Decision of High Court

The following is the decision of the New Zealand High Court to strike out Alison's statement of claim.




Hearing: 13 November 2002

Counsel: C S Withnall QC for Plaintiff S J Katz and R J Mahon for Defendant

Judgment: 10 March 2003



[1] On 28 March 2000, the plaintiff’s enrolment as a member of the Baha'i Faith was terminated by a letter from the defendant, the body responsible for the administration of the faith in New Zealand. She has sought judicial review, alleging that the decision was unlawful in two respects. First, it is alleged that the defendant acted under dictation or instruction from the Baha'i international body known as the Universal House of Justice. Secondly, it is said that the defendant breached the rules of natural justice by failing to give her due notice of the alleged concerns so that she was deprived of an opportunity to be heard.

[2] The plaintiff seeks only a declaration that the purported decision of the defendant is unlawful and of no effect and a consequential order quashing the decision. She does not seek reinstatement or an order requiring the defendant to reconsider.

[3] The defendant has applied to strike out the plaintiff’s claim under rr 186 and 477 of the High Court Rules on the following broad grounds:

[a] The issues are not amenable to judicial review.

[b] The statement of claim discloses no reasonable cause of action.

[c] Abuse of process.

[d] Futility.

Background facts

[4] The Baha'i Faith is an independent world religion founded over 150 years ago in Iran. Its origins can be traced back to 1844 to the teachings of an Iranian figure named the Bab. The tenets of the faith are to be found in the sacred writings of Baha'u'llah who is regarded as the founder of the faith; Abdu'l-Baha who is regarded as an interpreter and exemplar of the faith; and Shoghi Effendi who is known as the guardian of the faith. Baha'u'llah alone is said to have expounded the principles of the faith in over 100 volumes of text.

[5] Undisputed affidavit evidence before the Court states that there are more than five million members of the Baha'i Faith spread over some 205 countries. The administration of the faith is undertaken by an international body known as the Universal House of Justice located in Israel which is said to be the supreme body of the faith. At national level there are bodies known as National Spiritual Assemblies (NSA's) and Local Spiritual Assemblies. The relationship between the Universal House of Justice (UHJ) and the defendant NSA is critical to the disposal of this application. That is because the defendant accepts that it removed the plaintiff's name from the register of enrolments for the Baha'i Faith in New Zealand at the request of, and under instruction from, the UHJ. At a later stage of this decision, I will review the relevant documentation and evidence about the structures and relationships of these bodies.

[6] The plaintiff became registered as a member of the Baha'i community on 24 March 1980. Becoming a member of the Baha'i community involves two steps. First, an individual declares his or her faith in Baha'u'llah, and secondly, the declaration must be accepted by the Baha'i institutions. The registration form completed and signed by the plaintiff contained an acknowledgement that she accepted the qualifications of faith defined on the reverse side of the form. That form contained the following declaration by the plaintiff.

I declare I have -
"Full recognition of the station of the Bab as Forerunner, of Baha'u'llah as Author and of 'Abdu'l-Baha as True Exemplar of the Baha'i religion; unreserved acceptance of, and submission to, whatsoever has been revealed by their Pen; loyal and steadfast adherence to every clause of Abdu’l-Baha's sacred Will; and close association with the spirit as well as the form of the Baha'i Administration throughout the world".

[7] Later, differences arose between the plaintiff and the Baha'i community in New Zealand. Concerns were raised as to whether the plaintiff was faithfully carrying out the religion according to its tenets. This included concerns as to whether the plaintiff accepted the supreme authority of the UHJ. It is unnecessary for me to make any determination as to the validity of these concerns because the plaintiff’s case is based on the narrow grounds already mentioned. I do no more than record the nature of the concerns alleged by the defendant.

[8] By a letter to the UHJ on 1 November 1999, the defendant outlined its concerns about the plaintiff and sought the UHJ's guidance. In a reply dated 21 November 1999, the UHJ recommended that representatives of the faith in New Zealand should meet with the plaintiff to discuss the issues and requested that the defendant then provide the UHJ with a full report. While one meeting was held in February 2000, a further meeting recommended by the UHJ had not taken place by 12 March 2000 when the UHJ wrote to the defendant advising that it had taken a decision to remove the plaintiff’s name from the membership rolls. The letter of 12 March 2000 outlined the reasons why the decision had been taken by the UHJ and requested the defendant's assistance in implementing it. A draft letter was enclosed with a request that the defendant should complete it on its letterhead and send it to the plaintiff.

[9] On 28 March 2000 the defendant then wrote to the plaintiff in the following terms:

Dear Mrs Marshall

The Universal House of Justice has advised us of its conclusion that, on the basis of an established pattern of statements by you and behaviour and attitude on your part over the past two or three years, you cannot properly be considered as meeting the requirements of membership of the Baha'i community. Accordingly, we have removed your name from our membership rolls and have informed the Baha'i institutions concerned.


[Signature and Name]

[10] Despite on-going correspondence thereafter, no resolution of the issue was achieved. The plaintiff made a complaint under the Privacy Act but did not issue her application for review until 3 April 2002.

Strike out principles

[11] There is no dispute about the principles to be applied in determining the present application. The application proceeds on the assumption that the facts pleaded in the statement of claim are true and the claim will not be struck out unless the cause of action relied upon is so clearly untenable that it cannot possibly succeed. Where there are undisputed facts, those facts may be taken into account in determining the application. The principles to be applied are no different in an application for judicial review than in ordinary proceedings: Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 63 (CA).

Was the decision to remove the plaintiff’s name from the membership rolls the exercise of a statutory power?

[12] Section 3 of the Judicature Amendment Act 1972 defines the expressions "statutory power" and "statutory power of decision" as follows:

Statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate-
(a) to make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or
(b) to exercise a statutory power of decision; or
(c) to require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or
(e) to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person:

Statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting-
(a) The rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b) The eligibility of any person to receive, or to continue to receive, a benefit or licence, whether he is legally entitled to it or not.

[13] In order to determine this question, it is necessary to examine the source and nature of the powers exercised. The documents relating to the constitution of the UHJ and the defendant NSA are unusual to the extent that they consist of a Declaration of Trust coupled with "By-Laws" which, at least in terms of New Zealand law and practice, is an unusual combination.

[14] Dealing first with the UHJ, the relevant Declaration of Trust states that the UHJ is "the Head of the Faith and its supreme institution, to which all must turn...... The declaration refers to the powers and duties of the UHJ as including responsibility to administer the affairs of the Baha'i community throughout the world and to adjudicate disputes falling within its purview. The By-Laws of the UHJ contain the following clause in the preamble:

The Universal House of Justice is the supreme institution of an Administrative Order whose salient features, whose authority and whose principles of operation are clearly enunciated in the Sacred Writings of the Baha'i Faith and their authorized interpretations. This Administrative Order consists, on the one hand, of a series of elected councils, universals, secondary and local, in which are vested legislative, executive and judicial powers over the Baha'i community and, on the other, of eminent and devoted believers appointed for the specific purposes of protecting and propagating the Faith of Baha'u'llah under the guidance of the Head of that Faith.

[15] Clause 1 of the UHJ By-Laws provides:

The Baha'i community shall consist of all persons recognised by the Universal House of Justice as possessing the qualifications of Baha'i faith and practice.
1. In order to be eligible to vote and hold elective office, a Baha'i must have attained the age of twenty-one years.
2. The rights, privileges and duties of individual Baha'i are as set forth in the Writings of Baha'u'llah, 'Abdu'l-Baha and Shoghi Effendi and as laid down by the Universal House of Justice.

[16] Clause I of the UHJ By-Laws relates to NSA's. Clauses 1 and 2 of that By-Law relevantly provide:

1. The general powers and duties of the National Spiritual Assembly are as set forth in the Writings of Baha'u'llah and Shoghi Effendi and as laid down by the Universal House of Justice.
2. The National Spiritual Assembly shall have exclusive jurisdiction and authority over all the activities and affairs of the Baha'i Faith throughout its area.

[17] Despite apparently conferring exclusive jurisdiction on NSA's within the area of that NSA, By-Laws VII and VIII provide substantial rights of review and appeal in respect of the NSA's decisions by or to the UHJ. As well, under By-Law VII the UHJ has the right to intervene in any matter in which a Spiritual Assembly is failing to take action or reach a decision. In that event, the UHJ has a discretion to require that action be taken by the NSA or to take the action itself. Here, the defendant NSA was not reaching a decision because it deferred to the higher authority of the UHJ.

[18] In New Zealand, the defendant NSA is registered as a charitable trust under the Charitable Trusts Act 1957. The Trust Deed contains certain declarations of trust, as well as By-Laws. The principal trust purpose as stated in Article II of the Trust Deed follows:

Article II

Sharing the ideals and assisting the efforts of our fellow Baha'is to establish, uphold and promote the spiritual, educational and humanitarian teachings of human brotherhood, radiant faith, exalted character and selfless love revealed in the lives and utterances of all the Prophets and Messengers of God, Founders of the world’s revealed religions - and given renewed created energy and universal application to the conditions of this age in the life and utterances of Baha'u'llah - we declare the purposes and objects of this Trust to be to administer the affairs of the Cause of Baha'u'llah for the benefit of the Baha'is of [country] according to the principles of Baha'i affiliation and administration created and established by Baha'u'llah, defined and explained by 'Abdu'l-Baha, interpreted and amplified by Shoghi Effendi, and supplemented and applied by the Universal House of Justice.

[19] Article IV of the Declaration of Trust provides for the making of By-Laws and also acknowledges the overriding power of the UHJ:

Article IV

The Trustees, i.e. the National Spiritual Assembly, shall adopt for the conduct of the affairs entrusted to them under this Declaration of Trust, such by-laws, rules of procedure or regulations as are required to define and carry on its own administrative functions and those of the several local and other elements composing the body of the Baha'is of [country] not inconsistent with the terms of this instrument and all in accordance with the instructions and enactments in the Universal House of Justice.

[20] Article 1 of the By-Laws refers to the NSA having exclusive jurisdiction and authority over all the activities and affairs of the Baha'i Cause throughout New Zealand and the NSA is also charged with the scrutiny of all membership rolls. The NSA is also given the right of final decision in all cases where the qualification of an individual for continued voting rights and membership [in] the Baha'i body is in question. However, that authority is clearly qualified by Article IX of the By-Laws which provides:

Article IX

Where the National Spiritual Assembly has been given in these By-laws exclusive and final jurisdiction, and paramount executive authority, in all matters pertaining to the activities and affairs of the Baha'i's Cause in [country] it is understood that any decision made or action taken upon such matters shall be subject in every instance to ultimate review and approval by the Universal House of Justice.

[21] Finally, Article II of the NSA By-Laws provides that the trust is established for the benefit of the Baha'is of New Zealand who "shall consist of all persons of age 15 years or over resident in New Zealand who are accepted by the National Spiritual Assembly as possessing the qualifications of Baha'i Faith and practice required...".

[22] This provision may be contrasted with clause 1 of the UHJ By-Laws relating to membership which provides that members of the Baha'i community shall consist of all persons recognised by the UHJ as possessing the qualifications of Baha'i faith and practice. However, I am satisfied that the differences in the membership provisions reflect the overriding authority of the UHJ as the international body responsible for the administration of the Baha'i Faith and community worldwide.

[23] Ms Katz submitted that the constitutional documents of the UHJ and the defendant NSA did not give rise to any legally enforceable rights and duties at the suit of the plaintiff or any other member of the Baha'i Faith. She submitted that the source of the powers vested in the UHJ and the defendant were essentially spiritual in nature. She also contended that they did not derive from statute, nor from any implied contract between the members such as would arise in the case of an incorporated society: Lee v Showmans Guild of Great Britain [1952] 2 QB 329. Ms Katz also emphasised the clear distinction between membership of the Baha'i Faith as a body and membership of the NSA. Plainly, by virtue of her enrolment, the plaintiff becomes a member of the Baha'i Faith or community but does not become a member of the defendant. That distinction was recognised in another context by the Court of Appeal in Misa v Congregational Christian Church of Samoa (Wainuiomata) Trust Board [1984] 2 NZLR 461, 463-464.

[24] No doubt, the defendant NSA was incorporated as a charitable trust to provide a convenient vehicle for the Baha'i community to hold property, to receive trust funds, and to undertake other activities which require it to enter into contracts and otherwise perform in the manner of a separate legal entity. By contrast, the Baha'i Faith or community is a separate unincorporated group of individuals who have been accepted for membership in the Faith. I accept that individual members of the Baha'i Faith such as the plaintiff do not have a contractual relationship with the defendant NSA, nor with the UHJ.

[25] However, that is not the end of the matter. The definitions of "statutory power" and "statutory power of decision" under the Judicature Amendment Act are widely drawn and are not dependent upon, for example, a contractual or other similar legal relationship with the defendant. It is sufficient if the body in question is exercising powers conferred upon it under its instrument of incorporation whether they may be rules or By-Laws, in order to make a decision deciding, prescribing, or affecting, the rights or privileges of any person.

[26] Here, I am satisfied it is clearly arguable that the power to remove the plaintiff from registration as a member of the Baha'i community was, if exercised by the defendant, the exercise of a statutory power of decision as defined by s3. The decision undoubtedly affected the plaintiff’s rights in relation to membership of the Baha'i faith and also affected her right to vote, for example, in the election of members for the National Assembly contemplated under the Deed of Trust.

Did the defendant exercise a statutory power of decision?

[27] It is at this point that the plaintiff’s claim reaches a stumbling block which I view as insurmountable. The defendant accepts that it acted at the request of and under instructions from the UHJ in removing the plaintiff from the membership rolls. It did not purport to make any decision itself. Rather, it considered itself to be under a duty to carry out the instructions of the UHJ as the supreme body responsible for the administration of the Baha'i Faith. In doing so, I am satisfied on the basis of the constitutional documents analysed that the defendant was right to conclude that it was its duty to carry out the will of the UHJ. I was referred, in addition, to portions of the Sacred Texts of the Baha'i Faith which support the proposition that the UHJ is regarded as the supreme body in such matters. However, it is unnecessary for me to express any view in those respects given the clear conclusions which may be drawn from the constitutional documents themselves.

[28] I conclude that the plaintiff’s claim must fail at this point. It has not been demonstrated that the defendant made any decision capable of judicial review. Rather, the decision was made by the UHJ which is not a party to this proceeding. The defendant's role was simply to implement or execute the decision already taken by the UHJ. It was bound to do so in terms of its constitution.

[29] Mr Withnall QC for the plaintiff placed particular reliance on the unreported decision of Thorp J in Presbyterian Church Property Trustees Ltd v Fuimaono (A. 1595/85, 16 October 1986). But that was a case where the Church's General Assembly had improperly delegated an inquiry to a committee. It was held that the General Assembly had simply adopted the committee's recommendations and had not informed itself of the relevant evidence. The General Assembly's decision to sever ties with one of its ministers with consequential adverse economic and proprietary effects was therefore invalid.

[30] The Fuimaono case is distinguishable from the present on the basis that the defendant NSA was simply carrying out its constitutional duty to implement a decision made by the UHJ, a non-party to this proceeding. The defendant NSA made no decision of its own which is capable of judicial review.

The justiciability of essentially spiritual or religious issues

[31] Ms Katz made comprehensive submissions in an endeavour to persuade me that the matters at issue were non-justiciable as being wholly or mainly spiritual or religious issues in which state Courts should not intervene. Ms Katz reviewed authorities in New Zealand as well as a number of overseas jurisdictions. It is unnecessary for me to examine all the authorities relied upon. They support the proposition that the Courts have traditionally shown a reluctance to intervene where purely spiritual or religious issues are at stake. Such matters are best left to the determination of the institutions of the church or other religious body in question. However, the authorities also show the Courts have been prepared to intervene where civil, economic, or proprietary rights are alleged to have been infringed.

[32] In New Zealand, I need only refer to the recent decision of the Court of Appeal Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 where the Court was considering whether a Minister of the Methodist Church was an employee of the Church. At 523, the Court stated:

Clearly, and reflecting the separation of church and state, Courts must be reluctant to determine what are at heart ecclesiastical disputes where matters of faith or doctrine are at issue. But the Courts will intervene where civil or property rights are involved and can be expected to analyse carefully any argument that conventional incidents of a recognised relationship such as work do not give rise to contractual rights.

[33] The reluctance of New Zealand Courts to intervene in ecclesiastical matters was also emphasised in the earlier decision of Beattie J in Gregory v Bishop of Waiapu [1975] 1 NZLR 705, 708.

[34] Similar sentiments have been emphasised in overseas authorities, including R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1993] 2 All ER 249; the Canadian decisions in Ukrainian Greek Orthodox Church v Trustees of Ukrainian Greek Orthodox Cathedral (1939) 2 DLR 495 and Lakeside Colony of Hutterian Brethren et al v Hofer et al (1992) 97 DLR 4, 17-20; and in the recent decision of the High Court of Australia in Ermogonous v Greek Orthodox Community of SA Inc (2002) 187 ALR 92,104 and 113.

[35] Here, there is no suggestion that the plaintiff’s economic or proprietary rights have been affected. To the extent that her rights may have been unlawfully infringed, they relate to her right of membership of the Baha'i Faith and the voting rights in relation to the National Assembly. These rights are undoubtedly important to the plaintiff but according to the authorities, they are not generally given the same weight as a potential infringement of economic or proprietary rights.

[36] I accept Ms Katz's submission that the plaintiff’s involvement in the Baha'i Faith is essentially a voluntary or consensual one. However, that is true of membership of any voluntary organisation and I would not rule out the possibility of judicial review on that ground alone. Some care needs to be taken with the English authorities such as the Wachmann case which have held this aspect of the matter to be important in order to establish jurisdiction to review. Those decisions need to be considered in the light of the broad definitions of statutory power in the New Zealand legislation.

[37] I accept the submission made by Ms Katz that if the determination of the matters at issue were to require an examination and decision about aspects of the Baha'i Faith and beliefs, that would be a factor disinclining the Court to intervene. However, as I see the matter at present, it would not strictly be necessary for the Court to undertake such an examination, given the constitutional documents which plainly state the supreme authority of the UHJ in the administrative order of the faith. I acknowledge, however, that if, as clause I of the UHJ By-Laws states, the rights, privileges, and duties of individual Baha'i are as set out in the sacred writings of the faith, then the issues could rapidly become non-justiciable.

[38] Under this heading, I conclude that the absence of prejudice to economic or proprietary rights suggests that the Court might well be reluctant to intervene in a case such as the present but I would not rule out the claim on that ground alone at this stage.

The exercise of discretion

[39] However, I am satisfied that there is another important ground upon which the plaintiff’s claim should be dismissed as untenable. There is no doubt, according to the relevant constitutional documents, that a right of appeal or review to the UHJ exists and yet has not been exercised by the plaintiff. Indeed, as already indicated, she has confirmed (after I allowed time for her counsel to obtain further instructions) that she does not seek reinstatement or a reconsideration of her case and will not exercise the rights of review or appeal which are clearly available.

[40] I realise that the existence of a right of appeal does not preclude the Court from granting relief in an appropriate case: s 4(1) Judicature Amendment Act 1972. I also appreciate that the Court, on an application to strike out a pleading, will be cautious in dismissing a claim purely on the basis that the Court will exercise its discretion against the grant of relief, assuming valid grounds for review were established. But, in this case I have concluded that a Court would inevitably exercise its discretion against the plaintiff. First, the rights in question are clearly provided for by the constitutional documents produced. Secondly, it is clear on the undisputed evidence available that the UHJ is ready, willing, and able to entertain a review or appeal. Thirdly, given the voluntary nature of the organisation, the ecclesiastical nature of the issues, and a marginal case on justiciability, the Court would obviously be reluctant to intervene given the availability of the procedures involved. Fourthly, and most importantly, the Courts will not deal with merely academic questions and will not exercise its discretion in a plaintiff’s favour unless the declaratory relief may be of some utility: Finnegan v NZRFU [1985] 2 NZLR 190 (CA) and Turner and Anor v Pickering and Ors [1976] 1 NZLR 129,141.

[41] The plaintiff has submitted on this last aspect of the case that it would be an important vindication of the plaintiff’s position if there were a declaration that the defendant's actions were unlawful and in breach of natural justice. That would be so, it was submitted, even though the proceedings could not result in her restoration to the rolls. In support, the plaintiff’s counsel relied upon the decision of Panckhurst J in Franks v The Waikato Ethnic Council Inc and Ors (High Court, Hamilton, CP.1 1/01, 6 March 2002). There, His Honour made a declaration that the disputed decision was unlawful for breach of natural justice, even though the plaintiff accepted it was too late for her to be reinstated.

[42] However, I am satisfied that this decision is distinguishable on the grounds that the defendant in that case admitted a breach of natural justice and that the declaration was part of an agreed solution to the proceedings. As well, it was acknowledged to be too late for the plaintiff to be reinstated, unlike the present case. Here the issue is academic in the sense that the Court will not determine the merits of the real issue between the parties and reinstatement is not sought.


[43] For the reasons stated, I am satisfied that the plaintiff’s claim cannot succeed and it is appropriate for it to be struck out. Accordingly, there will be an order striking out the proceeding in its entirety.