk of the Assembly asking that the Assembly modify its instruction to the Schools Commission so that the absence of a vital church connection should not bar an otherwise appropriate person from appointment as a Group C member of the school council. By letter dated 22 December 1999, the Clerk advised that the Assembly declined to modify its instruction. The letter goes on to include the following statements:

"The General Assembly is mindful that the membership of the Scotch College Council should contain a range of abilities so that good governance will continue in the life of the Council. However the General Assembly is of the opinion that not only do people appointed to the Council need to bring the various professional attainments, but that a commitment to the Christian faith which is demonstrated in a vital Church connection is also important."

42. The issue came to a head in mid-2000 when Group C nominations were considered by the school council for the year commencing 1 November 2000. Two serving Group C members did not offer themselves for nomination and re-appointment. The remaining five Group C members included Dr Spargo and Mrs Marshall. On 23 August 2000, the school council resolved to nominate the existing five members and also Mrs Susan Hughes who had a history of association with parents' activities and the school but who did not have a vital church connection. It also resolved to nominate Mr Graham Tuckwell whose qualifications included such a connection.

45. By letter dated 11 September 2000, the Assembly advised the school council that Mrs Hughes was rejected. Mr Tuckwell was approved and Mrs Marshall and Dr Spargo were neither approved nor rejected.

48. On 11 October 2000, the school council resolved to submit as its second-round nominee Mr Michael Sim. This nominee was also rejected and the school council was so advised by letter by 8 November 2000. This rejection was on the basis that the nominee lacked a vital church connection.

51. On 22 November 2000, the school council resolved that the thirteenthnamed defendant, Mr John Simpson, should be its third round nominee and the Assembly was so advised by letter dated 23 November. On 20 December 2000, this nomination was likewise rejected. Since it had already rejected the school council nominees on two occasions, the Assembly was obliged pursuant to Article 33(6)(ii) to provide particular grounds of rejection. By letter of the same date, the following grounds were provided:

"In consideration of the suitability of the nominee to act as a member of Group C of the Council, it is not only permissible but necessary for the General Assembly to keep in mind the need of the College to fulfil the Christian aspects of its objects. Whether Mr Simpson is reasonably suitable to act as a member of the Council must involve an assessment by the General Assembly of Mr Simpson's suitability to assist in the provision of an education which is not purely secular. Although Mr Simpson may be entirely suitable in every other respect, he is rejected as not reasonably suitable to act because of the absence of a vital Church connection. In making this decision the General Assembly has regard to the composition of the remainder of the Council and takes the view that the presence on the Council of another person who is not a practising Christian and does not have a vital Church connection in replacement of one who had will significantly hinder the ability of the Council as a whole to provide a Christian education."

55. It will be recalled that Article 33(6)(i) prohibits the Assembly from rejecting a nominee after the first two, unless the nominee rejected is "not reasonably suitable to act". The school council took the view that Mr Simpson who, it was agreed, was otherwise eminently suitable to act as a member of Council, did not cease to be suitable by reason of the fact that he had no vital church connection. Having taken legal advice, the council took the position on 4 April 2001 that the rejection of Mr Simpson by the Assembly was invalid and that, by reason of the default provisions of Article 33(5) and 33(7), Mr Simpson was deemed to have been approved and appointed a Group C member of the school council. The consequence of this was that, henceforth, Mr Simpson and Mr Tuckwell as well as the five existing Group C members were treated by the school council as being the Group C members for the year ending 31 October 2001. They attended meetings of the school council in 2001 and participated and voted in its deliberations. Counsel for the plaintiffs told me that, notwithstanding that Mr Simpson's and Mr Tuckwell's appointments to the school council were in issue, his clients did not dispute or call into question the validity or the effectiveness of the acts of the school council in that year notwithstanding that the minutes of the council record that the Group A members did not accept the validity of its constitution.

58. In 2001, the school council again nominated the retiring Group C members, including Mr Simpson, for approval and appointment for 2001-2. The Assembly approved or failed to approve or reject all nominees except Mr Simpson, who was rejected. The school council on 17 October 2001 again nominated Mr Michael Sim, a former Group B member of the council, as its second-round nominee. Mr Sim's nomination was neither approved nor rejected by the Assembly and, accordingly, he was in due course deemed to have been approved on or about 16 November 2001 and to have been appointed on or about 16 December 2001. Mr Simpson was, about that time, nominated by the OSCA as a Group B member of the council to fill a casual vacancy occasioned by the retirement of Mr Robert Rouch in December 2001, and was duly appointed as a Group B member by the Assembly. And so the school council was constituted for the year ending 31 October 2002.

61. In 2002, the conflict has again arisen. At its meeting of 21 August 2002, the school council nominated as Group C members for the year 2002-3, the seven existing Group C members including Dr Spargo, Mrs Marshall and Mr Sim. By letter dated 16 September 2002, the Clerk of the Assembly advised that four of these nominees were accepted. Mrs Marshall and Dr Spargo were neither accepted nor rejected because, notwithstanding their want of vital Church connection, they had occupied positions on the school council for several years. Mr Sim was rejected because he did not have a vital Church connection.

64. On 16 October 2002, the school council resolved that Mr Rouch be its second-round Group C nominee. Mr Rouch had previously served for many years as a Group B member of council prior to his retirement in December 2001. At its meeting on 13 November 2002, the Assembly rejected Mr Rouch on the ground that he was not a vital church member. The school council has not yet submitted its third-round nomination for the year 2002-3. As things stand at present, therefore, the school council continues to include the Group C members who had been appointed for the year ending 31 October 2002.

68. Against this background, on 8 October 2001, the five Group A members of the school council and Reverend Pearsons, as Clerk of the Assembly, commenced this proceeding against the school and 12 other defendants. These 12 defendants include the five Group B members of the school council at the commencement of the proceeding and the five Group C members who were approved or deemed to have been approved and appointed as such, as well as Mr Tuckwell and Mr Simpson who were nominated by the school council in 2000 and who were acting as Group C councillors at that date. Mr Rouch as seventh defendant was replaced by Mr Sim after the commencement of the proceeding to reflect this change in the composition of the school council in December 2001.

71. The plaintiffs seek the following declarations:

"A. A declaration that the purported appointment of the thirteenth defendant as a member of the Council in Group C for the year ended 31 October 2001 was invalid. B. A declaration that General Assembly validly rejected the nomination of the thirteenth defendant as a member of the Council in Group C for the year ended 31 October 2001. C. A declaration that the General Assembly of the Presbyterian Church of Victoria is entitled to reject pursuant to Article 33(6) of the Articles of Association of the First Defendant the nomination of a person as a Group `C' member of the First Defendant's Council on the sole ground that the person lacks a vital Church connection in that the person does not attend Church regularly and is not an active member of a Christian congregation."

76. On behalf of the defendants, it is submitted that I should decline to make any of the declarations sought because they raise hypothetical questions. The period of service of Mr Simpson as a supposed Group C council member expired in December 2001 and the Group C members of the school council, not including Mr Simpson, were validly appointed for the year ending 31 October 2002. I was reminded that no allegation is made of any invalidity in the proceedings of the school council in 2001 of which Mr Simpson and Mr Tuckwell were disputed Group C members. Accordingly, it was said that the declarations sought in paragraphs A and B had no practical import and that the declaration sought in paragraph C was entirely theoretical. It may be, for example, that the third-round nominee to be put forward by the school council for the year 2002-3 will be a person acceptable to the Assembly.

79. At an early stage of the hearing, I expressed some concern that it would be undesirable from a practical point of view for the parties to invest effort and expense in presenting their cases on the merits when the court might not deal with these controversies in the event that I should accept the defendants' submission that the declarations should not be made. I was told that it was the wish of both sets of parties that I hear the evidence and arguments on the merits, and that they wished the court to have all the facts before it before turning to this preliminary question. Counsel for the plaintiffs also urged me, in any event, to venture some remarks about the validity of Mr Simpson's appointment and about the policy of the Assembly as to the requirement of a vital church connection.

82. I mention all of this because I have formed the clear view that the declarations sought are with respect to moot issues and that I should decline to make them. I am conscious of the fact that this may be a disappointment to the parties, certainly to the plaintiffs who approach the court seeking assistance about a problem which is, for them at least, a real one.

85. The attitude of the court, informed by long experience, is that its function is to determine disputes which are attached to specific facts. Otherwise, the dispute is characterised as "not a real question", as "hypothetical" or as "academic"[3]. This is not to say that the facts upon which a declaration may be made must be uncontentious or even presently existing. It is rather that, unless so directed by statute, the court shrinks from giving an advisory opinion. This attitude has been recently affirmed by the High Court[4] which quoted with approval the following passage:

"If... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion."[5]

Inasmuch as declarations A and B seek a determination as to the validity of Mr Simpson's appointment to the school counsel and of his rejection by the Assembly in 2000, they require the court to address issues which are no longer of any consequence. Insofar as they are said to raise more general issues of principle, they, like declaration C, put to the court a truly hypothetical question and one which, in my view, would be inappropriate to answer even if Mr Simpson's status as a Group C member of the school council were still a live issue.

90. It will be recalled that the Articles of Association of Scotch College were hammered out at a time of dispute between competing interest groups. The terminology of Article 33(6) was adopted to resolve a particular controversy as to the selection of the seven members of the school council who are not to be selected by one or other of these groups. It is evident that membership of this Group C was intended not to be in the gift of either of them. That this is the case can be seen not only from the appointment procedures of Articles 33 and 36(c) but also from the procedure for removal in Article 34(f), which requires the resolution of both groups.

93. Article 33 addresses the problem in two ways. First, the candidate for appointment is not a nominee of the OSCA nor of the Presbyterian Church; he or she must command the support of a majority of the retiring school council whose members presumably reflect a variety of attitudes and experience and include persons nominated by the contending groups. Second, the interests of the Presbyterian Church are further preserved by its right to reject the candidate, and, subject to the qualification in Article 33(6), to do so again and again, until a person acceptable to it is put forward by the school council. Absent this qualification, the nominating and rejecting process could continue until the school council on the one hand, or the Assembly on the other, modified its position, if ever.

96. The prospect of such an undesirable stalemate is then addressed in the qualification which lies at the heart of this litigation. This prohibits the Assembly from exercising its right of rejection for a third nominee and thereafter unless "the nominee or nominees rejected is or are not reasonably suitable to act". This expression is not further defined and is perhaps incapable of further definition. The introduction of this criterion, together with the requirement that the grounds of rejection be stated, shows that the Assembly is not at large in its power to reject a third and subsequent nominee.

99. The terms in which the criterion is expressed require that the question of reasonable suitability be addressed in terms of characteristics, qualifications and limitations of the nominee in question, and against the expectation that this nominee, if appointed, will be required to perform functions as council member. The right to reject arises only where the nominee is not reasonably suitable to act as such. It was common ground that, since Scotch College is a Christian school, or a Presbyterian school as the plaintiffs would have it, the religious attitudes, public profile and church affiliation of the nominee may have a role to play in determining the reasonable suitability of the nominee, and in a way which might be different in a secular school. These are matters which might properly be considered in assessing the larger question of the nominee's reasonable suitability to act, but it is necessary to bear in mind that Article 33(6)(i) is not directed solely to the nominee's religious attitudes or practices any more than it is directed to their school connection or their financial, administrative or other capacities. Attention is directed to the particular person who has been nominated and to their every qualification and limitation which might bear upon their reasonable suitability to act.

102. The terms of the suggested declaration C show how inappropriate it is to ask the court to act in the present case. The expression "vital church connection" which it contains is susceptible to differing interpretations so that the declaration sought may give rise to further disputation in a given case. Further, the declaration would draw a distinction between this characteristic of a nominee and all other characteristics which might render that person not reasonably suitable to act. To my mind, the evaluation of the nominee must depend upon a consideration of all of their relevant characteristics, assessed in the light of the general criterion stipulated by Article 33(6)(i), and not by the application of some other criterion which is not found in the article. Such an evaluation cannot be made otherwise than by reference to a particular case.

105. It is for this reason, albeit with considerable reluctance, that I decline to consider the proposed questions in the abstract. Their determination must await a specific example. Accordingly, the application for declaratory relief will be refused.

[1] Attorney-General for the State of Victoria v Handley, Proceeding No. 3271 of 1977.

[3] In re F (Mental Patient: Sterilisation) [1991] UKHL 1; [1990] 2 AC 1 at 82, per Lord Goff.

[4] Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 at 356-7.

[5] Zamir & Woolf, The Declaratory Judgment (2nd ed, 1993) p. 132.