What of the consensual compact
87It is important however in examining the issue of justiciability to observe as I have already that the Anglican Church of Australia is a voluntary association of a religious character. The rules of the church are no more or less enforceable that the rules of other voluntary associations. It is clear from many authorities that courts have shown a marked disinclination to adjudicate upon religious or political controversies except to the extent necessary to decide disputes about property. That does not turn upon any presumptions, it turns upon the very nature of such bodies and generally an analysis of their rules. As Murphy J said in Attorney-General (N.S.W.) v Grant (1976) 135 CLR 587 at 613:
As the United States cases indicate, courts may properly determine church property disputes on neutral principles and also interfere where decisions of ecclesiastical government are based on fraud, collusion or arbitrariness. Otherwise, only marginal inquiry into church government is permissible. In cases such as this, the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine (Watson v Jones; Gonzales v Archbishop of Manila (another non-constitutional case)). It has not been suggested in this case that the decisions of the General Assembly of the Presbyterian Church are affected by fraud, collusion or arbitrariness.
In my opinion, the New South Wales Parliament did not intend by the passage of the uniting Acts that the courts should hear and decide controversies over religious doctrine or the practice or procedure of church government
88Unsurprisingly questions of justiciability must be addressed by reference to the facts of a particular case and more importantly as I have also observed the particular claims made for relief.
89There is no doubt that from the nineteenth century the legal status of the church in New South Wales was settled. As Dixon J (as he then was) said in Wylde v Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224 at 285 - 286:
But although in the beginning and for a not inconsiderable period the position of the Church of England in New South Wales appears to have been that of the Church established by law, time changed its relation to the law. It is not easy to trace the steps by which the result was reached but eventually it came to be considered as a body like other Churches established upon a consensual basis. The Ecclesiastical Court was disused and forgotten, the Acts of Council referring to it ceased to be law as did other early legislation in which might be seen a recognition of the Church as an institution established by law. But the chief reason doubtless is to be found in the grant of representative government and the separation of the colonies. The Church itself resolved in effect upon the principle of voluntary association and a measure was actually proposed in parliament at Westminster to enable the Church of England overseas so to organize itself.
90In Scandrett v Dowling (1992) 27 NSWLR 483 the Court of Appeal considered the structure of the church in Australia but especially New South Wales. In particular it had to consider the width of s 2 of the 1961 Act. Section 2 was in the following terms:
The several articles and provisions of the Constitution contained in the Schedule to this Act (hereinafter called the Constitution) and any canons and rules to be made under or by virtue or in pursuance thereof are and as provided in the Constitution shall be for all purposes connected with or in any way relating to the property of the Church of England in Australia binding on the Bishops, clergy and laity being members of the Church of England in Australia in the several Dioceses of the Church of England within the State of New South Wales.
91The case involved an application by members of the church who sought to restrain a bishop who had proposed to ordain women as priests. It was contended that he was about to do so without the authorisation of the General Synod.
92The argument was advanced that the National Constitution which was a schedule to an Act of the New South Wales Parliament, (Act 16 of 1961), had legally binding effect on all members of the church in New South Wales not only in regard to church property but also in regard to the organisation of the church. Therefore it was put the obligations and duties it created were enforceable in the same way as those created by any statute. In addition it was contended that all members of the church in New South Wales were parties to a consensual compact embodied in the Constitution and that this compact had contractually binding legal effect on every member.
93Priestley JA (with whom Hope JA agreed) expressed the view that section 2 of the Constitution made it "as clear as words could make it" that the binding legal effect of the Constitution was limited to purposes connected with or in any way relating to the property of the church and added at 512 - 513:
Matters of faith and organisation not connected or related to Church property are not made any more binding at law then they were before the Act was passed.
94His Honour also expressed the view that the parties to the consensual compact upon which the plaintiffs relied were bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of the State courts of law and commented (at 513):
The consensual compact is thus based on religious, spiritual and mystical ideas, not on common law contract. It has the same effect as a common law contract when matters of church property become involved with the other matters dealt with by the consensual compact. I do not think the claims made in this case get out of the area of the consensual compact which does not have the legally binding effect here relied on.
95In a most comprehensive survey of the history of the church especially in New South Wales His Honour made a number of important observations about what in his view the particular rights there under consideration involved. In relation to bishops and other clergy His Honour expressed the view at 515 that:
A Bishop of the Church is as such the holder of an office of the Church. A priest of the Church is as such the holder of an office of the Church and is ordained for the office and work of a priest in the Church of God not limited to any Diocese of the Church. A priest can only exercise priestly functions in a Diocese when licensed to act as a priest by the Bishop of the Diocese.
96In terms of the rights of clergymen in the context of the Constitution His Honour said at 522:
In New South Wales, once the Church became recognised as a voluntary association whose Church law was not State law and whose disciplinary and other tribunals were not State tribunals, it consequently also became recognised that all "Church" property had to be owned by trustees upon religious charitable trusts, with the procedural incidents, in case of court proceedings, flowing from that. No party to such proceedings needs to rely upon the idea of consensual compact asserted by the plaintiffs here. There is no need for a consensual compact concerning matters of Church discipline and organisation to be binding as a civil contract. In cases not involving Church property, the sentences of the Church tribunals will have effect; eventually the person sentenced will either submit to the sentence, or be excused from it, or cease to be a member of the Church. Where Church property is involved, the civil law of trusts and property will apply, and bring about the implementation, or otherwise, of the sentence. For this law to operate, no reliance on civil contract law is necessary. (Of course, civil contracts distinct from the consensual compact may be involved.)
97His Honour also remarked at 554:
The basis of the consensual compact or contract thus must be a willingness to be bound to it because of shared faith, or, in the Latin phrase used in some of the materials, in foro conscientiae. Its binding effect does not come from the availability of the secular sanctions of State courts of law. The availability of these latter sanctions when spiritual matters become mixed with Church property matters is an incident of the consensual compact or contract which means that in those cases where property is involved the consensual compact or contract is given the same effect, in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract.
98Further His Honour said at 557 - 558:
As there appears, my view is that the consensual compact into which members of a church voluntary association enter is not described correctly as a civil contract. It could perhaps be described as a contract partly civil and partly spiritual. I do not think it can be described as a wholly civil contract because there are undoubtedly instances, when no property or civil right is involved, in which the secular courts will not enforce it. In cases where property or civil rights are involved the compact will, in a practical sense, be enforced; and in such cases it may not really matter whether the contract is described as a consensual compact binding in foro conscientiae which is, in those cases, incidentally subject to enforcement in the secular court, or as one partly binding in conscience and partly binding as a common law contract
99In conclusion His Honour reiterated that he did not consider the court should treat the parties to the consensual compact as having agreed to its terms in the contemplation that it created legal relations between them. When questions arose concerning the consensual compact which also involved questions relating to church property secular courts should decide them to the extent necessary to enable the property questions to be decided. The church property referred to was "necessarily property held on trust by a trustee or trustees", (at 564).
100Mahoney JA who wrote a separate judgment nonetheless refused relief but for different reasons. His Honour thought that the court should conclude that in general legally binding rights and obligations could arise from the rules of the Anglican Church. In general terms, he thought, that the history and the terms of the rules of the church suggested that albeit only as rules of a voluntary association, they were intended as capable of giving rise to legally enforceable rights and obligations (at 505).
101His Honour however said (at 510):
Reference was made in argument to the possibility of enforcement of the rules here in question as involving proprietary rights because of, for example, the possibility of payment of stipends to ordained priests or matters of this kind. But this matter was, if not abandoned, at least not argued at length. Any such proprietary rights would, in my opinion, be "incidental and accidental": Cameron v Hogan (at 378); and not a basis for court intervention.
102The decision of the Court of Appeal provides no support in my opinion for the plaintiffs in this case insofar as they purport to rely upon the National Constitution as giving rise to contractual rights sufficient to bring these proceedings. Absent an ability to suggest some right of property which has been infringed, the 1961 Act and National Constitution are therefore not in my view a fruitful resource in aid of the plaintiffs' case. It would in my opinion logically follow by parity of reasoning that the 1902 Act and Constitutions per se are also of little comfort to the plaintiffs. Section 4 of the Act refers to the provisions of the Constitutions being binding for all purposes relating to "the property of the Church". The reasoning in Scandrett would by parity of reasoning logically apply and likewise provide the plaintiffs with little comfort.
103In Macqueen v Frackelton (1909) 8 CLR 673 the High Court comprising Griffith CJ, O'Connor and Isaacs JJ heard an appeal from the Full Court of Queensland.
104In the proceedings the Presbytery of Brisbane, a court of the Presbyterian Church of Queensland adopted a report of a Commission appointed by them to enquire into a certain alleged unsatisfactory state of affairs in connection with a church of which the plaintiff was the minister. The report contained certain findings of fact and concluded with a recommendation that the plaintiff be called upon to resign. He however refused to resign and the presbytery resolved to report the matter to the General Assembly, the Supreme Court of the Church in Queensland, with a recommendation that that body should dissolve the pastoral tie between the plaintiff and his congregation. The plaintiff indicated he wished to appeal the resolution of the Presbytery. The plaintiff sought injustice relief against all members of the Presbytery (excluding himself) arguing that the resolution was contrary to the rules prescribed by the Constitution of the church and a declaration the rules had been breached.
105Having received all relevant reports and recommendations the General Assembly required the plaintiff to appear before it and inform it whether he had authorised the commencement of the litigation in the Queensland court. Having admitted he had done so the General Assembly resolved that he be suspended from office for six months. This had the consequence of dissolving his pastoral tie and the loss of his ministerial involvements.
106The plaintiff brought a further action against the General Assembly for a declaration that the sentence was illegal and void. The plaintiff succeeded on all issues at trial but on appeal to the Full Court of Queensland, the plaintiff was unsuccessful in the first action but he was successful in the second. Importantly however the High Court refused the plaintiff's application for leave. It was refused on the basis that no civil right of the plaintiff had been infringed.
107Griffith CJ observed that the "Presbyterian Church like any other religious body in Australia, is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or consensual compact to which they are parties" (at 679).
108His Honour expressed the view that the only way in which the respective rights of the parties could be regarded in a court is in the aspect of rights arising under a consensual compact. His Honour was of the view though that the interpretation of the compact was for the court and not for the parties to the contract to determine. He said at 690 - 691:
The powers of a Court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them. The contrary contention, translated into plain English, is that a minister of the Presbyterian Church, by adhering to the Constitution of the Church, in effect enters into a contract not substantially distinguishable from the submission made by members of another well known ecclesiastical organization, every member of which is required to take a vow that he will in his relations to his religious superiors be perinde ac cadaver. In other words, the minister surrenders all his future prospects in life into the hands of an infallible General Assembly. It is impossible, in my judgment, to hold that the Constitution, with its elaborate provisions for the protection of accused persons and for securing them a fair trial set out in the Rules of Discipline, can be summed up as a compact by which a minister holds his office and emoluments at the will of the General Assembly.
109His Honour then went on to consider whether there had been a breach of the compact. He considered the Rules of Discipline were a carefully framed code securing to accused persons a fair and deliberate trial before they were condemned. Any charge had to be investigated "according to a procedure calculated to secure the utmost fair play and full deliberation". He further thought the procedure adopted "disregarded all the provisions agreed to for the protection of the accused", which went to the "root of the authority of Assembly to pronounce a sentence of suspension" (at 693), His Honour noted at 693 - 694:
It remains to consider whether the plaintiff has established that he has, by reason of the action complained of in the second action, suffered any infringement of a civil right, or, in other words, sustained any loss of money or property. The actual and necessary result of the action complained of was that he was not only deprived of his emoluments as minister of the Ann Street Church, but prevented from exercising his functions as a minister elsewhere in Queensland, and so possibly earning some remuneration.
The general rule of law is that an action will lie for any breach of contract, if only for nominal damages. If the natural and actual result of a breach of contract is to create actual pecuniary loss, there is no doubt that an action will lie, and the measure of damages is the amount of the loss actually sustained, provided that such loss was in the contemplation of the parties to the contract as the natural result of a breach. It is quite immaterial whether the plaintiff could have recovered his stipend from the Ann Street congregation by action or not. Unless, therefore, the appellants can invoke some exceptional rule to protect them, an action will lie against them for damages. It is suggested that the General Assembly are in the position of arbitrators, against whom an action will not lie in the absence of malice or fraudulent misconduct. This rule does not, however, extend to protect an arbitrator from the consequences of an act done by himself or at his instance in execution of an award upon a matter not submitted to him. Such an action, moreover, is not founded on contract. There is ordinarily no contract, express or implied, between the parties to a submission and the arbitrator. I do not know of any rule of law which requires malice to be proved in an action for breach of contract. So far as the Presbytery of Brisbane are concerned, the action complained of is that they excluded the plaintiff from the enjoyment of the emoluments of his office in execution of an order of the General Assembly which was a breach of the compact to which they were parties, as they must have known. If an action for damages will lie, it is not material that they are not formally claimed.
110It was also submitted to the court that an action could not lie until the plaintiff had exhausted all of his rights under the compact whatever they may be. His Honour said at 695:
It was also urged that in any case an action would not lie until the plaintiff had exhausted all his rights under the compact, namely, by appealing to the General Assembly of Australia. In my opinion it is no answer to a breach of contract to say that the plaintiff might have obtained redress for the breach in some other way, unless there is an express or implied stipulation that failing to obtain redress in that other way shall be a condition precedent to the right to complain of the breach. I can find no such stipulation, express or implied, in the compact now under consideration. The same view was taken by the Judicial Committee in the case of Long v. Bishop of Cape Town.
111In the same case O'Connor J at 696 - 697 commented:
It has long been settled by British Courts that a religious body not being a State Church is merely a voluntary association bound together by a consensual compact-that the rights of its members inter se depend entirely on the terms and conditions of the compact; that the terms and conditions constitute a contract in which every member binds himself to the whole body and to every other member to act in accordance with its provisions. If, as is generally the case, the Church has by its Constitution created bodies clothed with executive and judicial powers for managing and controlling its spiritual disciplinary and business interests, the Civil Courts will not in general interfere with their acts and decisions. It is only when such bodies exceed their powers, and assume to themselves an authority which the contract has not given them, that the Civil Courts will intervene, and then, only, when the party complaining of the wrongful act or decision establishes the fact that he has thereby been injured in his property or in the exercise of some civil right. Any member who has been so injured may obtain redress in the Civil Courts, and his proceedings must be directed against those of his fellow members who have contrary to the contract assumed authority to do the act or give the decision which has caused him injury. If his complaint is against a body of members, such as the General Assembly of the Presbyterian Church of Queensland, he is not bound to join each member as a party. He may, as in the present case, proceed against individuals selected by the Court to represent the whole body for the purpose of the proceedings: Skerret v. Oliver. In pursuance of these well-established principles, the plaintiff has in the first action proceeded against certain members of the Presbyterian Church of Queensland representing the Presbytery of Brisbane, and in the second action against certain members representing the General Assembly of the Presbyterian Church of Queensland, and the Presbytery of Brisbane. His complaint against both bodies is that they have, in breach of the contract which binds them and him as members of the Church, acted beyond their jurisdiction in making against him the declarations and orders which have caused him the injuries which he comes to the Court to have redressed.
112Further His Honour said (at 700 - 702):
A voluntary association might certainly bind its members by a contract stipulating 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 jurisdiction. It might further provide that the penalty of questioning the decisions of that tribunal should be expulsion from the association or a temporary loss of its benefits. Men may thus, if they think fit, submit themselves absolutely to the will and pleasure of the association which they have voluntary created. If they do so they have no right to complain of any exercise of power so long as it is not malicious. But there is no such self-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 defendants' 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 government and discipline established and practised in the Church." It was contended that the Presbyterian Church had always exercised 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 practised 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 foundation of fact is wanting also. The Church, since it has ceased to be a State Church, has not exercised without question the unlimited powers now claimed. The issues involved in the Cardross Case and other cases cited in argument show that the right to such unlimited and unquestioned power has never been recognized 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 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 Presbytery in dealing with the disputes between him and his congregation. 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 violation 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.
113Justice Isaacs who dissented in the result nonetheless formed the view that relevantly there was an enforceable contract. He considered that the contract was to be interpreted by conventional methods at 704 - 705.
114The principles in MacQueen v Frackelton (1909) 8 CLR 673 have been considered extensively and approved in numerous subsequent cases, see in particular Micallef v Donnelly [2002] FCA 221 at [9], and Baker v Gough [1963] NSWR 1345 at 1276 - 1277 (which I will consider separately). See also Glebe Administration Board v Commissioner of Pay-roll Tax (NSW) (1987) 10 NSWLR 352 where His Honour Lee A-JA cited with approval the characterisation of the church by Isaacs J at 704 as a voluntary association, the social compact of which is "at once the source and measure of the rights of those who compose the body," and notably a decision of the New South Wales Court of Appeal in Uniting Church in Australia Property Trust (NSW) v Vincent, unreported: (1994) BC9402935 at 9 where Kirby P, as he then was, noted with approval the remarks of Gibbs J at 600 and quoted with approval the comments of Griffith CJ at 690 that the "powers of a Court of law to interpret and give effect to such a compact when any civil right depends upon its terms are too well established to need any citation of authority to support them."
115In Forbes v Eden (1867) LR 1 HL 568 (discussed by the High Court in Macqueen), the appellant Mr Forbes was ordained a Minister of the Episcopal Church of Scotland in 1848. Prior to his ordination in accordance with the law of that church he subscribed to the Thirty-Nine Articles and also the Canons of the Episcopal Church in Scotland acted in the year 1838. The General Synod made alterations to the Code of Canons of 1838 by introducing new Canons in 1863. The appellant asserted that the latter Canons departed from the recognised Constitution and acknowledged practice of the church and therefore had violated the contract into which he entered by subscribing to the Code of 1838. As a matter of conscience he contended that he could not obey the new Code and was liable for penalty in the event that he did not. There was no suggestion that he had incurred any actual damage. This case was brought rather upon the possibility of his sustaining damage by reason of his conscientious adherence to his own views and obligations driven as he asserted by adherence to the 1838 Code. The Lord Chancellor determined that the Canons of 1838 could not properly be regarded as a contract between the members of the church when the appellant was ordained. He said at 576:
They are principally, if not altogether, directed to the regulation of order and discipline, and contain nothing with regard to the fundamental doctrines or articles of faith upon which the constitution of a religious community depends.
116His Lordship then went on to discuss whether indeed even assuming the Canons did have contractual force there was in fact any breach. He determined there was none.
117However His Lordship did say at 575:
Supposing the Appellant to have really sustained damage by reason of the Code of 1863, it would have been open to the Court to consider whether the General Synod had authority to make the canons from which this civil injury had arisen.
118Lord Cranworth said at 581 - 584:
Save for the due disposal and administration of property, there is no authority in the Courts either in England or Scotland to take cognisance of the rules of a voluntary society entered into merely for the regulation of its own affairs:...
There is no jurisdiction in the Court of Session to reduce the rules of a voluntary society, or, indeed, to inquire into them at all, except so far as may be necessary for some collateral purpose. The only remedy which the member of a voluntary association has, when he is dissatisfied with the proceedings of the body with which he is connected, is to withdraw from it. If, connected with an office in a voluntary association, there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house or land, or a chapel, or a school, then, incidentally, the Court may have imposed on it the duty of inquiring as to the regularity of the proceedings affecting the status in the society of any individual member of it. But here there is no question of this sort....
A religious body, whether connected with the state or not, forms an imperium in imperio of which the Synod is the supreme body, when there is not, as there is in the Church of England, a temporal head. If this is so, I feel it impossible to say that any canons which they establish can be treated as being ultra vires. The authority of the Synod is supreme. It may indeed be that a Synod or general assembly, of a religious body has no power to affect civil rights already acquired under existing canons or rules. But that is very different from saying that the canons or rules themselves have no force amongst those who have no such complaint to make.
119In the same case Lord Colonsay remarked at 588:
A Court of Law will not interfere with the rules of a voluntary association unless to protect some civil right or interest which is said to be infringed by their operation. Least of all will it enter into questions of disputed doctrine, when not necessary to do so in reference to civil interests.
120His Lordship further said at 589:
His demand rests entirely on the allegation that he is exposed to pecuniary consequences in respect of the position in which he is placed with reference to the refusal of a licence to his curate. That is a question which may yet have to be tried between him and his curate, if either of them fails to fulfil the contract which has been entered into between them. But at present we cannot go into that question. It is not a matter which is properly raised here, and therefore I apprehend there is no relevancy in this action as regards that demand, and I apprehend that we cannot go into those further questions of reduction and declaration which are made, as it were, the prelude to dealing with that petitory conclusion.
121However, in Cameron v Hogan (1934) 51 CLR 358 the plaintiff in those proceedings (the respondent on the appeal) had sued the defendants (the appellants) who comprised six officers and eighteen members who formed the Central Executive of the Australian Labor Party of the State of Victoria, a voluntary association. The proceedings involved an allegation that the appellants had failed contrary to the rules of the party to approve and endorse him as the candidate for a state election which was imminent when he was the sitting member. Second there was an allegation that they had wrongly resolved to exclude him from the party and more to the point that he had not been given an adequate opportunity of answering certain charges put against him. The trial judge Gavan Duffy CJ had held that the appellants were not justified by the rules in refusing to endorse him as the candidate for the imminent election and that proper procedures had not been followed. His Honour expressly held that there was an actionable breach of contract between the plaintiff and the defendants but that the plaintiff had no such substantial or proprietary interest in the property of the association as to justify either an injunction or declaration but he did award the plaintiff nominal damages of one shilling.
122In reversing the decision of the trial judge the plurality comprising Rich, Dixon, Evatt and McTiernan JJ made a number of important statements as follows at 370 - 371:
Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint.... There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.
123Their Honours also noted at 371 - 372:
In the next place, the difficulty of framing an action by one member of a large body of persons for damages for breach of a contract constituted by his admission to membership has always been very great...
But if these procedural difficulties were overcome and an enforceable contract of membership of an unpropertied voluntary association were found to have been in contemplation, it would become necessary to consider whether a breach of contract had been committed, and who was responsible.
124In Baker v Gough [1963] NSWR 1345 Jacobs J (as he then was) heard an application for declaration and injunction brought by a person who had been a chaplain at the Kings School against the members of the School Council including the Archbishop of Sydney. The injunction which was sought against the Archbishop was to restrain him from revoking or purporting to revoke the plaintiff's licence to act as chaplain at the school. Further an injunction was sought restraining other defendants from attempting to exclude the plaintiff from the chapel of the school or from rights and privileges attached to the office of chaplain and to restrain them from discontinuing the payment of his stipend. His Honour found that the particular ordinance pursuant to which the Council purported to dismiss the chaplain came into existence pursuant to the 1902 Act as a result of a resolution of the Synod of the Diocese of Sydney. In the course of discussing the ordinance and its alleged invalidity His Honour necessarily had to consider the nature of the right or rights the plaintiff was asserting for the purposes of the relief claimed. His Honour said at 1275 - 1276:
The first question, therefore, is whether the provision in cl. 10 (a) of the ordinance can be regarded merely as a term of a contract of employment or whether it must be given a wider significance. The question is not dissimilar from that which I had to consider in Howes v. Gosford Shire Council where again it seemed to me that the issue turned on the characterization of the rights purported to be created. I there considered the distinction between rights arising merely under a contract of employment and rights created otherwise, in that case by statutory provision, and I referred to a number of the more recent cases in England where, provided that the rights in question did not arise merely under a contract of master and servant, the fact that they arose in connexion with such a relationship did not deter the court from inferring and granting relief. I do not propose to go through those cases again or to refer again to the principle which it seemed to me was established by them. Mr. St John has submitted that the present case is indeed one of a statutory right conferred upon the plaintiff because, he submits, the right to pass the ordinance in question came from a statute and the ordinance can be regarded as delegated or subordinate legislation. He therefore submits that the case is not really distinguishable from Howes' Case. Although I appreciate the force of this submission, I do not think that it is correct. It seems to me that there is a great difference between finding a statutory source for a right to make ordinances, by-laws, articles of association or the like, which are designed primarily to adjust rights and obligations between individuals in the community, and a provision made either by a public statute or by a regulation or order of the Executive issued or made pursuant to such a statute.
However, the problem does not end there. I have been referred to a number of cases, particularly in England, where relief has been granted to a plaintiff in equity because he been dismissed from office or otherwise affected in his position in life by a failure of another party to deal with him in accordance with rules laid down either in some consensual compact of an unincorporated association or under a trust deed. There are that group of cases which may be described as the "Schoolmaster Cases" (see Rendall v. Blair; Fisher v. Jackson. Contrast Hayman v. Governors of Rugby School) where under the terms of the trust deed under which the school was administered no limitation or restriction was placed on the circumstances of the dismissal of a schoolmaster.
There is Daugars v. Rivaz where a pastor was held entitled to assert in a court of equity a right to position and emoluments, not granted to him personally because the trust under which they were paid had been created centuries before, simply because the trust in question provided for the pastor and his remuneration and the plaintiff as the present pastor in 1860 was held entitled personally to enforce those rights. More recently there are cases such as Hawick v. Flegg, Lee v. The Showmen's Guild of Great Britain, Beaker v. Jones, in all of which the provisions of a mutual compact were enforced at the suit of one party to that compact even though the granting of relief involved the enforced continuation of mutual relations between the parties.
It does not seem to me sufficiently to explain these cases to say that since all members of an unincorporated association have some interest in the property of the association therefore they all have an interest to sue on behalf of the association to enforce its rules. The trust cases to which I have referred cannot be explained on this basis. No private rights of any kind exist in the schoolmaster or the clergyman which can be said to arise in the strict sense in them as beneficiaries under a trust. I do not think that this case turns on the fact that the plaintiff happens to be a member of the Church of England and therefore a party to the mutual compact of that church. His rights arise, if they arise at all, under the terms of the ordinance. I have come to the conclusion that he has rights created in himself personally because although a simple application of the principles of contract or the principles of trusts may make it difficult to define the reasons why those rights exist, they have been held to exist in a long line of authority which has recognized them. The authority which particularly binds me and which is particularly apposite is one to which I have not yet referred, namely, Macqueen v. Frackelton. In that case a minister who was suspended from his office and from acting as a minister in the Presbyterian Church in Queensland for six months obtained relief upon the ground that the decision of the General Assembly against him was beyond its power and that the suspension was illegal and null and void. He obtained in the order of the High Court a declaration to that effect with liberty to apply for an injunction should that be necessary.
It has been sought to distinguish this case before me mainly upon two grounds. First it has been said that in fact no injunction was granted and since the jurisdiction of this Court may depend upon the right to grant an injunction, relief of the kind granted in Macqueen's Case is not available here. I shall deal with this presently. It is also submitted that the plaintiff in Macqueen's Case was in fact prevented from exercising his functions as a minister anywhere in Queensland and therefore there was a loss of livelihood. These grounds of distinction may go to the question whether this Court can grant relief but they do not affect the question whether individual rights are created in a plaintiff. It seems to me that Macqueen's Case is clear authority for the view that the ordinance creates rights in the plaintiff personally: cf. Halsbury's Laws of England 2nd ed, vol. XI, p. 971. It seems to me that the cases establish that those rights arise not only because of the existence of the compact binding the members of the Church of England in this State but probably for another reason, namely, that where the rules of an association purport to set up some form of domestic tribunal to exercise jurisdiction over persons who are either members of the organization under whose rules the domestic tribunal is set up or who have contractual relations with the organization so that the rules purport to confer jurisdiction over such a person, then if the domestic tribunal exceeds its jurisdiction either in relation to a member or in relation to a non-member who is purported to be made subject to the tribunal then relief may be granted in the courts and the appropriate court for seeking such relief is the court of equity. A recent example of such an exercise of the court's jurisdiction is found in Davis v. Carew-Pole. It seems to me that some such principle is the only explanation of many of the English cases to which I have referred. That such a jurisdiction should exist in some court is to me quite understandable. In the case of the domestic tribunals none of the prerogative writs lies. It is a principle of law that any tribunal should act within its powers and should act according to the principles of natural justice. It would be a sorry state of affairs if there was no court which could superintend in a proper manner the acts of such a tribunal. The courts in the past have not declined to exercise jurisdiction and, although I appreciate the force of the arguments based on pure theory of contract or of trust which have been placed before me, I do not propose now to refuse to recognize the right of a plaintiff to assert such matters.
125His Honour concluded that the ordinance was the source of rights and the plaintiff was entitled to seek enforcement of them.
126In Clarke v Earl of Dunraven and Mount-Earl (the Satanita) [1897] AC 59, the House of Lords was called upon to consider the terms upon which certain competitors had entered a yacht race. Two yachts were entered by their respective owners for a club race each undertaking with the club to be bound by certain sailing rules. By those rules the owner of any yacht disobeying any of the rules was to be liable for "all damages arising therefrom". One of the yachts in breach of the rules through improper navigation ran into and sank another yacht. The question was whether liability arose by reason of a breach of the rules.
127Their Lordships found the rules of the club were intended to have contractual force. Lord Herschell said at 63:
My Lords, I am of the same opinion. I cannot entertain any doubt that there was a contractual relation between the parties to this litigation. The effect of their entering for the race, and undertaking to be bound by these rules to the knowledge of each other, is sufficient, I think, where those rules indicate a liability on the part of the one to the other, to create a contractual obligation to discharge that liability. That being so, the parties must be taken to have contracted that a breach of any of these rules would render the party guilty of that breach liable, in the language of rule 24, to "pay all damages," in the language of rule 32, to be "liable for all damages arising therefrom." The language is somewhat different in the two rules; but I do not think they were intended to have, with regard to payment or liability to damages, any different effect. It is admitted that the appellant broke one of those rules, and, having broken or disobeyed that rule, it is quite clear, on the assumption of a contract such as I have described, that there arose the liability to "pay all damages," or "to be liable for all damages arising therefrom".
128In Raguz v Sullivan [2000] 50 NSWLR 236 the Court of Appeal had to consider the legal status of an agreement entered in between the Australian Olympic Committee and the Judo Federation of Australia for the selection of athletes for the 2000 Olympic Games.
129The Chief Justice and the then President of the Court of Appeal wrote a joint judgment which was concurred in by Priestley LJ. They said at [67] - [68]:
[67] Beyond Australian Olympic Committee and Judo Federation of Australia the framework was open-ended as to parties, initially. However, after selection on the shadow team, individual athletes were invited to adhere to the selection agreement through execution of nomination forms and team membership agreements. By these means, each adherent promised in favour of the others that he or she would abide by the rules attending the contest in which they were engaged, that is, for Olympic nomination and selection. Such a multipartite agreement is enforceable, notwithstanding traditional notions of offer and acceptance: Clarke v Earl of Dunraven; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 80ff; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177ff. In Integrated Computers , McHugh JA said (at 11,117) that:
"... a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. ... The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement."
[68] The Judo Federation of Australia's offer to embark on the nomination process in accordance with the selection agreement if the athletes in turn submitted to the arbitration conditions was consideration for the multipartite agreement. The mutual promises to submit to arbitration were also consideration passing from each athlete to the other.
130None of the authorities I have referred to above has affected my view that neither the 1961 Act and/or National Constitution or the 1902 Act and Constitutions would per se appear to me to be the repository of rights in the relevant sense that could enable the plaintiffs to seek the particular ruling sought. However the disciplinary action here of course took place pursuant to the PS Ordinance. However courts in a number of the authorities referred to above have, especially where disciplinary actions are involved, been inclined to find the requisite contractual relations sufficient to permit a plaintiff access to a court. The terms of the PS Ordinance are central in my view to the question of the plaintiffs ability to bring these proceedings.