Macqueen v Frackelton [1909] HCA 28

Macqueen v Frackelton [1909] HCA 28 - HCA 1909 case summary — Zoe

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its members, both by legislative enactment and consensual agreement. The plaintiff in his induction took a vow by which he acknowledged the Presbyterian forms of government by Sessions, Presbyteries and General Assemblies to be founded upon the word of God, and agreeable thereto; and promised to submit himself to the government and discipline established and practised in the Church, to concur with the same, and never to endeavour, directly or indirectly, the subversion or prejudice of the same ; he engaged to the utmost of his power to maintain, support, and defend the said government and discipline; and he promised to the utmost of his power and opportunity to maintain unity and peace of the Church against error and schism, and that he would follow no divisive courses from the present established doctrine, worship, discipline, and government thereof: [Presby- terian Church Act 1900; Presbyterian Church Temporalities Act 1840; Ann Street Presbyterian Church Act 1889.] Every- body entering the Church is bound by the exclusive consensual jurisdiction conferred on the Church Courts by the rules and laws of the Church. The plaintiff did not obey the rules of the Church; the Church Courts were moved, and from them, being in a position analogous to that of arbitrations, no appeal can be made to the Civil Courts. The only Court to which plaintiff had any right to appeal was the General Assembly of Australia. Furthermore, the plaintiff had no right to appeal to the State Courts because - («) no civil right of his had been infringed by the action of the Assembly ; (b) at the time he brought his action he had not exhausted his right of appeal in the ecclesiastical Courts ; and (c) he had sustained no damage by the action of the defendants - his stipend being derived from the members of the Ann Street Church congregation and not from either the Presbytery or Assembly. The Full Court of Queens- land was wrong in giving the plaintiff leave to apply for relief by way of mandamus, as mandamus will not lie to an ecclesiastical Court. The plaintiff should, in fact, have brought his action for damages; he cannot get a declaration of right such as was made

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"Under Rule 91, the members of the congregation signing the prescribed invitation to the proposed minister are required to "engage to contribute to (his) suitable maintenance as God may prosper (them).' But the rules also seem to contemplate that some more definite engagement will be entered into with reference to the minister's stipend; for Rule 35 provides as follows: - 'When a congregation feels unable to raise the sum it has engaged to pay its minister, and as soon as the deficiency becomes apparent, the congregation must lay before the Presbytery a statement of the circumstances which have caused it. The Presbytery then tnakes the necessary inquiry, and deals with it accordingly. And under Rule 33 the minister's stipend is to be a first charge on the funds of the congregation ; no expendi- ture whatever beyond what is absolutely necessary for the maintenance of publie worship is to be made while the stipend is in arrear ; and the stipend is to be payable monthly. Rule 99 required the proposed minister to give satisfactory answers to certain questions put to him by the Presbytery, which questions include the following: - (3). 'Do you own and believe the whole doctrine contained in the Subordinate Standards of this Church, as enumerated and defined in the Articles of Union, as an exhibi- tion of the sense in which you understand the Holy Scriptures ; and - as such - a confession of your faith? And do you engage firmly and reasonably to adhere thereto, and to the utmost of your power assert, maintain, and defend the same, and the purity of worship as presently practised in this Church? And, (4). "Do you acknowledge the Presbyterian form of government by Sessions, Presbyteries and General Assemblies, to be founded upon the Word of God, and agreeable thereto? And do you promise to submit yourself to the government and discipline established and practised in this Church, to concur with the same, and never to endeavour, directly or indirectly, the division or prejudice of the same? And do you engage to the utmost of your power to defend, support, and maintain the said govern- ment and discipline ? And do you promise to the utmost of your power to maintain the unity and peace of this Church against

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the Church (which expression - according to the definition of the word 'Court' in the Standing Orders - means the Federal General Assembly, or a State General Assembly, or a Presbytery, or a Church Session) to exercise discipline over such of its members as have committed offence which call for the exercise of discipline ; and go on to prescribe a most elaborate form of procedure for the purpose of ensuring a fair trial to persons accused of such offences. Every charge has to be brought before the Court empowered to deal with the offence by an accuser, who, unless he is a member of the Court, has to state it in writing (Rule 2). Accusations against ministers are to be investigated by the Presbytery of which they are members (Rule 3), and a minister is entitled to seven days' notice in writing of the intention to make an accusa- tion, and may require the accusation to be put into writing (Rule 5). In entertaining an accusation of unsoundness of doctrine, or of conduct tending to destroy the order, unity, or peace of the Church, great caution is required to be used (Rule 6). If the Court decides to go on, a preliminary inquiry is instituted, the accused being allowed ten days at least to prepare his defence (Rule 8), unless he admits the charge, in which case the Court comes to a decision without further inquiry (Rule 9). The preliminary inquiry may proceed in the absence of the accused (Rule 10). If the Court making the preliminary inquiry finds the charge frivolous, or unsupported, further action is stayed, and the minutes taken on the inquiry are destroyed (Rule 11). If, on the other hand, the Court finds the charge 'apparently well substantiated, the accused is formally cited to answer it, and all the evidence taken down on the preliminary inquiry is read to him (Rule 13). Cases involving only a sentence of admonition or rebuke can then be dealt with summarily, But in other cases the Court must proceed by judicial process, with or without libel (Rule 14), in which case two members of the Court are appointed to act as prosecutors, and are thereafter debarred from deliberat- ing or voting on the case ; and the accused is furnished with the names of the witnesses who are to give evidence against him, and a copy of the evidence taken on the preliminary inquiry (Rule 16). If the Court proceeds by libel, the accused can object to its relevancy - i.e., that it alleges no offence requiring to be dealt with

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by judicial process; and that the facts alleged, if proved, would not sustain the accusation. The question of relevancy has to be determined by the Court in the first place, and the Court's decision can be appealed from (Rule 18). If the relevancy of the libel is sustained, the Court fixes a date, not less than twenty-one days thereafter, for the accused to lodge his defence, and a date for the hearing of the case (Rule 20). The accused is then formally cited (Rule 21). In a judicial process, without libel, the Court, after resolving to proceed, fixes a day for the hearing of the case, and formally cites the accused to appear (Rule 22). An accused who disregards the citation is guilty of contumacy, but such contumacy cannot be punished until a second citation has been served on him ; and persons found guilty of contumacy in neglecting a citation, or in any other respect, in the course of any proceedings, may be dealt with summarily (Rule 25). Before proceeding with a judicial investigation the Court must be satisfied that the accused has been properly cited, and in a proceeding without libel the accused is entitled to object to the relevancy of the charge, and to have this question decided before anything else (Rule 26). The subsequent proceedings are very similar to those of an ordinary Court of Law. Witnesses are not examined in the presence of each other; and the accused and the prosecutors have the right of cross- examination, and re-examination (Rule 30). Rule 33 prescribes, in an ascending scale, the sentences which may be pronounced for various offences, namely, Admonition, Rebuke, Suspension from Office, Suspension from Privileges, Deposition, and Excommunica- tion, - Suspension from Office being the sentence pronounced when it is found, after due investigation, that the continued exercise of the office will be injurious to religion, and Suspension from Privileges being the sentence pronounced on a person who has brought scandal on the Church. Rule 33 concludes by declaring that it shall be competent for the Federal General Assembly, or a State General Assembly, to declare a minister or elder no longer a minister or elder of the Church, Rule 34 provides that no sentence of suspension from privileges or from office, or excom- munication, shall be passed until after judicial process, and no sentence of deposition until after judicial process with libel,

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out, entirely on contract, and I propose to consider - (1) What was the contract ? (2) Whether the defendants have committed a breach of it? (3) Whether the plaintiff has thereby suffered damage to his property or civil rights which will justify the Civil Courts in granting him redress? The consensual contract by which the members of the Presbyterian Church of Queens- land are united is contained in the Articles of Union adopted at the foundation of the Church in November 1863 and amended in May 1878, incorporating by reference the Westminster Con- fession of Faith, the Larger and Shorter Catechism as the Subordinate Standards and Formularies of the Church, as also the form of Presbyterian Church Government, the Directory for Public Worship, and the Second Book of Discipline as of the nature of General Directories. Later a Deed of Union, a code of procedure in regard to discipline, and from time to time other bodies of Rules and Formulae have been duly adopted, the whole of which taken together form what I shall describe as the Constitution under which the members of the Church are united ina voluntary association. The Queensland Presbyterian Church joins with the Presbyterian Church of the other States in forming the Presbyterian Church of Australia. That Union is recognized by the Presbyterian Church Act 1900, which gives the force of law to the various provisions which go to make up the Constitu- tion of the Presbyterian Church of Queensland. It is with that body of provisions only that we have to do in this action. They constitute, as I have before pointed out, the terms of the contract which the plaintiff and each member of the Presbytery and of the General Assembly have promised each other to fulfil. The contract is to be construed as any other contract, reading it as a whole and giving effect as far as possible to every part of it. The plaintiff in his induction as minister took a vow by which he acknowledged the Presbyterian form of government by Sessions, Presbyteries, and General Assemblies, to be founded upon the Word of God, and agreeable thereto; and promised to submit himself to the government and discipline established and practised in the Church, to concur with the same, and never to endeayour, directly or indirectly, the subversion or prejudice of the same; he engaged to the utmost of his power, to maintain, support,

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and defend the said government and discipline ; he promised to the utmost of his power and opportunity to maintain the unity and peace of the Church against error and schism, and that he would follow no devisive courses from the present established doctrine, worship, discipline, and government thereof. Having regard to the many safeguards which the Constitution of the Church pro- vides for securing a fair hearing of complaints and accusations, and the limited scope of what may be described as Church matters as compared with the ordinary interests and activities which must necessarily fill the life of a minister, it is impossible to construe the plaintiff's vow as amounting to more than a submission to the government and discipline established and practised in the Church in respect of matters within the jurisdiction of Church authorities under and in accordance with the terms of the com- pact. The defendants have contended that the oath means much more; that it binds the plaintiff to submit himself absolutely to the Presbytery and General Assembly in every matter which they shall determine to be a matter of Church government or dis-~ cipline. That he thereby undertakes to accept without question their interpretation of the contract in all respects, that he agrees that it shall be for those tribunals alone to decide what is and what is not within their jurisdiction, and, no matter how they may exceed the jurisdiction actually conferred by the contract or to what extent they may deprive him of the rights which it has given him, his only remedy is to appeal from one tribunal of the Charch to another. But the defendants' claim to unlimited authority does not stop there. They contend further - and acting on that contention they have committed the wrong of which the plaintiff complains - that the mere act of submitting the question of jurisdiction to the Civil Courts for determination is not only a breach of the vow, but an act of insubordination. A voluntary association might certainly bind its members by a contract stipu- lating that the interpretation of the terms and conditions of association should be exclusively in the hands of a judicial body empowered to decide without question the limits of its own juris- diction. It might further provide that the penalty of question- ing the decisions of that tribunal should be expulsion from the association or a temporary loss of its benefits. Men may thus, if

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If they do so they have no right to complain of any exercise of Macqurey power so long as it is not malicious. But there is no such self- peropron surrender or abnegation of rights to be found in this contract. On the contrary it abounds in provisions for securing to members the preservation of rights and the fair trial of accusations. No word of the contract gives colour to the contention that any member of the Church has debarred himself from the exercise of that right which belongs to every person who enters into a contract with others - the right of appealing to the Courts to have the contract interpreted when the other parties to it are acting to his injury beyond the scope of the contract. In another way the defen- dants' counsel endeavoured to find in terms of the contract the unlimited jurisdiction that has been claimed. The plaintiff, it is urged, promised by his vow to submit himself "to the govern- ment and discipline established and practised in the Church." It was contended that the Presbyterian Church had always exer- cised unlimited control over its members in matters of Church government and discipline, and that it was to the government and discipline so established and practised that the plaintiff had submitted himself. But two answers at once suggest themselves. Whatever may have been the government and discipline prac- tised in the Church in other times, there are numerous provisions of the present disciplinary codes that are entirely contradictory of the position that the minister's rights are at the absolute mercy of the Presbytery or the General Assembly. But the alleged founda- tion of fact is wanting also. The Church, since it has ceased to be a State Church, has not exercised without question the un- limited powers now claimed. The issues involved in the Cardross Case (1) and other cases cited in argument show that the right to such unlimited and unquestioned power has never been recog- nized by the Civil Courts. I take it, then, as established that it is open to this Court to examine the terms of the contract which gives jurisdiction to the judicial tribunals of the Church, and to determine whether the General Assembly could on the materials before it find that the plaintiff had been guilty of insubordination

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or had committed a breach of discipline. I assume for the present that they had jurisdiction to try him, and that their mode of proceeding was authorized by the Constitution of the Church. It is not necessary to decide for this purpose whether the plaintiff was right or wrong in his view as to the powers of the Presby- tery in dealing with the disputes between him and his congrega- tion. It is clear that he honestly believed they were acting beyond their jurisdiction, and he sought the intervention of the Civil Court to protect him from what he believed to be a viola- tion of his rights. As I have already pointed out, the law gave him a right to raise the question of the true interpretation of the contract, and to raise it in that way. It is clear, therefore, that the General Assembly could not legally come to the conclusion that the plaintiff's exercise of a legal right was a breach of discipline and an act of insubordination. But there is another ground of objection which is equally fatal. The code of pro- cedure in regard to discipline, which constitutes the Prebytery - not the General Assembly - the tribunal to try accusations, pro- vides « procedure to be followed which is calculated to ensure a fair trial. That procedure applies only to a trial by the Pres- bytery. If the defendants' contention is right, an accused person may be tried by the General Assembly without any opportunity of defence beyond that which the tribunal may chose to give him, It is clear to my mind that the compact does not contem- plate the Assembly having any jurisdiction in respect of offences, except on appeal from those tribunals of the Church on which is expressly conferred the power to deal with them in accordance with the Rules of Procedure, which give an opportunity of fair trial. The last paragraph of see. 33: of the Code was also relied on by the defendants, but the general power there conferred can apply only to cases in which the General Assembly takes action on what amounts to an accusation of an offence. Rule 34 ex- pressly provides that no sentence of suspension from privileges or from office, &., shall be passed until after judicial process has been followed unless the offence has been confessed by the accused or committed in the presence of the Court, or has been an act of contumacy. The Court there referred to must mean the Court which has power to try and sentence the accused, which

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voluntary submission, as Mr, Long would have been had he so consented, notwithstanding the fact that his canonical oath did not in fact, and as the Court of law construed it, include obedience in respect of the matters demanded of him. And, further, in the sentence last quoted from the judgment of the Privy Council, the power of the tribunal to determine consequences of the violation may be as validly agreed to as any other incident of the contract. If, for instance, it be found on examination of the compact in any case not only that the forwm domesticwm shall have the right of finally interpreting the contract, but also that in any adverse adjudication based on that interpretation he shall suffer whatever loss of privileges or status that forum shall determine, he is bound to stand by the result, and he cannot withdraw from his conyention in part, namely, the adverse finding and determination, and yet adhere to the rest, that is, cling merely to so much as is beneficial to himself. He cannot approbate and reprobate. He must bear the disqualifications as well as the qualifications prescribed by the contract. The Court cannot make a new bargain for him; and with one exception to which I shall presently refer, he must take his benefits ewm onere. The words of Lord Kingsdown carry the matter in my opinion to the full extent; but lest there should be any hesitation in accepting this interpretation of them, I think it quite worth while to quote some observations specially directed by the Scottish Judges to the point, in the Cardross Cases (1), one of which, the first, was cited to the Privy Council in Long's Case (2). In the first Cardross Case, the Lord President, after stating the pursuer's claim, observes: - " The defenders say - No, you are wrong as to the facts ; but first, our constitution precludes you from seeking redress.' It is possible," continues the learned Lord President, " when the constitution is examined, that it may be of a character which the pursuer alleges. It is possible that it may show these things were not within the power of the parties and that they have violated the constitution. On the other hand, it is possible that the constitu- tion may show that he had subjected himself to be suspended, or expelled, or found guilty of immorality without being heard. It (1) 22 D., 290, at pp. 314-5. (2) 1 Moo. P.C.C. N.S., 411.

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Future rights and future status may clearly be made depen- dent upon any condition, affirmative or negative. A man may lawfully contract not to exercise a legal right; his exercise of | that right, notwithstanding his agreement, may nevertheless be lawful; but he breaks his agreement all the same. Then comes the force of Lord Kingsdown's observation in Long's Case (1) that the compact may go so far as to authorize the domestic tribunal to determine whether the rules of the association have been violated, and also to determine the consequences of such violation. His Lordship, in the passage already quoted, places the tribunal in the position, not of a Court whose authority comes from the Crown, but of arbitrators whose jurisdiction rests on the agree- ment of the parties. Arbitrators cannot, nor can these tribunals exceed the limit of their jurisdiction; but their jurisdiction depends absolutely on the terms of the submission, and those terms may include the determination of the question, what constitutes a violation of the social contract. If authority be desired for what seems to me an obvious principle, it is found in the opinions of two great Judges, Lord Selborne L.C., and Sir George Jessel. In Willesford v. Watson (2) the Lord Chancellor said: - * 1t struck me throughout that the endeavour of the appel-- lants has been to require this Court to do the very thing which the arbitrators ought to do - that is to say, to look into the whole matter, to construe the instrument, and to decide whether the thing which is complained of is inside or outside of the agree- ment. The plaintiffs, in fact, ask the Court to limit the arbi- trators' power to those things which are determined by the Court to be within the agreement." His Lordship conceded that in most of such cases the real question between the parties is whether the matter in dispute is within or without the agree- ment. He then proceeded to examine the terms of the sub- mission, and found that wherever there was a dispute between the parties as to whether the instrument, according to its true

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