Clark v Trustees of the Roman Catholic Archdiocese of Brisbane [1996] QSC 255 [1998] 1 Qd R 26

o o IN THE SUPREME COURT OF QUEENSLAND No 1007 of 1994 Brisbane Before the Hon. Justice Williams [Clark v. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane & Anor] BETWEEN: OLIVER CLARK Plaintiff AND: THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE AND: CATCHWORDS Counsel: Solicitors: Hearing Date: First Defendant FRANCIS RUSH Second Defendant REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 20112/1996 TORT - negligent misstatement causing nelVOUS shock - bishop advising church member on spiritual matter- held no common law duty - statement of claim struck out. EQUITY - fiduciary duty - bishop and church member - advice on spiritual matter - held no fiduciary relationship in circumstances. CASES CONSIDERED: Grant v. Australian Knitting Mills (1936) AC 85 San Sebastian pty Ltd v. The Minister (1986) 162 CLR 341 Wylde v. Attorney-General for New South Wales (1948) 78 CLR 224 Scandrett v. Dowling (1992) 27 NSWLR 483 Cooke QC and DA Kelly for plaintiff Gibson QC v. BJ Clarke for defendants Marrinans for plaintiff Thynne and Macartney for defendants 28 November 1996 This jud.gment is to be copied i··~<r the purpose of research and private stUljy only. It IS not to be resold or used fo~ republication in any other way withou't t permission. -- 1 of 17 -- o o o " . IN THE SUPREME COURT OF QUEENSLAND Brisbane [Clark v. The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane & Anor] BETWEEN: OLIVER CLARK AND: THE CORPORAnON OF THE TRUSTEES OF No 1007 of 1994 Plaintiff THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE First Defendant AND: FRANCIS RUSH Second Defendant REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 20112/1996 This is an application by the plaintiff for leave pursuant to O.32r.1 to deliver an amended statement of claim. The circumstances in which the application is made, and the issues raised thereon, are somewhat unusual. The writ was issued on 8 July 1994 and the defendants entered an appearance on 27 September 1994. Then on 18 November 1994 the plaintiff delivered a statement of claim. The defendants gave notice requiring the plaintiff to furnish further and better particulars of allegations made therein, and further by correspondence asserted that the statement of claim -- 2 of 17 -- 2 as delivered was defective and could be struck out pursuant to 0.22r.31 or 32. The ultimate response of the plaintiff was to seek to deliver an amended statement of claim which differed substantially from that delivered in November 1994. By that time the plaintiff had lost the right to amend the statement of claim pursuant to 0.32r.3 without leave of the court. The defendants contend that the proposed statement of claim discloses no cause of action, is frivolous and vexatious, contains unnecessary or scandalous matter, and tends to prejudice, embarrass or delay a fair trial of the action. In consequence the defendants submit that leave to deliver the amended statement of claim should be refused. o One consequence of refusing leave is that the original statement of claim (objectionable though it may be) will still stand, and the plaintiff would also have to be given 0 the opportunity of attempting to draft a further viable statement of claim. Nevertheless it seems that in the long run the litigation will be more efficiently conducted if the sufficiency of the proposed amended. statement of claim is decided at this point of time. , The proposed amended statement of claim is exhibit "F" to the affidavit of PJ Marrinan filed 1 November 1996, but it is necessary in order to understand the submissions 0 to summarise it fairly fully in these reasons. It begins by asserting that at all material times the plaintiff was a "full communicant" 0 with the Catholic Church, a religious education teacher at a Catholic school, and a resident within the Catholic Archdiocese of Brisbane. Then it alleges that the first defendant is a corporation which is the "legal personality of the Catholic Archbishop of Brisbane" and capable of being sued. The second defendant is the Catholic Archbishop of Brisbane and asserted to be the "Chief Executive Officer" of the first defendant. Finally, by way of preliminaries, it is alleged that persons by the name of O'Rourke, McKeiman and Blumenthal were at all material times agents of the second defendant. -- 3 of 17 -- " ' 3 Paragraph 7 is the first of the critical paragraphs. It alleges that between February and June 1991 the plaintiff sought the advice of the second defendant in relation "to the issue of intercommunion"; that is, the circumstances in which a Catholic priest was entitled to give communion to non-Catholics. Particulars are given with respect to letters which are said to constitute the plaintiffs request for advice. It is then alleged in paragraph 8 that in response to the requests the second defendant provided the plaintiff with advice in relation to the issue of intercommunion. Particulars are given of letters from O'Rourke, McKiernan and', o Blumenthal and oral advice from McKiernan by which the advice in issue was communicated to the plaintiff. The pleading says that the letters will be referred to at trial "for their full o terms, true meaning and effect", but the pleading is otherwise silent as to the content of the advice communicated therein. However, the substance of the oral advice from McKiernan is pleaded; it is alleged that McKiernan advised "that there was a general understanding within the Catholic Archdiocese of Brisbane that there existed an assumed permission from the second defendant for intercommunion at marriages, funerals and small community o masses." o Paragraph 9 is then in these terms: "At all material times when the second defendant provided the advice: (a) pursuant to Canon 213 of Canon Law the plaintiff had a right to receive assistance or help from the second defendant out of the spiritual goods of the Catholic Church, including the word of God and the Sacraments; (b) pursuant to Canon 212 of Canon Law, .the plaintiff was bound by Christian obedience to follow what the second defendant declared as a teacher of the faith or determined as a leader of the Church in the Archdiocese of Brisbane; ( c) pursuant to ,Canon 212 of Canon Law, the plaintiff was free to make his own needs, especially spiritual needs, known to the second defendant; -- 4 of 17 -- 4 (d) pursuant to Canon 231 of Canon Law, the plaintiff, as a religious education teacher at Brigidine College, was obliged to acquire the appropriate information required to fulfil his function and to perform that function conscientiously, zealously and diligently; (e) pursuant to Canon 386 of Canon Law, the second defendant was bound to present and explain to the plaintiff the truths of the Catholic Faith which were to be believed and applied to moral issues; (f) pursuant to Canon 386 of Canon Law, the second defendant was to safeguard the integrity and unity of the Catholic Faith." , ,. The statement of claim then appears to allege (paras 10 to 13) an additional basis on , ' which the advice previously referred to was sought and given. The correspondence here 0 particularised appears to be the same as that referred to earlier. What is specifically alleged in these paragraphs is that there was a dispute between the plaintiff and persons at Brigidine 0 College with respect to the issue of intercommunion and the plaintiff sought to have the dispute resolved by the second defendant. Although it is not expressly stated in the pleading the implication appears to be that the advice previously referred to was supplied for the purpose of resolving that dispute. The only additional matter pleaded here is the assertion in paragraph 13 that the second defendant owed the plaintiff a duty "to take reasonable care to 0 ensure that the advice was clear and accurate". By paragraph 14 it is alleged that the "advice" was erroneous. To the extent that the 0 advice was provided by Blumenthal in his letter of 19 June 1991 particulars of the alleged error are provided. Essentially the alleged error appears to be that Blumenthal referred to "Vatican Council II: The Conciliar and Post-Conciliar documents numbered 43 and 44" and by implication asserted that the second defendant was not entitled to establish a general regulation out of an exceptional case but was only entitled to decide what situations constituted "special cases". The paragraph also asserts, it would appear, that Blumenthal's advice "was' in direct conflict with the oral advice" given by McKiernan; presumably that -- 5 of 17 -- , . , 5 particularised in paragraph 8. It is also alleged that the "advice" - presumably the totality of the advice given by O'Rourke, McKiernan and Blumenthal - did not refer the plaintiff to Canon 844 of the Revised Code of Canon Law promulgated on 27 November 1983. So far as the pleading to that point reveals,the last letter from the plaintiff requesting advice was that of 10 June 1981, and the last communication of advice was by the letter of 19 June 1991 from Blumenthal. Paragraph 15 goes on to allege that "despite requests by the plaintiff" the second defendant "refused and/or omitted to explain or clarify the advice"; no ,"-"\") particulars of those allegations are provided. 0 /'~, ( )'-./' Next follows an allegation (para 16) that the second defendant "breached the duty of care owed to the plaintiff". The particulars given are as follows: "(a) Providing the plaintiff with erroneous and inconsistent advice. (b) Providing the plaintiff with advice which was calculated to confuse rather than elucidate. (c) (d) (e) (f) Failing to ascertain the nature of and inconsistencies in the advice. Failing to subsequently advise the plaintiff that the advice was erroneous. Failing to direct the plaintiff to Canon 844 of the Revised Code of Canon Law promulgated on 27 November 1983. Failing to subsequently offer to the plaintiff any explanation or clarification of the advice." It appears from allegations made in paragraph 17 that the plaintiff was "unaware that the advice was erroneous" until 7 May 1994 when he was directed by somebody else to Canon 844. As noted above the advice in question was supplied by June 1991 at the latest. The next relevant incident in point of time is alleged in paragraph 18; it is in these terms: "In or around January 1994, whilst the plaintiff was unaware that the advice was erroneous, the second defendant at his Oxley residence orally informed the -- 6 of 17 -- 6 plaintiff that the second defendant had granted permission for intercommunion on seven marriage occasions ... ". · ,, .. The statement of claim alleges that the communication of that matter in about January 1994 "caused the plaintiff to suffer nervous shock". The particulars supplied assert that the nervous shock was suffered because the plaintiff, believing the advice he had been given to be accurate, interpreted the communication as establishing that the second defendant "had acted in a manner directly inconsistent with and in flagrant disregard of Canon Law and Universal Church Discipline". The pleading goes on to allege that as a result of the "nervous shock" the plaintiffs "personality disorder was exacerbated, he suffered extreme stress and mental anguish" and was otherwise required to undergo medical treatment. There is also an allegation that his capacity to sustain full time employment as a teacher has been diminished. It is then alleged in paragraph 22 that it was "reasonably foreseeable that the plaintiff would suffer nervous shock if the second defendant breached the duty of care owed" to him. By way of particulars the plaintiff asserts that he made the second defendant aware that he was "very distressed about the dispute" relating to intercommunion, that he made the second defendant aware that "the dispute had been of concern to him for at least five years", and that the dispute had affected his employment as a religious education teacher; in general it is alleged that the second defendant was aware that "the issue of intercommunion (was) a burden under which he (the plaintiff) was suffering". Those appear to be the matters of fact alleged in the statement of claim in support of the cause of action for $250,000 damages for negligent misstatement. Because it is asserted (para 24) that at all material times the second defendant was acting for and on behalf of the first defendant, that claim is made against both the first and second defendants. o o o -- 7 of 17 -- o - -----~--------- 7 There then follows a claim, again against both the first and second defendants, said to be "further and/or alternatively", for "equitable compensation for breach of fiduciary duties". The claim for breach of fiduciary duties is based on paragraphs 1-25 of the statement of claim which have been summarised above, and on additional matters alleged in paragraphs 27-31 inclusive. Relevantly the following assertions are made in the proposed statement of claim: "27. In the premises, the first defendant assumed the position in the fiduciary in relation to the plaintiff. 28. In the premises, the second defendant assumed the position of a fiduciary in relation to the plaintiff." Then it is alleged in paragraph 29 that each of the defendants owed the plaintiff a duty to exercise "all powers conferred upon the second defendant in good faith and in the interests of the plaintiff' and a duty to "protect the plaintiff from foreseeable risks of harm". Paragraph 30 alleges that each of the defendants breached "their fiduciary duties owed to the plaintiff'. The following particulars thereof are given: "The second defendant failed to exercise the powers conferred upon him in good faith and in the interests of the plaintiff and failed to protect the plaintiff from foreseeable risks of harm by providing the plaintiff with erroneous advice and/or advice which was calculated to confuse, by subsequently refusing to clarify or explain that advice and through that conduct placing the plaintiff in a position where he was exposed to ongoing stress and became vulnerable to psychological injury." Finally it is alleged that as a result of those breaches of fiduciary duty the plaintiff suffered loss and damage. Again I set out the particulars thereof as alleged: "Upon hearing the communication, the plaintiff apprehended and believed that the second defendant, to whom he looked to preserve Church doctrine, law and discipline had acted in a manner directly inconsistent with and in flagrant disregard of Canon Law and Universal Church Discipline. As a result of the said nervous shock, the plaintiffs personality disorder was exacerbated, he suffered extreme stress and mental anguish, was required to undergo medical -- 8 of 17 -- 8 treatlllent and his capacity to sustain full time employment as teacher has been diminished. Full particulars of the plaintiff's injury, loss and damage will be provided prior to trial." I approach the issues for determination on the basis that the situation is analogous to an application to strike out a pleading on the ground that it does not disclose a cause of action. It can be accepted that in circumstances such as these the power will only be exercised where the facts as alleged do not clearly support a cause of action or where otherwise the court is clearly of the view that the claims raised are frivolous and vexatious. · . It can be assumed for present purposes that a negligent misstatement made in breach 0 of a common law duty and causing foreseeable,personal injury will give rise to a viable cause of action. Given the observations of Kirby P (with whom Priestley JA broadly agreed) in 0 Williams v. The Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 508-9 and 511, I am not prepared to conclude that a plaintiff cannot recover equitable compensation for nervous shock resulting from breach of fiduciary duty, though I must say I have grave doubts about that. The defendants put evidence before the court by way of an affidavit of JR Moore. There was no challenge to the assertion therein that Francis Rush was Archbishop from 5 March 1973 until his retirement on 3 December 1991. Since December 1991 another 0 person has held that title. It therefore seems clear, if it be relevant, that when he made the communication in January 1994 he was not the Archbishop of Brisbane. Further, JR Moore in his affida~it refers to the incorporation of the first defendant and exhibits a copy of the Letters Patent of 25 July 1935 issued pursuant to the provisions of The Religious Educational and Charitable Institutions Act of 186l. Those Letters Patent incorporated the persons holding and exercising "the office of Trustees of the real and personal property of The Roman Church" in Queensland. It is the successors of the three -- 9 of 17 -- 9 persons named in the original Letters Patent as trustees who are, for want of a better expression, the members of the body corporate. One of those originally was the Archbishop of Brisbane, but that is because pursuant to the relevant "rites, laws, rules, and usages of' the Roman Catholic Church he was one of the trustees. As the affidavit of Moore goes on to point out, and this was not seriously disputed factually, the first defendant "is not, and never has been, the legal personality for the Roman Catholic Archbishop of Brisbane." Moore also alleges that the Archbishop from time to time is not the Chief Executive Officer of the' first ~~ "~j defendant, and further asserts that there is no one who holds that title. Each of those assertions raises a factual issue which should be determined at a trial if the plaintiff persists r\i' h 11 . \ in relying on suc a egatlOns.,---,/ It is convenient first to deal with the cause of action which depends upon there being a fiduciary relationship between the plaintiff on the one hand and the first and/or second defendant on the other. As previously noted the statement of claim merely asserts that each defendant "assumed the position of a fiduciary in relation to the plaintiff'. No particulars are (l'-..J given in support of that allegation. One can only assume that the plaintiff is relying on the C) relationship between Church and communicant so far as the first defendant is concerned and Bishop and communicant (perhaps what may be termed a spiritual adviser relationship) so far as the second defendant is concerned; but that, in my opinion, is not sufficient to create a fiduciary relationship at least in the circumstances and 'for the purposes defined by the statement of claim. Mason J in Hospital Products Limited v. United States Surgical Corporation (1984) 156 CLR 41 at 96-7 noted that the courts have declined to define the concept of fiduciary relationship, but had rather allowed the relevant law to develop on a case by case basis. Nevertheless he outlined some of the critical features of such a relationship: "The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the -- 10 of 17 -- 10 exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is . therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulneraqle to abuse by the fiduciary of his position." . ' In the light of that it is obvious why a spiritual adviser is deemed to be in a fiduciary relationship to those who seek advice - particularly as to property matters. Equity is primarily concerned to ensure that the person in the position of power - the fiduciary - does not abuse that position so as to obtain a material benefit. (See also Breen v. Williams (1996) 70 • < A.L.J.R. 772 at 776, 782, 793 and 806-8.) 0 It has often been said that the categories of fiduciary. relationships are not closed and I would add that, in the modem world where human relationships are becoming more 0 complex, what has to be done by a fiduciary in order to avoid censure is constantly changing; the law here is in a state of flux and necessarily so. But despite all of that I can find neither authority nor any proper basis for concluding that the mere relationship of Church and communicant or Bishop and communicant creates an obligation enforceable in equity either to exercise all powers (presumably both spiritual and temporal) conferred upon the former in ~O good faith and in the interests of the latter, or a duty to protect the latter from foreseeable risks of harm (again presumably both spiritually and temporally). That is the fiduciary duty 0 alleged in paragraph 29 of the proposed statement of claim; if such duties are not recognised in equity then the claim for breach of fiduciary duty is without foundation. The absurdity of the first alleged duty can readily be demonstrated. Assume the second defendant has a fiduciary duty to provide members of the Church in question with accurate advice on spiritual matters. That power must be exercised with the interests of all members of the Church in mind. Assume further that a member of the Church has a particular psychiatric vulnerability so that such member would have an adverse psychiatric -- 11 of 17 -- -----"-" ~~~ , , ' , , 11 reaction to being given advice such as would comply with that general fiduciary obligation. If the Bishop was aware of that particular person's vulnerability then, if the plaintiffs contention is correct, the Bishop would be liable to that particular individual if there was an adverse psychiatric reaction to the promulgation of advice for the general benefit of the Church community. On the plaintiffs argument that was not the giving of advice "in good faith and in the interests of' the particular individual, and in consequence there would be a breach of fiduciary duty so far as that individual was concerned. That cannot be the law. Given the facts alleged in the proposed statement of claim there is not a viable cause of action for breach of fiduciary duty. Raising such a claim in the action is vexatious and o oppressive; it clearly prejudices, embarrasses and delays a fair trial of any proper cause 'of action. The alleged cause of action for damages for negligent misstatement raises somewhat more complex issues for consideration. Over recent times there have been significant developments in the law relating to losses, physical and economic, flowing from the making o of a negligent statement. But in my view the law has not developed to the stage where it is sufficient to say that if a statement is carelessly made, which is wrong in fact, and which CJ causes physical or economic loss to the person to whom it was made, there is a cause of action with respect to that loss. Whilst the "neighbour principle" derived from Lord Atkin's judgment in Donaghue v. Stevenson (1932) A.C. 562 at 580 is being given ever widening application, there must still be a duty situation recognised by the common law before the tort is established. That seems to have been recognised by Lord Atkin himself because he said in East Suffolk Rivers Catchment Board v. Kent (1941) A.C. 74 at 89 that "every person ... is under a common law obligation to some persons in some circumstances to conduct himself with reasonable care so as not to injure those persons likely 10 be affected by his want of -- 12 of 17 -- 12 , I , . care" (my emphasis), That was echoed by Lord Wright's observation in Grant v. Australian Knitting Mills Ltd (1936) A.C. 85 at 103: "It is, however, essential in English law that the duty should be established: the mere fact that a man is injured by another's act gives in itself no cause of action: if the act is deliberate, the party injured will have no claim in law even though the irijury is intentional, so long as the other party is merely exercising a legal right: if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists." (My emphasis) The same point was made by du Parcq LJ in Deyong v. Shenburn (1946) 1 K.B. 227 at 233: "There has to be a breach of a duty which 0 the law recognises, and to ascertain what the law recognises regard must be had to the decisions of the courts. There has never been a decision that a master must, merely because 0 of the relationship which exists between master and servant, take reasonable care for the safety of his servant's belongings in the sense that he must take steps to ensure, so far as he can, that no wicked person shall have an opportunity of stealing the servant's goods." Whether or not that factual statement is still good law need not be considered here. What all of those statements clearly establish, in my view, is that there must be a duty situation 0 recognised by the common law existing between the parties before a negligent misstatement causing physical or other injury can give rise to a cause of action. Finally, on this point 0 reference should be made to a passage in the judgment of the High Court in San Sebastian Pty Ltd v. The Minister (1986) 162 C.L.R. 341 at 354: "However, the correct view is that, just as liability for negligent misstatement is but an instance of liability for negligent acts and omissions generally, so the treatment of the duty of care in the context of misstatements is but an instance of the application of the principles governing the duty of care in negligence generally. The special complications which arise in connexion with the imposition of a duty of care on the author of a statement can only be unravelled in a variety of factual situations. -- 13 of 17 -- 13 The critical question here is whether or not the relationship between the plaintiff and the first and/or second defendant as pleaded gives rise to a duty situation recognised and enforceable by the common law. Essentially the relationship is that between a member of the Church in question and a Bishop with respect to spiritual matters. So far as the law is concerned membership of any Church is voluntary, and in general the law approaches membership of any Church in the same way that it treats membership of any voluntary association (cf. Macqueen v. Frackelton /'\ \,/) (1909) St. R. Qd. 89 and (1909) 8 CLR 673, Wylde v. Attorney-General for New South Wales (1948) 78 CLR 224 and Scandrett v. Dowling (1992) 27 NSWLR 483). Generally (') speaking I agree with the summation of the position made by Priestley JA (with whom Hope "'--- o A -JA agreed) in Scandrett at 513 - he was speaking there of the Anglican Church in New South Wales, but the position in law can be no different so far as the Roman Catholic Church is concerned: "In my opinion the parties to the consensual compact upon which the plaintiffs rely are bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of State courts of law. The belief of Church members is that they are all one in Christ Jesus; an acceptable way of describing the Church, as I understand it, is that it is constituted by this unity. The consensual compact is thus based on religious, spiritual and mystical ideas, not on common law contract. It has the same effect as a common law contract when matters of Church property become involved with the other matters dealt with by the consensual compact. I do not think that the claims made in this case get out of the area of the consensual compact which does not have the legally binding effect here relied on." There the court was concerned with the power oLan Anglican Bishop in New South Wales to ordain women as priests. It may well be as Mahoney JA noted in Scandrett at 505-6 that some legally binding rights and obligations can arise from the constitution and rules of a particular Church and that in certain circumstances such rights and obligations would warrant -- 14 of 17 -- 14 · . " . enforcement by formal court procedures. However, as his Honour concluded on the facts of the case before him, not every rule will give rise to legally enforceable rights and further the court will frequently, as a matter of discretion, decline to restrain such a breach of the rules of a voluntary association. The position was well summed up by Chubb J in delivering the judgment of the Full Court in Frackelton v. Macqueen at 1909 (St. R. Qd. at 141) "... even assuming that in all which took place prior to the issue of the writ in the first action, the Presbytery and the commission were acting in violation of the Constitution and Rules of the Church, and that the resolution of the 5th February, 1907, was, on that account, quite unjustifiable, the plaintiff, in the first action, neither alleged, nor proved, that this resolution,. or the proceedings taken or proposed to be taken under it by the defendants to the first action, had resulted, or necessarily, or even probably, would result, in the infringement of any civil right, for the protection or preservation of which he was seeking the interference of this Court." Finally whilst dealing with the relevant law it is worth noting some passages in the judgment of Dixon J in Wylde. That case was of course concerned with the question whether or not the Church was breaching trust obligations with respect to property - the Church ~ , . o buildings. The contention was that because of alleged departures from prescribed rites and ceremonies there was a breach of trust by the relevant clergy. To the extent that the court 0 had to determine whether or not there was a breach of trust all members of the court were forced to consider matters of doctrine and ritual. But relevantly for present purposes Dixon J Cj\ said at 289-90: "In my opinion this decree goes beyond and outside the administration of the charitable trusts and undertakes the completely different function of determining questions of ritual and ecclesiastical practice, of correcting the Bishop for failure or supposed failure to observe the liturgy of the Church and of enforcing its observance in the future. In England such a function belonged to the ecclesiastical tribunals and depended upon ecclesiastical law. It did not belong to the Court of Chancery. ... The transition of the Church to an institution not established by law did not in my opinion mean that the enforcement of the observance of the liturgy, ritual and ceremonies of the Church ceased to be an ecclesiastical matter and came to be a matter concerning the use and application of property, a matter of the administration of public charitable trusts. It meant only that the determination of such -- 15 of 17 -- o (J 15 questions in the manner appointed by the Church now rested upon a consensuar compact imputed to those who submitted to the authority of the Church and not upon ecclesiastical law as part of the positive legal system of the country." The alleged breach of duty in this case clearly relates to a spiritual matter. All the "advice" referred to in the proposed statement of claim is advice on a spiritual matter - intercommunion - and necessarily involves the proper construction of the constitution and rules (Canons) of the Catholic Church. There is clearly no common law duty on a Bishop of the Catholic Church to give advice to a communicant on spiritual matters. If any such duty does exist it is derived from Canon law alone; that is undoubtedly why Canon law is incorporated extensively into the proposed pleading. There is always a temptation to say that there is a general duty not to give negligent advice which foreseeably could cause psychiatric injury to the recipient. But as noted above the law still requires the existence of a duty situation before the tort is established. If one were to hold that there was a relevant duty situation recognised by the common law in circumstances such as exist here, one would also have to recognise that such duty situation \ carried wider implications. If, as the plaintiff asserts here in the proposed statement of claim, the duty encompassed an obligation to direct the plaintiff to particular Canons and a continuing obligation to offer further explanation and clarification of advice previously given, it must follow that the courts would have jurisdiction to enforce those obligations and to grant relief where there was a threatened breach. That would be tantamount to the secular courts enforcing Canon law. In the circumstances as outlined in the proposed statement of claim I am of the view that there was no relevant duty of care owed by either defendant which was recognisable and enforceable at common law. -- 16 of 17 -- 16 It follows that there is no viable cause of action for damages for negligent misstatement as pleaded. The proposed pleading is vexatious and scandalous and would tend to embarrass and delay any fair trial of relevant common law issues which may arise for determination between the parties. In all the circumstances it is appropriate at this stage to refuse leave to deliver the proposed statement of claim which is exhibit "F" to the affidavit of PJ Marrinan filed 1 November 1996. The plaintiff would still have the opportunity of attempting to draft a viable statement of claim and, if the defendants did not consent to its delivery, issues raised . 0 thereby could be determined on a similar application to this. The summons Of 1 November 1996 will be dismissed with costs. 0, o -- 17 of 17 --