Reupena v Senara [2017] WSCA 1 (31 March 2017)

IN THE COURT OF APPEAL OF SAMOA
Rev. Elder Reupena v Rev. Elder Senara & Ors [2017] WSCA 1

Case name:	Rev. Elder Reupena v Rev. Elder Senara & Ors
Citation:	[2017] WSCA 1
Decision date:	31 March 2017
Parties:	REV. ELDER KERITA REUPENA (Appellant) and REV.ELDER TAUTIAGA SENARA and OTHERS (Respondents)
Hearing date(s):	27 March 2017
File number(s):	CA 11/16 CA11B/16
Jurisdiction:	Civil
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Blanchard Honourable Justice Panckhurst Honourable Justice Tuala-Warren
On appeal from:	Supreme Court
Order:	a) The appeal in CA 11/16 is allowed; b) It is declared that the removal of the appellant from the District was unlawful because his right to observance of the principles of natural justice was not honoured by the Directors Committee; c) Costs are reserved. The parties may file memoranda as to costs within 20 working days of delivery of this judgment.
Representation:	O Woodroffe for the Appellant F M R Cooke QC, S Leung Wai and T Leavai for the Respondents S J Ainu’u and R. Masinalupe for Attorney General as Amicus Curiae
Catchwords:	Congregational Christian Church of Samoa – unlawful dismissal of Church Minister– bias allegation – bias ground of appeal fails – exercise of powers – position of authority – attempt for reconciliation – justiciability – appeal allowed – costs reserved
Words and phrases:	dispute originated from funding land purchase - removal of appellant from District unlawful
Legislation cited:	Employment Contracts Act 1991 (NZ)
Cases cited:	Reupena v Senara [2016] WSSC 140 R v Gough [1993] UKHL 1; [1993] AC 646 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33 (HCA) at 345 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72; [2010] 1 NZLR 35 at [3]. Stehlin v Police [1993] WSCA 5 Mabon v Conference of the Methodist Church of New Zealand Inc. [1998] NZCA 244; [1998] 3 NZLR 513 (CA) Ermogenous v Greek Orthodox & Community of South Australia Inc. [2002] HCA 8; (2002) 209 CLR 95 (HCA) Shergill v Khaira [2014] UKSC 33; [2014] 3 All ER 243 Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424 at [45] McDonald v Burns 1940 SC 326 at 383-384
Summary of decision:

CA 11/16
CA11B/16

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

BETWEEN

REV. ELDER KERITA REUPENA
Appellants

AND:

REV.ELDER TAUTIAGA SENARA and OTHERS
Respondents

Court:
Honourable Justice Blanchard
Honourable Justice Panckhurst
Honourable Justice Tuala-Warren

Hearing: 27 March 2017

Counsel:
O Woodroffe for the Appellants
F M R Cooke QC, S Leung Wai and T Leavai for the Respondents
S J Ainu’u and R. Masinalupe for Attorney General as Amicus Curiae

Judgment: 31 March 2017

JUDGMENT OF THE COURT

[1] In a judgment delivered in the Supreme Court on 3 August 2016 (Reupena v Senara [2016] WSSC 140) Chief Justice Sapolu dismissed the Rev. Reupena’s claim against the members of the Directors’ Sub-Committee of the Congregational Christian Church of Samoa that he had been unlawfully dismissed from his position as Elder Minister of the Queensland District of the Church. The Chief Justice discharged an interim injunction that had until the trial prevented the Church from dividing that District and appointing new Elder Ministers for the separate areas.
[2] Rev. Reupena has brought an appeal (CA11/16) challenging the Chief Justice’s conclusions that the dispute between the parties was not justiciable in the Samoan Courts and that, even if it were, the Constitution of the Church permitted the dismissal in the particular circumstances and a proper procedure, compliant with the principles of natural justice, had been followed. It is also alleged that the Chief Justice was motivated by actual bias in making his decision or that there was apparent bias.
[3] The appellant also applied to the Supreme Court for recall of the judgment again alleging actual or apparent bias on the part of the Chief Justice. However, at a callover, the Chief Justice declined to hear the recall application and peremptorily dismissed it. The appellant has brought a second appeal (CA 11B/16) against the dismissal of the recall application. The preferable course is for us to consider all issues of bias in the case in the main appeal. CA 11B/16, being redundant, is formally dismissed.

Alleged bias

[4] The Chief Justice and his wife are members of the Church. The Chief Justice is also an office-holder. But it is accepted that the appellant knew this at the time of the trial and it is not put forward as a reason why the Chief Justice should not have sat on the case. The nub of the allegation of bias is the fact that Mrs. Sapolu was indebted to the Church. She owned a business that was a tenant of a Church property. The tenancy had come to an end some time prior to the trial, which took place in February 2016, but there was still an outstanding debt for SAT$30,000, which was the balance of rental arrears of SAT$71,901, the Church having decided in January 2016 to write off and forgive the rest of the debt.
[5] There may be some doubt about whether the appellant was aware that there had been any lease from the Church to Mrs. Sapolu but that is of no moment as it had come to an end before the trial. What is central to the appellant’s allegation of bias is the outstanding debt for the unpaid rent. If the Chief Justice knew about this, he certainly should have recused himself. The appellant supported his allegation by pointing to several procedural rulings made during the trial said to have been motivated by bias against him and to the manner in which the Chief Justice dealt with the recall application. The appellant says that the Chief Justice had reason to be biased and to prefer the case for the Church because his wife was indebted to it (actual bias).
[6] But, if that is not accepted, the appellant says there was apparent bias. The courts in the United Kingdom, Australia and New Zealand have described what amounts to apparent bias in slightly difference language. The United Kingdom approach is to ask whether there is a “real danger” of bias: R v Gough [1993] UKHL 1; [1993] AC 646. The Australian and New Zealand Courts have united in saying that, subject to considerations of waiver or necessity – neither or which is relevant in this case – a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”; the question is one of possibility (“real and not remote”), not probability: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33 (HCA) at 345 and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72; [2010] 1 NZLR 35 at [3]. It has been said that the respective tests of apparent bias are essentially the same: Saxmere at [3].
[7] Importantly the court must examine the matter in two steps:

(a) first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and

(b) secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

[8] Cooke P remarked in Stehlin v Police [1993] WSCA 5 that the doctrine of disqualification for alleged bias has to be applied somewhat robustly in a jurisdiction the size of Samoa. We have not needed to do so in this case.
[9] The Chief Justice has sworn an affidavit stating that his wife never told him that she or her business had any debt with the Church or its Board of Trustees and that consequently he was never aware of it until the matter was raised by the appellant in his appeal against the judgment. (He refers to “my judgment of 17 August 2016”, but plainly is intending to refer to the judgment in this case of 3 August 2016.) He deposes on oath that therefore the debt did not affect or influence in any way the manner in which he heard and otherwise determined the proceedings.
[10] It is convenient to refer first to the issues raised about rulings made by the Chief Justice in the course of the trial. The appellant says that the Church was allowed to file five lengthy affidavits as late as the day prior to the hearing and that he was unable to speak with his counsel Mrs. Woodroffe about them before the trial commenced and he gave his evidence, in substance through cross-examination. He was given only 20 minutes to read the affidavits. Mr. Cooke has, however, pointed out that no order requiring an exchange of affidavits was ever made. The respondents’ witnesses could have elected to give their evidence-in-chief orally, in which case the appellant would have been unaware of what they intended to say until it was put to him in cross-examination. The decision was made late in the piece to have them swear affidavits so that he would not face that situation. The reference to the 20 minutes was misleading. In fact on the first day of the trial the appellant had questions put to him about pending defence evidence only in respect of one witness, who had sworn an affidavit of less than 4 pages in length and the appellant was given 20 minutes to read that. The trial did not begin on the next day until the afternoon so that the appellant had overnight and the morning in which to read and consider the other affidavits.
[11] Mrs. Woodroffe objected at the time that because the appellant was in the middle of cross-examination he would not be able to confer with her but the Chief Justice said that he would meet with the appellant and both counsel in chambers in the morning so that “the issues you wish to raise with your counsel” could be mentioned, if there were any. It was, in our view, proper that in this way the discussion between the appellant and Mrs. Woodroffe could be limited to any particular issues arising from the affidavits. The Chief Justice does not appear to have been saying that the discussion itself would not be in private between the witness and his counsel. Mrs. Woodroffe did not tell us of any prejudice arising from what the Chief Justice proposed. Greater embarrassment could potentially have been caused if no affidavits had been provided.
[12] Mrs. Woodroffe also complained that she was not permitted to make an opening statement in relation to her client’s case, whilst Mr. Cooke was allowed to do so. She also said that the judge frequently interrupted her re-examination of Rev. Reupena. There is nothing in these complaints. Mr. Cooke’s opening before calling his first witness was brief and confined largely to outlining the issues that had arisen from the evidence for the plaintiff. The interruptions were to prevent Mrs. Woodroffe from putting a series of leading question to her client. The judge acted properly in both instances.
[13] None of the rulings of the Chief Justice during the trial have any appearance of bias against the appellant. His summary despatch of the recall application may have been produced by irritation at the allegation of bias being made against him but, equally, he may just have considered, correctly, that any such matter, having been included on the grounds of appeal in CA11/16, should be dealt with by this Court.
[14] We come back to the critical matter - the existence of Mrs. Sapolu’s debt to the Church. The Chief Justice denies knowing about it. We have no evidence on behalf of the appellant which raises any challenge to the Chief Justice’s denial. Mrs. Woodroffe suggested to us that the Chief Justice should simply not be believed; that it was unlikely that Mrs Sapolu would not have told her husband about what was a substantial debt. But whilst her not doing so would be surprising between husband and wife, and we note the absence of any affidavit from Mrs. Sapolu, we must accept the sworn word of the Chief Justice and proceed on the basis that he was unaware of the debt.
[15] It follows that there is nothing to which we have been referred that supports the claim of actual bias. We must accept that the Chief Justice did not know his wife was beholden to the Church. As to apparent bias, the fair-minded lay observer must also be taken to accept that the Chief Justice knew nothing of the debt and consequently would not reasonably apprehend that the Judge might decide the case other than on its merits. Nothing in the conduct of the trial indicates partiality. There would not be perceived to be a ‘real danger’ of bias when the Chief Justice was unaware of the only matter that could have given rise to a concern about his impartiality. It has not been suggested that his membership of the Church or his office-holding in it could do so.
[16] The “bias” ground of appeal therefore fails.

Factual Findings

[17] This case is about the removal of the appellant from his office as an Elder Minister of the Queensland District of the Church. It is not concerned, at least in any direct way, with his subsequently ceasing to be a Minister of the Church.
[18] With that in mind we turn to the Chief Justice’s factual findings. As these are lengthy and are to be found in detail in his judgment we will summarise them.
[19] There were three Sub-Districts of the Queensland District. In 2010 decisions were made in principle to purchase land for the District but it was not until August 2012 that the appellant announced that he had found the land to be purchased and specified amounts that each congregation in the District was expected to donate for that purpose. However, in December the congregations of the South Sub-District, of which Rev. Mataafa was Elder Minister, said they could not afford their expected contributions because of their other financial obligations. In February 2014 members of the three Sub-Districts therefore agreed to defer the purchase. But at a meeting of the Elder Ministers of the District the appellant said that the South Sub-District would no longer be involved.
[20] At a meeting of the Queensland District in Brisbane in April 2014 the appellant announced that he was exercising disciplinary powers. The South Sub-District would be abolished, all officers and members of it would be removed and a new Sub-District would be confirmed by the General Assembly of the Church, with a new Elder Minister to replace Rev. Elder Mataafa. The Chief Justice found that this decision by the appellant was not made conditional, as he had asserted in his evidence, on endorsement by the Elder Ministers’ Committee in Samoa, and that in fact the appellant did not seek approval of his decision by that Committee at its next meeting.
[21] Rev. Elder Mataafa sought help from Samoa seeking the establishment of a new Sub-District because it was not possible to work with the appellant any more. Rev. Mataafa was advised to consult with the Chairman of the Elders Committee, Rev Toailoa, who was Elder Minister of the Sydney District. A meeting was arranged in Brisbane to discuss reconciliation and all Ministers including the appellant were advised. But the appellant refused to meet Rev. Toailoa.
[22] The so-called Directors Committee, which was actually a sub-committee of the Elders Committee, met in Samoa on 12 May 2014 and resolved, apparently after the exclusion of the appellant, that the Queensland District should either reconcile its differences or be divided into separate Districts.
[23] Back in Brisbane the Queensland District met on 4-5 July 2014. The appellant made no attempt at reconciliation. He claimed instead that he had received a resignation letter from the South Sub-District. In fact, it was not a resignation but a list of matters to be discussed including a suggestion that if reconciliation were not possible, the establishment of a new District (by way of division) should be referred to the Directors Committee. The appellant’s reaction was to declare that all offices held by members of the South Sub-District were removed.
[24] On 31 July the appellant did, however, travel to Sydney to apologise to Rev. Toailoa for declining to meet him and that apology was accepted. But the appellant was told of the need to resolve the issues in the Queensland District. Nevertheless, the appellant purported to appoint replacements to Church committees, including a replacement for Rev. Mataafa on the Church Education Committee which met in Samoa. The chairman of that committee instead recognised Rev. Mataafa and not the purported replacement.
[25] The Directors Committee met on 8 January 2015. The appellant informed the meeting that reconciliation was not possible and that he had appointed new office-holders for the Queensland District. The response of the Directors Committee was to take what the Chief Justice said appeared to be its only remaining viable option. It resolved that the Queensland District would divide and that there would be a service in Queensland to bless the division. The Chief Justice found that the appellant was made aware of this decision. The service was held in Brisbane on 10 February 2015 and at it the appellant expressed his opposition. He was, said the Chief Justice, in open opposition to the other Elder Ministers who were members of the Directors Committee.
[26] On 11-12 March the appellant was in Apia for a Directors Meeting. He had already instructed Mrs Woodroffe to act for him and she too was in Samoa. The appellant was excluded from the meeting. The evidence was that it was the usual practice for a member of the Elders committee to be “excused” from the meeting when an issue that affected him personally was to be dismissed. The usual procedure is: the Minister is asked to leave the meeting; the meeting deliberates; the Minister then comes back into the meeting; and he is then given the opportunity to say whatever he wants. The exclusion is intended to encourage free and unhindered discussion. (It is clear from the evidence, as the Chief Justice understood, that “deliberation” includes the making of a decision).
[27] The Directors Meeting resolved to recommend to the Elders Committee that the appellant’s roles as an Elder Minister and as a member of the Directors Committee should be removed. The Committee then sent for him to explain its decision to him but he had already left. At a meeting of the Elders Committee the next day the appellant attended. He asked why he was being removed but “did not say anything in his defence”. The Elders Committee affirmed the recommendation of the Directors Committee. On 19 May 2015 the Annual General Meeting endorsed the decision of the Elders Committee. It was the evidence of the respondents that both before the Elders Committee and at the Annual General Meeting the appellant, who was again present, could have spoken and explained himself and apologised and that if he had done so he might have been forgiven. Even at the General Assembly, it was said, the position was not beyond reconciliation.
[28] The Chief Justice also dealt with the reason for the decision against the appellant, finding that it was not, as the appellant contended, to punish him because of some questions he had asked about financial matters and about an elder minister who had exceeded the retirement age. The real reason was the dispute in the Queensland District which the Chief Justice described as “a schism within the church in the Queensland District”. The failure to arrive at reconciliation was due mainly to the appellant. He had openly criticised the elders and opposed their decision to resolve the dispute by dividing the District. The Queensland dispute was “the burning issue at the time”.
[29] The Chief Justice also concluded that on the occasion of the Directors Meeting in March 2015 the appellant and his lawyer, Mrs. Woodroffe, “were not in a conciliatory or apologetic frame of mind.”

The Constitution of the Church

[30] The Church is unincorporated but has adopted a Constitution. The Constitution records, in Part II (2) of its Preamble, that in Samoa and overseas, there is a well-defined congregation of the Church in every village. There are two parts to the membership, communicant members and others able to participate in most acts of worship and give material assistance to the Church. Members “accept and honour the rules and procedures” of the Church: Preamble Part III (3). The Church is led in each village by an Ordained Minister. The exercise of a Minister’s authority is “dependent upon the views of those under his care:” Preamble Part III (1).
[31] An Elder Minister for each Sub-District is elected by ballot of Ordained Ministers and probation Ministers who have covenanted with the congregations of the Sub-District; they are appointed for terms of 5 years but are eligible for re-election: Elders Committee Part I(1). (In a note to this provision it says that an Elder Minister retains his status as such when he reaches the retirement age of 70.)
[32] The Elder Ministers are the members of the Elders’ Committee whose duties include making decisions on matters referred from District Meetings. In cases of conduct and discipline of the Ministers, the decision of the Elder Committee is final: Elders Committee Part III (2).
[33] The Constitution provides in Elders Committee Part V for a “Ministerial Sub-Committee for Matters Concerning the Ministries” (in practice known as the Directors Committee). Its membership consists of the Chairman and Secretary of the Elders’ Committee, who are its officers, and one Elder Minister elected from each District for 5 years and confirmed by the Elders Committee: Part V (1)(a)&(b). The duties of the Directors Committee include regulating in matters of the conduct and discipline of Ministers and their wives and administering punishment and dismissing from duty Elder Ministers and other Ministers who have not observed and obeyed the terms and conditions of the Constitution: Elders Committee Part V (2)(c). A note to this provision says that the Sub-Committee is to report all its findings to the Elders Committee and that the decision of the Elders Committee shall be final.
[34] Lastly it is necessary to mention the General Assembly, which is the Supreme Council of the Church responsible for making resolutions “pertaining to the general business of the Church, whereas the implementation of the individual ordinary business of the Church” is carried out by committees including the Elders Committee: General Assembly of the Church Part I(2)(a). The General Assembly is the Supreme Council and “its decisions are conclusive and binding on the whole Church:” Part I (2)(b).

Justiciable Claim

[35] The first issue addressed by the Chief Justice was whether the claim brought by the appellants was non-justiciable, i.e., unsuitable for determination by a court of law. He went through a number of authorities including those upon which we will concentrate: Mabon v Conference of the Methodist Church of New Zealand Inc. [1998] NZCA 244; [1998] 3 NZLR 513 (CA), Ermogenous v Greek Orthodox & Community of South Australia Inc. [2002] HCA 8; (2002) 209 CLR 95 (HCA) and Shergill v Khaira [2014] UKSC 33; [2014] 3 All ER 243. He regarded Shergill as departing from what he called the traditional common law approach in presuming that the constitution or rules of an unincorporated religious institution are contractual, whereas, he said, the position in Mabon was that an intention to be contractually binding is not to be presumed but must be proved on the facts: at [54] of the Chief Justice’s judgment.
[36] The Chief Justice said that he had decided to follow the traditional common law approach adopted by the courts of New Zealand, Australia and Canada. The situation in the United Kingdom was quite different from that in Samoa where a minister of a village church [clearly meaning a CCCS church] is chosen and appointed by the congregation of that village and his remuneration is paid for by the congregation from voluntary donations by its members and depends on what the members of the congregation can afford and are willing to donate:

“The congregation can also terminate the service of the minister if they want to at any time without having to consult the Church or its governing body. It is unheard of that a minister can sue a village in Court if his service as minister is terminated for whatever reason by the village congregation and many ministers have been terminated over the years. The church building where religious services are held is also built by the village congregation and belongs to them and not to the Church. The land on which the church building is built also belongs to the village and not the Church. The residence of the minister is also built by the village congregation on village land and belongs to them. The use of the residence by the minister is rent free. A minister also occupies a special position within a village and is accorded special treatment and the highest respect in accordance with Samoan customs and the Christian beliefs of the Samoan people. He is the spiritual father of the village. In such circumstances, there can be no contract between a minister and the Church. The relationship is one between the minister and the village congregation and it is not contractual.

An elder minister is elected by the village ministers of a subdisctrict (pulega). The election has to be approved by the district (matagaluega) and notice therefore should be given to the elders committee. The election will then be referred to the General Assembly of the Church for confirmation. In such circumstances, it is not possible to see any contractual relationship between the subdistrict and the Church, or between the individual village congregations of a subdistrict and the Church, or between an elder minister and the Church. The people involved in this election process do not speak in terms of a contract.[At 56-57]

[37] The Chief Justice referred also to the special position of the Church and of ministers of religions in Samoan society as reflected in the Preamble to the Samoan Constitution, which provides that Samoa is founded on God and on Christian principles and Samoan custom. All of this, he said, was consistent with the traditional common law approach of non-intervention in the internal affairs of a voluntary unincorporated religious institution. He therefore held that the appellant’s causes of action were non-justiciable and should be dismissed.
[38] But lest this Court should take a different view, the Chief Justice helpfully proceeded to deal with other issues raised by counsel. Before setting out our view on justiciability, we will briefly traverse this portion of the judgment under appeal as in our opinion it bears on the question of justiciability. The Chief Justice asked himself the question whether the Constitution of the Church involved a contract between the Church and its members or between the members themselves. He said that it appeared from Mabon and Ermogenous that there was no presumption that arrangements between a Church and a Minister involved an enforceable contract. What had to be ascertained was the actual intention of the parties. He referred particularly to evidence of some of the respondents that there was no contract between the Church and a Minister or its members. The appellant had himself admitted in his evidence when under cross-examination that he had never intended to enter into contractual relationships with anybody else in the Church, nor with the Church itself.
[39] The Chief Justice accordingly took the view that the relationship between the Church and an Elder Minister was not contractual. It was “conditional on the Elder Minister sustaining the support of the Church and its members” and it followed that, if he no longer had that support, then the Church administration could properly replace him, as had happened in this case: at [67] . The Chief Justice referred to various provisions of the Constitution which confirmed his opinion and continued:

“[73] Because an elder minister is elected by his subdistrict and his status is approved by the district followed by confirmation by the elders committee and General Assembly, I accept Mr Cooke’s submission that the loss of confidence of those bodies in an elder minister involves removal of the authority in that elder minister to fill the position of elder minister. So if an elder minister loses the support of the elders committee and the district and ultimately the General Assembly, then he can longer expect to remain the recognised representative under the Constitution...

[74] So how can the plaintiff continue to remain as an elder minister when he has lost the confidence of the subdistrict that elected him, the district that approved his election, the elders committee, and the General Assembly that endorsed and confirmed his election because of the way he handled the Queensland district dispute and his opposition to the hierarchy of the Church for trying to resolve the dispute. It also does not make sense if in those circumstances the plaintiff is to remain the elder minister of the Queensland district when that district no longer exists because it has been divided.”

Justiciability – our view

[40] The Supreme Court of the United Kingdom in Shergill has, we consider, appropriately developed the common law relating to religious bodies as explained in Australasia in Mabon and Ermogenous. In Mabon, which concerned “an unincorporated body of persons” (the Methodist Church of New Zealand), the constitution of the church stated very expressly that a minister was not an employee of the Church. Richardson P said that members of unincorporated associations ordinarily entered into a mutual or consensual compact. In cases where property or civil rights were involved the compact would in a practical sense be enforced but courts must be reluctant to determine what were at heart ecclesiastical disputes where matters of faith or doctrine were at issue. But the Courts would intervene where civil or property rights were involved and could be expected to analyse carefully any argument that conventional incidents of a recognized relationship such as work did not give rise to contractual rights. Rev. Mabon’s personal grievance claim under the Employment Contracts Act 1991 (NZ) in respect of his dismissal failed, in the end, because the laws and regulations of the church provided that a minister was not an employee.
[41] Ermogenous was similarly a monetary claim by a former archbishop, who had resigned, for amounts said to be due for annual leave and long service leave. He alleged an employment relationship had existed with the respondent, an incorporated body. The Full Court of the Supreme Court of South Australia, whose judgment was under appeal, had said that an intention to enter a contractual relationship about the remuneration, maintenance and support of a minister of religion was not to be presumed. The plurality judgment of the High Court of Australia cited the dictum of that Court in Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424 at [45] that “it is of the essence of a contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty”. The search for the intention to create contractual relations required an objective assessment of the state of affairs between the parties. The High Court doubted the utility of using the language of presumptions in this context. It was for the claimant to demonstrate there was a contract: at [26]. The judgment continued:

“More importantly, the use of the language of presumptions may lead, as it did in this case, to treating one proposition (that an intention to create legal relations is not to be presumed) as equivalent to another different proposition (that generally, or usually, or it is to be presumed that, an arrangement about remuneration of a minister of religion will not give rise to legally enforceable obligations). References to “the usual non-contractual status of a priest or minister” and factors which “generally militate against” a finding of intention to create legal relations illustrate the point. The latter proposition may then be understood as suggesting, in some way, that proof to the contrary is to be seen as particularly difficult and yet offer no guidance at all about how it may be done. Especially is that so when the chief factor said to justify the proposition that an intention to create legal relations must be proved (the essentially spiritual role of a minister of religion) is then put forward as the principal reason not to find that intention in a particular case, and any other matters suggesting that there may be an intention to create legal relations are treated as dealing only with “collateral” or “peripheral” aspects of the relationship between the parties. In practice, the latter proposition may rapidly ossify into a rule of law, that there cannot be a contract of employment of minister of religion, distorting the proper application of basic principles of the law of contract (At [27]).

[42] Later there appears the following:

“[37]That the relationship between a minister of religion and the relevant religious body or group in which, and to which, he or she ministers is, at its root, concerned with matters spiritual is self-evidently true. That the minister’s conduct as minister will at least be informed, if not wholly governed, by consideration of matters spiritual is likewise self-evident. It by no mean follows, however, that it is impossible that the relationship between the minister and the body or group which seeks or receives that ministry will be governed by a contract...”

[43] The High Court found that there was a contract between the archbishop and the respondent body. But it remitted the case to the Full Court for it to determine whether that contract was a contract of employment. That may be an important distinction where, as here, a minister of religion is not asserting a relationship of employment with the Church or any of its members.
[44] In a unanimous judgment in Shergill the Supreme Court of the United Kingdom was dealing with the terms of trusts under which temples were held for a Sikh sect. The Court of Appeal had held that the dispute was not justiciable because of its religious aspects, but the Supreme Court did not agree. The religious body in the case was an unincorporated body but it had a constitution. The Court made the following important statements of law:

“[46] The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association’s governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of remunerated office. But disputes about the doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law:...

[47] The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the association’s contractual constitution.”

[48] Similarly, members of religious association who are dismissed or otherwise subjected to disciplinary procedure may invoke the jurisdiction of the civil courts if the association acts ultra vires or breaches in a fundamental way the rules of fair procedure. The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association: Dawkins v Antrobus [1881] UKLawRpCh 28; (1881) 17 Ch D 615. Its role is more modest: it keeps the parties to their contract.”

[45] The Court quoted with approval from the decision of Lord Justice – Clerk Aitchison in the Scottish case of McDonald v Burns 1940 SC 326 at 383-384:

“In what circumstances, then, will the Courts entertain actions arising out of judgments of ecclesiastical bodies: Speaking generally, in either of two situations – (first) where the religious association through its agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (secondly) where, although acting within its constitution, the procedure of its judicial or quasi-judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of any ordinary civil tribunal, be sufficient to vitiate the proceedings. But a mere irregularity in procedure is not enough. ... In short, the irregularity alleged must not be simply a point of form, or a departure from prescribed regulation, but must go to the honesty and integrity of the proceedings complained of.”

[46] And later the Supreme Court said (at [52]) that the law looks to the fundamental principles and essential standards of the body rather than minor matters of administration and minor changes in doctrine and (at [58]) that where a challenge is brought to the contractual jurisdiction of a voluntary association, the Court has power to consider questions of ultra vires and allegations of breaches of natural justice.
[47] We distill from the foregoing authorities the following propositions relevant to the current dispute:

1. The constitution of an unincorporated religious body like the Congregational Christian Church of Samoa is a civil contract which sets out the rights and duties of both the members and its governing organs (in this case the General Assembly and, particularly, the various committees and sub-committees). The constitution could of course exclude right and duties (as the constitution in Mabon did in disclaiming the employment relationship).
2. The courts will not interfere in the conduct of the religious body’s affairs unless there is a question of the infringement of a civil right or interest. The holding of an office within the body (here the office of Elder Minister) gives the office-holder the rights relating to that office found in the constitution, as well as rendering the office-holder subject to duties found there.

100. The courts will not however interfere at the behest of the office-holder unless a governing organ of the religious body acts outside of its constitutional powers or there is a serious breach of the rules of fair procedure in the way in which that organ conducts itself, i.e., there is a breach of the rules of natural justice prejudicing the office-holder. The courts will not concern themselves with minor irregularities, nor will they became involved in the determination of an essentially religious or spiritual dispute unless a civil right or interest is affected.

[48] With respect to the Chief Justice, we consider that those are general common law principles that ought to, and do, apply in Samoa and to the Church. They involve no burdensome constraint on the operations of its General Assembly or other governing organs. In choosing to adopt a constitution it has chosen to apply to its members, office-holders and organs the rules and regulations found therein. They are sufficiently particularised to have binding force. Indeed there would be little point in saying, as the Constitution does in relation to the Elders Committee and the General Assembly, that their decisions are final and binding if they have no legal effect when validly reached (i.e., without fundamental procedural irregularity).
[49] Having carefully considered the provisions of the Constitution of the Church we are brought to the view that if must have been intended to have contractual force in the sense that members, office-holders and governing organs of the Church are bound in law to comply with its terms. We see nothing in those terms or in statements of religious principle in the Constitution that is inconsistent with the intention that the Constitution operates contractually. We also observe that the senior governing organs of the Church – the General Assembly and the Elders Committee - are given by the Constitution broad powers, including disciplinary powers, with which the courts will not lightly interfere. We stress the observation of the Supreme Court in Shergill (at [48]) that the civil court does not decide the merits of disciplinary action if that action is taken within the contractual powers of the relevant organ and, we add, it acts without breaching the rules of natural justice.
[50] Accordingly, we conclude that the present dispute is justiciable and that the Constitution constitutes a contract regulating the affairs of the Church. We are of course conscious of the evidence given for both parties that there was no intention to have a contract but it seems to us that those witnesses were directing their minds to the kind of individual contract that is part of everyday life, such as an agreement to purchase a motor-car. As lay people (in relation to the law) they could not be expected to know that there is another kind of contract, namely that which exists when a corporate or unincorporated body adopts a constitution.
[51] We should emphasise that the appellant is not asserting a contract of employment, which would be difficult to establish for the reasons given by the Chief Justice: see paragraph [36] of this judgment. Instead the appellant is seeking to enforce what he claims to be a right to continue in an office of the Church, namely as an Elder Minister.

The Powers of the Elders Committee

[52] We agree with Mr. Cooke that the authority of a Minister of the Church, which must include an Elder Minister, derives from the confidence placed in him by his congregation (or, in the case of an Elder Minister, the congregations in his District or Sub-District). The Constitution states at Preamble Par III (1) that the Servant of God “receives his authority from our Lord” but that his authority “shall be dependent upon the views of those under his care”. The integrity of the Servant of God must be “clearly evident to the people.” That authority will be lost if the congregation loses confidence and trust in the Minister. It can then be expected that steps will be taken to correct that situation and, if thought necessary, even to remove the Minister from his office-holding in the Church.
[53] Just as the appointment and approval of Elder Ministers by their Sub- District and District must be confirmed by the Elders Committee, the power of disciplining them is vested by the Constitution in the Elders Committee: Elders Committee Part III (2). That must be taken to include a power of removal where the confidence of the congregations of the District has been lost. On a matter of the merits of such removal in a particular case the courts will be slow to enter. It is a matter for the judgment, spiritual or otherwise, of the other senior Ministers who are the members of the Elders Committee and its delegate, the Directors Committee, which also has express disciplinary powers: Part V (2) (c).
[54] In short, we consider that the Elders Committee had ample power to remove Rev. Reupena, on the recommendation of the Directors Committee, if the Directors Committee after a fair process had come to the conclusion that his District had lost confidence in him so that it was not accepting of his authority. We do not enter into the merits of that decision. Once that decision was made, the final confirmation by the General Assembly was conclusive and binding, again assuming a fair process by the Directors Committee.

Natural Justice

[55] On the other hand, we find that the Directors Committee did not conduct itself in accordance with the principles of natural justice. It did not afford Rev. Reupena a fair hearing. At the crucial meeting on 11 March 2015 Rev. Reupena was not permitted to speak in his own defence before the decision to recommend his removal was made. It is true that the Committee followed its usual procedure but that procedure is quite unsatisfactory and creates an unfairness that is not, in our view, remedied by affording the person whose conduct is under consideration an opportunity of speaking only after the decision (to remove) has already been made. The Chief Justice recorded at [33] of his judgment:

“The [appellant] was not present at the time of the discussions and deliberations because he had been excused from the meeting. So he could not have been aware of what was actually discussed in the meeting and the reasons for the decisions”.

[56] That, with all due respect to the Committee, was unfair. It may well be, as the Chief Justice found, that the appellant knew what was “the burning issue” but he would have had no idea about the particular allegations being raised at the meeting, which possibly he may have been able to answer. He was entitled to hear the case against him and to respond to it. Once he had been given that opportunity it was of course permissible for the appellant to be excluded while the actual decision-making discussion occurred. But it was quite wrong for the decision to be made before the appellant had the opportunity to be heard. There are obvious difficulties in persuading people in authority who have already made up their collective mind to change it after a decision is made.

Relief

[56] Normally once a court has set aside a decision on such a ground it will order that the decision should be re-considered in a proper process. But Mrs. Woodroffe advised us that her client accepted that matters have moved on to such a degree that this is no longer a realistic course. Once the interim injunction was discharged the division of the Queensland District proceeded. New Elder Ministers have been elected and confirmed in office. Moreover, the courts are reluctant to order reinstatement to office in a situation where it is clear that there is a loss of trust and confidence in each side, as is evident here.
[57] The orders of the Court are as follows:

1. The appeal in CA 11/16 is allowed;
2. It is declared that the removal of the appellant from the District was unlawful because his right to observance of the principles of natural justice was not honoured by the Directors Committee;

100. Costs are reserved. The parties may file memoranda as to costs within 20 working days of delivery of this judgment.
     

HONOURABLE JUSTICE BLANCHARD

HONOURABLE JUSTICE PANCKHURST

HONOURABLE JUSTICE TUALA-WARREN