FEDERAL COURT OF AUSTRALIA

Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584

ORDERS

THE COURT ORDERS THAT:

1.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, act on or otherwise give effect to the claimed termination of the licence held by the applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as a priest in that diocese.

2.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, withhold the payment to the applicant of all entitlements currently pertaining to the position of the Archdeacon of the Diocese of the Murray and a licensed priest.

3.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the tenure of the applicant at his place of residence at 15 Willowbark Crescent, Murray Bridge SA 5253 or otherwise evict him from that place.

4.    Pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth), the affidavit identified as MFI A2 be confidential.

5.    Liberty to apply on two days notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    On 13 March 2019, the applicant in this proceeding, the Venerable Dr Peter Carlsson, lodged a complaint with the Australian Human Rights Commission (the Commission) under s 46P of the Australian Human Rights Commission Act 1986 (Cth) (the Act). In that complaint, the applicant alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth) against the Right Reverend John Ford and the Synod of the Diocese of the Murray of the Anglican Church of Australia Inc (the Diocese). They are the respondents to this proceeding. In broad terms, the disability is said to consist of various physical disabilities (which at present, at least, are not disputed) and the unlawful discrimination is said to be the revocation by the respondents of the licences issued by the first respondent to the applicant to occupy the respective positions of Archdeacon and Vicar General of the Diocese. The complaint is listed for conciliation before the Commission on 9 May 2019 and the present proceeding seeks an injunction preserving the status quo until the complaint is determined.

2    The application for an injunction first came before me on 22 March 2019 when certain undertakings which had the effect of preserving the position were given by the respondents. The application came on for hearing on 8 April 2019, but could not be completed at that time. It resumed on 10 April 2019. At the conclusion of the hearing, I reserved my decision. Counsel for the respondents did not have instructions to continue the undertakings previously given and, in the circumstances, I granted an injunction so that the status quo was preserved pending my consideration of the matter. The injunction I granted was in the following terms:

1.    Until further order, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, act on or otherwise give effect to the claimed termination of the licence held by the applicant as Archdeacon of the Diocese of the Murray, including his general licence to exercise his ministry as a priest in that diocese, and/or take any further steps to revoke the appointment of the applicant as vicar general.

2.    That, until further order, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, withhold the payment to the applicant of all entitlements currently pertaining to the position of the vicar general, the Archdeacon of the Diocese of the Murray and a licensed priest.

3.    That, until further order, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the tenure of the applicant at his place of residence at 15 Willowbark Crescent, Murray Bridge SA 5253 or otherwise evict him from that place.

For the reasons which follow, I consider that these orders should continue, subject to the following amendments. Order 1 should be amended by deleting the words “and/or take any further steps to revoke the appointment of the applicant as vicar general”. Order 2 should be amended to delete the words “the vicar general”. The effect of these amendments is that no orders will be made with respect to the applicant’s claim that his licence as Vicar General has not been terminated. That is not because he has no case with respect to that matter, but because the balance of convenience does not favour an order with respect to the position of Vicar General. The injunction should also reflect the terms of s 46PP(3) as relevant to this case and recognise the respondents’ ability to come back to the Court seeking a variation or discharge of the orders. The expression “until further order” in each order will be replaced with the following words: “Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court”.

The Statutory Context

3    The application for an injunction is made under s 46PP of the Act. That section is in the following terms:

46PP Interim injunction to maintain status quo etc.

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

  (b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

4    With respect to subs (2), the definition in the Act of a complainant is a person who lodged the complaint, whether on the person’s own behalf or on behalf of another person or persons, and the definition of a respondent is the person or persons against whom the complaint is made. An affected person means a person on whose behalf the complaint was lodged.

5    With respect to subs (3), s 46PG of the Act deals with the withdrawal of a complaint with the leave of the President of the Commission. Section 46PE also deals with the termination of a complaint upon the written request of the complainant. Section 46PF(1)(b) deals with the termination of a complaint by the President without inquiry and s 46PH deals with the termination of a complaint by the President, including termination on the ground that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation. Section 46PO of the Act should also be noted. It deals with the circumstances in which a person may make an application in the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Section 46PO(6) provides that the Court may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

6    At this stage, the applicant seeks an interim injunction pending the conciliation of his complaint or the termination of his complaint in order to maintain the status quo, as it existed immediately before the complaint was lodged, or to maintain his rights, or both. In other words, the applicant relies on both limbs in s 46PP(1) of the Act.

7    I do not need to address the Disability Discrimination Act in detail other than to note the following. The Disability Discrimination Act defines direct disability discrimination in s 5 and indirect disability discrimination in s 6. It prohibits discrimination in employment in s 15 and discrimination in other areas in ss 22 to 30 inclusive. The Disability Discrimination Act provides in s 10 that if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act) then, for the purposes of the Act, the act is taken to be done for that reason.

8    The applicant’s disability arose in the following circumstances. In 2012, the applicant was the Parish Priest in Penola. He sustained three pulmonary embolisms and numerous deep vein thromboses and was prescribed high doses of Warfarin. On 27 May 2013, a large hematoma appeared on the applicant’s spine at C2 to T6. The condition required emergency surgery and he suffered partial paralysis. He suffers from various medical conditions as a result of this condition. He has difficulties with his bladder and bowels, and walks with a limp when he is tired. He states that most of his body has no sensory feeling. Recently, the applicant has been diagnosed as suffering from a serious illness. There is no evidence either way as to whether this illness is in any way linked to his earlier illness or the symptoms thereof. It is unnecessary for me to comment further on his medical condition.

9    The position of Archdeacon comes with a stipend, the provision of a residence, white goods for that residence, payment of outgoings in respect of the residence, and the provision of a motor vehicle and the costs associated with that motor vehicle. The position of Vicar General does not involve any remuneration or allowances.

Evidence on the Application

10    The applicant relied on two affidavits he swore, the first on 21 March 2019 and the second on 7 April 2019. The applicant sought to rely on a further affidavit from his solicitor which annexed a document detailing complaints made by others against the first respondent. This affidavit was marked MFI A2. I will not receive the affidavit because it comes too late and raises a number of issues which, if the affidavit is received in evidence, would in fairness require the Court to give the first respondent the opportunity to respond. As it has not been read, it will not be available for public inspection. In fact, I will make an order that pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth), the affidavit identified as MFI A2 be confidential.

11    The respondents relied on an affidavit of the first respondent dated 4 April 2019. There was a short second affidavit of the first respondent which sought to correct one matter in his first affidavit. The respondents also relied on an affidavit sworn by Ms Donna Jones who is the Registrar and Public Officer of the Diocese. Finally, the respondents relied on an affidavit of Reverend Father David Price sworn on 4 April 2019. Father Price is the Dean of the Anglican Cathedral of St John the Baptist, Murray Bridge.

12    I also received various Diocesan documents on the hearing of this application. They included the Constitution of the Diocese (Constitution) and the Parochial Administration Ordinance 2001 (Ordinance). The terms, “Archdeacon” and “Vicar General” are defined in s 27 of the Constitution as follows:

“Archdeacon” means a clergyman appointed to such office by the Bishop who shall hold office for such period and shall have such powers and functions as the Bishop may from time to time determine.

“Vicar General” means a clergyman appointed by the Bishop to the office of Vicar General pursuant to Section 28, to assist the Bishop in the administration of the Diocese.

13    Section 28 of the Constitution deals with the appointment and the revocation or determination of the appointment of the Vicar General. As far as revocation or determination is concerned, subss 28(4) and (5) provide as follows:

(4)    The Bishop may revoke an appointment by an instrument or revocation under his hand and seal, and that instrument shall forthwith be registered in the Registry of the Diocese.

(5)    Upon the enthronement of a new Bishop of the See, the appointment of a Vicar General then holding office determines.

Section 28 also deals with certain powers of the Vicar General. Subsections 28(6) and (7) provide as follows:

(6)    Upon appointment to, and while holding office, the Vicar General is empowered (subject to any written direction to him by the Bishop) to use, exercise, do and perform, all and every the powers, acts, and authorities, that may be exercised by the Bishop, except exclusively Episcopal powers, and the powers reserved to the Bishop by Sections 13, 15 and 26 of this Constitution.

(7)    In the event of the absence of the Bishop from the See, or of his incapacity, resignation, or death, or upon the happening of any event for which an Administrator is required by terms of this Constitution, or of the Ordinances, then the clergyman holding office as Vicar General shall, notwithstanding the provisions of the definition of the expression “The Administrator” in paragraph (1) of Section 27, be the Administrator of the Diocese.

14    Section 52A of the Ordinance provides as follows:

(1)    Notwithstanding the provisions of any Ordinance of the Diocese or any other principle of canon law express or implied or the terms and conditions of the licence granted to any Clergyman by the Bishop such licence may be revoked at the discretion of the Bishop and with the consent of the Diocesan Council if in the opinion of the Bishop the Clergyman has for a period of 180 consecutive days been unable by reason of infirmity of mind or body to discharge adequately the duties attaching to his office.

(2)    When exercising his discretion pursuant to subsection (1) hereof the Bishop shall consider the adequacy of any proceeds of insurance, compensation, superannuation or other benefits or emoluments which will be payable to the Clergyman in the event of the revocation of his licence.

Key Events in Chronological Order

15    I have already referred to the illness suffered by the applicant in 2012 and 2013 (at [8]). Despite these difficulties, the applicant returned to a full time ministry on 16 November 2013. In early December 2013, the first respondent became the Bishop of the Diocese.

16    On 4 July 2014, the applicant was appointed Archdeacon of the Limestone Coast.

17    On 12 December 2015, the applicant was appointed Archdeacon and Vicar General of the Diocese. As I have said, remuneration and other benefits are attached to the position of Archdeacon.

18    On 26 June 2018, the applicant went on medical or sick leave. I will refer to it as medical leave. There is a dispute between the parties as to the circumstances in which the applicant went on medical leave and remained on such leave until his licences as Vicar General and Archdeacon respectively were purportedly terminated. That dispute gives rise to a contention by the respondents that the applicant’s conduct in connection with such leave means that he has no arguable case or, at best, a very weak case.

19    On 1 August 2018, the first respondent purported to appoint Bishop Lindsay Urwin as Vicar General. He did not revoke the applicant’s licence under seal as apparently required by s 28(4) of the Constitution and he sought to remedy this situation on 26 February 2019 when he confirmed under seal the revocation of all licences previously issued to the applicant as Vicar General.

20    On 23 November 2018, Ms Jones completed the AMP employer’s statement on behalf of the Diocese to be provided in support of the applicant’s salary continuance claim. She said that she confirmed in the statement that the applicant’s disability had increased and had made full performance of all of the required tasks impossible. She sent the statement, draft Ministry Specification for Archdeacon, Preface to the Rite of Ordination of a Priest and a letter from the Bishop for the insurer to the applicant that same day so that he could provide them to AMP.

21    On 3 January 2019, the first respondent sent a letter to the applicant advising him that his licence as Archdeacon of the Diocese had been revoked. The first respondent referred to the fact that:

It is now over 180 days since it was necessary for you to have time away due to ill health and as you will probably realise Parochial Administration Ordinance 2001 at Section 52A allows such revocation in order that a particular ministry can be brought to an end so that other arrangements may be put in place …

22    The first respondent referred to the fact that the applicant’s ministry as Vicar General “ended upon the appointment by me of your successor several months ago”. The first respondent advised the applicant that he would continue to receive payments from the Diocese equivalent to the amount of the stipend he had been receiving until 15 April 2019, or until payments under the insurance provisions begins if that is earlier. The first respondent also advised the applicant that it was agreed that until 15 April 2019, he may continue to occupy the house on terms equivalent to those that exist at the time of the letter.

23    The affidavit of Father Price refers to an incident at the cathedral on 3 January 2019 whereby, according to Father Price, the applicant removed several candles and Father Price’s two Albs and placed them in the back of his car. The incident was reported to the police who arrested the applicant. The applicant is facing a charge of theft. The applicant denies the allegation of theft.

24    The applicant’s solicitors sent the respondents a letter before action on 11 February 2019. It is not necessary for me to set out the factual allegations which, by and large, are also repeated in the complaint the applicant lodged with the Commission. The applicant’s solicitors allege that the first respondent’s revocation of the applicant’s licence as Archdeacon was invalid on various grounds (including a failure to properly exercise the discretion in s 52A(2)) and was unlawful discrimination on the grounds of a disability. Similar allegations are made with respect to the revocation of his licence as Vicar General. On 15 March 2019, the respondents’ solicitors provided a detailed response to the letter before action. I do not understand there to be any dispute, at least for the purposes of this application, that the action taken by the respondents was capable of being action that falls within the terms of ss 15, 19 or 24(a) of the Disability Discrimination Act, and that the disabilities alleged by the applicant fall within the definition of disability in s 4 of the Act. The applicant’s case is that he is employed by both respondents or, in the alternative, by the second respondent.

Analysis

25    The applicant points to the terms of s 46PP of the Act and makes the point that there is no other relevant proceeding before the Court other than the application for an interim injunction under that section. He submits that the character of the injunction sought does not “partake entirely of the injunction available in the exercise of equitable jurisdiction”. He submits that the usual requirement that a plaintiff must be able to show a sufficient colour of right to the final relief in aid of which the [interim] relief is sought (Australian Broadcasting Commission v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 190 per Gleeson CJ at [9] and [11]) is subject to significant modification. He points to the fact that no final relief can be sought in the application because the Court’s jurisdiction does not arise unless and until a complaint has been terminated by the President of the Commission. The applicant submits that the remedy provided by s 46PP of the Act is sui juris and that it extends to the grant of an injunction quia timet. He contends that the jurisdiction must be exercised in a manner which is consistent with the objects of the Act and that includes the effective exercise of the right of the applicant to lodge a complaint (Picos v Servcorp Limited [2014] FCA 922).

26    For their part, the respondents submit, as I understood it, that there was no practical difference in this case between the test for an interim injunction under s 46PP of the Act (a complaint pending before the Commission), and the test for an interim injunction under s 46PO(6) of the Act (complaint terminated and proceedings pending before the Court). That is because it should be assumed that the complaint will not be settled by conciliation and the complaint will be terminated. Furthermore, it should also be assumed that the complaint will be terminated under s 46PH(1C) because the President will be satisfied that there is no reasonable prospect that the Federal Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

27    The respondents’ submission is that the usual tests on an interlocutory injunction apply (as to which see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238).

28    I do not accept the respondents’ argument. It seems to me that the two powers (i.e., ss 46PP and 46PO(6)) operate in two different contexts. Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case. By contrast, a claim for an interim injunction under s 46PO(6) after proceedings have been commenced and pending the determination of the proceedings involves the usual tests for an injunction. At the risk of stating the obvious, an interim injunction might be granted under s 46PP, but on the complaint being terminated and a proceeding in the Court instituted, not under s 46PO(6).

29    The respondents also submitted that the “rights” sought to be protected by the injunction do not exist either because the applicant is no longer Vicar General or Archdeacon or there is no realistic possibility that orders would be made reinstating the applicant as Vicar General and Archdeacon, or for both of these reasons. I do not accept these arguments, at least as to the position of Archdeacon. The argument that the applicant’s licence as Vicar General and his licence as Archdeacon have been revoked assumes the lawfulness of decisions which are challenged and said to be invalid, both on discrimination grounds and grounds going to the exercise of the powers. It is not appropriate to proceed on that assumption. Furthermore, they overlook the Court’s power in s 46PO(4)(c) to order the employment or re-employment of an applicant. The more practical argument that for various reasons the applicant’s continuance (or re-employment) in the role of Archdeacon is untenable has force, but is not sufficient to carry the day on a relatively short term basis. It may have more significance should court proceedings be instituted and an interim injunction is sought under s 46PO(6) of the Act. The position of Vicar General requires separate consideration.

30    The respondents submit that the applicant was guilty of non-disclosure on 8 April 2019 and the application for an injunction should be refused on that ground. On that day, the Court had before it the applicant’s first affidavit which included the complaint he had made to the Commission. The complaint referred to the fact that on 6 February 2019, in the cathedral, the first respondent orchestrated an announcement by another priest, Father David Price, to the effect that he had stolen items from the cathedral and that the matter had been reported to police. There is a statement that the applicant was subsequently arrested on the basis of that report. The applicant states that there is no substance to the allegation and he strenuously denies it. According to the respondents, what the applicant did not tell the Court was that he has been charged and that there is CCTV of the alleged incident. The respondents submit that this is a serious case of non-disclosure on the applicant’s part and is a matter that should have been disclosed to the Court when he sought the interim orders on a previous occasion. The respondents submit that the fact that the police have put sufficient credit in the allegations to charge the applicant, was a material matter for the Court to consider when the applicant sought the undertakings that he did and, in particular, the first of those undertakings. I do not consider the non-disclosures (if they be non-disclosures) to be sufficiently material to warrant a refusal of an injunction.

31    Turning then to the question of a prima facie case, the applicant submits that he has a strong prima facie case and he relies on the following matters:

(1)    the first respondent appointed the applicant Vicar General and Archdeacon of the Diocese in 2015, well knowing, and notwithstanding, that the applicant was then disabled;

(2)    the first respondent required the applicant to take “medical leave” in June 2018. After a period of six to eight weeks, he was again fit for work, but the first respondent refused to allow him to return to work;

(3)    the first respondent’s purported appointment of a new Vicar General in August 2018 was invalid;

(4)    the first respondent “contrived” to keep the applicant away from work for a claimed period of “180 consecutive days” so that he could act under s 52A of the Ordinance. The applicant contends that the purported revocation was invalid as an abuse of the discretion conferred on the first respondent;

(5)    the second respondent by its Executive Committee, the Diocesan Council, must consent to the first respondent’s purported revocation of licences under s 52A, has power to fix clergy stipends, travelling and other allowances, and performs conferred functions in relation to long service leave, superannuation and housing; and

(6)    insofar as the applicant’s disability was one of two or more reasons for the first respondent’s action, it was the dominant and proximate reason.

32    For their part, the respondents submit that, in the circumstances, the applicant has no case of unlawful discrimination, or in the alternative, a very weak case. They point to substantial evidence to the effect that at no time in any of the documentation provided to the Court has the applicant ever suggested that he was fit, or likely to be fit, to return to his duties as Archdeacon. They submit that all the evidence points to the fact that, not only was he unable to do so, but that he was maintaining that he was unable to do so, including making a claim against AMP for benefits on the ground of his incapacity.

33    The applicant was on medical leave from 26 June 2018 to the date of the first respondent’s letter on 3 January 2019. His general practitioner provided seven medical certificates of unfitness for work in relation to the applicant covering the period from 26 June 2018 to 11 January 2019. The respondents claim that the applicant has been absent from work for more than 180 days and was liable to have his licence revoked under s 52A(1) of the Ordinance. The Diocese continued to pay a stipend and provide housing and motor vehicle benefits to the applicant during this period. The respondents claim that had the first respondent not terminated the applicant’s licence of Archdeacon, they would have been obliged to continue to make such payments indefinitely and that the Diocese could not afford to do so. The respondents point to the fact that the Ordinance makes no provision for sick (medical) leave, save for clause 52A which provides for the termination of a clergyman’s licence. The respondents also rely on the fact that during this period, the applicant was pursuing a claim on an insurance policy with AMP for salary continuance. It seems on the material before me that a claim was pursued on a personal accident and sickness policy with Chubb Insurance Australia Limited (Chubb), but on 26 October 2018 Chubb advised the Diocese that the applicant’s claim did not come within the terms of the policy. The advice was that the applicant’s condition did not come within the scope of this policy, “which is intended for more acute, short term conditions”. A claim for salary continuance was then made on an AMP policy. That claim is referred to in the correspondence put before the Court, including the applicant’s email to the first respondent on 21 November 2018, and the letter of support from the first respondent and the Registrar dated 23 November 2018. There is no evidence before me about the outcome of this claim, if indeed AMP has made a decision on the claim.

34    Both parties referred to correspondence and information in documents primarily from June 2018 to February 2019. Counsel for the applicant collected the correspondence and other documents together and put them in chronological order in a folder of materials that was handed to me. He also handed up a five page document which summarises the correspondence and contains strong submissions about how the correspondence should be interpreted and the inferences to be drawn from the correspondence.

35    For their part, the respondents identified in their written outline of submissions, 12 pieces of correspondence. They submit that this correspondence and, indeed, all of the correspondence, establishes that the applicant was unfit to perform his duties and he himself recognised that that was the case. The applicant decided that he could no longer perform his duties and was planning a future in which he did not perform the duties. It was submitted by the respondents that, in those circumstances, it could not be said that the licences had been terminated by the respondents because of the applicant’s disability.

36    The genesis of this dispute is a meeting which took place on 25 June 2018. There were three people present at the meeting, the applicant, the first respondent and the Registrar. The first respondent’s account of the meeting is as follows. In the course of the meeting, the applicant’s capacity to continue in his role was raised. The first respondent could not recall who raised the issue. The first respondent’s memory is that the applicant had been off duty for a while and naturally, they talked about how he was coping. The conversation developed into one which was appropriate to a pastoral relationship between a priest and his bishop and accordingly, the Registrar left the meeting and the conversation continued between the applicant and the first respondent. They discussed what the applicant could do and could not do. The discussion progressed to the point where the applicant expressed the view that he could not continue in his role. He raised with the first respondent what they called “salary continuance”. The first respondent was not aware of the Diocese’s insurance arrangements and the Registrar was asked to rejoin the meeting. The Registrar explained the insurance arrangements. The applicant told the Registrar that he thought that it was likely to be a long term issue and that, whilst it was a serious step at his age, the reality was that it was a step that had to be taken. The applicant raised the issue of when he should go off work. The first respondent said that the starting time was not important, but what was important was that the applicant should go to see his doctor to get a certificate to confirm his inability to continue in the role and that the respondents should take it from there. There was no discussion or mention of emotional issues.

37    The applicant has a different version of the events at this meeting. He states that he did not have a medical opinion that he should go on sick leave, but during the discussion the first respondent made plain that he meant what he had said to him on a previous occasion, namely that he did not want a person with his disabilities in the offices of Vicar General and Archdeacon and, therefore, he wanted him to take sick leave. The applicant said that he told the first respondent that he would be likely to continue doing what he was doing into his 60’s and that he did not suggest to him that he should be contemplating giving up his duties now. The applicant states that the first respondent seized on the prospect of the applicant’s retirement before retirement age by quickly responding that he needed to have an Archdeacon and Vicar General who would carry out the demanding duties and be able to give 100%. The applicant’s account continues as follows:

… Bishop Ford said to me words to the effect that “You are too un-well and you should stop”. He was attempting to convey the impression of pastoral care. I was not sick; I was disabled and sometimes I would struggle when placed under stress as I had been when having to cope with the numerous occasions Bishop Ford absented himself from the Diocese. However, my first reaction as I often did to Bishop Ford’s bullying was to take the easy way out, that is by not contesting but simply submitting to it.

38    A little later, the applicant states as follows:

13.    As to paragraph 22 I was responding to Bishop Ford’s bullying in circumstances where I was already run down and emotion (sic) to the point I was teary at times as we spoke. I had not recovered from the urinary tract infection I had at the time of the Synod.

14.    As to paragraph 24 in the face of Bishop Ford’s insistence that I go on sick leave and consider immediate retirement and in my then condition all I felt able to hold onto was some hope that my work might be recognised if that were forced on me.

39    The applicant seeks to explain his conduct in going on medical leave for approximately six months on the basis that he was in a vulnerable condition and merely complied with a direction from the first respondent that he take medical leave and start considering immediate retirement. He claims that in connection with those circumstances he was bullied by the first respondent.

40    It is not possible for me to resolve these disputes on an interlocutory application. On the one hand, the applicant has an arguable case. On the other, there certainly does appear to be a good deal of documentary evidence to suggest that the applicant acquiesced over a reasonably substantial period in the stated circumstances where it was unlikely he would ever resume his duties.

41    The applicant submits that there is reason to doubt that the Court must consider under s 46PP of the Act whether damages would be an adequate remedy. If it is necessary for the Court to consider that matter, the applicant contends that damages would be wholly inadequate to remedy an apprehended removal from office and priestly ministry involving a loss of salary package, including residence and car.

42    The respondents submit that damages is an adequate remedy. The respondents submit that there is no evidence that the applicant is presently capable of carrying out the duties of Archdeacon and Vicar General and nor is there any evidence to suggest that he will suffer any loss, other than the loss of financial benefits that accompany the position of Archdeacon. An order for compensation should be an adequate remedy for hurt feelings and for loss of financial benefits. There is no need to make any orders for the maintenance of the applicant’s salary or other benefits pending the resolution of the complaint, having regard to offers made by the respondents and conveyed to the applicant’s solicitors by the respondents’ solicitors on 8 and 9 April 2019 respectively.

43    In my opinion, the applicant’s submission is correct and should be accepted.

44    The respondents submit that the balance of convenience favours them. With respect to the position of Vicar General, a new Vicar General has been appointed. The first respondent will leave Australia on 7 May 2019, but he remains Bishop until 31 May 2019. A new bishop will not be appointed until after that time so that during that absence, the Vicar General will need to act in the Bishop’s place. The applicant has been charged with a criminal offence against the church and may face action from the church’s Director of Professional Standards. There is also a further consideration which was identified by the respondents. Section 28(5) of the Constitution provides as follows:

Upon the enthronement of a new Bishop of the See, the appointment of a Vicar General then holding office determines.

45    It seems to me that these matters tip the balance of convenience in favour of the respondents, as far as the position of Vicar General is concerned, but not the position of Archdeacon. There are two important matters in relation to the position of Vicar General that do not apply in the case of the position of Archdeacon. Those two matters are that the Vicar General acts in place of the Bishop and the fact that, irrespective of the outcome of the proceeding, the applicant’s appointment as Vicar General (if extant) comes to an end on the enthronement of a new bishop and that will occur in the near future. In my opinion, an order should not be made in relation to the position of Vicar General.

46    The respondents submit that the balance of convenience favours them with respect to the applicant’s position as Archdeacon because it would be unjust to order the Diocese to continue providing the stipend and other benefits. It is likely that the Diocese will have no basis to claim those payments or benefits back from the applicant because the Court cannot impose an undertaking as to damages. I am not convinced that this is a consideration in the respondents’ favour in light of the express statutory direction that the Court cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages (s 46PP(6) of the Act). In any event, it is not of sufficient strength to mean that the balance of convenience is in the respondents’ favour.

47    The respondents submit that the other factor to be taken into account is that there is no certainty as to how long “this situation will continue”. The Commission is not obliged under the provisions of the Act to terminate the complaint any earlier than 12 months from the time of the complaint. I do not consider this to be a circumstance of any significance. As I have said, the injunction should be in terms of the section with liberty to the parties to come back at any time and ask the Court to discharge the injunction.

48    The respondents submit that the Court “needs also to take into account” that the respondent responsible for the paying the stipend and other benefits is a charitable body with limited means. It is suggested that it would be surprising if it was not on a tight budget. It is suggested that I should infer that there is evidence from the first respondent that the Diocese could not afford to continue indefinitely to pay the applicant’s stipend and other benefits. There is no express evidence as to the financial state of the Diocese and a statement that it could not continue to make a payment indefinitely does not prove with any precision its capacity to make payments for a limited period.

49    I am satisfied that the balance of convenience favours the continuance of the existing injunction, save as to the position of Vicar General.

Conclusion

50    An injunction should be granted in the terms identified earlier in these reasons.

Associate:    

Dated:    26 April 2019