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Reupena v Senara [2016] WSSC 140 (3 August 2016)

SUPREME COURT OF SAMOA
Rev Reupena v Rev Senara [2016] WSSC 140


Case name:
Reverend Reupena v Reverend Senara


Citation:


Decision date:
3 August 2016


Parties:
REV REUPENA of Ipswich, Queensland, Australia, Church Minister v REV SENARA Church Minister of Matautu, Falelatai, et al


Hearing date(s):
17, 18, 19 February 2016
Judgment
19 May 2016
File number(s):
MISC76/15


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
CHIEF JUSTICE SAPOLU


On appeal from:


Order:
- For the above reasons, all of the plaintiff’s causes of action against the defendants are dismissed.
- The interim orders that were made on 15 May 2015 are now set aside.
- As this case is going on appeal, costs are reserved pending the outcome of the appeal.
- It remains for me to thank Mr Cooke QC for his submissions which have been of great help in preparing this judgment given the complexity of this case and the novelty of the issues involved insofar as Samoan law is concerned.


Representation:
L O Woodroffe for first and second plaintiffs
F Cooke Q C (of the New Zealand Bar), S Leung Wai, T Leavai for defendants


Catchwords:
Representative proceeding – ecclesiastical law – non-justiciability – voluntary unincorporated association – constitution of a church – rules of an incorporated association – the Church – contract – ultra vires – natural justice obligation – directors committee – elders committee – General Assembly


Words and phrases:


Legislation cited:
Court (Civil Procedure) Rules 1980

Church and State in Employment Law’ (1986) 45 CLJ 404
The Church:
Woolman, ‘Capitis Deminutio’ (1986) 102 LQR 356.
Churches, Clergy and the Law (Federation Press, 1996) 139ff)
Cases cited:
Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358
Davies v Presbyterian Church of Wales
Dawkins v Antrobus [1881] UKLawRpCh 28; (1881) 17 Ch D 615, [1881-5] All ER
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8
Forbes v Eden (1867) LR1
Kelly v National Society of Operative Printers 31 TLR 632
Luby v Warwick Miners Association [1912] UKLawRpCh 91; [1912] 2 Ch 371, 378;;
Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513
Marshall v National Spiritual Assembly of the Bahai’s in New Zealand Inc [2003] 2 NZLR 205
Osborne v Amalgamated Society of Railway Servants [1911] UKLawRpCh 27; (1911) 1 Ch 540, 554;
Parr v Lancashire and Cheshire Miners Federation [1913] UKLawRpCh 10; [1913] 1 Ch 366,
Presbyterian Church Property Trustees v Fuimaono (1986) (unreported judgment of Thorp J in the New Zealand High Court delivered on 16 October 1986)
Saunders v Houghton [2009] NZCA 610, [2010] 3 NZLR 331, (2009) 20 PRNZ 215
Shergill v Khaira (2014) UKSC 33
The Amalgamated Society of Engineers v Smith [1913] HCA 44, 16 CLR 537

Webster v Bread Carters Union of New South Wales [1930] NSWStRp 44; (1930) 30 SR (NSW) 267


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


MISC76/15


BETWEEN
REV ELDER KERITA REUPENA of Ipswich, Queensland, Australia, Church Minister
First Plaintiff


A N D


REV ELDER KERITA REUPENA of Ipswich, Queensland, Australia, Church Minister, on behalf of and for the benefit of the 16 Congregations of the Queensland District of the Congregational Christian Church Samoa
Second Plaintiff


A N D


REV ELDER TAUTIAGA SENARA, Church Minister of Matautu, Falelatai, Samoa, REV ELDER PELETI TOESE TOAILOA, Church Minister of 391 Cabramatta Road, New South Wales, Australia, REV ELDER TAVITA ROMA Church Minister of Salailua Samoa, REV ELDER KERISIANO SOTI Church Minister, Falelauniu and Sogi Samoa, REV ELDER IOSIA EVILA, Church Minister, Mahau Place, Mililani, Hawaii, REV ELDER AVITI ETUALE, Church Minister, Melbourne, Australia, REV ELDER TAVITA TAULEALO Auckland New Zealand, REV ELDER LUCKY SLADE, Auckland New Zealand, REV ELDER TUMAMA VILI, Christchurch, New Zealand, REV ELDER ASOTASI TIME, Uafato Samoa, REV ELDER TAVITA ANESONE, Alafua Samoa, REV ELDER IOSEFA UILELEA, Lotofaga Samoa, REV ELDER TUNUMOSO IOSIA, Sapoe Samoa, REV ELDER AMUIA TAVANA, Papa Sataua, REV ELDER ETI TAMATI, Faleasiu, Samoa, all members of the Director’s Sub Committee.
Defendants


Counsel:
L O Woodroffe for first and second plaintiffs
F Cooke Q C (of the New Zealand Bar), S Leung Wai, T Leavai for defendants
Hearing: 17, 18, 19 February 2016
Judgment: 19 May 2016


Written judgments with reasons: 3 August 2016


JUDGMENT OF SAPOLU CJ

Introduction

  1. This case is complex. It involves novel legal issues as far as Samoan law is concerned. It is the first case on ecclesiastical law in Samoa. The facts are also not simple. Add to that my workload and I regret the delay in producing these reasons for judgment.
  2. My judgment/conclusion was delivered on May 2016. I then indicated to counsel that I will prepare a written judgment with reasons which will be delivered to counsel with reasons in due course. This is that written judgment.

Parties

  1. Before proceeding further, I wish to explain briefly the parties in this case and why the second plaintiff is not a proper party in these proceedings. The first plaintiff is the minister of religion of the Congregational Christian Church Samoa (the Church) for the congregation in Ipswich, Queensland, Australia. In 1997, he was appointed as elder minister for the Queensland district (Matagaluega) 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 directors committee (Komiti Faatonu) of the Church. The second plaintiff is the first plaintiff suing in a representative capacity on behalf of what is claimed to be the 1.100 members of the sixteen congregations of the Queensland district. The defendants are members of the directors committee and they are all elder ministers.
  2. As to the status of the second plaintiff cited in a representative capacity, r 36 of the Supreme Court (Civil Procedure) Rules 1980 provides:
  3. In so far as relevant in terms of r 36, one or more individuals may sue on behalf of numerous persons having the “same interest in an action” for the benefit of all persons so interested. The corresponding rule on representative proceedings in the High Court Rules (NZ) is r 4.24. In McGechan on Procedure, the learned author says at HR 4.24.05 in relation to r 4.24:
  4. At HR 4.24.06 of McGechan on Procedure, the learned author goes on to say in relation to r 4.24:
  5. And at HR 4.24.07 of McGechan on Procedure, the learned author says:
  6. There is no basis to demonstrate that each and every person represented had a cause of action which is the same as the second plaintiff’s claim. There is also no evidence to suggest that the second plaintiff is suing in a representative capacity for the benefit of the parties represented for the purpose of advancing any civil claim that any of those parties has. In addition, under cross-examination of the second plaintiff by Mr. Cooke QC it became clear that the number of people the second plaintiff claims to represent had diminished. For these reasons, the representative proceeding in the name of the second plaintiff is inappropriate. It is therefore struck out.
  7. The only plaintiff that now remains is therefore the first plaintiff. For convenience, I will hereafter refer to him as “the plaintiff.”

Background.

  1. The present dispute started from decisions made in 2010 in the Queensland district (matagaluega) to purchase land for the district (matagaluega). The Queensland district is made up of three subdistricts (pulega) namely, north, west, and south. According to the affidavit evidence of Rev. Elder Tauaaga Mataafa of the south subdistrict, when the decisions were made in 2010 to purchase land for the district, some of the elder ministers of the district advised not to rush matters but to take time to implement the purchase. It was not until the meeting of the district in August 2013 that the plaintiff informed the district that he had found the land to be purchased and made clear the amounts the congregations of the district were expected to donate to the acquisition of the land. These donations were to be given by December 2013.
  2. At a subsequent meeting in December 2013 of the south subdistrict of which Rev. Elder Mataafa is the elder minister, the congregations of that subdistrict informed the meeting that they could not afford the amounts the congregations were expected to contribute to the purchase of the land because they had other financial obligations to meet. Then at the meeting of the district on 8 February 2014, two of the issues that were to be discussed were the purchase of the land and the division of the south subdistrict into two subdistricts because the congregations had increased in numbers. Members of the north, west, and south subdistricts agreed to defer the purchase of the land until such time that the congregations could afford the contributions. According to the affidavit evidence of Rev Elder Mataafa, this made the plaintiff displeased with him. Then at the meeting of the elder ministers of the district, the plaintiff announced that Rev Elder Mataafa’s south subdistrict were no longer to be involved in the purchase of the land. Rev Elder Mataafa also said that on 29 February 2014, one of the ministers, Aofaiga Levi, who was part of the plaintiff’s west subdistrict asked if they could work with him as the plaintiff had chased him from the west subdistrict. When Rev Elder Mataafa informed the plaintiff about this, the plaintiff threatened to remove his role as elder minister if he accepts Rev Levi. So Rev Elder Mataafa could not accept the request by Rev Levi at that time.
  3. At the meeting of the elders committee (Fono A Le Au Toeaina) held on 20 March 2014 in Samoa, where the division of Elder Mataafa’s south subdistrict into two subdistricts was to be discussed., the plaintiff withdrew the matter and told the meeting there were some matters to be further discussed about it. It does not appear from Re Elder Mataafa’s affidavit evidence that the plaintiff informed the meeting of the elders committee what those matters were.
  4. Back in Brisbane, the plaintiff, according to Rev Elder Mataafa, called a meeting of the Queensland district on 5 April 2014. At that meeting the plaintiff announced that he was exercising disciplinary powers. He also announced these decisions: firstly, that there was from that day forth no more south subdistrict; secondly, that all roles of elders, ministers, lay preachers, deacons, and members occupied by those from the south subdistrict were removed; and, thirdly, that a new subdistrict would be confirmed by the General Assembly of the Church with a new reverend elder to replace Rev Elder Mataafa. Under cross-examination by Mr Cooke QC, the plaintiff accepted that he had announced those decisions but suggested that those decisions were conditional on endorsement by the elder ministers in Samoa. That suggestion that the plaintiff’s decisions were conditional on endorsement by the elder ministers in Samoa was not put to Rev Elder Mataafa whose evidence was unchallenged. The suggested condition is also inconsistent with the plaintiff’s evidence that he had the power to make the decisions he made because he was able to exercise the powers given to the directors committee (ministerial subcommittee) and the elders committee personally and that he did not intend to tell the elders committee what he was going to do because it was his decisions under the Constitution of the Church. The plaintiff also did not ask for his decisions to be approved at the next meeting of the elders committee.
  5. It then appears from the affidavit of Rev Elder Mataafa that on 15 April 2014 he travelled to Samoa and met with Rev Elder Tavita Roma the chairman and Rev Elder Tautiaga Senara the vice-chairman of the Church and gave them a letter from the south subdistrict (pulega) in Queensland seeking permission to establish a new district (matagaluega) because they could not work with the plaintiff any more. The chairman and vice-chairman of the Church advised Rev Elder Mataafa to seek help from the chairman of the elders committee, Rev Elder Toese Peleti Toailoa, who was then the elder minister for the district in Sydney. On 21 April 2014, Rev Elder Mataafa travelled to Sydney and met with Rev Elder Toailoa. Rev Elder Toailoa advised that they meet with all ministers of the Queensland district in Brisbane to discuss a reconciliation. A meeting in Brisbane on 24 April 2014 was arranged by Rev Elder Mataafa and all ministers including the plaintiff were notified. Rev Elder Toailoa then travelled from Sydney to Brisbane on 23 April 2014 for the meeting on 24 April 2014 to discuss a reconciliation due to the differences that had arisen. The plaintiff refused to meet with Rev Elder Toailoa. In his oral testimony and affidavit evidence, the plaintiff said that Rev Elder Toailoa has been abusing his position as chairman of the elders committee and his position on the directors committee for some time. Under cross-examination by Mr. Cooke QC, the plaintiff claimed that Rev. Elder Toailoa’s visit to Brisbane was unconstitutional and denied that it was a constructive step for Rev Elder Toailoa to take. The plaintiff accepted that by that point the dispute had escalated to involve Rev. Elder Toailoa as the chairman of the elders committee.
  6. According to the affidavit evidence of Rev Elder Kerisiano Soti who is one of the defendants, a meeting of the directors committee (ministerial sub-committee) was held at Malua in Samoa on 12 May 2014 in the morning. At that meeting it was resolved that the directors committee would meet the same night at 8:30pm to discuss possible ways of reconciliation. Present at this meeting at 8:30pm, were members of the directors committee and representatives of the Queensland district which included ministers and Fono representatives from Queensland. The meeting resolved that the Queensland district should: (a) reconcile, (b) but if that is not possible, it was best for the district to be divided. The meeting also decided that the district was to be given another chance to sort out their issues and achieve reconciliation by August 2014.
  7. In his evidence, the plaintiff explained that he was excluded from that meeting when it came to discuss this issue. Rev. Elder Soti says in his affidavit that the meeting was advised that the plaintiff declined to meet with Rev. Elder Toailoa to discuss how the matter could be resolved. But even if the plaintiff’s explanation for his absence from the meeting is accepted, this would be consistent with the defendants evidences that it is the practice to exclude ministers from discussions on matters which personally involve them in order to encourage full and fair discussions.
  8. The plaintiff in his evidence accepted that at the meeting at 8:30pm on 12 May 2014 it was resolved that an attempt should be made at reconciliation but if reconciliation failed then the Queensland district should be divided. In the plaintiff’s opinion the matter was reconciled that night. That could not have been so because the resolution of the meeting was for the Queensland district to return and attempt a reconciliation and if reconciliation failed then the district should be divided. So there was no reconciliation at the meeting even though there might have been gestures of goodwill from both sides. This is shown by subsequent events.
  9. At the meeting of the directors committee the following day, 13 May 2016, the plaintiff asked why the Constitution had been breached. The chairman replied that he had been informed about the concerns of the members of the district and that something needs to be done to avoid further conflicts. The chairman also said that the committee had used its discretion in a meaningful way.
  10. Back in Brisbane, the Queensland district met on 4-5 July 2014. The plaintiff made no attempt to implement the resolutions of the directors committee to attempt a reconciliation but if reconciliation failed then to divide the district. In other words, he was not obeying the resolutions of the directors committee. According to Rev Elder Mataafa in his affidavit, at the start of the meeting on 4-5 July before any discussion could take place, the plaintiff announced that he had received a resignation letter from Rev Elder Mataafa’s subdistrict which is the south subdistrict. Rev Elder Mataafa then got up and explained that it was not a resignation letter but a list of matters to be discussed which included the suggestion by the south subdistrict that the establishment of a new district in Queensland should be referred back to the directors committee for consideration. The response by the plaintiff was to declare that all the roles of ministers, deacons, and lay preachers held by members of the south subdistrict were removed. In a meeting held in the afternoon of the same day for ministers only of the district, the plaintiff again declared that the roles of the ministers, deacons, and lay preachers of the south subdistrict had been removed and therefore the ministers of that subdistrict were to leave the meeting. The plaintiff was therefore in effect reiterating his decision on 5 April 2014 that the roles of elders, ministers, deacons and key preachers held by those in the south subdistrict were removed. This was plainly not an attempt at reconciliation as determined by the directors committee.
  11. On 31 July 2014, the plaintiff had travelled to Sydney with other elder ministers of the Queensland district to tender an apology to Rev Elder Toailoa for not meeting with him on 24 April 2014 when Rev Elder Toailoa travelled to Brisbane to discuss a reconciliation due to the differences that had arisen in the Queensland district. The plaintiff said that he and the ministers who accompanied him presented AUD$2,000 and fine mats to Rev Elder Toailoa which was accepted. I have to say that this is entirely in accordance with Samoan custom. Acceptance of the presentation in the eyes of Samoan custom is a sign that the apology has been accepted. Not to accept the presentation would be a sign that the apology is rejected.
  12. The plaintiff also appointed replacements to Church committees. For instance, on 27 August 2014 when Rev Elder Mataafa attended a meeting of the Church education committees in Samoa as representative of the Queensland district, he found that another elder minister appointed by the plaintiff was there as representative of the Queensland district to the education committee. The chairman had to ask that elder minister to leave as the Queensland district had only one recognised representative on the education committee and that was Rev Elder Mataafa.
  13. Then on 15 November 2014, the plaintiff invited the south subdistrict to a meeting at his church hall in Brisbane and informed the south subdistrict that he had already appointed new members to represent the Queensland district at the various committees of the Church. The plaintiff further said that the ministers of the south subdistrict were free to go as they were still not heeding his instructions.
  14. On 6 December 2014 in Samoa, Rev Elder Mataafa again met with the chairman, Rev Elder Tavita Roma, and the vice-chairman, Rev Elder Tautiaga Senara, of the General Assembly of the Church about the irreconcilable differences and impasse concerning the Queensland district. Rev Elder Mataafa also requested that their matter be referred to the directors committee at its meeting of 8 January 2015 to consider what to do with their district.
  15. In relation to the meeting on 4 and 5 July 2014, the plaintiff in his oral and affidavit evidence said that many congregations rendered formal resignations because of the acquisition of new land for the church in Queensland. He said that he respected the rights of individuals to exercise their rights to leave the church in accordance with their freedom of religion. The plaintiff maintained this stance under cross-examination which was inconsistent with the unchallenged evidence of Rev Elder Mataafa that the document presented to the plaintiff was not a resignation letter. When Mr Cooke QC asked the plaintiff to produce the resignation letter given to him by Rev Elder Mataafa, it became clear that the document contains a series of resolutions proposed by those from the south subdistrict to implement the resolutions of the directors committee to divide the district if reconciliation was not possible. The proposed resolutions were in connection with the division of the district because reconciliation had failed. That was the intention behind the proposed resolution according to the evidence of Rev Elder Mataafa.
  16. However, the plaintiff was not genuinely sorry. He said in his evidence that pressure was put on him to apologise for the personal insult to Rev Elder Toailoa at not attending the meeting on 24 April 2014 in Brisbane when Rev Elder Toailoa travelled from Sydney. Rev Elder Toailoa accepted the apology but impressed on the plaintiff the need to now resolve the issues that had arisen in the Queensland district.
  17. Returning to the evidence of Rev Mataafa, he said that following his request to the chairman and vice-chairman of the General Assembly of the Church on 6 December 2014, the issues concerning the Queensland district were again considered at the directors meeting on 8 January 2015. The plaintiff informed the meeting that reconciliation was not possible and that he had appointed new members for the Queensland district. In the circumstances, the directors committee responded with what appears to have been its only remaining viable option. It resolved that the district would divide and that the officers of the General Assembly of the Church, the executive of the elders committee, and Rev Elder Etuale of Victoria would attend a service at Queensland to confirm and bless the division. Rev Elder Toailoa was a member of this delegation as chairman of the elders committee.
  18. I have decided to accept the unchallenged evidence of Rev Elder Toailoa that he told the plaintiff that he would be coming to Queensland to bless the division of the Queensland district and reject the evidence of the plaintiff that he was taken by surprise when Rev Elder Toailoa and other senior elder ministers contacted him to say they had arrived for the service. The plaintiff would have been aware of the resolutions made by the directors committee at its meeting of 8 January 2015 which included sending a delegation to Brisbane for the service to bless the division of the of the Queensland district because he attended that meeting. Rev Elder Soti in his evidence also said that he told the plaintiff at that meeting that they would be coming over to Brisbane in the first or second week of February 2015. He was therefore surprised when he arrived in Brisbane with the chairman of the General Assembly of the Church on 8 February 2015 and discovered that the plaintiff was not prepared to receive them.
  19. On 10 February 2015, the service led by Rev Elder Toailoa was held in Brisbane to bless the new status of the Queensland district. Rev Elder Toailoa, some the other senior elder ministers present, and the plaintiff spoke at the service. When it was the plaintiff’s turn to speak, he openly criticised the elder ministers for their decisions. He was openly opposing the decision of the directors committee to divide the Queensland district because it was not possible to resolve the differences that had arisen within the district after several attempts by the elder ministers at a reconciliation. I do not accept the plaintiff’s evidence that he was opposed to the decisions of the directors committee but not to their implementation as reflecting the true picture of what transpired. The plaintiff was actually opposed to the implementation of the decisions but could not do anything more to stop it. In other words, the plaintiff at that point in time was very much in direct open opposition to the other elder ministers who were members of the directors committee that made the decisions. That must have been clear to the plaintiff himself.
  20. On 11 March 2015, a directors meeting was held in Apia. At that stage the plaintiff had already taken steps to instruct Mrs Woodroffe as his lawyer and Mrs Woodroffe was in Samoa. The plaintiff was excused from the meeting when the issue concerning himself was to be discussed. According to the evidence of Rev Elders Toailoa, Senara, and Soti, it was usual practice for an elder minister who is a member of the directors committee to be excused from a meeting when an issue that affects him personally is to be discussed. Rev Elder Senara said in his affidavit that in such a situation 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 given the opportunity to say whatever he wants. This evidence was not challenged by cross-examination. When this was put to the plaintiff during cross-examination, he denied that it was the usual procedure. After careful consideration, I have decided to accept the evidence of Rev Elder Toailoa, Senara, and Soti. From experience, it is common practice to excuse from a meeting a member when an issue that affects him is to be discussed. This is to encourage free and unhindered discussion. And we are concerned here with a meeting of the directors committee made up of elder ministers. Furthermore, under continuing cross-examination of the plaintiff the following question was put to him and his answer:
  21. At the meeting, the directors committee resolved to recommend to the elders committee that the plaintiff’s roles as an elder minister and as a member of the directors committee should be removed. This is according to affidavit evidence of Rev Elder Soti. When the directors committee then sent for the plaintiff to explain its decision to him, when he could have made any statements he wished to make, he had left. Rev Elder Soti said in his evidence that if the plaintiff had stayed and returned to the meeting and raised anything that could have changed the minds of the directors committee, they would have done so. But he decided to leave.
  22. At the meeting of the elders committee on 12 March 2015, the plaintiff attended and asked why his role as an elder minster was removed and was told that the decision was made following intensive deliberations and discussions. The plaintiff did not say anything in his defence. The elders committee then affirmed the recommendation of the directors committee made the previous day. The plaintiff again attended the meeting of the elders committee on 13 March 2015 but said nothing in his defence regarding the decision against him. He merely scribbled and said nothing. The elders committee reaffirmed the recommendation of the directors committee of 11 March 2015.
  23. There are differences between the evidence of the plaintiff and the evidence of the defendants regarding the reasons for the decision by the directors committee to remove the plaintiff’s roles as an elder minister and as a member of the directors committee. The plaintiff said that he had been removed for reasons other than his opposition to the elder ministers decisions on how to resolve the Queensland dispute. He said that he had upset some of the members of the directors committee by asking questions at meetings of the committee on matters raised with him by the persons he represents. Some of these questions had hurt the feelings of some of the elder ministers on the directors committee. He denied that his roles were removed because of his opposition to the division of the Queensland district.
  24. The reasons for the decisions against the plaintiff by the directors committee given for the defendants are different. The reason given by the plaintiff for the decision against him was that it was to punish him because of the questions that he asked which hurt the feelings of some of the elder ministers in the directors committee. On the other hand, Rev Elder Soti said that the decision was not taken purely to punish the plaintiff but as much because the directors committee had very little option but to make the decisions they did make in order to resolve the irreconcilable conflict that had arisen in the Queensland district. The plaintiff 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.
  25. After careful consideration of the evidence, I have decided that the real reason for the decisions against the plaintiff was the Queensland dispute. This was the burning issue at the time. It started from a meeting of the Queensland district on 8 February 2014 when Rev Elder Mataafa informed the meeting that the congregations of the south subdistrict could not afford the amounts they were expected to contribute to the purchase of the new property announced by the plaintiff at a district meeting in August 2013. Members of the other subdistricts agreed during the meeting to defer the purchase of the new property until such time that the congregations could afford the contributions. This led to differences between the plaintiff and Rev Elder Mataafa. These differences escalated into disputes and then a schism within the church in the Queensland district. The matter was brought by Rev Elder Mataafa to the notice of the chairman and vice-chairman of the General Assembly of the Church in Samoa on 15 April 2014. The chairman and vice- chairman advised Rev Elder Mataafa to seek help from Rev Elder Toailoa in Sydney. After several attempts in 2014 by elder ministers and the directors committee to resolve the dispute, the parties to the dispute could not reconcile. The evidence for the defendants clearly suggests that this failure to arrive at reconciliation was due mainly to the plaintiff. Then at the service held in Brisbane on 10 February 2015 to bless the division of the Queensland district when the plaintiff was given the opportunity to speak, he openly criticised the elder ministers and opposed their decision to divide the district. Then in the next month on 11 March 2015, the directors committee met and resolved to recommend the removal of the plaintiff’s roles as elder minister and a member of the directors committee. Given this chronology of events, I accept that the real reason for the decision to remove the plaintiff’s roles was in connection with the Queensland dispute which was the burning issue at the time and not in relation to the other matters alleged by the plaintiff. It seems unrealistic that such a body of Church leaders as the directors committee would remove the plaintiff’s roles as elder minister and a member of the directors committee simply because the plaintiff had asked questions about a debt that had been paid and against an elder minister alleged to have continued beyond the retirement age by one year which were not burning issues at the time.
  26. At its meeting on 12 March 2015, the elders committee affirmed the recommendation of the directors committee of 11 March 2015 to remove the plaintiff’s roles as an elder minister and as a member of the directors committee. The plaintiff attended that meeting and asked why his role as elder minister had been removed and was told that it was done after intensive deliberations. He then said nothing in his defence. The elders committee met again on 13 March 2015 and the recommendation of the directors committee was reaffirmed. The plaintiff also attended that meeting but did not say anything in his defence.
  27. So in relation to the directors committee meeting on 11 March 2015, the plaintiff had left the premises when the committee looked for him to explain its decision to him. On 12 March 2015 at the meeting of the elders committee, the plaintiff did not say anything in his defence even though he could have done so. As it will appear shortly, the plaintiff appeared with his lawyer at this meeting. Again on 13 March 2015 at the meeting of the elders committee, the plaintiff did not say anything in his defence even though he could have done so.
  28. The plaintiff in his evidence under cross-examination said that during the two days of the meeting by the elders committee on 12 and 13 March 2015, he raised his hand as he wanted to know the reasons for his punishment but he was not given any opportunity. However, in response to one of the questions by Mr Cooke QC, the plaintiff said that when he asked the elders committee why the decision had been made against him by the directors committee he was told that the decision was made following intensive deliberations and discussions. When the plaintiff was further asked what was it that he was denied the opportunity of saying, he replied if he had been given the reasons for his punishment he would have apologised.
  29. With respect, I cannot accept this evidence by the plaintiff that he would have apologised if he had been given the opportunity. Rev Elder Lauie Lupematasila in his evidence said that after the meeting of the elders committee on 12 March 2016, in which the decision of the directors committee was affirmed, the plaintiff informed him that they meet with his lawyer at the nearby coffee bean shop. The plaintiff and his wife, Rev Elder Lupematasila and his wife, and an elder deacon then met at the coffee bean shop. Rev Elder Lupematasila said he was crying and begging to the plaintiff to come with them to apologise to the elders committee because he wanted them to return to Queensland with the plaintiff’s title of elder minister. The elder deacon also conveyed to the plaintiff for them to return and apologise to the elders committee. After the speech by the elder deacon, the plaintiff and his wife replied: “Lauie, we do not want to walk the road of peace, I want to walk the road of justice, to take them to Court to straighten out what the elders are doing.” Just after that reply from the plaintiff, the lawyer arrived. Rev Elder Lupematasila said the lawyer never discussed anything about reconciliation. All she said was that we will be taking the elders committee, they are very stupid. Rev Elder Lupematasila further said that he knew if they had gone back to the elders committee and apologised, the elders would have forgiven the plaintiff. But the plaintiff did not heed his advice.
  30. Rev Elder Lupematasila also said that he had met with the plaintiff at Faleolo Airport on Sunday 1 March 2015 and was informed by the plaintiff that he had already paid AUS$10,000 for a lawyer. This implies that before 1 March 2015 the plaintiff had already engaged a lawyer. This was only a few days after the service in Brisbane on 10 February 2015 to bless the division of the Queensland district where the plaintiff criticised the other elder ministers for their decisions and opposed those decisions. It was also a few days before the meeting of the directors committee on 11 March 2015 and the meetings of the elders committee on 12 and 13 March. So the plaintiff had already engaged a lawyer before those meetings were held.
  31. Counsel for the plaintiff emphasised during her cross-examination of some of the defendants witnesses that the purpose of the meeting she had with members of the elders committee on 12 March 2015 was to attempt or effect a reconciliation between the plaintiff and the elders. She used the Samoan word “soalaupule”. It appears from her questions that she and the plaintiff were adopting a conciliatory approach at the time. This is inconsistent with the evidence of what happened given by Rev Elder Senara under cross-examination. The following questions and answers during the cross-examination of Rev Elder Senara appear from the transcript of 19 February 2016:
  32. From the evidence of Rev Elder Senara and Rev Elder Lupematasila it is clear that the plaintiff and his lawyer were not in a conciliatory or apologetic frame of mind at the meeting of the elders committee on 12 March 2015. To suggest that the plaintiff and his lawyer went to the meeting of the elders committee in the spirit of reconciliation is not supported by the evidence. It is also noticeable that the plaintiff and his lawyer did not use the occasion to ask the elders committee about the reason for the decision against the plaintiff if there was any doubt about the matter given the opportunity they had to do so.
  33. From 18 to 21 May 2015, the Annual General Meeting of the General Assembly of the Church was held at Malua. This matter needed to be addressed at the beginning of the meeting because the plaintiff took a place at the seating of the elder ministers. The General Assembly then resolved that given the decision of the elders committee to remove his role as an elder minister he could not take that position. However, the plaintiff refused to move and remained seated amongst the elder ministers. On the next day, 19 May 2015, the General Assembly endorsed the decisions of the elders committee including the decision to remove the plaintiff’s roles as an elder minister and as a member of the directors committee. Rev Elder Soti said that even though it would be unusual for the General Assembly to not ratify a decision of the elders committee, if the plaintiff had spoken and given a good reason why the decision against him should not be confirmed, the position was not beyond reconsideration.

Jurisdiction

  1. One of the key issues in this case is whether the plaintiff’s claim is non-justiciable, that is to say, unsuitable for determination by a Court of law. A final decision by this Court on this issue was left for trial in my judgment delivered on 27 May 2015 on the defendants strike out motion.
  2. Because of the novelty of the issue and its importance to Samoan ecclesiastical law, I will refer again to the relevant New Zealand, Australian, and English authorities. I will start with the New Zealand authorities.
  3. In Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513, Richardson P, in delivering the judgment of a Full Court of the New Zealand Court of Appeal, said at p.523:
  4. On the point that the common law recognises that not all agreements are intended to give rise to legal relations, the Court in Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513 went on to say at p.524:
  5. In the next New Zealand case of Marshall v National Spiritual Assembly of the Bahai’s in New Zealand Inc [2003] 2 NZLR 205, Randerson J in the High Court said at [31], [33], [34], [35]:
  6. In Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, in the context of voluntary associations generally, Rich, Dixon, Evatt and McTiernan JJ in the High Court of Australia said in a joint judgment:
  7. Further on, Rich, Dixon, Evatt and McTiernan JJ said at pp370-371:
  8. This was further explained specifically with respect to religious institutions in another decision of the High Court of Australia, Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8 where Gaudron, McHugh, Hayne and Callinan JJ recognised the residual possibility of contractual or other legal relationships arising, but that the voluntary association of the Church itself did not create this. Their Honours said at paras 37, 38:
  9. In the English case of Davies v Presbyterian Church of Wales [1986] 1 A11 ER 705, Lord Templeman, in a judgement with which the other Law Lords concurred, said at p709:
  10. The principles set out in the above authorities have been applied in a consistent way in other cases from New Zealand, Australia and Canada. The United Kingdom Supreme Court departed from that line of authority in Shergill v Khaira (2014) UKSC 33. This appears to be because of a finding that there was a binding contractual relationship. Lords Neuberger, Sumption and Hodge in a joint judgment with which Lords Mance and Walker concurred, said at [46], [47], [48], pp 260, 261:
  11. Shergill v Khaira departs from the traditional common law approach in one key aspect, that is, it views the constitution or rules of an incorporated religious institution as contractual. This is inconsistent with the common law cases like Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513 which recognises that not all agreements are intended to give rise to legal relations. In similar vein, in Law of Contract in Zealand (2012) 4th ed by Burrows, Finn and Todd, the learned authors state at para 5.1 (Lexis Nexis NZ Ltd):
  12. It would appear that in terms of Shergill v Khaira (2014) UKSC 33, there is a presumption that the constitution or rules of an unincorporated religious institution is contractual whereas the position in Mabon v Conference of the Methodist Church in New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513 is that an intention to be contractually binding is not to be presumed but must be proved on the facts.
  13. The important question that has arisen is whether Samoan law should follow the traditional common law approach or should follow the new approach of the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33. The traditional common law approach as it appears from the New Zealand authorities of Maban v Conference of the Methodist Church of New Zealand [1998] NZCA 244; [1998] 3 NZLR 513 and Marshall v National Spiritual Assembly of the Baha’i’s of New Zealand Inc [2003] 2 NZLR 205 is that ecclesiastical disputes or disputes which involve purely spiritual or religious issues are non-justiciable and the Courts have been reluctant to intervene in such issues unless civil, economic, or proprietary rights have been infringed. 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 Bahai’s of New Zealand Inc [2003] 2 NZLR 205 at [34]. The position in Australia is also the same. As it appears from Ermogenous v Greek Orthodox Community of South Australia [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. In England until Shergill v Khaira [2014] UKSC 33, the position was the same as it is in New Zealand, Australia, and Canada. As pointed out in the House of Lords decision 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 or enforceable. A pastor is called and he accepts his calling. His duties are defined and his activities are dictated not by contract but by his conscience. However, the Courts may intervene where economic or proprietary rights have been infringed. This was also the position that was followed in Shergill v Khaira [2012] EWCA Civ 983 when that case was before the English Court of Appeal. English law in this area changed when Shergill v Khaira reached the United Kingdom Supreme Court.
  14. After careful consideration, I have decided to follow the traditional common law approach adopted by the New Zealand, Australian, and Canadian Courts and not the decision of the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33 for these reasons. In the first place the situation in the United Kingdom is quite different from that in Samoa. It appears from the English cases that a minister of religion is called by the Church to serve in a parish and his remuneration or stipend is paid for by the Church. With Samoa, a minister of a village church is chosen and appointed by the congregation of that village. His remuneration is paid for by the congregation from voluntary donations by its members. There is no fixed remuneration, a minister’s remuneration 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.
  15. An elder minister is elected by the village ministers of a subdistrict (pulega). The election has to be approved by the district (matagaluega) and notice thereof 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.
  16. Secondly, the special position of the Church and of ministers of religion in Samoan society is reflected in the preamble of the Constitution which provides that Samoa is founded on God. And the Samoan people normally speak of Samoa as founded on God rather than on the Constitution of the Independent State of Samoa. The preamble of the Constitution also records that Samoa is founded on Christian principles and Samoan custom. Articles 11 and 12 of the Samoan Constitution also expressly record and preserve freedom of religion and religious instruction in a manner consistent with the preamble of the Constitution, and the place of Christian values at the centre of Samoan society.
  17. All of the above would be consistent with the traditional common law approach of non-intervention in the internal affairs of a voluntary unincorporated religious institution. Perhaps, the United Kingdom with European influence has reached a stage in its development that would justify the approach taken by the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33. In my respectful view, the situation in Samoa, on the other hand, is very different. I therefore hold all of the plaintiff’s causes of action are non-justiciable and should be dismissed.
  18. I would, however, like to refer 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) which the plaintiff relied upon. That case proceeded on the basis that the principles of natural justice which apply to public bodies were applicable to the circumstances of that case. This appears to be inconsistent with the approach of non-intervention in the internal affairs of a Church adopted by the New Zealand Court of Appeal in Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513, 523, and followed by the High Court in Marshall v National Spiritual Assembly of the Bahai’s of New Zealand Inc [2003] 2 NZLR 205. In Marshall at [29] and [30], Randerson J distinguished Presbyterian Church Property Trustees v Fuimaono. In the more recent case of Brady v Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526, Associate Judge Doogue of the New Zealand High Court also followed the non-interventionist approach.
  19. Mrs Woodroffe for the plaintiff in her submissions also relied on Australian cases which include MacQueen v Frackleton [1909] HCA 28; (1909) 8 CLR 673, Webster v Bread Carters Union [1930] NSWStRp 44; (1930) 30 SR (NSW) 267, Baker v Gough (1963) NSWR 1345, Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121. With respect, some of these cases are very old and most of them are decisions of State Courts. Under the doctrine of stare decisis, the decision of the High Court of Australia in Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8 should take precedence over the decisions of the State Courts.
  20. Because this case is on appeal and in case the Court of Appeal takes a different view from the conclusion I have reached on the issue of non-justiciability, I will now proceed to deal with the other issues raised by counsel.

Does the Constitution of the Church involve a contract between the Church and its members or between the members themselves?

  1. Mr Cooke QC in his submissions clarified the difference between the traditional common law approach adopted in such cases as Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513; Marshall v National Spiritual Assembly of the Bahai’s in New Zealand Inc [2003] 2 NZLR 205; Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCH 8; and Davies v Presbyterian Church of Wales [1986] 1 A11 ER 705 and the approach adopted by the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33 as the apparent presumption held by the Court in Shergill v Khaira that the rules of a voluntary association involve an enforceable contract whereas under the traditional common law approach there is no such presumption. Mr Cooke QC pointed out that it is axiomatic that to have contractually enforceable promises the necessary prerequisites of offer, acceptance, consideration and an intention to enter contractually enforceable relations must exist. And the common law recognises that not all agreements are intended to give rise to legal relations. “It is the actual intention of the parties expressed in their engagement that must be determined”: Mabon v Conference of the Methodist Church of New Zealand Inc [1998] NZCA 244; [1998] 3 NZLR 513, p.524. It, therefore, appears from Mabon that there is no presumption that arrangements between church and minister involve an enforceable contract. What has to be ascertained is the actual intention of the parties.
  2. The position in Australia is the same. There is no presumption that contractual arrangements between religious bodies and ministers are not intended to be legally enforceable at least where the contracts concern proprietary and economic entitlements. In Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCH 8, the High Court said at para 74:
  3. Rev Elders Toailoa, Senara and Soti said in their evidence that there is no contract between the Church and a minister. There is also no contract between the Church and its members. Both relationships are not contractual but based on conscience. This is consistent with the nature of the Church being a voluntary association. This was confirmed by the plaintiff himself under cross examination. As shown from p.82 of the transcript, the following questions were put to the plaintiff and the answers he gave to those questions:
  4. There is therefore no evidential basis to show that there is a contractual relationship between the Church in this case and a minister or elder minister. There is also no evidential basis for saying that the relationship between the Church and its members is contractual. So there is no basis for contending that the Constitution of the Church involves an enforceable contract between the Church and an elder minster or between the Church and its members. The appointment process by a village congregation of its ministers, as explained in para 56 of this judgment. also involves no contract between the village congregation and the Church. Likewise, the election of an elder minister which is made by the ministers of a subdistrict and then referred to the district for approval and then submitted to the elders committee and the General Assembly for confirmation.
  5. I have also decided to accept the submission of Mr Cooke QC that the terms of the Constitution of the Church show that the relationship between the Church and an elder minister is not contractual. It is conditional on the elder minister sustaining the support of the Church and its members. It follows that if an elder minister can no longer have that support then the Church administration can properly replace an elder minister. In this case, that loss of support by the plaintiff is demonstrated by the division in the Queensland district and the plaintiff’s disputes with the hierarchy of the Church. It is further demonstrated by the letter of 3 February 2016 from the plaintiff’s own subdistrict in Queensland, which is annexed to the affidavit of Rev Elder Soti of 16 February 2016, that the plaintiff’s subdistrict supports the Church and not the plaintiff in this matter.
  6. I turn now to the relevant provisions of the Church’s Constitution. Insofar as relevant, Part 111 provides:
  7. It is clear from Part III that the office of elder minister is an elected office. There is no contract between the person elected and the people who elected him or the elders committee and the General Assembly that confirm the election. This is in spite of the fact that the term of office for an elder minister is five (5) years (Part 1X clause 1V 1(a), (b), (c), p.41 of the Constitution). An elder minister is seen as a successor to the Apostles who is to supervise the people under his care as Jesus Christ cares for them. The exercise of authority by an elder minister is dependent upon the views of the people under his care and in accordance with his integrity in fulfilling the Will of God. This means that an elder minister cannot exercise his authority as the representative of Jesus Christ in respect of other people unless his authority is that of a servant and that his integrity is clearly evident to the people. This is to say that the office of an elder minister and the exercise of his authority is subject to the views of the people under his care and the appearance of his integrity or otherwise to those people. His office or the exercise of his authority is not subject to a contract or protected by contract.
  8. Mr Cooke QC also referred in his submissions to Part 1X clause IV 1 (a), (b), (c) at p.41 of the Constitution and clause V (b) at p.44 of the Constitution which describe the composition of the elders committee and the directors committee. Clause 1(a), (b), (c) of Part 1X provide:
  9. The Note to clause 1 then provides insofar as relevant :
  10. Clause V 1(b) of Part 1X at p.44 then provides:
  11. 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. I accept that this is a sensible reading of the relevant provisions of the Constitution particularly when the subdistrict that elected the plaintiff as an elder minister have also indicated their support for the Church instead of the plaintiff by letter of 3 February 2016 annexed to the affidavit of Rev Elder Soti.
  12. 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.

Were the actions of the defendants as members of the directors committee ultra vires or in breach of the Constitution?

  1. The position of the plaintiff is that the recommendation by the directors committee to remove his role as the elder minister of the Queensland district was ultra vires the Constitution of the Church. Mrs Woodroffe submitted that no disciplinary measure or sanction can be taken against a member of an unincorporated association except as expressly provided in its rules. She referred to two Australian cases. The first, which is a trade union case, is Webster v Bread Carters Union of New South Wales [1930] NSWStRp 44; (1930) 30 SR (NSW) 267. In that case, Long Innes J said at p.272:
  2. Mrs Woodroffe also referred to Malone v Marr ( 1981) 2 NSWLR 894 a decision of the Supreme Court of South Australia where it is stated in the head note:
  3. Mrs Woodroffe then referred to clause V of Part IX of the Constitution at p.45 which provides for the duties of the directors committee and in particular 2 (c) which provides:
  4. Counsel then submitted that there is no express authority given to the directors committee under clause V 2(c) of Part 1X at p.45 of the Constitution to remove one of its members or to remove an elder minister from his elected role as elder minister. To the contrary, the provision is express in its limitations – it gives power to the directors committee to regulate the conduct and discipline of the persons listed which does not include a member of the directors committee.
  5. Counsel for the plaintiff also referred to clause 111 1(c) and (d) of Part IX at p.43 of the Constitution which provide in relation to the duties of the General Assembly:
  6. Counsel for the plaintiff then submitted that in terms of clause 111 1(c) and (d) of Part 1X no power is given to the directors committee to remove an elder minister from his role as an elder minister or as a member of the directors committee. She further referred to the Note to clause 1(e) of Part 1V at page 42 of the Constitution which provides that a newly appointed elder minister shall serve for five (5) years and in the event of death or inability to remain in office before expiry of his term, his replacement shall be appointed for five (5) years. It was then submitted that there is no superseding power allowing either the directors committee or the elders committee to terminate the role of an elder minister under any circumstances.
  7. Mr Cooke QC for the defendants, on the other hand, submitted that the removal of a minister from the committees for both disciplinary and non-disciplinary reasons is within the powers of the directors committee and the elders committee. He submitted that one of the duties of the General Assembly as set out in clause 111 1(c) of Part 1X of the Constitution at p.43 is:
  8. This encompasses not only matters relating to ministers but also more generally “matters concerning the Church”, and to make decisions on those matters. In relation to the districts, the General Assembly has the following duty under clause 111 2 of Part 1X at p.44 of the Constitution:
  9. Mr Cooke QC pointed out that the issue referred from the Queensland district fell within the jurisdiction provided by clause 111 2 of Part 1X. If the issue concerned matters of conduct and discipline, then the decision of the elders committee would be final. In addition to matters that were referred by a district relating to conduct and discipline of the ministers, the General Assembly had its own role in terms of discipline under clause 111 1(d) of Part 1X of the Constitution at p.43. This provides:
  10. The roles of the directors committee are interrelated with the elders committee with the important Note at p.45 of the Constitution providing:
  11. Mr Cooke QC also pointed out that under cross-examination the plaintiff gave evidence that the directors committee did have the power to remove him as an elder minister, but that the circumstances did not exist to permit the power to be exercised in this case. This appears from the following questions and answers at p.33 of the transcript:
  12. Earlier on at pp.33-34 of the transcript, the following question was put by Mr Cooke QC to the plaintiff and Mrs Woodroffe’s objection:
  13. After giving the consideration to the submissions of counsel, I have decided to accept the submissions for the defendants that the relevant provisions of the Constitution do give the power to the directors committee and elders committee to remove an elder minster. That was not disputed by the plaintiff under cross-examination. What is in dispute is the removal of the plaintiff’s roles as elder minister and member of the directors committee which followed the dispute within the Queensland district and the division of the district after several attempts at reconciliation had failed as well as the plaintiff’s opposition to the actions taken by the elders.
  14. What had happened was that the decision of the district committee to recommend the removal of the plaintiff’s roles as elder minister and as a member of the district committee was affirmed by the elders committee. The decisions of those committees were then endorsed by the General Assembly. Clause 2 (b) of Part IX at p.19 of the Constitution provides:
  15. The cases of Webster v Bread Carters Union of New South Wales [1930] NSWStRp 44; (1930) 30 SR (NSW) 267 and Malone v Marr [1981] 2 NSWLR 894 cited for the plaintiff were in a different context. They were not concerned with a church dispute or the constitution of a church where different considerations apply. Those two cases are therefore readily distinguishable from the present case.

Was there a breach of the principles of natural justice if those principles apply to this case?

  1. Mrs Woodroffe submitted that the principles of natural justice applied to the decision of the defendants as members of the directors committee to remove the roles of the plaintiff as elder minister and as a member of the directors committee and that the defendants were in breach of those principles. That decision according to the affidavit evidence Rev Elder Soti was a decision to recommend the removal of the plaintiff’s roles. Mrs Woodroffe further submitted that the defendants were under an obligation to observe the principles of natural justice because their decision affected the status of the plaintiff as an elder minister and as a member of the directors committee. The defendants decision also injured the plaintiff’s reputation. Counsel relied for those submissions on Presbyterian Church Property Trustees v Fuimaono (1986) (unreported judgment of Thorp J in the New Zealand High Court delivered on 16 October 1986); Plenty v Seventh Day Adventist Church of Port Pirie (1986) 43 SASR 121. Mrs Woodroffe also submitted that natural justice obligations applied not only to the determination whether the plaintiff was guilty but also to the determination of the penalty to be imposed on him, citing Malone v Marr [1981] 2 NSWLR 894; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378. She then submitted that the plaintiff was not given notice of any allegations against him and he was not given a fair hearing by the defendants before the decision was made for the removal of his roles as an elder minister and as a member of the directors committee.
  2. Mr Cooke QC submitted that for two reasons the plaintiff’s claim based on natural justice should be dismissed. First, any obligations in the nature of natural justice obligations in this case can only arise as a matter of the express or implied terms of an enforceable contract between the parties. The rules of natural justice arising in public law enforceable by way of judicial review do not apply to private bodies unless they are with them a contract between those parties. That is made clear by more recent New Zealand authorities on the point. So in the absence of an intention to have legally enforceable contractual relations, there are no natural justice obligations to enforce. And even if there were an intention to create binding legal relations, one has to look to the terms and conditions of the contract (embodied in the Constitution of the Church) to find what the obligations are, and there are none that the plaintiff can rely on that were breached. Secondly, even if there were obligations of natural justice that had to be observed by the defendants, there is no factual basis for the complaints that are made by the plaintiff. The plaintiff was given full opportunity to have his say in connection with the decisions that were made by the directors committee, then the elders committee, and then finally the General Assembly. The suggestion that the plaintiff did not know the reasons why he was being removed is incorrect. He knew full well what the issue was, but wished to contest the decisions through his lawyer. There was nothing he was deprived of saying in the process, and he was capable of saying whatever he wished to say if he had wanted to.
  3. In support of his submissions, Mr Cooke QC referred to the New Zealand Court of Appeal decision in Hopper v North Shore Aero Club Inc (2006) (CA 11/06, unreported decision delivered on 14 November 2016) which was concerned with a judicial review challenge by a member of an Aero Club incorporated under the Incorporated Societies Act 1908 (NZ) against certain decisions made by the Club. The Court held such decisions could not be attacked by way of judicial review under the Judicature Amendment Act 1972 (NZ) and summarised the role of the Court in reviewing the actions of incorporated societies through the law of contract by saying at [11]:
  4. The decision in Presbyterian Church Property Trustees v Fuimaono (1986) (unreported judgment of Thorp J in the New Zealand High Court delivered on 16 October 1986) which proceeded on the basis that the principles of natural justice which apply to public bodies also apply to the affairs of a private voluntary association like the church is clearly inconsistent with Hopper v North Shore Aero Club Inc which held that the Court will intervene in the internal affairs of a voluntary association on the basis of enforcing a contract constituted by the rules of the association.
  5. In Peters v Collinge [1993] 2 NZLR554 which was concerned with the question of whether the plaintiff in that case could be nominated as a candidate for a particular political party at a general election, Fisher J said at p.567:
  6. Further on at p.567, Fisher J said:
  7. In the present case, there are no express provisions in the Constitution of the Church as to the procedures to be followed when addressing the issues that the directors committee, the elders committee, and the General Assembly had to address. But even if obligations of natural justice can be implied, the plaintiff had the opportunity on 11 March 2015 to address the directors committee after it made its decision to recommend to the elders committee the removal of the plaintiff’s roles as elder minister and member of the directors committee. However, when the plaintiff was excused from meeting while the matters concerning himself were discussed, he chose to leave the premises. So after the directors committee had reached its decision and sent for the plaintiff in order to explain its decision to him, the plaintiff had already left.
  8. Then the next day, 12 March 2015, at the meeting of the elders committee the plaintiff attended and asked why his role as elder minister had been removed, he was told it was done after intensive deliberations and discussions. The plaintiff did not say anything in his defence when he could have done so. The elder committee then affirmed the recommendation of the directors committee. This was also the same meeting attended by the plaintiff and his lawyer. It appears from the evidence of Rev Elder Senara that the approach and attitude of the plaintiff’s lawyer was threatening rather than conciliatory. There is no evidence to show that the plaintiff or his lawyer said anything in his defence.
  9. At the meeting of the elders committee on 13 March 2015, the plaintiff again attended but said nothing in his defence regarding the decision of the directors committee. He merely scribbled things down. The elders committee again reaffirmed the recommendation of the directors committee.
  10. At the meeting of the General Assembly in May, the plaintiff was present at the start of the meeting but again said nothing about the decisions of the directors committee or the elders committee when he could have done so. On 19 May 2015, the General Assembly endorsed the decisions of the elders committee including the decision to remove the plaintiff’s roles as elder minister and as a member of the directors committee.
  11. So even if the Constitution constitutes a binding and enforceable contract, it contains no express provision as to any natural justice obligations. But even if natural justice can be implied into such a contract assuming that one existed, the plaintiff had opportunities to address the defendants as members of the directors committee, the elders committee, and the General Assembly. However, he did not do so.

Conclusions

  1. For the above reasons, all of the plaintiff’s causes of action against the defendants are dismissed.
  2. The interim orders that were made on 15 May 2015 are now set aside.
  3. As this case is going on appeal, costs are reserved pending the outcome of the appeal.
  4. It remains for me to thank Mr Cooke QC for his submissions which have been of great help in preparing this judgment given the complexity of this case and the novelty of the issues involved insofar as Samoan law is concerned.

CHIEF JUSTICE

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