Analysis
25 The applicant points to the terms of s 46PP of the Act and makes the point that there is no other relevant proceeding before the Court other than the application for an interim injunction under that section. He submits that the character of the injunction sought does not "partake entirely of the injunction available in the exercise of equitable jurisdiction". He submits that the usual requirement that a plaintiff must be able to show a sufficient colour of right to the final relief in aid of which the [interim] relief is sought (Australian Broadcasting Commission v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 190 per Gleeson CJ at [9] and [11]) is subject to significant modification. He points to the fact that no final relief can be sought in the application because the Court's jurisdiction does not arise unless and until a complaint has been terminated by the President of the Commission. The applicant submits that the remedy provided by s 46PP of the Act is sui juris and that it extends to the grant of an injunction quia timet. He contends that the jurisdiction must be exercised in a manner which is consistent with the objects of the Act and that includes the effective exercise of the right of the applicant to lodge a complaint (Picos v Servcorp Limited [2014] FCA 922).
26 For their part, the respondents submit, as I understood it, that there was no practical difference in this case between the test for an interim injunction under s 46PP of the Act (a complaint pending before the Commission), and the test for an interim injunction under s 46PO(6) of the Act (complaint terminated and proceedings pending before the Court). That is because it should be assumed that the complaint will not be settled by conciliation and the complaint will be terminated. Furthermore, it should also be assumed that the complaint will be terminated under s 46PH(1C) because the President will be satisfied that there is no reasonable prospect that the Federal Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.
27 The respondents' submission is that the usual tests on an interlocutory injunction apply (as to which see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238).
28 I do not accept the respondents' argument. It seems to me that the two powers (i.e., ss 46PP and 46PO(6)) operate in two different contexts. Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case. By contrast, a claim for an interim injunction under s 46PO(6) after proceedings have been commenced and pending the determination of the proceedings involves the usual tests for an injunction. At the risk of stating the obvious, an interim injunction might be granted under s 46PP, but on the complaint being terminated and a proceeding in the Court instituted, not under s 46PO(6).
29 The respondents also submitted that the "rights" sought to be protected by the injunction do not exist either because the applicant is no longer Vicar General or Archdeacon or there is no realistic possibility that orders would be made reinstating the applicant as Vicar General and Archdeacon, or for both of these reasons. I do not accept these arguments, at least as to the position of Archdeacon. The argument that the applicant's licence as Vicar General and his licence as Archdeacon have been revoked assumes the lawfulness of decisions which are challenged and said to be invalid, both on discrimination grounds and grounds going to the exercise of the powers. It is not appropriate to proceed on that assumption. Furthermore, they overlook the Court's power in s 46PO(4)(c) to order the employment or re-employment of an applicant. The more practical argument that for various reasons the applicant's continuance (or re-employment) in the role of Archdeacon is untenable has force, but is not sufficient to carry the day on a relatively short term basis. It may have more significance should court proceedings be instituted and an interim injunction is sought under s 46PO(6) of the Act. The position of Vicar General requires separate consideration.
30 The respondents submit that the applicant was guilty of non-disclosure on 8 April 2019 and the application for an injunction should be refused on that ground. On that day, the Court had before it the applicant's first affidavit which included the complaint he had made to the Commission. The complaint referred to the fact that on 6 February 2019, in the cathedral, the first respondent orchestrated an announcement by another priest, Father David Price, to the effect that he had stolen items from the cathedral and that the matter had been reported to police. There is a statement that the applicant was subsequently arrested on the basis of that report. The applicant states that there is no substance to the allegation and he strenuously denies it. According to the respondents, what the applicant did not tell the Court was that he has been charged and that there is CCTV of the alleged incident. The respondents submit that this is a serious case of non-disclosure on the applicant's part and is a matter that should have been disclosed to the Court when he sought the interim orders on a previous occasion. The respondents submit that the fact that the police have put sufficient credit in the allegations to charge the applicant, was a material matter for the Court to consider when the applicant sought the undertakings that he did and, in particular, the first of those undertakings. I do not consider the non-disclosures (if they be non-disclosures) to be sufficiently material to warrant a refusal of an injunction.
31 Turning then to the question of a prima facie case, the applicant submits that he has a strong prima facie case and he relies on the following matters:
(1) the first respondent appointed the applicant Vicar General and Archdeacon of the Diocese in 2015, well knowing, and notwithstanding, that the applicant was then disabled;
(2) the first respondent required the applicant to take "medical leave" in June 2018. After a period of six to eight weeks, he was again fit for work, but the first respondent refused to allow him to return to work;
(3) the first respondent's purported appointment of a new Vicar General in August 2018 was invalid;
(4) the first respondent "contrived" to keep the applicant away from work for a claimed period of "180 consecutive days" so that he could act under s 52A of the Ordinance. The applicant contends that the purported revocation was invalid as an abuse of the discretion conferred on the first respondent;
(5) the second respondent by its Executive Committee, the Diocesan Council, must consent to the first respondent's purported revocation of licences under s 52A, has power to fix clergy stipends, travelling and other allowances, and performs conferred functions in relation to long service leave, superannuation and housing; and
(6) insofar as the applicant's disability was one of two or more reasons for the first respondent's action, it was the dominant and proximate reason.
32 For their part, the respondents submit that, in the circumstances, the applicant has no case of unlawful discrimination, or in the alternative, a very weak case. They point to substantial evidence to the effect that at no time in any of the documentation provided to the Court has the applicant ever suggested that he was fit, or likely to be fit, to return to his duties as Archdeacon. They submit that all the evidence points to the fact that, not only was he unable to do so, but that he was maintaining that he was unable to do so, including making a claim against AMP for benefits on the ground of his incapacity.
33 The applicant was on medical leave from 26 June 2018 to the date of the first respondent's letter on 3 January 2019. His general practitioner provided seven medical certificates of unfitness for work in relation to the applicant covering the period from 26 June 2018 to 11 January 2019. The respondents claim that the applicant has been absent from work for more than 180 days and was liable to have his licence revoked under s 52A(1) of the Ordinance. The Diocese continued to pay a stipend and provide housing and motor vehicle benefits to the applicant during this period. The respondents claim that had the first respondent not terminated the applicant's licence of Archdeacon, they would have been obliged to continue to make such payments indefinitely and that the Diocese could not afford to do so. The respondents point to the fact that the Ordinance makes no provision for sick (medical) leave, save for clause 52A which provides for the termination of a clergyman's licence. The respondents also rely on the fact that during this period, the applicant was pursuing a claim on an insurance policy with AMP for salary continuance. It seems on the material before me that a claim was pursued on a personal accident and sickness policy with Chubb Insurance Australia Limited (Chubb), but on 26 October 2018 Chubb advised the Diocese that the applicant's claim did not come within the terms of the policy. The advice was that the applicant's condition did not come within the scope of this policy, "which is intended for more acute, short term conditions". A claim for salary continuance was then made on an AMP policy. That claim is referred to in the correspondence put before the Court, including the applicant's email to the first respondent on 21 November 2018, and the letter of support from the first respondent and the Registrar dated 23 November 2018. There is no evidence before me about the outcome of this claim, if indeed AMP has made a decision on the claim.
34 Both parties referred to correspondence and information in documents primarily from June 2018 to February 2019. Counsel for the applicant collected the correspondence and other documents together and put them in chronological order in a folder of materials that was handed to me. He also handed up a five page document which summarises the correspondence and contains strong submissions about how the correspondence should be interpreted and the inferences to be drawn from the correspondence.
35 For their part, the respondents identified in their written outline of submissions, 12 pieces of correspondence. They submit that this correspondence and, indeed, all of the correspondence, establishes that the applicant was unfit to perform his duties and he himself recognised that that was the case. The applicant decided that he could no longer perform his duties and was planning a future in which he did not perform the duties. It was submitted by the respondents that, in those circumstances, it could not be said that the licences had been terminated by the respondents because of the applicant's disability.
36 The genesis of this dispute is a meeting which took place on 25 June 2018. There were three people present at the meeting, the applicant, the first respondent and the Registrar. The first respondent's account of the meeting is as follows. In the course of the meeting, the applicant's capacity to continue in his role was raised. The first respondent could not recall who raised the issue. The first respondent's memory is that the applicant had been off duty for a while and naturally, they talked about how he was coping. The conversation developed into one which was appropriate to a pastoral relationship between a priest and his bishop and accordingly, the Registrar left the meeting and the conversation continued between the applicant and the first respondent. They discussed what the applicant could do and could not do. The discussion progressed to the point where the applicant expressed the view that he could not continue in his role. He raised with the first respondent what they called "salary continuance". The first respondent was not aware of the Diocese's insurance arrangements and the Registrar was asked to rejoin the meeting. The Registrar explained the insurance arrangements. The applicant told the Registrar that he thought that it was likely to be a long term issue and that, whilst it was a serious step at his age, the reality was that it was a step that had to be taken. The applicant raised the issue of when he should go off work. The first respondent said that the starting time was not important, but what was important was that the applicant should go to see his doctor to get a certificate to confirm his inability to continue in the role and that the respondents should take it from there. There was no discussion or mention of emotional issues.
37 The applicant has a different version of the events at this meeting. He states that he did not have a medical opinion that he should go on sick leave, but during the discussion the first respondent made plain that he meant what he had said to him on a previous occasion, namely that he did not want a person with his disabilities in the offices of Vicar General and Archdeacon and, therefore, he wanted him to take sick leave. The applicant said that he told the first respondent that he would be likely to continue doing what he was doing into his 60's and that he did not suggest to him that he should be contemplating giving up his duties now. The applicant states that the first respondent seized on the prospect of the applicant's retirement before retirement age by quickly responding that he needed to have an Archdeacon and Vicar General who would carry out the demanding duties and be able to give 100%. The applicant's account continues as follows:
… Bishop Ford said to me words to the effect that "You are too un-well and you should stop". He was attempting to convey the impression of pastoral care. I was not sick; I was disabled and sometimes I would struggle when placed under stress as I had been when having to cope with the numerous occasions Bishop Ford absented himself from the Diocese. However, my first reaction as I often did to Bishop Ford's bullying was to take the easy way out, that is by not contesting but simply submitting to it.
38 A little later, the applicant states as follows:
13. As to paragraph 22 I was responding to Bishop Ford's bullying in circumstances where I was already run down and emotion (sic) to the point I was teary at times as we spoke. I had not recovered from the urinary tract infection I had at the time of the Synod.
14. As to paragraph 24 in the face of Bishop Ford's insistence that I go on sick leave and consider immediate retirement and in my then condition all I felt able to hold onto was some hope that my work might be recognised if that were forced on me.
39 The applicant seeks to explain his conduct in going on medical leave for approximately six months on the basis that he was in a vulnerable condition and merely complied with a direction from the first respondent that he take medical leave and start considering immediate retirement. He claims that in connection with those circumstances he was bullied by the first respondent.
40 It is not possible for me to resolve these disputes on an interlocutory application. On the one hand, the applicant has an arguable case. On the other, there certainly does appear to be a good deal of documentary evidence to suggest that the applicant acquiesced over a reasonably substantial period in the stated circumstances where it was unlikely he would ever resume his duties.
41 The applicant submits that there is reason to doubt that the Court must consider under s 46PP of the Act whether damages would be an adequate remedy. If it is necessary for the Court to consider that matter, the applicant contends that damages would be wholly inadequate to remedy an apprehended removal from office and priestly ministry involving a loss of salary package, including residence and car.
42 The respondents submit that damages is an adequate remedy. The respondents submit that there is no evidence that the applicant is presently capable of carrying out the duties of Archdeacon and Vicar General and nor is there any evidence to suggest that he will suffer any loss, other than the loss of financial benefits that accompany the position of Archdeacon. An order for compensation should be an adequate remedy for hurt feelings and for loss of financial benefits. There is no need to make any orders for the maintenance of the applicant's salary or other benefits pending the resolution of the complaint, having regard to offers made by the respondents and conveyed to the applicant's solicitors by the respondents' solicitors on 8 and 9 April 2019 respectively.
43 In my opinion, the applicant's submission is correct and should be accepted.
44 The respondents submit that the balance of convenience favours them. With respect to the position of Vicar General, a new Vicar General has been appointed. The first respondent will leave Australia on 7 May 2019, but he remains Bishop until 31 May 2019. A new bishop will not be appointed until after that time so that during that absence, the Vicar General will need to act in the Bishop's place. The applicant has been charged with a criminal offence against the church and may face action from the church's Director of Professional Standards. There is also a further consideration which was identified by the respondents. Section 28(5) of the Constitution provides as follows:
Upon the enthronement of a new Bishop of the See, the appointment of a Vicar General then holding office determines.
45 It seems to me that these matters tip the balance of convenience in favour of the respondents, as far as the position of Vicar General is concerned, but not the position of Archdeacon. There are two important matters in relation to the position of Vicar General that do not apply in the case of the position of Archdeacon. Those two matters are that the Vicar General acts in place of the Bishop and the fact that, irrespective of the outcome of the proceeding, the applicant's appointment as Vicar General (if extant) comes to an end on the enthronement of a new bishop and that will occur in the near future. In my opinion, an order should not be made in relation to the position of Vicar General.
46 The respondents submit that the balance of convenience favours them with respect to the applicant's position as Archdeacon because it would be unjust to order the Diocese to continue providing the stipend and other benefits. It is likely that the Diocese will have no basis to claim those payments or benefits back from the applicant because the Court cannot impose an undertaking as to damages. I am not convinced that this is a consideration in the respondents' favour in light of the express statutory direction that the Court cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages (s 46PP(6) of the Act). In any event, it is not of sufficient strength to mean that the balance of convenience is in the respondents' favour.
47 The respondents submit that the other factor to be taken into account is that there is no certainty as to how long "this situation will continue". The Commission is not obliged under the provisions of the Act to terminate the complaint any earlier than 12 months from the time of the complaint. I do not consider this to be a circumstance of any significance. As I have said, the injunction should be in terms of the section with liberty to the parties to come back at any time and ask the Court to discharge the injunction.
48 The respondents submit that the Court "needs also to take into account" that the respondent responsible for the paying the stipend and other benefits is a charitable body with limited means. It is suggested that it would be surprising if it was not on a tight budget. It is suggested that I should infer that there is evidence from the first respondent that the Diocese could not afford to continue indefinitely to pay the applicant's stipend and other benefits. There is no express evidence as to the financial state of the Diocese and a statement that it could not continue to make a payment indefinitely does not prove with any precision its capacity to make payments for a limited period.
49 I am satisfied that the balance of convenience favours the continuance of the existing injunction, save as to the position of Vicar General.