Reupena v Senara [2015] WSSC 53 (27 May 2015)

IN THE SUPREME COURT OF SAMOA
Rev. Elder Reupena v Rev. Elder Senara and Ors and Congregational Christian Church Samoa [2015] WSSC 53

Case name:	Rev. Elder Reupena v Rev. Elder Senara & Ors and Congregational Christian Church of Samoa
Citation:	[2015] WSSC 53
Decision date:	Conclusions: 15 May 2015 Reasons for Judgment - 27 May 2015
Parties:	REV. ELDER KERITA REUPENA Church Minister, of Ipswich, Queensland, Australia First Applicant / First Plaintiff A N D REV. ELDER KERITA REUPENA a Church Minister of Ipswich, Queensland, Australia, a duly nominated and authorised representative of the 1,100 members of 16 Congregations of the Queensland District of the Congregation Christian Church Samoa Second Applicant / Second Plaintiff A N D REV. ELDER TAUTIAGA SENARA a Church Minister of Matautu, Falelatai, Samoa, REV. ELDER PELETI TOESE TOAILOA a Church Minister of 391 Cabramatta road, Cabramatta West, New South Wales, Australia, REV. ELDER TAVITA ROMA a Church Minister of Sala’ilua, Savaii , Samoa, REV. ELDER KERISIANO SOTI a Church Minister of Falelauniu , Samoa, REV. ELDER LIKI TIATIA a Church Minister of 109S. Aprilia Avenue, Compton, California, United States of America, REV. ELDER IOSIA EVILE a Church Minister of Mahau Place, Mililani, Honolulu, Hawaii, United States of America, REV. ELDER AVITI ETUALE a Church Minister of 1200 Somerton Road, Oaklands Junction, Victoria, Australia, REV. ELDER TAVITA TAULEALO, a Church Minister of 20-22 Hunua Road, Papakura, Auckland, New Zealand, REV. ELDER LUCKY SLADE a Church Minister of 472 Te Atatu Road, Te Atatu Peninsular, Auckland, New Zealand, REV. ELDER TUMAMA VILI a Church Minister of 21 St Lukes Street, Woolston, Christchurch, New Zealand, REV. ELDER ASOTASI TIME a Church Minister of Uafato, Fagaloa, Samoa, REV. ELDER TAVITA ANESONE a Church Minister of Alafua, Apia, Samoa, REV. ELDER IOSEFA UILELEA a Church Minister of Lotofaga, Upolu, Samoa, REV. ELDER TUNUMOSO IOSIA a Church Minister of Sapoe, Samoa, REV. ELDER AMUIA TAVANA a Church Minister of Papa Sataua, Samoa, and REV. ELDER ETI TAMATI a Church Minister of Faleasiu, Samoa, all members of the Directors Sub-Committee First Respondents / First Defendants A N D REV. ELDER TAUTIAGA SENARA a Church Minister of Samoa, Chairperson of the Congregational Christian Church in Samoa an unincorporated body of Samoa, sued in a representative capacity under Rule 36 of the Supreme Court (Civil Procedure) Rules 1980 Second Respondent / Second Defendant
Hearing date(s):	12 & 13 May 2015
File number(s):	CP 47/15
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	(a) In respect of the first respondents/defendants, their motion to strike out the first amended statement of claim is denied. (b) The first amended statement of claim by the applicants/plaintiffs in so far as it relates to the second respondent/defendant is struck out. (c) Until further order, an interim injunction is issued to restrain the first respondents/defendants from seeking and/or accepting the appointment of a new reverend elder for the Queensland District to replace the first applicant/plaintiff as a member of the ministerial sub-committee or any other committee of the Congregational Christian Church Samoa. In all other respects, the motion by the applicants/plaintiffs for an injunction is denied.
Representation:	C Pidgeon QC (of the New Zealand Bar) and O Woodroffe for the first applicant /plaintiff and second applicants/plaintiffs T Leavai for first respondents/defendants S Leung Wai for second respondent/defendant
Catchwords:	Motion for an injunction – motion to strike out statement of claim– ecclesiastical law– justiciable or non justiciable – voluntary association – consensual compact -
Words and phrases:	‘ultra vires – church constitution
Legislation cited:
Cases cited:	Agriculture and Fisheries [1993] 2 NZLR 53 Mabon v Conference of the Methodist Church of New Zealand [1993] 3 NZLR 513 Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1 Attorney General v McVeagh [1995] 1 NZLR 558,566 Bluesky Communications Ltd v Attorney General [2007] WSSC 58; Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526 Britain and the Commonwealth, ex p Wachmann [1993] 2 All ER 249; Cathedral of St Mary the Protectress [1939] 2 DLR 495 Peter Meredith & Co Ltd v Drake solicitors Nominee Co Ltd [2001] WSSC 32; Chan Tung v Attorney General [2005] WSSC 24; Davies v Presbyterian Church of Wales [1986] 1 All ER 705, Dawkins v Antrobus [1881] UKLawRpCh 28; 17 Ch D 615 Electricity Corporation Ltd v Gutherm Energy [1992] 2 NZLR 641, 645-646; Ermogenous v Greek Orthodox Community of SA Inc Gregory v Bishop of Waiapu [1975] 1 NZLR 705 at p. 708. Lakeside Colony of Hutterian Brethren v Hofer (1992) 97 DLR (4th) 17 Southern Ocean Trawlers Ltd v Director-General of Marshall v National Spiritual Assembly of the Baha’is of New Zealand Inc [2003] 2 NZLR 205 Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121 Presbyterian Church Property Trustees v Fuimaono R v Chief Rabbi of the United Hebrew Congregations of Great Ukrainian Greek Orthodox Church v Ukrainian Greek Orthodox Shergill v Khaira [2014] UKSC 33
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 47/15

BETWEEN

REV. ELDER KERITA REUPENA Church Minister, of Ipswich, Queensland, Australia
First Applicant / First Plaintiff

A N D

REV. ELDER KERITA REUPENA a Church Minister of Ipswich, Queensland, Australia, a duly nominated and authorised representative of the 1,100 members of 16 Congregations of the Queensland District of the Congregation Christian Church Samoa
Second Applicant / Second Plaintiff

A N D

REV. ELDER TAUTIAGA SENARA a Church Minister of Matautu, Falelatai, Samoa, REV. ELDER PELETI TOESE TOAILOA a Church Minister of 391 Cabramatta road, Cabramatta West, New South Wales, Australia, REV. ELDER TAVITA ROMA a Church Minister of Sala’ilua, Savaii , Samoa, REV. ELDER KERISIANO SOTI a Church Minister of Falelauniu , Samoa, REV. ELDER LIKI TIATIA a Church Minister of 109S. Aprilia Avenue, Compton, California, United States of America, REV. ELDER IOSIA EVILE a Church Minister of Mahau Place, Mililani, Honolulu, Hawaii, United States of America, REV. ELDER AVITI ETUALE a Church Minister of 1200 Somerton Road, Oaklands Junction, Victoria, Australia, REV. ELDER TAVITA TAULEALO, a Church Minister of 20-22 Hunua Road, Papakura, Auckland, New Zealand, REV. ELDER LUCKY SLADE a Church Minister of 472 Te Atatu Road, Te Atatu Peninsular, Auckland, New Zealand, REV. ELDER TUMAMA VILI a Church Minister of 21 St Lukes Street, Woolston, Christchurch, New Zealand, REV. ELDER ASOTASI TIME a Church Minister of Uafato, Fagaloa, Samoa, REV. ELDER TAVITA ANESONE a Church Minister of Alafua, Apia, Samoa, REV. ELDER IOSEFA UILELEA a Church Minister of Lotofaga, Upolu, Samoa, REV. ELDER TUNUMOSO IOSIA a Church Minister of Sapoe, Samoa, REV. ELDER AMUIA TAVANA a Church Minister of Papa Sataua, Samoa, and REV. ELDER ETI TAMATI a Church Minister of Faleasiu, Samoa, all members of the Directors Sub-Committee.
First Respondents / First Defendants

A N D

REV. ELDER TAUTIAGA SENARA a Church Minister of Samoa, Chairperson of the Congregational Christian Church in Samoa an unincorporated body of Samoa, sued in a representative capacity under Rule 36 of the Supreme Court (Civil Procedure) Rules 1980
Second Respondent / Second Defendant

Counsel:
C Pidgeon QC (of the New Zealand Bar) and O Woodroffe for the first applicant /plaintiff and second applicants/plaintiffs
T Leavai for first respondents/defendants
S Leung Wai for second respondent/defendant

Hearing: 12, 13 May 2015

Judgment/Conclusions: 15 May 2015

Reasons for Judgment: 27 May 2015

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve a motion by the first respondents/defendants and a motion by the second respondent/defendant to strike out the first amended statement of claim by the first applicant/plaintiff and the second applicant plaintiff. These proceedings also involve a motion for an injunction by the first applicant/plaintiff and the second applicant/plaintiff against the first respondents/defendants and the second respondent/defendant.
2. The first applicant/plaintiff is a minister of religion of the Congregational Christian Church Samoa (the Church) for the congregation in Ipswich, Queensland, Australia. He is also cited as second applicant/plaintiff representing sixteen congregations of the Queensland district of the Church. From the affidavit of reverend elder Lauie Lupematasila of Brisbane, Australia, filed in support of the strike out motions, I accept that five of the congregations of the Queensland district do not support the claim by the first applicant/plaintiff.
3. The first respondents/defendants are the members of the ministerial sub-committee of the elders committee of the Church. The second respondent/defendant is the chairman of the general assembly of the Church and is cited as second respondent/defendant in that capacity.
4. After the hearing on the motions to strike out the first amended statement of claim and the motion for an injunction on 12 and 13 May 2015, I delivered my judgment/conclusions on 15 May.
5. I also indicated to counsel on 15 May that my reasons for the conclusions I have reached will be reduced to writing and given to counsel in due course. These are those reasons.
6. For convenience, I will continue to refer to the Congregational Christian Church Samoa as “the Church”. I will also deal with the motions in three PARTS. In PART A, I will deal with the motions to strike out the first amended statement of claim. For the purposes of PART A, I will refer to the first applicant/plaintiff as the “first plaintiff” and the second applicant/plaintiff as the “second plaintiff” and to both of them collectively as “the plaintiffs”. I will also refer to the first respondents/defendants as “the first defendants” and the second respondent/defendant as the “second defendant”
7. In PART B, I will deal with the motion for an injunction. For the purposes of PART B, I will refer to the first applicant/plaintiff as “the first applicant” and the second applicant/plaintiff as “the second applicant”. I will also refer to the first respondents/defendants as “the first respondents” and the second respondent/defendant as “the second respondent”.
8. In PART C, I will set out the conclusions I delivered on 15 May 2015.
   • PART A

The approach to a motion to strike out a statement of claim as disclosing no reasonable cause of action

9. The approach taken by the Samoan Courts to a motion to strike out a statement of claim for disclosing no reasonable cause of action is well established, for example, see Peter Meredith & Co Ltd v Drake solicitors Nominee Co Ltd [2001] WSSC 32; Chan Tung v Attorney General [2005] WSSC 24; Bluesky Communications Ltd v Attorney General [2007] WSSC 58; Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1, [5] – [11].
10. In Chan Tung v Attorney General [2005] WSSC 24, this Court said:
    • “Essentially, the approach that the Samoan Courts have adopted to a motion to strike out a statement of claim as disclosing no reasonable cause of action is that the summary jurisdiction to strike out is to be sparingly exercised. It is to be exercised only in a plain and obvious case where it appears from the material before the Court that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail: see, for example, Peter Meredith & Co Ltd v Drake Solicitors Nominee Co Ltd [2001] WSSC 32.
    • “For the purpose of the exercise of the summary jurisdiction to strike out a claim as not disclosing a reasonable cause of action, the Court proceeds on the assumption that the facts pleaded in the statement of claim are true, that is, capable of being proved”.
11. The assumption that the facts pleaded in the statement of claim are true is only an assumption. It can be rebutted if it appears clear from the undisputed material placed before the Court that an allegation of fact pleaded in a cause of action cannot be supported. This approach is reflected from Attorney General v McVeagh [1995] 1 NZLR 558,566 where the New Zealand Court of Appeal said:
    • “The Court is entitled to receive affidavit evidence on a strike out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved; see Electricity Corporation Ltd v Gutherm Energy [1992] 2 NZLR 641, 645-646; Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 62-63, per Cooke P. But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further”.
12. Furthermore, a statement of claim should not be struck out if the pleadings are capable of amendment and the defendant can be adequately compensated with an award of costs.

The causes of action

13. The first plaintiff is a minister of religion of the Congregational Christian Church Samoa at Ipswich, Queensland, Australia. In 1997, he was appointed as elder minister for the West Brisbane sub-district (pulega) and became a member of the elders committee (Komiti A Le Au Toeaina) of the Church. In 2002 he was further appointed as a member of the ministerial sub-committee (Komiti Faatonu) of the Church. He held these appointments up to 11 March 2015.
14. There are three causes of action pleaded by the plaintiffs in their first amended statement of claim. These causes of action as described in the submissions of Mr. Pidgeon QC senior counsel for the plaintiffs are firstly, that the first defendants acted ultra vires the constitution of the Church; secondly, that the first defendants have acted in breach of the constitution of the Church; and, thirdly, that the first defendants have breached the plaintiffs rights to natural justice.

(a) First cause of action – The first defendants have acted ultra vires the constitution of the Church

15. It is alleged by the plaintiffs that at a meeting of the ministerial sub-committee held in Apia on 11 March 2015, the first plaintiff was removed from the position of elder minister for the West Brisbane sub-district and as a member of the ministerial sub-committee. I do not have to delve into the reasons for the removal of the first defendant at this stage. They will be dealt with at the substantive hearing. Suffice to say at this point that the reasons given in the first plaintiff’s first amended statement and supporting affidavits and the reasons given in the defendant’s affidavits in support of their strike out motions do not speak with one voice.
16. Following the removal of the first plaintiff, both plaintiffs brought this action against the members of the ministerial sub-committee as first defendants in their individual capacities for the decision they are alleged to have made as the ministerial sub-committee in respect of the first plaintiff. The chairman of the general assembly of the Church is also cited as second defendant. The plaintiffs first cause of action is that the decision by the ministerial sub-committee to remove the first plaintiff from the position of elder minister and as a member of the ministerial sub-committee is ultra vires the constitution of the Church. Essentially, the plaintiffs claim that the ministerial sub-committee does not have any power under the constitution of the Church for the decision it made in respect of the first plaintiff. Certain declarations are then sought.

(b) Second cause of action – The defendants have acted in breach of the constitution of the Church

17. In the alternative, the plaintiffs claim in their second cause of action that if the Court is minded to find that the ministerial sub-committee did have the power to terminate the position of the first plaintiff as elder minister and remove him as a member of the ministerial sub-committee then that decision was made in breach of the constitution of the Church.
18. The plaintiffs plead in their first amended statement of claim that the only disciplinary power given under the constitution is the power to discipline for breaches of the constitution as provided in clause III 1 (d). They allege that the reason for the decision of the ministerial sub-committee to terminate the position of the first plaintiff as an elder minister and remove him as a member of the ministerial sub-committee does not constitute a breach of the constitution of the Church. In addition, at no time has it been alleged by the defendants that the first plaintiff has acted in breach of the constitution.

(c) Third cause of action – The defendants have breached the first plaintiff’s rights to natural justice

19. In their third cause of action, the plaintiffs claim that the decision of the ministerial sub-committee was made in breach of the plaintiffs rights to natural justice. That is because the first plaintiff was not given notice of any complaint or charge against him or any opportunity to respond or be heard on such complaint or charge before the ministerial sub-committee made the decision to terminate the first plaintiffs position as elder minister and remove him as a member of the ministerial sub-committee. The plaintiffs also claim that the decision of the ministerial sub-committee was made in breach of the plaintiffs rights to natural justice because some of the first defendants who participated in the making of the decision had conflicts of interest and therefore should not have taken part in the decision.

The strike out motions by the defendants

20. As pleaded and developed in the submissions of counsel, the motions of the defendants to strike out the plaintiffs first amended statement of claim are based on four grounds. Firstly, the plaintiffs claim is non-justiciable; secondly the decision made on 11 March 2015 by the ministerial sub-committee (Komiti Faatonu) to terminate the position of the first plaintiff as elder minister and remove him as a member of the ministerial sub-committee was not ultra vires the constitution of the Church; thirdly, in making the decision of 11 March 2015 the defendants did not breach the constitution of the Church; and fourthly, the defendants did not breach the plaintiffs rights to natural justice. Counsel for the defendants also seek any other orders as the Court deems just. I will now deal with each of the grounds of the strike out motion.

(a) Non-justiciability

21. The first ground of the defendants strike out motion is that the whole claim of the plaintiffs and its three causes of action is non-justiciable, that is to say, unsuitable for judicial determination by a Court of law. Because of the importance and novelty of this issue for the purposes of Samoan ecclesiastical law, I will refer at some length to the relevant authorities cited by both counsel for the plaintiffs and the defendants in support of their respective submissions. I will start with the New Zealand authorities cited by counsel for the defendants.
22. In Mabon v Conference of the Methodist Church of New Zealand [1993] 3 NZLR 513, Richardson J in delivering the judgment of the New Zealand Court of Appeal said at p. 523:
    • “Clearly, and reflecting the separation of church and state, Courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue. But the Courts will intervene where civil or property rights are involved and can be expected to analyse carefully any argument that conventional incidents of a recognised relationship such as work do not give rise to contractual rights.
23. In Marshall v National Spiritual Assembly of the Baha’is of New Zealand Inc [2003] 2 NZLR 205, which was concerned with an action for a declaration by a member of the Baha’i faith that the termination of his membership of the Baha’i faith by the National Spiritual Assembly was in breach of natural justice and therefore unlawful and of no effect, Randerson J in the New Zealand High Court said at [31] – [35]:
    • “[31] Ms Katz made comprehensive submissions in an endeavour to persuade me that the matters at issue were non-justifiable as being wholly or mainly spiritual or religious issues in which state Courts should not intervene. Ms Katz reviewed authorities in New Zealand as well as a number of overseas jurisdictions. It is unnecessary for me to examine all the authorities relied upon. They support the proposition that the Courts have traditionally shown a reluctance to intervene where purely spiritual or religious issues are at stake. Such matters are best left to the determination of the church or other religious body in question. However, the authorities also show that the Courts have been prepared to intervene where civil, economic, or proprietary rights are alleged to have been infringed”.
24. At [32] of his judgment, Randerson J referred with approval to Mabon v Conference of the Methodist Church of New Zealand [1993] 3 NZLR 513 and the passage I have already cited in para 20 of these reasons for judgment. His Honour then continued by saying:
    • “[33] The reluctance of the New Zealand Courts to intervene in ecclesiastical matters was also emphasised in the earlier decision of Beattice J in Gregory v Bishop of Waiapu [1975] 1 NZLR 705 at p. 708.
    • “[34] Similar sentiments have been emphasised in overseas authorities, including R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p Wachmann [1993] 2 All ER 249; the Canadian decisions in Ukrainian Greek Orthodox Church v Ukrainian Greek Orthodox Cathedral of St Mary the Protectress [1939] 2 DLR 495 and Lakeside Colony of Hutterian Brethren v Hofer (1992) 97 DLR (4th) 17 at pp 17-20; and in the recent decision of the High Court of Australia in Ermogenous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92 at pp 104 and 113.
    • “[35] Here, there is no suggestion that the plaintiff’s economic or proprietary rights have been affected. To the extent that her rights may have been unlawfully infringed, they relate to her right of membership of the Baha’i faith and the voting rights in relation to the national assembly. These rights are undoubtedly important to the plaintiff but according to the authorities, they are not generally given the same weight as a potential infringement of economic or proprietary rights”.
25. The plaintiff’s claim for a declaration that the termination of her membership of the Baha’i faith was in breach of natural justice and therefore unlawful and of no effect was struck out.
26. In the case of Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526, Associate Judge Doogue of the New Zealand High Court said at [50]:
    • “[50] The second and alternative point involves the issue of whether the Courts have jurisdiction to enquire into the affairs of churches. The Courts have long recognised that the constitution of a religious body, as a consensual compact binding on the conscience of the individual members, and its provisions, are without contractual force and, with certain limited exceptions, are not justiciable in a civil Court”.
27. Further on, Associate Judge Doogue after reviewing Marshall v National Spiritual Assembly of the Baha’i’s of New Zealand Inc [2003] 2 NZLR 205 and relevant English authorities said at [57]:
    • “[57] However, the various authorities that I have referred to make it clear that the voluntary nature of the church, particularly when coupled with the additional feature that the case is concerned with matters involving faith and doctrine, mean that the Courts are reluctant to intervene where no property or monetary interest or something of that kind is at stake”.
28. As the Church is a voluntary association of a religious character, it would be appropriate to refer at this point to two decisions of the High Court of Australia which are relevant to the relationship between a minister of religion and his church. The first is Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 where Rich, Dixon, Evatt and McTiernan JJ in a joint judgment said at p. 370:
    • “Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of the rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v Eden (1867) LR 1 Lord Cranworth said: ‘Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs’... There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorised resolution expelling a member of a voluntary association, or by the failure of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature”.
29. Further on, Rich, Dixon, Evatt and McTiernan JJ said at pp. 370-371:
    • “They [voluntary associations] are for the most part bodies of persons who have combined to further some common end or interest, which is social, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract”
30. In a separate judgment delivered by Starke J, His Honour said at p. 384:
    • “As a general rule, the Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club. ‘Agreements to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property’: Murdison v Scottish Football Union (1896) 23 R. (Ct. of Sess) 449, at pp. 466, 467...”
31. The second decision of the High Court of Australia is Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8. In a joint judgment by Gaudron, McHugh, Hayne and Callinan JJ, their Honours said at paras 37, 38:
    • “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 means 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, and the respondent in this appeal did not seek to advance any such absolute proposition. Rather, the respondent advanced the more limited proposition, that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a minister of religion but must affirmatively be proved. Nevertheless, it is as well to identify some aspects of the more absolute proposition earlier identified – that the relationship between minister and church is pre-eminently or even entirely spiritual because, in the end, the conclusion at which the majority of the Full Court arrived, was that the only arrangement or relationship which the appellant had was with a church..., and was spiritual, not a contractual relationship.
      • “38. First, although the proposition that the relationship between minister and church is pre-eminently or even entirely spiritual is couched in apparently absolute terms, it has been recognised that there are aspects of that relationship which may give rise to legally enforceable rights and duties. As was pointed out in Davies v Presbyterian Church of Wales [1986] 1 All ER 705, 710:
        • “ ‘Until the applicant [in that case] was deprived of his pastorate in accordance with the procedures laid down in the book of rules, he was entitled to be paid his stipend out of the income of the sustentation fund and to occupy his manse’ ”
32. In the English case of Davies v Presbyterian Church of Wales [1986] 1 All ER 705, which was a decision of the House of Lords, Lord Templeman in a judgment with which the other Law Lords concurred, said at p. 709:
    • “[It] is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the pastor of the Church cannot point to any contract between himself and the Church. The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to be Church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the Church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the Church, then his pastorate can be brought to an end by the Church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules...
    • “The duties owed by the Church to the pastor are not contractual. The law imposes on the Church a duty not to deprive a pastor of his office which carries a stipend, save in accordance with the procedures set forth in the book of rules. The law imposes on the Church a duty to administer its property in accordance with the provisions of the book of rules. In Forbes v Eden (1867) LR 1 Sc & Div 568 at 581 -582 Lord Cranworth said:
      • “ ‘Save for the disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs’ ”.
33. Further on Lord Templeman said at p.710:
    • “There was no contract of service between the appellant and the Church, only obligations on the part of the Church to administer Church property in accordance with the trusts contained in the book of rules, and an obligation to ensure that no member of the Church was unlawfully deprived of a benefit from Church property to which that member was entitled under the rules. There is indeed an agreement between all the members of the Church to perform and observe the provisions of the book of rules, but that agreement will only be enforceable at law in respect of any property rights to which a member is entitled under the terms of the agreement”.
34. Mr. Pidgeon QC who was engaged as counsel by the plaintiffs at a very late stage referred in his submissions to the recent decision of the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33. To an extent, this decision marks a departure, in so far as English law is concerned, from the traditional position regarding the non-justiciability of religious issues by enlarging the circumstances in which an English Court can intervene in such issues. In the joint judgment of Lords Neuberger, Sumption and Hodge with which Lords Mance and Walker concurred, their Lordships said at [45] – [48], pp 260, 261:
    • “[45] This distinction between a religious belief or practice and its civil consequences underlies the way that the English and Scottish Courts have always, until recently, approached issues arising out of disputes within a religious community or with a religious basis. In both jurisdictions the Courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the Court to enforce private rights and obligations which depend on religious issues, the Judge may have to determine such religious issues as are capable of objective assessment. The Court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust...
    • “[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 a remunerated office. But disputes about 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. If a governing body of a religious community were to act ultra vires, for example, by seeking a union with another religious body which its constitution did not allow, a member of the community could invoke the jurisdiction of the Courts to restrain an unlawful union...
    • “[48] Similarly, members of a 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, [1881-5] All ER Rep 126. Its role is more modest: it keeps the parties to their contract.”
35. The decision in Shergill v Khaira [2014] UKSC 33 is of course not binding on the Samoan Courts. But because it is a decision of the highest Court in the United Kingdom it is of high persuasive authority. Traditionally, decisions of the House of Lords which was the predecessor of the United Kingdom Supreme Court was accorded high respect and authority.
36. Mr. Pidgeon also referred to the New Zealand case of Presbyterian Church Property Trustees v Fuimaono (1986) (unreported judgment of Thorp J in the New Zealand High Court delivered on 16 October 1986). In that case, it was held that the rules of natural justice applied to the decision of the general assembly of the Presbyterian Church of New Zealand to server ties with a minister because of the adverse economic and proprietary effects of the decision on the minister. It was distinguished by Randerson J in Marshall v National Spiritual Assembly of the Baha’i’s in New Zealand [2003] 2 NZLR 205, [29], [30].

Discussion

37. It is appears from the New Zealand authorities of Mabon v Conference of the Methodist Church of New Zealand [1993] 3 NZLR 513;, Marshall v National Spiritual Assembly of the Baha’i’s of New Zealand Inc [2003] 2 NZLR 205; Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526 that the position in New Zealand is that ecclesiastical disputes or disputes which involve purely spiritual or religious issues are non-justiciable and the Courts have traditionally been reluctant to intervene in such issues unless civil, economic, or proprietary rights have been infringed.
38. The position in Canada is similar to that in New Zealand as pointed out by Randerson J in Marshall v National Spiritual Assembly of the Baha’i’s of New Zealand Inc [2003] 2 NZLR 205, at [34].
39. The position in Australia is also basically the same. As it appears from Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8, the relationship between a minister and his church is religious and not contractual. Such a relationship may give rise to legally enforceable rights and duties where economic or proprietary rights are affected. It also appears from Cameron v Hogan (1934) 51 CCR 358, 370 – 371, that the relationship between members of a voluntary association like a religious body is non-contractual unless there is some clear positive indication that the members contemplated the creation of contractual relations which would be enforceable.
40. In England until Shergill v Khaira [2014] UKSC 33, the legal position was the same as it is in New Zealand, Canada, and Australia. As pointed out in the decision of the House of Lords in Davies v Presbyterian Church of Wales [1986] 1 All ER 705, the duties owed by a pastor to the Church are spiritual and not contractual unless the pastor is contracted to carry out those spiritual duties then the contract will be enforceable. But if there is no such contract, then the duties of a pastor being spiritual are non-justiciable and non-enforceable. However, the Court may intervene where economic or proprietary rights have been infringed. This was also the position taken in Shergill v Khaira when that case was before the English Court of Appeal. The position of English law changed when Shergill v Khaira reached the United Kingdom Supreme Court.
41. It is at least arguable as Mr Pidgeon submitted that this may now be a developing area of the law given Shergill v Khaira [2014] UKSC 33. In this situation, it will be inappropriate at this stage to strike out the plaintiffs first amended statement of claim on the ground of non-justiciability. The issue should be allowed to go to trial before attempting definitively to determine the law: see for example Warner – Lambert Company, LLC v Actavis Group PTC EHF [2015] EWHC 223. That will also give this Court the opportunity for further consideration whether to follow the path of Shergill v Khaira or not.

(a) The decision of the ministerial sub-committee was not ultra vires the constitution of the Church

42. The second ground of the defendants strike out motion is that the decision made on 11 March 2015 by the ministerial sub-committee to terminate the position of the first plaintiff as elder minister and remove him as a member of the ministerial sub-committee was not ultra vires the constitution of the Church as claimed by the plaintiffs in their first cause of action. Counsel for the defendants also submitted that the decision of the ministerial sub-committee has been endorsed by the elders committee.
43. In support of this ground of their strike out motions, counsel for the defendants referred to clause V 2 (c) of the constitution of the Church as giving the ministerial sub-committee the power for its decision. Clause V 2 sets out the duties of the ministerial sub-committee which includes the duty:
    • “(c) To regulate in matters of the conduct and discipline of Ministers- Ordained Ministers, Malua Graduates, Lay Preachers, as well as Malua Lecturers, Students and Wives.”
44. Mr. Pidgeon for the plaintiffs submitted that it has been established as legal principle that no disciplinary measure or sanction can be taken against a member of an unincorporated association, except as provided in its rules. Mr. Pidgeon further submitted that the power to remove or expel a member of an unincorporated association is not to be implied. It has to be expressly provided in the rules. But there is no such express provision in clause V 2 (c). He then cited the decision of the New South Wales Equity Court in Webster v The Bread Carters Union [1930] NSWStRp 44; (1930) 30 SR (NSW) 267 where Long Innes J said at p. 272:
    • “It is also established by a long line of authorities, of which I need only mention, as examples, Osborne v Amalgamated Society of Railway Servants [1911] UKLawRpCh 27; [1911] 1 Ch 540, 554; Luby v Warwickshire Miners Association [1912] UKLawRpCh 91; [1912] 2 Ch 371, 378; Parr v Lancashire and Cheshire Miners Federation [1913] UKLawRpCh 10; [1913] 1 Ch 366, 373; The Amalgamated Society of Engineers v Smith [1913] HCA 44; 16 CLR 537; and Kelly v National Society of Operative Printers 31 TLR 632, that an association such as the defendant union in this case has no common law right of expulsion, either by vote in general meeting or by action of its executive officers; and in the last mentioned case Swinfen Eady LJ said at p. 632:
      • “‘A power to expel would not be implied; it must be found in the rules in plain and unambiguous language. Indeed, there was no inherent power in any club or society to alter its rules so as to introduce such a power: Dawkins v Antrobus [1881] UKLawRpCh 28; 17 Ch D 615, 620’”
45. Even though Webster is a trade union case, I am of the view after giving careful consideration to this matter, that it is not plain and obvious that the plaintiffs first cause of action is so clearly untenable that it cannot possibly succeed. That is because it is not plain and obvious whether the disciplinary power of the ministerial sub-committee under clause V 2 (c) of the constitution includes the power to terminate the first plaintiffs position as elder minister and have him removed as a member of the ministerial sub-committee. The matter is still open for further argument. I will therefore allow the plaintiffs first cause of action in so far as it relates to the first defendants to go to trial.

(b) The decision of the ministerial sub-committee was not in breach of the constitution of the Church

46. The third ground of the defendants strike out motions is that the decision made on 11 March 2015 by the ministerial sub-committee was not in breach of the constitution of the Church as claimed by the plaintiffs in their second cause of action. Essentially, counsel for the defendants argued that the decision was within the terms of clause V 2 (c) of the constitution and therefore not in breach of the constitution. On the other hand, Mr. Pidgeon for the plaintiffs submitted that because the disciplinary power given to the general assembly of the Church under clause III 1 (d) can only be exercised in regard to breaches of the constitution, the disciplinary power given to the ministerial sub-committee under clause V 2 (c) should be interpreted as also exercisable only in respect of breaches of the constitution. However, as the plaintiffs claim, the reasons given by the ministerial sub-committee for its decision of 11 March 2015 do not relate to any breach of the constitution.
47. In my view, it is also not plain and obvious at this stage of proceedings that the plaintiffs second cause of action in so far as it relates to the first defendants is so clearly untenable that it cannot possibly succeed. The matter is still open for further argument. I will therefore also allow the second cause of action in so far as it relates to the first defendants to go to trial.

(c) The decision of the ministerial sub-committee did not breach the first plaintiff’s rights to natural justice

48. The fourth ground of the defendants motions to strike out the plaintiffs third cause of action is that the decision of the ministerial sub-committee of 11 March 2015 was not in breach of the first plaintiff’s rights to natural justice. However, it became clear in the course of the submissions of counsel for the defendants that what they were relying on is that the actions and decision taken by the ministerial sub-committee are non-justiciable. Mr. Pidgeon for the plaintiffs submitted that the alleged breach of the first plaintiff’s rights to natural justice is justiciable relying on the Australian case of Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121 and the New Zealand case of Presbyterian Church Property Trustees v Fuimaono (1986) (unreported judgment of Thorp J in the New Zealand High Court delivered on 16 October 1986). He further submitted on the basis of those authorities, that the ministerial sub-committee was required to observe the principles of natural justice as their decision, amongst other things, was bound to affect the reputation of the first plaintiff.
49. So the issue of justiciability is at the core of the defendants motions to strike out the plaintiffs third cause of action. As I have already decided to allow the issue of justiciability to go to trial, I will also allow the plaintiffs third cause of action based on the alleged breach of natural justice, in so far as it relates to the first defendants, to go to trial.
50. As I have decided to allow all three causes of action pleaded in the plaintiffs first amended statement of claim to go to trial, in so far as they relate to the first defendants, the strike out motions are denied to that extent. But as the plaintiffs causes of action are directed to the decision of the first defendants as members of the ministerial sub-committee and not to any decision made by the second defendant individually, the first amended statement of claim is struck out in so far as it relates to the second defendant.
    • PART B

Motion by the applicants for an injunction

51. For the purposes of the motion for an injunction, I will refer to the first plaintiff as “the first applicant” and to the first plaintiff and second plaintiff collectively as “the applicants”. I will also refer to the first defendants as “the first respondents”. I need not continue to refer to the second defendant for present purposes as the first amended statement of claim has been struck out in so far as it relates to him.
52. As far as relevant, the applicants motion seeks an injunction to restrain the first respondents from acting in any way whatsoever to implement or enforce the decision they made on 11 March 2015 as members of the ministerial sub-committee of the Church to:
    • (a) remove the first applicant from the position of elder minister of the West Brisbane sub-district (pulega) in the district (matagaluega) of Queensland, Australia.
      • and

• (b) remove the first applicant as a member of the ministerial sub-committee.

53. The injunction as sought by the applicants in their motion was to remain in force until further order of the Court. The motion was filed on an ex parte basis but I directed that it be on notice to the respondents.
54. For present purposes, an interim injunction is granted to preserve the status quo until the parties can be heard. It usually restrains a party from acting or continuing to act in a particular way until further order of the Court. A mandatory injunction orders a party to perform some act. Caution is required before granting a mandatory injunction as such an injunction would only be granted where the applicant shows a very strong probability that he will suffer grave damage if the injunction is not granted.
55. Even though the injunction sought by the applicants seems to be an interim injunction in the sense of seeking an order to restrain the first respondents from implementing or enforcing their decision to terminate the position of the first applicant as an elder minister and remove him as a member of the ministerial sub-committee, its effect is to reinstate the first applicant as an elder minister and as a member of the ministerial sub-committee. In this way, the injunction sought by the applicants seems to be a mandatory injunction. Furthermore, the purpose of an interim injunction is to preserve the status quo at the time the motion is filed until the parties can be heard. The injunction sought by the applicants does not do that. It in effect seeks the immediate reinstatement of the first applicant to the positions he had held prior to the decision of 11 March 2015 by the ministerial sub-committee.
56. In my respectful view, to grant the injunction in the form in which it is sought by the applicants would be inappropriate, particularly in the face of powerful opposing arguments from counsel regarding the validity or otherwise of the decision by the ministerial sub-committee. In addition, I am not satisfied to the required standard that the applicants have shown a strong probability that the first applicant will suffer grave damage if the injunction is not granted upon the terms it is sought.
57. It would be sufficient to grant an interim injunction on terms to preserve the positions the first applicant had held prior to the decision of 11 March 2015 until all the relevant issues have been resolved at trial or substantive hearing.
    • PART C

Conclusions

58. For all of the foregoing reasons, I arrived at the following conclusions delivered on 15 May 2015:
    • (a) In respect of the first respondents/defendants, their motion to strike out the first amended statement of claim is denied.
    • (b) The first amended statement of claim by the applicants/plaintiffs in so far as it relates to the second respondent/defendant is struck out.
    • (c) Until further order, an interim injunction is issued to restrain the first respondents/defendants from seeking and/or accepting the appointment of a new reverend elder for the Queensland District to replace the first applicant/plaintiff as a member of the ministerial sub-committee or any other committee of the Congregational Christian Church Samoa. In all other respects, the motion by the applicants/plaintiffs for an injunction is denied.

Chief Justice Sapolu