SC1330

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 186 OF 2010

BETWEEN:

MANIOSA YAKASA, EZEKIEL DAVID PETER, JOHN NATHAN, PESATO EPE, KETAE ENOMBA, YAPATA PUIA, SEKE NETE, MATAI KUNGU, PHILIP PIAKE, ELIZAH WAIPU, RASAK POLYO and TIMOTHY YANO
First Appellants

AND

NICK AIYENE
Second Appellant

AND

DAVID PISO

First Respondent

AND

GUTNIUS LUTHERAN CHURCH OF PNG INC
Second Respondent

Waigani: Lenalia, Murray and Logan JJ
2014: 26th February

APPEAL – Practice & Procedure – Appeal from National Court – Where judgment under appeal made orders not originally sought in pleadings – whether breach of natural justice – whether any breach of constitutional provisions relating to Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49) – appeal dismissed, save for that of three of the appellants found to have been denied natural justice.

Cases Cited: 
Papua New Guinea Cases

CL Toulik Business Consultant Ltd v Kuek [2006] PGSC 32; SC876
Koki v Inguba [2009] PGNC 161; N3785
Okuk and State v Fallscheer [1980] PGSC 13; [1980] PNGLR 274
Premdas v The State [1979] PNGLR 329
Skate v Tau [2001] PGNC 81; N2126
Ume More & Ors v University of PNG [1985] PNGLR 401; [1985] PGSC 401

Overseas cases:

Al Rawi v Security Service [2012] 1 AC 531
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279
Blay v Pollard and Morris [1930] 1 KB 628
Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379
General Assembly of the Free Church of Scotland v Lord Overtoun: 
Kanda v Government of Malaya [1962] AC 322
London Passenger Board v Moscrop [1942] 1 All ER 97
Macalister v Young [1904] AC 515
Papua New Guinea Banking Corporation v Tole [2002] PGSC 8; SC694
Peters v Kerle [1997] QSC 68

Counsel: 

Mr Ame, for the Appellants
Mr RJ Mann-Rai, for the Respondents

26th February, 2014

1. BY THE COURT: INTRODUCTION: At the heart of this appeal lies a controversy as to whether, lawfully, the first respondent, Mr David Piso, is the Head Bishop of the Gutnius Lutheran Church in Papua New Guinea (GLC) or whether, lawfully, he has been ex-communicated by the congregation and replaced by the second appellant, Mr Nick Aiyene, as Head Bishop. In the National Court, by an order made on 6 December 2010, it was declared that Mr Piso was lawfully elected as Head Bishop, had not been lawfully excommunicated and that, accordingly, Mr Aiyene was not Head Bishop.

2. Also said by the appellants to arise are a number of questions under The Constitution, which entail alleged breaches of constitutionally guaranteed rights and freedoms - Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49). Having regard to the course of submissions on the appeal it will also be necessary to make observations with respect to a question as to whether, in the disposition of the case before the National Court on 6 December 2010, the appellants were afforded what is termed natural justice or, as that obligation is alternatively described, procedural fairness. 

3. The respondents’ position is that the National Court correctly concluded that Mr Piso was elected Head Bishop un-opposed by secret ballot during a bi-annual Synod of the GLC held at Wapendmanda from 26 June to 2 July 2010. The appellants argue that Mr Aiyene was elected Head Bishop during a separate Synod held on concurrent dates at Irelya and that this meting must be regarded as the ‘true’ Synod. 

4. The GLC has more than 500 congregations and about 150,000 members. It forms part of a wider Lutheran community of some 40,000 churches and 80 million adherents internationally. In that wider sense, the origins of the GLC may be traced to the Reformation. In a more immediate sense and so far as Papua New Guinea is concerned, the origins of the GLC may be traced back to 1948. Within the GLC, there are now to be found over 230 ordained pastors, 500 evangelists, 36 community and primary schools, 3 high schools, one large secondary school, one international school, 68 elementary schools, 2 bible schools, two seminaries, the Kristen Press, the Lutheran School of Nursing, the Balob Teacher’s College, Martin Luther Seminary, the Lutheran University of PNG and health centres, aid posts and hospitals. At the apex of the GLC within Papua New Guinea is the Head Bishop. As can be seen, the position is one carrying significant pastoral and administrative leadership responsibilities. 

5. Disputes within the Lutheran branch of the Christian faith are not unique to Papua New Guinea: see Peters v Kerle [1997] QSC 68, a case which also arose against the background of a controversy concerning an expulsion from a Lutheran church, on that occasion in a congregation in Marburg, Queensland. Nor are such disputes confined to the Lutheran branch of the Christian faith: see, for example, General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515 (the Free Church case), which was decided against the background of a controversy in Scotland in the Presbyterian branch of the Christian faith. Nor even, notoriously, are such disputes confined to modern times, as is attested to by the division of the early Christian church following the Council of Chalcedon (451 AD) into Chalcedonian and non-Chalcedonian (or Oriental Orthodoxy) churches, the later East-West Schism in Chalcedonian Christianity, beginning in 1053 AD, into the Eastern Orthodox Church and the Roman Catholic Church and the split within the Roman Catholic Church at the time of the Reformation in 1517 from which sprang Protestantism in general and the Lutheran Church in particular.

6. This recollection of these past events serves to put in context the deeply felt and genuine differences which divide the parties to this appeal. Our task, however, is not the resolution of ecclesiastical differences and theological disputes but the secular one of determining whether, having regard to the grounds stated in the notice of appeal, the orders made by the National Court on 6 December 2010 should be set aside. 

7. That there exists a jurisdiction to grant declaratory relief in respect of disputes involving churches is not in doubt. Justice Peter Young, writing extra-judicially, has stated:

Although there have been few reported cases involving church disputes, there is no doubt that, in a country without ecclesiastical courts, disputes may be determined by declaration: see A-G v Dean and Chapter of Ripon Cathedral [1945] Ch 239; [1945] 1 All ER 479 as interpreted in A-G (NSW) v Wylde (1948) 48 SR (NSW) 366 at 387; on appeal (1948) 78 CLR 224 at 271. 

So in Baker v Gough (1962) 80 WN (NSW) 1263; [1963] NSWR 1345, a clergyman obtained a declaration that his dismissal as a school chaplain was invalid: a clergyman failed in a similar case in Gladstone v Armstrong [1908] VLR 454. See also Gent v Robin [1958] SASR 328, where the court considered in a declaratory action the power to revoke the license of a priest in charge of an ecclesiastical district in the Church of England in Australia and Ukranian Greek Orthodox Church v Trustees of Ukranian Greek Orthodox Cathedral [1939] 2 DLR 494, where a declaration was sought that a priest had not been validly excommunicated. 

A case as to the right of whether the persons having right of presentation are entitled to have the priest of their selection instituted as rector of a parish was tried by a declaration, though the case was unsuccessful on the merits in Heywood v Bishop of Manchester (1884) 12 QBD 404; see also Gore-booth v Bishop of Manchester [1920] 2 KB 412, a similar case.

In Stuart v Haughley PCC [1936] Ch 32, a plaintiff obtained a declaration that his name should be restored to the Parish Roll. 

In Blades v Jaggard (1961) 4 WIR 207, a declaration was made as to the extent of faculty jurisdiction in Barbados.  

8. In Papua New Guinea, the National Court, as a superior court of general jurisdiction, possessed the necessary jurisdiction, given the extant controversy, to grant the declarations found in the orders made on 6 December 2010.

BACKGROUND TO THE APPEAL

9. The GLC filed an originating summons (No 614 of 2009) in the National Court on 20 October 2009 in which it pleaded and claimed the following: 

The Plaintiff claims that:

1. The Plaintiff is Christian Church incorporated under the Association Incorporation Act.

2. The Defendants are former employees/pastors of the Plaintiff Church.

3. The Plaintiff claims a permanent injunctive order restraining the Plaintiffs, their servants, agents, associates or representatives including members of the Reformation Services from holding themselves out as employees or pastors of the Plaintiffs.

4. The Plaintiff claims a permanent injunctive order restraining the Plaintiffs, their servants, agents, associates or representatives including members of the Reformation Services from corresponding with any government organization including the Enga Provincial Government, the State, the Education and Health Departments, or from corresponding with the Churches Medical Council, the PNG Council of Churches, the Lutheran World Federation, the PNG Missions Society, and the Missouri Sinod.

5. A permanent injunctive order restraining the Plaintiffs, their servants, agents, associates or representatives including members of the Reformation Services from visiting or corresponding with any department or institutions of the Plaintiff including, community schools, high schools, secondary schools, aid-posts, health centres or hospitals, or visiting such institutions.

6. An Order for damages, interests and costs of this proceeding.

10. At that stage, the only persons named as defendants were Messrs Yakasa, Peter, Nathan and Epe (as first to fourth defendants respectively - “the original defendants”). No subsequent, formal amendments either to parties to the relief claimed were ever engrossed on the originating summons. 

11. Following an ex parte hearing on 20 October 2009 in the National Court at Mount Hagen, Yalo AJ made orders which materially included these: 

2. Until further order, the defendants, their servants, agents, associates, representatives or member of the Reformation Service are restrained from holding any meeting, gathering in any Church ground owned and operated by the plaintiff.

3. Until further order, the defendants, their servants, agents, associates, representatives or members of the Reformation Service are restrained from holding themselves as Pastors, Evangelist and employees of the plaintiff.

4. Until further order, the defendants, their servants, agents, associates, representatives or members of the Reformation Service are restrained from holding themselves as Pastors, Evangelist and employees of the plaintiff.

5. Until further order, the defendants, their servants, agents, associates, representatives or members of the Reformation Service are restrained from corresponding with, communicating, liaising with the Enga Provincial Government, National Health and Education Departments, the State or any other person for any matters relating to or for and on behalf of the Plaintiff.

6. Until further order, the defendants, their servants, agents, associates, representatives or members of the Reformation Service are restrained from attending, communicating liaising or visiting any hospital, health centre, aid-posts or schools owned and operated by the plaintiff, or jointly owned and operated by the plaintiff with the Evangelical Lutheran Church of PNG.

7. Until further order, the defendants, their servants, agents, associates, representatives or members of the Reformation Service are restrained from writing letters, corresponding with includes telephone, facsimile, e-mail with the Churches Medical Council, PNG Council of Churches, Lutheran World Federation, the Missouri Sinod (sic), and the PNG Mission Society for any matters pertaining to the plaintiff. 

12. On 18 November 2009, the original defendants filed a motion seeking the cessation of those orders. On 29 March 2010, the GLC filed a motion seeking to have Mr Ezekiel David Peter, one of those original defendants (who, with others, are now the first appellants), dealt with for contempt of court. 
 
13. On 13 April 2010, Ellis J extended the interim orders as originally made by Yalo AJ. 

14. An application by the GLC to have the interim orders of Yalo AJ made permanent was heard by Ellis J in the National Court at Goroka on 12 October 2010. On that day and for reasons published on 15 November 2010, his Honour made the following directions in respect of that application:

1. The Plaintiff’s list of objections to the Defendants’ affidavits and any written submissions are to be faxed to the National Court in Wabag and to the Defendants’ lawyer by 4pm on Tuesday 2 November 2010. 

2. The Defendants’ list of objections to the Plaintiff’s affidavits and any written submissions (including any written submissions in reply to the Plaintiff’s written submission) are to be faxed to the National Court in Wabag and to the Plaintiff’s lawyer by 4pm on Tuesday 9 November 2010. 

3. The Plaintiff’s written submissions in reply to the Defendants’ written submissions are to be faxed to the National Court in Wabag and to the Defendants’ lawyer by 4pm on Tuesday 16 November 2010. 

4. In relation to any other issues between the parties, the Court dispenses with the National Court Rules pursuant to Order 1 rule 7 in order that all issues between the parties may be raised in these proceedings and resolved quickly and cheaply. 

5. In relation to any remaining issues between the parties, any party who wishes to raise any further issue is to file and serve, by 4pm on 2 November 2010:

a) A Statement of those issues;

b) Any affidavits relied upon in relation to those issues; and

c) Written submissions in relation to those issues. 

6. In relation to any issues so raised, the other parties are to file and serve, by 4pm on 16 November 2010:

a) A response to those issues;

b) Any affidavits relied upon in relation to those issues; and

c) Written submissions in relation to those issues

7. Time shall be abridged so that these orders may be entered forthwith. 
[Emphasis added]

His Honour adjourned the proceedings until 6 December 2010.

15. The original defendants subsequently filed a statement of facts, purportedly as provided for in those orders. 

16. When the matter returned before Ellis J on 6 December 2010, his Honour held that the statement filed by the second appellant was not within the terms of the directions made on 12 October 2010. His Honour then went on to make the following orders: 

1 Declare that the purported excommunication of David Piso on 12 March 2010 at Birip was not valid.

2 Declare that, as a result Nick Aieyene did not become Acting Head Bishop of the Gutnius Lutheran Church of PNG Inc.

3 Declare that, as a result, the Synod conducted at Irelya from 28 June 2010 to 2 July 2010 was not validly convened.

4 Declare that, as a result, the resolutions passed at that Synod were not valid resolutions of the Gutnius Lutheran Church of PNG Inc.

5 Declare that David Piso is still the Head Bishop of the Gutnius Lutheran Church of PNG Inc.

6 Maniosa Yakasa, Ezekiel David Peter, John Nathan, Pesato Epe, Ketae Enomba, Yapata Puia, Seke Nete, Matai Kungu, Philipo Paiakae, Elaijah Waipu, Rasak Polyo, Timothy Yamo and Nick Aieyene are hereby restrained from:

(a) holding or attending any meeting or gathering of the Gutnius Lutheran Church of PNG Inc which is not authorised or approved by either Bishop David Piso or the Church Council of that church;

(b) holding themselves out or representing themselves as being pastors, evangelists or employees of the Gutnius Lutheran Church of PNG Inc;

(c) communicating with any government body on any matters relating to the Gutnius Lutheran Church of PNG Inc;

(d) attending, liaising, communicating or visiting any hospital, health centre, aid post or school that is either owned or operated by the Gutnius Lutheran Church of PNG Inc; and

(e) communicating with either the Churches Medical Council, PNG Council of Churches, Lutheran World Federation, the Missouri Synod or the PNG Mission Society in relation to any matter relating to the Gutnius Lutheran Church of PNG Inc.

7 Nick Aieyene is hereby further restrained from representing that he is the Head Bishop of the Gutnius Lutheran Church of PNG Inc.

8 Orders 6 and 7 shall not operate to prevent the presentation of a document setting out a complain for consideration of either the Church Council of the Gutnius Lutheran Church of PNG Inc or a validly convened Synod of that Church.

9 Grant leave to the Plaintiff to commence proceedings for contempt against any of the persons name in order 6 above in relation to either:

(a) any conduct prior to today which is alleged to amount to a breach of the orders of this Court made on 22 October 2009, 13 April 2010 or orders 1 to 5 made on 15 November 2010.

(b) any conduct on or after today which is alleged to amount to a breach of these orders.

10 The Defendants are to pay the Plaintiff’s costs of these proceedings.

11 Time is abridged so that these orders may be entered forthwith.
[sic]

It is these orders which are the subject of the present appeal. It will be necessary later in these reasons for judgement to set out the circumstances attending the making of these orders. 

GROUNDS OF APPEAL 

17. The grounds of appeal, which are prolix, are as follows: 

1.	His Honour erred in law and in fact in making declaratory orders not sought in the Originating Summons no. 614 of 2009.

2.	His Honour erred in law and in fact in declaring that David Piso is still the Head Bishop of the Gutnius Lutheran Church of Papua New Guinea Inc although David Piso was not a party to the proceedings in OS. No. 614 of 2009, nor that Order was specifically sought by David Piso or the Second Respondent in the Originating Summons No. 614 of 2009. 

3.	His Honour erred in law and fact in declaring that the Second Appellant Nick Aiyene, was not elected Acting Bishop of the Gutnius Lutheran Church of Papua New Guinea Inc on the 12th March 2010. 

4.	His Honour erred in law and fact in declaring that the Synod conducted at Irelya from 28th June 2010 to 2nd July 2010 was not validly constituted, indicating that Bishop Nick Aiyene was not validly elected Bishop of the Respondent Church. 

5.	His Honour erred in law and fact in allowing the Second Respondent Gutnius Lutheran Church of Papua New Guinea Inc, be used as a “Plaintiff” by the First Respondent for his personal purpose, therefore without determining its capacity to sue and be sued in situations where there is a dispute over the election of Bishop of the Second Respondent Church.

6.	His Honour erred in law and fact in making Orders against the Second Appellants and First Appellants other than Maniosa Yakasa, Ezekiel David Peter, John Nathan and Pesato Epe who were parties named in these proceedings. 

7.	His Honour erred in law and fact made Orders against [sic] the Appellants Constitutional right to freedom of employment as Church workers as provided for in section 48 of the Constitution. 

8.	His Honour erred in law and fact in that he permanently restrained the Appellants from their right to communication which is a clear breach of section 49 of the Constitution of the Independent State of Papua New Guinea. 

9.	His Honour erred in law and fact in that he did not determine the issue of whether he had jurisdiction to interpret the Gospel of the Lord Jesus Christ and in particular the meaning of the text in Gospel of Saint Matthew 18: 15-18. 

10.	His Honour erred in law and or fact that His Honour did not consider the rights to Religious freedom of the Appellants thus made Order restraining them from doing work according to their faith thus breached section 45 of the Constitution of the Papua New Guinea. 
[sic] 

18. Grounds of appeal such as grounds 2 to 4 (inclusive) which, in one way or another, do nothing more than make a general allegation of error in law or fact on the part of the court below and which do not detail the alleged error are not meaningful grounds of appeal. Appreciating this, counsel for the appellant conceded that, having regard to the ten grounds of appeal, there were three broad, “inter-related” legal issues falling for determination: 

a.	whether there was a miscarriage of justice by virtue of the granting of relief to a party and against parties not originally named in the proceeding;

b.	whether a party is entitled to relief not claimed in an originating process (in this case, the originating summons); and

c.	whether the orders made were in breach of the constitutional provisions relating to Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49). 

19. We shall deal with each of these broad issues in turn. 

CONSIDERATION

20. Superficially, the first question that must be resolved is whether on 6 December 2010 the Court was empowered to make orders affecting parties not originally named as defendants in the proceedings and in favour of a person also not originally named as a plaintiff. As will be seen, this entails more than just an issue of practice and pleading.

21. The appellants’ complaint is two-fold:

d.	firstly, the order of 6 December 2010 is said to be defective because, whilst Mr Piso did claim the substantive relief which became the subject of those orders, he was never named as a plaintiff in the originating summons, the GLC being the only party named; and

e.	secondly, order 6 of the orders is said to be defective because it was directed to 11 extra persons never named as defendant parties to the proceeding. 

Each limb of this complaint proceeds on the basis that the originating summons has remained unamended by court order throughout the course of multiple court hearings since being filed on 20 October 2009. 

22. In their written submissions and under the heading ‘Comparison of Reliefs’, the appellants summarised, accurately, the differences between the relief claimed in the originating summons and that granted on 6 December 2010:

i) Relief 1 sought in originating summons is nowhere granted in the formal orders of the decision of the 6th of December 2010.

ii) Relief 2 sought in originating summons is nowhere given in the formal orders of the decision of the 6th of December 2010.

iii) Relief 3 of the originating summons is poorly drafted and therefore vague and unclear. A plaintiff clan [sic] not restrain himself.

iv) Relief 4 claimed on in the [sic] originating summons is also poorly drafted and vague. The plaintiff is asking for orders to restrained [sic] himself. 

v) Relief 6 in the originating summons is just for costs only. 

23. The appellants concede that the task which confronted Ellis J on 6 December 2010 was a difficult one because, on that day and unlike on 12 October 2010 and 15 November 2010, there was an absence of any legal representation of any person and because the materials before the Court were voluminous (as reflected in the four volumes comprising the appeal books in this appeal). They submit that, though no malice or bad faith attended his Honour’s actions and orders, a miscarriage of justice nonetheless occurred in this way: 

There is no doubt that his Honour tried to resolve matters ij [sic] a setting which involved ordinary people and church office bearer[s] to the point where the law relating to pleadings and parties were inadvertently disregarded.

24. As this submission was developed during the course of oral argument, it became apparent that, behind the complaint as to parties and pleadings, there lurked a more fundamental question as to whether persons who were not originally named as defendant parties had been afforded natural justice on 6 December 2010 by being made aware of the case sought to be made against them and by being afforded an opportunity to be heard. 

25. Recently, in Al Rawi v Security Service [2012] 1 AC 531 at 572-573 (Al Rawi v Security Service) and under the general heading, “The essential features of a common law trial”, Lord Dyson reiterated (for his Lordship was not purporting to make new law) principles which he described as “fundamental” to justice under the common law. These principles he described as the “open justice principle” and the “natural justice principle”. It is the natural justice principle which is raised for consideration in this case. Lord Dyson observed of that principle:

12.	There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322, 337: 

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."

13.	Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: "Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial." 

It was not necessary in the circumstances of that case for His Lordship to consider, nor is it necessary for us to consider, yet another “strand” of the natural justice principle, which is concerned with unbiased and the appearance of unbiased adjudication and administrative decision-making. 

26. Though there was a lack of unanimity as to the application of these principles set out by Lord Dyson to the facts of Al Rawi v Security Service, none of the other members of the United Kingdom Supreme Court offered a different view of what constituted this particular, essential feature of a trial under the common law. The position in Papua New Guinea is no different. In CL Toulik Business Consultant Ltd v Kuek [2006] PGSC 32; SC876, this Court (Hinchliffe, Davani, & Lay, JJ.) also, like Lord Dyson in Al Rawi v Security Service, referring to Kanda v Government of Malaya [1962] AC 322, stated (at [18]), “[T]he court is required to act fairly and the basic minimum requirement of acting fairly is that the party brought to court ought to know the nature of the case brought against him and the consequences which are likely to flow from a successful application by the opposing party.”

27. In Papua New Guinea, these common law principles of natural justice are expressly referred to in the The Constitution: 

Division 4.—Principles of Natural Justice.

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

60. Development of principles.

In the development of the rules of the underlying law in accordance with Schedule 2 (adoption, etc., of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization.

Cases such as Premdas v The State [1979] PNGLR 329 (Premdas), Okuk and State v Fallscheer [1980] PGSC 13; [1980] PNGLR 274 (3 October 1980); Koki v Inguba [2009] PGNC 161; N3785 (16 November 2009) and Skate v Tau [2001] PGNC 81; N2126 (10 October 2001) have regarded these constitutional principles as referring to natural justice as understood under the common law. 

28. It is a given then that, on 6 December 2010, the National Court was bound to afford natural justice, in the sense described in the cases cited and having the minimum content referred to in s 59(2) of The Constitution, to all of those against whom orders were sought that day: The Constitution, ss 20, 59, Sch 2.2(1) and Premdas. An exercise of judicial power in respect of the making of final orders for declaratory and injunctive was attended with this obligation.

29. There is a converse to these natural justice principles so far as non-parties are concerned. Subject to certain limited exceptions such as an action in rem or a probate proceeding concerning the true construction of a Will, another fundamental feature of a common law trial is that its outcome binds only the parties to the litigation, be they plaintiff or defendant parties. This reflects what has been described as a principle of protection of non-parties which, as Professor Neil Andrews has explained:

…expresses the important value that litigation should not impinge unduly upon the interests of non-parties. The maxim is: Lites tertiis nec nocent nec prosunt (litigation in general should neither prejudice nor confer benefits upon strangers). Naturally, the more troublesome collateral aspect of litigation is not that it can benefit but rather than it can detrimentally affect non-parties.

30. In a similar vein and with respect to declaratory judgements in particular, Walter Anderson has correctly observed that:

In order to render a binding declaration of rights it is indispensable that all interested parties or those whose interests are affected be made parties to the suit. The interests or rights of non-joined parties cannot be affected and any declaration made in respect thereto is not binding on them. In a proceeding for declaratory judgment, the court has the power to settle the controversy which exists between the parties to the action, but on the other hand, if someone else has a collateral interest, it is not necessary to bring him into the controversy alleged to exist between those who are parties but, of course, his rights such as they may be could not be concluded without his presence. The declaratory judgment statute cannot be so construed as to contemplate the adjudication of the rights of parties who are not before the court and of whose persons, the court has no jurisdiction. Where there were two defendants who were named as such to the proceeding but were not served with process and, therefore, were not before the court, any judgment rendered in the absence of proper service of process upon them would not be binding as against them, and would not foreclose them from asserting whatever rights they might have in the subject matter of the litigation. Neither may one party obtain a declaratory judgment for and on behalf of another who is not a party to the proceeding. Of course, it hardly need be stated that in a proper case in class actions, declaratory relief may be brought by a representative party plaintiff.

31. It is desirable now to give more detail of the course of court events leading up to the proceedings in the National Court that day and of events that day.

32. When on 13 April 2010 Ellis J dealt with the question as to whether and, if so, for how long to extend the interim orders made the previous year he was confronted with a submission, made on behalf of the original defendants, which as recited by his Honour in the reasons for judgement (para 34) he delivered that day, was that the GLC, “had no authority to ‘run to court’, that there was no resolution to commence proceedings and that Bishop Piso did not have the power to institute the present proceedings in the name of the church as plaintiff”. His Honour considered (at para 35) that there were “two possible bases for the commencement of the current proceedings: they can be authorised by the plaintiff [the GLC] or authorised by the court (or both)”. He then analysed the by-laws of the GLC so as to conclude that the Head Bishop was the representative of the [GLC]. Read in context, his Honour was not there referring to anything other than the Head Bishop having the authority to cause the GLC to institute a proceeding in the name of the church itself. His Honour then added that, even if he were wrong about the authority of the Head Bishop to cause the proceedings to be instituted in the name of the GLC as plaintiff, such were the interests of the GLC that it could in any event have instituted the proceeding because of its exposure to reputational damage. 

33. Having so concluded, his Honour further added (at para 37):

I am of the view that the plaintiff [GLC] has standing. Indeed, if Bishop Piso commenced these proceedings in his own name, then he would have standing.
[Emphasis added]

Though, plainly, having regard to the sentence emphasised, his Honour had it in mind that Mr Piso might further or alternatively have been a plaintiff, he did not that day make any formal order joining him as a plaintiff party. Further, though, having regard to the absence of any evidence before him concerning the fourth defendant (Mr Epe), his Honour considered that there was no basis shown for his joinder as a party he decided not “at that stage” to order his removal as a party. Nor did he have before him any application for an order for Mr Epe’s removal as a party. Instead, given that a church synod was to be held in June 2010, that a case for continuation of the interim orders was otherwise made out and in the hope (misplaced as hindsight proved) that the church synod might lead to a resolution of differences between the parties, his Honour, as noted, continued the interim orders. He adjourned the proceedings for directions on 12 June 2010.

34. The then sole plaintiff [the GLC] and the original defendants were each legally represented before the National Court on 13 April 2010. This remained the position when on 12 October 2010 the proceedings were listed before Ellis J for consideration of the question as to whether the interim orders should be made permanent. On that day, each party read and relied upon a number of affidavits but neither party sought to cross-examine any of the deponents of these affidavits. The deponents of the affidavits read for the original defendants notably included not just an affidavit from each of them but also two affidavits from Mr Aiyene. Those read for the GLC included a number made by Mr Piso.

35. By that stage, the envisaged church synod had been held but had not yielded the hoped for reconciliation between the parties. That had the consequence that his Honour also had to deal with an application by the GLC for additional orders against the second defendant (Mr Peter). That application had been filed in November 2009 but left unresolved because of a hope that it might not be further prosecuted if the June synod led to reconciliation between the parties. 

36. The absence of any such reconciliation and his experience at the hearing on 12 October 2010 led Ellis J to decide to try to “deescalate the dispute which underlies the proceedings” (reasons of 15 November 2010, para 45). His Honour was particularly influenced by a letter from the International President of the Lutheran Church, of which the GLC was a part, which was in evidence before him. In that letter, the International President stated that he favoured some form of reconciliation. Taking up this sentiment, Ellis J determined that the preferable course to take was to postpone any determination of the question as to whether the interim orders should be made permanent but, instead, further to extend them, on this occasion to 6 December 2010. His Honour for like reasons decided further to adjourn the notice of motion seeking that the second defendant be dealt with for contempt. 

37. In the meantime, Ellis J made provision by the orders of 12 October 2010 for mediation between the parties. 

38. Yet further, the orders made on 12 October 2010 included the following:

In relation to any other issues between the parties, the court dispenses with the National Court Rules pursuant to Order 1, rule 7 in order that all issues between the parties may be raised in these proceedings and resolved quickly and cheaply.

39. The situation which confronted Ellis J when the proceeding was called on at Wabag on 6 December 2010, as evident from the transcript, should now be set out in some detail.

40. Mr Piso was in attendance, so was Mr Aieyene and so, too, was a large group of their respective supporters. The public gallery in the courtroom was, literally, full to overflowing.

41. All had attended in the expectation, understandable in light of the orders made by his Honour on 12 October 2010, that the still unresolved controversy as to whom was the duly elected Head Bishop and whether Mr Piso had lawfully been excommunicated would be resolved finally by an exercise of the judicial power of the People vested in the National Court. The importance of there being a prompt, final pronouncement in respect of the controversy was underscored by the apparent disposition of some who considered Mr Aieyene to be the duly elected Head Bishop not to comply with the National Court’s interim orders, That is in contrast to the obvious and commendable disposition of Messrs Piso and Aieyene themselves, as well as the many others of their supporters who attended, which was to bring their differences before a forum appointed under The Constitution for its resolution.

42. Conspicuously absent on 6 December 2010 were the lawyers who had appeared for the respective parties.

43. At the commencement of the proceedings his Honour conducted what might be termed a “roll call”. This disclosed that, apart from Messrs Piso and Aieyene, the following were present:

•	Mr Yasaka
•	Mr Peter
•	Mr Nathan
•	Mr Epe
•	Mr Nete
•	Mr Paiaeke
•	Mr Waipu
•	Mr Polyo
•	Mr Yamo (present but waiting outside the courtroom).

44. The names of Messrs Enomba, Kungu and Puia were called but there was no appearance by them or on their behalf. Each of these gentlemen had sworn affidavits which were filed on behalf of the original defendants by their lawyer, Mr Sino, in November 2010. That appears to be the reason why, though they were not named in the originating summons as defendants, their names were called. The same explanation is applicable to the calling of the names of such of the other first appellants who were not original defendants. 

45. The roll call conducted by his Honour also established that the first language of most of the named parties to the originating summons as well as of the others whose names were called and who were present was Pidgin rather than English. His Honour ensured that the proceedings were translated into Pidgin for the benefit of such persons.

46. After the roll call, his Honour commenced proceedings by giving a short summary of the controversy, the failures by each party but especially the original defendants, to comply with the directions in respect of the trial to occur on 6 December 2010, of the disposition of the GLC and Mr Piso not to proceed against persons for contempt but of the liability of such persons to be dealt with on the Court’s own motion, having regard to non-compliance with the interim orders. His Honour then stood proceedings down for a short time so as to enable those who had answered the roll call to be shown the cells, which, he explained, was where they were liable to be detained if found guilty of contempt of court. Unusual though this procedure might seem, it was, in his Honour’s view, sufficient unto the exigencies of the day. No criticism of his Honour’s adopting this procedure was made by the appellants. Nor, in light of the exigencies prevailing on the day, do we make any such criticism. 

47. This inspection of court custodial facilities having occurred, his Honour then resumed the hearing of the proceeding. In the course of this hearing, Mr Piso came to make submissions for and on behalf of the GLC, as well as on his own behalf and Mr Aieyene came to make submissions not only on his own behalf or even just on behalf of the original defendants but also on behalf of those who had given affidavits in support of Mr Aieyene being the duly elected Head Bishop.

48. The proceedings took a directed or inquisitorial form in which his Honour not only heard submissions but also directed questions to those who had given affidavits. All of this procedure he adopted was directed to the end of understanding the facts against which to determine who was duly elected as Head Bishop and whether Mr Piso had lawfully been excommunicated. In the course of undertaking this procedure and receiving submissions from Mr Piso, the following exchange occurred between Ellis J and Mr Piso: 

HIS HONOUR: All right, if the orders were to continue they need to be reworded, but the orders are against [Messrs Yakasa, Peter, Nathan and Epe]. But they also extend to cover their servants and agents. Now it is clear from the material filed before the court that their servants and agents include the people who have sworn affidavits. So you would want presumably the people who have sworn those affidavits to be included in any future order.

BISHOP PISO: If it pleases Your Honour that would be an acceptable idea for me and the plaintiff.

HIS HONOUR: And the other aspect, if you are successful in having the orders continued is that you would want an additional order made against [Mr Aieyene] to restrain himself out as head of the church.

BISHOP PISO: Your Honour, I think that would be the most logical thing at this time.

49. Later in the course of the proceedings on 6 December 2010, Ellis J put these same propositions to Mr Aieyene and to such of the first appellants who were present. We include in that category Mr Yamo. On our reading of the whole of the transcript of proceedings on 6 December 2010, it was Mr Aieyene who assumed the role of spokesman not only on his own behalf but also, inferentially, on behalf of the original defendants and at least on behalf of those others of the first appellants who had both sworn affidavits and attended court that day. This group included Mr Yamo, In the circumstances prevailing, his Honour was entitled to assume that, if Mr Yamo had something to say about the orders under contemplation, it would either be said on his behalf by Mr Aieyene or that he would separately make himself known and seek to be heard.

50. However tempting it may have been to include Messrs Enomba, Kungu and Puia in the same category as Mr Yamo, and the temptation must have been a strong one that day, the fact is that they were not present. It was possible that, though they had chosen to give affidavits in support of Mr Aieyene, their absence on a day when so many others who had given such affidavits in support were present (along with, inferentially, many other supporters of Mr Aieyene and, for that matter, Mr Piso, because the courtroom was full to overflowing) might have been referable to their having had second thoughts about persisting in that support. In any event, these three gentlemen did not know that it was proposed by the GLC and Mr Piso, in response to the question raised by his Honour, to name them as parties against whom specific restraints would be made. Nor were they given an opportunity to be heard before such orders were made.

51. Order 4, emphasised above, of the orders made by his Honour on 12 October 2010 had dispensed with the operation of the National Court Rules in relation to “any other issues between the parties”. Even then, his Honour clearly contemplated that the issues raised in the case might extend beyond the relief originally sought and that the nature of the case and probably also the standard of the then legal representation was such that the interests of justice necessitated case specific, prescriptive judicial direction as the occasion required. It was in that same spirit that Ellis J conducted the proceedings on 6 December 2010. It is to be remembered also that s155(4) of The Constitution confers on the National Court jurisdiction “to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.” 

52. Even so, there was an irreducible minimum content, grounded in the principles of natural justice, to the exercise of that jurisdiction in respect of any grant of final injunctive relief against Messrs Enomba, Kungu and Puia. That minimum content was that they know the case sought to be made against them and be given an opportunity to be heard. Only then could the exercise of judicial power not only be fair but be seen to be fair. 

53. Of course, to require that an opportunity be given is one thing, whether the person concerned avails of that opportunity is another. A person who is given notice of that orders are to be sought against him or her at a particular time and place and who without reasonable excuse fails to attend then in person or by legal representative or who fails, for example, to lodge a defence after being served, cannot later be heard to complain about a denial of natural justice. 

54. Also to be remembered is that the orders which were made against each of the appellants, including Messrs Enomba, Kungu and Puia, carried with them penal consequences in the event that they were breached without reasonable excuse. This underscores why it was that this irreducible minimum content attended the exercise of judicial power that day.

55. The efforts made by Ellis J to do justice on 6 December 2010 in very difficult circumstances were considerable, even heroic. It is all too easy with the false wisdom of hindsight to speculate about whether an alternative might have been to adjourn proceedings. There was every reason for his Honour to proceed that day to consider whether the interim orders ought to be made permanent and whether it was necessary to grant further or other relief. All of the parties concerned. Both the original plaintiff (by Mr Piso) and the original defendants had attended, as had many others, on the date and at the place fixed for trial. Only the lawyers on the record had failed either to attend or to lodge with the Court in advance a notice of ceasing to act. The affidavit evidence before the court filed on behalf of the original defendants indicated, strongly, behaviours on the part of the deponents which was not just unaccepting of the interim orders but defiant of them, as well as a fundamental misconception as to the rules of the GLC for the election of Head Bishop. His Honour was well entitled to form the view that the case needed firm, prescriptive conduct and, if at all possible, final resolution that day. Unfortunately, and only in relation to Messrs Enomba, Kungu and Puia, his Honour omitted, under the considerable pressures of the day, to afford them natural justice.

56. For this reason alone, if for no other, so much of the appeal as entails a challenge by them to the orders made against them on 6 December 2010 must succeed.
57. The appellants as a whole submit that they are all entitled to succeed on the basis that the relief granted against them was neither originally sought nor the subject of amendment to the originating summons. They submit that the law is ‘very clear’ on this issue. By reference to the case of Ume More & Ors v University of PNG [1985] PNGLR 401; [1985] PGSC 401 (More v University of PNG), they advance the proposition that a party to a proceeding can not obtain relief which has not been requested or sought originally or even by way of proper amendments. 

58. In More v University of PNG, the Court stated that ‘a party cannot obtain relief which has not been requested or sought in the pleadings’, citing two UK authorities, London Passenger Board v Moscrop [1942] 1 All ER 97 (Moscrop) and Blay v Pollard and Morris [1930] 1 KB 628 (Blay). In a passage reproduced in More v University of PNG, Scrutton LJ stated in Blay (at 634) that:

[c]ases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the judge decided was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course.’ 

59. Reference was also made by the appellants to Papua New Guinea Banking Corporation v Tole [2002] PGSC 8; SC694 (PNGBC v Tole). That case concerned an appeal from the National Court in which the plaintiff had failed to specifically plead in the summons the special damages which it sought. Justice Kandakasi offered the following detailed analysis of the case law in Papua New Guinea on the issue of pleadings: 

The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary Collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only. 

This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:

"1. they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it;

2. they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and

3. they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664."

It is clear law that, where a plaintiff's claim is special in nature, such as a claim for loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed and relief granted. That is apparent from the judgements in the James Pupune and John Etape cases. These cases adopted and applied principles enunciated in those terms in authorities such as Ilkiw v. Samuel [1963] 2 All ER 879, per Diplock L J at pp. 890-891 and Pilato v. Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, per McClemens J at 365. This follows in turn from the fact that, our system of justice is not one of surprises but one of fair play. Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the other's case so that, if need be, a defendant can make a payment into Court.

In the present case, the question is, did Mr. Tole sufficiently plead the basis for the eventual award of K160, 834.66 in his favour? This requires an examination of his pleadings. His submission is that, this was a claim for damages for unlawful termination of a contract of employment and his losses and hence his damages were pleaded in paragraph 6 of his statement of claim.

Paragraph 6 of Mr. Tole's statement of claim reads:

"By reason of the matters aforesaid the Plaintiff has been deprived of his salary and allowances and benefits he would otherwise have earned and he has thereby suffered loss and damage. Particulars will be provided after discovery and prior to trial."

On the other hand, PNGBC points to the prayer for relief which simply states: 

"1. General Damages;

2. Interest on the Judgement sum pursuant to the Judicial Proceedings(Interest on Damages) Act at the rate of 8%;

3. Costs." 

PNGBC argues that, Mr. Tole failed to specifically plead in its pray for relief special damages, if the pleading in paragraph 6 was to be carried through for a claim for the matters pleaded in that paragraph. Reliance is placed on the case of Uma More v. University of Papua New Guinea [1985] PNGLR 401, particularly at p. 405, where the Court said " a party cannot obtain relief which has not been requested or sought in the pleadings."

That was on an appeal to the Supreme Court, from the National Court. The National Court granted injunctive orders against persons not named in the proceedings and such orders were sought against them. The Court said at p. 405:

"... in civil proceedings it is essential to observe and follow established practice and procedure if or no other reason then to avoid confusion, uncertainty and consequences which are either unexpected and or unsought." 

This was adopted and applied in Mussau Timber Development Pty Ltd v. Santee Mangis & Ors N920, by Jalina J who said at p. 7 that: "A party cannot obtain relief which has not been requested or sought in the pleadings." His Honour cited the words of Lord Russell of Killowen in London Passenger Transport Board v Moscrop [1942] 1 All ER 97, at p. 105 who said:

"This appears to me to have been a complete re-casting of the plaintiff's alleged cause of action, and the matter was unfortunately carried through without any amendment of the statement of claim. This should not be so. Any departure from the cause of action alleged or the relief claimed in the pleadings should be preceded, or, at all events, accompanied, by the relevant amendments, so that the exact cause of action alleged and relief claimed shall form part of the court's record, and be capable of being referred to thereafter should necessity arise. Pleadings should not be 'deemed to be amended' or 'treated as amended'. They should be amended in fact."

This principle was adopted and applied by the Supreme Court in the Uma More Case (supra).

60. We do not question the correctness of the observations made in PNGBC v Tole insofar as they require that a party be put on notice as to the relief which is sought against that party and have an opportunity to be heard in respect of the granting of that relief. Where that has occurred, natural justice will have been observed. The point of pleading rules in relation to the relief sought is to ensure that the party against whom that relief is sought has notice. Where, however, natural justice has in fact been afforded to that party in respect of the seeking of other relief, to deny the other party that relief on the basis of an absence of a formal amendment would, with respect, be a miscarriage of justice. The rules of court are a handmaiden of justice, not its master. 

61. The correct position was stated by French J (as the present Australian Chief Justice then was) in Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 32 FCR 379 at 391:

The substantive goal of  this Court is to do justice  between parties according to law. That objective is not to be compromised by undue rigidity in the application of the procedural requirements which are its handmaidens.

The "substantive goal" of the National Court is no different. It is to do justice according to law.
 
62. Save in respect of Messrs Enomba, Kungu and Puia, the procedures adopted by Ellis J on 6 December 2010 were sufficient unto the day in respect of doing justice according to law. There was a "pleading" for additional relief. That pleading was oral. It was made by Mr Piso in response to a question from Ellis J and then repeated by his Honour in open court and in language which such of the appellants who were present that day could understand. Save for the three gentlemen mentioned, each of the other appellants thereby had notice as to the relief which was sought against them and an opportunity to be heard in respect of whether that relief ought to be granted. In the circumstances, nothing more was required. The absence of formal amendment of the originating process was, in the circumstances which prevailed, irrelevant. 

63. The same reasoning attends the absence of a formal amendment of the originating summons so as to include Mr Piso as an additional plaintiff and the other appellants as additional defendants. It was clearly his Honour's intention that Mr Piso personally as well as the GLC have the benefit of the orders which he made on 6 December 2010 and that those orders be made not just in respect of the original defendants but also the others he named. The absence of a formal amendment of the originating summons is, again in the circumstances which prevailed, irrelevant. 

64. Save in respect of Messrs Enomba, Kungu and Puia, this ground of challenge fails.

65. This outcome is consistent with the actual result in More v University of PNG, where the Supreme Court set aside injunctive orders made in the National Court against particular students who had neither been given notice of an intention to make those orders nor an opportunity, before they were made, to make submissions about whether they should be made. Of the judges constituting the Court in that case, Los J explicitly ascribed ([1985] PNGLR at 422-423) a denial of natural justice as a reason for setting aside the orders. The other members of the Court (Pratt J, with whom Amet J materially agreed) did not do explicitly but the procedure which their Honours consider ought to have been followed entailed affording natural justice to the students concerned ([1985] PNGLR at 407 and 410, item 3).

66. Other observations made in that case as to the inability of a party to obtain relief which has not been pleaded are, with respect, too starkly stated. The rules of court with respect to pleadings are directed to the end of achieving procedural fairness but, where it can be seen that, in the circumstances of a particular case, procedural fairness has been achieved, albeit without strict compliance with the rules of court, it would be to elevate form over substance to set aside the resultant relief. The true position is as stated by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v. Dunn; Mount Oxide Mines.

Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.

[Footnote references omitted]

The qualification, "in general" in the passage quoted will be noted. The present was a case where there was, save for Messrs Enomba, Kungu and Puia, acquiescence by all concerned with the course adopted by Ellis J on 6 December 2010. Messrs Enomba, Kungu and Puia did not acquiesce because they were not given an opportunity to be heard in respect of the course proposed, including the relief proposed to be granted.

67. The appellants did not raise in the National Court any alleged breach of the constitutional provisions relating to Freedom of conscience, thought and religion (s 45); Freedom of employment (s 48) and Right to Privacy (s 49) as a basis upon which the orders sought against them should not be made. Further the submissions directed to these grounds of appeal neither in writing nor orally rose above the level of a reference to these provisions and an assertion that they had been breached. In the circumstances of this case, it is neither necessary nor desirable to deal with these grounds other than in a summary way.

68. By 6 December 2010, the material events in relation to the GLC and the position of Head Bishop were:

f.	Though earlier duly elected as Head Bishop in accordance with the rules of the GLC, Mr Piso was purportedly "excommunicated" at a meeting held at Birip on 12 March 2010.

g.	The then Assistant Bishop, Mr Aieyene then purported to become the Acting Head Bishop of the GLC.

h.	As (purported) Acting Head Bishop, Mr Aieyene convened a church Synod at Irelya in June 2010.

i.	The Irelya Synod elected Mr Irelya as Head Bishop.

j.	At a GLC Synod separately held at Pausa, Wapendmanda from 26 June 2010 to 2 July 2010 (to which the original defendants and Mr Aieyene were invited but which they chose not to attend instead attending the Irelya Synod), Mr Piso was elected as Head Bishop. 

69. In the National Court, Ellis J found, as he was entitled so to do on the evidence, which included the rules of the GLC:

k.	The rules of the GLC made no provision for excommunication.

l.	In any event, Mr Piso was given no notice of any charge made against him which would render him liable to excommunication at a meeting on 12 March 2010, the result of that meeting therefore entailing a denial of natural justice to him.

m.	The meeting of 12 March 2010 was unlawful because it was convened and held in contravention of the interim injunctions granted by the National Court.

n.	There was no vacancy in the office of Head Bishop occasioned by an "excommunication" of Mr Piso.

o.	Mr Aieyene did not lawfully assume office as Acting Head Bishop.

p.	Accordingly, Mr Aieyene had no lawful authority to convene the Irelya Synod and his election as Head Bishop at that purported Synod was unlawful.

q.	Mr Piso was lawfully elected as Head Bishop at the Synod held at Pausa, Wapendmanda.

70. That, in these circumstances and having regard to a studied refusal by the appellants to respect and obey the National Court's interim orders and the rules of the GLC, Ellis J considered it just to make the orders under appeal is unremarkable, save for the failure to observe natural justice in respect of Messrs Enomba, Kungu and Puia.

71. The orders made by his Honour entailed no breach of s 45 relating to Freedom of conscience, thought and religion, only an application of the rules of the GLC to the facts of the case. If the appellants did not wish to practise their faith in accordance with the rules of the GLC nothing in the orders made on 6 December 2010 impacted upon their freedom so to do. It is just that they would cease membership of the GLC and not be entitled to the use of its facilities. 

72. The orders did not contravene s 48 in relation to Freedom of employment. The positions which the appellants held were positions within the GLC, governed by the rules of the GLC. If, for reasons of conscience, they felt unable to continue as members of the GLC, their loss of position entailed no breach of s 48, only an act of voluntary will on their part.

73. The orders did not breach the Right to Privacy found in s 49. whatever that right may entail, and it unnecessary to explore that, it was not breached by an order which flowed from the construction and application to the facts of the rules of the GLC and a conclusion that the appellants had contravened those rules and interim orders of the National Court. 

74. The "constitutional" grounds of appeal should be dismissed.

75. As to costs, the basis upon which Messrs Enomba, Kungu and Puia came to succeed emerged only in the course of submissions. The pleading point raised on their behalf and the constitutional grounds which they raised failed. They were not separately represented on the hearing of the appeal. In these circumstances, we consider that, as between them, Mr Piso and the GLC the just outcome as to costs is to make no order as to costs. The other appellants have failed comprehensively. There is no reason why costs should not follow the event so far as they are concerned. Whether to enforce that order for costs will be a matter for the GLC and Bishop Piso, who was duly elected as Head Bishop in 2010 (We had hitherto refrained from according him the title which is his due until we had expressed our conclusion that the orders made in his favour by Ellis J were open in law (save to the limited extent mentioned). 

ORDERS

76. As to so much of the appeal as relates to the first appellants:

(a)	 the appeal by Messrs Ketae Enomba, Matai Kungu and Yapata Puia is allowed and the orders made by the National court on 6 December 2010 are varied in the following way;

i.	Order 6 is varied so as to delete Messrs Ketae Enomba, Matai Kungu and Yapata Puia from those persons subject to the restraints for which that order provides;

ii.	Order 9 is varied such that Messrs Ketae Enomba, Matai Kungu and Yapata Puia are removed from the list of persons in respect of whom there is a grant of leave to the second respondent (plaintiff below) to commence proceedings for contempt;

iii.	Order 10 is varied such that the order for the payment of costs apply to all defendants in the National Court save for Messrs Ketae Enomba, Matai Kungu and Yapata Puia.

(b)	for the avoidance of doubt, it is declared that the other orders made by the National Court on 6 December 2010 have no application to Messrs Ketae Enomba, Matai Kungu and Yapata Puia;

(c)	Save in respect of Messrs Ketae Enomba, Matai Kungu and Yapata Puia, the appeal by the first appellants is dismissed.

2.	The second appellant's appeal is dismissed.

3.	[COSTS]

_________________________________________________________
Ame Lawyers: Lawyers for the Appellant
Mann-Rai Lawyers: Lawyers for the Respondents