Will the Courts get involved in religious disputes?

The High Court has recently confirmed (in Brady v The Presbyterian Church of Aotearoa New Zealand [2012] NZHC 3526 at [50] and [57], Doogue AJ) the conventional wisdom that:

  • “… The Courts have long recognised that the constitution of a religious body, as a consensual compact binding on the conscience of the individual members, and its provisions, are without contractual force and, with certain limited exceptions, are not justiciable in a civil court.”
  • Further, “… the various authorities that I have referred to make it clear that the voluntary nature of the church, particularly when coupled with the additional feature that the case is concerned with matters involving faith and doctrine, mean that the Courts are reluctant to intervene where no property or monetary interest or something of that kind is at stake.”

The implications of the religious entity being incorporated or unincorporated

In Brady, the Court considered whether it should entertain a claim brought by members of a church congregation against individuals controlling Church premises. The judgment considered two inter-related issues; the implications arising from the fact that the Church was not incorporated, and the approach that the courts traditionally take to intervening in the affairs of Churches.

The Church congregation and the various officeholders of that Church were unincorporated individuals, and not parties to the litigation. The first defendant (the Presbyterian Church in New Zealand) was incorporated and therefore able to be the object of Court proceedings, while the second defendant was an unincorporated governance group of the Presbyterian Church. The Court concluded that it “was not open to the plaintiffs to sue the first and second defendants. So far as the governing bodies of the local congregation are concerned, these comprise individuals who need to be brought into the proceedings as individuals or to be proceeded against by the appointment of a representative. Neither of those steps has occurred.”

Problems with unincorporated entities

The problems inherent in unincorporated societies are discussed in Chapter 2 of Law of Societies, Mark von Dadelszen, 2nd Ed, LexisNexis, and include:

  • Understanding the nature of any particular unincorporated body,
  • Ascertaining what if any rules it operates under, where its constitution is often not defined but if defined may not be complete,
  • Identifying how any rules that exist were adopted, whether new members have acceded to them, how they may be amended, and determining how binding they are on members,
  • Whether a court may imply provisions to make good any omissions if any rules that exist are incomplete (as the court did in Grogan v McKinnon [1973] 2 NSWLR 290),
  • Ascertaining the status of members of an unincorporated society, and
  • Ascertaining members’ rights and obligations, how members are admitted, how they may be disciplined or expelled, and how they can resign.

Involving the courts in religious disputes

Litigants sought recourse to the courts early in our judicial history (see Dodwell v Bishop of Wellington (1886) 5 NZLR 263). While the courts commonly express their reluctance to resolve religious or doctrinal disputes they will intervene as required, as succinctly summarised in the Court of Appeal decision in Mabon v Conference of the Methodist Church in New Zealand [1998] 3 NZLR 513 (CA) at 523:

Clearly, and reflecting the separation of church and state, Courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue. But the Courts will intervene where civil or property rights are involved and can be expected to analyse carefully any argument that conventional incidents of a recognised relationship such as work, do not give rise to contractual rights.

The later judgment in Palu v Conference of the Methodist Church of New Zealand, High Court, Auckland, CIV 2001-404-1870, 23 July 2003, at para [303] stated:

The principle … is that the Courts will not shrink from determining doctrinal issues if it is necessary to do so in order to enforce the terms of a trust of a property, but will not determine such issues where no such property or trust terms are in issue.

The New South Wales Court of Appeal decision in Scandrett v Dowling (1992) 27 NSWLR 483 at 491 goes into greater, and helpful, detail:

The rules of a church which is not an established church, in so far as they create legal rights and obligations, do not create rights and obligations of the kind referred to in respect of an established church. For the purpose of determining the nature and extent of the rights and obligations of the members of a non-established church, such a church is treated in the law as a voluntary association: see Free Church of Scotland v Overtoun [1904] AC 515 at 643; Fielding v Houison (1908) 3 CLR 393; Wylde v Attorney-General (NSW) (1948) 78 CLR 224 (at 257, 275, 286, 298).

The nature and effect of the obligations of a member of a voluntary association are determined conceptually as part of the law of consensus or contracts. The court first ascertains what are the rules adopted by the members as regulating their relationship as members. Such rules may be derived from, for example, a written constitution or otherwise agreed in writing; they may be accepted by inference as the result of the practice of the members; and in some cases they may be enacted or affected by statute. But, whatever the source of the rules be, the court must determine initially what they are or whether the rule sought to be enforced is a rule of the body.

The court will ordinarily then determine whether and to what extent it was the intention of the parties that such rules should create rights and obligations of a legal nature or whether they should be binding only in some other respect, for example, in honour, by domestic sanction, or otherwise see generally, Cameron v Hogan (1934) 51 CLR 358; D W Greig & J L R Davis, The Law of Contract (1987) at 199 et seq.

If and in so far as the rules create legally binding rights and obligations, it is necessary for the court to determine whether they can and should be enforced in the particular case. In some cases at least the court has, in my opinion, a discretion as to the enforcement of legally binding rights and obligations.

Lessons from Brady

The Brady decision makes no new law but it does emphasise two important two points:

  • Any dispute about the activities of an unincorporated organisation is fraught with substantive and procedural difficulties – which might be minimised if the organisation had a proper constitution and if it was incorporated, and
  • Disputes about matters of belief and religion create their own particular problems for legal advisers and courts.
This is one of a series of articles on societies and charitable trusts (originally published in the NZ Lawyer magazine) by Mark von Dadelszen, a Hastings lawyer and author of Law of Societies, 3rd Edition, 2013. If any reader has examples of issues that have arisen or questions about societies or charitable trusts that might be a suitable subject for one of these articles please contact Mark at mark.vondadelszen@bvond.co.nz.