Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75

Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 - VSCA 2014 case summary — Zoe

[47]

The effect of this evidence was to demonstrate that, despite the meaning ascribed to the doctrine of plenary inspiration by Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep, and Dr Adam, the doctrine of plenary inspiration is not interpreted by adherents of the Christian Brethren religion as requiring a literal reading of all passages in the scriptures. Whilst they differ from some other Christian denominations in which matters in the scriptures they consider require a literal interpretation, the Christian Brethren too interpret some passages from the scriptures in the light of their understanding of the historical and cultural conditions prevailing at the time.

I accept Dr Black's evidence that although scripture is the source of doctrine, not all that is said in scripture is doctrine. I accept his evidence about the content of the fundamental doctrines of Christian religions, and the consistency of doctrines in the creeds and the statement of fundamental beliefs and doctrines in the 1921 Trust Deed. I consider compelling his conclusion that the absence of any reference to marriage, sexual relationships or homosexuality in the creeds or declarations of faith which Christians including the Christian Brethren are asked to affirm as a fundamental article of their faith demonstrates the Christian Brethren beliefs about marriage, sexual relationships or homosexuality are not fundamental doctrines of the religion.

In my view, when proper regard and deference is had to the evidence of Mr Rowe and Ms Mustafa, Mr Buchanan and Mr Keep on this issue, it is not the doctrine of plenary inspiration itself, but the manner in which it is interpreted and applied to particular passages from the scriptures by the Christian Brethren which gives rise to their beliefs about marriage, sexual relationships or homosexuality. In particular, it is their application of the doctrine of plenary inspiration that informs their belief that it was God's will that sexual activity should be expressed only within the boundaries of a marriage between a man and a woman, and that God disapproved of all sexual activity outside marriage, whether heterosexual or homosexual.

I am satisfied that Mr Rowe believes that homosexuality, or homosexual activity is prohibited by the scriptures, and so is against God's will. I am satisfied that his belief is based on the manner in which he interprets or applies the doctrine of plenary inspiration. I am satisfied Mr Rowe, Ms Mustafa, Mr Buchanan and Mr Keep's evidence is representative of the range of beliefs held by members of the Christian Brethren in Victoria about marriage, sexual relationships and homosexuality. However, I am not satisfied those beliefs constitute a doctrine of the religion of the Christian Brethren, as I have defined that term.[167]

[191]

[T]here would be little sense [in deeming a corporation to be a legal person] unless there were also rules to tell one what acts are to count as the acts of the company. It is therefore a necessary part of corporate personality that there should be rules by which acts are attributed to the company. These may be called 'the rules of attribution'.

The company's primary rules of attribution will generally be found in its constitution, typically the articles of association, and will say things such as 'for the purpose of appointing members of the board, a majority vote of the shareholders shall be a decision of the company' or 'the decisions of the board in managing the company's business shall be the decisions of the company'. There are also primary rules of attribution which are not expressly stated in the articles but implied by company law, such as

the unanimous decision of all the shareholders in a solvent company about anything which the company under its memorandum of association has power to do shall be the decision of the company: see Multinational Gas and Petrochemical Co. v. Multinational Gas and Petrochemical Services Ltd.[212]

These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.

...

The company's primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person 'himself,' as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company?

One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, i.e. if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.[213]

[218]

I am not persuaded that the section should be construed in the way contended for by the appellants. It is significant that the words 'acts in contravention' are used and not the word 'contravenes'. This suggests to me that parliament was seeking to bring s 34 into operation whenever the acts of an employee or agent would have contravened the Act if committed by the employer or principal. The words would, of course, also include the case where the employee or agent actually contravenes a provision. It seems to me that this construction would promote the purposes and objects of the legislation (s 35 Interpretation of Legislation Act 1984).

... If s 34 of the Act is not available to make the employer vicariously liable and the employee liable, then s 21 of the Act would be confined in its operation to situations where the employer is the person in the position to discriminate in relation to the employment - for example, a sole trader who employs a number of people. Section 21 would have little or no operation in the public sector (although the Act (s 5) expressly binds the Crown) or in the private sector in relation to large corporations. In essence, the interpretation argued for by the appellants would have the effect of relieving employers of any liability for discrimination against staff in their employment where an employee had the responsibility to make the employment decisions. Further, that employee would not be liable for any discrimination against other employees on grounds of race, sex, religion or politics because, on the interpretation of the appellant, such an employee would not be in breach of s 21 of the Act. Such an interpretation would severely limit the operation of legislation and deprive it of any significant impact in the community. It is true, as counsel for the General Manager argued, that this interpretation of s 34 would not prevent it operating in relation to s 20, dealing with sexual harassment, and sections where the individual whose conduct is proscribed is referred to as a 'person'. But it is difficult to point to any reason why an employer and employee should be capable of being liable in those situations and not under s 21 of the Act.

The alternative interpretation, ... will enable the Board to enforce s 21 against all employers and employees and compel both to address discriminatory behaviour in the work place. It is, accordingly, the interpretation to be preferred.[242]

[234]

In some contexts, particularly in the criminal sphere, it is not permissible to 'make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts', to use the words of Dixon J in Mallan v Lee.[252] However, the High Court distinguished Mallan v Lee in Hamilton v Whitehead.[253] There a company was convicted of offering interests in a managed investment scheme to the public in contravention of statutory company law. Its managing director, Mr Whitehead, who placed an advertisement relating the scheme and made contact with potential investors, was charged with involvement in the company's contravention. The trial judge noted that the prosecution had relied on the 'directing mind and will' theory and had contended that Mr Whitehead's actions were the actions of the company, and in those circumstances he said it would be wrong and oppressive to prosecute Mr Whitehead personally for the identical acts and decisions that were relied upon as acts of the company. But the High Court (Mason CJ, Wilson and Toohey JJ) held that Mr Whitehead had been properly charged with involvement in his company's contravention and should have been convicted. The statutory provisions under which the company had been convicted prohibited 'a person' from issuing or offering interests. In the High Court's view, those provisions were directed to the company, which was the person who issued and offered the interests. In contrast with Mallan v Lee, the company's liability was not vicarious liability for acts performed by a servant, but was direct liability. Mr Whitehead was the embodiment of the company, and the company was directly rather than vicariously liable as a principal by virtue of his conduct. Consistently with that conclusion, Mr Whitehead's conduct made him liable as an accessory, under statutory provisions defining liability for involvement in the contravention. The High Court said there was nothing conceptually wrong with treating the managing director as having acted in two capacities, first as the embodiment of the company and second as an individual knowingly concerned in the company's acts.[254]

[466]

567 The absence of advertising of their religious position and the absence of enquiry about the use of the camp site only support a conclusion that the applicants had no objection to a person possessing any particular attribute using the facility. The Tribunal had found that the belief of the applicants and other adherents to the faith of the Christian Brethren did not require them to avoid contact with persons who were not of their faith or did not subscribe to their beliefs about the Divine's will in respect of sex and marriage. The Tribunal found that none of those who testified as to the religious principles or beliefs of the Christian Brethren suggested that there was an obligation to interfere with or obstruct the expression by another person of their sexual preference. The Tribunal found there to be a consistency of acknowledgement that an adherent to the Christian Brethren religion should be tolerant of differences and, in particular, of people who might be regarded as sinners. That belief explained why CYC did not make inquiry as to the sexual orientation of every person wishing to use the camp site. None of these matters bore upon the necessity of the applicants to refuse the booking. What enlivened the applicants' obligation to refuse Cobaw the use of the facility was the disclosure of a particular proposed use of the facility for the purpose of discussing and encouraging views repugnant to the religious beliefs of the Christian Brethren. The purpose included raising community awareness as to those views. It was the facilitation of purposes antithetical to their beliefs which compelled them to refuse the facility for that purpose. To the applicants, acceptance of the booking would have made them morally complicit in the message that was to be conveyed at the forum and within the community. How they would have perceived their complicity, had they not refused the booking, was central to the issue. This consideration was not addressed by the Tribunal because of its conclusion that their religious belief did not necessitate discriminatory conduct in pursuing their commercial activity.

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Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 (16 April 2014)