Society ‘busybodies with no standing’—counsel

Press, 24 September 1983, Page 4

Society ‘busybodies with no standing’—counsel

Friends of Bishopscourt was a society of busybodies which had no standing when it sought to challenge the action of the Church Property Trustees in selling the Anglican Bishop’s residence, Bishopscourt, Mr Justice Holland was told in the High Court yesterday. His Honour reserved his decision on a motion by Church Property Trustees to strike out an application by Friends of Bishopscourt to seek a declaration as to whether the trustees had acted within the terms of trust in selling the Park Terrace property to a developer to be turned into a village for the elderly. Mr D. H. P. Dawson appeared for the Church Property Trustees and Messrs W. M. Wilson, of Wellington, and E. H. Parsons for the Friends of Bishopscourt. Opening his case, Mr Dawson handed his Honour the “Brown Book” written in 1930 which contained the church statutes which he said had been subjected to two minor amendments. The matters at issue concerned the administration of a trust known as the Bishopric Estate and it was alleged in the statement of claim that there had been breaches or might have been breaches by that trust, Mr Dawson said.

If there had been breaches of the trust, which was denied, there were remedies which could be taken by appropriate persons under the Trustees Act.

The Bishopric Estate was a private trust established in 1879 by a private act of Parliament. The Friends of Bishopscourt was not one of those entitled to bring the action it had under the

Trustees Act as it had no locus standi, or status, nor was it open to it to bring proceedings under another act to obtain authority. Where there was an appropriate remedy it was an abuse of the process of the Court to circumvent that remedy, particularly if the remedies sought were unnecessary and were of no practical value either to the trustees or the beneficiaries. “This writ is in the nature of a fishing expedition by persons who make no specific allegation of breach that would affect them or their society,” Mr Dawson said. There was no suggestion that the actions of the Church Property Trustees were pursuant to any public duty and the mere fact that it was created as a body by statute did not make their function a public one. The Friends of Bishopscourt had as its object the retention of Bishopscourt as a home for the Bishop. It talked about Bishopscourt as the official residence for the Bishop of Christchurch, and what he could use it for.

The aims of the Friends of Bishopscourt were impossible because the property had been sold and possession given to the purchaser, who had carried out alterations. Therefore the objects of the society had been extinguished. The relief sought by Friends of Bishopscourt would serve no practical purpose; any advantage to be gained would be trivial and the Court could not enforce the remedy.

The Court was not there to make directions on matters which had no practical purpose. The society had no financial interest in the estate, nor any other benefit or possible benefit, nor any

responsibility. Friends of Bishopscourt had shown no right or duty before the Court, which should not intervene by way of a declarity judgment.

The action was irresponsible, frivolous or vexatious and the society was acting as a mere busybody, Mr Dawson said.

Dealing with the nature of the orders sought by Friends of Bishopscourt, Mr Dawson said that an order that the Church Property Trustees were not required to sell property had no practical value at this stage and was not a matter for the Court to exercise its jurisdiction. Part of the application should be struck out, he said. The affidavit by Mrs Helen Garrett did not express facts but merely stated what the society believed.

What Friends of Bishopscourt intended to do, if given the chance, was to hunt through the private affairs of the church, and sought the Court’s assistance in doing so. That was an abuse of the process of the Court. It was an intrusion into the private affairs of the church. Even if there were breaches of trust, which was denied, there were remedies within the rules of the church’s internal manager ment.

“It would be wrong to allow this case to continue as there are other forums in which it can be dealt with, and the time to stop it is now,” Mr Dawson said. Dealing with the application for costs by Friends of Bishopscourt, Mr Dawson said that not only does the society want to fossick through the private affairs of the trust to see what

could be found that might be embarrassing or give them some local political mileage, but they wanted to be paid by the church for doing so. For the Friends of Bishopscourt, Mr Wilson submitted that the Court was not being asked to examine the internal legislation of the church but to examine the question of the purported action of the church trustees in selling Bishopscourt, which was held on trust. It was artificial for Mr Dawson to submit that the Friends of Bishopscourt sought to interfere in the private affairs of the church. The members of the society were members of the church.

It was not a private trust but a statutory trust created by a private act of Parliament.

The proceedings arose from the contract to sell Bishopscourt, the traditional home of the Bishop of Christchurch, to a developer. The proposal caused widespread debate throughout Christchurch and Canterbury and one would have thought that the trustees would have welcomed the chance to have their actions scrutinised by the Court. Mr Wilson submitted that the question of the standing of the Friends of Bishopscourt could not be determined as a preliminary matter and he submitted that the society did have sufficient standing to bring the action.

All recent authorities favoured a liberal approach to the question of standing or authority to bring an action such as in this case, said Mr Wilson, who submitted lengthy legal argument.