FEDERAL COURT OF AUSTRALIA

Venerable Dr Peter Carlsson v Right Reverend John Ford (No 2) [2019] FCA 805

ORDERS

THE COURT ORDERS THAT:

1.    The respondents pay 75% of the applicant’s costs of this proceeding to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

BESANKO J:

1    On 23 March 2019, the applicant in this proceeding made an application for an interim injunction under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (the Act). On 26 April 2019, I granted an injunction in the following terms:

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.

2    I delivered reasons for my decision (Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584). The applicant was successful in obtaining an injunction under s 46PP of the Act, but not without some qualification to the orders which he sought. As I said in my reasons, the effect of certain amendments that I made to the orders sought by the applicant is that no order was made with respect to the applicant’s claim that his licence as Vicar General had not been terminated.

3    In my reasons, I considered the differences between the power in s 46PP of the Act to grant an interim injunction to maintain the status quo or rights of the complainant between the date on which the complaint was lodged and the date on which the complaint was withdrawn or terminated on the one hand, and the power to grant an interim injunction after court proceedings have been instituted under s 46PO(6) of the Act on the other. I said (at [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).

4    The complaint by the applicant has now been terminated. The applicant has instituted a second proceeding in this Court (SAD 104 of 2019, The Venerable Dr Peter Carlsson v The Right Reverend John Ford, The Synod of the Diocese of the Murray of the Anglican Church of Australia Inc and The Very Reverend David Price) claiming substantive relief against the respondents.

5    The outstanding issue in this proceeding is the question of costs. The applicant claims that costs should follow the event. The respondents resist the order sought by the applicant. They submit that the outcome of the second proceeding will, or may well, bear on the issue of the costs in this proceeding. They submit that the question of costs should be reserved or the costs of this proceeding should be costs in the cause in the second proceeding.

6    I do not accept the respondents’ submission. This proceeding is a proceeding in its own right and there were considerations relevant to it which would not be present in the case of an interim or interlocutory injunction sought, for example, in the second proceeding. The proceeding was brought in a particular statutory context and is now at an end. The appellant was largely, but not entirely, successful. In my opinion, the applicant’s measure of success will be reflected in an order that the respondents pay 75% of the applicant’s costs of this proceeding and I so order.

Associate:    

Dated:    30 May 2019