BELPERIO & ORS v ITALIAN AOG PENTECOSTAL CHURCH No. SCGRG-97-1259 Judgment No. S188 [1999] SASC 188

Supreme Court of SA|1999-05-13|Before: Olsson J, Duggan J

BELPERIO & ORS v THE ITALIAN ASSEMBLY OF GOD PENTECOSTAL CHURCH INC & ORS

DUGGAN J. These proceedings arise out of a dispute between two groups within the membership of the Italian Assembly of God Pentecostal Church Incorporated. The church conducts religious services at premises at St Peters. It is incorporated under the Associations Incorporation Act 1985.

The proceedings were commenced by eight members of the congregation, but two of the plaintiffs successfully applied for their names to be struck out as plaintiffs at the hearing. The remaining plaintiffs challenged the actions of three of the defendants who purported to suspend them for misconduct. These defendants are deacons of the Church and it is alleged in the amended statement of claim that, in purporting to suspend the plaintiffs, they were acting contrary to the Constitution, thus rendering the suspensions invalid. The plaintiffs also complain of the lack of opportunity to make submissions prior to the suspensions, a factor which they claim resulted in a denial of natural justice.

It is further alleged that the defendant Luigi Verlingieri acted as pastor of the Church when he had not been validly appointed to that position. The amended statement of claim seeks a declaration that Mr Verlingieri is not the pastor of the Church and further declarations that the plaintiffs have at all times remained active members of the Church with the voting rights provided for in the Constitution.

Prior to the hearing Olsson J ordered that the trial proceed on affidavit evidence only, subject to the calling of such oral evidence as might be permitted by the trial judge. At the trial I granted applications for evidence to be given on certain limited issues by Mr Verlingieri and one of the plaintiffs, Mr Guglielmucci.

Before dealing with the issues raised at the hearing, it is appropriate to have regard to some of the provisions in the Constitution which regulate the governance of the Church. The Constitution provides for a Board of Deacons of not less than three members (Article VIII). The Constitution refers to the Association as "the Assembly" and Article VIII goes on to provide that the pastor and the Board of Deacons are responsible for the spiritual and administrative management of the Assembly.

"The Pastor shall be considered as the spiritual overseer of the assembly and shall direct all of its activities. He shall be the president of the corporation and shall act as chairman of all the business meetings of the assembly and of the Board of Deacons. He shall be an ex-officio member of all committees or departments. He shall provide for the services of the assembly and shall arrange for all special meetings, conventions or revival campaigns. No person shall be invited to speak or preach in the assembly without his approval."

Article XV regulates the election of officers and provides:

"(1) The Pastor may be elected to serve for one or more years or for an indefinite time as may be determined at the time of his election by the members of the Assembly. He shall be nominated by the Board of Deacons, or by secret ballot. Election shall be by secret ballot at the annual business meeting of the Assembly or at a special meeting called for that purpose. A two-thirds majority vote of all votes cast shall be required to constitute an election. The Pastor once appointed shall be the Chairman of the Assembly. (2) The Board of Deacons which [sic] shall consist of not less than three members of the Assembly, and may be nominated by the Pastor, or by a nomination Committee, or from the floor, and shall be elected by a majority vote at the general meeting for elections. The term of office for the Board of Deacons shall be for four years from the date of election."

Article XVI(1) deals with the topic of vacancies and provides, in part, that:

"Where a vacancy in the pastorate shall occur, a supply shall be arranged for by the Board of Deacons until a pastor shall be chosen as prescribed in (a) of this Article. In the case of a pastor's removal from office, a report of such action shall be made to the District Officiary."

The following facts are established by the affidavit evidence. The Italian Assembly of God Pentecostal Church was founded in the mid-1960s. Mr Guglielmucci was a foundation member of the Church and he was its elected pastor from its inception until April 1995. At the annual general meeting which took place on 31 July 1994 the defendants Messrs Verlingieri, Morganella and Zotti were elected as deacons along with Mr Michele Guerrera and Mr Santino Fileti. Mr Guglielmucci stated in his affidavit that in about October 1994 Mr Verlingieri suggested to him that he was too old to continue as pastor and that a younger person was needed to fill the position. Somewhat reluctantly Mr Guglielmucci agreed and he resigned on 12 April 1995. Mr Guglielmucci said that from this time on Mr Verlingieri adopted a more prominent role in the Church and there was a division within the Church membership between those who supported him (Mr Guglielmucci) and those who supported Mr Verlingieri.

Mr Guerrera led the Church services for approximately nine months after Mr Guglielmucci's resignation and on 7 January 1996 Mr Vincenzo Borromeo was appointed pastor. Mr Borromeo resigned this position on 31 December 1996. A special meeting of the Church was called on 12 January 1997 and Mr Verlingieri told the meeting that the Board of Deacons would attempt to find a new pastor. At the time of the meeting the deacons were Messrs Verlingieri, Zotti and Morganella. Mr Verlingieri has conducted services since the meeting. He stated in evidence that attempts had been made to find a new pastor, but they had not been successful.

The first question for consideration relates to the question of the status of Mr Verlingieri. His present role commenced on 1 January 1997 when the Board of Deacons, comprising Messrs Morganella, Verlingieri and Zotti, met to discuss who was to be responsible for various tasks within the Church. The minutes record the following:

"After having received the phone call from Giuseppe Schirripa saying that the board of deacons should never put Elio Guglielmucci as pastor, the behaviour of brother Elio was discussed and how he was pressing to conduct the service on Wednesday night and to fix and clean the church. Therefore after much discussion it was unanimously decided that, momentarily, no one besides the board of deacons should conduct the services. It was therefore decided that Luigi Verlingieri would take care of all church activities as Pastor, Secretary and Deacon and Nicola Zotti would function as President and Deacon while Ralph Morganella would function as Treasurer and Deacon."

There is evidence before me that, after this meeting, Mr Verlingieri signed various documents as "Pastor". However he said in evidence that he was the acting pastor. He denied claiming that he was the pastor. There is no specific reference to an "Acting Pastor" in the Constitution. However I have set out above the provision in the Constitution which requires the Board of Deacons to arrange for "a supply" until a pastor is elected in the manner prescribed.

It is common ground that the Board of Deacons could not appoint Mr Verlingieri or anyone else to be the pastor of the Church. Part of the relief sought by the plaintiffs is an injunction that Mr Verlingieri be restrained from acting as, or holding himself out as, pastor of the Church. However, having heard him give evidence and after considering the other material before me, I am not satisfied that Mr Verlingieri has consciously held himself out to be the holder of this office. He agreed that he signed some documents as pastor, but he said that at all times he considered himself to be in an acting capacity. The mere fact that he failed to use the word "acting" in those documents cannot be decisive of an intention to assume the mantle of pastor. I accept his evidence that in the course of carrying out his present role he has assisted in attempts to attract a pastor to take over.

After hearing the evidence of Mr Verlingieri and after considering the minutes of the meeting of 1 January 1997 I have reached the conclusion that Mr Verlingieri was appointed to perform the duties of pastor until such time as a permanent pastor could be appointed. Furthermore, I am of the view that the making of a temporary appointment to exercise the functions of pastor was not only permitted by the Constitution, but the Board of Deacons was under a duty to make such arrangements (Article XVI(1) supra).

Mr Apps, for the plaintiffs, argued that a person appointed under this provision could conduct religious services in the Church, but could not become involved in other aspects of the pastor's role such as taking part in disciplinary procedures. This was put as part of a wider argument that the laying and hearing of charges requires the involvement of both the pastor and the Board of Deacons and that the disciplinary action taken against the plaintiffs was invalid because there was no properly appointed pastor at the relevant time.

In order to deal with these submissions it is necessary to consider first the effect of arranging a supply pursuant to Article XVI(1). Examples of the use of the word "supply" in a context relevant to the present case are to be found in The Oxford English Dictionary (12th ed) vol 17 p254 where the word, in reference to persons, is given the meaning -

"The act, or position, of supplying a vacancy, or officiating temporarily instead of another, esp. as a Minister or Preacher."

The New English Dictionary (1919) vol IX p206 refers to the word in this context as meaning the occupation of a church or pulpit as a substitute, or temporarily.

It is clear that the word is used in this sense in the Constitution. Furthermore, there is no basis in the Constitution for restricting the range of pastoral duties which might be performed by such a person. The obvious intent of the Constitution is to ensure that the duties ordinarily performed by the pastor should not be neglected during any vacancy. No satisfactory reason was advanced as to why duties of an administrative or disciplinary nature should not be included along with those associated with worship. The only point of distinction suggested by Mr Apps was that the disciplinary function involved serious matters. However an obvious response arises from the fundamentally important nature of superintending religious observance in the Church. I agree with Mr Manetta, for the defendants, that it would go a long way to defeat the purpose of appointing a stand-in if the person appointed could not carry out all the duties of the pastor as set out in the Constitution, such as the introduction of new members, facilitating the transfer of members from one congregation to another and authorising the sale of property.

It follows, in my view, that upon being appointed to provide a supply pursuant to the Constitution, Mr Verlingieri was empowered to assume the role and functions which would ordinarily be exercised by the pastor in relation to disciplinary matters. I have found that Mr Verlingieri did not consciously hold himself out as pastor and it has been agreed by the parties, including Mr Verlingieri in his evidence, that he is not the pastor. His evidence was given in the presence of representatives from both sides of the dispute and I do not see any practical need to grant an injunction restraining him from acting as, or holding himself out as, the pastor.

However there is one matter which followed upon Mr Verlingieri's appointment to supply the services of pastor which does give rise to some concern. At the meeting of the Board of Deacons held on 26th June 1997 when the plaintiffs were suspended, the minutes record a resolution in the following terms:

"From the majority of the board of deacons it was decided that, for a period of 12 months, Luigi Verlingieri will function as a Deacon, Pastor and President of the church."

Whilst I do not think that this resolution affected the validity of Mr Verlingieri's appointment to provide a supply, it is contrary to the intent of the constitution to assume that there could be an appointment for a fixed term as opposed to a temporary appointment pending the election of a permanent pastor. Mr Verlingieri said in evidence that the resolution meant he was to remain in the position for no more than 12 months. Whatever the explanation, the reference to twelve months is inappropriate and this is one of the matters which has led me to express the view later in these reasons that elections of officers, including that of pastor, should take place as soon as possible.

Mr Apps advanced a further argument that, even if Mr Verlingieri could take part in the disciplinary process, the Constitution required the pastor and at least three deacons to participate in the exercise of this function. At the relevant time there were only two deacons in addition to Mr Verlingieri. I have set out above the provision in the Constitution which stipulates that there is to be a Board of Deacons of not less than three members. There were three deacons at the time the disciplinary proceedings commenced. There is nothing in the Constitution to prevent a deacon being appointed to provide a supply of the functions of pastor.

"A majority present at any meeting of the Board of Deacons shall constitute a quorum, provided all the members have been notified to be present."

The Constitution also provides that if the Assembly is temporarily without a pastor, the Board of Deacons can provide its own chairman from those on the board in order to transact business for the Assembly.

It is convenient at this point to refer to the various articles in the Constitution which provide for the disciplining of members. There is a lack of cohesion in the provisions relating to the topic. Article XVII(3) contains the following relevant provisions:

"(a) Any member of the Assembly who shall wilfully absent himself from the regular services for a period of three consecutive months, or who shall be under charges, shall be temporarily suspended from active voting membership pending investigation and final decision in his case. (b) Unscriptural conduct or doctrinal departure from the tenets of faith held by this Assembly shall be considered sufficient grounds upon which any person may be disqualified as a member. Matt. 18:15-18; Rom. 16:17,18; 1 Cor. 5:11; Gal. 1:8,9: Titus 3:1-15."

"The Pastor and the Board of Deacons shall be authorized to revise the membership roll of the Assembly annually, and to remove from the list of active members all names of those who may have become deceased during the year, together with the names of those who may have withdrawn from the fellowship, or who may have fallen into sin and whose lives may have become inconsistent with the standards and teachings of the Assembly. If a name is removed for cause, the one whose name is removed shall be notified of the action of the Pastor and the Board of Deacons through the Secretary. If appeal is made to the Board for reconsideration of their action and reinstatement is not granted, the dismissed member may appeal to the congregation. The action of the Assembly, by majority vote, shall be considered final. Matt. 18:15-17; Rom.16:17,18: 1 Cor. 5:1-5; 2 Thess. 3:6-15."

"The Board of Deacons is chosen to serve the Church and therefore shall act in an advisory capacity with the pastor in all matters pertaining to the assembly in its spiritual life and in the ministry of its ordinances. They shall act in the examination of applicants for membership, and also in the administration of the discipline of the assembly."

Article VII which provides for two classifications of membership, is also relevant to the enforcement of discipline. "Active Membership" is defined in this article so as to include all regular attendees at worship who conduct their lives in accordance with the tenets of Christianity. This category of members constitutes the voting membership of the Assembly.

"Enrolled members who shall without good cause absent themselves from the services of the Assembly for a period of three consecutive months or more, and who cease to contribute of their means to its support, who may be out of harmony with its teachings or its ministries, or who shall be under charges for misconduct, or who may have fallen under condemnation through sinful or worldly practices, shall be considered as inactive members and shall lose their voting privileges until they are restored to the fellowship, their standing to be settled by the definite action of the Assembly through its elected officers."

The Constitution does not require that charges of misconduct are to be laid by any designated officer or officers of the Church. However, the task of hearing such charges seems to be delegated to the Pastor and Board of Deacons. The standing of persons suspended under Article VII or persons who are liable to suspension under the other provisions of that article, are to be "settled by the definite action of the Assembly through its elected officers". The only officers who can be elected under the Constitution are the Pastor and the Board of Deacons. Article XVII(3)(b) contains a power to disqualify from membership of the Assembly, but there is no specific reference to the person or persons who may so disqualify. However sub-par (5) of that article gives the power to the Pastor and Board of Deacons to remove names from the membership roll of the Church for various reasons including misconduct.

I have expressed the view that the person appointed to provide a supply can perform all functions of the Pastor and I can see no reason why Mr Verlingieri could not perform the disciplinary functions to which I have referred as though he were the Pastor. And although the Board of Deacons is to be not less than three, that does not mean that all deacons must be present for a quorum on a particular occasion. Article XIV(2)(supra) is somewhat ambiguous, but it caters for occasions when all the deacons are not present. It is my view that the disciplinary decisions required to be performed by the Pastor and the Board of Deacons were able to be performed by Mr Verlingieri in his "supply" role and the Board of Deacons comprising the other two deacons. Alternatively, even if he is not to be regarded as acting in the role of the Pastor, he can act as a deacon and, when the Pastor's position is vacant, the Board of Deacons can transact business for the Assembly. (Article XIV(2)) I think this provision is wide enough to include disciplinary matters. For these reasons it is my view that the disciplinary functions in the present case could have been performed by Mr Verlingieri in his capacity as pastor along with the other two deacons or, alternatively, by Mr Verlingieri in his capacity as deacon together with the other two deacons.

However, it is my view that the disciplinary procedures were defective for reasons other than the suggested failure to abide by the requirements of the Constitution. Before discussing the further points raised by the plaintiffs it is necessary to return to the history of the matter.

A decision to suspend the plaintiffs was made at a meeting of the Board of Deacons on 26 June 1997. The minutes of the meeting contain the following note:

"Luigi Verlingieri presented the situation of the disorderly and disobedient members in the church and of one accord the board of deacons made the decision to momentarily [sic] suspend the following active members, Elio Guglielmucci and his wife; Giorgio DeCicco and his wife; Michele Belperio; Ilario Fuda, for rebelling against the board of deacons, the constitution and the Bible. Also, Salvatore and Teresa Zucco were suspended as active members because of their absence due to ill health. That is they will remain as inactive members."

Then, on about 30 June 1997, each of the plaintiffs was sent a letter signed by Messrs Zotti, Morganella and Verlingieri. The letter sent to Mr Guglielmucci stated:

"It is very sad that we have reached this point but we cannot go against the constitutional and Biblical regulations. For your unconstitutional conduct (refer article 7, paragraph 2 and article 17 paragraph 1) and your conduct against the Biblical regulations of Hebrew 17, you will be suspended as an active member of the church for an indefinite time until a real repentance in [sic] seen in you and respect and submission towards the pastor and the board and the Bible, for your good and for a good witness of the Gospel of Christ"

The letters to some of the other plaintiffs also contained the following sentence:

"It is already the second time that you have caused conflict towards the Board of Deacons and Pastor as spiritual leaders of the Church."

The reference to "Hebrew 17" is apparently meant to refer to St Paul's Epistle to the Hebrews Chapter 13 Verse 17 which contains the injunction to obey those in authority.

This was the first notice to the plaintiffs of disciplinary action. There had been no prior communication of the nature of the conduct complained of and the references in the letter to "unconstitutional conduct" and conduct contrary to the Epistle to the Hebrews did little to assist in identifying the cause or causes for complaint.

It was argued by Mr Manetta, for the defendants, that the letter was simply a notification of charges and that the reference to suspension was no more than an acknowledgment that members charged with misconduct are suspended by operation of Article VII(2).

Article VII(2) provides for the circumstances in which a member of the Assembly can be reduced to the status of an inactive member with a consequent loss in voting privileges. One such circumstance arises where a member is charged with misconduct. The wording of the article makes it clear that this is in the nature of a temporary suspension pending determination of the charges. The article also provides for suspension from active membership in the following categories:

1 Being absent without good cause from services for a period of three consecutive months or more;

2 Ceasing to contribute to the support of the Assembly to the extent of the member's means;

3 Being out of harmony with the teachings of the Assembly or its ministries; and

4 Falling under condemnation through sinful and worldly practices.

The suspension in these four categories is indefinite and in the nature of a sanction. The standing of members who are suspended is "to be settled by the definite action of the Assembly through its elected officers." In order for there to be a suspension under any of the four categories which I have enumerated there would have to be a finding of misconduct.

In my view, the letters to the plaintiffs dated 30 June 1997 indicate that the deacons had already made a decision on the allegations and that they had decided to suspend the plaintiffs indefinitely as active members of the church. The deacons made it clear that the suspension was to remain until the conduct of the plaintiffs improved. The minutes of the meeting of the deacons at which the decision to suspend was made also refer to an indefinite suspension consequent upon established misconduct. There is no suggestion in either the minutes or the letters of charges to be laid and heard in the future and a temporary suspension being imposed by the Constitution as a consequence.

I have taken into account the fact that the deacons might have had some difficulty in expressing themselves and I have given careful consideration to the argument that they were doing no more than referring to a temporary suspension appropriate to a member facing charges. However, I am confident that this was not the intention of the deacons. It is clear that they had made up their minds about the allegations and imposed an indefinite suspension by way of sanction. The lifting of the suspension was not conditioned upon a resolution of the charges favourable to the plaintiffs, but rather on the plaintiffs mending their ways.

There is further support for the view that the deacons intended to suspend by way of a sanction. In May 1995 eight members of the Assembly were suspended by the same three deacons. The eight members suspended included Mr Belperio, another former pastor and his wife. In a letter dated 28 May 1995 addressed to Mr and Mrs Belperio, Messrs Guererra and Verlingieri set out various complaints in relation to the couple and concluded the letter as follows:

"To such action the board of deacons suspends you as active members according to Article 7 paragraph 2 and Article 17 paragraph 1 of the constitution and according to the Bible in Hebrews 13:17. You will be suspended until it is not [sic] seen in you true remorse, respect and submission to the pastor and board of deacons and to the Bible and the constitution for you [sic] own good and for the good witness of the gospel of Jesus Christ."

The similarity between this letter and those of 30 June 1997 is plainly to be seen and I am firmly of the view that the intention was the same in each case, namely, to provide a sanction for perceived improper conduct and not simply to acknowledge a suspension pending resolution of charges. The 1995 suspensions were not lifted until 1 December 1996. The minutes of the meeting of the Board of Deacons on that date read:

"After having finished the meeting with all the members present the secretary Luigi Verlingieri and Nicola Zotti and Raffaele Morganella had a meeting for a few minutes to discuss the situation of the suspended members, that is, Allessandro Pace and his wife, Giorgio DeCicco and his wife, Elio Guglielmucci and his wife and Michele Belperio and his wife. After having discussed the issue it was decided for the love of peach and for the good of the work of God to resume them as active members with the right to vote for the edification of the body of Christ."

No disciplinary hearing was held between the time of the imposition of the suspensions and the lifting thereof.

If I am correct in holding that the 1997 suspensions were imposed as a sanction, then it must follow, in my view, that the Board of Deacons acted contrary to the rules of natural justice. Section 40 of the Associations Incorporation Act 1985 provides that the rules of natural justice apply to a power of adjudication in relation to disputes within an incorporated association. It was not suggested in argument before me that the rules did not apply to any disciplinary action which might have taken place or which was pending against the plaintiffs.

The requirements needed in order to satisfy the demands of natural justice vary according to the circumstances of the particular case. Those circumstances include the nature of the enquiry and the rules, if any, under which it is to be conducted (Russell v Duke of Norfolk and Others [1949] 1 All ER 109 at 118). In the present matter the effect of the suspensions has been to deprive the plaintiffs of being active members of their Church. They have also been deprived of voting rights in an organisation in which some of the them were foundation members. They have contributed financially to the support of the Church over a considerable period of time. It is not difficult to contemplate the stigma which is attached to a suspension on the grounds of misconduct in the present circumstances. It must be acknowledged that the fairness of disciplinary procedures in this matter is not to be judged according to the standards appropriate to the determination of criminal matters. Furthermore, members of voluntary organisations should be permitted to conduct their affairs in a practical manner. However, minimum observance of the rules of natural justice in this case required sufficient notification to the plaintiffs of the matters complained of and an opportunity to present an answer to those allegations (Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 597). These requirements were not met. I have found that the plaintiffs were not given notification of the allegations prior to receipt of the letters of 30 June 1997 which announced their suspensions. Even at this point there was no attempt to inform the plaintiffs of the nature of the allegations apart from the vague and unhelpful description contained in the letters. The plaintiffs were given no chance to defend themselves. The denial of natural justice which took place must result in the suspensions which the Board of Deacons purported to impose being declared void.

There was a curious sequel to the suspensions. The solicitors for the plaintiffs wrote to Mr Verlingieri on 10 July 1997. The letter alleged that Mr Verlingieri had not been properly appointed as pastor and that he had no authority to issue the notices advising that the plaintiffs were suspended indefinitely. The letter alleged improper motive in the suspension of the plaintiffs. It noted that no particulars of misconduct had been provided.

The solicitors for the defendants responded by letter on 22 July 1997. The letter contained a denial of the assertion that the pastor had not been properly appointed. It claimed that the letters of 30 June had made the nature of the complaint sufficiently clear. The letter went on:

"We invite your clients to make submissions in writing to the Board to explain or mitigate their misconduct and advise that if, after consideration of any such submissions, the Board resolves to disqualify your clients from membership of the Church, your clients will have a right of appeal to the Assembly. However, as your client's would then still be suspended from membership, they would not be entitled to vote at that meeting of the Assembly."

I have said that in my view the Board of Deacons had already purported to judge the matter and impose indefinite suspensions based on their findings. On this view the suggestion by the defendants' solicitors that written submissions be provided was a belated attempt to close the stable door. Furthermore, at the time of this first invitation by the solicitors for submissions, the only details of misconduct made known to the plaintiffs were the bald assertions of unconstitutional conduct and conduct against "Hebrew 17", both of which were unparticularlised. A further unfortunate aspect of the letter is that it seems to assume misconduct and direct attention to the possible sanction which could be imposed as a consequence.

The solicitors for the plaintiffs replied on 23 July 1997 saying they wanted to get further instructions from their clients. The letter continued:

"With respect, the letters of 30th June 1997 are not clear nor sufficient in the particulars provided having regard to:- 1. The seriousness of the action taken against our clients. 2. The fact that some of our clients were the foundation members of the Church. We also point out to you that on our instructions our clients have been denied natural justice. No notice was provided to our clients of the intention to suspend their membership before the action was taken on 30th June 1997. No particulars were provided to our clients prior to the inadequate letters of 30th June 1997. No opportunity was afforded to our clients to make submissions regarding the decision to suspend. We confirm that the letters commence with an assertion that it is not permissible to act contrary to the provisions of the Constitution and the Bible. The letter then proceed to allege conduct (which is not specified) which is asserted to be contrary to Article 7 Paragraph 2 and Article 17 Paragraph 1 of the Constitution and conduct (again not specified) asserted to be contrary to St Paul's Epistle to the Hebrews. Specifically, no particulars have been provided to our clients as to what 'conduct' by them is asserted to be either contrary to the relevant provisions of the Constitution or contrary to St Paul's Epistle to the Hebrews. In your letter of 22nd July 1997 you invite our clients to make submissions in writing to the Board to explain or mitigate the alleged misconduct. We point out however that unless and until the 'misconduct' is sufficiently particularised it is not possible for our clients to respond. As the situation is urgent we request that you arrange for particulars of the alleged misconduct to be provided in writing to us by 5:00 pm today so that we can obtain our clients instructions with respect to all of the matters raised in your letter of 22nd July 1997."

In a facsimile transmission dated 4 August 1997 the defendants' solicitors forwarded a document containing certain particulars of alleged misconduct with the comment:

"We would now ask that you submit to us within the next 7 days your clients' reasons why they should not be disqualified as members of the Assembly. We will convey these reasons to our client. If their decision is adverse to your clients then they, of course, have a right of appeal to the Assembly."

The plaintiffs' solicitors responded by complaining again of the nature of Mr Verlingieri's appointment and alleging consequent invalidity in the disciplinary procedures in which he had participated.

I have said that the matter of disqualification was raised in the letter of the defendants' solicitors dated 22 July 1997. The only article which refers to disqualification is Article XVII(3)(b). This particular article had not been referred to at any time up to the receipt of the solicitors' letter. The power to remove from the list of active members the names of those who may have fallen into sin and whose lives may have become inconsistent with the standards and teachings of the Assembly is to be found in Article XVII(5).

In my view the correspondence of the defendants' solicitors was a belated attempt to rectify proceedings which had been brought to a conclusion with the imposition of a penalty. I hasten to add that in my view there was no impropriety on the part of the solicitors. However, the case which they were putting on behalf of their clients was inconsistent with the manner in which the defendants themselves had dealt with the matter. Furthermore the correspondence could not be viewed as the initiation of fresh charges which might invoke the automatic suspension provisions of the Constitution. The charges referred to in the solicitors' letters were the same as those which had already been dealt with by the defendants.

The matter does not end there because the procedure suggested by the defendants' solicitors was, of itself, contrary to natural justice. The particulars eventually provided by the solicitors consisted of a litany of diverse complaints. They included broad allegations of participating in, or inciting, disturbances at the Church, using vulgar and obscene language on various occasions, engaging in disorderly conduct at different times and failing to submit to the discipline of the acting Pastor and the Board of Deacons.

Specific incidents were referred to in relation to some conduct, but in the case of many of the allegations, the particular incidents complained of were not identified. The plaintiffs have denied the allegations consistently, but no opportunity has been given to them to test allegations in circumstances where credibility may be in issue. Viva voce hearings are not essential in all such cases, but a person accused of misconduct and liable to disciplinary action, must be given a fair opportunity to be heard. In this case the plaintiffs, without being told who was to provide, or who had provided, information to the deacons and without being aware of the full details of the observations on which the allegations were based, were being expected to show cause why the circumstances disclosed by that information should not lead to their disqualification from the Church.

It appears from some of the affidavit evidence that the deacons may have been the informants who supplied the factual basis for the charges. They were also the judges in the matter. They have already expressed their views on the guilt of the plaintiffs in a formal manner and purported to punish them. The plaintiffs have been deprived of access to the evidence upon which they could be disqualified and the information to which they have been allowed access has been restricted to inadequate particulars of the charges. To expect them to meet the charges in a fair and satisfactory manner in these circumstances is unreasonable and contrary to the fundamental requirements of natural justice.

In the light of these findings, I propose to restrict the declaratory relief to a declaration that the purported suspension of the plaintiffs from active membership was void and that they are entitled to the rights and privileges of active members including the right to vote at meetings of the Assembly. This declaration can be made pursuant to s31 of the Supreme Court Act 1935. I make reference to that power because the prayer for relief seeks orders, in the alternative, under s61 of the Associations Incorporation Act 1985. That section enables the Court to order that a member who is expelled, be reinstated as a member of the association if the expulsion was unreasonable or oppressive. No argument was presented to the effect that the purported suspension amounted to an expulsion but, in any event, it is my view that it is more appropriate to make the declaration under s31.

Section 61 of the Associations Incorporation Act also gives the Court wide powers to remedy oppressive and unreasonable conduct. Apart from the possible exception of the performance of the disciplinary function in this case, I do not accept that oppressive and unreasonable conduct in the sense used in s61 has been established. I am not prepared to find that the defendants acted in bad faith. However, it is a matter of some concern that no pastor has yet been appointed and that the election for the Board of Deacons is well overdue. No doubt the fact that this litigation has been hanging over the Church has been an important factor in bringing about that delay. But now that the status of the plaintiffs has been determined, it is essential for the proper functioning of the Church that the appropriate elections be held as soon as possible. To delay them for an inordinate length of time could well lead to a justified claim of oppression and unreasonable conduct.

It is to be hoped that the convening of a meeting of the Assembly in the near future at which all members of the Assembly, including the plaintiffs and the defendants, can vote for the office holders of the church will lead to a fair and democratic resolution of this problem which has prevented the church from functioning in an appropriate and orderly manner.

I will hear the parties as to the formal orders which should be made in the light of these reasons.

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties