Injunctive relief & theological quarrels

Gallagher v McClintock & Ors [2013] QSC 292

CATCHWORDS: EQUITY – EQUITABLE   REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the applicant was   a member of a church – where the applicant distributed unauthorized material   during church service – where the Church Board refused the applicant entry to   the church – where the applicant seeks to re-enter – whether there is a   serious question to be tried – whether the applicant is likely to suffer   injury for which damages will not be an adequate remedy – whether the   applicant has shown that the balance of convenience favour the granting of an   injunction

McMeekin J:

The Principles Applicable

[16] In Australian Broadcasting Corporation v O’Neill[3] the Justices of the High Court explained the principles governing the grant or refusal of an interlocutory injunction. For present purposes the following passage from the judgment of Gleeson CJ and Crennan J will suffice:

“a Court will ask whether the plaintiff has shown there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case”[4]

Discussion

[17] I cannot see that Mr Gallagher can demonstrate that there is a serious question to be tried.

[18] At the heart of the matter is his right to go onto the respondents’ land. His assertion of a right to free speech, a “right” incidentally that is not an unlimited one, does not go to the crucial point.

[19] On the assumption that I have referred to, the respondents are entitled to the present possession of the land on which the Church is situated and from which Mr Gallagher has been excluded. Such entitlement typically includes “the right to use or enjoy, the right to exclude others and the right to alienate.”[5]

[20] That being so it was at the respondents’ discretion to allow or refuse any person licence to enter their property. It is not necessary that they first demonstrate that their exercise of their rights was a reasonable one.

[21] Conversely Mr Gallagher had no “right” as such to be on the land. He had the permission of the respondents to be there, as presumably do all those in the congregation. His permission was revoked by the letter of 2 September 2013.

[22] I interpose here that the rights inter se between the applicant and the respondent are not at all clear to me. Usually there would be a constitution detailing the powers of the respondents and perhaps the rights of members of the congregation. I have no information on the matter. To the extent that the dispute involves the doctrinal teachings of the Church then the Court would be very reluctant to become involved: General Assembly of Free Church of Scotland v Overtoun [1904] AC 515 at 641-642 per Lord Macnaghten. Interference with the applicant’s proprietary rights is the proper concern of the Court: Forbes v Eden (1867) LR 1 Sc & Div 568.

[23] The highest that I suspect that it could be put is that the applicant had some form of right of user of the Church property. He certainly demonstrated no more. Generally speaking it has been consistently held that such a right is not sufficient to found a proprietary interest sufficient to attract the Court’s jurisdiction to intervene: Baird v Wells (1890) 44 Ch D 661; Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358. The Queensland case of Frackleton v Macqueen [1909] St R Qd 89 and on appeal [1977] FCA 3; (1909) 8 CLR 673 is in a different category – there the dispute was between the dismissed minister and his Church, the minister having a right to possession of his church and hence a special proprietary interest.

[24] The defence of some right, usually of a proprietary nature, or at least of an equity,[6] is at the heart of any injunction. The discussion in the judgments in Australian Broadcasting Corp v Lenah Game Meats Pty Ltd[7] makes so much clear. There is no free standing right to an interlocutory injunction.

[25] It may be that Mr Gallagher could assert some implied term of a contract between he and the respondents along the lines that the respondents would not purport to exclude him from the Church otherwise than for sufficient reason, bona fide, and in accordance with the principles of natural justice. There is authority for the proposition that breach of such a term might provide some sufficient basis for injunctive relief: see the discussion of the authorities in Equity Doctrine and Remedies (4th ed.) by Meagher, Heydon and Leeming at pp 770-771 para [21-305]. Here the evidential basis for any such contract or a possible breach of it is lacking. In any case the balance of convenience issues, discussed below, militate against the exercise of any discretion.

[26] As to the second and third of the remedies sought I can find no basis in law for them.

[27] I should observe that the respondents’ actions do not, as Mr Gallagher asserts, interfere with any right of his to speak freely. Subject to the laws of defamation and confidentiality Mr Gallagher is perfectly entitled to express his views. All that the respondents insist on is that he not exercise his “rights” on their property.

[28] The claim that the Court afford Mr Gallagher “every assistance and protection of which he may stand in need” suffers from a considerable lack of precision. It is axiomatic that any order of the Court be sufficiently precise so that those the subject of the order know precisely what is expected of them: The Commissioner of Water Resources v. Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch [1988] 2 Qd R 385, 390. The proposed relief fails this test.

[29] The claim that the “edict of suppression” of the applicant’s “spoken and written word” be disallowed and quashed is, I think, a claim for declaratory relief presumably accompanied by an injunction that Mr Gallagher be permitted to distribute his pamphlets. This claim too suffers from the absence of any discernible proprietary interest sufficient to found an injunction.

[30] There is the further difficulty that I can see no evidential basis for the premise, that is, there is no “edict of suppression”. And while I no doubt have a wide power to grant declaratory relief[8] I decline to do so where I suspect that the effect would be to enter into a debate concerning religious beliefs or appear to interfere with the respondent’s property rights.

[31] It is worth observing that the legislative provisions relied on by Mr Gallagher for his “right of free speech” do not assist him.

[32] There is no section within the Australian Constitution[9] which entitles a person to freedom of speech, nor is it enforced by the Bill of Rights of 1688. The specific section referred to by the applicant applies to the proceedings of parliament. It is commonly known as ‘parliamentary privilege’. It is a protection afforded to politicians to allow for open debate. The protection has now been codified in the Parliamentary Privileges Act 1987 and does not extend to the general public.

[33] That is not to say that there is no freedom of speech in our community or that the Constitution does not have a part to play in the preservation, at least, of freedom of political communication.[10] What Mr Gallagher asserts is a right to enter someone else’s property and distribute pamphlets there. Freedom of speech has nothing to do with it.

[34] In my view Mr Gallagher cannot point to any right of his that is infringed by the respondents. Hence I cannot see that there is any serious question to be tried.

[35] That finding is sufficient to dispose of the application. Absent some colourable right there can be no basis for an injunction: Lenah Game Meats at [11] per Gleeson CJ; [60] per Gaudron J; [90]-[91] per Gummow and Hayne JJ.

[36] In case I am wrong on that point I will make some brief comments on the remaining issues.

[37] Given the absence of any enforceable right it is not really sensible to speak of damages. None could ever be awarded and indeed none is sought.

[38] The balance of convenience does not favour the imposition of an injunction. While it is evident that Mr Gallagher wishes to worship at the respondent’s Church it is not evident why. He disagrees with the approach of the Pastor. He is at odds with the members of the Board. It is a reasonable inference to draw that those members have been chosen as representatives of the congregation. Mr Gallagher’s actions, no matter how well motivated, are disrupting and disturbing the manner of worship of the other members of the congregation. It is evident that Mr Gallagher has every intention of continuing his outspoken approach.

[39] Mr Gallagher has not pointed to any harm that he would suffer in the interim if he was obliged to worship at some other Church. Given that he does not accept the preaching of Pastor McClintock at the Yeppoon Wesleyan Methodist Church he might well find the approach of the several other Christian churches in the area more congenial.

[40] The apparent reason for Mr Gallagher’s refusal to attend another church is that he suspects that other Christian churches are taking the same approach and it is God’s will for him to take a stand. Mr Gallagher may be right but I would think it at least reasonable to visit other congregations to determine if the practice they adopt is more compatible with his beliefs.

[41] For present purposes Mr Gallagher has failed to show that the balance of convenience favours the grant of an injunction in the terms that he seeks.

Brisbane Barrister – David Cormack

 

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