Venerable Dr Peter Carlsson v Right Reverend John Ford

1. The application for interim relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an application by the Venerable Dr Peter Carlsson against the Right Reverend John Ford and the Synod of the Diocese of the Murray of the Anglican Church of Australia Inc for an interim injunction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the Act) pending the determination of the proceeding brought by Dr Carlsson. The interim relief sought which is in the following terms: 1. Pursuant to section 46PO(6) of the Australian Human Rights Commission Act 1986 (Cth), the Court orders that, pending the determination of the within proceedings, the Respondents and each of them will not, whether by themselves, their employees, agents or otherwise: 1.1 act on or otherwise give effect to the claimed termination of the licence held by the Applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as priest in that Diocese; 1.2 withhold the payment to the Applicant of all entitlements, currently pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest; 1.3 withhold the entitlements to the Applicant, including the use of the motor vehicle currently in the possession of the Applicant, pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest; and 1.4 terminate the tenure of the Applicant at his place of residence at 15 Willowbark Crescent, Murray Bridge SA 5253 or otherwise evict him from that place. 2 The third respondent to the proceeding is the Very Reverend David Price. 3 The substance of the applicant's argument was directed to the relief in paragraphs 1.2, 1.3 and 1.4. Little was said about the relief sought in paragraph 1.1. 4 The history of this matter is that the applicant made a complaint to the Australian Human Rights Commission (the Commission) on or about 13 March 2019 in which he alleged disability discrimination under the Disability Discrimination Act 1992 (Cth). He applied to this Court for an injunction under s 46PP of the Act. That was done by way of a separate proceeding which was commenced on 22 March 2019 (SAD 58 of 2019). On 26 April 2019, and after various interim orders preserving the status quo until the application could be heard and determined had been made, I granted interim relief under s 46PP of the Act in the following terms: 1. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, act on or otherwise give effect to the claimed termination of the licence held by the applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as a priest in that diocese. 2. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, withhold the payment to the applicant of all entitlements currently pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest. 3. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the tenure of the applicant at his place of residence at 15 Willowbark Crescent, Murray Bridge SA 5253 or otherwise evict him from that place. 5 I delivered detailed reasons for my decision (Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584). I will refer to these reasons as my previous reasons. I do not propose to summarise my previous reasons and, in those circumstances, those previous reasons should be read with these reasons. In essence, the parties proceeded on the basis that the evidence in the earlier proceeding is before me, and the evidence adduced in this proceeding consisted of further evidence of matters previously referred to or, in effect, an update of the position. 6 The Originating Application in this proceeding was issued on 15 May 2019. It alleges disability discrimination, bullying and harassment, and a defamatory statement by the third respondent to which the first respondent was a party. It also alleges that the conduct of these respondents constituted a malicious prosecution of the applicant. The Originating Application has the complaint attached to it and a notice of termination under s 46PH(2) of the Act by a delegate of the President of the Commission. 7 In my previous reasons, I referred to the fact that the applicant has recently been diagnosed as suffering from a serious illness (at [8]). Unfortunately, it is necessary to reveal something of this illness. A report from Dr Tim Price, oncologist, dated 9 May 2019, states that the applicant has bowel cancer. The report states that the current plan is for radical chemoradiotherapy followed by resection of isolated lung lesions and then resection of his primary cancer. The report states that the aim of this is for cure and that the current recognised cure rate would be reported as 40-50% in this setting, noting that this would require the strategy which is the subject of the plan to proceed without complication. The report which is dated 9 May 2019 states that at the time of the report, the applicant was tolerating his treatment very well and was moving forward to the lung resection phase and would have his primary cancer resected in about 12 weeks' time. Subsequently, the applicant will be monitored and "we" would expect a good prognosis in the short to medium term. Dr Price goes on to say the following: Hence, based on the aim of cure, that is disease clearance, I would expect that Peter should make a recovery to allow him to then return to normal activities once this schedule is complete. 8 Mr Sykes is the applicant's solicitor and Dr Price's report is annexed to an affidavit he has sworn. Mr Sykes states that Dr Price expects the applicant to make a recovery to allow him to then return to normal activities once the schedule of the treatment is complete which it is reasonable to estimate will be in about four months. Mr Sykes notes that during the schedule of treatment and recovery, the applicant will be without his income and entitlements for the offices hitherto held by him unless an interim order is made. 9 In my previous reasons (at [33]), I referred to the arrangements the Diocese had with Chubb Insurance Australia Limited and AMP. In Mr Sykes' second affidavit in this proceeding, he produces the Chubb Group Personal Accident and Sickness Insurance policy and the policy document issued by AMP. 10 In my previous reasons, I referred to Ms Donna Jones who is the Registrar and Public Officer of the Diocese (at [11]). Ms Jones has sworn an affidavit in this proceeding. She has produced a copy of the Profit and Loss Statement of the Synod of the Diocese of the Murray of the Anglican Church of Australia Incorporated for the financial year ending 31 December 2018. She points out that the expenses incurred by the Diocese in relation to the post of Archdeacon are set out under the heading, "Archdeacon and Vicar General expenses". Ms Jones points out that whilst the Archdeacon is paid a stipend and is provided with a vehicle and residence and whitegoods for the residence, the post of Vicar General does not involve any remuneration, benefits or allowances. 11 Ms Jones points out that the total expenses incurred by the Diocese in relation to the post of Archdeacon in the 2018 financial year were $112,336. Ms Jones states that the Diocese has continued to incur most of these expenses since June 2018 to the present despite the applicant not performing the duties associated with the role of Archdeacon. The outgoings associated with the motor vehicle include registration, insurance, service and maintenance and fuel and the outgoings associated with the residence include electricity and gas, water and building insurance, repairs and maintenance, and telephone and internet services. 12 Ms Jones points out that the Diocese had a net surplus of $95,357 in the 2018 financial year. She states that if the Diocese is ordered by the Court to pay the stipend and other benefits associated with the role of Archdeacon to the applicant, it is unlikely that the surplus will be sufficient to cover the additional expenses that the Diocese would incur in relation to the appointment of a new Archdeacon. 13 Ms Jones points out in her affidavit that she is advised that the Diocese intends to appoint a priest for a period of at least six months to assist her while further discussions take place about the future makeup of the central Diocesan administration and to assist in the existing administration of the Diocese while she is on extended leave during the period. Ms Jones states that the stipend for the priest will be $55,428 and other benefits will include the provision of residence in Murray Bridge, including payment of consumables relating to the residence and a car allowance. She states that if the Archdeacon's house is not available, the Diocese will of necessity need to make alternative housing arrangements. Ms Jones states that she has received an appraisal on the rental value of the residence at Willowbark Crescent and she attaches that to her affidavit. Ms Jones has received an email from the Diocese's insurance broker which attaches an email from AMP. The email from the AMP includes an email from the applicant to the AMP dated 18 February 2019 in which he states that he has had to start legal action against his employer and that salary continuance at this point is "now not an option". 14 In my previous reasons, I referred to Bishop Lindsay Urwin and his appointment to the position of Vicar General (at [19]). Bishop Urwin states that he was appointed Vicar General of the Diocese of the Murray on 1 August 2018. He states that Bishop John Ford has returned to the United Kingdom and that in his absence he has assumed control of the Diocese of the Murray in his capacity as Vicar General. Upon Bishop Ford's retirement on 31 May 2019, Bishop Urwin will assume administration of the Diocese by reason of his appointment as Vicar General until such time as a new Bishop is appointed. 15 Bishop Urwin states that it is not normally the case that the role of Archdeacon and the role of Vicar General are carried out by the same person. The Diocese of the Murray has now separated these two posts. He states that in many Dioceses, the Archdeacon is not a full time position and he or she shares the responsibility with another role, usually that of a parish priest. 16 Bishop Urwin states that the Archdeacon's role is to ensure the implementation of Diocesan policy in the parishes and pastoral districts and to ensure that the policy set by the Bishop and Diocesan Council are well communicated throughout the Diocese. He states that the Archdeacon is often the first point of communication with the clergy and leading lay persons in parishes over practical matters relating to facilities, property and finance. He states that in a Diocese with a shortage of clergy numbers, the Archdeacon offers important relief cover in parishes vacant by resignation, holiday or sickness. 17 Bishop Urwin states that the Diocese is implementing new missions structures and the Archdeacon is crucial in supporting parishes as they transition to new arrangements. He considers that the lack of an Archdeacon in these circumstances is serious. He states that the Archdeacon has an essential travelling ministry ranging across the geographically large Diocese and this "out and about" function is central to the smooth running of the "nuts and bolts" of Diocesan life. Bishop Urwin refers to the position prior to the applicant's appointment as Archdeacon and Vicar General in 2015. 18 Bishop Urwin states that the work of the Archdeacon is done in conjunction with the Registrar who is based in the Registry at Murray Bridge. He states that in the absence of an Archdeacon actively carrying out the duties that attach to that post since June 2018, Bishop Ford and the Registrar have had an increased workload. He expresses the opinion that this situation cannot continue. 19 Bishop Urwin states that the intention of the Diocese is to appoint a priest to assist the Registrar for a period while further discussions take place about the future central administrative and pastoral support for the Diocese. He states that the Registrar is going on extended long service leave later this year and the priest will need to assume her duties, so it is anticipated that he will required for about five to six months to allow time for an effective handover. Bishop Urwin states that the priest will be paid a stipend and that it is the intention of the Diocese to use some of the money allocated to the Archdeacon post to pay for his stipend and associated expenses which will include a travel allowance. 20 Bishop Urwin states that the provision of housing is standard practice and this post will need to be based in Murray Bridge. If the Archdeacon's residence is not available, the Diocese will need to rent another suitable property. The Diocese does not have the financial resources to purchase another property. The Diocese would not necessarily need to appoint the priest to this role if there was an Archdeacon carrying out the duties associated with the post. 21 Bishop Urwin states that the new Bishop when appointed will decide how Archidiaconal duties are to be carried out and the person who will be appointed to the post. If the role is to be carried out by one person in a full time capacity, then the Diocese will certainly need to provide a vehicle to enable the efficient performance of his duties. If the Diocese is not able to provide the vehicle being used by the applicant to the new Archdeacon, then it will need to purchase another vehicle and this will cause a financial burden on the Diocese. 22 Bishop Urwin expresses the opinion that if the Diocese is required to continue to pay the stipend and other expenses to the applicant and is unable to use that money to pay for costs described above when appointed, "then the efficient care and administration of the Diocese will be at risk". 23 With respect to the charge of theft against the applicant, Bishop Urwin states that in the normal course, the Bishop or the Vicar General would suspend an Archdeacon's licence to await the outcome of the criminal proceedings. Bishop Urwin states that but for the Court's order, he would have suspended the applicant pending the outcome of the criminal proceedings. If the person charged is not exonerated, then he would report the matter to the Board of Professional Standards. Bishop Urwin states that had he been in Bishop Ford's position, he too would have exercised his discretion to revoke the applicant's licences in accordance with s 52A of the Parochial Administration Ordinance 2001. In this context, I refer to my previous reasons (at [21] and [33]). Bishop Urwin refers to passages in the applicant's email to the third respondent dated 25 June 2018 and, in particular, the following passages: As you are aware since being AD/VG most days are a bit of a struggle. The Bishop and diocese have really been generous giving me the freedom to do what I can when I can … Furthermore, over the months it has been a real struggle physically ... I could go into lots of medical. .. but the short of it is ... As from tomorrow I am going on medical leave with the intention of not returning to ministry. I realise I can't even take on parish ministry given my medical limitations. Now while bishop is here and with his support is the ideal time for me to be moving in this direction. On salary continuance I get 75% of my package ... on the higher income I am on ... this would help ... 24 The respondents put before me medical records relating to the applicant from the Murray Bridge Day and Night Surgery and from the Fountain Corner Family Practice and I was taken to a number of entries in those records in the course of submissions. 25 In my previous reasons, I mentioned the fact that the applicant was facing a charge of theft (at [23]). That charge of theft was discussed at the Annual General Meeting of the Synod on 25 May 2019. Ms Jillian Herve, solicitor, deposes to what was said at the meeting. On 27 May 2019, the charges of theft against the applicant were dismissed pursuant to s 71 of the Criminal Law Procedure Act 1921 (SA). 26 In my previous reasons, I referred to the usual tests on an interlocutory injunction and referred to 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 (Samsung Electronics v Apple Inc). I said that a claim for an interim injunction under s 46PO(6), that is to say, a claim for an injunction after proceedings had been commenced, and pending the determination of the proceedings, involve the usual tests for an injunction (at [28]). I should add the following qualification to that statement. Section 46PO(8) provides that the Court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages. It seems to me that contrary to the respondents' submission that I should take into account that monies paid to the applicant if an injunction is granted will not be recovered, the effect of this provision is that this matter should not be taken into account. 27 In submissions, the parties went through the medical notes emphasising points which support their respective cases. 28 The applicant's case is one of some subtlety. It involved, as I understood it, a number of steps which I summarise in a very general way as follows: (1) Sections 5 and 6 of the Disability Discrimination Act makes unlawful as discrimination a failure to make reasonable adjustments in the circumstances identified in the sections; (2) The Bishop decided that he would not make or would not continue to make reasonable adjustments for the applicant and he set about prevailing upon the applicant by various means, including bullying and harassment, to give up his duties; (3) Initially, the applicant succumbed to the Bishops' authority and tactics, but after a while, and I must say on the evidence at present the period is quite unclear, he realised what was happening and was keen to return to his duties. He was prevented from doing so. I should say that the medical records show that the applicant's mental state was fluctuating. 29 The respondents' case in response, again stated in very general terms, is that throughout the applicant has made his own decisions and that included a decision to retire. He received nothing but support and assistance from the Bishop and the Diocese. 30 I remain of the view that the applicant has an arguable case (see previous reasons at [40]). However, there are a number of matters to be explained and the context and atmosphere of various meetings is likely to be important. Those matters can only be determined at trial. I am not in a position to say that the applicant has a strong prima facie case. This conclusion is relevant in considering where the balance of convenience lies (Samsung Electronics v Apple Inc at [67]). 31 In many respects, the tragedy of this case is that the matter which tips the balance of convenience in the respondents' favour is the serious illness the applicant has. The illness means that the applicant is unlikely to be able to perform the duties of the Archdeacon for a period in the order of four months. Of course, it may be longer. 32 If an injunction is not granted the applicant will be deprived of his stipend, his present accommodation and motor vehicle. I should say that there is no sworn evidence from the applicant as to his financial circumstances. There is evidence in the correspondence. I was taken to a letter from the applicant to Dr Jerome dated 9 December 2018 where the applicant outlines the dire consequences of losing his benefits. There is other correspondence, for example, the applicant's email to the Bishop dated 21 November 2018, where the applicant talks of buying the house and the effect that might have if he chose to apply for the disability pension. I am prepared to proceed on the basis that the refusal of an injunction will result in substantial hardship to the applicant, with the caveat that the precise extent of the hardship is unknown. 33 On the other hand, the Diocese will have its resources depleted over the longer term and its ability to provide the benefits to the applicant and employ a priest to perform the duties of Archdeacon or appoint a new Archdeacon will be compromised. 34 In the longer term, an injunction would interfere with the proper and effective management of the affairs of the Diocese in circumstances where the applicant was not performing and may never be able to perform again the function of Archdeacon. 35 If the applicant was able to perform his duties as Archdeacon, his case for an injunction would be stronger. 36 Sadly for the applicant, a known inability to perform the functions of Archdeacon for a period in the order of four months, perhaps longer, tips the balance of convenience firmly in favour of the respondents. 37 I refuse the application for interim relief under s 46PO of the Act. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.