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Report of the Judicial Commission May 2004Before the General Assembly of the Presbyterian Church of Aotearoa New Zealand In the Matter of an Appeal Between - The Rev Fitifiti Luatua - Appellant And - The Presbytery of Christchurch - Respondent Decision of the Judicial Commission Download a copy of the Decision [.pdf] Download a copy of the Decision [.doc] This is an appeal from the Decision of the Presbytery of Christchurch, made on 2 October 2003, dissolving the pastoral tie between St George’s/Iona Presbyterian Parish in Christchurch and its minister the Rev Fitifiti Luatua. Background1. The current parish is the result of an amalgamation between the two long standing parishes of St Georges and Iona. The Rev Fitifiti Luatua was inducted as parish minister of the combined parish in May of 2001. The congregation, located at the former St Georges Church comprises 70 - 80 families who have enjoyed a long association with the parish. These have recently been joined by some 15 Samoan families. Approximately 25 - 30 people regularly worship at the Iona Church centre. The parish has limited financial resources. Consequently, ordained ministry is limited to three-quarters time. 2. It is a parish in significant transition. For the first time, it has a minister whose cultural identity is Samoan and whose relationship to the Presbyterian Church of Aotearoa New Zealand (PCANZ) is expressed not only through Presbytery and Assembly but also through the Presbyterian Pacific Islander’s Synod. 3. Early in 2003 some members of the congregation conveyed to the Presbytery of Christchurch their concerns about the activities and conduct of their new minister. These concerns were finally expressed in a letter to Presbytery dated 7 May 2003, signed by 7 elders and 4 members of the Parish, claiming that because of the attitude and actions of the minister the congregation was suffering and the interests of the Presbyterian Church were no longer being served. The letter indicated that unless the matter could be resolved many office bearers intended to resign their office and to reconsider their membership of the parish. 4. At first, the letter of 7 May was treated by Presbytery as a pastoral matter. The contents were shown to Rev Luatua. Efforts were made to provide him with support from outside the parish and full discussions were held with all the parties involved. The Moderator of the Pacific Islander’s Synod was informed of the situation. 5. Attempts to resolve the matter pastorally were unsuccessful. On 9 June the Session Clerk, Isabell Watt, wrote to the Moderator of the Presbytery on behalf of herself and an unspecified number of elders and members. The letter set out the concerns of the complainants in detail. The Special Visitation Committee6. From this point the matter took a more formal course. A special coordinating committee of Presbytery was set up to deal with the matter. After due consideration Presbytery resolved to make a Presbyterial visitation of the Congregation as provided by Reg. 276 of the Book of Order for cases where the Presbytery has reason to believe that the ends of ministry are not being served. 7. Following that resolution Presbytery representatives met with Rev Fitifiti Luatua and his pastoral support person, Rev Lapana Faletolu. Copies of the complaint were given to Rev Luatua and the process to be followed by the Presbytery was explained to him. Presbytery had a similar meeting with the Complainants. 8. Presbytery established a Special Visitation Committee on 19 June 2003. Its members were: 9. The Special Visitation Committee duly carried out its visitation and reported to Presbytery on 2 August 2003. It made a number of recommendations. The first was that the minister and complainants be invited to enter into mediation with a view to determining the potential for their ministry to continue together. The report proposed specific arrangements for mediation. Paragraph 5 of the report was as follows: “A decision by either or both of the parties not to enter mediation, or the irreconcilable breakdown of mediation will most likely cause the Presbytery to determine that it is unable to remedy the state of things otherwise, and may dissolve the pastoral tie and declare the charge vacant”. 10. The report went on to make recommendations as to what steps might be taken by Presbytery to assist the parties in the event that the outcome of mediation was “the potential for continuation of this Ministry”. 11. The report was received and adopted by Presbytery and an attempt was made to deal with the matter by mediation. This attempt failed when the complainants, by letter of 12 August 2003, declined to enter mediation for reasons set out in that letter. The Presbytery Commission12. Rather than proceeding to consider dissolution of the pastoral tie on the failure of the mediation proposal, Presbytery, by its resolution of 9 September 2003, used the power it has under Reg. 460 to appoint a Commission to consider the matter further. It delegated to this Commission all the powers of Presbytery except the ability to dissolve the pastoral tie which is specifically reserved to Presbytery itself by Reg. 461. 13. The Presbytery Commission comprised: The Presbytery Commission Inquiry14. The Presbytery Commission convened for a formal hearing on the 24th and 25th September 2003 at Christchurch. Mrs Olinda Woodroffe appeared as Counsel for Rev Fitifiti Luatua and Mr PF Whiteside was Counsel for the Complainants. 15. After hearing the complainants and witnesses called by them and the Rev Fitifiti Luatua and witnesses called by him the Presbytery Commission concluded that the Minister was “unsuitable for the sphere” in terms of Reg. 276; that the vital interests of the Congregation were being endangered and could not be remedied otherwise than by dissolving the pastoral tie and declaring the charge vacant. The Presbytery Commission made a recommendation to the Presbytery accordingly. The reasons for the recommendation of the Presbytery Commission are fully set out in its report dated 1 October 2003. 16. The report of the Presbytery Commission was made available to members of the Presbytery, to the complainants and to Rev Luatua. The Presbytery then called a meeting to consider the report and invited the complainants and the minister to attend and be heard in relation to it. On 2 October 2003 Presbytery adopted the recommendation of the Presbytery Commission and unanimously resolved “that the pastoral tie between the Rev Fitifiti Luatua and St Georges/Iona Parish be dissolved and the charge be declared vacant”. 17. From this decision the Rev Fitifiti Luatua appealed to the General Assembly. The Appointment of this Judicial Commission.18. To hear these appeals, the General Assembly then appointed a Judicial Commission pursuant to Reg. 460 of the Book of Order comprising: 19. This Judicial Commission has the following terms of reference: a) To identify and cite all relevant parties; 20. Dr Royden Somerville QC of Dunedin was appointed as Advisor as to Procedure in terms of Appendix E – 20 (12) of the Book of Order. Subsequently, because of his unavailability, Dr Somerville was replaced by Mr JL Marshall, a barrister practising in Wellington. Judicial Commission pre-hearing conferences21. The Judicial Commission was duly convened in January 2004. It conducted six pre-hearing conferences with Counsel for the parties and the Advisor as to Procedure. During these conferences certain directions and orders were made by the Commission. 22. At the first pre-hearing conference the Judicial Commission cited the Rev Fitifiti Luatua as Appellant and he was “called to the bar” in the rather antiquated words of Reg. 449. There were two appeals; one against the report of the Presbytery Commission and one against the decision of Presbytery to dissolve the pastoral tie. Reg. 463 provides that, at the hearing of an appeal against the decision of a Commission appointed by an inferior Court, the appointing Court and not the Commission is placed at the bar. The Presbytery of Christchurch was therefore called to the bar. Having regard to Reg. 463 and to the provisions of Reg. 460, under which the Presbytery Commission was appointed, the Judicial Commission directed that it would hear both appeals as a single appeal against the decision of Presbytery. 23. Reg. 444 provides that in the case of an appeal against the decision of a Presbytery to dissolve the pastoral tie “the Presbytery appoints an elder chosen by the congregation from its own session or Parish Council, who may be other than the Presbytery Elder, to represent the congregation before the Assembly.” The Judicial Commission directed Presbytery to make such an appointment and Mr John Miskimmin was duly appointed as the Congregational Representative. During the pre-hearing conferences Counsel for the Appellant requested that the Pacific Islander’s Synod be formally notified of the hearing and be invited to appoint a representative to attend and make a submission if desired. Such an invitation was extended to the Synod. 24. At the pre-hearing conference on 30 January the parties had agreed that pages 1 -273 inclusive of the documents sent up from the Presbytery were to be the documents on appeal. At a pre-hearing conference on 11 March the Judicial Commission directed that if either party wished to have additional documents included, such an application was to be made to the Commission on or before noon on Monday 12 April 2004. 25. Applications to adduce further documents were duly made by both parties and were heard at a pre-hearing conference on 15 April 2004. With one exception, each application was declined for the reasons set out in the Convenor’s minute of that conference. The exception was the second page of a minute dated 30 September 2003 made by Hon Colin Fraser at a pre-hearing conference predating the hearing conducted by the Presbytery Commission. The first page of this minute appeared as document 180 in the bundle of documents agreed for this appeal. The second page appeared to have been omitted in error and leave was therefore given to include it. The Judicial Commission hearing26. The Hearing took place at the Learning Centre, Bishop Julius Hall, Christchurch on 19 April 2004. 27. At the hearing, the Rev Fitifiti Luatua was represented by his lawyer, Mrs Olinda Woodroffe and the Presbytery by its lawyer, Mr Alister Argyle. Mr Miskimmin attended and made a submission on behalf of the Congregation and Mr Hamish Crooks attended as appointed representative of the Pacific Islander’s Synod and made a submission. At the commencement of the hearing Mr Taulapapa Tamati, claiming to represent a significant number of Samoan members of the congregation asked for and was granted leave to address the Commission. 28. At its first pre-hearing conference on 30 January 2004, the Judicial Commission had noted that this appeal is not by way of rehearing of the evidence before the Presbytery Commission but is to review the Presbytery’s decision to dissolve the pastoral tie and declare the charge vacant and to determine whether or not that decision was defective for any of the reasons set out in Reg. 440. It is that regulation that defines the grounds on which an appeal from an inferior Court can be made. 29. After hearing Counsel for the Appellant, Counsel for the Respondent, Mr John Miskimmin as congregational representative, Mr Hamish Crooks for the Pacific Islander’s Synod and Mr Taulapapa Tamati on behalf of some Samoan members of the congregation, the Judicial Commission reserved its decision. The Appeals30. As noted in paragraph 22 of this decision, two appeals have been made. The first and most detailed is against the report of the Presbytery Commission. The second is against the decision of Presbytery. There may be some doubt as to whether a report with recommendation, as opposed to a decision of an inferior Court, can directly be the subject of an appeal. Reg. 438 provides that “a party in a case before an inferior Court is entitled to protest and appeal against any of its decisions…” (emphasis added). For that reason we have directed that the appeals be treated as one appeal, and that against the Presbytery decision. 31. Irrespective, however, of whether or not the Appellant can appeal the Report of the Presbytery Commission, the submissions of the Appellant concerning its report are relevant. Presbytery’s decision to dissolve the pastoral tie was made under Reg. 276 which provides as follows: Ends of Ministry Not Served 32. The Presbytery was bound to make due inquiry. As part of that due inquiry it appointed a Commission, with all the powers of Presbytery except to dissolve the pastoral tie. If there were deficiencies in the conduct or decision of that Presbytery Commission then clearly those deficiencies would go to the question of whether or not Presbytery had made due inquiry or had erred in following a recommendation that was based on unsound premises. All such considerations, however, must be related back to whether or not there are grounds of appeal, in terms of Reg.440, against the decision of Presbytery. The Report of the Presbytery Commission33. Counsel for the appellant made a number of challenges to the report of the Presbytery Commission. Some of these more properly relate to the decision of Presbytery itself and are considered later in this decision. Those that apply to the Presbytery Commission Report, in summary (though not necessarily in order of presentation) were: 1) Counsel for the Appellant did not have all relevant documents at the time of the Prebytery Commission Hearing. 34. We now proceed to deal with each of the above submissions. Counsel did not have relevant documents.35. Before this Commission, the Appellant produced a list of 38 documents, now forming part of the case on appeal, described as either not produced at all to the Presbytery Commission or as not produced in adequate time before its hearing commenced. On being questioned by the Convenor of this Judicial Commission, Counsel for the Appellant was unable to identify which of the documents: 36. In the absence of such identification we are unable to give any weight to this submission. We note that this matter formed part of the discussion at a pre-hearing conference of the Presbytery Commission on 19 September 2003 and was covered in a minute of that conference delivered by Hon Colin Fraser, dated 20 September 2003. It was also dealt with in paragraphs 32 to 36 of the the Presbytery Commission’s Report in which it concluded that there was no material before the Presbytery Commission that was not also available to Counsel. The Presbytery Commission also noted, in respect of Counsel’s assertion that she had been given insufficient time, that she had not applied for an adjournment because of the non disclosure complained of. 37. There was no evidence before us, therefore, that the Presbytery Commission acted on any material not available to Counsel. Accordingly we are not able to find any irregularity in the documentation before the Presbytery Commission that might have affected its recommendation to Presbytery. Conflict of Interest38. This matter was also dealt with by the Presbytery Commission, both in a pre-hearing teleconference minute and in paragraph 21 of its final report. No new information was provided to this Judicial Commission which would in any way indicate that Mr Whiteside, in acting for the Presbytery in a previous matter, had any unfair advantage before that Commission. In the absence of any indication as to any prejudice that might have followed from Mr Whitesides’ appointment, we see no reason to disagree with the Convenor of the Presbytery Commission who said that there was nothing improper in Mr Whiteside appearing as Counsel.. Failure to allow Counsel time to prepare.39. Mrs Woodroffe complains that she had insufficient time to prepare for the Ptresbytery Commission hearing on 22 September 2003. At a pre-hearing conference on 20 September 2003 the Hon Colin Fraser recorded “although Rev Luatua wishes the hearing to proceed as scheduled, the shortness of time for Mrs Woodroffe, who was instructed only recently, to obtain details of the Complainants’ case and prepare for the hearing is causing her some concern. This aspect was discussed and Counsel agreed that witnesses’ briefs of evidence, even if in draft form, would be supplied as soon as possible. Even on the best possible view the timing is tight. The end result, however, is that parties will proceed on the notified date”. 40. On the day of the Presbytery Commission hearing, Counsel appeared and Mrs Woodroffe made no application for an adjournment either then or at any later stage in the proceedings. Under the circumstances this Commission cannot take the matter further and does not find that there was any irregularity on the part of the Presbytery Commission in this respect. Refusal of Cross Examination41. We note that in a letter from the Convenor of the Presbytery Commission to Counsel dated 18 September 2003 the preliminary procedure suggested by the Commission included cross-examination and re-examination. 42. The matter was apparently discussed in the pre-hearing telephone conference on 20 September 2003 as Hon Colin Fraser records in paragraph 5 of his minute of that conference: 43. Mrs Woodroffe drew our attention to Reg. 535 of the Book of Order which provides for cross-examination of witnesses. However, Reg. 535 applies to disciplinary proceedings under Chapter 10. Such proceedings are of an entirely different nature. This was not a disciplinary matter in terms of the Book of Order. The proceedings of the Presbytery Commission were conducted under Reg. 276 which is in the nature of a general inquiry that Presbytery is obliged to make in terms of that regulation. We cannot therefore hold that the agreed absence of cross-examination was a defect in the proceedings of that Commission, especially since, in matters such as this, the absence of cross-examination is not unusual. Collusion44. Counsel for the Appellant, in the pleadings filed, alleged collusion between Hon Colin Fraser, the Presbytery, and Mr PF Whiteside as Counsel for Presbytery. In her submissions before us she retreated somewhat from that position, alleging that there was rather a lack of transparency which excluded the Appellant from information available to Counsel for the Complainants and the Commission. At this hearing, however, no evidence of such collusion was submitted to us and it was inappropriate that such an allegation should have been made. Record of Proceedings45. This was addressed in paragraph 20. of the Report of the Presbytery Commission and in pre-hearing conferences of this Commission on 30 January, 8 March, 11 March and 15 April 2004. Suffice to say that audio tapes of the hearing before the Presbytery Commission were copied and copies were available to all parties and to this Commission. Although the matter was raised in the Appellant’s pleadings, no further reference was made to the matter by either Counsel during the hearing before us. This Commission has nothing further to add to the orders it made during the pre-hearings and holds that there is no irregularity, in this respect, in the proceedings of the Presbytery Commission. Refusal to receive relevant evidence.46. Although this matter was raised in the pleadings by the Appellant, Mrs Woodroffe in her submissions to us did not identify any relevant evidence that the Presbytery Commission refused to receive. Reference to the further particulars of appeal filed by the Appellant indicate that the Appellant was rather more concerned that evidence given on behalf of the Rev Luatua was given an unfair and unreasonable meaning by the Presbytery Commission. We deal with that Commission’s finding of facts later in this decision but can find no evidence that relevant evidence was excluded. Consideration of irrelevant evidence.47. Though contained in the pleadings, this matter also was not adverted to by Mrs Woodroffe in her submissions to us. The further particulars of appeal filed by the Appellant indicate that the evidence considered irrelevant was given by a factory manager, a cultural “expert” and evidence pointing to a refusal of Rev Luatua to attend a funeral service. The complaint was that this evidence was given without the provision of sufficient time to Rev Luatua to respond. It is clear that Presbytery Commission considered the evidence relevant and the mere recital in the Appellant’s pleadings that it was not, is not sufficient to convince us otherwise. We note also that Mrs Woodroffe did not object to the evidence as it was given to the Presbytery Commission or, if she did so, did not apply for an adjournment for her to consider it further. We do not therefore give any weight to this submission. Failure by the Convenor of the Presbytery Commission to properly instruct Lay members48. Communications between the Convenor and other members of a Commission are clearly privileged. The bare assertion that the Commission failed in this respect is not supported by evidence and appears to us to be totally unfounded. Reg. 276 misconstrued.49. The Appellant submits that the Presbytery Commission did not go far enough in finding that Rev Luatua was “unsuitable for the sphere” in terms of Reg. 276. It was also necessary to find, so the argument went, that he was also inefficient, imprudent and that there was remissness of duty. We are unable to accept this submission. The regulation is expressed disjunctively and “unsuitability for the sphere” on the part of the minister, if so found, is sufficient to bring the regulation into play. The Presbytery Commission was of the same view. After a careful review of all the evidence it identified deficiencies in the performance and conduct of the minister that, in the view of the Presbytery Commission, made him unsuitable for the sphere, so bringing the matter within the ambit of Reg. 276. No power to appoint a Commission50. Mrs Woodroffe submitted to us that having held a Presbyterial Visitation of the Congregation in terms of Reg. 276, the Presbytery was not thereafter empowered to appoint a Special Commission to consider the matter further. 51. This submission is untenable. The Commission was appointed under Reg. 460, which, read in conjunction with Reg. 461 clearly contemplates the possible appointment of a Commission where dissolution of the pastoral tie is involved. A Special Presbyterial Visitation is mandatory under Reg. 276, and Reg. 461, which also refers to dissolution of the pastoral tie, defines the jurisdiction of a commission in such cases. We are satisfied that the Presbytery had the additional power to appoint a commission. Mistakes of fact52. Counsel for the Appellant submitted that the Presbytery Commission made a mistake of fact in holding that “the Congregation was suffering” in terms of Reg. 276. The basis of her argument was that the original complainants were acting on their own behalf and had no authority to speak on behalf of the Congregation. On the contrary, she argued, there was direct evidence from a Donna Harrison that indicated that the Complainants were not representing the views of the whole congregation. 53. The Appellant seemed to us to be arguing that it could not be said that the congregation was suffering unless the congregation itself came to that conclusion and authorised representations to Presbytery to be made accordingly. 54. There were factions within the congregation. According to the evidence before the Presbytery Commission, the tensions were so great that a significant number of office bearers were threatening to resign. At paragraph 63 of its Report the Commission records: “There is a complete breakdown in the relationship between the Minister and the Complainants comprising 7 elders and 4 parish members. It was not disputed that the Minister has the support of only 4 of the 18 members of session. There is accordingly a serious breach between the Minister and most of the lay leadership in the Parish.” 55. This evidence was not disputed in the course of the hearing before us. Clearly there were problems of a serious nature. The evidence of deep division was in itself sufficient to justify a finding that the Congregation was suffering. 56. Apart from questioning the finding that the Congregation was suffering, the Appellant argued that the Presbytery Commission wrongly assessed the performance and character of the Appellant. She pointed out that the Special Visitation Committee had referred to “the obvious gifts of ministry of this Minister” and argued that the Presbytery Commission should have given more weight to this assessment and to other findings of the Special Visitation Committee. Counsel quoted rather selectively from the Report of the Special Visitation Committee and ignored its finding that the vital interests of the congregation had been endangered and this was at least in part the fault of the Minister. 57. When it comes to the findings of fact by the Presbytery Commission, this Judicial Commission would require the most compelling reasons for overturning any such finding. That Commission had the advantage of hearing the parties at first hand and of listening to witnesses in person. As a judicial commission we do not have that advantage. The Presbytery Commission was highly experienced. It was headed by a retired and respected High Court Judge. He was supported by two Presbyterian Ministers, also of considerable experience, one of whom was the Samoan-appointed representative of the Pacific Islander’s Synod. In the absence of a successful challenge to any finding of fact then this Commission is bound to accept its findings. No such successful challenge has been made in this case. 58. In summary we hold that the Appellant has not established grounds for challenging the Report of the Presbytery Commission or its recommendation to the Presbytery. The Decision of Presbytery.59. We turn now to the Appeal as it relates to the decision of Presbytery, made on 2 October 2003, dissolving the pastoral tie and declaring the charge vacant. 60. The grounds for an appeal against the decision of an inferior Court in terms of the Book of Order are set out in Reg.440 which provides: 61. Of these grounds the appellant alleges the following: Mistake62. The Appellant first submits that the Presbytery erred in that it proceeded to dissolve the pastoral tie without taking other steps to remedy the situation. This submission was supported by the Pacific Islander’s Synod in submissions made to us by Mr Hamish Crooks. The Synod contended that Presbytery ought to have explored other options that may have achieved a satisfactory conclusion without invoking the dissolution of the pastoral tie. Both the Appellant and the Synod referred to Reg. 487 of the Book of Order in support of their argument. That regulation requires a Court, before initiating any formal disciplinary process, to consider any appropriate means of reconciliation having regard to Matthew 18, 15- 17 and also mediation. 63. While Reg. 487 (as we have noted above) is not technically applicable to this case, since a disciplinary matter is not involved, this submission has caused us some concern. Faced with the reports of the Special Visitation Committee and the Presbytery Commission, what other steps might Presbytery have taken to remedy the situation without resorting to its power to dissolve the pastoral tie? 64. Mediation was not an option at that stage. Mediation had been strongly advocated by the Presbytery Visitation Committee and had been offered also by the Presbytery Commission at the conclusion of the first day of the hearings before it. Mediation is a process that is entirely dependent upon the willing participation of those involved. Under the provisions of the Book of Order neither party can be forced to participate in mediation. For reasons that seemed valid to them, the Complainants had considered but declined mediation on both occasions on which it was offered. 65. But were there other steps that might have been taken? The Synod drew our attention to the understanding, adopted by the General Assembly of 2002 and contained in Appendix E-21 of the Book of Order. While these regulations are still subject to the Barrier Act they nevertheless lay the basis for co-operation and collaboration between the Synod on the one hand and Presbyteries and all other groups within the Presbyterian Church of Aotearoa New Zealand on the other. The Synod feels that further consultation with it may have worked a different result. At the same time the Synod was careful to say that its representative on the Presbytery Commission “still feels that the Commission made the right decision from a pastoral care view in that both the Parish and the Minister were better off to dissolve and go their own way”. As a Commission, we have a great deal of sympathy with the Synod’s point of view. It is easy to share the regret of the Synod, the Appellant and no doubt of Presbytery that mediation was declined. Some good may well have come of it even if it meant a less damaging parting of the ways. 66. As a judicial commission , however , we do not have the luxury of such regrets. We are faced with reviewing the decision of Presbytery in terms of the requirements of Reg. 440. Did such failure, if it existed, amount to a mistake in terms of that regulation? 67. Apart from the suggestion of Synod that further consultation may well have helped, it was not clear from the submissions made to us what other options might have been explored if more time had been taken. 68. From the Presbytery’s point of view it might be said that it had made every endeavour to include the Synod all the way through. It had informed the Synod of the situation at the very first sign of trouble. It had invited the Synod to be part of the Special Visitation Committee and the Moderator and Clerk of the Synod both served on that Committee and participated in its unanimous recommendations. It had asked the Synod to appoint a representative to be part of the Presbytery Commission and this was done. That Synod member also agreed with the findings of the Presbytery Commission, as Mr Crooks has confirmed to us in his submissions. Presbytery may well have felt entitled to believe that Synod, by its participation to that point through its representatives on both the Special Visitation Committee and the Presbytery Commission, fully supported the proposal to dissolve the pastoral tie. 69. In terms of the parties to the Appeal, the Appellant has not submitted that the Presbytery acted with undue haste in terms of regulation 440. There was indeed a short interval between the publication of the Presbytery Commission’s report on 1 October and the Presbytery’s decision on 2 October. It is clear from the record, however, that although the time was very short, a submission of undue haste could not succeed. The parties themselves were anxious to proceed. The process to be followed from the delivery of the Presbytery Commission’s decision was carefully explained to all parties and the Appellant was given the opportunity on several occasions to ask for a delay if he so chose. He wanted to proceed and with his agreement, the Presbytery proceeded to make its decision. 70. For that reason this Commission is not prepared to find that the Presbytery acted with undue haste. Nor are we prepared to hold that its failure to explore other remedies at that point was a mistake in terms of its obligations under regulation 276. In the absence of any suggestion from either the Synod or the Appellant as to what other steps might have been taken we are unable to say that further consultation might have achieved a different result. Refusal to give guidance71. The Appellant then submitted to us that the guidance offered to the Appellant was inferior to the guidance offered to the Presbytery. We could find no evidence of this on the record. The appellant was offered a support person at the earliest sign of trouble. At the critical hearing before the Presbytery Commission he had secured and was represented by his own legal counsel. In any event, we note that a ground of appeal is the refusal of reasonable guidance and there is no evidence that the Appellant asked for and was refused such guidance. Injustice72. In the pleadings the Appellant included an allegation that there was injustice in the decision of Presbytery in as much as it was “materially influenced by the wrong facts”. Mrs Woodroffe did not specifically advance this in her submissions before us but we take it to arise from her contention that the Presbytery Commission made wrong findings of fact. As we have already found that there is no evidence that the Presbytery Commission erred in this respect, it follows that this submission fails also. The Decision of Presbytery was racially motivated.73. The Commission is pleased to record that no submission was made to us that the actions of the Complainants or of the Special Visitation Committee or of the Presbytery Commission or of the Presbytery itself were motivated by racial considerations. Such allegations were in fact made to the Presbytery Commission but happily were not repeated here. The Presbytery Commission found that while there had been misunderstandings and mistakes on both sides due to cultural differences in the Parish it did not think that this was the primary cause of the problems. We do not need, therefore to consider this matter further. We mention it here only because there has been extensive media reporting in relation to this matter. Regrettably some of this reporting has been unbalanced and apparently made without adequate investigation. Conclusion.74. We therefore conclude that the Appellant has not established grounds for appeal against the decision of the Presbytery and the Report and recommendation of the Special Commission of Presbytery and the appeals as filed are therefore dismissed. Ancillary mattersName Suppression75. In pre-hearing conferences this Commission made orders suppressing the names of the original complainants. At the commencement of the hearing before us, on the application of the Respondent for permanent suppression orders, the Commission ordered that suppression be continued until the delivery of this decision indicating that it would give a final ruling then. Having reviewed the matter and the grounds on which the original orders were made the Commission makes no further orders in this respect. Recommendation76. The Commission recommends that, in implementing its decision to dissolve the pastoral tie, the Presbytery of Christchurch consults formally with the Pacific Islander’s Synod, pursuant to the mutual obligations of both Presbytery and Synod contained in Appendix E-21 of the Book of Order, with a view to providing appropriate support and guidance to the Rev Fitifiti Luatua and the predominantly Samoan group that has supported him during the events that have preceded this decision. This recommendation forms no part of the decision of the Commission and is not to be taken as in any way modifying or impacting upon it. |
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