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Gallagher v McClintock

 

[2013] QSC 292

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

25 October 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

30 September 2013

JUDGE:

McMeekin J

ORDER:

1.The application for interlocutory relief is refused.

2.Direct that the applicant file and serve such affidavit material and submissions as he might be advised demonstrating some need for the continuation of the proceedings on or before 4pm on 1 November 2013 and further direct that upon him doing so the application be adjourned to a date to be fixed to be brought on on the giving of three days notice.

3.In default of the applicant filing any further material on or before 4pm on 1 November 2013 the application be dismissed.

4.The applicant pay the respondents’ costs of this application on the standard basis.

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.

Commonwealth of Australia Constitution Act (The Constitution)

Bill of Rights of 1688

Civil Proceedings Act 2011 (Qld)

Parliamentary Privileges Act 1987

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63 cited

Australian Broadcasting Corporation v ONeill (2006) 227 CLR 57 followed

Baird v Wells (1890) 44 Ch D 661 cited

Cameron v Hogan (1934) 51 CLR 358 cited

The Commissioner of Water Resources v. Federated Engine Drivers and Firemens Association of Australasia Queensland Branch [1988] 2 Qd R 385 cited

Forbes v Eden (1867) LR 1 Sc & Div 568 cited

Forster v Jododex Aust   Pty Ltd (1972) 127 CLR 421 cited

Frackleton v Macqueen (1909) 8 CLR 673 cited

Frackleton v Macqueen [1909] St R Qd 89 cited

General Assembly of Free Church of Scotland v Overtoun [1904] AC 515 cited

Hanson v Radcliffe UDC [1922] 2 Ch 490 cited

Lange v Australian Broadcasting Corp (1997) 189 CLR 520 cited

Milirrpum v Nabalco Pty Ltd 17 FLR 272 cited

Rigby v Connol (1880) 14 Ch D 482 cited

COUNSEL:

Applicant appeared on her own behalf

T Ryan for the Respondent

SOLICITORS:

Applicant appeared on her own behalf

Carroll Fairon Solicitors for the respondent

 

[1] McMeekin J: Mr Ronald Gallagher is the applicant. He seems a sincere man of senior years. For some six years he has been a member of the congregation of the Yeppoon Wesleyan Methodist Church. A dispute has arisen between him on the one hand and the pastor and members of the Board of that Church (“the respondents”) on the other. This has led to the institution of the present proceedings by the applicant and, so far as currently relevant, his application for an interlocutory injunction against the respondents.

[2] I note that the relief sought is in fact in the form of final relief but I have treated the application as an interlocutory one, that is, one to preserve the status quo until trial, given the shortness of notice to the respondents.

[3] The applicant seeks orders requiring:

(i) That the applicant be allowed “to pass freely without let or hindrance into the Sanctuary of the Yeppoon Wesleyan Methodist Church”;

(ii) That the Board’s “edict of suppression” of the applicant’s “spoken and written word” be disallowed and quashed;

(iii) That the applicant be afforded “every assistance and protection of which he may stand in need”.

[4] I interpret these claims as effectively claims for injunctive relief, accompanied perhaps by a claim for declaratory relief as well.

 

Background Facts

[5] Unfortunately over recent times the applicant has become increasingly upset at the theology proffered by his church. He felt that the pastor, Pastor McClintock, was unqualified for his position and was implementing an entirely new concept of Christianity, a Christianity obtained from the United States of America involving an approach of brainwashing those exposed to it. The applicant claims that the intentions of the respondents to implement this form of Christianity were kept from the congregation and he was determined to correct that omission.

[6] To that end on several occasions, the applicant created and distributed material to other members of the congregation voicing his concerns about the direction of the church. The respondents have repeatedly requested that the applicant cease such conduct.

[7] The dispute came to the fore on 1 September 2013. Again the applicant was determined to warn the congregation of the true intentions of the respondents and the conspiracy, as he conceived it, related to the new concept of Christianity. He created “warning pamphlets”[1] and during the Sunday service, placed them in the pigeon-holes of some of the members of the congregation in the church annex.

[8] One of the respondents followed Mr Gallagher into the church annex and removed the pamphlets from the pigeon-holes. Mr Gallagher was asked to leave the premises, but he refused. The respondents then called the police and Mr Gallagher quietly left the premises.

[9] The following day the respondents sent a letter to Mr Gallagher. The letter stated that the Board was “unable to allow [Mr Gallagher] to enter onto the property…without the permission of the Senior Pastor and the Church Board”.

[10] Mr Gallagher has since complied with the wishes of the respondents. He however feels the respondents’ actions to be unjust and illegal and seeks the redress that I have mentioned.

[11] The application proceeded without the benefit of any evidence from the respondents, although counsel was briefed and did appear, albeit on short notice. I would normally have expected to have been provided with information relating to the respondents’ relationship to the land in question, to members of the congregation of this Church and to their right to exclude those members from that land.

[12] Despite that lacuna in the evidence Mr Gallagher seemed content to proceed on the basis that the respondents had the control over the land in question and subject to the rights that he asserted were entitled to exclude persons from the land. I will assume that to be so.

The Arguments

[13] The applicant argues that his dismissal from the church should not have occurred. He maintains that at all times his behaviour was impeccable and that the refusal of entry is against his right to freedom of speech. His application refers to:

“…a blatant disregard of the God-given privilege of FREEDOM OF SPEECH – Reference: Bill of Rights (1688), Section 9, incorporated into The Federal Council of Australia Act (1885) and later, in Section 7, The Constitution of the Commonwealth of Australia, 9 July 1900 and again in the State of Queensland Act No 70 of 1984.”[2]

[14] In opposing the application, counsel argued that the application was misconceived, vexatious and frivolous. It was asserted, and I paraphrase somewhat, that Mr Gallagher became a trespasser upon the revocation of his licence to be on the premises.

[15] Neither side addressed the principles that apply when an interlocutory injunction is sought.

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) 51 CLR 358. The Queensland case of Frackleton v Macqueen [1909] St R Qd 89 and on appeal (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.

Conclusion

[42] The application for interlocutory relief is refused. The applicant is ordered to pay the respondents’ costs.

[43] I can see no present purpose in the continuation of the proceedings. As I have said I have treated the application as relating to interlocutory relief only but my view that there is no basis for the claimed relief means that Mr Gallagher cannot succeed on trial.

[44] However given the absence of any material before me touching on the rights of the parties inter se I will allow Mr Gallagher seven days in which to file and serve such affidavit material and submissions as he might be advised demonstrating some need for the continuation of the proceedings failing which I order that the application be dismissed. If further material is filed the proceedings will stand adjourned, to be brought on on the giving of three days notice to the other side. In that case, presumably, directions will be required. 

Footnotes

[1] A copy is attached to the affidavit of the applicant. It consists of seven A4 sized pages and makes several unfavourable comments concerning the religious ideologies alleged to have been adopted by the respondents. Reference is made to the 9/11 terrorist attacks, President Vladmir Putin as an exemplar of a Christian leader, and the evils of ‘mega churches’ in America. I do not pretend to have followed the intricacies of the arguments presented, but feel that did not disqualify me from following the legal debate.

[2] Capitals as in the original

[3] (2006) 227 CLR 57

[4] At [19]

[5] Milirrpum v Nabalco Pty Ltd 17 FLR 272 per Blackburn J

[6] In relation to unincorporated associations see Rigby v Connol (1880) 14 Ch D 482 at 487

[7] [2001] HCA 63

[8] Section 10 Civil Proceedings Act 2011 (Qld); Hanson v Radcliffe UDC [1922] 2 Ch 490 at 507 per Lord Sterndale MR; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421

[9] Commonwealth of Australia Constitution Act (The Constitution)

[10] Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 560

Close

Editorial Notes

  • Published Case Name:

    Gallagher v McClintock & Ors

  • Shortened Case Name:

    Gallagher v McClintock

  • MNC:

    [2013] QSC 292

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    25 Oct 2013

Litigation History

Event Citation or File Date Notes
Primary Judgment [2013] QSC 292 25 Oct 2013 -
Appeal Determined (QCA) [2014] QCA 224 05 Sep 2014 -

Appeal Status

{solid} Appeal Determined (QCA)