York CathedralSummary – The Supreme Court has handed down a judgment in the case involving the Anglican Diocese of Newcastle and two priests who had been the subject of a recommendation from a Church Board that they be defrocked.  The judgment deals with important issues relating to the employment status of priests, the legal status of churches and circumstances in which a court will interfere in the internal workings of a church.

On 27 April 2012 Justice Sackar handed down judgment in the case of Sturt and Anor  v  the Right Reverend Dr Brian Farran, Bishop of Newcastle and Ors.  In these proceedings, Fr Sturt and Fr Lawrence (the priests) sought orders against the Anglican Bishop of Newcastle, the members of the Professional Standards Board (PSB), the members of the Professional Standards Committee of the Diocese of Newcastle (the PSC) and the Primate of the Anglican Church of Australia.

Makinson and d’Apice acted for the defendants, other than the Primate of the Anglican Church of Australia.

The facts are complex, but the essence of the relevant facts are:

  • The Synod of the Diocese of Newcastle passed the Professional Standards Ordinance 2005 (PS Ordinance) on 15 October 2005.
  •  Fr Sturt was granted a licence in respect of the office of Rector of the Parish of Cardiff within the Diocese of Newcastle on 1 February 2006.
  • Fr Lawrence retired as Dean of Newcastle Cathedral and ceased to hold a licence on 31 December 2008.
  • On 3 October 2009 “M” made a formal written complaint against the priests, including, alleging their involvement in or observance of a group sex event.
  • On or about 9 October 2009 Bishop Farran notified the priests of suspension of Fr Sturt’s licence whilst the complaint was being investigated pursuant to the PS Ordinance.

There were a number of substantive issues raised in the submissions by the parties with a number of sub-issues.

In this short report, we do not intend to deal with the full range of issues, but we recommend that interested parties read the judgment of Justice Sackar and if you have any queries in connection with that please do not hesitate to contact Bill d’Apice, Alex Kohn or Indran Sinnadurai of our office to discuss these.

Of relevance to clients in the church sector, His Honour drew the following conclusions and made the following observations after considering much of the case law relevant to each of the issues:

  • The Anglican Church is a voluntary association;
  • He cited the High Court judgment in Macqueen, where Chief Justice Griffith observed that “the Presbyterian Church, like any other religious body in Australia, is in the eyes of the law a voluntary association …”
  • Courts have routinely not interfered in the internal workings of voluntary associations, especially religious organisations.
  • With a voluntary association, there is a need to identify with some precision whether some civil or proprietary right has been infringed which as a matter of law requires enforcement before intervening in the affairs of a voluntary association.
  • He cited with approval the High Court’s decision in Ermogenous that “regard needs to be paid to the facts of each case to determine whether or not there is a contract of employment between a priest and a church bodyHe stated further “the mere fact that the plaintiffs are priests does not entitle the defendants, let alone the Court, to proceed upon a presumption that no contract of employment will exist”.
  • On the evidence available he concluded that the priests were not performing their roles pursuant to a contract of employment.
  • The PS Ordinance provides for a review procedure for recommendations of the Board including a recommendation to depose a person from Holy Orders.

His Honour concluded there was little doubt that the PS Ordinance is drafted in language that manifests an intention to affect legal rights.  As consequence, he concluded that the priests’ claims were able to be considered by the Court, i.e. they were justiciable.

The Court dealt with other substantive aspects of the case in question and concluded that our clients had acted appropriately in the circumstance and denied the priests the relief that they were seeking.