Wylde v Attorney-General (NSW) [1948] HCA 39

Wylde v Attorney-General (NSW) [1948] HCA 39 - HCA 1948 case summary — Zoe

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and had been permitted to exist in the diocese and that such devia- tions and variations had consisted of departures from the sanctions and directions contained in the rubrics in the said order of adminis- tration of the Sacrament and from the sequence of things said and done contained in that order and from the words of the prayers and other spoken portions of the order and that such deviations and variations had for many years been accepted without objection by the members of the Church of England attending such churches in the diocese. Save as aforesaid it was admitted that the Prayer Book had been in regular and common use in the diocese ever since the constitution of the diocese; by par. 5, that for many years deviations from and variations of the said order of administration of the Sacrament had been made with permission in many dioceses of the Church of England in Australia other than the diocese of Bathurst and in many churches of the Church of England in Canada, South Africa, New Zealand and elsewhere and it was submitted that. by reason of the long existence of those deviations and variations it was not the fact that the Prayer Book contained the only order for the administration of the Sacrament of Holy Communion which was legal or permissible in the churches of the Church of England in the diocese of Bathurst; by par. 6, that in many churches of the Church of England for many years past deviations from and variations of the said order of administration in the Prayer Book had been made with permission by competent authority in the Church of England in England and it was submitted that by reason of the long existence of those deviations and variations in England the said order of administration was not the only legal or permissible order of administration of the Sacrament in the churches of the Church of England in the diocese ; and by par. (7), that by an Act of the Parliament of England, entitled The Public Worship Regulation Act 1874, procedure was and still is regulated in England in respect of complaints and charges relating to unlawful ritual against an incumbent of any parish in the observance of the services rites and ceremonies ordered by the Prayer Book and by that Act it was provided that a complainant or complainants might if he or they thought fit represent the same in writing to the bishop of the diocese in which the parish was, accompanied by a declaration made by him or them affirming the truth of the statements contained in the representation and that if the bishop after considering the whole circumstances of the case was of opinion that proceedings should not be taken on the representation he might state in writing the reason for his opinion to be deposited in the registry of the diocese and transmit a copy to the person or persons complaining

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v exercised it no appeal or mandamus lay. In 1928 the National yeaah ~ Assembly of the Church of England in England approved of a new (N.S.W.) Book of Common Prayer known as the Book of 1928 providing Re a 5» therein for an order of the administration of the Sacrament of Holy AsHELForD). Communion alternative to that contained in the Prayer Book and Parliamentary sanction was sought for the use of such Book of 1928 and sanction was given by the House of Lords and refused by the House of Commons and thereupon the Upper House of the Con- vocation of Canterbury being the bishops of the Province of Canterbury in 1929 resolved: "That in the exercise of their administrative discretion they will in their respective diocese consider the circumstances and needs of parishes severally and give counsel and direction in conformity with the following principles ; (1) That during the present emergency and until further order be taken the Bishops having in view the fact that the Convocations of Canterbury and York gave their consent to the proposals for deviations from and additions to the Book of 1662, as set forth in the Book of 1928, being laid before the National Assembly of the Church of England for Final Approval and that the National Assembly voted Final Approval to these proposals, cannot regard as inconsistent with loyalty to the principles of the Church of England the use of such additions or deviations as fall within the limits of these proposals. For the same reason they must regard as inconsistent with Church Order the use of any other deviations from or additions to the Forms and Orders contained in the Book of 1662. (2) That accordingly the Bishops, in the exercise of that legal or administrative discretion, which belongs to each Bishop in his own Diocese will be guided by the proposals set forth in the Book of 1928, and will endeavour to secure that the practices which are consistent neither with the Book of 1662 nor with the Book of 1928 shall cease. (3) That the Bishops, in the exercise of their authority, will only permit the ordinary use of any of the Forms and Orders contained in the Book of 1928 if they are satisfied that such use would have the good will of the people as represented on the Parochial Church Council and that in the case of the Occasional Offices the consent of the parties will always be obtained." There- after the said deviations and additions from and to the Prayer Book including the deviations and additions appearing in the order of administration of the Sacrament of Holy Communion contained in the Book of 1928 have been frequently and continuously used and

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238 HIGH COURT (1948. 4 H.C. or A. - Roper, C.J. in Equity, made a decree (a) declaring that the usein 1948. the churches of the Church of England in the Diocese of Bathurst Wripe of the order of administration of the Sacrament of Holy Communion v. set forth in a book entitled '' The Holy Eucharist " and commonly AqronXY- known as " The Red Book" and the practice of administering the (N.S.W.) Sacrament of Holy Communion in accordance with that order and aaaneroence the making of the Sign of the Cross by the celebrant of the said AsretrorD). Sacrament of Holy Communion during the Absolution and Benedie-

- ~ tion respectively and the ringing during the administration of the Sacrament of a sanctus bell constituted breaches of the trusts on which the churches of the diocese were respectively vested in the defendant corporate body, and (6) restraining and enjoining the defendant Bishop from (i) using or authorizing the use in the Cathedral Church at Bathurst of any order of administration of the Sacrament of Holy Communion other than that contained in the Book of Common Prayer of 1662 and in particular from using the order of administration of the Sacrament contained in the Red Book ; (ii) practising during his administration of the Sacrament of Holy Communion in the diocese the ceremonies thereinbefore mentioned ; and (iii) using and authorizing and encouraging the use of any order of administration of the Sacrament of Holy Communion other than that set forth in the Book of Common Prayer in any churches in the diocese and in particular the use of the order contained in the Red Book. The defendant Bishop was ordered to pay to the relators their taxed costs, including the taxed costs of the defendant trust as of a submitting defendant ordered to be paid by the relators to that defendant, and also half of the costs of the writ of commission to take evidence in England and of the taking of the evidence there- under. From that decision the defendant Bishop appealed to the High Court. Further facts and relevant statutory provisions are set forth in the judgments hereunder.

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necessary for the informant to satisfy the court that, properly construed, the trusts of those church properties forbade any departures from the order of the Prayer Book, and, in particular, from the order of the Sacrament contained in the Prayer Book, and that such departures were appropriate to be restrained by the court in the exercise of its discretionary power to grant injunctions on pain of imprisonment. The history of the Book of Common Prayer of 1662 and its observance by the Church of England both in England and in New South Wales shows that meticulous adherence to the Prayer Book has never been given by the Church, nor has the Church a domestic rule requiring such adherence. The decree as granted puts the appellant into a special category - he must not deviate by omission, addition or alteration. The decree is oppres- sive and unreasonable even if the facts and the law as found by the judge of first instance are correct. The trusts are trusts " for the erection of a church." Properly construed those trusts mean the erection, and, doubtless, maintenance, of a church for the use of the Church of England in New South Wales, and do not mean the erection of a church wherein there shall be no deviation from the Book of Common Prayer of 1662. The question thus raised is not whether the Prayer Book is an accepted ritual or liturgy, or even whether it is the accepted ritual or liturgy of the Church of England in New South Wales, but whether (a) that liturgy must be written into the trusts, and (6) a variation thereof constitutes a diversion of the user of the properties from the Church of England. A diver- sion of the property does not necessarily follow from a breach of the ritual. To be successful the respondent must prove that though a service is conducted by a duly ordained and authorized clergyman of the Church of England for persons who are members of the Church of England, a departure from the strict order of the Prayer Book diverts the use of the property from the Church. It has not been decided in any case that a breach of ritual in the Church of England constitutes a breach of trust, but reports of cases in respect of other churches in England do show that that the adoption of a different doctrine or the control of the property by an unauthorized person attracts the equitable jurisdiction to protect the trusts (Milligan v. Mitchell (1) ; Attorney-General v. Munro (2); Attorney- General v. Murdoch (3) and Attorney-General v. Pearson (4)). The

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find that the Church of England in New South Wales had a rule to the effect that whenever there was a deviation from the Prayer Book the property on which the deviation occurred was used otherwise than as a church of the Church of England in New South Wales within the meaning of the trusts proved in this case. Nor was it 'open to that court to conclude that there was any rule of the Church of England in New South Wales requiring adherence, strict or otherwise, to the Prayer Book in the public services. The constitution of the Church in New South Wales may be ascertained from the Church of England Property Management Act 1866, Church of England Trust Property Incorporation Act 1881 and the Church of England Constitutions Act Amendment Act of 1902. From 1866 onwards there has been legislative recognition of the Church of England in New South Wales by that name as a Church. The important provisions of the last-mentioned statute are ss. 3-5 and articles 3 and 24 of the schedule to that Act. By article 3 the Synod of each diocese was given a very full power of legislation on all matters relating to order and good government of the churches in the diocese ; it was in that sense that Synod could deal with matters of ritual. Article 24 recognizes that the Church has articles or formularies and that those may be subject to alteration by somebody described as a competent authority of the Church of England in England, and it limits the power of regulation by Synod to conforming with regulations made in England. Article 24, assuming that "liturgy" means Book of Common Prayer 1662, leaves open two things: (a) can a Bishop permit a departure ?, and (b) is such a departure, or is an alteration made by Synod, a diversion of property from trusts established in this case? That article recognizes a "liturgy" but whether it must be followed literally and whether departure constitutes non-user of property for the Church are questions left to be answered from sources aliunde. It is only the broad prohibition against the legislative power of the Synod being so exercised as to make an alteration binding upon all members so as to create a new and different liturgy from anything previously adopted. It cannot be inferred from the history of the Vou, Lxxvi. - 16

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distinction between a requirement imposed by statute and a rule that is adopted at an assembly. The Church as an unincorporated association never had a rule of its own; its members as citizens had the statute. The mutual contract between people who con- stitute themselves a Church of the Church of England in New South Wales must be based upon the Thirty-nine Articles of Religion and it must have regard to rites and ceremonies as being matters to which article 20 and article 24 are applicable. The Church did not adopt any internal rule that departure from the Prayer Book should be regarded as an user of the property not for the purposes of the Church of England. The Church, as a voluntary association, has shown mainly by its history that it never did adopt as a rule of its own a rule which Parliament prescribed for its citizens, con- sequently upon that Church coming to New South Wales, assuming identity with the Church in New South Wales, it cannot be accepted that the Church in New South Wales had the statutory rule which was never had by the Church in England. A plaintiff who takes upon himself the onus of proving a trust of the nature now under consideration, even conceding he could discharge it, does not dis- charge his onus by merely saying there is a departure from ritual. Upon a consideration of the identity of one body with another it is necessary to resort to fundamental doctrines (Free Church of Scotland vy. Overtoun (1)). The obligation of uniformity imposed upon the clergy was not universally obeyed. In fact there have been con- tinuous, various and wide-spread deviations as shown by the Report of the Royal Commission 1906, the evidence given herein by Canon R. C. Mortimer, Bishop Batty, Mr. N. C. Armitage and Dr. A. C. Don, the admissions made by the informant herein, and the resolutions of the Lambeth Conferences. It cannot be asserted that when the Church was founded in New South Wales it must be assumed to have. brought here a submission to the many literal Tequirements which it had always repudiated in England. The Church in England claimed and exercised a right to deviate and particularly in its daughter churches. The evidence shows that in 1928 a revised Book of Common Prayer was rejected by the House of Commons, but, nevertheless, it has been widely used in England : see also the preface to the Shorter Book of Common Prayer 1946. The history of the Church in England shows that the Church as a voluntary association has never shown that in a case of deviation it regards the property as being not used for itself, and that the Church, in the teeth of the Act of Uniformity 1662, achieved a measure of elasticity in its ritual. Prior to the Act of Uniformity

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H. C or A. therefore, does not incorporate the rules of the Church as to liturgy. 1948. The Church of England Constitutions Act Amendment Act of 1902 takes - ste the trusts as it finds them and super-adds, so far as consistent with v them, the provisions of the schedule. It would not be consistent AmonX®Y- with the trusts to turn rules not legally enforceable into rules (N.S.W.) legally enforceable, nor would the schedule do so in regard to liturgy Be pasts or even if transcribed in its entirety into the trust instrument. It Asuztrorp). gives a limited power of legislation as to liturgy but it leaves the existing rules as to liturgy as unenforceable as they ever were unless and until legislation by Synod otherwise provides. Even if there is a rule of rigid observance which is a term of the trusts, the whole of the facts in this case make it inappropriate that an injunction should go. It is not desirable in the public interest and the Court could not police it. The acts of the appellant are in accord with the acts of other bishops in England. The Church has means of correction and has not used them: see article 3 of the schedule to the Church of England Constitutions Act Amendment Act of 1902. The matter of the discretion of the Court in granting injunctions was dealt with in Attorney-General v. Birmingham, Tame, and Rea District Drainage Board (1) and Attorney-General v. Dean and Chapter of Ripon Cathedral (2). [Witu1aMs J. referred to Attorney-General v. North Shore Gas Co. Ltd. (3).] Although questions of doctrine are within the cognizance of the Court, the Court would consider it undesirable, in the exercise of its discretion, to intervene at all in a dispute as to liturgy. In considering the exercise of discretion in relation to a particular case the Court must look at the particular circumstances and not attempt to generalize. This is a case which by reason of the type of thing complained of and of the type of acquiescence the Court will stay its hand on the ground, inter alia, that these matters have been for three hundred years left to the Church Courts and can now well be left to those Courts. The order made is too rigorous. It seeks to compel what history shows to be impossible of performance. In any event the appellant should not be required to pay any part of the respondent's costs of evidence taken on commission in England. That evidence was taken with the charge of heresy as its prime object. In fact the charge was withdrawn by the respond- ent after the return of the commission, and at the trial the evidence of one of the respondent's witnesses was not read.

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Teece K.C. The domestic law of the Church in New South Wales is ascertainable by the court in the same way as the court ascertains the common law or the law of a foreign country. The procedure adopted in this case was in conformity with authoritative cases as to proof of foreign law (Buerger v. New York Life Assurance Oo. (1) ). 'Where persons go to a colony and found there a voluntary associa- tion they, by implied agreement, would be bound in the government of their Church by the rules of the Church in England (Bishop of Natal v. Gladstone (2) ). Evidence in this case shows that according to the law of the Church of Hngland from the date of the settlement in New South Wales, that is 1788, until the enacting of the Church of England Property Management Act 1866, the rules of the Church demanded that the Book of Common Prayer should be strictly observed. The history of the Church in Australia is important. The law as to the power of the Crown to appoint bishoprics is stated in Halsbury's Laws of England, 2nd ed., vol. 11, p. 576: see also Jenk's History of the Australasian Colonies, p. 160; Lowther Clarke on Constitutional Church Government, pp. 33-36 ; and Oliver's Statutes of Practical Utility, vol. 1, pp. 163, 166, 167. Evidence is before the court of facts in the history of the Church of England in New South Wales which establish the position that exact conformity with the law of the Church of England is part of the domestic law of the Church in New South Wales and that this cannot be changed, especially since the enacting of the Church of England Property Management Act 1866 and the Church of England Constitutions Act Amendment Act of 1902. There is no power in laymen to initiate a motion for the trial of a bishop by a tribunal set up by General Synod (Solicitor-General v. Wylde (3) ). The Public Worship Regu- lation Act 1874, giving to bishops a power of veto, only applies to complaints against a bishop himself and the discretion conferred upon him as to whether he shall allow anyone other than himself

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There is no evidence that the jus liturgicum has been restored to the Church in New South Wales by the rules of the Church. All the experts who gave evidence agreed that both the Receptionist doc- trine and the doctrine of the Real Presence are permissible in the Church of England. The " Red Book " is instinct throughout with the Anglo-Catholic doctrine of Real Presence and is distasteful to Receptionists. There is an important distinction between the expressing of views outside the Church and embodying them in the public service (Sheppard v. Bennett (3) ). The services must be such as can be wholeheartedly entered into by people who hold the doc- trines which the Church of England permits them to hold. The "Red Book " is not merely a combination of the Book of Common Prayer of 1662 and the Book of Common Prayer of 1928. It is impliedly, perhaps expressly, based upon doctrines which are permitted to be held but which many members of the Church do not hold; those members are entitled to attend in England and should not be excluded in Australia. All the rubrics in the "' Red Book " inform the congregation as to the meaning of the services. The evidence of some members of the Church in the diocese was that by reason of the " Red Book " they had been compelled to remain away from the communion service (R. v. Dibdin (4); on appeal, sub nom Thompson v. Dibdin (5)). The making of the Sign of the Cross is an illegal ceremony in the Church of England (Read v. Bishop of Lincoln (1) ). Tn at least three instances the words relating to the ringing of the sanctus bell are directory. The ringing of the sanctus bell also is an illegal ceremony (Rector and Churchwarden of Capel St. Mary, Suffolk v. Packard (6); Herbert v. Purchas (7)). There is direct evidence before the Court that a large number of churches within the diocese are vested in the defendant Trust for the uses and purposes of the Church of England. As to how far it can be contended that because there has been a history of medieval practices in the Church of England this strict law of the land has not been observed, see 7'udor on Charities, 4th ed. (1906), p. 248; Halsbury's Laws of England, 2nd ed., vol. 4, pp. 177, 188 ; Drummond vy. Attorney-General (8) ; Shore v. Wilson (9) and Attorney-General v. St. Cross Hospital (10). The discretion of the Court should be

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252 HIGH COURT (1948,H.C. or A. y, Williams (1)). The only acts authorized by the " Red Book" ae are the Sign of the Cross and the ringing of the sanctus bell. The - Wipe Court will not grant injunctions for these alone. A's to the " Red v. Book " propounding one theory of the Sacrament, there is nothing a in the text of the order which does this; the doctrine of the Real (N.S.W.) Presence is advocated only in the rubrical directions which are in eee or the same category as a sermon. There has not been any exclusion Asuetrorp). of members. Unpalatability of the form of service is not exclusion,

- Settlors settled the properties on the Church knowing that the Church had its own means of keeping the forms of worship within limits. The power of Synod to legislate the " Red Book " out of use is conferred by article 3 of the Schedule to the Church of England Constitutions Act Amendment Act of 1902. It must not be presumed that the appellant, as Bishop, would not assent. If he did it would be a matter for the Provincial Synod under articles 6 and 23 of the schedule. Further, the Metropolitan of New South Wales has authority, not coercive, but in such an organization as the Church his influence is based upon strong considerations, including his Suffragan's canonical oath of obedience. The position of the Metropolitan in England by virtue of his office is shown in Ex parte Read (2); Read v. Bishop of Lincoln (3) and Marshall v. Graham (4)). "Church" is the crucial word in the trust. If, in the Anglican communion, it means a place where Divine service is held according to the doctrine and worship of the Church of England there still remains the question: What is the ambit of the word "worship" ? It means worship in accordance with the usages of the Church of England in New South Wales, or, put in another way, "worship in the manner from time to time allowed in the Church of England, that is permitted within the framework of the Church". The settlors of the properties by using the terse phrase of the trust did not mean a static worship set up in 1662. That would be opposed to the admitted practice of the Church. It must be presumed that they knew that the Book of Common Prayer of 1662 had not been strictly observed ; that the obligation to use it was personal to the clergy ; that the Church in future would persist in deviation ; and that the Church was wider than the Established Church in England. It cannot be supposed that the settlors intended to impose a fetter on the Church which it had never accepted. The fact that the Book of Common Prayer 1662 was prepared by Convocations is irrelevant. Uniformity was the

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256 HIGH COURT (194s, H. C. oF A. only one, official and legally authorised Book of Common Prayer, 1948. This has remained the norm of our Church's worship since the year - Wyipe 1662, nearly three hundred years ago. We have all of us under- v. taken in public worship to use this book and no other except so far eases as shall be permitted by lawful authority. An intelligent inter- (N.S.W.) pretation of this means that we will not use in its place a different Pecan or Service book of some other Church, or one of our own devising. The Asuetrorv). Book of Common Prayer shall for us be the standard, until it is Latham cy, Changed by the joint action of Church and State." The Bishop then proceeded to say that "' An unintelligent interpretation of this would make it mean that we neither added to nor omitted anything directed in that book." He gave illustrations of changed cireum- stances which had made the Book of Common Prayer inapplicable in certain modern circumstances, and said that it was as impossible for the church to live by rules three hundred years old as it would be to run the army by regulations dating from the reign of Charles II. He said that the law of Church and State was too narrow to be workable and the alteration of it had proved too difficult of accom- plishment. In the interests of amity, however, he then withdrew his authority for the use of the book in the church at Canowindra, but, as already stated, he himself uses the book and it is in use in a number of churches in the diocese. This address of the Bishop indicates the real difficulty which lies behind the controversies which the promulgation and use of the Red Book have created in the Church. On the one hand the Church in New South Wales is still a Church of England, not a Church of New South Wales or Australia, but of England. The Church of England is not a congregational church. The members of a congregation worshipping in a particular church building are not at liberty to adopt any doctrine or ritual which commends itself to them and still to describe themselves as members of the Church of England. On the other hand, there are members of the Church who regard some changes as desirable, though others may consider them to involve an abandonment or repudiation of vital and binding principles. This case illustrates the difficulties of a Church being what is called a "living church " and at the same time being a Church the doctrines and ritual of which have been fixed by statutes which it has proved impossible to amend. However great these difficulties may be, when it becomes necessary for a court of law to determine rights with respect to church trust property, the court is obviously bound by the law and cannot be affected by past or present breaches of the law, however widespread and tolerated these breaches may have been or may be, nor can the court presume

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to alter trusts by acceding to the desire of some or many members of the communion to change with the times. There are many who have the strongest objection in matters of doctrine and also in matters of ritual to " changing with the times." If the terms upon which trust property is held require adherence to particular doctrines or observance of a certain ritual, then no practice, however long- continued, and no wish of a majority which is not expressed in a manner to which the law attaches binding force can affect the duty of the court: Tudor on Charities, 5th ed. (1929), p. 235; Milligan y. Mitchell (1); Drummond vy. Attorney-General (2); Attorney- General v. St. Cross Hospital (3) (cf. " The Warden "" - Anthony Trollope). In the reasons for judgment of Roper C.J. in Eq. the history of the Church of England in New South Wales is set out. When _ New South Wales was occupied the Church of England was recog- nized and treated as teaching the State religion, and the chaplains of the church were paid from public funds. Originally the local clergy were subject to the jurisdiction of the Bishop of Calcutta, but in 1836 Bishop Broughton was appointed as Bishop of Australia by letters patent, subject to the Archiepiscopal See of Canterbury. But by the year 1862, when State aid to religion was withdrawn, the church had plainly become that which it now is, namely a voluntary association organized on a consensual basis. In Long v. Bishop of Capetown (4), Lord Kingsdown said : - '" The Church of England, in places where there is no Church established by law, is in the same situation with any other religious body - in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them." In Bishop of Natal v. Gladstone (5), Lord Romilly M.R., referring to the words which I have quoted, said : - " They do not mean, as some persons seem to have supposed, that, because the members of such a church constitute a voluntary association, they may adopt any doctrines and ordinances they please, and still belong to the Church of England. All that really is meant by these words is, that where there is no state religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a church

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H.C. or A. there with the doctrines, rites, and ordinances of the Church of es England, it is a part of the Church of England, and the members of Wrive it are, by implied agreement, bound by all its Jaws. In other : v. words, the association is bound by the doctrines, rights [?rites], rules, - Etat and ordinances of the Church of England, except so far as any ENERAL : 5 . ss (N.S.W.) statutes may exist which (though relating to this subject) are con- _ pee or fined in their operation to the limits of the United Kingdom of Asuetrorv). England and Ireland." And, " But if certain persons constitute Latham cs, themselves a voluntary association in any colony as members of the Church of England, then, as I apprehend, they are strictly brethren and members of that church, though severed by a great - distance from their native country and their parent church. They are bound by the same doctrines, the same rules, ordinances, and discipline. If any recourse should needs be had to the civil tribunals, the questions at issue must be tried by the same rules of law which would prevail if the question were tried in England - with this exception only, that the tribunal would probably be different, and that, as the statutes which constitute certain ecclesiastical tribunals in England do not extend to the colonies, the question would have to be determined by the ordinary civil courts which administer justice in the colonies." (1). I take these principles as the basis of my judgment. In the year 1902 the Church of England Constitutions Act Amend- ment Act was passed. It substantially reproduced an Act of 1866. Section 4 provided that the constitutions contained in the Schedule to the Act and any ordinances or rules to be made in pursuance thereof "shall be for all purposes connected with or in any way relating to the property of the Church of England within the State of New South Wales binding upon the members of the said Church." Section 5 provided that all persons holding any property in trust for or in any way on behalf or for the use of the Church of England (subject, however, to the terms of any express trust) and except lands as to which other specified provision had been made, should hold that property subject to the provisions of the constitutions and of any ordinances or rules made thereunder. Section 5 also provided that all such trustees should be bound by such constitutions, ordinances and rules as if the same were contained in a deed of conveyance and trust of the said property. The Churches of England in the Diocese of Bathurst fall within the description of real estate held " in trust for or in any way for or on behalf or for the use of the Church of England." Accordingly, the present trustee, the defendant corporation, holds those churches subject

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are trusts for the purposes of the Church of England where that Church exists in the Diocese of Bathurst in New South Wales. In order to determine whether a particular church is used for the purposes of the Church of England, it is therefore necessary to ascertain the distinctive features of the Church of England. In Free Church of Scotland v. Overtoun (1) Lord Halsbury said : - "Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests, and so forth are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Christian com- munity." A church without a religion cannot be called a church. The religion of the Church of England is prescribed by law in respect of both doctrine and ritual. The Church of England is established by law and its members are incapable of altering the doctrine and the ritual of the Church upon which the identity of the Church depends. The Act of Uniformity of 1662, 13 & 14 Car. IL, ¢. 4 (Halsbury's Statutes, vol. 6, p. 523), is still the law in England. Section 1 is in the following terms : - " All and singular ministers in any cathedrall collegiate or parish church or chappell or other place of publique worship within this realme of England dominion of Wales and town of Berwick upon Tweed shall be bound to say and use the morning prayer evening prayer celebracon and adminis- tracon of both the sacraments and all other the publique and cdmon prayer in such order and forme as is menconed in the booke annexed and joyned to this present Act and entituled the Booke of Comon Prayer and administracon of the Sacraments and other rites and ceremonies of the Church according to the use of the Church of England togeather with the Psalter or Psalmes of David pointed as they are to be sung or said in churches and the

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Religion 28. In that article it is declared that the Lord's H- ©. oF A. Supper is a Sacrament and that "to such as rightly, worthily, and 1s. with faith, receive the same, the Bread which we break isa partaking wyrpy of the Body of Christ ; and likewise the Cup of Blessing is a partaking v of the Blood of Christ." It is further declared in this article that AjTORNPY- "The Body of Christ is given, taken, and eaten, in the Supper, only _(N.S.W.) after an heavenly and spiritual manner. And the mean whereby ante be the Body of Christ is received and eaten in the Supper is Faith." Asuzxrorp). The article expressly condemns as repugnant to scripture the yathamos. doctrine of transubstantiation. The evidence of the learned ecclesiastics in this case shows that the doctrine of the Real Presence can properly be held by members of the Church of England. It is not necessary in the present case to examine the doctrine of the Real Presence. Much information with respect to it may be found in the case of Sheppard v. Bennett (1). The effect of the evidence with respect to this matter is well summarized in the evidence of Dr. Don, where he says that the practices adopted by the Bishop of Bathurst "imply what is often called the doctrine of the Real Presence ; that is to say they would not be accepted by what is called a Receptionist . . . I have no doubt whatever that it is a perfectly legitimate doctrine for Anglicans to hold and that _ there is nothing whatever disloyal in holding a belief in the Real Presence in the spiritual gift of the Body and Blood of Christ." But the Receptionist doctrine of Holy Communion is also con- sistent with the Thirty Nine Articles and can properly be main- tained, and is maintained, by large numbers of members of the Church of England. Receptionism is the view that the bread and wine remain only bread and wine after consecration: but that, together with them, the faithful communicant really receives the body and blood of Christ (Ozford English Dictionary). This doctrine denies the Real Presence. The position therefore is that the Red Book adopts and asks the worshippers to worship in accordance with a doctrine which, as members of the Church of England, they are entitled to hold, but which members of the Church of England are not bound to hold and which they are entitled to reject. Accordingly, a member of the church who accepted the Receptionist doctrine would find himself engaged in a service which was based upon a doctrine which was objectionable and repugnant to him. The articles of the Church and the services in the Prayer Book of 1662 are so expressed as to enable communicants accepting either view to join in the service. The Red Book is so expressed as to make participation in the

[362]

It is contended, however, that the Church is a voluntary associa- tion and that a breach of the rules of the Church cannot properly be described as a breach of trust. In the case of a club which - owned property in which the members of the club had an interest i it could not be contended that there was a breach of trust simply - because some members of the club broke the rules of the club. The ' case, however, is quite different where property has been given in trust for the purposes of a particular church the doctrine and - ritual of which is ascertainable. This matter was discussed in interlocutory proceedings in this case and it was expressly held by - the Full Court of the Supreme Court (1) that (I quote from the - head-note) " the matters complained of by the information were - not matters of internal regulation and management of the Church of England in the Diocese of Bathurst." As Jordan C.J. said (2) : - "At the hearing of the suit, the onus will be on the informant to make good his allegations ; but there is nothing in the information, or in such of the documents referred to in the schedule of points of law as have been relied upon in argument, which shows that it will then necessarily appear that the matter complained of is only a permissible variation of a ceremony provided for by the rules governing the church, or a mere irregularity in the performance of such a ceremony, capable of being dealt with and if thought fit adopted and approved by a church authority provided by its rules, so that its authorisation would prevent the user complained of from constituting a breach of trust. If authority is required for the proposition that the court will intervene by injunction to restrain such a breach of trust if established, it is supplied by such cases as Milligan v. Mitchell (3) ; Attorney-General v. Pearson (4) ; Attorney- General v. Munro (5); Attorney-General v. Murdoch (6). There - are no ecclesiastical courts of law in New South Wales, and hence - doctrinal questions, if they have to be determined for the purposes - of litigation, must be determined by the ordinary courts of justice:

[364]

Bishop of Natal v. Gladstone (1). Hence, Attorney-General v. Dean and Chapter of Ripon Cathedral (2), is of no assistance in New South Wales." I agree with the reasons given in the Supreme Court in reaching this conclusion. I have given my reasons for my opinion that the Church of England in New South Wales, so long as it is a Church of England, is bound to observe the ritual, as well as the doctrine, prescribed by the Book of Common Prayer, and that the divergencies therefrom proved in this case are not " permissible variations " of ceremonies, or " mere irregularities in the perform- ance" of ceremonies which can be adopted or approved by the Church. In the Free Church Case (3), the Privy Council applied what was said in Craigdallie v. Aikman (4), where it was held that the use of church property for purposes other than worshipping in accordance with the doctrine for the maintenance and furtherance of which trust property was given constituted a breach of trust. The Lord Chancellor said in delivering the judgment of the Privy Council (5): " You" (i.e. the court) " may direct that land and those buildings to be enjoyed for the purposes to which they were originally directed." Accordingly, in my opinion Roper C.J. in Eq. was right in holding that breaches of trust have been established. Tt was finally contended for the defendants that there has been a long-continued and accepted practice of altering the forms of service as laid down in the Prayer Book and that the Court should for this reason exercise its discretion by abstaining from giving any of the relief claimed. In the State of New South Wales there are no ecclesiastical courts and a member of a church complaining of breaches of trust, as in the present case, must resort to the civil tribunal. There are obvious objections to the determination of questions of doctrine and ritual by a civil court. But, as pointed out in the Free Church Case (6), no other remedy is available in the absence of the ecclesiastical courts which are associated with the establishment of a State religion. If a plaintiff comes into a court of equity and establishes a breach of a religious trust his only method of enforcing the trust in this country is to obtain a decree from a civil court. As Lord Halsbury L.C. said in the Free Church Case (7): " there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another." In my opinion no reason has been shown for refusing to afford the only remedy which can prevent the continuance of the breaches of trust

[384]

No case was cited to us, and I know of none, which has ever decided that a deviation of ritual in the Church of England con- stitutes a breach of trust. There are cases in the books relating to nonconformist or dissenting bodies other than the established Church which decide that the adoption of a doctrine different from that prescribed by the particular trust or the control of the property by an unauthorized person enables a court exercising the equitable jurisdiction to protect the prescribed trusts, e.g. Milligan v. Mitchell (1) ; Attorney-General vy. Munro (2); Attorney-General v. Murdoch (3); Attorney-General v. Pearson (4). But as already stated the charge of heresy was withdrawn. I know of no case where a trust for the performance of particular rites has been implied. And no decision of the Privy Council in the Church of England cases has held that property must be used in any particular way. Commonsense unassisted by a knowledge of ecclesiastical law or practice distinguishes between the diversion of the use of property to a different Church or faith and an irregularity or departure within the church itself in the observance of the prescribed liturgy. Breaches of discipline and order in the church do not affect the user of the church as property. If it were otherwise it would mean that there is a rule of " the Church of England within New South Wales " that a service of Holy Communion not strictly in conformity with the Book of Common Prayer 1662 is a non-user of the church building for that Church. The earlier legal history of the Church has been obscured by lapse of time and declining knowledge and perhaps interest. It has been doubted whether the Church at the date of the settlement of Australia or at any time was part of the established Church of England or was an established Church. Be this as it may at all relevant times it was a voluntary association and for the purposes of this case it must be treated as such (Bishop of Natal v. Gladstone (5); Fielding v. Howison (6) ; Ex parte Rev. George King (7)). It would appear to fall within the category of churches described in a resolution of the Lambeth Conference of 1930 as a "regional, particular or national Church

[386]

H.C. ov A. and as such, promotes within its territories a national expression - se of the Christian faith, life and worship." It is, from a legal point - Wxive of view, a self-governing Church in communion with the See of v. Canterbury and not, I venture to think, as suggested by the learned ae primary Judge, an integral part legally of the Church of England, (N.S.W.) It is not now an established Church (cf. In re The Colonial Bishop- - Ren TUF |. rics Fund 1841 (1) ). Its spiritual conception is another matter, Asuetrorp). The Act of Uniformity does not apply to New South Wales. This - king, Act had other geographical limitations. It did not apply to the Church in Scotland or in the American Colonies or in the Isle of Man, It was an Act which imposed personal obligations on the clergy of the Church in England and provided personal penalties, but did not impress any statutory trusts on the properties of the Church, It imposed on the Church an obligation to observe the Prayer Book as far as the clergy were concerned. This obligation was never observed punctually and from the time when the Act was passed there have been various and continuous departures or deviations from the Prayer Book. The Church in Australia is in the same position as the Church in England would be if it were disestablished and the Act of Uniformity ceased to be a paramount law. Then the legal position of the Church would be the same as the de facto position of that Church in England in all the matters which concern "the case. None of its services exactly follows the Prayer Book. Identity of formularies is not necessary here or in England to preserve identity with the Church of England (Merriman v. Williams (2)). The user of its property is not governed by a rule of liturgical rigidity as part of the trusts. The vesting of the church lands in the defendant corporate trustees did not enlarge the original trusts so as to include a trust obligation in the nature of non- deviation from the use of the text of the Book of Common Prayer. The obligation of rigid adherence under the Act of Uniformity in England was a personal obligation imposed on the clergy upon pain of personal penalties. Any such obligation, if existing, could not have been transmuted into a trust obligation by the consensual pact which provides the legal foundation of the Church as a voluntary association. And trust obligations are obligations imposed on trustees. But it is apparent that the defendant the Church of England Property Trust of the Diocese of Bathurst is a bare trustee and is not required to supervise the services held in the Churches in the Diocese. I should have thought that the trusts were for the Church of England as a living Church, for the institution in New South Wales

[399]

The properties on which the book was used were being used for and by the Church of England in New South Wales. It will be observed that s. 4 of the Church of England Constitutions Act Amendment Act of 1902 provides that the several articles and provisions of the constitutions contained in the schedule to the Act shall be binding on the members of the Church, but the practices complained of in these proceedings are not, in my opinion, dealt with by the provisions of the constitutions. Although the pro- visions are to be binding, there is no prohibition of other practices which may be deemed advisable in any territory where a Church of England is set up. "' It is a matter of moral necessity that there should be deviations of greater or less importance": Canon Mortimer. Mr. N. C. Armitage, Chancellor of the Diocese of Leicester, said that it is common knowledge that every clergyman departs from the Order of Service in the Prayer Book 1662, and speaking of the deviations in the Red Book he thought that " the whole thing was not very important. It is difficult to weigh the relative importance or unimportance." There is no written docu- ment with respect to any consensual agreement declaring or providing that rigidity or compliance with the Act is a rule of this voluntary association. The members did not agree, nor can it be inferred that they were deemed to have agreed, that they had adopted or would adopt a rigidity in form of worship which no statute imposes ab extra and which was not observed by the Church in England. The evidence of Bishop Batty, Canon Hammond and the Rev. D. B. Knox and the exhibits in the case of forms of Occasional Services exclude any such implication. Clause 24 of the Constitutions of 1902 is obscure and meaningless. It reads : - "No rule, ordinance, or determination of a Diocesan or Provincial Synod shall make any alteration in the article (sic.), liturgy, or formularies of the Church, except in conformity with any alteration which may be made therein by any competent authority of the

[419]

General v. Dean and Chapter of Ripon Cathedral (1). In that case Uthwatt J., as he then was, held that the question before him relating to certain services in the cathedral was part of the ecclesi- astical law and his Lordship held that, assuming the High Court had any jurisdiction, it was a jurisdiction over the ecclesiastical courts by mandamus and prohibition and as to any remedy in another jurisdiction he refused to make any order. I quote the following passage from his Lordship's judgment which I respectfully adopt and apply to the facts of this case. I have already pointed out that the Supreme Court's jurisdiction is temporal only and not ecclesiastical. '" The question then arises whether this court has any jurisdiction to entertain these proceedings at all. There is much to be said for the view that in light of the history of the law, of the source from which the measure and scheme came, and the particular subject matter under consideration, the jurisdiction of the High Court is impliedly excluded for all purposes, saving, of course, the jurisdiction over the ecclesiastical courts by mandamus and prohibition. If that be so, this action is not maintainable at all: see Barraclough v. Brown (2). The point is open to doubt and Ihave not come to any certain conclusion on it. But I have come to the conclusion that, assuming there is jurisdiction in the High Court, this is not a case in which the jurisdiction ought to be exercised, and I propose to deal with this case on those lines" (3). "Tt is against the practice of the court, as I understand it, to grant a mandatory order for the performance of a continuous series of operations, and the holding and conduct of services in a cathedral are a singularly inapt subject for such an order. The plaintiff at the trial, indeed, abandoned the claim for the injunction, but that abandonment was not an abandonment of anything to which, on any view of the case, he was entitled. The inclusion of an unsustainable claim for an injunction cannot, I think, alter the nature of the action. Regard must be paid to the reality of the case" (4). Further I find it difficult to understand how any parties to these proceedings can be charged with a breach of trust other than the defendant corporate trustees who are the trustees of the properties in respect of which the breaches of trust are charged.

[431]

In 1835 the Colonies of New South Wales and Van Diemen's Land v were dis-severed from the Diocese and See of Calcutta and shortly "g70RX2x- afterwards those colonies and that of Western Australia were by (N.S.W.) letters patent under the great seal constituted a bishop's see or ie ae diocese to be styled the Bishopric of Australia under the authority Asw=Lrorp). of the Archiepiscopal See of the province of Canterbury. The jo, 5, letters patent granted the Bishop ecclesiastical jurisdiction accord- ing to the ecclesiastical laws of England lawfully made and received in England in the several causes or matters specified and no others. Among the matters specified were the behaviour in their stations of chaplains, ministers, priests and deacons in holy orders and their correction and punishment. The letters patent gave to persons aggrieved by any judgment or sentence pronounced by the bishop or his commissary an appeal to the Archbishop of Canterbury : Dr. Clarke, Constitutional Church Government in the Dominions (1924), pp. 33-39, 77-79. In 1836 an Act of Council of the Colony dealing with clandestine marriages referred to suits in an Ecclesiastical Court (7 Wm. IV., No. 6, ss. 3 and 4) and in 1839 another Act of Council recited that the Archdeacon's Court had been discontinued since the establishment of the Archbishopric of Australia and directed that register books of baptisms &c. be sent to the registrar of the Bishop instead of that court (3 Vict. No. 23, s. 2.). It thus appears that an ecclesiastical jurisdiction did exist in New South Wales. The duty of the Ecclesiastical Court was to administer the ecclesiastical law for the correction of ecclesiastical offences and for the enforcement of the discipline of the clergy. As to the actual exercise of the jurisdiction there is no information. Matters of liturgy, ritual and ornament would, just as in England, be governed by ecclesiastical law. If the Bishop of Australia had himself offended in any such matter, he could not, of course, have been dealt with in his own court. But he was a bishop of the province of Canterbury and presumably he might have been cited before the Archbishop or his Vicar General: Ex parte Read (1) ; Bishop of St. David v. Lucy (2). 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

[444]

The foundation of the suit in which the decree under appeal was made is the administration of these trusts. It is a suit by the Attorney-General for New South Wales on the relation of a number of members of the Church of England against the corporate trustees and the bishop of the diocese of Bathurst. The suit was successful - and the purpose as well as the result of the suit is shown by the - decree. The decree contains a declaration that (1) the use in churches of the diocese of the order of administration of the Sacra- ment of Holy Communion of a book entitled the Holy Eucharist commonly known as the Red Book; (2) the practice of adminis- tering the Sacrament in accordance with that order ; (3) the making of the Sign of the Cross by the celebrant during the Absolution and Benediction; (4) the ringing during the administration of the Sacrament of a sanctus bell constitute breaches of the trust, and each of them constitutes a breach of the trust on which the churches are vested in the corporate trustees. The decree proceeds to restrain the bishop from using or authorizing the use in the Cathedral Church at Bathurst of any order of administration of the Sacrament of Holy Communion other than that contained in the Book of Common Prayer (of 1662) and in particular from using the order contained in the Red Book. Next the decree restrains the bishop from practising during his administration of the Sacrament of Holy Communion the ceremonies thereinbefore mentioned. It may be remarked that, at all events in terms, this injunction has no relation to the use of the churches the subject of the trusts and restrains the bishop wherever in the diocese he may administer the sacrament, f a matter significant perhaps of the remoteness from any question of property of the practice restrained. Lastly, the bishop is E restrained by the decree from authorizing and encouraging the use ; of any order of the administration of the Sacrament of Holy - Communion but that of the Book of Common Prayer in any churches : in the diocese and in particular the use of the order contained in the c

[450]

H.C. or A. and from an examination of the history, doctrines and organization - 1948. of the community or body whose religious purposes they serve, mage My conclusion is that none of the practices complained of involves : v. any diversion of property from the purposes to which the trusts, Aer: ~ go ascertained, devote it. But I am disposed to go further and to (N.S.W.) say that, even if the matter were considered not as a matter of | Ree or Property but as a question whether the bishop has failed to observe Asuezrorp). the liturgical rules imposed upon him by the consensual compact, - pong, 2 am not satisfied that he has done so. : I shall now state as shortly as I can my reasons for these con- clusions. To do so involves a preliminary examination of the basis of the charge against the bishop and of the considerations _ governing the matter in England. The book or manual entitled The Holy Eucharist, the use of which he has authorized, contains an order departing in a number of particulars from the order of the administration of the Lord's Supper or Holy Communion of the Book of Common Prayer. The departures were made the subject of repeated and minute discussion in the evidence led at the hearing and in that taken before an examiner in England. It is unnecessary, however, to say more about them than this. In the first place it must be conceded that, if the service of the Book of Common Prayer . was meant to be common ground on which all Church people may meet though they differ about some doctrine, as is stated by Lord Hatherley (Sheppard v. Bennett (1) ), then the attainment of that object is defeated or impaired by the use of the order contained in the manual. In the second place the manual does appear to imply that the Sign of the Cross may or shall be made by the celebrant, so that the action is a distinct ceremony additional to the ceremonies of the Church, " according to the use of the Church of England," with the consequence that it is an offence against ecclesiastical law in England (Read v. Bishop of Lincoln (2) ). In the third place the order does imply that a sanctus bell may or shall be rung at the Benediction and during the Consecration. This is an_ illegal ornament (scil. in the sense of ecclesiastical law) not being included in the ornaments of the Church mentioned in the First Prayer Book and Edward VI. and its use has been more than once prohibited (ie. by an ecclesiastical court) as unlawful (i.e. as contrary to ecclesiastical law) : Sir Lewis Dibdin, Dean of Arches, in The Rector and Churchwardens of Capel St. Mary, Suffolk v. Packard (3); Elphinstone v. Purchas (4). These, however, are all matters of

[467]

entrusting, as it does, the use of its remedies to the bishops, is no longer designed to enforce ; and one which is quite foreign to the tule that has long prevailed. Surely this cannot be right. There ~ are many reasons why in my opinion it is wrong. To begin with it overlooks the consideration that all questions of liturgical practice have been dealt with as matters of Church discipline. Where the Church is not established and its organization is consensual it still remains a matter of discipline, although the ecclesiastical tribunals or authorities by which the discipline is administered derive their authority from the consensual compact and not from the ecclesi- astical law as part of the legal system of the country. The fact that the Church is not established means only that the basis of ecclesiastical authority is different, not that the whole conception of Church government is changed and that which belonged to the spiritual power is transmuted to a matter of proprietary right. Clearly enough, during the early period when in New South Wales the Church of England was still in the situation of a Church estab- lished by law and an ecclesiastical court existed, it was not within the province of a court of equity to determine the matters which are the subject of this decree. Doubtless the Crown grants of Church land were to much the same effect. But liturgy was a matter of ecclesiastical law for an ecclesiastical court; not a matter of trust for equity. How came it that the same questions assumed the shape of things controlled by decrees in equity for the adminis- tration of trusts? Ecclesiastical law is, of course, as much a part of the law of England as is equity. When ecclesiastical law ceased to run in New South Wales the Church, it might have been supposed, became more, not less, autonomous. It is because of these, among other considerations, that I thought it well to begin by an account of the legal position of the Church of England in Australia at first. In the next place the terms and nature of the trust do not warrant the conclusion that liturgical questions are within their scope. Ascer- tained from the trust instruments, from statutory provisions and from the history and nature of the subject of the trusts, they are in substance trusts to serve the purposes of churches of the Church of England in New South Wales in accordance with the constitutions for the management and good government thereof, the constitutions. scheduled to the Act of 1902. The only reference to liturgy is in article 24 of the constitutions and that amounts to no more than a limitation on the power of synod imposed in order to ensure that changes in the liturgy follow those made in England. The con- stitutions are directed in the main to the setting up of diocesan and provincial synods and to what belongs to that subject. They are

[495]

Wiis J. I have found this appeal difficult and distasteful, difficult because a civil court has to adjudicate in a suit which involves questions of ecclesiastical law with which it is not familiar, and distasteful because it is unfortunate that a suit of this sort should have reached a civil court at all. After giving the appeal the best consideration that I can, I am of opinion that Roper C.J. in Eq. was right in declaring that the use in churches of the Church of England in the Diocese of Bathurst of the order of administration of the Sacrament of Holy Communion set forth in a certain book entitled the "Holy Eucharist" and commonly known in that diocese as 'The Red Book", the practice of administering the Sacrament in accordance with the order contained in that book, the making of the Sign of the Cross by the celebrant of the Sacra- ment during the Absolution and Benediction respectively, and the ringing during the administration of the Sacrament of a sanctus bell and each of them constitute and constitutes breaches or a breach of the trusts on which those churches are respectively vested in the defendant corporate body. Since it is clear that the defendant, Arnold Lomas Wylde, the Bishop of the Diocese of Bathurst, who is the appellant, was at the date of the information habitually using the order contained in the Red Book and performing those ceremonies when personally administering the Sacrament of Holy Communion in the Cathedral Church at Bathurst of which he is the Dean and in other Churches in the Diocese, and was authorizing and encouraging his clergy to do the same, I am also of opinion that his Honour was right in granting an injunction restraining the Bishop from using the order of administration of the Sacrament of Holy Communion contained in the Red Book, and from practising during his administration of the Sacrament the ceremonies herein- before mentioned. But I am of opinion that his Honour went further than was necessary in restraining the Bishop from using or authorizing the use in the Cathedral Church at Bathurst of any

[498]

I do not propose to set out my reasons at great length for arriving at this conclusion. The nature and circumstances of the suit have been fully explained in the proceedings before the Full Court of New South Wales reported as Solicitor-General v. Wylde (1), and before Roper C.J. in Eq. on the hearing below reported as Attorney-General v. Wylde (2). The authorities cited by the Full Court and by Roper C.J. in Eq. show that at the date of the information the Church of England in New South Wales was in law an unincorporated body consisting of a number of persons who had voluntarily associated themselves together for the purposes of practising a particular form of lawful religion. The association has no written constitution so that its rules, except so far as they have been embodied in statutes of the New South Wales legislature, must be inferred from all the circumstances of the case. I see no reason to differ from his Honour's finding that the Church of England in New South Wales is not a separate and autonomous association but an integral part of the Church of England. I agree with his statement (3) that "the history of the Church is important as it shows that in the beginning it was simply part of the Church of England as established in England, and I have found nothing in its subsequent history which had the effect of altering its constitution in that respect." His Honour cited passages from the Bishop of Natal v. Gladstone (4), to the effect that where there is no State religion established by the legislature in any colony, and in such a colony there is found a number of persons who are members of the Church of England and who establish a church there with the doctrines, rights and ordinances of the Church of England, it is a part of the Church of England, and the members of it are, by implied agreement, bound by allitslaws. They are bound by the same doctrines, the same rules, ordinances and discipline, and the only distinction is that, in the absence of the ecclesiastical tribunals which exist in England, questions which would be deter- mined by such tribunals must be determined by the ordinary civil courts which administer justice in the colonies.

[501]

His Honour then proceeded to discuss the two relevant statutes of the New South Wales legislature relating to the Church of England in New South Wales passed in both instances at the request of representative bodies of that Church. The first Act 30 Victoria was intituled an Act to enable the members of the United Church of England and Ireland in New South Wales to manage the property of that Church and was repealed by the Act at present in force which may be cited as the Church of England Constitutions Act Amendment Act of 1902 (which I shall hereinafter refer to as the Act of 1902). It is to be noted that the first Act referred to the United Church of England and Ireland in New South Wales, which was then and continued to be the name of the Church until the Church of Ireland was dis-established in 1869. Section 3 of the Act of 1902 provides that the name "Church of England" shall be substituted and read in all statutes, acts, grants, deeds, ordinances, and rules of Synod, and other instruments now in force or in existence for and instead of the name United Church of England and Ireland whenever occurring in any such statute, act, grant, deed, ordinance, tule, or other instrument. This change of name in itself indicates an accepted view that the Church in New South Wales is a part of the Church of England, and the heading of the schedule to the Act of 1902 is "Constitutions for the Management and Good Government of the Church of England within the State of New South Wales." The whole Act is framed on the basis that the Church in New South Wales is an integral part of the Church of England. There is for instance article 24 of the constitutions, which is headed " Prohibition in respect to alterations of Church doctrines and liturgy" and provides that no rule, ordinance, or determination of any Diocesan or Provincial Synod shall make any alterations in the article, liturgy, or formularies of the Church, except in conformity with any alteration which may be made therein by any competent authority of the Church of England in England. There is also article 28 which provides that a copy of ordinances passed by the synod of each diocese shall be sent by the bishop thereof to the Metropolitan, who shall send the same, together with all ordinances passed by the synod of his own diocese, and the ordinances and determinations passed by any Provincial Synod to the Archbishop of Canterbury.

[617]

H.C.or A. The order of administration of Holy Communion in the Red 1948. Book departs in several respects from the order of Holy Communion ae. in the Book of Common Prayer. It also introduces the ringing of v a sanctus bell, once on two occasions and thrice on two other occas- Aaa: ions and the ceremony of the priest making the Sign of the Cross (N.S.W.) coram populi in the Absolution and Benediction. These introdue- pee or tions have been held to be illegal (Rector and Churchwardens of Asuetrorp). Capel St. Mary, Suffolk v. Packard (1); Read v. Bishop of Lincoln Wiliams s, (2) )- The Bishop pleaded that for many years the order of adminis- tration of the Sacrament of Holy Communion set forth in the Book of Common Prayer has not been strictly followed and used and that many deviations and variations from this order and the order of other services set forth in that Book have been permitted to exist in the Diocese of Bathurst and in other dioceses in Australia and in many churches of the Church of England in England. He sub- mitted that by reason of the long existence of these deviations and variations from the order of administration of the Sacrament in England, the order of administration in the Book of Common Prayer is not the only legal or permissible order of administration of the Sacrament in Churches of the Church of England in the Diocese of Bathurst. The evidence establishes that there have been many such deviations and variations in Churches of England in other dioceses in Australia, and the evidence taken on commission establishes that such deviations and variations are very prevalent in the Churches of England in England. In England this would appear to be due to the right conferred on a bishop by the Public Worship Regulation Act 1874 to veto proceedings in the ecclesi- astical courts against incumbents who have failed to observe the directions contained in the Book of Common Prayer relating to the performance in churches in his diocese of the services, rites and ceremonies ordered by that Book or have made or permitted to be made any unlawful addition to, alteration of, or omission from such services, rites or ceremonies. In this way the bishops in England have been able by the use of what has been described in the evidence as a negative jus liturgicum to sanction many deviations and varia- tions from the order and form of service in the Book of Common

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the Sacrament of Holy Communion alternative to that contained in the Book of Common Prayer and Parliamentary sanction was sought for the use of the new Book under the Enabling Act. Sanc- tion was given by the House of Lords but refused by the House of Commons and thereupon the Upper House of the Convocation of Canterbury in the year 1929 resolved that in the exercise of their administrative discretion they would in their respective dioceses consider the circumstances and needs of parishes severally and give counsel and direction in conformity with the following principles : (1) That during the present emergency and until further order be taken the Bishops, having in view the fact that the Convocations of Canterbury and York gave their consent to the proposals for deviations from and additions to the Book of 1662, as set forth in the Book of 1928, being laid before the National Assembly of the Church of England for Final Approval and that the National Assembly voted Final Approval to these proposals, cannot regard as inconsistent with loyalty to the principles of the Church of Eng- land the use of such additions or deviations as fall within the limits of these proposals. For the same reason they must regard as inconsistent with Church Order the use of any other deviations from or additions to the Forms and Orders contained in the Book of 1662. (2) That accordingly the Bishops, in the exercise of that legal or administrative discretion, which belongs to each Bishop in his own Diocese, will be guided by the proposals set forth in the Book of 1928, and will endeavour to secure that the practices which are consistent neither with the Book of 1662 nor with the Book of 1928 shall cease. (3) That the Bishops, in the exercise of their authority, will only permit the ordinary use of any of the Forms and Orders contained in the Book of 1928 if they are satisfied that such use would have the good-will of the people as represented in the Parochial Church Council and that in the case of the Occasional Offices the consent of the parties concerned will always be obtained. The pleading then alleged that thereafter these deviations and additions from and to the Book of Common Prayer including the deviations and additions appearing in the order of administration of the Sacrament of Holy Communion contained in the said Book of 1928 have been frequently and continuously used and followed in churches in the Province of Canterbury.

At a glance

Court

Decision date

Before

Source

Judgment (647 paragraphs)

Cited By (3)