His Honour held that on the facts, had the plaintiffs in that case received notice they would not have attended and refused any injunction.
33 There seem to be two messages flowing from this passage, (1) that where a person knows that a committee meets at a regular time and knows that the committee at its next meeting is going to consider his problem, it is unnecessary to give a formal notice specifying the time and date of hearing; (2) that a person may dispense with the requirement to be notified of the time and place of hearing.
34 As to the first proposition, this fits in well with the large amount of judicial utterances that one does not measure principles of natural justice and whether there has been a fair hearing by fixed rules but rather looks to see whether in any particular case in all the circumstances fairness has been done.
35 In my view, when a committee tells a person that it is willing to meet at any time between 1 and 10 November at a time and place at his convenience and also informs him that the committee will be making a recommendation to its superior body which is meeting on 17 November, that is sufficient notice of the time and place of meeting.
36 As to the second matter, there are a number of cases in the conveyancing sphere where a person has dispensed with the necessity of the other party performing a condition such as attending on completion; see eg Foran v Wight (1989) 168 CLR 385. I would be reluctant to apply that line of authority except in a clear case because it is more likely in the present type of situation for a person threatened with a committee hearing which will threaten his or her ability to earn their livelihood and who has previously decided not to say anything, may repent at the last moment.
37 Thus, in my view my decision that there has been no breach of procedural fairness in not notifying the actual date of meeting is based on the first ground.
38 Other matters of procedural fairness were faintly argued before me but in the end the plaintiff's case on natural justice, that he was denied a fair hearing, came down to his not being notified of the time and place for hearing. I have found that against him and accordingly I have found there is no problem with the process before the Sub-Committee.
39 (2) I now turn to the appeal.
40 I have already set out section C of the guidelines. Omitting surplus words, "The accused may appeal against the process or decision of the committee for the ministry to the Baptist Union Executive who may appoint a committee of three persons to determine the matter." The honorary legal adviser took the view, and communicated this to the plaintiff's solicitors, that the appeal was not an appeal by hearing de novo but there had to be something in the process before the Committee for the Ministry or the decision of the Committee for the Ministry that was erroneous. He put that if, on the material before it, the Committee for the Ministry had come to the right decision, then the appeal should be dismissed.
41 If this were the nature of the so called appeal it would be of little worth. Moreover, for all intents and purposes the Court would not be affected by the fact that there was an appeal into permitting some indiscretions at the first instance stage as it often does if there is a meaningful appeal.
42 The words of section C could mean what the honorary legal adviser said they meant, but it seems to me that on a purposive construction and reading the document as a whole, the appeal must be wider than this. The ultimate decision is to be made by the General Assembly of the Church. The Committee for the Ministry sends on a recommendation. The guidelines seem to be based on the premise that the proper investigation will be done by the Sub-Committee and the Committee for the Ministry and that it would not be left to the Assembly to actually hear the material as well as make the final decision. Accordingly, it seems to me that the guidelines including the appeal provisions must be construed in a way that there is full opportunity for reviews to take place before the matter goes to the General Assembly.
43 It seems to me that even if the Sub-Committee made its decision on only hearing one side (because the other side did not respond), if the appeal committee hear that the "accused" now wishes to put forward material, then for the good of the Church and the proper working out of a disciplinary procedure, that material should be entertained. It may be, as the honorary legal adviser said, that the appeal committee (standing in the shoes of the Committee for the Ministry), may consider it appropriate to send the matter back to the Sub-Committee, but I do not think that the material can just be ignored.
44 The honorary legal adviser may well be right that the appeal hearing is not a hearing de novo. However, it is a supervisory appeal and if the supervising committee considers that in justice and fairness and in the spirit of Christianity the matter should be referred back to the Sub-Committee to consider further material, then it should be at liberty to do so.
45 (3) It is clear that an appeal committee may, like any tribunal, consider that sufficient time has gone by for an appeal to be brought on and may give directions including directions that if something does not happen by a certain time it may dismiss the appeal. However, what happened in the present case is that it was not the committee that made a decision to set a deadline or to say that it was assumed that the appeal was not proceeding, but it was counsel assisting. Even though one applies a relatively lax approach to technicalities, it does seem to me that it was beyond the scope of counsel assisting to (a) set the deadline; and (b) indicate that he assumed that the appeal was not proceeding. Counsel assisting is there to assist a committee, particularly a non-legal committee, with proper procedure. He or she can make recommendations and submissions, but the decision has to be the decision of the appeal committee.
46 In the instant case the appeal committee at no stage made the decision that the appeal was dismissed.
47 Furthermore, not even the appeal committee would be empowered to say that the appeal was assumed to be at an end. One would have expected at the very least it would have had to call upon the appellant to show cause why it should not formally dismiss the appeal. But then one has got to look to see what did happen.
48 At about 3.15 pm on Tuesday 28 March 2006, the honorary legal adviser wrote that the deadline had passed, there had been no material and he assumed that the appeal was abandoned. At 3.38 pm on the same day, four statements arrived. The honorary legal adviser said he assumed these had been held back deliberately, but there was really no material from which that could be concluded on even the balance of probabilities. An equally available scenario was that Mr Melick of counsel who had come into the matter on Thursday 23 March had advised the plaintiff that presumably the advice he had previously been getting from lawyers that he should not co-operate with the inquiry was completely wrong and that he should do so. Unfortunately, even then the plaintiff's solicitors made an error in omitting to furnish the material when they said they would on Monday 27 March.
49 However, justice in this sort of case is not to be meted out in coffee spoons. In fairness, material submitted late, but before a final decision is considered, usually needs to be assessed, Automatic Ticket Research (Vic) Pty Ltd v Legal Aid Commission of NSW (1991) 22 ALD 590 (NSWSC Rolfe J). Had a proper notice been given by the committee that it would meet on a certain day and would dismiss the appeal if there was no material before it then, the four statements would have been provided to it. What it would have done with the four statements is another matter. It may have acted on the erroneous advice of the honorary legal adviser and considered that as the material was not before the Sub-Committee it would disregard it. On the other hand, it may have acted properly in accordance with law and considered the contents of the statement and made a decision either that the matter should go back to a Sub-Committee for redetermination in the light of the further material or make some other determination.
50 In my view the plaintiff's appeal is still on foot and it is appropriate to make a declaration to that effect.
51 (4) It follows from what I have said before that in one respect, and in one respect only, the plaintiff should succeed in that there should be a declaration that his appeal to the Baptist Union Executive is still on foot.
52 I have thought hard and long as to whether, in my discretion, I should make such a declaration. The rule for almost all professions is that a person, when their fitness to continue in practice is questioned, must co-operate with the professional body entrusted with determining such matters; see eg in the case of solicitors Re Veron; Ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136.
53 In Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107, a case involving disciplinary action taken against a lay officer of the Seventh Day Adventist Church, I said at [126]:
"I should note, that early on in the investigation, the plaintiff took the position, which he says was a result of legal advice in not co-operating in the investigation and waiting until formally informed of the precise allegations. This was a dangerous path to take."