SCANDRETT v DOWLING [1992] NSWCA 221

SCANDRETT vy DOWLING

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and MEAGHER JJA 30, 31 January 1992, 31 January 1992

[1992] NSWCA 221

ASSOCIATIONS — Voluntary Associations — jurisdiction of the Courts — dispute as to government of the Anglican Church of Australia — HELD — in the circumstances the case was one for intervention by a Court to preserve the status quo by granting interim relief.

Cameron v Hogan (1934) 51 CLR 358, Plenty v Seventh-Day Adventist Church (1986) 40 SASR 443, MacQueen v Frackelton (1909) 8 CLR 673, Edgar v Meade (1916) 23 CLR 20 considered. INJUNCTIONS - Interlocutory injunctions - discussion of their nature and purpose and the discretionary considerations affecting their grant. DISCRIMINATION LEGISLATION - Commonwealth and State legislation prohibiting discrimination based on sex expressly excepts the subject of ordination of priests HELD - There was, in those circumstances, no room for declining to enforce a lawful rule against the ordination of women as priests on the ground that it discriminates against women.

Gleeson CJ , SAMUELS AND MEAGHER JJA. This appeal has come before the Court in circumstances of great urgency. Underlying it is a dispute which involves issues of wide public importance.

The plaintiffs sought to restrain acts which the defendants proposed to perform on Sunday 2 February 1992. The Court therefore dealt with the appeal as a matter of expedition and announced its decision on 31 January, the day after the conclusion of the hearing. The following are our reasons for that decision.

The Anglican Church of Australia is a voluntary association. Its constitution and government are currently regulated, in New South Wales, by an Act of Parliament entitled The Anglican Church of Australia Constitution Act 1961. The Constitution which is a Schedule to that Act contains detailed provisions grouped together under the heading "The Government of the Church". An important part of the present appeal is an issue as to the meaning and effect of those provisions. There if also a question as to whether that issue is justiciable in the sense that it is a proper one for determination by a Court. It is agreed on both sides that this question itself involves a determination of the meaning and effect of the Act of Parliament, and of the written Constitution of the Church.