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Court of Appeal of New Zealand |
Last Updated: 1 November 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellants |
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AND
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First Respondents |
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AND
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Second Respondents |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France
J)
Introduction
[1] On 5 December 2013, the Parish Council of the Avondale Union Parish (the Parish) passed resolutions excluding a group of its parishioners from further use of the Parish’s facilities. The underlying proposition was that the group had already abandoned their commitment to and membership of the Parish, and were not entitled to use its facilities (including its church). The excluded group unsuccessfully brought proceedings in the High Court challenging the validity of the Parish Council resolutions.[1] They now appeal.
Background
[2] The Parish was formed in 1972. It represented a coming together of worshippers from the Presbyterian and Methodist churches. The union followed a prescribed formula, the outcome of which is that the worshippers, pursuant to the Union Agreement, form a new parish. Although the entity’s origins lie with these two denominations, thereafter those who affiliate are parishioners of the Parish, and may come from any denomination.
[3] The two original denominations still perform a function, as governance of the Parish vests in them on a rotational basis. For the times relevant to this proceeding, governance of the Parish lay with the Northern Presbytery of the Presbyterian Church. That means a relevant source of rules is the Presbyterian Book of Order. However, more immediate than that are the rules contained in the Procedures for Cooperative Ventures. These are promulgated by the Uniting Congregations of Aotearoa New Zealand, a cooperative entity founded by five churches — Anglican, Presbyterian, Methodist, the Congregational Union Church, and the Christian Churches of New Zealand.
[4] The Parish Council is the Parish’s governance body. Originally for the Avondale Union Church the Council’s membership was drawn five from the Methodist worshippers and five from the Presbyterian worshippers. The Minister of the Parish is also a member. However, over time the makeup of the Parish evolved and so did the makeup of the Parish Council. The proportion of Pacific Island parishioners grew. In 1979 it was decided to have two Ministers, one of whom would have more direct responsibility for the Pacific Island (primarily Samoan) component of the congregation. These parishioners identified with the Presbyterian Church. However, both Ministers were Ministers of the whole Parish and were equal in status.
[5] Two Sunday services came to be had. One was conducted in English and the other in Samoan. This eventually led, in 1986, to a decision that the Parish Council should be restructured, and should consist of the two Ministers and five parishioners from the regular attendees of each of the two services. This new arrangement continued for many years.
[6] In 2003 a new Minister was appointed for the Pacific Island community, Reverend Asora Amosa. He was to prove a central figure in what occurred, but perhaps the key catalyst was a development within the Presbyterian Church. The Presbyterian Church is normally governed on regional lines, with regional Presbyteries responsible for governance in their areas. However, in 2012 the Church established a Pacific Island Synod. That Synod proffered, on a national basis, an alternative governance structure for those parishes affiliated to it. As it happens, Reverend Amosa was the first clerk of the Pacific Island Synod.
[7] An aspect of the rules contained in the Procedures for Cooperative Ventures is that Ministers may only hold appointments for ten years. For Reverend Amosa that period would expire on 31 July 2013. The same ten year rule did not however apply to parishes and Ministers who were affiliated with the new Pacific Island Synod. In 2013, attendees of the Avondale service conducted in Samoan moved a proposal that the Parish affiliate with the Pacific Island Synod. The motion was lost.
[8] A consequence of the lost motion was that on 31 July 2013, the appointment of Reverend Amosa was terminated. This was done by the Northern Presbyter, and simply reflected an application of the rules. However, within the group that supported a shift to the Pacific Island Synod, it seemed an act targeted at them. It is clear that it fostered resentment, and that there remained within this group a desire to align with the Pacific Island Synod. Reverend Amosa remained very much present.
[9] In terms of the present proceedings, the appellants are the group who wish to be affiliated with the Pacific Island Synod. They are a significant proportion, but by no means all, of the regular attendees at the Sunday service conducted in Samoan. It is they as a group who are excluded by the December resolutions, discussed below.
The immediate events
[10] Subsequent to the failed vote, the key event appears to be a church service held on 13 October 2013. That day is known as White Sunday, and is a day of special importance to Samoan communities. It is a celebration of childhood, and special events are organised.
[11] In the lead up to 13 October 2013 there was evidence of statements being made by those who promoted the unsuccessful vote about forming a new church, and allegedly also efforts by them to stop the White Sunday celebrations occurring. It is clear tensions were high. On White Sunday the regular 11.30 am service was to be led by the Parish’s two Ministers. However, one excused himself. Reverend Koko was an interim replacement appointed by the Northern Presbytery in place of Reverend Amosa but seems to have aligned himself with the appellants’ group. Along with Reverend Koko, many who would normally be at the 11.30 am Samoan language service did not attend.
[12] The reason for this was that the appellants’ group had organised an alternative service at 3.00 pm. This service was not sanctioned by the Parish Council, who were not aware of it. However, some members of the Parish saw the attendees going to the Church and went along to see what was happening.
[13] It was alleged by these attendees, and accepted by Moore J, that at this service a new church was declared.[2] There were declarations of independence and freedom. Significantly, a list of pledges was read out, one of the largest being from Reverend Amosa and his wife. Either then, or shortly after, officers such as a Secretary were appointed. It is presently claimed the new congregation numbers 317.
[14] The appellants maintain on appeal that this event has been misinterpreted. It is said that it was organised because the appellants’ group did not feel safe or comfortable worshipping with the others. The language of freedom used at the service related to the ability, now shorn of tension and fear for their safety, to again worship with freedom.
[15] We have reviewed the evidence and see no basis to form a different view from Moore J. The reading of pledges can only be seen as consistent with the idea of a new parish being funded. The primary witness on whom the appellants rely for their contrary view was described by Moore J, in relation to other aspects of his evidence, as unconvincing and evasive.[3] To the best one is able to discern these things from the written record, his Honour’s assessment of this witness is not one that surprises.
[16] The next event was a meeting of the remainder of the regular attendees of the Samoan language service. It was called by the other Minister, and its purpose was to elect new Parish councillors from that group. It can be recalled that each service provides five councillors. Of the five from the Samoan language service who had been nominated at the start of 2013, one had died, one was in the camp of no change to the Parish structure, and the other three were all part of the appellants’ group wanting change. The meeting was advertised in the normal way, but no specific notice was given to the current Parish councillors.
[17] Three new Parish councillors, all members of the group who wanted to remain in the existing Parish structure, were appointed from amongst their number. A week later the Parish Council met with the three new nominees taking their places.
[18] We pause here to note an issue that arose at the hearing concerned the poor record of meeting attendance by the three replaced Parish councillors. Some weight appears to have been attached to this by Moore J, but we consider it somewhat of a red herring. It was not in reality the reason the three councillors were replaced and it appears to have been something that was occurring for some time. The nonattendance does not support an inference of abandonment by the appellants’ group, or by the three councillors in particular.
[19] Throughout October and November 2013 the Northern Presbytery, as current governance body, became involved. There was correspondence to it by both groups. The appellants place reliance on a letter written at this time, dated 20 November 2013, on their behalf setting out their aims. The letter makes it clear that the group want to establish a Pacific Island Church operating from the same premises and under the auspices of the Pacific Island Synod. Its significance is said to be that the group were seeking to achieve its aims through existing structures and not by unilateral departure.
[20] There is merit in this point but, as Moore J notes, other aspects of the letter point the other way.[4] The letter is signed by four office holders — Chairman, Treasurer, Secretary and a committee member. None of these people held such an office within the Parish so it can rhetorically be asked, of what body were they officer holders?
[21] The Parish Council met on 5 December 2013. The Council now consisted almost primarily of members seeking to remain in existing Parish structures. This was not a regular monthly Council meeting but one organised because of the growing crisis. Notice of the meeting was given from the pulpit and in Parish notices. None of the appellants’ group attended, and no specific notice was given to the three replaced councillors.
[22] Reverend Koko was not invited but in attendance were the other Minister, the Parish councillors and two representatives from the Northern Presbytery. These latter two individuals had been present throughout November seeking to assist parishioners to a resolution. One of these, Reverend Christian, was invited to the meeting as a meditator and facilitator. He had been conducting a series of meetings over the preceding period with the various groups. Reverend Christian advised those present that during those discussions the appellants’ group had told him they had left the Parish. He maintained this evidence at trial and Moore J accepted its accuracy.
[23] This is a significant statement, occurring as it does prior to the 5 December vote. Reverend Christian is a neutral participant and the statement he reports very much mirrors the sentiments expressed back at the White Sunday service. Two resolutions were then passed at the 5 December meeting, the key one of which was to resolve not to allow “the separating Samoan group” any future use of the Parish premises.
[24] The Parish Secretary advised the appellants’ group of the resolutions. Legal advice was then taken by them and a letter on their behalf was written to two governance bodies of the Presbyterian Church. The letter said that the appellants’ group were seeking a dissolution of the current cooperative venture. That caused the Northern Presbytery to establish a Presbytery Commission to inquire into all matters including the finances.
[25] The newly established Commission contacted the Treasurer of the appellants’ group, Mr Naseri. It is he who is described by Moore J as an evasive witness.[5] Moore J records that the contact from the Commission caused Mr Naseri to write “a most abusive email”.[6] Relevant for present purposes, however, is Mr Naseri’s assertion in the letter that the account in question was under the control of the “Pacific Island Church Avondale”. This is a description again indicative of the group having, in their own words, broken away and established a separate parish.
[26] Shortly after this the appellants’ group sought injunctions allowing use of the premises. These were granted and have operated since.[7]
Appeal
[27] The case was analysed through the lens of contract law, and in particular repudiation. The key issue was seen by both parties, and the Judge, as being whether the appellants’ group had by the time of the 5 December vote repudiated their contract with the Parish. The primary ground of appeal is that Moore J erred in his factual assessments, and, related to this, applied an incorrect test for repudiation. The second ground of appeal is that the vote taken on 23 October 2013 to replace the three councillors was not valid as all persons entitled to vote were not given the opportunity. This error in turn affects the validity of the Parish Council membership and therefore its 5 December vote.
Applicable law
[28] One of the three pleaded causes of action was breach of contract. Relying on Shergill v Khaira, Moore J considered this to be the appropriate vehicle to analyse the key factual dispute, which was whether by the time of the resolutions, the appellants had abandoned the Parish in order to establish a new Pacific Island Church Avondale.[8] In Shergill the United Kingdom Supreme Court observed:
[46] The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association’s governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are nonjusticiable if they do not as a consequence engage civil rights or interests or reviewable questions of public law.
[47] The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the association’s contractual constitution. ...
[29] Under the contract law approach, the claim of abandonment was assessed as an issue of whether the appellants’ group had repudiated their contract with the Parish. The relevant law on repudiation was recently stated by the New Zealand Supreme Court in these terms:[9]
[63] On this point, it is necessary to return to the fundamental question under s 7(2) [of the Contractual Remedies Act 1979], namely, whether an inference can reasonably be drawn in the circumstances that the relevant party no longer intends to perform its obligations under the contract. This factbased assessment must be made against the background that the threshold is a high one and that disputes about the meaning of contracts or the nature of the obligations they impose are commonplace. The mere fact that a party vigorously espouses a view of a contract’s meaning that is ultimately shown or accepted to have been wrong does not mean that the party is thereby manifesting an intention not to perform its obligations under the contract. If it is clear that the party accepts that it is bound by the contract, whatever meaning it is ultimately determined to have, the party should not be held to have repudiated the contract. By contrast, if a party persistently refuses to perform unless the other party accepts additional onerous terms inconsistent with the contract or on the mistaken view that there was never an enforceable contract, the party may well be found to have repudiated the contract. In such circumstances, the stance adopted amounts to a refusal to accept any obligation to complete the contract in accordance with its terms.
[30] The appellants’ position on appeal is that they were operating under a misapprehension as to the applicable rules. It is submitted that Moore J incorrectly saw this misapprehension on their part as evidence of an intention to leave the Parish. Relying on the passage just cited, it is said his Honour overlooked the need for a clear intention to not perform the contract.
[31] We do not accept Moore J made an error. Assuming for the moment the evidence established that the appellants’ group were mistaken in believing they could unilaterally establish a new parish to operate independently from the existing Parish facilities, that mistaken belief does not necessarily negate repudiation. Indeed, it tends to establish it, as a necessary step in such a process is for the group to sever its link to the existing Parish. In so doing it plainly manifests an intention not to perform its contract with the Parish.
[32] Ultimately, however, that was not the appellants’ case, at least at trial. Their case was that although they were desirous of severing ties, and imagined that their new church and the existing Parish could operate from the same premises, they only intended to sever these ties formally and in the proper way. There was discontent and dissention, but the group had not left the Parish, and did not intend to do so other than with approval. That position, if accepted, would not constitute repudiation. Moore J rejected this version of events. We agree with Mr Pidgeon that the appeal is in essence, and only, a challenge to the factual findings of the trial Judge.
[33] Before leaving the applicable law, we note that on appeal there has been no focus on the other aspects of a repudiation analysis. For example, there is no particular analysis of whether the actions of the appellants’ group could be sheeted home to the three replaced Parish councillors. Both submissions on appeal touch on the point, but neither develop it as a ground of appeal. Having reviewed the evidence we are satisfied there is nothing that would support disassociating those three individuals from the actions generally of the excluded appellants’ group. Repudiation by the group was rightly seen as repudiation by the members of the group, including the three former Parish councillors.
Decision
[34] As noted, this is essentially an appeal against factual findings. In our view, this is a case where the appeal court should accord considerable deference to the advantages enjoyed by the trial Judge.[10] The evidence took several days, much of it was translated, and it is apparent from the record there was considerable interplay occurring throughout. Further, the findings of the Judge are not contrary to any written documentation, and there is no suggestion they are conclusions that were unavailable on the evidence. Our reading of the record has not led us to any contrary conclusions, and so it is necessary only to touch on the key matters.
[35] A starting point is that it is common ground the appellants’ group were wishing to leave the Parish, at least in the sense of having the existing accord disestablished. Further, there was significant level of tension and frustration due to the failed vote in June 2013, and what was seen by some as the dismissal of Reverend Amosa. There had been, shortly after the failed vote, an invalid attempt to have a second vote. There can be no doubt about the group’s determination to cut its ties.
[36] Against that background, there then occurred a separate unauthorised church service held on a special feast day. Within a church context that can only be seen as a significant statement. The evidence is that indeed it was such a statement — there were declarations of independence and of a new church; there were funding pledges for the new church; and new representatives were appointed. Later, the group were to confirm to an independent appointee from the governance body that they had left the Church.
[37] In reality little more needs to be said. Repudiation is established not just by piecing together a series of events and drawing an inference, but by actual statements to that effect by the departing group. It may well be the case that there was a misapprehension about their ability to use the Parish facilities they had in part funded, and perhaps a different approach may have been taken but for the misapprehension, but the facts are as they are. The appellants’ group repudiated the contract expressly and by conduct, albeit perhaps without full awareness of the consequences.
[38] A factor relied on by Moore J was the ongoing failure of the appellants’ group to meet their financial obligations to the Parish. While they continued to pay for some matters directly relevant to their ongoing use of the premises, such as electricity, the appellants’ group were not contributing to other Parish liabilities (such as levies). The evidence over the finances was confusing at times, but again we have not been led to a different conclusion than that reached by Moore J as to who was paying what. In the life of a church, these cumulative events must be seen as clear indicia of repudiation — nonattendance at regular service, establishing an alternative service and withholding funding.
[39] We agree with Moore J’s factual finding that the appellants’ group had in fact left the existing Parish by the time of the vote on 5 December 2013. Indeed, the alternative service on White Sunday seems to have been exactly what those who spoke at the service described it as — the first service of a new church, namely the Pacific Island Church Avondale.
[40] An aspect pressed strongly on appeal was a challenge to Moore J’s finding that the label Pacific Island Church was a new label, reflective of a new church. Mrs Woodroffe for the appellants submitted the evidence showed the attendees at the Samoan language service had long called themselves the Pacific Island Church. Mrs Woodroffe pointed to a trust established in 2006 by this group which describes themselves in those terms.
[41] However, there was contrary evidence from long standing parishioners who said they never saw or heard the term used, other than perhaps occasionally in connection with a sporting event. This is a situation of a direct conflict in evidence, and we see no basis to take a different view from the trial Judge. It may be that the term was used within the group at times, but as regards the full Parish the evidence of those who had been parishioners right through seems convincing.
[42] We turn finally to the issue of the Parish roll. The rules require a Parish roll to be kept, and that all those on the roll are able to vote. Within the Parish it seems for many years each service kept their own roll, and quite indifferently. The appellants’ submission relies on a strict application of the rules in the Presbyterian Book of Order, and seeks to invoke the procedures for excluding members. Of this Moore J observed:
[150] The removal procedure in the Book of Order is designed to provide a means of removing or expelling members of a Presbyterian church were it to become clear that, either by choice or compulsion, they will play no further role in the active life of the church. However, as a matter of commonsense church membership fluctuates as individual parishioners and their families move out of the parish, join different congregations or experience lapses in faith. It would, in my view, be an unreasonable and, frankly an unworkable, burden to impose the strict requirement that the church must immediately and unfailingly invoke the formal removal processes every time any parishioner elects to leave the congregation. The departure of members would much more likely be taken into account when the rolls are reviewed on an annual basis, at which point the procedure would be invoked if necessary, if the governing body of the church was diligent enough to comply with them at all. As a result, I do not consider that the fact this procedure was not invoked in the present is particularly telling or of relevance given the circumstances.
[43] We agree. It is clear that over the years there was considerable informality attached to the keeping of the roll, and the nomination by each group of its Parish councillors. We do not consider it would have been appropriate to belatedly seek to impose the formal structure on the Parish affairs. Further, the factual finding is that the appellants’ group left the Parish of their own volition. Whether or not they had been formally removed from a Parish roll is irrelevant to their right to participate thereafter.
Conclusion
[44] For essentially the same reasons given by Moore J, the appeal is dismissed. We are satisfied that the regular attendees at the service conducted in the Samoan language were entitled to replace those from their number who were Parish councillors and who had left the Parish. It follows there was no invalidity in the makeup of the Parish Council on 5 December 2013 and the resolutions were validly made.
[45] The appellants must pay the first respondents costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Woodroffe Law
Partnership, Auckland for Appellants
Pidgeon Law, Auckland for First, Second,
Third and Sixth Named First Respondents
[1] Matamu v Si’itia [2016] NZHC 2516. The remaining respondents are the first, second, third and sixth named first respondents. The second respondents abide.
[2] At [26].
[3] At [123].
[4] At [35]–[36].
[5] At [123].
[6] At [56].
[7] Matamu v Si’itia [2014] NZHC 34.
[8] Shergill v Khaira [2014] UKSC 33, [2015] AC 359.
[9] Kumar v Station Properties Ltd (in liq and in rec) [2015] NZSC 34, [2016] 1 NZLR 99.
[10] See, for example, Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and [13].
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