TRUSTEES OF THE ROMAN CATHOLIC CHURCH v ELLIS & ANOR [2007] NSWCA 117

Reported Decision: 63 ACSR 346 Appeal Outcome: Special leave refused by the High Court - 16 November 2007

New South Wales Court of Appeal

CITATION: TRUSTEES OF THE ROMAN CATHOLIC CHURCH v ELLIS & ANOR [2007] NSWCA 117 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11; 12; 13 December 2006

JUDGMENT DATE: 24 May 2007

JUDGMENT OF: Mason P at 1; Ipp JA at 200; McColl JA at 201

DECISION: Appeal upheld with costs. Cross-appeal dismissed with costs.

CATCHWORDS: ASSOCIATIONS AND CLUBS – Rights, liabilities and duties of members – liabilities – generally – unincorporated association – church – tort liability – vicarious liability – where fluctuating membership – where intentional tort committed by a member since deceased – whether current and/or past members liable – whether trustees of association liable – whether archbishop liable - ASSOCIATIONS AND CLUBS – Procedure in actions by and against – who may be sued - CHURCHES AND RELIGIOUS ASSOCIATIONS – General matters – churches – generally – relationship of church and communicant – relationship between members – relationship of trustees to church – relationship of archbishop to church - CORPORATIONS – Types of corporations – corporation sole – whether Roman Catholic Archbishop of Sydney is a corporation sole for purposes of tort liability – where predecessor may have committed a tort - ESTOPPEL – Estoppel by deed – in general – whether draft settlement deed contained representation as to proper defendants in matter – whether defendants estopped from denying that they are not the proper defendants - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – "same interest" – "same liability" – what constitutes – whether requirement that defences need to be the same – order sought against unincorporated association with fluctuating membership – church – Uniform Civil Procedure Rules 2005, r 7.4 - PROCEDURE – Supreme Court procedure – New South Wales – procedure under rules of court – parties – representative orders – unincorporated association – whether a judgment is against the members individually or funds of an association – Uniform Civil Procedure Rules 2005, r 7.5 - STATUTES – Acts of parliament – statutory powers and duties – liability – negligence – particular cases – interpretation – purpose or object underlying Act – whether trustees of church for the purposes of property matters can be subject to all legal claims involving the church – Interpretation Act 1987, s 33