JUST ENOUGH RELIGION TO MAKE US HATE AN HISTORICO-LEGAL STUDY OF

THE RED BOOK CASE

by

DAVID GALBRAITH, BA., LL.M. (Syd.)

A THESIS SUBMITTED PURSUANT TO REQUIREMENTS

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

WITHIN THE UNIVERSITY OF NEW SOUTH WALES

OCTOBER, 1998

PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALESThesis/Project Report Sheet

Surname or Family name: GALBRAITHFirst name: DAVID ' Other name/s: FAIRLEYAbbreviation for degree as given in the University calendar: P h . D .School: LAW Faculty: LAW

Tltle: JUST ENOUGH RELIGION TO MAKE US HATE AN H IST O FIC O LEGALSTUDY OF THE FED BOOK CASE

Abstract 350 words maximum: (PLEASE TYPE)

ABSTR ACT

The Red Book case, a relator action brought against A r n o ld Lomas Wylde, then

Anglican Bishop of Bathurst, had its origin in a service book, The Holy Eucharist, which

Wylde introduced in Advent, 1942. The informant's case was that use of the Red Book

constituted a breach of the charitable trusts upon which church property was held in the

Diocese. Although the case arose in Bathurst, it involved the Church elsewhere in

Australia, and in England.

As an historical study the thesis examines for the Fust time what occurred between

the book's compilation and the case's final resolution six years later. In this it draws upon

previously unconsidered primary sources, and also the contemporary religious and secular

press. The thesis places the case in the context of- Australian Anglican history down to

World War II, and the period since it was decided concluding that the case fell within the

main themes of that history, and should not be seen as a watershed or turning point.

Attention is paid to the movement for a constitution for the Australian Church. The

conclusion that the case was not of great significance in this connexion involves a re­

assessment of some previously expressed views.

As a legal study the thesis analyzes and assesses differences of opinion between

Roper, C J . in Eq., Latham, C J . and Williams, J. on the one hand and Rich, J. and Dixon, J.

on the other, and argues that the views of Rich, J. and Dixon, J. should be preferred. The

thesis examines the case's legal importance. The peculiar legal environment in which it

was fought, the narrow legal questions it decided, and the fact that the fractured nature of

the Australian Church meant that such a case was not likely to arise elsewhere lead to the

conclusion that the case is not of great legal significance. Its similarities with nineteenth

century English ritual cases are noted, and the point made that those cases and the Red

Book case were futile in achieving their promoters' aims.

L.J.CU LLEN B O O K B IN D P R r

CONTENTS

Page

C an dida te's C ertifica te iii

A ckn ow ledgm en ts iv

G lo ssa ry o f S e lec ted Term s v iii

A b stra c t x i

Chapter! In troduction

Chapter II The Setting 26

Chapter III F rom C om pila tion to L itiga tion 60

Chapter IV The F igh t B egins 91

Chapter V P re-T ria l In terlude 130

Chapter VI The E vidence 168

Chapter VII F irst Instance a n d its A fterm ath 205

Chapter VIII A p p e a l an d A nticlim ax 242

Chapter IX The M ajo rity 274

Chapter X The M in ority 322

Chapter XI L eg a l Significance 373

Chapter XII H isto rica l S ignificance 416

Bibliography 452

CANDIDATE S CERTIFICATE

I hereby declare that this submission is my own work and to the best of my

knowledge and belief, it contains no material previously published or

written by another person nor material which to a substantial extent has

been accepted for the award of any other degree or diploma at UNSW or

any other educational institution, except where due acknowledgment is

made in the thesis. Any contribution made to the research by others, with

whom I have worked at UNSW or elsewhere, is explicitly acknowledged in

the thesis.

I also declare that the intellectual content of this thesis is the product of my

own work, except to the extent that assistance from others in the project's

design and conception or in style, presentation and linguistic expression is

acknowledged.

/DAVID GALBRAITH

//•//•«*<I .

Ill

ACKNOWLEDGMENTS

When candidacy for this degree commenced my supervisors were

Michael Tilbury, of the Faculty of Law in the University of New South

Wales and Dr. Ruth Frappell, of the School of Historical, Philosophical

and Political Studies in Macquarie University. Ian Cameron, of the Faculty

of Law in the University of New South Wales, became a third supervisor

when Michael took up his appointment as Edward Jenks Professor of Law

in the University of Melbourne. It is an understatement to say that my

gratitude to them for their advice, patience, encouragement and good

humour is immense. Each has been unstinting in giving me his or her time

in helping me fashion an idea for a thesis on the Red Book case into what

is, I hope, a thorough and coherent work. I am conscious of my good

fortune in having them as my supervisors, and of the debt which I owe

them.

I am also grateful to the Ven. Dr. John Davis for making available to

me the Chapter from his Th. D. thesis dealing with the Red Book case and

papers of Canon Famham Maynard currently in his possession. Similarly I

am grateful to the Very Rev. Christopher Whittall for allowing me to

borrow a copy of his M.A. thesis on Wylde's life. The Rt. Rev. Bruce

Wilson, Bishop of Bathurst, allowed me access to archival material in the

Bathurst Diocesan Registry, and on my trips to Bathurst Mrs. Marilyn

Robey kindly made sure there was a quiet room available for me to pemse

this material. Mr. Dennis Rowe, Rare Books Librarian at the Auchmuty

Library, University of Newcastle, arranged for me to have access to the

Newcastle Diocesan Archives held in his Library. In addition to arranging

IV

for me to obtain microfilm transparencies of material from the Fisher

Papers in the Lambeth Palace Library, Dr. Frappell also made available to

me her own transcriptions of correspondence in those Papers.

In common with any person researching a topic in Australian history,

I am thankful to the staff of the Mitchell Library, Sydney for their

assistance, and also to the staff of the New South Wales State Archives in

Sydney and Kings wood. Also in common with other students of

Australian History, I am grateful for the foresight and application of those who conceived and have contributed to the A u stra lian D ic tio n a ry o f

B io g ra p h y .

I am also grateful to Mr. Kim Robinson, Librarian at Moore

Theological College, Newtown, for allowing me to inspect archival material held in his Library, as well as its holdings of the A u stra lian

C hurch R e co rd and the A u stra lian C hurch Q u arterly . The New South

Wales Attorney-General's Library obtained for me copies of unreported

interlocutory judgments of Roper, J. in the Red Book case, and Mr. John

Wotton, of Messrs. Phillips Fox, Solicitors kindly gave me copies of

unreported judgments of the Supreme Courts of New South Wales and Western Australia in S can drett v. D ow lin g and S can drett v. C arnley.

I should also like to thank Dr. David Hilliard, Reader in History in

the Flinders University of South Australia for his advice and interest in this

project, and for making available to me a copy of his paper on the Anglican

schism at Port Lincoln. Without complaint Mark Swan has allowed me to become almost an em phyteu ta of his copy of R everen d R e b e ls , not an easy

book to find in Sydney.

v

J.B. Kearney, as his Honour then was, was Associate to Roper, C J.

in Eq. in 1947. He generously gave up time to discuss with me his

impressions and recollections of the Red Book case. Mr. Justice Mason,

President of the New South Wales Court of Appeal, also discussed with me aspects of S can drett v. D ow ling. I am grateful to him for this, and for his

continuing interest in this project. Many years ago I worked with H.D.

Sperling, as his Honour then was. For me that time was as pleasurable as it

was instructive, and I am sure that this work is the better for the instruction

which I received from him.

I should also like to record my thanks to the staff of the University of

New South Wales. Kerrie Daley of the Faculty of Law has answered with

unfailing courtesy all administrative queries which I have raised

throughout my candidacy. As the time for submission of this thesis drew

near, Mark Knight of the Post-Graduate Section has answered many last

minute questions. The staff of the Law Library was most efficient in

obtaining for me numerous obscure works on inter-library loan.

Undertaking the research for and writing of this thesis while in full

time legal practice has meant that I have not had the experience of

associating with others undertaking similar projects. However, I have

received much encouragement from friends, and I am most grateful to

them for their kindness. Particularly I should like to mention Anne, my

sister, Christine Simpson, Judith Gibson and Stephen O’Regan. Colleagues

at the New South Wales Crown Solicitor's Office have also added their

interest and encouragement. I should also like to thank Dr. Steven

Churches for his interest in the project and advice at various stages.

vi

Finally, I am very thankful to Stephen Remington who, without being

asked to do so, undertook the task of checking the whole work for

typographical errors.

The final proof reading and editing has taken up most of my spare

time in August and September, 1998. During this period little Adelaide

and Charles have shown more than their usual patience as they have not

received the level of attention which was otherwise their due.

In addition to all of the above, there are two special debts which

should be mentioned. The first is of long standing. More than 30 years

ago my father aroused my interest in Australian history, and over that

period that interest has continued and grown. Although he might not have

great sympathy for the subject matter of this thesis, without the interest

which he kindled, this project might never have been undertaken. The

second debt is to Andrew Pethebridge, who in a very real sense has lived

through every aspect of the researching for and writing of this thesis. As

well as supplementing my computer illiteracy, his unending patience and

good humour have created an environment in which I have been able to

undertake the tasks of researching and writing. Without him this thesis

would not exist. This work is for them.

Vll

A GLOSSARY OF SELECT TERMS

While this thesis is plainly not a theological work, it does use certain terms

which should be explained. They are words or expressions used to

describe particular types of churchmanship within the Anglican Church. Although such terms are defined on the O xford D ic tio n a ry o f the C h ristian

C h urch , for the purposes of this thesis the meanings of terms are taken

from a 'Glossary of Church Terminology' contained in Bishop David

Garnsey's biography of his father, Canon Arthur Henry Garnsey.1 Those

terms as they have been defined by Bishop Garnsey appear below, and

have been chosen for two reasons. First, as Canon Garnsey spent most of

his life as a clergyman within the Diocese of Sydney, the terms as defined

by his son might be seen as having a particular resonance for the context in

which the Red Book case was fought. Secondly, Bishop Garnsey states

that he has sought to give the expressions the meaning which they had

during the period 1900-1940. This period seems to have particular

relevance to the principal participants in the Red Book case.

Anglo-Catholic: the more advanced and organised members of the High

Church movement, who claimed that their principles alone express the

faith of the Anglican Communion.

Broad Churchmen objected to too precise definitions of doctrine,

interpreting the Creeds and other Anglican formularies in a general and/or

symbolic sense. They believed that the Church must be comprehensive,

not sectarian.

1 Garnsey, D.A., A rthur G arnsey A M an f o r Truth an d F reedom , Kingsdale Press, Sydney, 1985at xv.

Vlll

Evangelicals claimed to base their teaching on ’the Gospel'. They stressed

personal conversion and salvation by faith in the atoning death of Jesus

Christ. There were two main groups of Evangelicals: (1) the conservatives,

who were convinced of the verbal inspiration and sole authority of the

Bible and of the importance of the Protestant Reformation; and (2) the

liberals, who were freer in their interpretation of the Bible, though still

stressing the conversion of individuals.

Fundamentalists comprised those conservative Evangelicals who held

five points of doctrine to be fundamental, viz, the verbal inerrancy of the

Bible, the Godhead of Jesus Christ, the Virgin Birth, the substitutionary

atonement, the physical resurrection of Jesus Christ and his imminent bodily return

High Churchmen believed that the Church is a divine institution,

continuous with the first apostles and the Catholic Christianity of the first

few centuries. Its authority is paramount, its bishops and priests sacred and

its sacraments the essential means of grace.

Liberal Churchmen claimed to be free of bigotry, to welcome new

knowledge and to see the Bible as the record of progressive revelation of

the character and purpose of God. They saw the spirit of God expressed in

other religions and in beauty, truth and goodness. They stressed freedom

rather than external authority.

Low Churchmen were those Evangelicals who gave a secondary place to

the ordained ministers, the sacraments of the Church and were especially

wary of bishops.

IX

Modernists went further than Liberals, denying the necessity of some

doctrines such as the Virgin Birth, and the physical resurrection of Jesus

Christ. They regarded much of the Bible as of historical or antiquarian

interest only. All the Church's teaching must be related to modern

knowledge. They took an optimistic view of human nature and destiny.

x

ABSTRACT

The purpose of this thesis is to offer an historico-legal study of the Red Book case, A ttorn ey-G en era l v. W ylde, which was a relator action

brought against Arnold Lomas Wylde, the Anglican Bishop of Bathurst.

The case had its origin in a small service book entitled The H o ly E u ch arist

which Wylde introduced into his Diocese in Advent, 1942. Although this

service book contained other matter, the case and this thesis are concerned

only with the order for Holy Communion contained in the book. Because

the book had a dark red cardboard cover, it has become known as the Red

Book.

The proceedings were commenced in the Supreme Court of New

South Wales in April, 1944, and in 1945 and 1946 there were interlocutory

appeals to the Full Court. In December, 1946 and January, 1947 evidence

was taken on commission in London. The trial itself took place before

Roper, C.J. in Eq. in September and October, 1947, with judgment in

favour of the informant being given in February, 1948. From this

judgment Wylde appealed to the High Court of Australia. The appeal was

argued in August, 1948, and judgment was given in December of that year.

Four Justices heard the appeal, and of them Latham, C.J. and Williams, J.

would have varied Roper, C.J. in Eq.'s decree but otherwise dismissed the

appeal. Rich, J. and Dixon, J. (as he then was) would have allowed the

appeal and dismissed the suit.

xi

The essence of the informant's case was that use of the Red Book

constituted a breach of the charitable trusts upon which church property

was held in the Bathurst Diocese. The allegation of breach of trust initially

rested upon three elements. The first was that the Red Book contained

heresy. Secondly, it was contended that it was a breach of trust to use any

order of service for the Holy Communion other than that contained in the

Book of Common Prayer. Thirdly, it was said that the Red Book made

mandatory the use of a ceremony and an ornament which had been

declared illegal in England. The allegation of heresy was withdrawn after

evidence was taken on commission, and the case went to trial on the other

issues.

Although on the surface the case involved the Bathurst Diocese, it

also involved the Church elsewhere in Australia, and in England. To the

extent that this thesis is an historical study, it examines what happened

from the time the Red Book was compiled until the case was finally

resolved about six years later. In so doing, it draws heavily on primary

source material contained in archives in Australia and the United Kingdom.

It also takes account of the contemporary religious and secular press. The

thesis concludes that the Red Book case should not be seen as a turning

point or a watershed in Australian Anglican history, but that it fell within

the main themes of that history as it had developed to the 1940s, and as it

has developed since that time. The thesis also concludes that the Red Book

case should not be seen as being of great significance in bring about

agreement for a constitution for the Church in Australia.

To the extent that the thesis is a legal study, its main purpose is to

consider the difference of opinion between Roper, C.J. in Eq., Latham, C.J.

Xll

and Williams, J. on the one hand and Rich, J. and Dixon, J. on the other

with a view to ascertaining whether the reasoning of the majority or

minority should be preferred. This has involved a close examination of the

judgments as well as authorities which were cited in them. Ultimately it is

argued that the views of Rich, J, and Dixon, J. should be preferred to those

of the majority. The thesis also considers the legal importance of the case

in the half century which has followed it, with the conclusion being drawn

that it has not been of great significance. This view is based upon the

peculiar legal environment in which the case was fought, the narrow

questions which it decided, and the fact that the fractured nature of the

Australian Church which gave rise to it meant that such a case was not

likely to arise elsewhere.

xm

CHAPTER I

INTRODUCTION

In Advent 1942 Arnold Lomas Wylde1, the then Anglican2 Bishop of Bathurst, authorized for use within his Diocese a service book entitled The

H o ly E ucharist. It measured approximately 4” x 5", and ran to about 40

pages. As its name suggests, it contained an order of service for Holy

Communion. It also contained: a form of Communion of the Sick (with

Reserved Sacrament); a form of Confession; a short form of service for the

Private Baptism of Infants, and an order for the Administration of Holy

Unction. This thesis is concerned only with the Communion service. The

book was authorized for use provided that copies of it were available for

worshippers and the permission of the Diocesan Bishop was obtained. It

had a dark red cardboard cover.

In August, 1944 as a result of the introduction of the book at All

Saints' Church Canowindra in June, 1943, proceedings were brought in the

Supreme Court of New South Wales against Wylde and the Church of

England Property Trust Diocese of Bathurst. Those proceedings were

* Wylde has been the subject of one detailed study: Whittall, C.G., "M y L an d o f R igh teousness ?"The Life a n d Tim es o f A rn o ld Lom as W ylde Unpublished M.A. Thesis, University of Sydney, 1986. A shorter biographical sketch of Wylde is contained in Teale, R.M., "The 'Red Book' Case" (1982) 12 Journal o f R elig ious H istory 74 at 82-83.2 Although not technically correct, so far as they relate to the Church in Australia, the descriptions"Anglican" and "Church of England" will be used interchangeably in this thesis. Generally speaking in this thesis "Church" will be used to describe the Anglican Church in New South Wales or Australia. The expression "Church in England" will generally be used to refer to the Church of England in England.

1

framed as a relator suit3 and in them it was alleged that to conduct a

Communion service in accordance with the order contained in the book

constituted a breach of the charitable trusts upon which church property

was held in the Bathurst Diocese. Initially the informant's breach of trust

case was put on three bases. In the first place it was said that the book

contained heretical doctrine. Secondly, it was said that the use of any order

of Communion service which deviated from the Book of Common Prayer4,

either by way of addition, omission or transposition involved a breach of

trust. Thirdly, it was contended that the book made mandatory use of the

sanctus bell at the consecration and the ceremonial sign of the cross at the

absolution and the benediction, and that these were involved the use of

respectively, an illegal ornament and an illegal ceremony. By virtue of the

colour of the book's cover the litigation has become known as the Red

Book case.5

The case was fought with vigour. In addition to interlocutory

skirmishing there were two appeals to the Full Court of the Supreme Court

and an application for special leave to appeal to the High Court of

Australia6 before there was a hearing on the merits.7 Evidence was taken

3 Initially the informant was the Solicitor-General, with the Attorney-General being substituted during the course of the litigation. There were 23 relators from various parishes within the Bathurst Diocese. Both the circumstances of the substitution of the Attorney as informant and the relators themselves will be discussed in subsequent chapters of this thesis.4 Throughout this thesis the Book of Common Prayer will be referred to the B.C.P.5 It is referred to as a such in Teale, n. 1 above, Whittall, n. 1 above, at 131, and in Rodd, L.C., John H ope o f C hrist Church St. Laurence, Alpha Books, Sydney, 1972, at 160-70; Judd, S.E.I. & Cable, K.J., Sydney A nglicans, A.I.O., Sydney, 1987 at 253-55; Breward, I., A H is to ry o f the A ustralian C hurches, Allen & Unwin, St. Leonards, 1993, at 137-38; Davis, J.C., A ustra lian A nglicans a n d Their C onstitu tion, Acorn Press, Canberra, 1993, at 103 and 111-30; Nelson, W., T.C. H am m ond H is L ife an d L egacy in Ireland a n d A ustralia , Banner of Truth Trust, Edinburgh, 1994, at 114-16 and Kaye, B.N., A Church W ithout W alls Being A nglican in A ustralia , Dove, Blackburn, 1995 at 49.6 Solicito r-G enera l v. W ylde (1945) 46 S.R. (N.S.W.) 83 and A ttorn ey-G en era l v. W ylde (1946) 47S.R. (N.S.W.) 997 The case came on for hearing before Roper, C.J. in Eq. on 23 September, 1947, and lasted for seven sitting days. Judgment was reserved for approximately four months. It was given on 17 February, 1948: A ttorn ey-G en era l v. W ylde (1948) 48 S.R. (N.S.W.) 366.

2

in three stages, and on 17 February 1948,8 after having reserved for about

four months, Roper, C.J. in Eq. delivered a judgment upholding the

informant's claim. Wylde, by-passing the Full Court, appealed directly to

the High Court of Australia. Unusually the appeal was heard by a bench of

four Justices9 who, after hearing argument for five days in August, 1948

and reserving for approximately fourteen weeks, divided evenly in their

opinions as to how the appeal should be disposed of. Latham, C.J. and

Williams, J. would have dismissed the appeal but varied Roper, C.J. in

Eq.’s decree. Rich, J. and Dixon, J. (as he then was) would have allowed

the appeal and dismissed the suit. In the event the outcome of the appeal

was as proposed by the Chief Justice.10

Although on the surface the case had the appearance of a domestic

dispute within the Bathurst Diocese, it engaged the attention of the Church

elsewhere in Australia and in England. Indeed, it has been commented that

if one were to attempt a comprehensive survey of Australian Anglicanism

in the 1940s, it would be found that the Red Book case dominated the years

1944-48.11 On the informant's side of the record the case was promoted

and led by Canon Thomas Chatterton Hammond,12 Principal of Moore

Theological College within the Sydney Diocese. Hammond and the Rev.

8 Evidence was taken on commission in London in December, 1947-January, 1948. The evidence of Archdeacon T.C. Hammond, one of the informant's expert witnesses, was taken in June, 1947 (as Hammond was travelling overseas the following month) and the remainder of the evidence was given at the trial.9 Latham, C. J., Rich, J., Dixon, J. (as he then was) and Williams, J.111 Section 23(2)(b) of the Judiciary A c t , 1903 (Cth.) provided that if the Full Court of the High Court was equally divided in opinion, the decision of the Chief Justice or the senior Justice present was to prevail. Presumably this provision had to be used rather than s. 23(2)(a) because the Chief Justice was proposing a variation of Roper, C.J. in Eq.'s decree.11 Davis, n. 5 above, at 102.12 Thomas Chatterton Hammond' 14 A ustralian D ictionary o f B iography (A .D .B .) 367-68; Nelson, n. 5 above, and Loane, M.L., A C entenary H istory o f M oore T heologica l C o lleg e , Angus & Robertson, Sydney, 1955, (Loane, M oore C o llege) at Ch. 10.

3

David Broughton Knox,13 also on the staff of Moore College, gave expert

evidence on the informant's behalf. Further individuals in Sydney were

active in raising funds to support the informant's prosecution of the

litigation. On the defendants' side of the record, throughout the litigation

Wylde received advice from Canon Farnham Maynard, vicar of St. Peter's

Eastern Hill, a prominent Anglo-Catholic14 parish in Melbourne. For most

of the litigation Wylde was also helped by Francis de Witt Batty, Bishop of

Newcastle.15 Batty also gave expert evidence on Wylde's behalf and

provided important assistance when in London for the Lambeth

Conference in early 1948. Wylde also looked to the Church beyond

Bathurst for money to assist in funding his defence of the case. English

lawyers and ecclesiastics became involved when evidence was taken on

commission in London in December, 1946 and January, 1947. At those

stages of the case when there was a prospect of an appeal to the Privy

Council, Geoffrey Fisher, Archbishop of Canterbury and others in England

became involved.

* * h« *

Notwithstanding that the case attracted the Church's interest, and to

a limited extent that of the wider community, it has been little written

about by historical and legal scholars and other writers. With one

exception16 when it has been written about by non-lawyers the case has

13 As he was known by that name, throughout this thesis David Broughton Knox will be referred to as Broughton Knox.14 For a relevant definition of this and certain other terms used in this thesis, attention is drawn to the Glossary of Terms.15 'Francis de Witt Batty', 7 A.D .B ., at 210-12; Murray, J. [Ed.], F rancis d e W itt B a tty The Bishop, The L eader, The M an, Diocese of Newcastle, Newcastle, 19%, Lane, P.J., The E p isco p a te o f F rancis de W itt B atty, Unpublished B.A. (Hons.) Thesis, University of Newcastle, 1977, and Elkin, A.P., The D io cese o f N ew castle A H istory o f the D iocese o f N ew castle, N .S.W ., A ustra lia , Australasian Medical Publishing Co., Glebe, 1955, esp. at Chs. 34 and 35.16 Teale, n. 1 above.

4

not been the focus of attention. It has been considered in works as diverse

as: biographical studies of bishops and clergy;17 general surveys of church

history;18 a diocesan history,19 and constitutional studies of the Australian Church.20 It is referred to in three entries in the A u stra lian D ic tio n a ry o f

B io g ra p h y .21 As might be expected, the treatment given to the Red Book

case in these works is often short. Although detailed examination of some

of the treatment which the case has received from historians will be

deferred to appropriate stages of this work, the nature and thrust of the

more important of the studies will be considered shortly. However, before

so doing, it is worthy of note that there is no mention of the case in some

works where it might have been expected to have received attention.22

If the case has received little attention from historical writers, it has

received even less from legal writers. In particular, no writer has

undertaken a close examination or evaluation of the differing views of

17 Whittall, n. 1 above, Lane, n. 15 above, Rodd, n. 5 above, Nelson, n. 5 above and Holden, C., R itua list on a T ricycle F rederick G oldsm ith Church, N ationalism a n d S ocie ty in W estern A ustra lia 1880 -1920 , University of Western Australia Press, Nedlands, 1997.18 Breward, n. 5 above and Kaye, n. 5 above.19 Judd & Cable, n. 5 above.20 Davis, n. 5 above, and Border, R., Church a n d S tate in A u stra lia 1788 -1872 A C onstitu tional Study o f The Church o f E ngland in A ustralia , S.P.C.K., London, 1962.

Francis de Witt Batty, Richard Clive Teece and Thomas Chatterton Hammond.There is no mention of it in Loane, M.L., A rchbishop M ow ll The B iography o f H o w a rd W est

K ilvin ton M o w ll A rchbishop o f Sydney an d P rim ate o f A ustralia , Hodder & Stoughton, London, 1960 (Loane, M ow ll) or in Bishop Batty's memoirs: Murray, n. 15 above. Also, there is no mention of it in those parts of Elkin's work which deal with Batty's episcopate: Elkin, n. 15 above. Likewise the case is not mentioned in the chapter dealing with Hammond in Loane's history of Moore College or in those parts of Holden's history of St. Peter's Hill, Melbourne which cover Maynard's incumbency: Loane, M oore C o llege , n. 12 above, and Holden, C., From Tories a t P ra yer to S ocia lists a t M ass St. Peter's, E astern H ill, M elbourne 1846-1990 , Melbourne University Press, Melbourne, 1996, esp at Chs. 15 and 16.

2122

While the scope of the particular work might excuse the omission of any mention of the Red Book case in some of the works just mentioned, this is not so in respect of Loane's biography of Mowll and Batty's Memoirs. Even though Mowll's role in the case appears to have been very minor, it is submitted that some mention of that role should have been made in a work which purported to be a full study of his life, particularly as one of the author's aims was to prepare a record 'while facts are still fresh and accessible' (at 9). However, a reading of Loane's works dealing with Sydney Anglican history shows a proneness to view events and persons through rose tinted spectacles. For his part, Batty was closely involved in the case for almost five years. In a Memoir which deals with such relatively mundane matters as his choice of theological college, Batty's failure to mention the Red Book case raises the question whether he was trying to forget his involvement or to suppress it.

5

Roper, C.J. in Eq., Latham, C.J. and Williams, J. on the one hand and Rich,

J and Dixon, J. on the other. The case is referred to briefly, but without

analysis or comment in standard Australian texts on trust law.23 It does not

appear to have been mentioned in overseas texts on the same or related

subjects.24 English texts on canon and ecclesiastical law ignore it,25 and it

is not analyzed in any depth in the only Australian text in this field.26

There appear to be only two journal articles published in Australia which

23 Jacobs, K.S., The L aw o f Trusts in N ew South W ales, Butterworths, Sydney, 1958, at 118, 140, 413, Meagher, R.P. & Trevorah, P.F., Jacobs' L aw o f Trusts in N ew South W ales, (2nd. Ed.), Butterworths, Sydney, 1967 at 251, 281 and 604, Meagher, R.P. & Gummow, W.M.C., Jacobs' L aw o f Trusts in N ew South W ales, (3rd. Ed.), Butterworths, Sydney, 1971, at 264, 295 and 632, Meagher, R.P. & Gummow, W.M.C. Jacobs' Law o f Trusts in A ustralia (4th. Ed.) Butterworths, Sydney 1977 at paras. 1039; 1060 and 2304, Meagher, R.P. & Gummow, W.M.C., Jacobs' L aw o f Trusts in A ustra lia , (5th. Ed.), Butterworths, Sydney, 1986, at paras. 1039, 1060 and 2304, Meagher, R.P. & Gummow, W.M.C., Jacobs' L aw o f Trusts in A ustralia , (6th. Ed.) Butterworths, Sydney, 1996, at paras, 1039, 1060 and 2304, Ford, H.A.J. & Lee, W.A., P rinciples o f the Law o f Trusts, Law Book Co., Sydney, 1983, at paras. 1706, 2005, 2006 and 2007, Ford, H.A.J., & Lee, W.A., P rin cip les o f the L aw o f Trusts, (2nd. Ed.), Law Book Co., Sydney, at paras 1706, 2005, 2006 and 2007 and Fricke, G.L. & Strauss, O.K., The L aw o f Trusts in V ictoria , Butterworths, Sydney, 1964 at 197.24 For example, the case is not mentioned in: Cozens-Hardy Horn, R., L ew in on Trusts, (15th. Ed.),Sweet & Maxwell, London, 1950; Mowbray, W.J., Lew in on Trusts, (16th. Ed.) Sweet & Maxwell, London, 1964; Oerton, R.T., Underhill's L aw rela ting to Trusts an d T rustees, (12th. Ed.), Butterworths, London, 1970; Hayton, D.J., Underhill's L aw rela ting to Trusts an d T rustees, (13th. Ed.), Butterworths, London, 1979; Hayton, D.J., Underhill's L aw rela ting to Trusts an d T rustees, (14th. Ed.), Butterworths, London, 1987; Scott, A.W., The L aw o f Trusts, (3rd. Ed.) Little, Brown & Co., Boston, 1967; Pettit, P.H., E qu ity a n d the L aw o f Trusts, (6th. Ed.) Butterworths, London, 1989; Sheridan, L.A., K eeton & Sheridan The l a w o f Trusts, (12th. Ed.) Barry Rose Law Publishers, Little London, 1993; Kelly, N.C., The L aw o f Trusts an d Trustees, Butterworths, Wellington, 1972; Keeton, G.W. & Sheridan, L.A., The C om para tive L aw o f Trusts in the C om m onw ealth an d the Irish R epublic, Barry Rose (Publishers), London, 1976; McMillan, D.H., Maurice, S.G. & Parker, D.B., Tudor on C harities, (6th. Ed.) Sweet & Maxwell, London, 1967; Maurice, S.G. & Parker, D.B., Tudor on C harities, (7th. Ed.) Sweet & Maxwell, London, 1984; Pi car da, H., The L aw an d P ractice Relating to C harities, Butterworths, London, 1977; Picarda, H., The L aw an d P ra c tice R elating to C harities, (2nd. Ed.) Butterworths, London, 1995 and Keeton, G.W. & Sheridan, L.A., The M odern Law o f C harities, (2nd. Ed.) Northern Ireland Legal Quarterly, Belfast, 1971.26 Moore, E.G., An Introduction to English Canon L aw , Oxford University Press, Oxford, 1967, Briden, T. & Hanson, B., M oore's Introduction to English Canon L aw , (3rd. Ed.) Mowbray, London, 1992 and Hill, M., E cclesiastica l L aw , Butterworths, London, 1995.26 MacFarlane, P. & Fisher, S., Churches, C lergy and the L aw , Federation Press, Annandale, 1996 at paras. 3.2.2,33.3 and 3.6.1.2.

6

refer to the Red Book case,27 and there do not appear to be any references

to it in overseas law reviews or journals.28

The first published work to refer to the Red Book case was Rodd's

biography of Fr. John Hope, for 38 years rector of Christ Church St.

Laurence, Sydney’s most prominent Anglo-Catholic parish.29 Essentially

the case is discussed in the context of Hope’s friendship with Wylde and

what the author sees as conservative evangelical Sydney's persecution of

churchmen of a different stripe. The treatment, which appears to be based

upon reminiscences rather than primary sources, is as partisan as the

writings of an evangelical like Loane, and makes no attempt to place the

case in the broader context or Australian Anglican history. While the main

features of the case's progress and outcome are noted there are several

points at which the narrative is either inaccurate or is capable of

misleading.30

The second published discussion of the case is that of Teale.31 Her

article is based on some primary source material plus secondary sources,

and, as well as offering a better narrative of events than Rodd, seeks to

27 Mortensen, R., 'Church legal Autonomy' (1994) 14 The Q ueensland L aw yer 217 and Else- Mitchell, R., 'Mr. Justice Roper and the Land Jurisdiction' (1966) 70 A ustra lian L aw Journal 902. Roper, CJ. in Eq. was the trial judge in the Red Book case, and Else-Mitchell refers to the case as one of the more memorable which he tried. Otherwise, he makes no comment on the Red Book case.28 Three articles which deal with matters discussed in the Red Book case but which make no reference to it are: Anon., 'Judicial Intervention in Disputes over Use of Church Property' (1962) 75 H a rva rd L aw R eview 1142; Ogilvie, M.H. 'Church Property Disputes Some Organizing Principles' (1992) 42 U niversity o f Toronto L aw Journal 377 and Ogilvie, M.H. What is a Church by Law Established?' (1990) 8 O sgoode H all L aw Journal 190.29 Rodd, n. 5 above. Rodd's discussion of the Red Book case is at 160-71.30 For example, it is implied (at 161) that Broughton Knox became involved in the matter earlier than was in fact the case. It is said (at 162) that the case was tried before Roper, C.J. in Eq. in May- September, 1947, when in fact Hammond's evidence was taken over two days in June, 1947 and the remainder of the case was heard over seven days in September-October, 1947. It is said (at 164) that Roper, C.J. in Eq. reserved judgment for five months when it was four. It implies (at 166) that the Red Book was withdrawn by Wylde only after Roper, C.J. in Eq.'s judgment was given on 17 February, 1948. Finally, (at 169) the persuasion of friends is given as the only reason Wylde did not appeal to the Privy Council.31 Teale, n. 1 above. The whole article is devoted to the Red Book case.

7

place the case in wider historical contexts. Reference is made to nineteenth

century ritual cases in England and to their aftermath, as well as to

litigation which had its origins in the problems which beset the Church in

South Africa in the second half of the nineteenth century. In addition she

places the case in the context a history of poor relations between the

Sydney Diocese and other dioceses in the New South Wales Province,

Bathurst in particular. Finally, Teale seeks to draw out aspects of the

case's significance in Australian Anglican history. Importantly, she is the

first writer to note any connexion between the case and the movement for a

constitution for the Australian Church.

Whittall's unpublished study of Wylde’s life contains a lengthy

chapter on the Red Book case.32 This work draws upon primary source

material not examined by Teale, including Wylde's diaries, general

correspondence and documents, as well as correspondence and other

documents specifically relating to the Red Book case. This

correspondence and documents are kept separately in a tin trunk in the

Diocesan offices in Bathurst. As well as confirming and adding detail to

points made by Teale concerning the importance of the relationship

between Sydney and Bathurst Dioceses in the case's background, Whittall's

thesis contains much valuable information about the relators and how their

relationship with Wylde may have affected their decisions to become

relators. While not ignoring the relevance of the case to the Church

beyond Bathurst, Whittall focuses upon the effect that it had in the Bathurst

Diocese and Wylde. So far as Wylde was concerned, at the end of his

treatment of the case Whittall makes the telling observation that many of

the case's results 'were beyond Wylde's interest and understanding. In a

32 Whittall, n. 1 above Chapter 5.

8

real sense he was caught up in the events of the Case and the results were

irrelevant to him and the Diocese of Bathurst.133

A year after Whittall completed his thesis on Wylde, Judd & Cable's

history of the Sydney Diocese was published.33 34 The amount of space

allocated to the Red Book case in this work is slight and, at least from the

footnotes, does not appear to have been based upon primary sources.

Perhaps it is for this reason that there is matter in the treatment which

should be approached with caution.35 It should also be noted that Judd's

consideration of the Red Book case occurs in the course of discussion, as

seen through evangelical Sydney eyes, of constitutional deliberations

which occurred after World War II.

The next discussion of the Red Book in published historical sources

which should be mentioned is in Davis's constitutional study.36 It took the

Australian Church almost a half century to agree upon a constitution which

would see it become an autonomous Church in communion with the See of

Canterbury, and Davis plots the deliberations which led to this agreement

33 As above, at 155.34 Judd & Cable, n. 5 above, at 253-55.35 It is said (at 253) that after both the Rev. J.S. Richards, rector of All Saints' Canowindra, and Wylde had denied satisfaction to parishioners who complained about the introduction of the Red Book in that parish, those parishioners appealed to Mow 11 as Metropolitan, and that he wrote to Wylde requesting him to withdraw the Red Book. The reference to Wylde failing to give the complainants satisfaction can only be read as a reference to the outcome of a rowdy meeting held at Canowindra on 19 July, 1943 which was attended by Wylde. However, as will appear when that meeting is considered in Chapter in, before that meeting had occurred the complainants, or at least some of them, had not only been in touch with Mowll, but had received advice from Hammond. Further, although Mowll wrote to Wylde advising him to withdraw the Red Book, Mowll's letter was written on 16 June, 1944, almost two months after proceedings had been commenced. It was in response to Wylde's letter of 5 June, 1944 (copies of which were also sent to other bishops of the New South Wales Province) under cover of which he sent copies of the Red Book, the information and other correspondence. It is implied (at 254) that the book A dorem us appeared in the Bathurst Diocese after completion of the High Court appeal. As will appear in Chapter XI, it was introduced well before that time. It is perhaps also misleading to state that A dorem us 'came out' with Wylde's blessing. While it is not contended that Wylde was unhappy about the appearance of A dorem us, if that book carried the blessing of anyone, it was the blessing of Reginald Charles Halse, Archbishop of Brisbane.36 Davis, n. 5 above, at 111-30.

9

and the divisions which accounted for their length. Davis's approach is

chronological, with the principal chapters of his work each dealing with

periods of about a decade. Much of the chapter dealing with the 1940s is

devoted to the Red Book case. Davis is principally concerned with the

effect the case had upon continuing negotiations for a constitution rather

than the case's place in the wider sweep of Australian Anglican history,

and his assessment of its significance in this regard will be examined in

Chapter XII.

What is important for present purposes is that in his chapter dealing

with the 1940s Davis refers frequently to a file of correspondence which is

currently in his possession. That file contains correspondence and

associated documents passing between Wylde and Maynard for the bulk of

the period that the Red Book case was on foot. Not only does this material

help flesh out some of the events which occurred as the case progressed,

but it gives an understanding of how two significant players perceived

those events.

Finally, of the historical materials, mention should be made of

Nelson's biography of Hammond; not because of its quality, but because,

save for Whittall's work, it is the only biographical study yet to appear

dealing with one who was an important participant in the case. As with

Rodd's and Judd's work referred to above, Nelson's is not based upon

primary sources,37 and perhaps for this reason there are observations in it

which are incorrect or likely to mislead.38 Like Rodd's and Judd's

37 The treatment of the case is in Nelson, n. 5 above, at 114-16, and the annotations are at 178.38 It is said (at 115) that one of Wylde's stated aims for introduction of the Red Book, viz., the different Communion rites used in the Bathurst Diocese was, a 'pretext', thus inviting the inference that Wylde had some ulterior motive. However, Whittall has shown that the proliferation of different uses within his Diocese was a real concern to Wylde: Whittall, n. 1 above, at 132-34. Indeed, Whittall shows that this had been a matter of concern in the Diocese since Long's episcopate. Secondly, it is said (at

10

treatment, Nelson’s partisan in tone. Also, like Rodd's work, it makes no

attempt to place the case in the broader context of Australian Anglican

history.

The catalyst for writing the only significant journal article to consider the Red Book case from a legal aspect was S ca n d re tt v. D o w lin g39

in which the New South Wales Court of Appeal refused to lend its aid to an

attempt to enjoin the then Bishop of Canberra-Goulburn from ordaining

eleven women to the priesthood.40 Mortensen’s article examined the ways in which, notwithstanding the result in S can drett v. D ow lin g , secular courts

in Australia may still become involved in ecclesiastical disputes in general

and disputes involving doctrine, ritual or ceremonial in particular. While

making other references to the Red Book case, Mortensen is most

concerned to see it in the context of Lord Eldon's 'ungainly attempts to

115) that by permitting the ’use of decidedly medieval [sic] catholic’ actions such as the ringing of a sanctus bell and the making of the ceremonial sign of the cross the Red Book implicitly encouraged belief in the doctrine of the Real Presence 'in the Roman Catholic sense'. As will be seen, to the extent that the information alleged false doctrine, it was based upon a rubric on page 20 of the Red Book, and a prayer said to be an epiklesis, and had nothing to do with the sanctus bell or the ceremonial sign of the cross. Further, abandonment of the allegation of heresy, to which Nelson does not refer, was a strong indication that the Red Book did not teach a doctrine of the Real Presence which offended Anglican teaching. Thirdly, it is said (at 115) that it was after Wylde refused to accept Mowll's advice to withdraw the Red Book that proceedings were commenced. The incorrectness of this contention has been dealt with above. Fourthly, it is said (at 115) that the theology of the Holy Communion was a central issue of the case. While it may be arguable that this was so down to abandonment of the allegation of heresy, it is difficult to see how this was the case after that time. While it was accepted that the Red Book taught the doctrine of the Real Presence to the exclusion of the Receptionist Theory, as will be been, this was not the main basis upon which the informant put his case, and it was not accepted as such by any judge who decided it. It said (at 116) that 'the line of defence used' in the case was that evangelicals did not adhere to the B.C.P. While it was true that there was evidence to the effect that evangelicals did not adhere to the B.C.P., it is equally true that the evidence of all witnesses, expert and lay, was to the effect that the B.C.P. had never been strictly followed. Further, as will appear, Wylde did not rely upon the liturgical practices of evangelicals as a defence in the case. Again (at 116) the reader is left to infer that A dorem us was published after disposal of the High Court appeal. The incorrectness of this will be considered in Chapter XI. It is also strange that immediately after reference is made to publication of A dorem us, Nelson makes the point that the case had a sobering effect on bishops who thought they were an ecclesiastical law to themselves. It can only be a matter for speculation what Archbishop Halse who wrote the Introduction to A dorem us while the Red Book case was in full swing would have made of such an observation.39 (1992) 27 N.S.W.L.R. 48340 Mortensen, n. 27 above.

11

determine disputes among Protestant dissenters' in C ra ig d a llie v. A ikm an41

and A tto rn ey-G en era l v. Pearson*2 and the decision of the majority in F ree

C hurch o f S co tla n d v. O vertou n .43 However, this is not to say that

Mortensen sees the Red Book case as either fitting neatly into the line of

authority represented by the three cases just mentioned or as being nothing

more than a straightforward application of any one of them.

* * * *

This thesis is the first attempt to offer a comprehensive study of the

Red Book case. As such it provides a considerably more detailed account

of events which occurred between the Red Book's compilation in mid-1942

and the case's final resolution in March, 1949. In this the thesis brings to

light new information and also questions existing accounts and

interpretations of events. Another element of the work is an exposition and

close analysis of the divide of judicial opinion between Roper, C.J. in Eq.,

Latham, C.J. and Williams, J. on the one hand, and Rich, J. and Dixon, J.

on the other. This exposition and analysis is directed to an assessment of

whether it is the majority or minority determination of the legal questions

raised by the case which should be preferred. Thirdly, the thesis attempts

to evaluate the case's legal significance in the half century which has

elapsed since it was decided. Finally, the case's historical importance is

considered. While the case's place in continuing constitutional

deliberations is examined, the discussion is more wide ranging and seeks

to place the case in a more general context of Australian Anglican history.

41 (1813) 1 Dow. 1 [3 E.R. 601]. Mortensen does not refer to the report of the second round of this litigation: (1820) 2 Bligh 529 [4 E.R. 435],42 (1817) 3 Mer. 353 [36 E.R. 601],43 [1904] A.C. 515. The majority comprised the Earl of Halsbury, L.C., and Lords Davey, James, Robertson and Alverstone, C.J. The dissentients were Lords Macnaghten and Lindley.

12

Discussion of the case in the following chapters has both historical

and legal aspects, with some intertwining of the two. Accordingly, it has

involved an application of methods of historical and legal research and

discourse. So far as historical research is concerned, substantial use has

been made of primary source material. This has included contents of the

tin trunk in the Bathurst Diocesan Registry referred to above.44 It has also

included extensive use of the correspondence presently held by Dr. Davis

referred to above. While it is clear from what has been said in this chapter

that the material at Bathurst and that held by Dr. Davis has already been

used by scholars, two points about that use should be made. First, and

more importantly, the purpose for which Whittall and Davis used these

sources were quite different from the purpose of this thesis. An aspect of

this difference of purpose is that the use made of this material has been

more extensive in this thesis. Secondly, while Davis and Whittall each

worked on one set of sources, neither examined them both. Further, in

addition to the material just referred to, use has also been made of primary

source material in the Newcastle Diocesan archives held in the Auchmuty

Library in the University of Newcastle and correspondence in Archbishop

Fisher's papers in the Lambeth Palace Library.

Attention must also be drawn to the fact that virtually all of the

correspondence and material in the sources referred to in the preceding

paragraph is from the defendant's side of the record; this can therefore

make the content of the following chapters appear lop-sided. The reason is

44 It says something for Wylde's sense of the case's lasting importance that in manilla folders whichhave his own distinctive handwriting on the front, he placed correspondence according to its source. For example there were separate folders for correspondence from clergy within and without the Diocese, from bishops, laity, solicitors and counsel. In addition the trunk contains copies of court documents and bank books for accounts into which were deposited funds donated to finance Wylde's defence of the litigation.

13

that Hammond, who was the most important participant in the case on the

informant’s side of the record, has left no papers which would shed light

upon his motives in promoting the litigation, his reactions as it progressed

or his assessment of its outcome.45 So far as Mowll is concerned,

according to his biographer, 'the great mass of [Mowll's] private

correspondence was all destroyed, unread, at his request.'46 Finally,

although some of Broughton Knox's papers have been deposited in Moore

College Library, they are not yet available for inspection.47 The absence

of this material from the informant's side of the record is particularly

unfortunate as it means that ultimately there can only be speculation about

the most fundamental question which concerns the case: why it occurred?

In addition to the sources mentioned above, the notebooks of Roper,

C.J. in Eq. held in the New South Wales Archives have been examined, as

have records of correspondence passing between the Attorney-General of

the time, the Hon. C.E. Martin, and the informant's solicitors. This

material has provided additional factual material concerning the case's

progress. While Roper, C.J. in Eq.'s notebooks were examined by Teale,48

the present work puts an interpretation on some of that material which

differs from that of Teale.

Although it has been examined, the Australian religious press of the

period has not been found to be of great use in this work. While the major

developments of the case were covered, the coverage came without

45 In his thesis Whittall says that 'Hammond's papers are not extant': Whittall, n. 1 above, at 145, fn. 55. There is a meagre collection of Hammond papers in the library of Moore Theological College: Box 6. However, they do not contain material relevant to the Red Book case or Hammond's participation in it.46 Loane, M ow ll, n. 22 above, at 9.47 Access to these papers is not presently available, and it is not known when access will be available. Discussions between the writer and the Librarian, Moore College, 25 October, 1996.48 Teale, n. 1 above.

14

significant analysis or comment. Further, the principal publications were

strongly aligned to either side in the dispute with the result that they were "preaching to the converted". Whereas the A u stra lian C hurch R eco rd , the

paper of the Sydney Diocese, favoured the relators, the C hurch S ta n d a rd

and the A u stra lian Church Q u arterly favoured Wylde. Indeed, at the

relevant time the A u stra lian Church Q u arterly , organ of the Australian

Church Union, was edited by Maynard.

Little needs to be said of the methods of legal research employed.

What has been said above indicates that nothing has been discovered in the

published legal literature which is directly in point for the purposes of this

thesis. Of course, this is not to say that there is no material in legal

treatises and journal articles relevant to the present study. However, it is

the authorities themselves which have been most important in evaluating

the differing opinions of the trial judge and members of the High Court

who considered the case. It has been necessary to consider earlier

decisions relied upon by the different judges to ascertain whether they

really were authority for the propositions for which they were cited. To the

extent that they were not, the persuasiveness of the judgments in which

they were prayed in aid is weakened accordingly. In the end this enables a

determination of whether it is the majority or minority judgments which

are to be preferred. Further, not only was pre-Red Book case law

important in evaluating the judgments in the Red Book case, subsequent

authority has been central in evaluating the case's legal impact in the half

century since it was decided.

* * * *

15

This thesis falls into three distinct parts. The first and shortest

comprises Chapter II, which creates the setting in which the Red Book case

was fought. This chapter is based upon secondary sources, and seeks to

draw attention to the principal features of Australian Anglicanism as it had

developed to the time of World War II. In creating the setting in which the

case occurred emphasis has been placed upon those themes in Australian

Anglican history which assist in understanding the case. These include an

account of the development of the special place which the Sydney Diocese

occupies in the Australian Church, and constitutional deliberations which

began shortly after World War I and continued down to and beyond the

Red Book case’s conclusion. The chapter also contains threads which will

be picked up in Chapter XII, when an attempt will be made to assess the

case's broader historical significance. It should also be added that the

background given in Chapter II renders more understandable what

occurred as the case progressed.

The second part of the thesis comprises Chapters III - VIII. It is the

function of these chapters to offer an account of what occurred both in and

out of the courtroom from compilation of the Red Book in 1942 until the

final agreement on costs between Wylde and the relators in March, 1949

brought the case to an end. An essentially chronological approach has

been adopted. This seems appropriate in what is the first attempt to set out

what occurred during the course of the litigation.

Chapter III examines the period between compilation of the Red

Book in 1942 and its withdrawal from All Saints’ Canowindra in

December, 1943. In Chapter IV that narrative is continued to late 1945,

following determination of the first appeal to the Full Court. Chapter V

16

examines the period between early 1946 and the commencement of the

trial in September, 1947. Evidence taken on commission in December,

1946 and January, 1947, Hammond's evidence given in June, 1947 and

evidence given at the trial itself are considered in Chapter VI. Chapter VII

deals with his Honour's judgment and what occurred between the time of

its delivery on 17 February 1948, and commencement of the hearing of the

High Court appeal in August, 1948. Chapter VIII deals with the period

from the hearing of the High Court appeal until the final resolution of the

case in March, 1949.

In considering what occurred out of the courtroom these chapters

draw extensively on the primary source materials and transcripts of the

evidence referred to above. From this material several features emerge. In

the first place it leads to a questioning of the present assessment of

Maynard's role in assisting Wylde to compile the Red Book. It is

suggested that Maynard became involved in the process later than has been

thought, and that his role was less important than has previously been

thought. The Sydney Diocese's early involvement in the matter is

confirmed, with that involvement being noted as commencing in July,

1943 if not before. Mowll's previously acknowledged advice to Wylde to

withdraw the Red Book from the Bathurst Diocese is examined in some

detail, and it is shown to have occurred about two months after proceedings

had been commenced. Indeed correspondence suggests that Mowll did not

give the Book any serious study until Wylde sent him a copy of it together

with copies of the information and other documents in May, 1944.

Another important feature revealed is Wylde's heavy reliance on

Maynard and Batty. So far as Maynard is concerned, the correspondence

17

shows that the reliance commenced almost as soon as problems arose

following introduction of the Red Book at All Saints' Canowindra, and

continued up to finalization of the litigation. Batty became involved

shortly after Maynard and he also continued to assist Wylde until the case's

end. Indeed, putting to one side reliance which he placed upon his

solicitors and counsel, Wylde seemed to be incapable of taking a step in

the litigation without first seeking the advice of Maynard and or Batty.

The correspondence also shows Wylde going through what might be

described as mood swings, and also to be a man who did not fully

understand the legal intricacies of the case in which he was a party as well

as the case's broader significance. Conversely although on occasions

Batty's and Maynard's understanding failed or they showed ex p o s t fa c to

wisdom, generally they were much shrewder observers and analysts of

what was happening about them. Indeed, as will appear, it was quite early

in the piece that Maynard commented upon the essential problem if Wylde

ultimately succeeded in the case: not only would it vindicate his

entitlement to authorize his own service books, but it would permit his

opponents in the Church, especially those in Sydney, to do likewise. So

far as Batty is concerned, and particularly while he was in England in early

1948, some of his correspondence discloses his treasured easy familiarity

with important people on which Cable has remarked.49 Particularly was

this side of Batty evident in correspondence concerning his dealings with

Sir Harry Bevir Vaisey, a Justice of the Chancery Division of the High

Court in London.

Correspondence also shows the extent to which the Church beyond

the Bathurst Diocese became involved in the case. Not only was this so

49 Batty's A .D .B . entry, n. 15 above, at 211.

18

when it became a necessity, as when preparations for the taking of

evidence on commission were under way in 1946, and when the evidence

was taken in London in December, 1946 and January, 1947, but also when

advice was sought on Wylde's behalf from the Bishops of London and

Oxford. Finally, and perhaps most importantly, there was the personal

involvement of the Archbishop of Canterbury. This occurred in early 1948

following delivery of Roper, C.J. in Eq.'s judgment, when Batty was in

England, and early in 1949 following delivery of the High Court

judgments. On both occasions an appeal to the Privy Council was a

possibility. For purely domestic reasons Fisher was most anxious that

there should not be an appeal to the Privy Council, and took what steps he

could to discourage any such appeal. While it has been known that Fisher

was opposed to a Privy Council appeal in the Red Book case, what also

emerges from the correspondence is that after a decision had been taken to

appeal to the High Court rather than the Privy Council, Fisher interested

himself in the manner in which the appeal before that Court would be

conducted. In particular he tried to influence Wylde to have his counsel

limit argument to a challenge to the formal orders made by Roper, C.J. in

Eq. rather than to launch a full attack against his Honour's judgment.

While expressing gratitude for Fisher's attention, Wylde disregarded his

recommendations and followed the advice of his counsel.

These chapters also chart the progress of the litigation through

numerous interlocutory applications and the two Full Court appeals,

together with the High Court special leave application which preceded

Wylde's contested but successful application to have evidence taken on

commission in London. Although interlocutory applications other than

that to take evidence on commission could be seen as point taking to no

19

apparent purpose and certainly irritated members of the Full Court in both

appeals, it is noteworthy that in letters to Wylde, his junior counsel, Alan

Bevly Kerrigan, made it clear that the purpose underlying such applications

and appeals was have the litigation disposed of in a preliminary point in

order to avoid a trial on the merits. Kerrigan, a churchman, could see that

any determination given after a trial on the merits had dangers for both

Wylde and the Australian Church in general.

While attempts to avoid a hearing on the merits might have been

understandable, the application to have evidence taken on commission and

its aftermath was of considerable importance for the case in general. The

purpose of such an exercise was to permit Wylde to deal more effectively

with the allegation of heresy. As will appear from the discussion of

authority later in this thesis, if the allegation of heresy could have been

made good, the informant would have been ensured of success in the

litigation. With that allegation removed from consideration, the informant

was left to rely upon uncertain and untested arguments, viz., that deviation

from the B.C.P. Communion order, mandatory use of the sanctus bell

(which had been declared to be an illegal ornament) or mandatory use of

the ceremonial sign of the cross (which had been declared to be an illegal

ceremony) constituted breaches of the charitable trusts upon which church

property was held in the Bathurst Diocese. In such circumstances it is

understandable that the informant should have strenuously opposed

Wylde's application in this regard.

If not before, at least from abandonment of the heresy allegation in

May, 1947, the inherent difficulty of the relators' case should have become

clear to them and to those advising them. The unanimous evidence of

20

English experts was that there had never been strict compliance with the

B.C.P. Communion order. Yet at the core of the informant's case was the

proposition that such strict compliance was a requirement of the trusts

upon which church property was held in the Bathurst Diocese. By parity

of reasoning it would also have been a requirement of the trusts upon

which church property was held in the Sydney Diocese. Accordingly, to

expose Wylde's liturgical practices as constituting breaches of trust,

Hammond and others involved in promoting the Red Book case were

leaving their own practices open to the same criticism, and theoretically the

same action. The fact that Hammond and others were prepared to

countenance fighting the case to the finish suggests that this consequence

was not a matter of concern.

Chapters III-VIII consider the principal legal questions in the

litigation as raised on the pleadings, articulated in submissions and

determined in judgments, but do not offer a detailed analysis of them. This

task is undertaken in later chapters, which will be referred to later in this

introduction. This approach has been adopted for two reasons. The first is

manageability and clarity in the arrangement of material. Secondly, and

more importantly, it is acknowledged that the subject matter of this thesis

may be of interest both to those with legal a background and those without

such a background. Separation of close legal analysis from other parts of

the thesis should make the work more serviceable to those without a legal

background.

While there is some analysis and discussion of judgments in

Chapters VII and VIII, it is for the most part in footnotes. Generally

speaking, analysis and discussion of the judgments is an important function

21

of the third part of the thesis. Within the third part of the thesis three tasks

are undertaken. In the first place Chapters IX and X consider in detail the

majority and minority judgments. Shortly stated the conclusion of that

discussion is that while all judgments given in the case are open to

criticism, the difficulties which beset those of Roper, C.J. in Eq., Latham,

C.J. and Williams, J. are such as to call into question the correctness of

their decisions. From this it follows that the view is taken that, on

objective legal analysis, the manner in which Rich, J. and Dixon, J.

proposed that the case be decided is to be preferred. Of course, if the case

had been decided in this way the consequences would have been far

reaching. Maynard's reference to them has been mentioned above. These

consequences were also apparent to Latham, C.J. and Williams, J. While it

cannot be said beyond fear of contradiction that this was the principal

motivation behind their determination of the case, their judgments make it

clear that they were aware of the practical results of allowing Wylde's

appeal.

Chapter XI considers the case's legal significance in the light of the

role it has played in subsequent legal developments, and concludes that

such significance has not been great. The most important reason for this

conclusion lies in the legal sub-stratum of the Red Book case. From what

has been said above, it will be appreciated that at the time the case was

decided the Australian Church had no constitution of its own and was not

an autonomous Church in Communion with the See of Canterbury. This

consideration was central to the majority's determination of the case. A

consequence of this was that the case had little if any relevance for those

churches within the Anglican Communion which were autonomous and so

had a different constitutional basis. A corollary of this was that such

22

narrow legal questions which remained after withdrawal of the heresy

allegation were not of great legal moment to autonomous churches within

the Anglican Communion. Secondly, the even division of opinion within

the High Court meant that the case was hardly a strong authority for such

questions as it decided. Particularly was this so given that Dixon, J. was in

dissent. Finally, it was probably only the underlying acrimony and

disharmony within the Australian Church which made the case possible in

the first place.

Chapter XII analyzes the case's historical significance. This chapter

picks up the threads left in Chapter II, and makes the observation that the

Red Book case should not be seen as a watershed or turning point in the

history of the Anglican Church in Australia. Rather, it can be seen as

being of a piece with that history down to World War II. The course of

that history has not changed in its essentials since that time. However, the

Church's subsequent history has some developments which might have

surprised its promoter. In the 1940s it was Sydney led by Hammond which

was in the forefront of a crusade for compliance with the B.C.P.. They

were the champions of liturgical order. However, within almost a half

century such had been the magnitude of the congregationalist slide of the

Sydney Diocese that its Archbishop felt himself compelled to write to all

clergy within the Diocese asking them to use authorized Prayer Book

services in their parishes.50

As much of what has already been written on the significance of the

Red Book case has been devoted to a consideration to the role it played in

the renewal of discussions for a constitution for the Australian Church and

Southern C ross, March, 1997 at 1 and 10. This is the paper of the Sydney Diocese.

23

ultimate agreement as to its terms, Chapter XII examines this matter in

some detail. It concludes that the case was not significant in bringing

about a renewal of discussion of constitutional questions. At the 1950

meeting of General Synod, Batty who was chairman of the Continuation

Committee and had lived through the Red Book case, was of such a

pessimistic frame of mind that he indicated a preference for a moratorium

on such discussions. It was Fisher, in Australia at that time, who was

instrumental in bringing about a revival of discussion. Although while in

Australia Fisher might have had some priming from Batty, he had both a

genuine interest in fostering autonomous churches within the Anglican

Communion as well as a more than nodding acquaintanceship with the

peculiarities of the Australian Church.

Fundamental to securing a constitution for the Australian Church

was having Sydney's participation. It is generally accepted that there was a

significant shift in Sydney's position in 1951, and that this shift led to

agreement upon a draft by 1955. Extant materials show that when

Hammond was satisfied upon the terms of a draft Mowll was prepared to

accept his advice and urge support for it. However, the absence of any

relevant papers from Hammond makes it impossible to identify what was

the crucial factor or factors which changed his mind on the constitution.

Such contemporary accounts as there are, as well as Davis's more recent

interviews with Sir Marcus Loane and Donald Robinson, both future

Archbishops of Sydney, and Broughton Knox, Loane's successor as

Principal of Moore Theological College, suggest that neither the Red Book case nor its sequ elae were important in Hammond's change of mind over

the constitution.

24

Ultimately the reason for the case's limited importance in the

Church's future development was well summed up by F.W. Kitto, K.C.,

Wylde's leading counsel. When the High Court decision was given Kitto was in London to appear before the Privy Council to argue in the Bank

N atio n a liza tio n case. From St. James's Palace he wrote to Wylde advising

against a further appeal. In so doing he observed that in reality the case

had left the Church where it was before the litigation.51

* * * *

Although it has involved some degree of repitition, in this thesis

each chapter has been made "self-contained" so far as footnotes are

concerned. This practice has been adopted to avoid the necessity for

readers to have to go back over several chapters of the work to find the full

citation of sources. Also, to assist in the checking of sources, publishers'

names have been given in respect of monographs cited.

In general terms conventions used in the citation of legal journals has

been used in respect of all journals cited in this work. Because all articles

referred to may be identified by the name of the publication, year of

publication volume and page numbers, this practice has been followed in

the interests of consistency of citation.

Kitto to Wylde, 25 January, 1949. Bathurst Archive, counsels' correspondence.

25

CHAPTER II

THE SETTING

When the Solicitor-General gave his f ia t for the Red Book case the

episcopate of Howard West Kilvinton Mowll, Archbishop of Sydney was

in its tenth year.1 By that time the Diocese was conservatively evangelical

in character.2 As will appear in this chapter those within the Diocese who

adhered to this school of churchmanship had a level of antipathy toward to

those within and without Sydney Diocese who were churchmen of a

different stripe.

A survey of the history of the Sydney Diocese illustrates the point

just made. In this survey emphasis will be laid on those threads relevant to

the Red Book case.3 The see of Sydney was erected in 1847 when the then

Bishopric of Australia ceased to exist and the Dioceses of Sydney,

1 Mowll was enthroned in St. Andrew's Cathedral on 13th March, 1934. A very favourable account of Mowll's life is Loane, M.L., A rchbishop M ow ll The B iography o f H ow ard W est K ilvin ton M o w ll A rchbishop o f Sydney an d P rim ate o f A u stra lia , Hodder & Stoughton, London, 1960 (Loane, M ow ll).

2 Accounts of the Diocese at this time are to be found in Judd, S.E.I. & Cable, K.J., Sydney A n glican s, A.I.O., Sydney, 1987, especially at Chapter 14, Loane, M o w ll, n. 1 above, especially at Chapters VII, VIII and IX; Rodd, L.C., John H ope o f C hrist Church St. L aurence, Alpha Books, Sydney, 1972, especially at Chapters VI and VII and Nelson, W., T.C. H am m ond Irish C hristian H is L ife an d L egacy in Ire lan d a n d A ustralia , Banner of Truth Trust, Edinburgh, 1994, especially at Chapters 6 and 7. Of these works, all except the first are in varying degrees partisan and polemical in character. A meaning of the term "conservative evangelical" is given in the Glossary of Terms at the beginning of this thesis.3 In the following discussion reliance is placed on the following: Judd & Cable, n. 2 above; Loane M ow ll, n. 1 above; Rodd, n. 2 above; Porter, B (Ed.) C olon ia l T ractarians - The O xford M ovem en t in A ustra lia , J.B.C.E., Melbourne, 1989, especially at 23-49 and Kaye, B.N., A Church W ithout W alls Being A nglican in A ustra lia , Dove, Melbourne, 1995, especially at Chapter 1. Also of importance are the following entries in the A .D .B .: Thomas Hobbes Scott' (Volume 2 at 431-3); William Grant Broughton' (Volume 1 at 158-64); 'Frederic Barker' (Volume 3 at 92-4); 'Alfred Barry' (Volume 3 at 105-7); 'William Saumarez Smith' (Volume 11 at 675-7); 'John Charles Wright' (Volume 12 at 585-6); 'Francis Bertie Boyce' (Volume 7 at 368-9) ;'Mervyn Archdall' (Volume 7 at 86-7); Thomas Chatterton Hammond' (Volume 14 at 367-78); 'John Hope' (Volume 14 at 490) and 'Reginald Charles Halse' (Volume 14 at 362- 64).

26

Newcastle, Melbourne and Adelaide were erected. Van Diemen's Land

had become a Diocese in 1842. The Diocese of Australia had been erected

in 1836 and William Grant Broughton was its first and only bishop. After

the creation of Sydney in 1847, Broughton remained its bishop until his

death in 1853.4 Broughton, a high churchman who was influenced by the

Tractarians,5 first came to the Colony as Archdeacon in 1829. In 1829

New South Wales was an Archdeaconry of the Diocese of Calcutta.

When Broughton arrived in New South Wales evangelicalism was

the traditional churchmanship of the Colony.6 At the time of Broughton's

appointment as bishop, and subsequent to it, a principal duty of a colonial

bishop was the recruitment of clergy to serve in his diocese.7 In carrying

out this duty Broughton looked principally to the Society for the

Propagation of the Gospel (S.P.G), an old high church missionary body.8

While for this reason Broughton's churchmanship may have had some

effect on the prevailing evangelical tradition of Sydney, such effect was

not to be permanent. His successor, Frederic Barker, was a firm

evangelical,9 who, during a 29 year episcopate, looked to other sources for

clergy.10 Not only did Barker seek his clergy from sources other than the

S.P.G., but within three years of his arrival he had established Moore

Theological College. William Hodgson, a devoted evangelical, was its first

4 Porter, n. 3 above, at 23-41. A full account of Broughton's life is Shaw, G.P., P atriarch a n d P a tr io t W illiam G rant

Broughton 1788-1853 C o lon ia l S tatesm an an d E cclesiastic, Melbourne University Press, Melbourne, 1978. Shorter accounts of his life are to be found in the A .D .B entry referred to in n. 3 above, Porter, n. 3 above, at 23-41 and Judd & Cable, n. 2 above, especially Chapters 2,3 and 4.6 Judd & Cable, n. 2 above, at 25.7 Porter, n. 3 above, at 44.8 As above, 44-5 and Judd & Cable, n. 2 above, at 30.9 Barker's entry in the A .D .B ., n. 3 above, Porter, n. 3 above, at 42 and Judd & Cable, n. 2 above, at 69-71.10 Porter, n. 3 above, at 45.

27

principal.11 Moore College has since become the centre for evangelical

studies in Australia.12

Although during Barker's episcopate Sydney was given its enduring

evangelical character, there were in Barker's time (and continue to be)

some parishes which did not adhere to the Diocesan norm. Principal

among them are the city parishes of St. James', King Street13 and Christ

Church St. Laurence.14 More will be said of these parishes later in this

chapter.

Not only did Barker disagree with the theological position of High

Churchmen and Tractarians, he also disagreed with their approach to

church government, favouring the involvement of the State rather than a

system of church government by consensual compact. So far as church

government was concerned, in 1866 the New South Wales Legislature

passed an Act for the management of church property in accordance with

constitutions already agreed upon.15 Of the arrangement created by this

Act, which provided for a system of synodical government offering the

laity and clergy full equality and the bishop a right of veto, Cable has

observed:16

11 William Hodgson', 4 A .D .B ., a t 4 0 8 . A fuller account of Hodgson's career is to be found in Loane, M.L., A C entenary H istory o f M oore T heological C ollege , Angus & Robertson, Sydney, 1955, (Loane, M oore C ollege) Chapter 2.12 Judd & Cable, n. 2 above, at 75.13 'Robert Allwood', 1 A .D .B ., at 10-11 and Cable, K.J., 'Saint James Church, King Street, Sydney' (1964) 50 Journal R oya l A ustralian H is torica l Society 241-259 and 360-374.14 William Horatio Walsh', 2 A .D .B ., 560-70, 'Charles Frederick Gamsey’, 4 A .D .B ., at 232-33. A history of the parish of Christ Church St. Laurence down to Hope's incumbency, which began in 1926, is Allen, L.M., A H isto ry o f C hrist Church St. Laurence, Finn Books, Sydney, 1940 [71939].15 This was a Private Act which received the Royal Assent on 4 October, 1866. It was described as 'An Act to enable the members of the United Church of England and Ireland in New South Wales to manage the property of the said Church.' The Act did not have the constitutions scheduled to it as did the later 1902 Act, but s. 3 provided that the constitutions were to be deposited in the Supreme Court within three months of the Act being passed. Throughout this thesis this statute will be referred to as the Church o f E n g lan d Trust P roperty M anagem ent Act, 1866 or the 18 6 6 A c t16 Porter, n. 3 above, at 43.

28

Legislative enactment was an important issue. It reflected the need of the Evangelicals - and nearly all low and moderate churchmen - in England to retain some connection with the State. From being the party opposed to restriction, they had become the champions of order. Only in this way, they believed, could the innovative force of Tractarianism and the "lawlessness" of its ritualist offspring be curbed. In the colonial climate, such a connection was necessarily weak. The State had little concern for the church ... Barker, however, did his best to maintain such links as he could. He knew that the Tractarians had always stood for ecclesiastical autonomy; in Australian terms they favoured the "consensual compact" approach. A synod guaranteed by legislation appeared to be a triumph for the Evangelicals.

During Barker's episcopate there was little ritual innovation either in

the Sydney Diocese or elsewhere in the Anglican Church in Australia.

However, to the extent that there was any ritual innovation in Sydney,

Barker set his face against it and was vigilant in repressing any signs of

it.17

That the Sydney Diocese had acquired a firm evangelical outlook by

the death of Barker is well illustrated by what occurred at the election of

his successor, Alfred Barry, and Barry's short episcopate. Barry was a low

churchman who eschewed party division.18 Although he had been the

principal contender to succeed Barker, because of his liberal views he was

eliminated by clerical opposition, even though he had lay support.

Ultimately he was appointed on the nomination of five English bishops.19

Barry's relations with the evangelical establishment in Sydney were

strained. Not only were changes in the conduct of services in St. Andrew's

Cathedral regarded as unwelcome, but Barry also supported a proposal to

place a representation of the crucifixion in the reredos behind the high altar

17

18

19

As above, at 46 and Barker's entry in the A .D .B ., n.3 above.'Alfred Barry', 3 A .D .B ., at 105-07 and Judd & Cable, n. 2 above, at 124-137.Judd & Cable, as above, at 123-4.

29

in the Cathedral. Barry also supported a Tractarian as principal of Moore

College, and did nothing to stamp out ritualist developments including the

wearing of eucharistic vestments at Christ Church St. Laurence.20 After an

episcopate of only five years (which included two long absences from

Australia) Barry resigned the see in May, 1889 and returned to England.21

Barry’s successor, William Saumarez Smith, was a convinced

evangelical.22 His election, like that of Barry, was attended by a comedy of

errors which, not for the first time, soured relations between Sydney and

other Australian dioceses for years to come.23 It is perhaps ironic that the

problems which attended Saumarez Smith's election were brought about by

the conduct of Mesac Thomas, the evangelical bishop of Goulbum, then

senior bishop of the Province of New South Wales.24

Sydney evangelicals were still smarting over the appointment of

Barry and his episcopate. The souring of relations between Sydney and

other dioceses arising from Saumarez Smith's election was brought about

both by Sydney's conviction that the rest of the Church was trying to foist

onto it a bishop it did not want, and its perception that the actions of other

dioceses involved an attack upon its evangelicalism. The reverse held true

for churchmen outside Sydney, who believed that Sydney evangelicals and

Thomas were participating in some underhanded activity to deny

Australian bishops their voice in the election of a primate. A consequence

of this was that in 1900 the General Synod freed Sydney to elect its own

20 As above, at 127-8 and 132-6. Thomas Hill's period as principal of Moore College is dealt with in Loane M oore C o lleg e , n. 11 above, Chapter 5.21 Alfred Barry's, A .D .B . , n. 18 above, at 107.22 William Saumarez Smith's A.D .B . entry, n. 3 above and Judd & Cable, n. 2 above, at 139-159.23 Judd & Cable, as above, at 139-41, 155 and 165. Correspondence and papers of Archbishop E.W. Benson, Lambeth Palace Library, Volume 81, folios 23-66. Teale, R.M., "Party or Principle? The Election to the Anglican See of Sydney of Sydney in 1889-90" (1969) 55 Journal R o ya l A ustra lian H is to r ica l S ocie ty 141 at 141-58.24 'Mesac Thomas', 6 A ,D.B ., at 262-63.

30

bishop without reference to other Australian bishops. The q u id p r o quo

was that the bishop of Sydney no longer became ex officio primate. In

future the primate would be elected by the majority of all diocesan bishops

of the Church in Australia.25 This change was to assume considerable

importance 35 years later.

Not only did the election of Saumarez Smith have an effect on the

relationship of Sydney and the church elsewhere in Australia, but in

conjunction with other events, it led to the emergence of a strong party

organization in the Diocese.26 During Barry's episcopate a local version of

the Church Association had been formed in Sydney. It was a lay

organization and like its English model had as its prime purpose the

stamping out of ritualism. It campaigned against any depiction of the

crucifixion in the reredos in St. Andrew's Cathedral, and was successful in

securing a panel depicting the Transfiguration instead. But whereas its

English counterpart resorted to litigation, the Sydney body looked to the

Diocese's synodical form of government to achieve its ends. In 1891 other

evangelicals formed the Churchmen's Alliance, an organization which

contained clergy as well as laity. In 1898 these two bodies were formed

into the Protestant Church of England Union (P.C.E.U.) by the Rev.

Mervyn Archdall, the rector of St. Mary's Balmain and polemical leader

among Sydney evangelicals.27 Under clerical leadership the P.C.E.U.

emerged as the most important Church party during the episcopate of

Saumarez Smith. Its position was subsequently taken by the Anglican

Church League (A.C.L.) during Wright's episcopate.28

25 Judd & Cable, n. 2 above, at 141.26 As above, at 143-44.27 Mervyn Archdall's A .D .B . entry, n. 3 above.28 Judd & Cable, n. 2 above at 165-72. The A.C.L. has been described as being part watchdog in defending and promoting the Protestant and Reformed Faith of the Church of England, and part political

31

In 1909 John Charles Wright was elected Archbishop of Sydney.

His election was due in part to the change in procedure for the election of a

bishop and perhaps also to the efficiency of Sydney's new party

organization. Wright quickly demonstrated his evangelical credentials.

The demonstration concerned eucharistic vestments, a matter left

unresolved by Saumarez Smith. Importantly, the matter was dealt with by

Wright himself, without recourse to Synod or litigation, and without

consulting Archdall or the P.C.E.U.29 Shortly before Wright's arrival in

Sydney the cure at St. James', King Street fell vacant. After disagreement

between the five parochial nominators and four Synod representatives on

the Presentation Board, Joseph Kite, then Dean of Hobart was nominated.

Although Kite had never worn the chasuble in St. David's Cathedral,

Wright refused to license him unless he agreed not to wear it. Kite declined

to agree to the condition and the parish ceased co-operation with Diocesan

officials in the selection of another nominee. It was only Wright's threat to

appoint an evangelical to the parish that caused it to renew co-operation

with the Diocese.30

In 1911 the cure at Christ Church St. Laurence fell vacant, and again

Wright refused to license the nominee unless he gave a similar

undertaking. Rather than risk the Archbishop's appointing to the parish a

priest out of sympathy with its traditions, the nominee, Clive Meillon

Statham, gave the undertaking.31 From the time of Statham’s appointment,

prior to being licensed to officiate in the Sydney Diocese, all clergy have

machine: Hilliard, D., "The Anglican Schism at Port Lincoln" (1995) No. 23 Journal H istorica l S ocie ty o f South A u stra lia 50 at 55.29 Judd & Cable, n. 2 above, at 163.30 As above, at 161-63. John Charles Wright's A .D .B . entry, n. 3 above.31 Judd & Cable, n. 2 above, at 164, Allen, n. 14 above, at 99-108 and Rodd, n. 2 above, at 38-39.

32

been required to sign an undertaking agreeing, among other things, not to

wear the chasuble until, in the opinion of the Archbishop for the time being

signified in writing, its wearing is lawful.32 According to Judd, the

exaction of this undertaking 'effectively stalled the development of

ritualism in the diocese' and 'nipped in the bud' Anglo-Catholicism in

Sydney.33 However, while Wright was prepared to outlaw the wearing of

the chasuble in this perhaps high-handed way, he did not otherwise

interfere in the conduct of services in what were, by Sydney's standards,

ritualist churches. But his conduct would have sent a signal to those for

whom the vestment was not some sort of optional extra.

Aspects of Wright's determination in this matter merit comment. For

the first time since Barker Sydney's evangelical establishment seemed to

have a prelate who was prepared, with apparent enthusiasm, to give effect

to their wishes. Secondly, the episode demonstrated to those outside the

Diocese that its hierarchy would not brook opposition from those within

and outside it who did not share their views. Thirdly, Wright and his

successors continued to require the undertaking even though in 1914 the

use of eucharistic vestments was condoned by English bishops.34 To that

extent it provided evidence of a preparedness on the part of evangelical

Sydney to exist outside the mainstream of Anglicanism as it existed in

England and elsewhere in Australia.

Reference has been made above to the formation in 1909 of the

A.C.L. and to the fact that it functioned as a religio-political machine. In

due course it became not only the strongest and most effective party

organization within the Sydney Diocese, but also within the Australian

32 Judd & Cable, as above, at 164.33 As above, 164 and 165.34 As above, at 208.

33

Church.35 While only two formal branches of the A.C.L. have been formed

outside the diocese of Sydney, one in Melbourne within the diocese of

Melbourne, and the other in Port Lincoln, South Australia, within the

diocese of Willochra,36 it lent encouragement to evangelicals elsewhere.

The A.C.L. quickly became active in the political processes of the

Sydney Diocese, especially in the pre-selection of candidates for various

elected positions within it. A measure of its attitudes and approach can be

gained from the fact that although by 1921 it was A.C.L. policy to

nominate individual high churchmen to elected positions, they were

nominated only to one quarter of them, and never to positions of strategic

importance37 This, Judd states, meant that non-evangelicals received some

representation in the decision making councils of the Diocese. However,

such representation as they obtained via this means was on terms dictated

by the A.C.L., and ensured that they were never allowed to hold offices

from which they could in any significant way challenge the position of the

A.C.L. or its constituency. Of the situation just over a decade later and near

the end of Wright's episcopate, Judd has observed:38

The formal A.C.L. "how to vote" ticket did not appear until 1933. But the pre-election meeting which the A.C.L. always conducted at Synod served the same purpose. Whether the A.C.L. had other ways of making recommendations to Synodsmen in its early years is unclear. What is clear is the spectacular and sustained success of the party: League members won over 80% of the "strategic" positions in successive Synod elections, and cases where the A.C.L. candidate was defeated were rare. By 1926 the A.C.L.'s influence was pervasive. Virtually all of the small number of non-

35 As above, at 168. Although the A.C.L. has continued to function beyond that date, its history down to 1939 is dealt with in Judd, S.E.I., 'Defenders of their Faith: Power and Party in the Anglican Diocese of Sydney, 1909-1938', Unpublished Ph.D. Thesis, University of Sydney, 1984.3 Hilliard, n. 28 above, at 55-56.37 Judd & Cable, n. 2 above, at 169.38 As above, at 170.

34

A.C.L. members who were elected to positions in the diocese only did so because the Anglican Church League allowed them to do so.

It has been noted above that a consequence of Saumarez Smith's

election was that the right to elect the Primate became vested in all bishops

of the Church in Australia. Although in 1910 Wright was elected primate,

it was only by a majority of one vote.39 This narrow margin gives some

indication of the way in which the Church in Australia viewed the Sydney

Diocese. Probably this was due to events which had occurred prior to

Wright's arrival in Australia rather than to his own actions after that time.

Additionally there may have been concerns as to how he may have "shaped

up" as Archbishop. It should likewise be acknowledged that Wright's

election as Archbishop had been at the behest of those who held significant

power in the Sydney Diocese, and their attitudes cannot have been

unknown to members of the Church and episcopate elsewhere in Australia.

In April, 1933 Mowll was elected Archbishop of Sydney. He was

the choice of conservative evangelicals within the Diocese, and his election

marked a broadening of the divide between liberal and conservative

evangelicals within it.40 Since 1922 Mowll had been in the Diocese of

West China, as Assistant Bishop and then as Bishop. He had had little

direct contact with recent developments within the Church in England.

Moreover, although familiar with conservative evangelicals, he had little

39 Although the date of the election is mistakenly given as 'About 1913', the circumstances of this election are dealt with in Murray, J. [Ed.], F rancis de W itt B atty The B ishop, The L eader, The M an , Diocese of Newcastle, Newcastle, 1996, at 32. This volume includes Memoirs of Francis de Witt Batty' prepared for publication by the Rev. Denis E. Taylor. The typescript of the Memoirs is in the Diocese of Newcastle Archives (Newcastle Archives), Auchmuty Library, University of Newcastle, Box A5318. Batty had come to Brisbane with St. Clair Donaldson in 1904 when the latter was appointed Bishop. According to the Memoirs (at 32), on the first ballot the vote was nine each for Sydney (Wright) and Brisbane (Donaldson), and three for Melbourne (Lowther Clarke). Although not allowed to withdraw his candidacy as he wished, according to Batty, Donaldson brought the strongest pressure to bear on his closest friends among the bishops to vote for Sydney. Donaldson was concerned that, all things being equal, Sydney should be the See of the Primate. In the final vote Sydney secured the Primacy by 11 votes to 10. Judd agrees that Wright secured the Primacy by one vote: Judd & Cable, n. 2 above, at 251.40 Judd & Cable, as above, at 225-9.

35

familiarity with liberal evangelicals.41 The level of his contact with non

evangelicals can only be a matter for surmise.

By 1936 conservative evangelicals held approximately 80% of the

important decision-making positions in the Diocese.42 This strength of

conservative evangelicals, which was increasing in the Diocese generally,

was also reflected at Moore College. In 1935 the liberal principal, David

John Davies, died, and was succeeded by a conservative, Thomas

Chatterton Hammond.43

Although things may have been going well for conservative

evangelicals within the Sydney Diocese, this was not so outside it. As has

been mentioned, until Wright's death the Primacy had been held by

Sydney. However, when an election for the position was held in March,

1935 Henry Frewen Le Fanu, Archbishop of Perth was elected over Mowll

by 13 votes to 12.44 Even if not so intended, the election of Le Fanu as

Primate was construed as an index of the dislike of the Australian Church

both for the conservative evangelicalism of Mowll and the character of his

Diocese.45

An example of Mowll's new order occurred when the cure of St.

James', King Street, fell vacant in 1937. By an Ordinance introduced in

1933 the appointment of a rector to a parish was made by the Archbishop

on the recommendation of a Presentation Board comprising two laymen

41 As above, at 228.42 As above, at 237.43 Davies' career as principal is dealt with in Loane, M oore C o lleg e , n. 11 above, Chapter 9. Hammond's life and career prior to coming to Moore College are dealt with in Nelson, n. 2 above, Chapters 1-5, Judd & Cable, as above, at 233 1, Rodd, n. 2 above, at 125-6 and Loane, M ow ll, n. 1 above, at 138-9.44 Loane, M ow ll, as above, at 136 and Judd & Cable, as above, at 251.45 Loane, as above, at 135-7, Judd & Cable, as above, at 251, Rodd, n. 2 above, at 125 and 'Henry Frewen Le Fanu', 10 A .D .B ., at 60-62.

36

and two clergy elected by Synod and five male communicants of the parish

involved. Rodd, a partisan observer, contends that Synod representatives

were elected on a carefully organized party ticket of the A.C.L.46 The

Board was chaired by the archdeacon of the district in which the vacancy

existed. If Diocesan and parochial members of the Board could not agree

upon a nomination within twelve months, or if the Archbishop declined to

accept the Board's recommendation, the parish's right of presentation

lapsed, and the power of appointment vested in the Archbishop. The

appointment to St James' in 1938 occasioned a trial of strength between the

parochial nominators and Synod's representatives on the Presentation

Board. This struggle continued for almost twelve months before, rather

than lose the right of presentation, the parochial nominators agreed to

accept Edwin John Davidson.47 Shortly after his induction Davidson

dismissed a priest from the parish staff, and altered established worship

practices in the church.48

According to Teale it was the changes to worship referred to in the

preceding paragraph which provided the catalyst for what has since

become known as the Memorialist controversy 49 The controversy takes its

name from a Memorial sent to Mowll under cover of a letter dated 10

March, 1938.50 The Memorialists were clergy from within the Sydney

Diocese and included the rectors of between one-third and one-quarter of

46 Rodd, n. 2 above, at 12747 'Edwin John Davidson' 13 A .D .B ., at 578. A more polemical account is in Rodd, as above, at 127-8.48 Davidson's entry in the A.D.B, as above.49 As above. The best published account of the Memorialist controversy is in Gamsey, D.A., A rthur G a m se y A M an fo r Truth an d F reedom , Kingsdale Press, Sydney, 1985, at 153-63.

The Memorial and other relevant correspondence was published in a pamphlet entitled A P lea f o r L iberty. The pamphlet was published by the Committee for the Memorialists. Its members were the Revs. A.H. Gamsey, A.J.A. Fraser, R. Harley Jones, Ernest Cameron, W.J. Siddens, W.G. Coughlan and Robert C. Firebrace.

37

the parishes in it51 who were central churchmen or liberal evangelicals, but

not recognized high churchmen or Anglo-Catholics.52 The Memorialists

were concerned about the way in which the Diocese was developing. In

Judd's blunt words, 'By 1938 it appeared that diocesan policy was intent on

making Sydney a closed shop for conservative Evangelicals.'53

After some perfunctory correspondence the Archbishop sent each of

the Memorialists a letter which resembled a solicitor's request for further

and better particulars of a pleading.54 While Loane contents himself with

the observation that the letter was not drawn up by the Archbishop,55 Judd

unequivocally ascribes its authorship to Hammond.56 The Memorialists

declined to respond to such a letter and after further skirmishing, Mowll dealt with the matter in the following way in the D io cesa n M a g a zin e .51

I am ready at all times as their Bishop to confer with any of the clergy in matters that affect them personally and are concerned either with their individual or parochial difficulties, but in this case a section of the clergy, acting as a body without any direct constitutional status, invited me to discuss with them, amongst other things, my general administration of the affairs of the Diocese. I could have declined outright to do this, but in order to

51 Gamsey, as above, at 153-54, Rodd, n. 2 above, at 131. Loane, also a partisan observer, numbers the Memorialists at 50 active clergy, and says that they comprised 'just a fraction more than one- fifth of the total number in the Diocese.': Loane, M ow ll, n. 1 above, at 144. Judd & Cable, n. 2 above, at 238 accept the count of 50, but do not comment upon what proportion of rectors or active clergy in the Diocese the group comprised.52 Rodd, as above, at 132 and Judd & Cable, as above, at 238.53 Judd & Cable, as above. In the Memorial the point was made more gently, In the last few years we venture to say that the school of conservative Evangelicalism has been so much favoured by Diocesan action while other schools have been equally handicapped that there is some ground for fearing that in less than a generation the whole Diocese may be reduced to a monochrome. ... All the key positions are in the hands of conservative Evangelicals - the Registrar's office, the Archdeaconries, the Rural Deaneries (or most of them), Moore College and the Deaconess Institution.': Loane, M ow ll, n. 1 above, at 144. The content of the Memorial is set out in the Pamphlet referred to in n. 50 above at 4-6, and is summarized in Gamsey, n. 49 above, at 154-55.54 Judd & Cable, as above. For differing accounts as to how extensive the letter was and the number of questions asked, see Rodd, n. 2 above, at 135, Judd & Cable, at 239 and Loane, M ow ll, as, at 146. Examples of the questions are in Gamsey, as above, at 156-57. They are set out in full in the Pamphlet referred to in n. 50 above at 8-10.55 Loane, as above, at 146.56 Judd & Cable, n. 2 above, at 239.51 Loane, M ow ll, n 1 above, at 147.

38

determine my course of action in view of such an unusual request, I addressed a questionnaire to each signatory to obtain precise and definite information regarding the matters referred to in the Memorial. The Memorialists were reluctant to supply individually the precise information asked for, based on their actual knowledge as individuals, and preferred to return a collective reply and this to some only of my questions. In these circumstances it would be improper for me to accord a hearing to men who prefer complaints which have not been properly attested. I cannot appear by the slightest action to countenance vague and indefinite charges against men in our midst who so far as my knowledge carries me are loyally seeking to carry out the highest principles of the Church of England, and indeed of our common Christianity.

Loane, who does not speculate on the authorship of this letter,

contents himself with the observation that if Mowll had lost ground with

the ’questionnaire', 'it was more than regained as a result of this able

statement.'58 More realistically, Judd accepts that the whole matter was

mishandled by Mowll, and that he was ill-served by his principal adviser,

Hammond.59 He continues:60

Both Mowll and Hammond were convinced that the cause of conservative Evangelical truth was at stake. Both men were used to situations in which they believed they had to stand their ground and refuse to compromise or conciliate. ... In the late 1930s, both Mowll and Hammond were keenly aware of the successful intellectual and political challenges to conservative Evangelicalism in England and the gradual isolation of Sydney from the rest of the Anglican Church in Australia. The notion of conciliation with the Memorialists went against their instincts, their past experiences and the realisation of their worst fears elsewhere in the Anglican communion.

Above all, the Memorial symbolised the final destruction of the Evangelical consensus which had been forged nearly thirty years before. In 1909 there had been a consolidation of all Evangelicals; in the five years to 1938 that coalition disintegrated, and the 1938 Memorial was an index of the fortunes of the conservative and

58

59

60

As above, at 147.Judd & Cable, n. 2 above, at 239.As above, at 240.

39

liberal Evangelical groups in the decades to come........ [T]heMemorialists' prophesy "that in less than a generation, the whole diocese may be reduced to a monochrome" was never completely realised but, nevertheless, the conservative Evangelical character of the diocese had been secured.

These observations of Judd are important in three respects. First,

they make it clear that by an early stage of Mowll's episcopate conservative

evangelicals had prevailed over liberal evangelicals. Secondly, by saying

that the prophesy of a monochrome Diocese was never completely realized

Judd invites the inference that it was almost realized. Thirdly, Judd makes

the point that the conservative evangelical character of the Diocese

contributed to its isolation within the Anglican Church in Australia. From

the above discussion, it will be appreciated that such isolation of the

Sydney Diocese was not new. The victory of conservative evangelicalism

was an additional factor contributing to and sharpening this isolation.

The increasing isolation of the Sydney Diocese can also be seen as

the Australian Church evolved during the late nineteenth and early

twentieth centuries. Over that time the percentage of predominantly

evangelical dioceses compared with the percentage of dioceses where

different schools of churchmanship preponderated in Australia declined.

Whereas in 1872 four of the ten (Sydney, Melbourne, Goulbum and

Bathurst) or 40% were predominantly evangelical, by 1915 only four out

of 24 (Sydney, Melbourne, Gippsland and Bendigo) or about 17% had a

strong evangelical presence.61 This could be expected to be a matter of

significance for Sydney, particularly as it became more conservative in its

evangelicalism. The sense of isolation that Sydney experienced from this

61 As above.

40

phenomenon was acutely felt as Melbourne moved away from its original

evangelical character.62

* * * *

Discussion of the isolation of the Sydney Diocese raises the question

of its position in the Church in Australia generally. Although Davis has

observed that the Sydney Diocese is legendary within the Anglican

Communion,63 it is proposed to consider here only its position within the

Australian Church. The discussion will be based upon attempts to agree

upon a constitution for an autonomous Anglican Church in Australia. This

approach is adopted for four reasons. First, the deliberations which

ultimately led to agreement on a constitution threw representatives of

Sydney into committees, negotiations and the like with other elements of

the Church in Australia. Although Sydney had had dealings with other

dioceses, not least through the General Synod which was established in

1872, the deliberations over a constitution were of greater significance in

that insofar as Sydney was concerned, they involved the creation of a

mechanism for Church government which would have to safeguard its position v is-a -v is the Church elsewhere in Australia, and also preserve

what Sydney saw to be the essential features of Anglicanism. Secondly,

there was some similarity between the matters dealt with in deliberations

on a proposed constitution and questions which arose for consideration in

the Red Book case. Broadly speaking, this involved the position of

accepted formularies of the Church, and especially the position of the

B.C.P., and the use and security of church property.64 Thirdly,

62 As above, at 213-5.63 Davis, J.C., A ustralian A nglicans an d their C onstitution, Acorn Press, Canberra, at 21.64 As above, at 53. Davis says that in securing a constitution for an autonomous church, The problem was how to break the nexus while retaining the desired spiritual ties and keeping the property.’

41

contemporary primary sources, the religious press of the time and more

recent secondary sources have all perceived a connexion between the Red

Book case and moves for a constitution. Again, in raising obliquely the

appropriateness of the B.C.P. to Australian conditions and the concomitant

of Prayer Book revision, the case was seen to underscore the need for a

constitution and autonomy. Further, there is a consideration of the extent,

if any, to which the case hastened agreement on a constitution. Finally,

individuals who played significant roles in the constitutional deliberations

were also involved in the Red Book case.65

The first General Synod of the Church met in 1872. It clothed itself

with power to make determinations in respect of enumerated matters. This

power was subject to the proviso that no determination of General Synod

was to be binding upon any diocese until it had been accepted by that

diocese in accordance with that diocese's procedures for acceptance of

General Synod determinations.66 Davis has described this proviso as a

’conscience clause'67 and its existence meant in the Australian colonies the

diocese remained the supreme unit of ecclesiastical government.68 Putting

a different interpretation on it, Loane says that the effect of the provision

was that there would be government by consent rather than by coercion.69

65 Davis states that following Hammond's arrival in Sydney in 1936, his 'role in the constitution discussion was to be decisive over the following 15 years.': Davis, as above, at 90. In the Red Book case Hammond acted as an adviser to the relators swore affidavits that were filed on their behalf, and gave expert evidence for them. H. Minton Taylor, of Messrs. Allen, Allen & Hemsley, the Sydney Diocese's solicitors, was active in the constitutional deliberations, and acted as solicitor for the relators in the Red Book case. Batty had been involved in constitutional deliberations since 1916. He advised and assisted Wylde throughout the Red Book case and gave expert evidence for him. Canon Famham Maynard vicar of St. Peter's Eastern Hill, Melbourne was also involved in the constitutional deliberations especially in advising some in the Anglo-Catholic wing of the Church, He advised and assisted Wylde both in the preparation of the Red Book, and throughout the case.66 Giles, R.A., The C onstitu tional H istory o f the A ustralian Church, Skeffington, London, 1929, at 152.67 Davis n. 63 above, at 21.68 Judd & Cable, n. 2 above, at 86.69 T n -jn p AAnuill n 1 uKa v p a t ^1Q

Davis n. 63 above, at 21.Judd & Cable, n. 2 above, at 86. Loane, M ow ll, n. 1 above, at 219.

42

Davis has recently shown that in the late nineteenth and very early

twentieth centuries, the question of the national church structure was under

discussion. He has also shown that there were differing views as to the

nature of the Church in Australia, and expressions of concern as to the

difficulties which might attend any attempt to create an autonomous

Church.70 Deciding to proceed cautiously, in 1905 General Synod resolved

that there should be a committee comprising the Archbishops of Sydney,

Melbourne and Brisbane and the Bishop of Perth, and that, among other

things, this committee should be authorized to obtain opinions from

Australian and English counsel concerning the legal nexus of the dioceses

in Australia and Tasmania with the Church of England in England.71

A case for an opinion was prepared. It contained a lengthy historical

survey of the Church in Australia72 and posed ten questions for the opinion

of three English and two Australian counsel.73 The tenth question inquired

generally as to the status of the Church of England and Tasmania, and the

English counsel gave the following opinion:74

70 Davis, n. 63 above, at 26-36.71 Giles, n. 66, at 160.72 According to Batty's Memoirs, this outline was prepared by Francis William Sutton Cumbrae- S tew art: Murray, n. 39 above, at 62. 'Francis William Sutton C umbrae-S te wart' 8 A .D .B ., at 170-71. Davis, n. 63 above, at 36 describes the document as 'a goldmine of detail.' Border confirms C umbrae - Ste wart's authorship: Border, R., Church an d S tate in A ustra lia 1788-1872 A C on stitu tional S tudy o f the Church o f E ngland in A u stra lia , S.P.C.K., London, 1962 at 275.73 The English counsel were Arthur Cohen, Robert Cecil and A.B. Kempe. The first Australian counsel was Adrian Knox (who took silk in 1906), and later became the second Chief Justice of the High Court of Australia. He does not appear to have had strong religious affiliations - 'Adrian Knox', 9 A .D .B ., at 624-6. The other Australian counsel was John Musgrave Harvey who, without having taken silk, was appointed to the Supreme Court of New South Wales and subsequently became Chief Judge in Equity. He was a practising Anglican, being for 28 years a warden at St. Mark's Church, Darling Point, a member of the choir of that church, and a parish nominator. He was also Chancellor of the Diocese of Sydney between 1934 and 1938: 'John Musgrave Harvey', 9 A .D .B ., at 224-5. The ten questions and answers are summarized in Giles, n. 66 above, at 161-66. Cumbrae-Stewart's historical survey, the ten questions asked and the answers to them are set out in Hammond, T.C., The B athurst R itual C ase, George M. Dash, Sydney, 1949 [?]. at 133-50.74 Giles, as above, at 166-7, Hammond, as above, at 144. The answer of the Australian counsel to question 10 was substantially the same as that given by the English counsel: Hammond at 150.

43

10. The Anglican Churches in Australia and Tasmania are all organised on the basis that they are not merely Churches "in communion with" or "in connection with" the Church of England, but are actual parts of that Church. ... It accordingly appears to us that, in all of them, it is an essential part of their Constitution that they are subject to the same laws as are binding on that Church in England. ... Accordingly in all matters of faith and doctrine, including conformity in public worship with the Book of Common Prayer, the Church in Australia and Tasmania must be regarded as regulated by the same standards as are in force in England...

This came as a rude shock to St. Clair George Alfred Donaldson,

Archbishop of Brisbane and Batty, then Donaldson’s domestic chaplain and

secretary. According to Batty’s memoirs, both he and Donaldson had been

advised by A.F. Winnington-Ingram, Bishop of London, that the Church in

Australia was a self governing body, free from the shackles which bound

the Church of England and that consequently it was able to order and adapt

its laws and system of worship to the needs of the country.75 Winnington-

Ingram was not alone in holding this view.76

These opinions obtained from English and Australian counsel have

come to be referred to as the "Nexus Opinions", and Davis states that they

provided the impetus for the autonomy movement in the Australian

church.77 The subsequent history of that movement, which culminated in

agreement upon the terms of a constitution in 1955 and the passing of

enabling legislation by the Commonwealth and all State Parliaments, has

75 Murray, n. 39 above, at 61-62.76 Davis reports Henry Lowther Clarke, Archbishop of Melbourne, as expressing in 1909 the opinion that '[T]he Church in Victoria is not an integral part of the Church of England, but a self- governing church in full communion. ... No decision of the Judicial Committee of the Privy Council, or any other legally appointed church court in England, given subsequent to 1854 [the year in which the Church C onstitu tion A ct (Vic.) was passed], is binding on clergymen and church managers in Victoria.': Davis, n. 63 above, at 34. "Henry Lowther Clarke' 8 A.D .B . 14-15.77 Davis, as above, at 39. Throughout this thesis these opinions will be referred to as the Nexus Opinions.

44

been considered in varying depths in several works.78 In this chapter it is

proposed to consider draft constitutions which were offered for discussion

prior to commencement of the Red Book case in April, 1944, and examine

why none of them were adopted. This approach focuses attention upon

what were areas of critical disagreement and tension within the Australian

Church.

Draft constitutions were produced in 1926, 1932 and 1939.79 The

text of the 1926 draft is set out in Giles.80 For present purposes those parts

of particular importance were the provisions relating to the proposed

Supreme Tribunal, the status of Privy Council decisions, and Prayer Book

revision. The Supreme Tribunal was to be presided over by a diocesan

bishop elected by General Synod, and comprise three bishops or priests of

at least fifteen years' standing and three laymen who were to be High Court

of Australia or state Supreme Court judges or practising lawyers of at least

ten years' standing. While decisions of the Privy Council and other

English courts on matters of faith, ritual, ceremonial or discipline could be

cited to and accepted by the Supreme Tribunal, they were not to be binding

upon it. So far as Prayer Book revision was concerned, General Synod was

empowered, by canon, to permit the use of an alternative form of the

B.C.P. which had secured authority in England.81

78 The most recent and comprehensive account is that of Davis, as above, p a ssim . The matter is also dealt with in the following, among other, works: Border, n. 72 above at 273-85; Giles n. 66 above, at Chapters XIV-XVI and Documents W and X; Judd & Cable, n. 2 above, at 207-15; 222-3 and 252-6; Loane, M ow ll, , n. 1 above, at 219-27 and Elkin, A.P., The D io cese o f N ew castle A H is to ry o f the D io cese o f N ew castle, N .S.W ., Australia , Australasian Medical Publishing Company Limited, Glebe, 1955, at 686-90. From their dates of publication it follows that not all of these works deal with the entire history of the autonomy movement.79 Although Davis, n. 63 above, at 96, refers to a 1936 draft, there is no mention of a draft for this year in any of the works published after 1936 referred to in the preceding footnote. The reference to a 1936 draft in Davis may be a misprint, and was intended to be a reference to the 1932 draft.80 Giles, n. 66 above, Document W at 279-300.81 As above, at 188-9.

45

By 23 December, 1926, 20 out of 25 dioceses had accepted the draft

constitution and the Tasmanian Parliament had passed enabling

legislation.82 Ultimately the draft was approved by all dioceses except

Sydney.83 In Sydney the draft was referred to the Standing Committee of

Synod in order that it might report to the 1927 Synod. The Standing

Committee's report identified three areas of concern: breach of the nexus;

the Supreme Tribunal, and the unrestricted power of standards and

fundamentals.84 Adopting a device which it was to use in the future, the

Sydney Synod passed a conditional assenting ordinance; the condition

being that Sydney's remaining objections were met. Another way of

putting it is that Sydney rejected the draft as it stood and required that new

provisions be inserted into it before unconditional acceptance would be

granted.85

Although other dioceses reacted coolly to Sydney’s required

amendments, they were prepared to accept them 86 However, as a result of

what Judd describes as 'legal difficulties' which subsequently arose, the

opportunity for a settlement was lost.87

Sydney was determined that any constitution would preserve the

Restoration settlement, an integral part of which was the B.C.P. Not only

is this consideration relevant in purely Australian terms, but it is also

relevant in the light of what was occurring in England at that time. In 1927

a bill providing for a revised Prayer Book was introduced into the English

Parliament. Among other things it provided for: changes to the

8283848586 87

As above, at 190-1.Davis, n. 63 above, at 70.As above, 69-70.As above, at 70.Giles, n. 66 above, at 192-4 and Judd & Cable, n. 2 above, at 212.Judd & Cable, as above.

46

Communion rite; prayers for the dead; reservation of the Sacrament, and

the wearing of eucharistic vestments. So long as prayer book reform along

those lines remained under consideration in England, evangelicals in

Sydney were more willing to consider constitutional changes as, from their

point of view, there were dangers in maintaining the existing legal nexus.

For this reason driving a hard bargain locally was seen as a way of

preserving the Restoration settlement.88 But, when the proposed Prayer

Book was rejected by the Commons in 1927 and 1928, the heat went out of

things for Sydney. For the time being the position in England was secure.

In such an atmosphere the attitude of Sydney evangelicals hardened 89

By contrast it was a hardening of Anglo-Catholic opinion which was

important in the failure of the 1932 draft. In part that was due to changes

to provisions in the 1926 draft concerning the Supreme Tribunal, re-named

as the Appellate Tribunal. In addition, there were important changes in the d ra m a tis p erso n a e . In 1934 John William Charles Wand was nominated

Archbishop of Brisbane.90 Mowll was appointed Archbishop of Sydney

and Hammond Principal of Moore College in 1933 and 1935 respectively.

They took office in these positions in 1934 and 1936 respectively. Davis

notes that the influence of key individuals was to emerge as a major factor

in debates on the 1932 draft.91 It was also about this time that, within

Sydney, the conservative evangelicals were cementing their position.

Another change which occurred between the failure of the 1926 draft

and the 1932 draft should be mentioned. Until his death in 1930 George

88 As above, at 210.89 As above, at 211-2.90 'John William Charles Wand' 12 A .D .B ., at 377 and Peart-Birins, J.S., W and o f London, Mowbray, London & Oxford, 1987. Wand wrote an autobiography: Wand, J.W.C., C hangeful P age, The A utob iography o f W illiam W and fo rm erly B ishop o f London, Hodder & Stoughton, London, 1965.91 Davis, n. 63 above, at 78-9.

47

Merrick Long, Bishop of Bathurst and later Bishop of Newcastle, had been

unofficial leader of the autonomy movement.92 His place was taken by

John Stephen Hart, Bishop of Wangaratta.93 Hart was to occupy that

position during the 1930s. It is not suggested that this change contributed

to any hardening of positions among opposing groups.

The 1932 draft was discussed at a convention held in October of that

year. As has been noted, this draft re-named the Supreme Tribunal the

Appellate Tribunal, and changed its composition. Under the 1932 draft the

president was to be a lawyer, and all clerical members were to be in

bishops' orders. When requested by a synod, the Appellate Tribunal was

also accorded the right to give an opinion on questions of the constitution's

interpretation or the validity of canon. It was required to consult with the

house of bishops where doctrine was involved, and special majorities

(including two of the three bishops) were required on any matter involving

faith, ritual, ceremonial or discipline. Prayer Book revision could be

stopped by one diocese.94 Finally, in what was to prove a significant

procedural innovation, after being unanimously approved by the

convention, the draft was referred to the dioceses, but not for a flat "yes"

or "no" as was the case in 1926. Suggested amendments for possible

incorporation in a revised draft were sought95

In Sydney the draft was considered by the Standing Committee,

which recommended that it be accepted. At its meeting in September,

1934, the Synod unanimously supported a motion that the draft be

92 'George Merrick Long', 10 A .D .B ., at 134. Long's position as the driving force for a constitution is referred to by Davis, as above, at 79.93 'John Stephen Hart', 9 A .D .B ., at 220. Davis also notes that Hart inherited Long's mantle as the driving force of the constitutional movement: Davis, as above.94 Davis, as above, at 81-2.9 As above, at 81

48

accepted.96 However, by 1933 substantial objections to the draft were

coining from the catholic wing of the Church. The Church in Queensland,

particularly through Wand, provided an organizational base for this

opposition.97 Behaving in a manner similar to that of the Sydney Synod in

respect of the 1926 draft, the Brisbane Synod expressed general approval

of the 1932 draft but raised specific objections regarding the composition

of the Appellate Tribunal and asked for a relaxation of the provisions for

future alteration of the constitution. Further, at a July, 1935 meeting of the

Continuation Committee of the 1932 convention, the Queensland

Provincial Synod moved a motion requesting that the draft be amended to

make it clear that the 39 Articles were not to be treated as having the same

authority in the Church as the Bible, the Nicene Creed, the Sacraments of

Baptism and Holy Communion and the Order of the Episcopate. Davis

states that this motion was probably the last straw for Sydney.98 If Sydney

was responsible for the failure of the 1926 draft, Brisbane, and Wand in

particular, were responsible for that of the 1932 draft. Davis quotes Bishop

Hart as saying:99

It was not Sydney which wrecked it this time, but Queensland. They would have none of the Appellate Tribunal, which Sydney would not do without.

In 1935 the Sydney Synod concluded that proposed amendments to

the 1932 draft, and particularly that which would have required approval of

three quarters of the dioceses of the Australian Church for constitutional

amendment, represented an unacceptably drastic change. By a majority of

As above, 84-5.As above, at 82 and 87.As above at 87-8.As above, at 88-9

49

189 votes to 89 it rescinded its approval of the 1932 draft.100. In his 1935

address to the Sydney Synod Mowll said:101

To Sydney, security in her freedom ... is a treasure which she ought to regard as far too precious to admit of the least possible risk ... How far will a new Constitution really terminate existing differences? How far may it result in the destruction of legitimate authority? ... I view with alarm the tendency in some directions in our Church to be moving away from the possibility of fellowship and reunion with our fellow Christians of British stock who have drunk with us of the same well of British freedom and British Christianity, stressing rather reunion and fellowship with the Orthodox and Continental Churches.

The matter was again considered in the 1936 Sydney Synod, where

the vote finally to reject the 1932 draft increased to 285 to 64.102 On that

occasion Mowll said:103

If I judge the mind of the Diocese aright, I would say that we in Sydney are concerned about safeguarding our own position. We say this quite frankly. It must not be thought however that this is our only concern. We realise that we are an integral portion of the Church in Australia, and we recognise that in the present matter as in many others our responsibilities do not terminate at our Diocesan boundaries. We affirm that we are ready to go on bearing our just share of the burden of responsibility; we claim that we have been and are still ready to make sacrifices for the common good. But we are not prepared to concur in the weakening, let alone the abandonment, of certain principles upon which it is our firm conviction that the common good depends.

The Synod passed a resolution to the effect that no constitution

would be acceptable if it failed to incorporate certain safeguards which

were defined in eight clauses.104

100101102103

104

As above, at 89Loane, M ow ll, n. 1 above, at 220.Davis, n. 63 above, at 89.Loane, M ow ll, n. 1 above, at 221.As above.

50

At this point in the consideration of the draft constitutions it is

worthwhile noting the effect of Le Fanu's election as Primate in 1935. Of

this Loane states:105

It was apparently argued by the Bishops that he [Mowll] was still too young for the office [He had turned 45 about a month before the vote was taken], or that he had not yet been long enough in Australia to acquire the knowledge or experience that were regarded as necessary [He had arrived in Sydney in 1 March, 1934 and was enthroned 12 days later]. But there was an underlying motive which could be scarcely hid. This was active dislike for the Evangelical convictions of the Archbishop and hostility to the Evangelical character of the Diocese.

Loane says that Sydney Anglicans were not deceived by reasons

bishops may have given for not electing Mowll. He also comments - from

what knowledge it is not said - that Sydney Anglicans were in full accord

with Mowll when the latter commented:106

[Sydney] has always been jealous to preserve freedom of action, and especially freedom in the choice of her chief pastor. This was something not to be surrendered for the sake of any title of honour or of office .... If I judge the spirit of Sydney Churchmanship aright, it has its roots in a deep conviction that Sydney has its own contribution to make to the life of the whole Australian Church, and she can make that contribution best if she is entirely free to make it in her own way. She has held to the belief that neither in her own interest nor in the interest of the Church as a whole can she lightly surrender that freedom.

Whatever may have been the motives for Le Fanu's election as

Primate, Judd ventures the opinion that as it was an index of Sydney's

relationship with the Australian Church, it had some connexion with the

prospects of agreeing upon a constitution. Whenever relationships were

poor the chances of agreement were slight. Conversely, Judd argues, the

10 As above, at 136.106 As above.

51

return of the primacy to Sydney after Le Fanu's death in 1946, 'signalled

the beginning of a fresh, and ultimately successful attempts at

constitutional agreement.'107 The correctness of this view will be examined

when post-World War II constitutional deliberations are considered in

Chapter XII.

After the failure of the 1932 draft, in 1937 General Synod set up a

further Constitutional Committee. While Davis says that its brief was to

review the amendments proposed by the former Continuation Committee

which had been working on the 1932 draft,108 Loane says that its brief was

to take into account the eight 'safeguards' mentioned above, and to frame a

new draft. Whichever of these interpretations is correct, while the

Committee was going about its work in late 1938, Hammond wrote for the A u stra lian Church R eco rd five articles detailing Sydney's position with

respect to the Constitution.109 Mixing tartness with accuracy, in a letter to

Bishop Burgmann of Goulbum, Batty said that Sydney's object was to '...

tie the Church in Australia irrevocably to the standards of faith and practice

formed in the sixteenth and seventeenth centuries in England.'110

Wand and H. Minton Taylor, a partner of Messrs. Allen, Allen &

Hemsley, solicitors for the Sydney Diocese, and later solicitor for the

relators, attempted to find a compromise to the Appellate Tribunal

problem. In August, 1939 a further draft constitution was circulated by the

Chairman of the Constitutional Committee, Frederick Waldegrave Head,

107 Judd & Cable, n. 2 above, at 253.108 Davis, n. 63 above, at 95.109 As above, at 97-8. Transcripts of these articles are in the Hammond papers in the Moore College Archives: Box 6, items 11, 12, 23, 97 and 98. In addition to these transcripts, which are headed 'Sydney's Position' or 'The Position of Sydney', there is a further transcript headed The Constitution of the Church of England'.110 Davis, as above, at 93.

52

Archbishop of Melbourne.111 As some of its eight safeguards had been

adopted in a modified form, in 1940 the Standing Committee of Sydney's

Synod accepted the draft with provisos. Testing his readers' credulity,

Loane says of this provisional acceptance that, '...it was the third occasion

that Sydney had shown its readiness to go forward with a Constitution in

the interest of the Church as a whole.'112

Eight must have been something of a devil's number in this context

as by July, 1941 the draft had been rejected by eight dioceses, and could

not go any further.113 For its part the Bunbury Synod in Western Australia

condemned the rigidity of the draft, the difficulty of securing any

amendment to it, the status accorded the metropolitical dioceses and

provisions dealing with the Appellate Tribunal. For his part, Batty, who

became chairman of the Constitutional Committee in 1941, squarely

blamed Sydney for the draft's failure.114

If Batty was prepared to blame Sydney, Judd offers this grim

assessment of the position from Sydney's point of view as the interwar

period drew to a close:115

[T]he lonely isolation of the Sydney diocese during the Constitutional debates generated within the diocese a suspicious and fearful ghetto mentality. Conservatism prospered. The opinions of Evangelicals who were liberal in their scholarship and outlook came under question. Conservative Evangelicals had witnessed the defeat of conservative Evangelicalism in England during Prayer Book revision; in the fight for a new Constitution, they had seen the dangers outside the Sydney citadel. The split between the conservative and liberal Evangelicals in England and

in112113

114

115

As above, at 99. ’Frederick Waldegrave Head' 9 A .D .B .., at 244-45.Loane, M ow ll, n. 1 above, at 221.As above.Davis, n. 63 above, at 100.Judd & Cable, n. 2 above, at 223.

53

their own break with liberal Evangelicals on the Constitution issue, alerted them to the threat from within.

Acknowledging the intractability of disagreement over of the

Appellate Tribunal, in 1941 Batty circulated a further draft constitution

which simply by-passed the problem, reserving the opportunity to create

such a Tribunal if and when desired.116 It is not entirely clear what

happened between the release of the 1941 draft and the 1945 General

Synod. Judd & Cable and Border do not deal with the question,117 and the

accounts in Davis and Loane are difficult to reconcile.118 As to outcome,

Davis says that as a result of the 1945 General Synod the Constitutional

Committee prepared a revised draft in 1946.119 Loane says that a

resolution was passed to refer the matter back to a Continuation Committee

with instructions to restore to it from the 1932 draft the sections relating to

the Appellate Tribunal, and that the result of this was the 1946 draft.120

However, for the purposes of this chapter it is sufficient to note that at the

commencement of the Red Book case no agreement had been secured, and

none was in prospect.

That said, it is worth noting the following comments of Mowll to the

1945 Sydney Synod which met prior to that year’s General Synod:121

The real reason why the Church in Australia has been so long in framing a Constitution such as is desired is not I think to be found in the very serious objections already mentioned ... There is a deeper reason, which we must face if we are to do justice to those for whom we propose to legislate. There is a wide difference of opinion as to the value of our present Book of Common Prayer. I

116 Davis, n. 63 above, at 104.117 The relevant time period in covered in Judd & Cable, n. 2 above, at 252-6, and in Border, n. 71above, at 279.

Davis, n. 63 above, at 104-111 and Loane, M ow ll, n. 1 above, at 221-3.118

119

120 121

Davis, as above, at 111.Loane, M ow ll, n. 1 above, at 223. As above, at 222-3.

54

venture to number myself amongst those who have found in it a source of spiritual strength and consolation of which I would deeply deplore being deprived. For me its measured language, its calm restraint, its comprehensive appeals, its reverent approach to God, make an ever-deepening impression as time passes. I would be content not only to live and die a member of the Church of England, but to live and die as a user of its now ancient forms of worship. But there are others who seek alterations. We would, I am sure welcome some enrichments to our Prayer Book which found a place in the rejected 1928 Book. We would not demur to minor provisions in the direction of permitting a shortening of the Services for some measure of alternative in certain circumstances. ... Unfortunately other demands are pressed upon us, and it is within the bounds of possibility that a revision might be assured with what I venture to call an accidental majority of votes in the General Synod that would press heavily upon the consciences of some members of the Church of England.

Loane describes this as perhaps the most forthright statement that

Mowll ever made on the subject of the constitution.122 Be the correctness

of this assessment as it may, what is important is that it makes

unmistakably clear the way in which Prayer Book revision was seen by

Sydney to be entwined with the constitutional question. As the Nexus

Opinions showed, an incident of the Australian Church acquiring a

constitution and becoming autonomous was the prospect of Prayer Book

revision. This was something which had probably been on the minds of

participants in the deliberations which had gone on since receipt of the

Nexus Opinions.

Mowll also spelled out the limited extent to which he would be

prepared to countenance Prayer Book revision. Today his permissible area

of revision might be described as "fine tuning." To be acceptable to Mowll

any constitution for an autonomous Australian Church would, by various

drafting devices and requirements for particular majorities in certain

122 As above, at 223.

55

circumstances, need to impose restraints to prevent revision going beyond

this, and especially to prevent something more far reaching from occurring

through an ’accidental majority of votes in the General Synod.' That he

was prepared to envisage such majorities also says something as to how

Mowll regarded members of the Australian Church from outside what Judd

has described as the Sydney citadel.

* * * *

Because no litigation occurs in a vacuum, it has been a function of

this chapter, by way of an historical approach, to identify important

features of the Australian Church at the time when proceedings were

commenced in April, 1944. If one feature of the Church was important

above all others, it was the position of the Sydney Diocese. Sydney was

set aside from the other dioceses of the Australian Church by its status as

the "Mother diocese", by its wealth, and, at the time of the Red Book Case,

by its pervading conservative evangelical character.

By 1944 Sydney had come to occupy an isolated place within the

Australian Church. In part this was due to internal factors. As

conservative evangelicalism triumphed over liberal evangelicalism in the

early years of Mowll's episcopate, Sydney became more isolated from the

Australian Church. This exacerbated the isolation which had occurred as a

result of what happened at the time of Barry's and Saumarez Smith's

appointments and as a result of the resolution of the vestments controversy

in the early years of Wright's episcopate. The organization of the Diocese

by the A.C.L., what occurred at St. James', King Street at the time of

Davidson's appointment together with his innovations after induction, and

56

Mowll's and Hammond's treatment of the Memorialists all helped to

sharpen this isolation.

Sydney's isolation was also due to external forces. Over time the

number of Australian dioceses with a strong evangelical presence

compared to the total number of dioceses declined. What was important

here was that Dioceses such as Bathurst and Goulbum, and, above all

Melbourne, lost their early evangelical character.

Deliberations for a constitution also contributed to Sydney's

isolation. At a superficial level this isolation may be seen in the allocation

of blame, fairly or otherwise, to Sydney for wrecking the chances of

success of one draft constitution or another. But, underlying Sydney's

isolation on this superficial level lay deeper questions as to the nature of

the Church, both in respect of itself and its relationship with the state, its

theology and doctrines, and its rites and formularies. Translated into the

realm of constitution making these differences raised questions concerning

declarations as to the nature of the Church, accepted standards of worship,

and mechanisms for change. A potent symbol of division was the

composition of the Appellate Tribunal. Beneath the question of whether it

should have a majority of ecclesiastics or lawyers was a difference of

opinion as to whether it ought to be those in holy orders or lawyers who

should be the final arbiters on matters of doctrine, faith, ritual, ceremonial

or discipline.

What were the implications for the Red Book case of this division of

the Australian Church? In one sense, the case dovetailed into it. As will

emerge in Chapter III, it was to Mowll whom parishioners from All Saints'

Canowindra who were dissatisfied with the Red Book turned. It was

57

Hammond who gave them assistance and advice, swore affidavits to assist

the relators in interlocutory applications, and ultimately gave evidence on

their behalf. Broughton Knox, from the staff of Moore College also gave

evidence on their behalf. It was Allen, Allen & Hemsley, the Diocese’s

solicitors who acted for the relators. Being representative of Sydney opinion, their cause received support in the A u stra lian C hurch R ecord . It

was also in Sydney that efforts were made to raise funds to defray the

relators' costs in the case.

Conversely, it was to Famham Maynard, vicar of St. Peter's Eastern

Hill, Melbourne's most prominent Anglo-Catholic parish that Wylde turned

for advice both in the compilation of the Red Book and throughout the

case.123 Such advice was willingly given. Wylde also sought and received

assistance from de Witt Batty, Bishop of Newcastle. Batty gave much

advice behind the scenes to Wylde's solicitors and counsel, and later gave

expert evidence on his behalf. Finally, aside from unsolicited donations, it

was largely from the Church outside the Sydney and Bathurst Dioceses

that attempts were made to raise funds to assist Wylde in meeting his costs.

There were also connexions between the Red Book case and

questions raised by the constitutional deliberations outlined above.

Fundamentally, to the extent that recourse to a civil court on matters of

liturgy was involved, there was the question of whether such matters ought

to be decided within the Church or by lawyers. Secondly, to the extent that

the Red Book case was framed as a suit to restrain what were contended to

be breaches of charitable trusts, questions as to what were permissible uses

123 An account of Maynard's incumbency at St. Peter's Eastern Hill is given in Holden, C., F rom T ories a t P ra yer to Socialists a t M ass - St. P eter's E astern H U E M elbourne 1 8 4 6 -1 9 9 0 , Melbourne University Press, Melbourne, 1996, especially at Chs. 15 and 16. That account does not refer to the Red Book case.

58

of church property, and the point at which property rights might be

jeopardized arose. As Davis has noted, one object of the constitutional

deliberations was to secure autonomy without sacrificing church property.

Because the Red Book involved deviations from the Book of Common

Prayer, it raised, albeit in a different guise, Prayer Book revision, which

was an acknowledged possible consequence of autonomy.

Little will be said in the succeeding chapters of the threads which

have been discussed above and which gave the Red Book case its historical

pedrigee. These threads will be taken up in Chapter XII where an attempt

will be made to consider the case's place in Australian Anglican history

generally, and its significance in the post-war efforts to secure a

constitution. In the meantime, the discussion in this chapter assists in

understanding what occurred as the case progressed.

59

CHAPTER III

FROM COMPILATION TO LITIGATION

Although initially evangelical in character, the Bathurst Diocese had

ceased to be so by the end of World War I. Samuel Edward Marsden, who

was Bishop between 1870 and 1885 was an evangelical.1 His successor,

Charles Edward Camidge, Bishop from 1888 to 1911, was a moderate

churchman with Tractarian leanings.2 Camidge's successor, George

Merrick Long, Bishop from 1911 to 1927, was a high churchman.3 When

Long was translated to Newcastle in 1927, Horace Crotty, Dean of

Newcastle was elected Bishop of Bathurst.4

Within the New South Wales Province there was antagonism

between Sydney and rural dioceses, and between Sydney and Bathurst in

particular.5 This general antagonism went back to the nineteenth century

when the Diocese of Australia was divided, and had its roots in financial

considerations. Particularly important here was Sydney's appropriation to

1 'Samuel Edward Marsden', 5 A .D .B ., at 212-3.2 'Charles Edward Camidge', 7 A .D .B ., at 541-2.3 'George Merrick Long', 10 A.D .B ., at 134-5.4 Crotty does not have an entry in the A.D .B . A not particularly flattering portrait of him is in Whittall, C.G., "My L and o f Righteousness?" The Life an d Times o f A rn o ld L om as W ylde. UnpublishedM. A. Thesis, University of Sydney, 1986 at 54-67. Crotty had been an army chaplain at the time of his appointment as Dean of Newcastle in 1919. At the special Synod held in Newcastle in December, 1927 to elect Bishop Stephen's successor, Crotty received the required two-thirds majority from the laity, but not from the clergy: Elkin, A.P., The D iocese o f N ew castle, A H isto ry o f the D io cese o f N ew castle ,N . S.W ., A ustra lia , Australasian Medical Publishing Company Limited, Glebe, 1955 at 549-50 and 671. 'Reginald Stephen', 12 A .D .B ., at 65-6.5 This account is drawn from Teale, R.M., The "Red Book" Case' (1982) 12 Journal o f R elig ious H isto ry 74 at 84 and ff., and Thomas Moore', 2 A .D .B ., 254-55.

60

itself the Moore bequest. Thomas Moore died in 1840, and under the terms

of his will rents and income from certain land were given to provide an

endowment for what Loane mis-describes as the 'see of Sydney.'6 At the

time of Moore's death there was only the See of Australia. That See ceased

to exist in 1847, when from it was created the Dioceses of Sydney,

Melbourne, Newcastle and Adelaide. Rents and income from other lands

were to provide a fund to augment clergy stipends, and there was a further

gift to allow for the establishment of what is now Moore College. There

was a justly held view that country dioceses had been inadequately

endowed both at the time of the dividing of the Diocese of Australia, and at

the subsequent splitting of the Diocese of Sydney as it had been created in

1847.

The antagonism referred to above was emphasized in the case of

Bathurst following establishment of the Bush Brotherhood at Dubbo within

the Diocese in 1903. After failing to have Saumarez Smith outlaw

eucharistic vestments, Canon Mervyn Archdall turned his sights on the

Bush Brotherhood. His dislike of the Brotherhood was heightened when

various of its members, including Wylde, were elected to bishoprics.7

* * * *

Arnold Lomas Wylde was bom at Horsforth, near Leeds, in March,

1880, and in 1899 went up to University College, Oxford. He came down

with a third class degree in modem history in 1903. After three years as a

6 In his history of Moore College, Loane describes this as being 'to form an endowment for the bishopric': Loane, M.L., A C entenary H istory o f M oore T heological C ollege , Angus & Robertson, Sydney, 1955 (Loane, M oore C ollege) at 8. Clearly the intended bishopric was Australia and not Sydney.7 Archdall's opposition to the Bush Brotherhood is also noted in Broome, R.L., T reasure in E arthen V essels P ro testan t C hristianity in N ew South W ales Socie ty 1900-1914 , University of Queensland Press, St. Lucia, 1980 at 47-8. 'Mervyn Archdall', 7 A .D .B ., at 65-6.

61

lay member of Oxford House, Bethnal Green, he briefly entered

Cuddesdon College. He was made deacon in 1906, and later that year was

ordained priest by Arthur Foley Winnington-Ingram, Bishop of London.

He was assistant priest at St. Simon Zelotes, London from ordination until

1912, and vicar until 1921. With Winnington-Ingram's encouragement, he

offered for service at the Brotherhood at Dubbo. He was rector of

Gilgandra between 1923 and 1934, and Principal of the Brotherhood

between 1923 and 1928.

Following Winnington-Ingram's visit to Australia, Wylde was

consecrated coadjutor of Bathurst by Long in 1927. He remained in that

position during Crotty's episcopate, became administrator of the Diocese

following Crotty's resignation in December 1935, and Diocesan in 1937.8

The circumstances surrounding Wylde's election as Diocesan are recounted

by his biographer.9 There were two candidates, Wylde and the evangelical

Dean Holmes of Bathurst. Holmes had some support from Sydney.

Wylde's election ahead of Holmes cannot have improved the antagonism

between the Sydney and Bathurst Dioceses referred to above.

Teale doubts that Wylde was as much the Anglo-Catholic as has

been claimed.10 Although she describes Wylde as being the pastoral bishop p a r excellence, Teale also notes that in matters touching his

episcopal prerogative he was unbending to the point of intransigence.11

Bishop John McKie, who knew Wylde from the time of his own

8 This biographical sketch is drawn from Teale, n. 5 above at 81-2. It is consistent with Wylde's account of his career given in his evidence in chief at the ultimate hearing of the case before Roper, C.J. in Eq: Hammond, T.C., The Bathurst R itual Case, George M. Dash, Sydney, 1949 [?]. at 70. The fullest account of Wylde's life is Whittall, n. 4 above.9 Whittall, as above, at 68-71.10 Teale, n. 5 above, at 82.11 As above. Wylde's biographer agrees with this assessment: Whittall, n. 4 above, Chapter 4.

62

consecration in 1945 has described him as 'a man in no way uncertain in

his opinions.'12

It is not possible to identify precisely when Wylde began compiling

the Red Book. Davis says that a draft had been circulated for comment in

September, 1942, and implies that Maynard was, at that stage, a 'key

adviser'.13 While sections of the Church were aware at least some months

earlier that Wylde was working on such a project,14 it is doubtful that

Maynard was involved in the early stages of compilation as Davis

suggests.15 In writing to Maynard on 13 September, 1942 Wylde said that

his book was closely modelled on a service book then in use in the

Riverina Diocese in New South Wales.16 The Riverina book had a brown

cover, and was introduced by Bishop Reginald Halse. On 7 September,

1942 Halse wrote to Wylde stating that he was glad to hear that Wylde was

'thinking of incorporating some of the prayers of our Mass book' into the

book he was preparing. Halse said that the precursor to the Riverina book

12 McKie, J., The Red Book and All That', an address to the Victorian Branch of the Prayer Book Society, 8 December, 1994, at St. John's Toorak, Victoria at 2. A copy of this address in the Bathurst Diocese Archive.13 Davis, J.C., A ustralian Anglicans an d their Constitution, Acorn Press, Canberra, 1993, at 111.14 In the course of preparing the Red Book Wylde sought advice from John Hope of Christ Church, St. Laurence, Sydney, Charles Copp of the Community of the Ascension, Archdeacon J.R. Norman of Rockhampton and Canon E.H. Strong of Auckland: Whittall, n. 4 above, at 135.15 On 11 June, 1942, Maynard wrote to Wylde, and in a long letter which dealt with other matters, he said it would be of interest to see the book which Wylde was preparing for his Diocese: Maynard to Wylde, 11 June, 1942. Bathurst Diocese Archive, Clergy correspondence. It is not clear when Maynard received a copy of the draft, but on 17 September, 1942 he wrote a seven page letter to Wylde giving detailed comments on the draft. In view of what subsequently occurred, it is worth recording that Maynard queried the inclusion of an epiklesis in the draft. On 21 September Maynard again wrote to Wylde, offering further comments omitted from the letter of 17 September, and on 15 October he wrote to Wylde once more, to pass on Fr. Copp's comments on the second draft. Copp thought it better than the first: Bathurst Diocese Archive, Clergy correspondence.16 Davis, n. 13 above, at 111. In giving evidence at the trial, Wylde acknowledged his indebtedness to the Riverina Book in preparation of the Red Book. He said that he had been preparing it for 'quite a long time.': Hammond, n. 8, at 70. Writing to Wylde's solicitor on 8 November, 1944, Batty says that he used the Red Book while celebrating Holy Communion in Bathurst on the previous Simday, and that it did not differ in any essential respect from the Prayer Books proposed in England in 1927-28: Batty to Roxburgh, 8 November, 1944. Newcastle Diocesan Archives, Auchmuty Library, University of Newcastle (Newcastle Archives), Box A6746.

63

was a Broken Hill Book prepared by the Rev. J.H.A. Chauvel when he was

rector of that parish.17

When issued, the Red Book contained the following inside its frontcover:

THE HOLY EUCHARIST

The main object of this little book is to help our people to take their part more easily and more fully as they come to worship in the one Service which our Lord appointed. The order of the Communion Service herein is authorised for use, provided that copies of this book are made available for worshippers, and that the permission of the Bishop of the Diocese has been obtained......

Arnold Lomas Bathurst

Advent, 1942

Wylde thought that introduction of the Red Book might cause some

strife within the Diocese, but that,'... if it did we would soon get over it.'18

The Book was used in about 20 of the 45 parishes in the Diocese and,

according to evidence given by Wylde at the trial, he refused to authorize

its use if he '... thought that the people would not be quite up to it in their

standard of churchmanship'.19 Subject to what occured at Canowindra,

Wylde's evidence was that there were only two complaints about the Red

Book: one from Goolma in the parish of Gulgong, and the other from the

17 Halse to Wylde, 7 November, 1942. Bathurst Diocese Archive, Bishop's correspondence. Halse was translated to Brisbane in 1943, and as acting Primate following Le Fanu's death was involved in correspondence concerning the Red Book case. He was the archetypal ex bush brother bishop, having been the Warden of the Brotherhood (Community) of St. Barnabas in the Diocese of North Queensland 1913-1925. In the 1940s Chauvel was rector of St. Paul's, Carr Street, Perth, a leading Anglo-Catholic church in that city, and was involved in correspondence concerning the Red Book case, sometimes acting as a ’go between' for Le Fanu and Wylde.18 Hammond, n. 8, at 74. This was evidence given by Wylde at the trial before Roper, C.J. in Eq. Wylde gave evidence on 25 September 1947, when he was examined, cross examined and re-examined. He was recalled to give further evidence on 30 September: Roper, C.J. in Eq., Judge's Notebooks, Equity Cases, Volume 6, N.S.W. State Archives, Box 3/4968.19 Hammond, as above, at 70.

64

parish of Eugowra. In the former, after a visit from Wylde use continued;

in the latter Wylde requested that use cease.20

In June 1942 the Rev. John Stanley Richards became rector of All

Saints’ Canowindra,21 and the Red Book was used in that church for the

first time on Whitsun, 13 June, 1943. The first decision to introduce the

Red Book was taken in December, 1942, shortly after its release. In that

month the parish vestry resolved to purchase 100 copies. This resolution

was confirmed at a meeting held in February, 1943.22 Ernest Athol

Sharpe23 was not present at either of these meetings, and Eric Walter

Taylor Frost24 was present only at the February meeting. Richards delayed

introduction of the Red Book to co-incide with the first communion of

recent confirmees. However, he told Wylde that he had foreshadowed the

Book’s introduction in numerous addresses in the church.

20 As above, at 71. The Red Book had been withdrawn from Eugowra prior to 9 August, 1943, as a letter from Richards to Wylde bearing that date refers to the fact that it had been so withdrawn: Richards to Wylde, 9 August, 1943. Bathurst Diocese Archive, Correspondence from Canowindra. Minutes of the Anglican Church League (A.C.L.) council meeting for 15 March, 1945 noted that the Rev. Mulligan of Eugowra had joined the League. A.C.L. Minute Book, Archives, Moore College library.21 At the time of the trial he was rector of SL Barnabas', East Orange. He was ordained priest in the Ballarat Diocese in 1923, and prior to coming to the Bathurst Diocese also served in the Dioceses of Ballarat and St. Amaud, Victoria: Hammond, as above, at 66-68. He went to the Bathurst Diocese as rector of Rylestone in 1929, and remained there until moving to Canowindra in 1942. With little formal academic education and an authoritarian ritualistic approach, Richards was ill-suited to a conservative, ritually middle of the road parish [like Canowindra].': Whittall, n. 4 above, at 137.22 Richards to Wylde, 25 June, 1943. Bathurst Diocese Archive, Correspondence from Canowindra. This was a lengthy letter (Richards apologized in advance for wearying Wylde by it) written by Richards to Wylde after meetings held by vestrymen and wardens, at his rectory on 23 June. The following account relies upon this letter. The period covered by it was not the subject of evidence at the trial. Its purpose was to provide Wylde with a narrative of what had occurred in the parish after 20 June, 1943. In an accounting journal book with Holy Communion Service in other parts of the Anglican Communion' on the cover, Wylde set out in longhand an account of what occurred at All Saints' between 20 June, and a meeting which he attended in the parish on Monday, 19 July, 1943. In it, Wylde relied heavily upon Richards' letter. This accounting book is also in the Bathurst Diocese Archive.23 Sharpe was a solicitor who had practised in Canowindra since 1929, and had lived in the town since 1916. He was confirmed in 1920: Hammond, n. 8, at 13. Minutes of the A.C.L. council meeting for 15 March, 1945 noted that Sharpe had joined the League: A.C.L. Minute Books, Archives Moore College Library.24 Frost was a chartered accountant who had practised in Canowindra since 1925. He had been prepared for confirmation in St. Andrew's Cathedral, Sydney, in 1912: Hammond, as above, at 41. Minutes of the A.C.L. council meeting for 15 March, 1945 noted that Frost had joined the League: A.C.L. Minute Book, Archives Moore College Library.

65

Sharpe and Frost was not present at All Saints' on 13 June, but both

were there the following Sunday. On the morning of Wednesday 23 June,

Sharp telephoned Richards to ask if he would, that night, meet with four or

five men from the parish who were unhappy about the introduction of the

Red Book. Richards consented. After having consented to this meeting

Richards was advised by Eric Archer, the rector's churchwarden at

Canowindra, that all vestrymen had been invited to attend a meeting at

Frost's office that afternoon at 5.00 p.m. Richards protested to Sharpe

about the holding of this meeting, contending that it was unconstitutional.

According to Richards, Sharpe acknowledged this, but said that no minutes

would be kept nor any resolutions passed. Richards did not attend this

meeting but later learned from an unidentified source that it was attended

by about a dozen men, and that Sharpe stated that he had prepared 20 pages

of objections to the Red Book.

At about 7.30 p.m. most of those who had attended the meeting at

Frost's office appeared at the rectory. Frost and Sharpe spoke at length.

Others present said little. While reportedly accepting the correctness of

Richards' assertion that he was at liberty to use any form of service

authorized by the bishop, those present requested that the Red Book be

withdrawn. According to Richards they did not so much object to the

Communion service itself but to the annotations, rubrics and the like

attached to it and the other services in the Red Book.25 It was implied that

other measures could follow a refusal to withdraw the Book. From his

account of the meeting Richards does not appear to have thought that

litigation was in prospect. All that he mentioned was the possibility of up

to half a dozen resignations from the vestry.

25 This was probably an accurate reporting by Richards, as at the trial in their evidence Sharpe, Frost and Reginald Thomas Hole, a parishioner at All Saints' Cathedral Bathurst, specifically drew attention to the rubric at the consecration in the Red Book: Hammond, n. 8, at 39,41, 15,47 and 49.

66

Richards told those present at the rectory that he was not inclined to

withdraw the Book, especially in the light of the effect that this might have

on the newly confirmed. However, he told them that he was prepared to

write to Wylde about it and to abide by his decision as to whether or not

the Book should be withdrawn.

On Monday 19 July, 1943 Wylde attended a meeting at the Parish

Hall at Canowindra. It was the largest meeting held there in living

memory.26 Wylde requested only those who objected to the Red Book to

speak, and not those who favoured its use.27 According to Wylde's

evidence, at this meeting '... Athol Sharpe got up and read a very lengthy

attack by Canon T.C. Hammond, just tearing the Red Book to bits from

beginning to end.'28 The meeting was rowdy with Wylde, at its end,

bidding the people to continue using the Red Book. On going to the door

to say 'goodnight' after the meeting Frost came toward Wylde gesticulating

and gave the salute 'Heil Hitler'.29 For his part Richards gave evidence that

he recalled somebody at the meeting saying '[t]here is only one thing to do

about this man and that is to take him to Court.'30

The preceding paragraph makes it clear that the Sydney Diocese

through Hammond had become involved in the dispute on behalf of those

objecting to the Red Book at an early stage. It is not clear from the

26 In writing to Wylde on 3 July, 1943 Richards said that he understood that some organization was being undertaken by Sharpe to ensure that the meeting was well attended: Richards to Wylde, 3 July, 1943, Bathurst Diocese Archive, Correspondence from Canowindra. At the trial Richards estimated that there were about 100 persons present, and that the average attendance at a Sunday Communion service was about 40: Hammond, n. 8, at 66. These figures suggest that there had been some beating of the drum to ensure a large attendance.27 Hammond, n. 8, at 14 (Sharpe's evidence), 42 (Frost's evidence), 67 (Richards' evidence) and 73 (Wylde's evidence). This accords with Wylde's handwritten account, n. 22 above.28 Hammond, as above, at 73.29 Wylde's account, n. 22 above. Hammond, n. 8, at 42 (Frost's evidence)30 Hammond, as above, at 67.

67

secondary sources when Sydney first became involved. Taking the

accounts in the order in which they were published they were as follows.

Rodd quotes Archdeacon L.C.S. Walker, then vice-principal of the

Brotherhood of the Good Shepherd:31

They [the relators] sought the advice, in the matter of taking action against Bishop Wylde, of the then Archbishop of Sydney, Archbishop Mowll, who, I understand, informed them that he knew of no better man to help them than the Principal of Moore College, Canon T.C. Hammond. This, I understand, is how Canon Hammond and D.B. Knox and perhaps other Moore College men came into the picture.

Teale states that representations were made to Mowll, and 'His one

attempt to dissuade Wylde having failed he seems thereafter to have left

the matter in Hammond's hands.'32 She does not identify by reference to

date or means employed, the one attempt of Mowll referred to.

Judd, citing the whole of Teale's article and referring to a particular

part of evidence given at the trial, comments:33

A number of parishioners at All Saints' Canowindra objected to [the Red Book's] introduction by their new rector; both the rector and Wylde rejected their complaints. Denied satisfaction, these parishioners appealed to Archbishop Mowll as Metropolitan of New South Wales. Mowll wrote to Wylde advising him to withdraw the book from use. Further, because the Bathurst laymen were seeking advice on their ecclesiastical and legal rights, Mowll referred them to Canon T.C. Hammond of Moore College.

31 Rodd, L.C., John H ope o f C hrist Church St. Laurence, Alpha Books, Sydney, 1972, at 161. As a biography of the rector of Sydney's most prominent Anglo-Catholic parish, Rodd's work is partisan and, to a degree, polemical in its treatment of the Sydney Diocese and its representatives. Teale states that so far as it relates to the Red Book case Rodd's work relied wholly on correspondence with clergy on Wylde's side: Teale, n. 5 above, at 74 n. 1.32 Teale, as above, at 87.33 Judd, S.E.I. & Cable, K.J., Sydney Anglicans, A.I.O., Sydney, 1987, at 253.

68

Hammond's biographer contents himself with the following

observation:34

Hammond's place as an adviser to Mowll, his reputation as an Irish Protestant, a "fiery Irish cleric", his place in the corridors of church politics and his unwillingness to say "no", all drew him into a lengthy and ultimately hopeless piece of litigation in Australian courts.

Davis does not comment on how and when Sydney became

involved.35 In his biography of Mowll, and in the chapter of his history of

Moore College dealing with Hammond's term as principal, Loane makes

no mention of the Red Book case at all, let alone how Sydney first became

involved in i t36

The above accounts all agree upon that parishioners of All Saints’

Canowindra who objected to the Red Book first complained to Mowll who

referred them to Hammond. Following what happened when he relied

upon Hammond in the Memorialist controversy, Mowll must be taken to

have known what could occur when he referred the objectors from

Canowindra to Hammond. He could be expected to take up the matter

with vigour. The corollary of this is that Mowll must be taken to have

been content that such an event would ensue. The question is when was

the approach to Mowll made? It must have been between 23 June and 19

34 Nelson, W., T.C. H am m ond Irish Christian H is legacy in Ire lan d an d A u stra lia , Banner of Truth Trust, Edinburgh, 1994, at 114. Nelson's work is as partisan as Rodd's, but written by a person holding opposite sympathies.35 Davis, n. 13 above, at 111-2.36 Loane, M.L., A rchbishop M ow ll The B iography o f H ow ard W est K ilvin ton M ow ll A rch b ishop o f Sydney a n d P rim a te o f A ustra lia , Hodder & Stoughton, London, 1960. Loane's work adopts a broadly chronological approach, and makes no mention of the case where one would expect to find it, in Chapter VIII. In a way this should not surprise as Loane was almost apologetic about dealing with the Memorialist controversy in the biography. He said of it, at 148-9, It was by far the most painful controversy that ever troubled the Archbishop's leadership in the Diocese, and it only finds a place in such a record as this as an essential element in the narrative of that leadership.' Loane, M o o re C o lleg e , n. 6 above, Chapter 10 deals with Hammond's period as principal, and there is no mention of the Red Book case in it.

69

July. By the latter date Hammond had had sufficient time to consider the

Red Book, prepare a document tearing it to bits and convey that document

to Sharpe in time for the meeting held on that day.

On 20 July Richards' prediction of resignations from the Canowindra

vestry was accurately fulfilled. Seven vestrymen signed a letter of

resignation.37 The prosect of legal repercussions became apparent in the

following month. Writing to Wylde on 9 August about the election of new

vestrymen, Richards said that a legal opinion had been obtained from

Sydney. It was to the effect that a bishop was not supreme in his own

diocese. Richards also mentioned that he had heard that advice was being

sought as to whether Wylde could be restrained by injunction from using

the Red Book within the Diocese.38 39 Later that month when responding to a

request from Chauvel for copies of the Red Book, apparently intended for

delivery to Le Fanu who was interested in establishing a Provincial use in

Western Australia, Wylde asked that the Primate step carefully, as

Hammond had commented unfavourably on the book, and there was '...a

slight movement to get me reported to whatever body a bishop can be

reported to and have me severely dealt with, if possible turned out, and all

the books burned.139

On 12 October Richards again wrote to Wylde about possible

repercussions, saying that he believed 'the opposition' were still negotiating

with counsel in Sydney, and enlisting help from Mowll. He also said that

he had heard that objections had moved away from rubrics and annotations

37 The original of the signed letter is in Bathurst Diocese Archives, Correspondence from Canowindra. Of the seven who signed this letter, four became relators in the suit: Sharpe, Frost, Lester Philip Biddulph and Christopher Wren.38 Richards to Wylde, 9 August, 1943. Bathurst Diocese Archives, Correspondence from Canowindra.39 Wylde to Chauvel 27 August, 1943. Bathurst Diocese Archive, carbon copy, Correspondence from outside the Diocese.

70

and the like to a challenge to the legality of the use of the 1928 Prayer

Book. Finally he reported that those opposed to it claimed that they would

get rid of the Red Book irrespective of cost in time or money.40

Richards was well informed. On 2 November Allen, Allen &

Hemsley wrote to Wylde, Richards and the Church of England Property

Trust, Diocese of Bathurst. The letters were in substantially the same

form. Allens stated that they acted on behalf on 11 male parishioners from

All Saints' Canowindra.41 The letters drew attention to the fact that All

Saints' was held upon trust for the administration of sacraments, rites and

ceremonies according to the use of the Church of England, and that the

Red Book Communion order differed from that contained in the B.C.P. It went on to observe that the Red Book order breached the A c t o f U niform ity

and the Church o f E ngland C onstitu tions A c t A m en dm en t A ct, 1902

(N.S.W.)42 and alleged that authorization and use of the Red Book

constituted breaches of the trusts upon which All Saints' Canowindra was

held. In the absence of the Book's withdrawal from the church litigation

was threatened.

The opening shot had been fired. In view of what was to

occur later, it is noteworthy that these letters contained no allegation that

40 Richards to Wylde, 12 October, 1943. Bathurst Diocese Archive, Correspondence from Canowindra.41 Allen, Allen & Hemsley to the Rev. John S. Richards, 2 November, 1943, Allen, Allen & Hemsley to the Right Rev. A.L. Wylde, 2 November, 1943 and Allen, Allen & Hemsley to Church of England Property Trust, 2 November, 1943. Wylde had copies of these letters made and forwarded to Maynard under cover of a letter dated 15 November, 1943: Maynard papers in possession of the Ven. Dr. J.C. Davis (Maynard papers). Of the eleven parishioners five were to become relators: Sharpe, Frost, Biddulph and Wren, who are referred to in n. 37, and Dr. John Henry Priestley. Those who did not become relators were: Alfred Henry Montague Gold, Alfred Thomas Rattray, W illie Green, James Thompson, Alfred George Russell and Alexander Chamney. Of these, Rattray and Thompson had resigned as vestrymen on 20 July, 1943. It has been mentioned above that the minutes of the A.C.L. council meeting for 15 March, 1945 noted that Sharpe and Frost had joined the League. Those minutes record that Gold, Rattray, Green, Thompson, Priestley and Biddulph also joined the League. Throughout this thesis Allen, Allen & Hemsley will be referred to as Allens.42 Throughout this thesis this statute will be referred to as the 1902 Act.

71

the Red Book taught false doctrine. The allegation, to be maintained

throughout the litigation, was that it was a breach of trust to conduct a

Communion service which did not comply strictly with the B.C.P. order.

However, as the matter proceeded the ambit of the complaint widened to

include the whole Bathurst Diocese. The requirement to conduct such a service in accordance with the B.C.P. order was said to arise from the A ct

o f U niform ity and the 1902 A ct. It was not stated upon what basis the

former statute operated in New South Wales.

Wylde reacted in two ways to Allens' letter. First he retained

Messrs. Russell C. Roxburgh & Co., solicitors in Sydney to act for him.43

Secondly, under cover of a letter dated 15 November, Wylde forwarded

Maynard copies of all three letters. In so doing Wylde noted that he would

be in Melbourne later that week and would see Maynard some time on 18

November.44 Wylde and Maynard met, and it appears that at that meeting,

if not before, it was determined that Wylde would make a further visit to

Canowindra towards the end of the week 28 November - 5 December,

1943.45

43 On 12 November Roxburgh wrote a 'holding reply' to Allens advising that Wylde had arranged to travel to Melbourne, apparently on 15 November, and that he would not be returning to Sydney until about 24 November. A prompt reply was promised on his return: Roxburgh to Allens, 12, November, 1943, Correspondence in connection with All Saints' Church, Canowindra, published by Wylde, January, 1944 (<C orrespondence) at 5. On 10 November, 1943 Roxburgh had written to Wylde to say that Ernest Street was too busy to accept a brief in the matter, that A.B. Kerrigan had been briefed and that he (Roxburgh) had conferred with Kerrigan that afternoon. Kerrigan agreed with the view given to Roxburgh by Sir John Peden (whom Roxburgh had seen at the Legislative Council) that the Supreme Court would have jurisdiction in the matter: Roxburgh to Wylde 10 November, 1943. Bathurst Diocese Archive, Solicitor's correspondence. Throughout this thesis Wylde's solicitors will be referred to as Roxburgh. 'Sir John Beverley Peden', 11 A .D .B . , at 190-93.44 Wylde to Maynard, 15 November, 1943, Maynard file. In this letter Wylde identified Minton Taylor as the author of the three Allens' letters, and expressed the view that he thought the A ct o f U niform ity 'just about obsolete.' He also said that he had sent copies of Allens' letters to Halse on the basis his Riverina Book might become involved.4-5 In a letter written to Maynard on 20 November, while he was still in Melbourne, Wylde wrote, 'It will be very kind if you if you can really spare the time to write me your well thought out letter on the Eucharist Book on the lines you suggested on Thursday afternoon.': Wylde to Maynard, 20 November, 1943. Maynard papers. Maynard's comments on the Red Book were forwarded to Wylde under cover of a letter dated 27 November, 1943: Maynard to Wylde, 27 November, 1943. Bathurst Diocese Archive, Clergy correspondence.

72

The correspondence and meeting with Maynard referred to in the

preceding paragraph were to set a pattern which continued throughout the

case. Wylde turned to Maynard for advice, often on minor or tactical

matters. Such advice was always willingly given and thankfully received.

Wylde also kept Maynard abreast of developments in the case. The pattern

which emerged with Maynard came to be followed with others, particularly

Batty. The picture which emerges is one in which Wylde appeared

incapable of making a decision or taking a step in the matter without

seeking advice from at least one other source.

In what was intended to be a complete response to Allens' letter, on

24 November Roxburgh advised that Wylde would immediately withdraw

his authority for the use of the Red Book at All Saints' Canowindra and

that he would direct Richards in the manner requested. It was indicated

that in adopting this course Wylde made no admissions concerning his

authority or lack of authority to authorize the book, its illegality, or

whether its use constituted a breach of trust. Rather, it was said that Wylde

was taking these steps to avoid litigation.46 Generally speaking Wylde had

shown himself ready to comply with Allens' requests.

Wylde returned to All Saints' Canowindra on the evening of 5

December, 1943. He spoke from a prepared text, and at the end of his

address withdrew his authority for the use of the Red Book at Canowindra.

Nevertheless he commended it to those present for their personal and

individual use both in their private and public prayers.47 Subject to one

important qualification the address given on 5 December followed the

46 Roxburgh to Allens, 24 November, 1943. C orrespon den ce , n. 43 above, at 6.47 The text of the address was tendered as an exhibit (Exhibit 5) at the trial: Hammond, n. 8, at 178-80. It is also reproduced in C orrespondence n. 43 above at 7-9.

73

enclosure to Maynard's letter of 27 November. The qualification was that

Maynard's letter did not include withdrawal of the Red Book. Writing to

Maynard on 14 December, 1943, Wylde said:48

Ever so many thanks for your letter and the type-script which was exactly what I needed & which I read almost word for word as you will see if you care to read the enclosed which is word for word what I read at All Saints' Canowindra. You will not[e] one or two additions & a few necessary alterations in the last paragraph but one consequent on my having withdrawn the use of the Red Book in All Saints' Canowindra.

The above indicates that the portions of the address referring to

withdrawal of the Red Book were additions to Maynard's script, and that

they were included on legal advice. This suggests that while Wylde was

willing to take advice from Maynard, he was not inclined for it to take

precedence over legal advice.

On 21 December, 1943 Allens wrote to Roxburgh criticizing Wylde

for going to Canowindra and making statements justifying the Red Book

and his right to authorize it, when the matter was 'in the course of

negotiation'. This is curious in that in substance what Wylde had done in

his visit to Canowindra on 5 December was to give effect to the

undertaking to withdraw his authorization for the Book's use at

Canowindra. However, while Allens acknowledged Wylde's decision to

withdraw the book from All Saints', they contended that Richards was still

'in substance' using parts of it.

This letter also signalled a widening of the matter, as in it Allens

stated that they were acting for parishioners from other parishes in the

48 Wylde to Maynard, 14 December, 1943. Maynard papers. Davis, n. 13 above, at 112 quotes from this letter.

74

Diocese. They went on to allege that the book was being used in other

parishes in the Diocese, another centre within the parish of Canowindra

and by Wylde himself at All Saints' Cathedral. They advised that they had

instructions to commence proceedings to prevent the use of the Red Book

in the parish of Canowindra, All Saints' Cathedral, and throughout the

Bathurst Diocese.

This letter was also significant in that in it Minton Taylor drew out

what he saw as the connexion between the Red Book, the continuing

constitutional deliberations and Prayer Book revision. Through Roxburgh

he ventured to remind Wylde that after about 30 years' patient effort the

Church seemed to be very near to the adoption of a constitution which

made adequate provision for Prayer Book revision. He concluded by

pointing out that everything pointed to the wisdom of withdrawing the

book throughout the Diocese. If that were done immediately, the

information and statement of claim then in preparation would not be filed.

Given the analysis in Chapter II, it may not have been accurate to say that

in 1943 agreement on a constitution was near. However, the connexion

between the constitution and the Red Book case had made. It was a

connexion that was to be made by others as the case continued.

In a letter written to Maynard on 8 January, 1944, Wylde advised of

the broadening of Allens' demands. At that time Wylde said that his

inclination was not to agree to withdrawal of the Red Book from the

Diocese as a whole because if he did Allens' claims would widen further to

include other dioceses in New South Wales, and possibly elsewhere in

Australia.49 His view was understandable. While maintaining his position

concerning his prerogatives as a bishop he had met the demands made by

49 Wylde to Maynard, 8 January, 1944. Maynard papers.

75

Allens in their letter of 2 November, only to have the ambit of the claim

then promptly widened. Moreover, although he did not foresee precisely

how it would occur, Wylde was correct in predicting that in what was

happening there were implications for the Church in Australia beyond the

boundaries of his own Diocese.

The same letter was significant in two other respects. In the first

place Wylde offered his counsel's assessment of ultimate success in any

litigation that might be brought against him. He said that his counsel,

David Maughan, K.C.50 and Kerrigan thought there was little doubt that in

any proceedings Allens' clients would secure injunctive relief in respect of

the authorization and use of the Red Book. In their estimation the only

bright spot was that a court might say that such a dispute was not its

business as the Church had its own diocesan Synods and courts as well as

General Synod.51 Secondly, Wylde said that he was having all papers

connected with the Red Book printed. He mentioned this again in a letter

written to Maynard on 14 January, and in that letter said he would send

copies of those papers to '... the Australian bishops and every one else

interested.'52

One such interested person was Chauvel at St. Paul's, Carr Street,

Perth. On 21 January he wrote to Wylde saying that, as requested, he had

shown the correspondence to Le Fanu. Chauvel gave an unofficial

summary of the Primate's views,53 reporting Le Fanu as deprecating works

^ 'Sir David Maughan', 10 A .D .B ., at 453-54.51 In this letter Wylde also said that he had seen John Hope of Christ Chinch St. Laurence and that he (Hope) also thought Wylde would get an adverse decision from a secular court. According to Wylde, notwithstanding this assessment, Hope still thought that the matter should be fought to the end.52 Wylde to Maynard, 14 January, 1944. Maynard papers. Allens' letter to Roxburgh of 21 December, 1943 and Roxburgh's reply of 24 December are in C orrespon den ce n. 43 above at 9-12.53 Chauvel to Wylde, 21 January, 1944. Bathurst Diocese Archive, Correspondence from outside the Diocese.

76

such as the Red Book and Halse's Riverina book on the basis that no

bishop acting by himself could give authority for substantial variations

from the B.C.P. order. As Minton Taylor had done on 21 December, 1943,

Le Fanu saw the constitutional implications. He mentioned that as things

then stood the Church in Australia was tied by written diocesan

constitutions and the law of trusts. On tactical matters Chauvel reported Le

Fanu as thinking that having authorized the book, Wylde would be ill

advised to withdraw it. He also thought, and in this he agreed with

Wylde's assessment given on 8 January, that the dispute could not be kept

as a purely Diocesan matter and there ought to be a closing of the ranks.

Le Fanu wrote to Wylde on the same day.54 Although his letter did

not deal with all the matters covered in Chauvel’s letter, Le Fanu

emphasized that a bishop in Wylde’s position had no entitlement to

authorize a service book such as the Red Book. After saying that his own

use of the 1928 Prayer Book may have had no authority, he continued:

But your service appears to have no authority whatever. It is not 1662. It is not 1928. It is purely Arnold Bathurst backed no doubt by a good many people who would approve of it.

Le Fanu's was not the only mind concerned with the question of

Wylde's entitlement to authorize the Red Book. On 29 January, 1944 the

Rev. d'Arcy Collins, Canon residentiary of All Saints' Cathedral Bathurst,

wrote to Maynard saying that while he appreciated that in any litigation

Wylde's case was weak, he was nevertheless against appeasement.55 In a

long, chastizing response, Maynard dealt both with the question of when

there should and should not be appeasement, and the question of Wylde's

5455

Le Fanu to Wylde, 21 January, 1944. Bathurst Diocesan Archive, Bishop's correspondence.Collins to Maynard, 29 January, 1944. Maynard Papers.

77

authority to issue the Red Book.56 So far as the latter was concerned, his

analysis was more sophisticated than Le Fanu's. In Maynard's opinion

Wylde would have been within his rights if, in authorizing the Red Book,

he intended to do no more than indicate that he approved and commended

it and would not object to its use in any way which did not contravene a

sensible interpretation of the obligation to use the Book of common Prayer

If in authorizing the Red Book Wylde was intending to exclude the

B.C.P., he was exceeding his rights. This was not the first time Maynard

had sought to make this point.57 On this subject, in his letter Maynard

concluded that he personally disliked the word "authorize" when used in

connexion with books intended to be used by the congregation as aids to

worship.

On what Collins saw as appeasement, Maynard counselled the

avoidance of litigation unless there was certainty of winning the fight.

However, he did not see winning the fight simply in terms of obtaining a

favourable decision from a civil court:

[A]nd if there is to be a fight let us stand together on a ground of secure principle; then even if we lose in the civil courts we can win because of the support that adherence to clear principle always gains in the minds of unprejudiced men.You say you think the case is weak. I want to put it to you that

there is a real duty in the cause you represent in such a combat not to lose the fight. It seems to me that b[y] a little manoeuvring it should be possible to get into a position in which you would receive the support of almost the entire church. It

56 Maynard to Collins 8 February, 1944. Carbon copy, Maynard papers.57 Maynard had woven it into the script which he wrote for Wylde to use at the meeting of 5 December. In that script Maynard had written, '[In authorizing the Book] there was no intention whatever of authorising an alternative to the Book of Common Prayer. The authorisation here referred to has nothing whatever to do with the law; it refers solely to spiritual authority. The authority of the Book of Common Prayer is unique. Behind it is the law of Church and State. But this law ... is too narrow to be workable; and alteration of it has proved too difficult of accomplishment.': C orrespon den ce , n. 43 above.

78

would not then matter what the civil courts said; and I very much doubt that they would say anything adverse in such a case.

While not indicating any intention to withdraw the Red Book from

the whole Diocese as Allens were now demanding, on 23 January Wylde

wrote to Maynard saying that if possible litigation should be avoided,

especially as there would be a measure of scandal in a bishop being

brought before a civil court.58 Although in this letter Wylde appeared

minded to avoid litigation, there is no indication in it that he was prepared

to do that which alone would have achieved that result, namely withdrawal

of the Red Book from the whole of his Diocese. Further, as will appear, at

later times Wylde was to change his attitude to the case. On some

occasions he was prepared for a fight to the finish, wherever that might be.

On others, he resorted to the High Church or Anglo-Catholic position that

as the case involved a secular court's interference with what were purely

ecclesiastical matters, he would have nothing to do with it.

More importantly, this letter touched upon one of the unresolved and

perhaps insoluble mysteries of the Red Book case, that of why it occurred.

Why was it that influential and busy persons from outside the Bathurst

Diocese were prepared to devote so much time and effort on behalf of what

appears to have been a relatively small number of individuals from within

the Diocese who complained about the Red Book? Was it no more than

the altruistic wish that these people should be able to attend Communion

services conducted in accordance with the B.C.P. rite, or were those who

took up the fight and organized appeals to raise funds on behalf of the

locals doing so for some other reason? Although correspondence, some

comment in the contemporary religious press and statements in fund

58 Wylde to Maynard, 23 January, 1944. Maynard papers.

79

raising material suggest other motives, ultimately the matter is left to

surmise. Wylde, Batty and their supporters could only speculate on the

motives of their opponents. For their part their opponents either did not

commit their real motives to writing, or, if they did, such writings do not

survive.59

It was not only from Maughan and Kerrigan that Wylde received

legal advice in January, 1944. As the result of an introduction from

Maynard60 Wylde received advice from F.D. Cumbrae-Stewart. On 27

January he furnished Wylde with a lengthy handwritten advice.61 In it he

began by dealing at length with procedural matters including the fact that

the vehicle for any proceedings against Wylde would have to be a relator

action brought at the suit of the Attorney-General, but he expressed some

doubt as to whether an Attorney-General would wish to lend his name to

such a suit. On matters of substance Cumbrae-S tewart noted that while

courts would tolerate minor departures from the B.C.P. order provided that

the character or substance of the service was not changed, the Red Book

differed materially from the B.C.P. Having come to a similar conclusion to

that of Maughan and Kerrigan, Cumbrae-Stewart went on to muse upon

what an appellate court might do on the footing that proceedings against

Wylde succeeded at first instance:

59 It might reasonably have been expected that it would be from either Mowll or Hammond that any clear statement of what other motives may have prompted the assistance given to the opponents from Bathurst. So far as Mowll is concerned, his biographer states that the great mass of his personal correspondence was all destroyed unread at his request: Loane, n. 34, at 9. Although there are some of Hammond's papers in the Archives at Moore College library, there is nothing touching directly upon this question. Broughton Knox, who gave evidence for the relators, has also deposited papers in the Archives at Moore College, and they may contain material germane to this question. However, access to these papers will not be available until the papers have been catalogued: discussions between the author and Librarian, Moore College 25 October, 1996.60 Wylde to Maynard, 14 December, 1943. Maynard papers. Maynard to Wylde, 6 January, 1944. Bathurst Diocese Archive, Clergy correspondence.61 Cumbrae-Stewart to Wylde, 27 January, 1944. Bathurst Diocese Archive, Layperson's correspondence. There is a typescript of the letter in the Maynard papers.

80

But I think no matter what some Low Church Judge of the Supreme Court might think, the High Court would say, "The primary idea of the trust to use land is 'as a Church' for the spiritual benefit of the congregation, and qualifying words that follow are words of expansion and not limitation so that, as long as there is a substantial compliance with them, the building can be used for all other beneficial purposes."

Aside from showing a degree of cynicism about judges of the

Supreme Court of New South Wales, Cumbrae-Stewart otherwise

exhibited a fair degree of perspicacity. He correctly foresaw that an

argument to the effect that the Red Book was a private devotional work

rather than a public service book would fail. Likewise he correctly

predicted that, at least at first instance, it would be held that the Red Book

contained material deviations from the Book of Common Prayer, and that

this holding would lead to the sustaining of the breach of trust allegation.

Finally he predicted that there would be a fundamental difference of

approach between the Supreme Court and the High Court in any appeal.

As well as dealing with matters of procedure and substance,

Cumbrae-Stewart also considered tactics. As a first step he recommended

withdrawal of the Red Book. He then suggested three litigious courses,

two of which involved attempting to beat Wylde's opponents and their

advisers at their own game. The first was for Wylde to promote a suit

against himself or one of his clergy for omitting specified parts of the

Prayer Book Communion order, and for Wylde to seek the Attorney-

General's permission to sue in his name. If the Attorney refused, Cumbrae-

Stewart advised that it would be a precedent against Wylde's opponents. If

the Attorney agreed, and the suit succeeded,'... the decision would have to

be nullified, for its effect would be shocking, a reason why the decision

should be in favour of a liberal rather than a narrow view of the law, which

81

would be a decision against the "enemy." ' As an alternative he suggested

that a resident of Sydney complain, like Sharpe Frost & Co' to the

Archbishop and corporate trustees of the Sydney Diocese against:

..... a set of Low Church errors and omissions. The LowChurch party fears the law too. It would be well to find someone who had subscribed to the Cathedral, and complained of the Dean and Chapter because (inter alia) they do not wear the Cope and (if I remember aright) let Dissenters preach.

Although none of these suggestions was adopted, they show that

those threatening Wylde were playing a dangerous game.62 As evidence

given at the trial was to show there were, in services conducted within the

Sydney Diocese, what were arguably material deviations from the B.C.P.

It is difficult to imagine that those proposing proceedings against Wylde

did not, at some stage of the litigation, perceive the logical consequences

of the argument they were mounting. As will appear, if they were not

aware of this before Kerrigan's cross examination of Hammond, they could

hardly have failed to be aware of it afterwards.

Wylde wrote to Maynard on 12 February, 1944, confirming receipt

of Cumbrae-Stewart's advice.63 While noting Cumbrae-Stewart's opinion

that the Red Book was a public service book and that it differed materially

from the B.C.P., Wylde did not otherwise consider the advice. In

particular, he did not refer to the proposals concerning tactics. However, it

appears that the matter was taken up with Roxburgh, as he wrote to Wylde

on 18 February advising that he had conferred with Kerrigan whose view

62 Cumbrae-Stevvart met with Maynard in early January, 1944. At that meeting he suggested the possibility of taking the initiative, presumably in one of the ways later to be outlined to Wylde. In writing to Wylde after this meeting Maynard said that he tried to point out to Cumbrae-Stewart that there were drawbacks to such a course, and that at least at that time it would be a mistake to take the initiative: Maynard to Wylde, 6 January, 1944. Bathurst Diocese Archive, Clergy correspondence. This episode is noteworthy in that it shows the different perceptions clergy and lawyers had to the evolving dispute.63 Maynard to Wylde, 12 February, 1944. Maynard papers.

82

was that the best plan was to wait and see if those objecting to the Red

Book took any action. In particular it was thought that it should be they

and not Wylde or anyone acting with his encouragement who should test

whether the Attorney, by giving his name to a relator suit, would be

prepared to permit the Crown to become involved in a dispute over ritual.64

Writing to Maynard on 19 February, Wylde said that neither he,

Richards nor Roxburgh had heard a word or received a line from Allens for

six weeks.65 In the same letter and in request for information from

Maynard,66 Wylde gave some indication as to what was the feeling on the

ground in the parish of Canowindra. He reported having received a ’very

well worded petition' from the parish's two synodsmen, two of the three

churchwardens (the other was described as 'enemy'), all nine vestrymen

and other prominent heads of church families in Canowindra expressing

indignation at the objectors' action and offering Wylde their support. For

what it may have been worth, these petitioners also expressed the view that

the Red Book was 'Anglican through and through'. Wylde also reported

strong support from St. Matthew's, Woodstock, which he described as the

one important sub-centre in the parish of Canowindra.

In the same letter Wylde estimated that of those known or named by

Allens in their letter of 2 November, 1943 as opposing the Red Book, only

three or four were church members. Some of them, whom he did not

name, were said never to have been seen in All Saints' Canowindra. He

also implied that some who may have disagreed with him over other

decisions which he had taken may have used the Red Book as a means by

64 Russell C. Roxburgh & Co. to Wylde, 18 February, 1944. Bathurst Diocese Archive, Solicitor's correspondence.65 Wylde to Maynard, 19 February, 1944. Maynard papers.66 Maynard to Wylde, 16 February, 1944. Carbon Copy, Maynard papers.

83

which to give effect to such disagreement.67 Finally, Wylde saw the

litigation then clearly in prospect as being a purely personal attack against

him, and not one directed against Richards or the Church of England

Property Trust, Diocese of Bathurst.

Although there may have been a long period of silence from Minton

Taylor, on 25 March, 1944, Wylde wrote to Maynard advising that he had

it 'on what must be considered very good authority' that the Attorney was

prepared to allow a relator action to go forward.68 Notwithstanding what

Wylde believed to be the impeccability of his source, it appears from other

correspondence that the Attorney may not, at that time, have been formally

approached to intervene, much less have made a decision to do so. On 3

April, 1944 Allens wrote to the Attorney-General advising that they were

acting for 23 relators, and requesting that the Solicitor-General allow an

information against the Bishop of Bathurst, and the Church of England

Property Trust, Diocese of Bathurst.69 Such wording suggests that this

may have been Allens' first approach to the Attorney. Both in view of the usual rule that it is the Attorney-General, who as p a re n s p a tr ia e acts as

informant in relator actions, and in view of what was to occur later in the

67 There is a very useful discussion of the relators and their sometimes poor relationships with Wylde in Whittall, n. 4 above at 137-43. Speaking of them as a group Whittall observes, Their motives for involvement in the prosecution of Wylde were mixed. They represented a body of feeling in the Diocese which resented the authoritarian manner of Wylde and his unwillingness to compromise his sacramental and liturgical beliefs to accommodate their no less rigidly dogmatic conservative ideas.': Whittall at 140-41. Whittall also notes that the relators who came from Bathurst itself had all clashed personally with Wylde, were evangelical 'in worship' and had been supporters of Dean Holmes, who was the only other contender in the contest to succeed Crotty as Bishop: Whittall at 141. Whittall also notes the possible relevance of World War II in this connexion. To those who became relators, Whittall says that the 'Red Book attempted to introduce practices associated with the Roman Catholic faith at a time when their country was at War with the nation most closely identified with this faith. ... It therefore became their duty to fight against what they perceived as Wylde's authoritarianism very much as "the boys" were fighting against totalitarian regimes outside Australia on their behalf.': Whittall at 142-43.68 Wylde to Maynard, 25 March, 1944. Maynard papers. Whether through Wylde or another source, Richards had also heard something to this effect, as on 29 March he wrote to Wylde expressing regret that the Attorney was allowing the matter to proceed: Richards to Wylde, 29 March, 1944. Bathurst Diocese Archive, Canowindra correspondence.69 Allens to Attorney-General, 3 April, 1944. New South Wales, State Archives. Attorney- General's Division, alphabetical card index to correspondence files 1939-1956. Box 11/1468.

84

Red Book case, it is worthy of note that Allens asked that the Solicitor-

General allow the information. If it be correct that Allens’ letter of 3 April

was the first departmental approach made, things moved swiftly thereafter.

Proceedings were commenced on 19 April, 1944.70

Wylde's letter of 25 March is noteworthy in another respect. On

information gleaned from an unnamed priest, Wylde told Maynard that in

any proceedings the Red Book would be of secondary importance, and that

ornaments such as sanctus bells and crucifixes would be at the forefront of

the attack, and:

If their main attack is to be against ornaments it will alter the situation completely - 1 could have nothing else to do but to fight them. I shall keep you posted & shall value your opinion.

It says a great deal that although Wylde may not have been prepared

to fight over the use of the Red Book or his authority as Diocesan to

authorize it, he could regard himself as having no alternative but to fight

over the placement and use of ornaments. There is perhaps also some

confusion in what he says. Relevantly, it was the Red Book which made

use of the sanctus bell and ceremonial sign of the cross mandatory or

permissible. As things then stood, if Wylde withdrew the Red Book from

his Diocese the complaints about the sanctus bell could have been expected

to evaporate.

What was said in the letter of 25 March was not an isolated response

induced by panic. A little over a month later Wylde wrote to Maynard in

similar vein.71 Although he had not been served with process, by this time

Wylde was aware that process had been issued, and for the first time that

7071

(1945) 46 S.R. (N.S.W.) 99 at 103.Wylde to Maynard, 22 April, 1944. Maynard papers.

85

an allegation of heresy had been made. He had also learned that his priest

informant was incorrect in his assessment of what the information would

contain. Wylde told Maynard:

It is not going to be the Red Book alone [that is under challenge] though that is the main thing but I am to be made to give up the sign of the Cross at the Absolution & Benediction and to get rid [of] the sanctus gongs - I conclude that I shall be required to make priests fall into line. There is also an attack on the "Epiklesis" (sic) [?] offending against Article 28.....

My withdrawal of the Red Book is possible but not giving up the sign of the cross nor any kow towing to the charge of teaching T ransubstantiation....

Again there is the element of belligerence with an overlay of

confusion. Although Wylde was prepared to withdraw the Red Book and

fight over the ceremonies and ornaments to which he referred as well as

defend himself against a charge of teaching heresy, he appears to have

been unable to appreciate that the occasion for the challenge to the

ceremonies and ornaments, and the allegation of heresy being made, was

because they were contained in the Red Book. As will appear, even at the

end of the case when Roper, C.J. in Eq.'s orders as varied by the High

Court were under discussion, Wylde appeared to care more about his

entitlement to make the sign of the cross at the absolution and benediction

than other questions which, by that time, had been agitated for more than

four and a half years. His position becomes stranger still when it is

recalled that in his authorization of the Red Book Wylde said that his main

purpose in compiling it had been to assist the laity.

Three days later Wylde expressed similar sentiments to Batty.72 This

letter also demonstrates that it was at a relatively early stage that Batty

Wylde to Batty, 25 April, 1944. Newcastle Archives, Box A6746.

86

became involved in the matter giving help to Wylde. It also shows that it

was not directly through Wylde that Batty became involved. It perhaps

curious that it was through Roxburgh that Wylde first learned of Batty's

willingness to assist. As has been mentioned, Batty's assistance was to be

given throughout the case.

The following day Wylde wrote to Maynard advising that he had

been served with process. The fight was now on in earnest.

* * * *

In view of their limited scope it is understandable that the accounts

of the Red Book case published to date have paid little attention to the

period between Wylde's compilation of the Red Book, and when he was

served with process in late April, 1944. In a study such as this it is

appropriate that this period be examined in more detail. This more detailed

consideration has confirmed existing knowledge of what occurred.

However, by considering closely Wylde's correspondence with Richards,

Maynard and others it has added to our knowledge of the case in a number

of ways, and has also called into question some existing views.

Particularly is this so concerning the decision to introduce the Red

Book at Canowindra, what happened in the week following its introduction

in June, 1943, the meeting of 19 July and the decision taken in December,

1943 to withdraw the book from that parish. It has shown that Maynard's

role in preparation of the Red Book was not as important as Davis has

suggested and that Wylde was consulting with selected clergy on drafts of

the book before the September, 1942 date which Davis gives. Also, so far

as Maynard is concerned, it suggests that he did not influence the decision

87

to withdraw the Red Book from Canowindra. While it was known that

Wylde had based the Red Book on Halse's Riverina brown book, the

correspondence shows that the Riverina book was, in turn based upon

Chauvel's use at Broken Hill. It also shows that the question of Wylde's

taking the initiative in the matter by seeking to promote litigation and thus

try to stop his opponents from bringing proceedings against him had been

considered and rejected.

Secondly, it has raised questions concerning Sharpe's motives, and to

a lesser extent, those of Frost. It is accepted that Sharpe's initial reaction to

the Red Book on 20 June was negative to hostile. Given that he had not

been present at the meetings of December, 1942 and February, 1943 when

it was decided to purchase 100 copies of the Red Book and that decision

was ratified, Sharpe's reaction was understandable. It may also be accepted

that his initial reaction of negativity or hostility was genuine. However,

what happened after that time suggests that he may have had a wider game

plan.

In his dealings with Richards at this time Sharpe was less than

candid. If his only intention was to express concern about the Red Book, it

seems strange that, without telling Richards of the fact, he should hold a

meeting of the vestry with the apparent intention of caucusing opinion

against the Red Book. At the meeting of 23 June Richards had indicated

that he was prepared to have Wylde arbitrate on the question of whether

the Red Book should continue to be used in All Saints' Canowindra. On

that footing it is reasonable to ask why an approach was made to Mowll or

Hammond prior to Wylde making his determination? If all that was being

sought was withdrawal of the Red Book from Canowindra would it not

have been more reasonable to await Wylde's determination? In the absence

88

of a stated refusal from Wylde to withdraw his authorization to use the

book at Canowindra, any approach to Mowll or Hammond seems to have

been premature and unnecessary. At the very least it suggests that there

were some in Canowindra, and the most likely candidates are Sharpe and

Frost as they were making the running at that time, who may have been

seeking confrontation on a broader front.

There is one other matter concerning Sharpe's actions at this time

which might also be questioned. That is whether it was he who had

prepared the 20 pages of objections to the Red Book as he claimed at the

first of the evening meetings of 23 June. It seems fair to assume that it

would require a reasonable degree of learning in theology and liturgical

study to prepare such a critique within such a short time. Yet there is no

evidence that Sharpe possessed this level of learning. If he was a liturgical

scholar, he ought to have known of Wylde's debt, through Halse and

Chauvel as authors of precursors to the Red Book, to the 1928 Prayer

Book. But, according to Richards, who appears to have no motive to

record events other than as they occurred, Sharpe was prepared to have the

Red Book replaced with the 1928 Prayer Book even though he had not

seen it.73 Secondly, the way in which Sharpe handled himself in cross

examination also suggests that he did not possess the requisite level of

learning in relevant disciplines.74 Of course, if Sharpe was not the author

of this 20 page critique, the question becomes: who was? Although

Hammond is the obvious choice, it is not possible to say with certainty one

way or another whether he prepared the critique.

73 Richards to Wylde, 25 June, 1943. Bathurst Diocese Archive, Correspondence from Canowindra.74 Shape's cross examination is in Hammond, n. 8, at 15-19.

89

Correspondence from the period presently under consideration was

also notable for the musings of the ecclesiastics Le Fanu, Wylde, Maynard

and Collins concerning what they perceived to be the principal question in

the dispute which was unfolding. Among them there was agreement that

this question was authority, and it had two principal elements: did a

diocesan in Wylde's position have any entitlement to authorize deviations

from the B.C.P., and, if so what was the extent of that authority? A

second, and more practical question was whether Wylde's great mistake

was that he had authorized the Red Book rather than informally allowing it

to be used. Certainly Maynard thought this to be the case. The

ecclesiastics were also agreed that a diocesan did have limited power to

authorize deviations from the B.C.P. They were also agreed that the power

was limited, and that whatever were its precise limitations, Wylde had

exceeded them. Without any discussion of the legal niceties of episcopal

power and the law of trusts which were to occupy the minds of many

others over the next four years these ecclesiastics were of the view that

Wylde's case was weak.

90

CHAPTER IV

THE FIGHT BEGINS

The information naming Wylde and the Church of England Property

Trust Diocese of Bathurst as defendants was issued out of the Supreme

Court Registry on 19 April, 1944. When the case came on for a hearing

before Roper, C.J. in Eq. on 23 September, 1947 counsel for the Property

Trust appeared to submit.1 Accordingly, in this and succeeding chapters it

will be possible to concentrate on the proceedings so far as they related to

Wylde. The Property Trust's role in them will be considered only in so far

as it had implications for Wylde.

The information as filed was amended twice. The first occasion was

pursuant to an order made by Roper, J., as he then was, on 23 April, 1945,2

to allow the Attorney-General to be substituted as informant in place of the

Solicitor-General. The second, which was consented to, was made

1 In his judgment Roper, C.J. in Eq, who had been involved in the case since the first interlocutory application, noted, The defendant corporation is in effect and substantially has been treated as a submitting defendant. No relief is sought against it in the prayers set out in the information nor has any relief been asked against it at the hearing'.: (1948) 48 S.R. (N.S.W.) 366 at 376. Of numerous interlocutory applications, it appears that the Property Trust was represented at only two. The first was a summons for interrogatories on 26 September, 1944: Notebooks of Mr. Justice Roper, Equity Motions, Volume 8. New South Wales State Archives, Box 3/4970. The second was on 16 March, 1945 when there was before the court an application to amend the information by substituting the Attorney-General for the Solicitor General: Notebooks of Mr. Justice Roper, Equity Motions, Volume 8.2 Roper, J. unreported, 23 April, 1945. An appeal from this decision was, by majority, dismissed: S o lic ito r-G en era l v. W ylde (1945) 46 S.R. (N.S.W.) 83. (Jordan, C.J. and Halse Rogers, J., Nicholas, C.J. in Eq. dissenting) 'Sir Frederick Richard Jordan', 7 A .D .B ., at 522-3; 'Sir Percival Halse Rogers', 11 A .D .B ., at 442-3 and Harold Sprent Nicholas', 11 A .D .B ., at 21. Following the retirement of Harold Sprent Nicholas, Roper, J. became Chief Judge in Equity. In respect of applications which he determined prior to his appointment as Chief Judge in Equity his Honour will be referred to as Roper, J., and in respect of the trial, which occurred after his promotion, his Honour will be referred to as Roper, C.J. in Eq.

91

pursuant to an order of 24 June, 1947,3 and its purpose was to allow the

allegation of heresy to be withdrawn. Consequences flowing from the

initial naming of the Solicitor-General as informant and the allegation of

heresy will be referred to further in this and following chapters.

It alleged that the Church of England Property Trust Diocese of

Bathurst was the same as the body corporate of that name 'mentioned' in

the Church o f E n glan d Trust P ro p erty A c t, 1917 (N.S.W.).4 It was further

stated that some Church of England churches in the Diocese, including All

Saints' Cathedral were church trust property within the meaning of the

1 9 1 7 A c t and were vested in corporate trustees 'for the use and benefit and

purposes of the Church of England' in the Bathurst Diocese.

The information continued with the pivotal assertion that according

to the use and law of the Church of England it was illegal to use or employ

any order for administration of the Holy Communion other than that

contained in the B.C.P., that that book had been in common use in Church

of England churches in the Diocese since it was erected, and it was the

only order of administration of Holy Communion which was legal and

permissible in Church of England churches in the Diocese.5 Then followed

three complaints concerning the contents of the Red Book. The first was that it contained a prayer known as the epik lesis6 and a rubric7 which were

3 Notebooks of Mr. Justice Roper, Equity Motions, Volume 12. New South Wales State Archives, Box 3/4971.4 Throughout this thesis, this statute will be referred to as the 1917 Act.5 Underlying these assertions was acceptance of the correctness of the Nexus Opinions which have been referred to in Chapter II.6 This was on page 11 of the Red Book, and was as follows, 'Most merciful God, look graciously upon the gifts now lying before thee, and send down thy Holy Spirit upon this sacrifice, that he may make this bread the Body of the Lord, and this wine the Blood of the Lord. Amen.'7 The rubric was on page 20 of the Red Book, and was as follows, THE CONSECRATION when the bread and wine become the Body and Blood of our Lord Jesus Christ, by the power of the Holy Ghost. This prayer is said in a low voice, to express the silence of Christ at his passion, and to show the reverence and awe which priest and people ought to feel at such a time.'

92

in direct conflict with the B.C.P.8 This was the allegation of heresy.

Secondly it was contended that the Red Book made mandatory the

ceremonial sign of the cross at the absolution and the benediction, and that

such making of the sign of the cross was unlawful according to the law of

the Church of England. Thirdly, it was said that the Red Book directed the

ringing of a sanctus bell during the administration of the Holy Communion

and that this was also illegal according to the law of the Church of

England. It was then pleaded that each use of the Red Book order, each

authorization and encouragement by Wylde of other priests to use it, and

each making of the sign of the cross at the absolution and benediction and

each ringing of a sanctus bell constituted a breach of the trusts upon which

All Saints' Cathedral and other churches in the Diocese were held. By

reason of such breaches of it was contended that all members of the Church

of England in the Diocese were deprived of the benefits of the trusts upon

which All Saints' Cathedral and other Church of England churches in the

Diocese were held.

As it assumed importance later in the case, it is necessary to look

closely at the relief sought. First, the informant sought a declaration that

the use of the Communion order in the Red Book in churches in the

Diocese and the practice of the ceremonies complained of were breaches of

the trusts upon which such churches were vested in the defendant corporate

body. Secondly an injunction was sought to restrain Wylde from using or

authorizing for use in All Saints' Cathedral any order for the administration

of Holy Communion other than that contained in the B.C.P., and in

particular from using the Red Book, or authorizing its use. Thirdly, an

injunction in similar terms was sought in respect of any church in the

8 When the allegation of heresy was withdrawn, it was contended that these two items weremerely illegal additions to the B.C.P.

93

Diocese. Fourthly, an injunction was sought to restrain Wylde from using

either of the two ceremonies complained of. Finally, an order that the costs

the suit be provided for was sought.

* * * *

On the day he was served with the information Wylde wrote a

lengthy and rambling letter to Maynard.9 That Wylde did so underscores

the extent to which he relied upon Maynard. Without even making a spare

copy, Wylde forwarded his service copy of the information to Maynard

with the request that he advise on it as fully as possible in the short time

available before he was to confer with Roxburgh. He mentioned mail

times to ensure that Maynard's response would be available for the

conference.

In this letter Wylde said that although he had been inclined not to

take any part in the litigation because it involved a secular court assuming

jurisdiction over him as a bishop, at least for the time being he had changed

his mind and thought the case should be fought to the end. In part this

decision appears to have been affected by the consideration that if he did

not defend the case, it might leave 'the road open for an easy attack on John

Hope and Christ Church [St. Laurence Sydney].' Whether Hammond and

others from Sydney who were involved in the case had at that time any

intention of using the Red Book case against Christ Church remains an

open question. From his evidence tendered at the trial Hammond was well

aware that liturgical practices at that church did not follow the B.C.P. Yet

in cross examination he conceded that since his arrival in Sydney he had

taken no steps to put a stop to them. Still, the comment shows that Wylde

9 Wylde to Maynard, 26 April, 1944. Maynard papers.

94

was turning his mind to the wider implications of the case, and the effect

that his decisions in respect of it could have on the Church in Australia

generally. In this connexion, it is worth noting that in a post script to his

letter Wylde mentioned that if he unsuccessfully defended the proceedings

the result might be proceedings in Sydney for failures to comply with the

B.C.P.

Maynard wrote twice to Wylde on 28 April.10 The first letter was

written and posted before he had received Wylde's letter. In part it was

light-hearted, expressing, wrongly as it turned out, the belief that no case

would be brought 'because of the way you use your fingers’ and the like.

Then in more serious vein Maynard touched upon a topic raised in earlier

correspondence: the question of authority. Although Maynard did not

think litigation likely, there was a qualification, 'No, unless you give [sic]

your book some official status I do not think they can do anything injurious

through the civil courts.'

Maynard's second letter was much longer and quite different in tone.

He did not deal specifically with the allegations contained in the

information, but was concerned to probe what he saw as lying beneath the

surface of the litigation. This affected his view as to how Wylde should

deal with the information. The letter proceeded upon two unstated but

unmistakable assumptions. The first was that the case involved much more

than the legality or otherwise of a service book authorized for use in a rural

diocese. Secondly, that it was the Sydney Diocese or individuals of

influence within it who were promoting the litigation.

10 Maynard to Wylde, 28 April, 1944. Carbon copy, Maynard papers. Maynard to Wylde, 28 April, 1944. Bathurst Diocese Archive, Clergy correspondence. Carbon copy, Maynard papers.

95

Maynard also proceeded upon the basis that the proceedings against

Wylde were likely to succeed and ventured the opinion that the effect of

the case depended upon how Wylde behaved in respect of orders made

against him. If Wylde complied with them, Maynard thought the

consequence would be to damage prospects of the Sydney Diocese

agreeing to any constitution for an autonomous Australian Church. At the

bottom of this reasoning was the view that, from Sydney’s perspective,

recourse to secular courts for civil remedies provided a greater safeguard

for church order than any tribunal which might be created by a

constitution. In Maynard's estimation it would not be until Sydney

realized that the civil courts were 'a broken reed on which to depend’ that it

would consider the question of autonomy. In the meantime he thought that

Sydney would fight 'to the last ditch' anything which allowed the Church to

determine her own affairs.

Conversely, if Wylde disobeyed court orders Maynard saw schism as

the likely result. There would be further litigation 'securing the legal rights

and the rights of property' and there being two communions '[o]ne calling

itself the Church of England in Australia and the other perhaps claiming

autonomy.'11 On the footing that schism was a possibility, Maynard

advised caution and said that Wylde should not take any irrevocable step

without first consulting the rest of the episcopate. He also suggested that

11 Here Maynard referred to the schism which occurred in the Church in South Africa in the nineteenth century. That schism followed M errimcm v. W illiam s (1882) 12 App. Cas. 484. That case, which was a decision of the Privy Council on appeal from the Supreme Court of the Cape of Good Hope will be considered in greater detail later in this thesis. It is discussed in Phillimore, Sir Robert, The E cclesia s tica l L aw o f the Church o f England, (2nd. Ed. by Phillimore, Sir Walter and Jemmett, C.F.), Sweet & Maxwell, London and Stevens & Sons, London, 1895, Vol. 2, at 1786-88. An account from an ecclesiastical historian is Hinchcliff, P.B., The Anglican Church in South A frica , Dart on, Longman & Todd, London, 1963, at 122-29. In his letter Maynard mentioned that only recently proposals had come from the Sydney Diocese to consecrate a bishop for the schismatic Church of England in South Africa (C.E.S.A.) Some correspondence concerning this proposal is contained in: Records from the C.E.S.A. Archives, Moore College Library Archives, Unit D, Shelf 5. The Church of England of the Province of South Africa (C.E.P.S.A.) is in communion with the See of Canterbury.

96

Wylde should try to assess how civil courts might react to the case, and

attempt to evaluate in what way the states and the Commonwealth were

likely to jump in the event of a crisis such as such a schism in the

Australian Church.

Writing to Wylde within a week of Maynard, Batty showed some

deficiencies in foresight and legal knowledge.12 He wrongly thought that

the sanctus bell was lawful under the Ornaments Rubric of the B.C.P.13 He

also said he was certain that there was no legal reason to debar Wylde from

using the ceremonial sign of the cross at the absolution and benediction.

Batty also looked at the long term and to what might happen if the case

went against Wylde. His assessment was more pragmatic than Maynard's,

and, as events turned out, not far wide of the mark. Batty thought that even

if the relators succeeded in the litigation, the most that would happen

would be that Wylde would have to withdraw his endorsement of the Red

Book. However, for the time being, Batty counselled Wylde not to

withdraw the book unless ordered by a court to do so.

From the time when an appearance was entered on Wylde's behalf

consideration was being given to bringing the case to an end at an early

stage without having a hearing on the merits, and, more importantly, any

determination of critical questions by a court. Roxburgh told Batty that it

was the Attorney-General and not the Solicitor-General who ought to have

been the informant in the suit. He also noted that the subject matter of the

litigation was not suitable for determination by a civil court, but ought to

be dealt with by the bishops in General Synod. If a judge agreed with

12 Batty to Wylde, 5 May, 1944. Carbon copy, Newcastle Archives, Box A6746.13 That Rubric is in the following terms: 'And here it is to be noted, that such Ornaments of the Church, and the Ministers thereof, at all Times of their Ministration, shall be retained, and be in use, as were in the Church of E ngland , by Authority of Parliament, in the Second Year of the Reign of King E d w a rd the Sixth.'

97

either of these propositions, that would dispose of the case.14 That

Roxburgh should so express himself suggests that minds were being turned

to the ways in which these propositions might be tested at an early stage of

the case. These remarks will assume greater significance when the terms

of the defence delivered on Wylde's behalf are examined, and the course of

interlocutory applications and appeals discussed. In a way Roxburgh’s

remarks also serve as a portent for comments which Kerrigan was to make

in later correspondence as he reflected upon strategies adopted on Wylde's

behalf in the case, and the reason why they were adopted. At this point it

is appropriate merely to flag Kerrigan's correspondence, and to observe

that Roxburgh's letter lends it credibility, and removes any suggestion of

Kerrigan’s being no more than self serving comments made after the event.

Roxburgh's letter also demonstrates Batty's level of involvement in

the case at this early stage. It is also noteworthy that Roxburgh seems to

be taking Batty, who was neither his client nor a party to the case, into his

confidence over interlocutory applications which were in prospect. Batty's

close and direct contact with Roxburgh was continued throughout the

litigation.

For his part, Wylde began to wage something of a propaganda war

of his own. On 16 May he wrote to Maynard telling him that he was

writing to 'several of the Bishops' about the case, and that he was sending

the correspondence which he had had printed, together with a copy of the

Red Book and the information to Le Fanu.15 At about this time Wylde also

wrote to Chauvel, and on 20 May Chauvel wrote to Wylde advising of a 90

14 Roxburgh to Batty, 16 May, 1944. Newcastle Archives, Box A6746. An appearance was filed on 15 May, 1944. From that time Wylde had 21 days in which to deliver a defence: Wylde to Batty, 16 May, 1944. Newcastle Archives, Box A6746.15 Wylde to Maynard, 16 May, 1944. Maynard papers. The printed correspondence has been referred to in Chapter HI, n. 43.

98

minute meeting he had with Le Fanu that day.16 The Primate was reported

as being most concerned about the matter, and considering taking some

form of action. On the footing that it was 'entirely entre nous' Chauvel also

mentioned the possibility that Le Fanu might write to William Temple,

then Archbishop of Canterbury.17 Any prospect that Le Fanu might seek to

involve Canterbury in the case was short lived, as on 15 June Chauvel

advised Wylde that Le Fanu had gone cold on the idea.18

In Chapter III mention was made of Mowll's letter to Wylde of 16

June, 1944. It is now appropriate to put that letter into context.

Presumably as part of his propaganda war, on 5 June, 1944, Wylde wrote

to Mowll as Metropolitan, and to all bishops of the New South Wales

Province, furnishing them with the correspondence he had had printed and

copies of the Red Book and the information.19 Mowll replied on 8 June.20

Without entering into the merits of the case, which he said no-one could

do, the Archbishop expressed his regret that Wylde should have 'this

worry'. He also said that he was just about to leave Sydney for the country,

and that he would carefully read what Wylde had sent him. It was after

having carefully read this material that Mowll wrote his letter of 16 June.

This exchange of correspondence requires further comment. It was

noted in Chapter III that all writers to date on the Red Book case have

accepted that Sydney's involvement was initially through Mowll who then

passed the matter on to Hammond. Without questioning the correctness of

this view, it may be observed that Mowll's initial participation in the matter

^ Chauvel to Wylde, 20 May, 1944. Bathurst Diocese Archive, Correspondence from outside theDiocese.17 Temple died on 26 October, 1944. Carpenter, E. C antuar The A rch b ishops in th eir Office, Mowbray, Oxford, 1988, Part VII, Chapter 3 gives a short account of Temple's life.18 Chauvel to Wylde, 15 June, 1944. Bathurst Diocese Archive, Correspondence from outside the Diocese.19 Bathurst Diocese Archive. Carboncopies, Bishops'correspondence.20 Mowll to Wylde, 8 June, 1944. Bathurst Diocese Archive, Bishop's correspondence.

99

prior to placing it in Hammond's hands must have been cursory. The letter

of 16 June invites the reasonably clear inference that June, 1944 was the

first time that Mowll devoted any serious attention to the Red Book. In

turn this suggests that he gave little thought to the matter before referring it

to Hammond. Either he did not see the Red Book in June, 1943 and did

not ask for a copy of it, or, if he did see a copy, he did not look closely at

it. This does not gainsay the view expressed in Chapter III, that Mowll,

aware of the history of the Memorialist controversy, was prepared to suffer

whatever consequences resulted from Hammond's involvement.

Wylde spent two days in Sydney in late May and early June, 1944

consulting with counsel then engaged in preparation of a defence.21

Having further directed his mind to the matter for this purpose, Kerrigan,

had become more sanguine concerning the case's outcome. In reporting to

Maynard on his stay in Sydney, Wylde advised that, 'My counsel seems to

be getting more and more of the opinion that we have a good case.'22

Wylde's defence was filed on 14 June, 1944.23 A copy was sent to

Batty on 19 July,24 and, given Wylde's distribution of the information,

copies would have been sent to Chauvel and Maynard at about the same

time. On 24 July Batty wrote saying how much he admired Kerrigan's

ingenuity, and expressing the hope that the defence would be effective.25

21 Wylde to Maynard, 1 June, 1944. Maynard papers.22 About six weeks later Batty reported to Wylde that he had seen Roxburgh in Burwood, and that Roxburgh had said that Wylde's legal advisers were hopeful of a satisfactory result. It is not clearwhether that was a reference on Roxburgh's part to success in the proceedings after a trial on the merits, or on an interlocutory application. Batty to Wylde 10 July, 1944. Newcastle Archives, carbon copy, BoxA6746.23

24

25

Hammond, T.C., The B athurst R itual C ase, George M. Dash, Sydney, 1949 [?], at 3. Wylde to Batty, 19 July, 1944. Newcastle Archives, Box A6746.Batty to Wylde, 24 July, 1944. Bathurst Diocese Archive, Bishop's correspondence.

100

Chauvel wrote in a similar terms on the following day,26 and on 28 July

Maynard wrote praising Kerrigan's thoroughness.27 Again, the fact that

Wylde forwarded copies of the defence to Batty, Maynard and Chauvel

shows the extent to which he relied upon them at this stage of the case.

In his defence Wylde sought to answer the pivotal allegation that the

trusts upon which Church property in the Bathurst Diocese required strict

compliance with the B.C.P. in numerous ways. First, he flatly denied that

it was illegal for any bishop or priest of the Church in New South Wales to

use any order of Holy Communion other than that contained in the B.C.P.,

or that the B.C.P. contained the only order of administration of the Holy

Communion that was legal or permissible in the Bathurst Diocese.

Secondly, it was contended that 'for many years past' the B.C.P. order had

not been strictly followed in many churches in the Diocese, and that

without objection from members of the Church in the Diocese, there had

been departures from the directions in the rubrics, the order of service

itself, and alterations to the sequence of the service as set forth in the

B.C.P. Thirdly, it was stated that deviations existed in other dioceses in

Australia as well as in Canada, South Africa and New Zealand, and that by

reason of these deviations which had existed for many years, the B.C.P.

order was not the only order which was legal and permissible in Church of

England churches in the Bathurst Diocese. The legal implications of the

second and third points were not specified.

26 Chauvel to Wylde, 25 July, 1944. Bathurst Diocese Archive, Correspondence from outside the Diocese. Chauvel thought it 'pretty powerful', and, mixing metaphors, went on to observe that it would provide a court with 'ample grounds for refusing to bum its fingers in an ecclesiastical pie.'27 Maynard to Wylde, 28 July, 1944. Bathurst Diocese Archive, Clergy correspondence. As well as praising Kerrigan's handiwork, Maynard expressed the view that the litigation was a manifestation of spiritual wickedness in fairly high places.

101

Wylde then raised an answer based on art. 24 of the Constitutions scheduled to the 1902 A ct. That article was as follows:

No rule, ordinance or determination of any Diocesan or Provincial Synod shall make any alteration in the article [sic], liturgy, or formularies of the Church, except in conformity with any alteration which may be made therein by any competent authority of the Church of England in England.

It was pleaded that 'in many churches of the Church of England for

many years past' deviations from the B.C.P. order had been permitted by a

competent authority of the Church of England in England and that by

reason of the long usage of deviations so permitted, the B.C.P. order was

not the only legal or permissible order for Holy Communion in Church of

England churches in the Diocese of Bathurst. The competent authority

relied upon was not identified.

Wylde's final answer to this allegation was even more convoluted. It

began with the proposition that the P u blic W orsh ip R egu la tion A ct, 1874

(U.K.)28 regulated complaints against incumbents for wrongful ritual which

was contrary to the B.C.P., the diocesan had an unfettered right to veto the

taking of any proceedings in respect of such ritual, and that the exercise of

such veto was not reviewable by mandamus or otherwise.29 Reference was

28 3 7 & 3 8 V iet. , c .8 5 .29 This was an argument rooted in the post-Oxford Movement history of the Church of England. That movement was to generate many tensions in the Church of England in England (and elsewhere), some manifesting themselves in matters of ritual which, in turn, led to litigation. It was in this context that the P ublic W orship R egulation A ct was passed. Relevant historical analysis is to be found in Bentley, J., R itualism a n d P o litics in G reat B ritain , Oxford University Press, Oxford, 1978, passim , Chadwick, O., The V ictorian Church P art 1 1839-1859, S.C.M., London, 1987, esp. at 60-79, 167-250 and 491-511; Chadwick, O., The Victorian Church P art 2 1860-1901, S.C.M., London, 1987, esp. at 342- 66; Waddams, S.M., Law, P o litics and the Church o f England, Cambridge University Press, Cambridge, esp. at Ch. 9; Machin, G.I.T., P olitics and the Churches in G rea t B rita in 1869 -1921 , Oxford University Press, Oxford, 1987, esp. at 69-86 and 234-54; Pickering, W.S.F., A n glo-C ath olic ism A Study in R elig iou s A m biguity, S.P.C.K., London, 1989 at 41-6, Jasper, R.C.D., The D evelopm en t o f the A nglican L itu rgy 1662-1950 , S.P.C.K., London, 1989, at 40-68 and Palmer, B., R everen d R ebels, Darton, Longman & Todd, London, 1993, at 1-17, 65-157 and 245-249. What has been described as the bishop's veto was contained in s. 9 of the P ublic W orship R egulation A ct. In R. v. B ishop o f O xford (1879) 4 Q.B.D. 245, Lord Cockburn, C.J. delivering the judgment of the court (comprising himself and

102

then made to the 1928 Prayer Book which was approved by the Church

Assembly and House of Lords, but rejected by the House of Commons,30

and to the ensuing resolution of the Upper House of the Convocation of

Canterbury, being the bishops of that Province that it was 'in the exercise

of their legal or administrative discretion, which belongs to each bishop in

his own diocese', to permit liturgical practices consistent with the B.C.P. or

the 1928 Book. Wylde contended that thereafter the Communion order in

the 1928 Book had 'been frequently and continuously used and followed in

Churches in the ... Province of Canterbury' and that the Red Book fell

within the liturgical limits of the 1928 Book and so was not inconsistent

with the Communion order which was permissible in England.

The theme of a diocesan bishop's authority was taken further as

Wylde pleaded to the allegation that he permitted and encouraged priests in

his Diocese to use the Red Book. As well as denying the allegation Wylde

claimed, 'that as Bishop of the ... Diocese and by virtue of [his] office' he

authorized and permitted use of the Red Book to put an end to many long

standing deviations from the B.C.P. This was Wylde's claim to possess a ius liturgicum , and touched upon the question of authorization of the Red

Book which has been discussed in Chapter III and this chapter.

The allegation of heresy was dealt with in two ways. First, there was

a denial. Secondly, and more importantly by taking something in the

nature of a jurisdictional point, Wylde pleaded that the allegation raised

Field and Manisty, JJ.) held that the bishop had no discretion but was obliged to proceed when a complaint was made to him against a clergyman in respect of that which constituted a sufficient ecclesiastical offence. An appeal from that judgment was upheld by the Court of Appeal ((1879) 4 Q.B.D. 525) and the decision of the Court of Appeal was upheld by the House of Lords (reported su b nom . Julius v. B ishop o f O xford (1880) 5 App. Cas. 214).30 Relevant historical material concerning the rejection of the 1928 Book is to be found in Jasper, as above, at 113-48 and Campbell, J., F.E. Smith F irst E arl o f Birkenhead, Jonathan Cape, London, 1983 at 800-04.

103

matters of faith and doctrine which the Supreme Court of New South

Wales had no jurisdiction to determine. It was further asserted in answer

to the heresy allegation ’that the Supreme Court of New South Wales in

Equity has no ecclesiastical jurisdiction.' Although this jurisdictional point

was confined to the heresy allegation which was withdrawn in June, 1947,

the question of ecclesiastical jurisdiction was to be of central importance in

the judgment of Dixon, J. It also featured in Rich, J.’s judgment.

All allegations of breach of trust were denied. In addition to

answering the allegations in the information in the various ways outlined

above, Wylde raised four answers to that pleading as a whole. First, he

submitted that rules and ordinances promulgated by the Bathurst Synod

pursuant to the 1902 A c t gave a complete and adequate remedy to the

informant and relators, and that they were bound to resort to and exhaust

these means before filing the information. This, Wylde contended, they

had failed to do. The 'adequate means of remedy and redress’ were not

identified.

Secondly, in answer to complaints concerning his actions as bishop,

Wylde pleaded that a determination of General Synod accepted by the

Bathurst Diocese likewise provided 'a complete and adequate means of

remedy and redress' which the informant and relators were required to

exhaust. It was contended that they had failed so to do. Again the

'complete and adequate means of remedy and redress' were not identified.

Thirdly, it was contended that the matters complained of in the

information were matters of internal regulation and management of the

Church of England in the Bathurst Diocese, and that the informant and

relators had taken no steps to bring them before the Synod of the Diocese.

104

It was pleaded that under the 1902 A c t the Diocesan Synod was the body

empowered to deal with the order and good government of the Church of

England within the Diocese.

The final general matter concerned the way in which the proceedings

were constituted. This complaint was put in three ways. First, it was

pleaded that as the suit was one for the enforcement of charitable trusts,

because the information had not been brought in the name of the Attorney-

General, the Supreme Court had no jurisdiction to entertain it. Next, in

paragraph 27 of the defence, it was submitted that there was no office of

Solicitor-General known to the law of New South Wales entitling the

'alleged holder thereof to institute proceedings. For good measure it was also pleaded that the Solicitor-General had no locus s ta n d i to institute the

proceedings or file the information.

A short reply was filed by the informant. Perhaps unnecessarily, it

accepted some of the admissions made in the defence. Otherwise it joined

issue with that pleading, and also contended that the matters relied upon by

Wylde to answer the whole of the information did not, as matters of law,

constitute answers to it.

The pleadings filed on behalf of the informant and Wylde have been

considered in detail for a number of reasons. First, and most

fundamentally, it is the pleadings in any litigation which disclose the

nature of the proceedings, and the ambit of the dispute between the parties.

Secondly, as this is the first attempt to make a close study of the Red Book

case it is appropriate that the area of the fight as determined by the parties'

legal advisers be set forth. Finally, a detailed examination of the pleadings

in the Red Book case not only assists in understanding how the case was

105

fought at the trial but also puts into context the interlocutory applications

made by the informant and Wylde.

* * * *

The first interlocutory application generated by the defence was not

long in coming. On 28 July, Roper, J. made an order striking paragraph 27

out of the defence, apparently on the ground that it was frivolous and

vexatious in that it was not open in a defence to raise matter which, in

effect, denied the informant's solicitor's authority to institute the suit.31

Although paragraph 27 of the defence may have been struck out, this

did not mark the end of the debate concerning how the proceedings were

constituted. On 13 December, 1944 Roper, J. ordered that four questions

of law be set down for preliminary determination. They have been

summarized as follows:32

' ... (1) whether the fact that the Attorney-General was not the informant constituted a good defence; (2)(a) whether the Church Discipline Ordinance, 1942, provided complete and adequate means of remedy and redress, and (b) if so, whether the failure of the informant to resort to such means constituted a good defence; (3)(a) whether, as to the acts of the Bishop, Determination No. 2 of 2nd. August, 1891, of the General Synod, provides such means, and (b) - as in (2)(b); and (4)(a) whether the matters complained of were matters of internal regulation and management of the Church of England in the Diocese, and (b) if so, whether the failure to

31 (1945) 46 S.R. (N.S.W.) 83 at 85. Roxburgh advised Wylde of the outcome of the application by letter dated 28 July. In so doing he noted that Roper, J. ordered that the costs be the informant's costs in the cause. He also noted that the argument of the informant was to the effect that Wylde should have moved the court in a separate application that the Solicitor-General had no power to lay the information. Roxburgh to Wylde, 28 July, 1944. Bathurst Diocese Archive, Solid tor's correspondence.32 (1945) 46 S.R. (N.S.W.) 83 at 85. From Roper, J.'s Notebooks it is shown that argument on the form of questions to be determined was heard on 3 November, 1944: Judges Notebooks, Roper, J., Equity Motions, Book 7. New South Wales State Archives, Box 3/4790. The informant was the moving party in the application: Roxburgh to Wylde, 15 November, 1944, Bathurst Diocese Archives, Solid tor's correspondence.

106

proceed before the Synod of the Diocese constituted a good defence.'

Legal argument on questions 1-4 took place on 1 and 5 March, 1945,

and judgment was reserved.33 On 5 March Roxburgh wrote to Wylde

recounting developments, and in so doing mentioned that Maughan and

Kerrigan advised that if Roper, J. determined the application against

Wylde, he should apply for a Commission to take evidence in England on

the questions of doctrine and ritual raised in the suit. Maughan suggested

that W.A. Barton, son of Sir Edmund Barton, be retained.34 On 21 March

Roxburgh again wrote to Wylde explaining the procedure involved in

taking evidence on commission.35 It is difficult to know whether

correspondence recommending the taking of evidence on commission was

indicative of pessimism on the outcome of the argument on the preliminary

points, or was merely evidence of a well planned case. In the letter of 21

March, Roxburgh also noted that Maughan and Kerrigan recommended an

appeal from Roper, J.'s judgment should the preliminary points be

determined against Wylde.

While Roper, J. was reserved on the preliminary questions of law,

Allens wrote to the Attorney-General requesting that he agree to be

substituted as informant in place of the Solicitor-General,36 and less than a

fortnight later Allens filed a summons seeking leave to amend the

33 Judge's Notebooks, Roper, J., Equity Motions, Book 7. New South Wales State Archives, Box 3/4970. There was argument, and a separate judgment delivered, on the question of who should address first. The Notebooks also show detailed notes of counsels' submissions. The informant was represented by Teece, K.C. and Henry, and Maughan, K.C. and Kerrigan appeared for Wylde.34 Roxburgh to Wylde, 5 March, 1945. Bathurst Diocese Archive, Solicitor's correspondence. 'Sir Edmund Barton', 7 A .D .B ., at 194-200. Maughan was Sir Edmund's son-in-law, having married Jean, Barton's eldest daughter. 'Sir David Maughan', 10 A .D .B ., at 453-54.35 Roxburgh to Wylde, 21 March, 1945. Bathurst Diocese Archive, Solicitor's correspondence.36 Allens to Attorney-General, 2 March, 1945. Attorney-General's Division Alphabetical Card Index to Correspondence files 1939-1956. New South Wales State Archives, Box 11/1468.

107

information to achieve this result.37 The summons came before Roper, J.

on 16 March, and as Roxburgh tartly observed he 'of course, as usual,

reserved.*38 This activity on Allens' part suggests that they may have been

having second thoughts on the wisdom of requesting that the Solicitor-

General be the informant in the proceedings, and were anxious that

remedial action be taken.

On 23 April, 1945 Roper, J. delivered his judgment both on the four

preliminary questions reserved by him on 13 December, 1944, and on the

summons for leave to amend the information to substitute the Attorney-

General for the Solicitor-General as informant.39 He devoted more than

half of his judgment to the first question reserved. In his Honour's view

this question raised only the narrow legal question of whether an

information lodged in the name of the Solicitor-General was bad when the

office of Attorney-General was not vacant. He answered it in the negative,

adding that the way in which the argument had proceeded meant that the

subsidiary question of whether in the circumstances of the Red Book case

it was justifiable for the Solicitor-General to be named as informant did not

arise.

Question 2(a) was determined against Wylde much more shortly,40 on the basis that, as a matter of construction, the C hurch D isc ip lin e

O rd in a n ce , 1942 did not allow its disciplinary measures to be used against

the Bishop of the Diocese. Therefore, question 2(b) did not arise.

31 (1945) 46 S.R. (N.S.W.) 83 at 85.38 Judge's Notebooks, Roper, J., Equity Motions, Book 8. New South Wales State Archives, Box 3/4790. The informant and Wylde were represented by senior and junior counsel, and the second defendant was represented by two juniors, G.P. Stuckey (as he then was) and D.S. Hicks (as he then was). Henry read an affidavit of Taylor, sworn 13 March, 1945. Roxburgh to Wylde, 16 March, 1945. Bathurst Archive. Solicitor's correspondence. In his letter Roxburgh advised that the application had been strongly opposed.39 S olic ito r-G en era l v. W ylde & Anor., Unreported, Roper, J. 23 April, 1945.40 As above, at 9-10.

108

Question 3(a) was likewise disposed of adversely to Wylde.41 Roper, J.

noted that the Determination was for the trial of bishops for certain

offences including that of false doctrine 'with which the Statement of

Claim [sic] is principally concerned.'42 His honour decided the question on

the basis that neither the informant nor the relators had any right to invoke

the provisions of the Determination. Accordingly question 3(b) did not

arise. Question 4 was decided against Wylde on the basis that as the

information alleged breaches of charitable trusts, and that generally the

Attorney-General as the proper law officer of the Crown was entitled to

relief in such circumstances. In his Honour's view the instant case did not

fall outside this general rule.

Turning to the question posed by the second summons,43 his Honour

noted that there had been tendered in support of the application an

instruction signed by the Attorney-General to Allens to apply for leave to

amend the information, and a signed expression of a desire that the

information be amended. His Honour expressed the view that if the

Solicitor-General had been entitled to present the information in first place

then the Attorney-General, as the holder of the superior office could take

over the information at any time. But, if the Solicitor-General was not

competent to file the information in the first place, the amendment should

nevertheless be allowed 'to make the information a proper one.'

Alternatively, and apparently still assuming that the Solicitor-General was

not competent to act as informant, his Honour held that because the

information was that of the monarch, the amendment 'merely effects the

substitution of the Law Officer of the King, who is the proper person to

present the information, for one who, on a mistaken view of his position,

4* As above, at 10-11.42 As above, at 10.43 As above, at 12-13.

109

improperly presented it.' He rejected a submission to the effect that to

allow the information was analogous to allowing the substitution of one

plaintiff for another.44

Roxburgh told Wylde of the outcome, and advised that a copy of the

judgment was being obtained so that further moves might be considered.45

Roxburgh saw Batty on the same day, and suggested that he see Maughan

and Kerrigan.46 Although from the correspondence it can only be a matter

for inference, it seems that either in his discussions of 23 April with

Roxburgh, or in discussions of that or the following day with Maughan and

or Kerrigan, the possibility of taking evidence on commission was

discussed with Batty 47

By 10 May a decision to appeal from Roper, J.'s judgment had been

taken.48 It was argued before the Full Court constituted by Jordan, C.J.,

Halse Rogers, J. and Nicholas, C.J. in Eq. on 27, 28 and 29 June, 1945, and

judgment was given on 13 August.49 However, before considering the

outcome of the appeal, it is appropriate to note other events related to the

case which occurred between April and August, 1945.

* * *

44 But on the assumption that the analogy was a true one, his Honour was of the view that there was authority to allow it: A yscough v. Bullan (1889) 41 Ch. D. 341 and H ughes v. P um p H ouse H o te l C o. [1902] 2 K.B. 485 were relied upon.45 Roxburgh to Wylde, 23 April, 1945. Bathurst Diocese Archive, Solicitor's correspondence.46 Roxburgh to Wylde, 24 April, 1945. Bathurst Diocese Archive, Solicitor's correspondence.47 On 25 April Batty wrote to Roxburgh enclosing clippings from the English Church T im es and asked whether it would be sufficient to tender them to show that what was in the Red Book occurred in London with episcopal approval or whether it would be necessary to take evidence on commission to establish the point: Batty to Roxburgh, 25 April, 1945. Carbon copy, Newcastle Archives. Box A6747.48 Roxburgh to Batty, 10 May, 1945. Newcastle Archives, Box A6747. In this letter Roxburgh expressed the view that Roper, J. had confused the position of the Solicitor-General in England with that in New South Wales, pointing out that whereas the former was not a civil servant and could sign an information, the same was not true of the latter. He did not mention other matters which had been argued before and determined adversely to Wylde by Roper, J.

(1945) 46 S.R. (N.S.W.) 83.49

110

The first concerns financing the litigation. As the case progressed

Wylde and those supporting the relators appealed to those sympathetic to

their respective causes to contribute funds towards the payment of costs.

An early example occurred in late March, 1945 when the Rev. Harry Bates,

rector of St. Philip's, Eastwood, in the Sydney Diocese, appealed for

money to assist the relators.50 On 28 March Roxburgh wrote to both Bates

and Mowll about the matter. Mowll responded the following day stating

that he did not think that it warranted any action on his part. On 4 April

Allens wrote to Roxburgh advising that they acted for Bates and sought

additional information about the matter.51 Roxburgh sought further

instructions and Wylde provided a rambling response 52 So far as the

immediate matter upon which Roxburgh sought instructions was

concerned, Wylde dismissed Bates as a 'little dupe' of others such as

Hammond in the Sydney Diocese. For that reason his instructions were,

'Don't go for poor little Bates - he is only a tool in their hands.'

While it was rambling, Wylde's letter touched upon wider questions.

As might be expected Wylde again made the point that, in his view, the

Sydney Diocese was behind the relators, and in a reference to the early

days of the dispute, said that if it had not been for Hammond he would

have been able to deal easily with the situation in Canowindra. Whether

50 Bates had been made deacon in Sydney in 1940, and ordained priest in the same Diocese in 1941: Judd, S.E.I. & Cable, K.J., Sydney Anglicans, A.I.O., 1987 at 317.51 The sequence of correspondence is outlined in a letter from Roxburgh to Wylde: Roxburgh to Wylde, 5 April, 1945. Bathurst Diocese Archive, Solicitor's correspondence. Eastwood was not the only Sydney parish trying to raise funds for the relators in the early stages of the case. In writing to Batty on 28 June, 1945 Wylde enclosed a copy of a parish paper from Christ Church, Gladesville, of which Canon David James Knox, father of Broughton Knox, was rector. The parish paper of May, 1945 noted that the case was of extreme importance to the Church and had to be fought to the finish. It said that the relators should not be left to bear their own costs, and that some parishioners had paid £5 and had pledged another £15. Donors were asked to give money with the proviso that any credit balance at the end of the litigation be handed over to the Church of England Evangelical Trust, N.S.W. Wylde to Batty, 28 June, 1945. Newcastle Archives, Box A6747.52 Wylde to Roxburgh, 7 April, 1945. Carbon copy, Bathurst Diocese Archives.

I l l

this is so or not is an open question.53 Further, in a remark somewhat

unusual for a party to proceedings, Wylde said that he 'was not losing any

sleep' over the Red Book, even though he hoped that Roxburgh's efforts on

his behalf would be successful. He went on to the "bigger picture", and,

consciously or unconsciously, repeated Maynard’s point that if

unsuccessful in the proceedings, those from Sydney who had been behind

the case from the beginning would continue to attack those who differed

from them, and would endeavour to create a schism. Also, perhaps with an

eye on the constitutional question, but little grip on reality, he said that, 'If

we play our cards carefully, the days of the Sydney junta are numbered and

we may get a united (and comprehensively so) Church in Australia.'

Finally, with even less justification, he cited Mowll's letter of 29 March to

the effect that his intervention was not warranted in Bates' fundraising

activities as evidence for the proposition that Mowll was leader of the

attack on the Red Book. This hardly squares with the evidence referred to

above that prior to June 1944 Mowll appeared not even to have read the

Red Book.

* * * *

The suggestion that Wilfred Barton, K.C. be consulted concerning

taking evidence on commission was acted upon. On 22 June Barton

advised Roxburgh that he had consulted with Henry Thomas Alexander

Dashwood,54 a partner in the firm of Messrs. Lee, Bolton & Lee, solicitors

53 Teale has commented that Wylde lacked the 'gifts of persuasion and personality' of his predecessor but one as Bishop of Bathurst: Teale, R.M., The "Red Book" Case' (1982) 12 Journal o f R elig iou s H istory 74, at 84. Whittall's assessment of Wylde's personality also suggests that he would not have been able to hose down the discontent at Canowindra as easily as he thought: Whittall, C.G., 'My L and o f Righteousness?" The Life and Times o f A rno ld Lom as W ylde, Unpublished M.A. Thesis, University of Sydney, 1986 at 68-84. It might be added that Wylde's pre-existing poor relations with those who became relators also suggests that he would not have been able to deal with the situation at Canowindra as easily as he thought: Whittall at 137-42.54 Barton to Roxburgh, 22 June, 1945. Bathurst Diocese Archive, Solicitor's correspondence.

112

to the Archbishop of Canterbury. Barton reported Dash wood as naming

three persons as possibilities to take evidence on commission in London:

Claude Jenkins, a canon of Christ Church and Professor of Ecclesiastical

Law at Oxford; W.S. Wigglesworth, Esq., a barrister, Vicar General to the

Archbishop of York, and chancellor of five dioceses, and Professor L.

Hodson, who also held a Regius chair at Oxford. Dashwood preferred

Wigglesworth. While none of these men was appointed commissioner,

Wigglesworth appeared as junior counsel for Wylde when evidence was

taken on commission in December, 1946 and January, 1947. Barton

recommended that the terms of the commission be expressed broadly.

* * * *

In the appeal from Roper, J.'s judgment Wylde challenged only the

determination of questions 1 and 4 of the questions reserved on 13

December, 1944. viz. whether the fact that the Attorney-General was not

the informant constituted a good defence to the suit and whether the

matters complained of in the information were matters of internal

regulation of the Church in the Bathurst Diocese. He also challenged the

decision granting leave to amend the information55 On the hearing of the

appeal the bulk of the Full Court's time was taken up with argument on

question 1 and the decision to grant leave to amend the information.56 The

Chief Justice and Halse Rogers, J. would have dismissed the appeal on

these grounds, and Nicholas, CJ. in Eq. would have upheld it. So far as

question 4 was concerned, all judges of the Full Court agreed that the

appeal should be dismissed. Halse Rogers, J. adopted Roper, J.'s reasons

55 (1945) 46 S.R. (N.S.W.) 83 at 90 (Jordan, C.J.). This view is also reflected in counsels' submissions which dealt only with these questions (the submissions are noted at 85-90) and the judgment of Halse Rogers, J. (at 100-03). The judgment of Nicholas, CJ. in Eq. suggests, erroneously, it is submitted, that questions 2 and 3 were also agitated in the appeal ( at 105 and 110)56 (1945) 46 S.R. (N.S.W.) 83 at 90 (Jordan, CJ.) and 100 (Halse Rogers, J)

113

on the point57 and Jordan, C.J. and Nicholas, C.J. in Eq. formulated reasons

of their own.58

The purposes of this thesis are not served by dwelling upon the

differing ways in which counsel sought to impugn or uphold Roper, J.’s

judgment on question 1 and the amendment point, and the ways in which

these questions were determined in the Full Court. That said, the

judgments of Jordan, C.J. and Halse Rogers, J. on them are noteworthy in

one respect. Mention has been made above of motives which may have

underlain the decision to take various points, and particularly the challenge

to the manner in which the proceedings were constituted. From their

judgments it seems clear that the Chief Justice and Halse Rogers, J.

perceived these points as involving nothing more than point taking for its

own sake. For this reason they were strong in their criticisms of Wylde

and his legal advisers for taking these points.59

While it may not have been necessary to examine here the manner in

which submissions were put and reasons given on the points as to

constitution of the proceedings and the granting of leave to amend the

information, similar considerations do not apply to the question of whether

the matters complained of in the information were matters of internal

regulation and management in the Bathurst Diocese. This is so for three

reasons. First, because determination of the point was accepted when the

matter came on for trial before Roper, C.J. in Eq. and was not re-argued.60

Accordingly in a work which seeks to examine how the substantive matters

in dispute in the case were disposed of, it is appropriate to consider how

57 As above at 10358 As above at 95-100 (Jordan, C.J) and 110 (Nicholas, C.J. in Eq.).59 As above at 90 (Jordan, C.J.) and at 100 (Halse Rogers, J.)60 (1948) 48 S.R. (N.S.W.) 366 at 376. Roper, C.J. in Eq. noted that what he described as submissions of law had already been disposed of.

114

the question was put to and disposed of by the Full Court. Secondly, when

the judgments of Roper, C J. in Eq., and those of the High Court Justices

are considered in following chapters it will be seen that there were points

of connexion between question 4 and questions which were argued and

decided later on. Not without justification it may be said that in terms of

submissions, and of outcome so far as it related to this question, the appeal

was something of a dress rehearsal for what was to come. Finally, Jordan,

C.J.'s analysis of the 1902 A c t offered a foretaste of other problems of that

statute which perplexed lawyers in Australia and England.

Although counsel's submissions are noted in the report, the summary

of the argument is not complete.61 Maughan began with the proposition

that although framed as a relator action for the due administration of a

charitable trust, the case was merely an internal dispute as to doctrine and

ritual, a type of case that had not previously been brought before a civil

court.62 He sought to distinguish Scottish cases in which two groups were

engaged in a fight over the same property, and where there was no single

tribunal to which all disputants owed allegiance to deal with the matter.

Conversely, he argued, in the present case there was the Bathurst Synod as

a body set up by the Church under statute, the 1902 A ct, which could

determine the dispute. In his submissions, Teece made a point which was

to be repeated as the case progressed to its later stages: that it was a breach

of trust for any person to hold services in a Church of England church

otherwise than in accordance with the law of the Church of England.63

61 The submissions are noted at (1945) 46 S.R. (N.S.W.) 83 at 85-90.62 As above at 87. In this context Maughan referred to the then recently decided A ttorn ey-G en era l v. D ean a n d C h apter o f R ipon C athedral [1945] 1 All E.R. 479. This case was later included in the authorized reports, [1945] 1 Ch. 239. That case was decided by Uthwatt, J. (as he then was), and it was to this judge that Batty, calling up an old acquaintanceship, later turned for advice on the meaning of the final words of art. 24 of the constitutions scheduled to the 1902 A ct. That correspondence will be referred to in Chapter V.63 (1945)46 S.R. (N.S.W.) 83 at 88. As reported the submission does not make sense as a sentence, 'It is a breach of trust for any person to hold services in that Church otherwise than in accordance with the

115

Notwithstanding the existence of what he variously referred to as ’an

administrative tribunal' or a 'domestic body', Teece argued that 'the Court

will always interfere to prevent an ultra v ires act.'

From what has been said above it follows that Halse Rogers, J. did

not address himself to the submissions that Maughan and Teece put to the

court on this question. The Chief Justice devoted almost half of his

judgment to it. He began by outlining matters of principle which he then

professed to apply.64 The outline had two distinct elements but his Honour

did not spell out any connexion between them. First, he examined the

general law concerning voluntary associations, and noted that in many

cases the social compact between members could not be regarded as being

intended to create legally binding contractual relations such that a breach

of the association's rules would give rise to an action for breach of contract.

But, he continued, if an association possessed property and a member was

'entitled to a substantial right of a proprietary nature to participate in the

administration or enjoyment of the property, then if [the member] is

injured in this right by a breach of the rules, he may maintain a suit to

enforce his right.' As authority for this proposition his Honour relied upon C am eron v. H ogan.65

The next relevant step in Jordan, C.J.'s exposition of the law

concerned the nature of a voluntary association's rules. He noted that

generally they specified both the objects that the association was intended

to serve and the machinery by which those objects would be attained. He

continued that it was beyond power for a voluntary association to devote

Church of England.' It is submitted that the gravamen of the submission must have been as suggested in the text.64 The matters of principle are set out as above, at 95-98 and their application is at 98-100.65 (1934) 51 C.L.R. 358.

116

its activities or property for purposes other than those for the time being

authorized by its rules. Then, in a passage which made clear what he

understood to be matters of internal management of a voluntary association

he said:66

'If a member complains that the association, ... or another member, has infringed a rule, a court of justice will in general, decline to intervene if nothing more is involved than a question of "the internal management," that is, if the complaint is that something capable of being done regularly under the rules has been done irregularly, and notwithstanding that the association is of such a kind that its rules bind its members in ter se contractually or that the members have interests of a proprietary kind in its property. But, if where contractual or proprietary rights are involved, the breach complained of is the doing of something u ltra v ire s the association, and therefore incapable of being regularised, a court of justice possesses, and will exercise, jurisdiction to restrain the breach.'

Pausing here, what Jordan, C.J. appears to be saying is that a thing

pertains to internal management if it relates to the machinery by which the

objects of the association as set out in its rules are to be attained. If the

association or a member of it employs a method outside the machinery

contained in the rules to attain the association's objects, this is a matter of

internal management in which a court will not interfere. However, in his

Honour's view, something more than internal management was involved

where the association or a member of it devotes its activities or property to

attain an object other then one which, under its rules, the association is to

serve. Where this occurs, there are two circumstances in which courts will

intervene: where the rules of the association bind members in ter se

contractually, or where the members have interests of a proprietary kind in

the property of the association.

66 (1945) 46 S.R. (N.S.W.) 83 at 96.

117

Having spelled out what he understood internal management to

connote, the Chief Justice proceeded to consider the resolution of disputes

among members of a voluntary association. In so doing he noted that an

association's rules frequently constituted one or more agencies to

determine such disputes, and conferred upon such agency or agencies

authority to determine such disputes. Although his Honour's analysis

becomes confusing,67 it seems to identify two types of agency having

different powers. The first is one where the rules and any legal rights

flowing from them are such only as the agency determines, and the second

is one where the agency is a domestic tribunal with authority to determine

disputes between members as to the rights claimed to be existing under the

association's rules. In his Honour's opinion, in the former case the court's

function is limited to giving effect to the rules and rights as determined. In the second case, quoting from M acqueen v. F rack leton 68 Jordan, C.J. said

that it was no answer to an action for breach of contract that the plaintiff

might have obtained redress in some other way, unless there was a

stipulation, express or implied, that failure to obtain redress in that other

way was a condition precedent to suing for breach of contract in a civil

court.

It is at this point that the second distinct aspect of his Honour’s legal

exposition begins, as he turned from voluntary associations generally to

67 The analysis is as above, at 96-7. It is confusing in that Jordan, C.J. begins by instancing a type of agency as being one which determines the association's rules, whether particular conduct constitutes a breach of them, and what consequences flow from such breach. Having instanced this type of agency, his Honour then says it is necessary to determine whether the rules and any legal rights flowing from them are only to be such as the agency determines, or whether it is intended that the agency be only a domestic tribunal with authority to determine disputes between members over rights claimed to be already existing under existing rules. The confusion arises in that having identified a particular type of agency, the first limb of the subsequent inquiry which his Honour says is necessary appears merely to identify the same type of agency. This confusion is added to as the second limb appears to produce an agency fundamentally different in its powers to the agency which provoked the necessary inquiry in the first place.68 (1909) 8 C.L.R. 673 at 695.

118

such associations as were in law charitable. The law as here expounded is

quite different from that which had been expounded before, and as has

been noted above, there was no attempt by his Honour to offer any bridge

between the two aspects of his legal exposition. Moreover, the first part of

the exposition appears to have little relevance to his Honour's resolution of

this aspect Wylde's appeal.

Jordan, C.J. began the second part of his analysis with the

proposition that where the objects of a voluntary association were

charitable, any property acquired by it became impressed with a charitable

trust and such property could be used only to further the association's

charitable objects. The corollary of this was that the application of such

property 'for any purpose inconsistent with those objects' was a breach of

trust which would be restrained by injunction by a court exercising

equitable jurisdiction. In the light of the subsequent history of the case, it

is worthwhile noting his Honour's use of the word 'inconsistent' as the test

for a breach of trust such as would attract the intervention of a court of

equity. His Honour also noted that the rules of such an association might

provide for alteration of its rules, including those which contained its

charitable objects. It would be no breach of trust to apply the association's

property to charitable objects as modified, provided any such modifications

fell within what was authorized by the association's rules. Whether it did

or not was a matter of construction. In his Honour's view such a matter of

construction included questions of whether an association's rules

authorized modification of charitable objects, and whether any of the

association's rules were intended to be fundamental and unchangeable.

From these observations concerning voluntary associations which

were charitable, his Honour turned to churches, which, if voluntary

119

associations (as distinct from established churches such as the Church of

England in England) were bound by the same rules as charitable voluntary

associations generally.69 Questions of whether any rules were fundamental

or whether all or any of them were alterable could not be determined

objectively, but had to be ascertained by considering what was expressed

in or to be implied from the original consensual compact.70 Jordan, C.J.

noted that the original consensual compact might secure to some

designated body power to control, alter or modify the trusts and principles

originally professed by the association, with the existence of any such

power having to be proven like any other trust or principle of the

association.71

The above completed Jordan, CJ.'s exposition of what he took to be

the applicable law, and from it he turned to resolution of the problem

before the Court. After referring to the information, and noting an

agreement between the parties that, for the purpose of resolving this aspect of the appeal, reference might be had to the 1902 A c t and the Schedule to

it, he quoted a passage from the advice of the Privy Council in L ong v.

B ish op o f C a p e Town to the effect that in places where there was no

established church the Church of England was in the same position as any

other religious body, and its members could adopt rules for enforcing

discipline within their body, with such rules binding those who expressly

69 As they were to be referred to later in the case, it should be noted that as authority for this proposition his Honour cited: A ttorney-G eneral v. P earson (1817) 3 Mer. 353 at 417 [36 E.R. 135]; F orbes v. E den (1867) L.R. 1 Sc. & D. 568 at 575-6, 578, 581-4 and 588; F ree Church o f S co tlan d v. O vertoun [1904] A.C. 515 and F ielding v. H ouison (1908) 7 C.L.R. 393 at 406,423-4 and 438-9.70 Again, as they were to be referred to at later stages in the Red Book case, it is noted that Jordan, C.J. cited: C ra igda llie v. Aikman (1820) 2 Bligh 529 at 538-40 [4 E.R. 441]; A tto rn ey-G en era l v. G ould (1860) 28 Beav. 485 [54 E.R. 452] and F ree Church o f Scotland v. O vertoun [1904] A.C. 515 at 674-5 and 704 as authority for this proposition.71 The comments in the preceding two footnotes are also applicable here. The authorities relied upon were F ree Church o f Scotland v. O vertoun [1904] A.C. 515 at 645 and A tto rn ey-G en era l v. M urdoch (1851) 1 De G.M. & G. 86 at 113-4 and 121-3 [68 E.R. 183].

120

or impliedly assented to them.72 Jordan, C.J. considered whether any such

rules had been adopted by the Church of England in New South Wales. The focus was on the 1902 A c t and the Schedule to it. Before examining

the articles of the Constitutions scheduled to the 1902 A c t to which his

Honour referred it is useful to have an overview of the 190 2 A c t and

Constitutions, both for the purpose of better understanding the Chief

Justice’s reasoning, and also because the constitutions, and art. 24 in

particular, were to be of continuing importance in the case.

The preamble to the 1902 A c t referred to passage of the Amendment

of Constitutions Application Ordinance, 1895 by the New South Wales

Provincial Synod. The Ordinance 'ordained and ruled' that application

should be made to the New South Wales Parliament for the passing of a private Act to achieve three objects: the repeal of the C hurch o f E n glan d

T rust P ro p er ty M anagem ent Act; to change the Church's name from the

United Church of England and Ireland to the Church of England, and to

give effect to the constitutions scheduled to the Ordinance. These were the same as the constitutions which were scheduled to the 19 0 2 Act.

The 1902 A c t contained seven sections. The first gave the statute its

short title, and ss. 2 and 3 respectively achieved the first and second objects

referred to in the preceding paragraph. Section 4 took account of the view

that legal effect could not be given to the constitutions so far as property

management was concerned without the legislature's intervention.

Although some simplification is involved, s. 5 provided that all persons

then or thereafter holding any real or personal estate in trust 'for or on

behalf or for the use of the Church of England' did so subject to the

constitutions and any ordinances or rules made under them, and were to be

72 (1863) 1 Moo. P.C.C. (N.S.) 411 at 461.

121

bound by them as fully as if they were contained in a deed of conveyance

or trust of such legal and personal estate. Sections 6 and 7 were formal.

Section 6 provided that no ordinance or rule made under the constitutions

should be in contravention of any law or statute for the time being in force

in New South Wales and s. 7 preserved three earlier private Acts relating to

the Church of England in New South Wales.

The Constitutions comprised 28 articles. Article 1 provided for the

holding of diocesan synods and 14 articles dealt with the composition and

summoning of diocesan synods.73 Article 23 dealt with the holding of

Provincial synods. Article 3 conferred legislative power on diocesan

synods, empowering them to make ordinances in respect of all matters and

things 'concerning the order and good government of the Church of

England and the regulation of its affairs within the Diocese, including the

management and disposal of all Church property, moneys and revenues

(not diverting any specifically appropriated, or the subject of any specific

trust, nor interfering with any vested rights).' It also provided that all

ordinances of a diocesan synod were to be binding upon the bishop and his

successors and all other members of the Church within the diocese, but

only so far as such ordinances concerned such members' rights, duties and

liabilities as holding any office of the Church within the diocese.

Articles 18 - 21 dealt with clergy discipline. Article 18 empowered

diocesan synods to establish tribunals for the trial of clergymen licensed

within the diocese, and allowed them to regulate procedures for the

initiation and conduct of proceedings against the clergy. It also allowed

the Provincial synod to define the offences for which clergy might be tried,

mentioning specifically questions of doctrine and ritual. Article 19

73 Articles 2,4,5,6 and 8-17 (both inclusive)

122

provided that such tribunals, when established, would have the same

powers as were conferred upon arbitrators under ss. 6 and 16 of the A rb itra tio n A c t, 1892 (N.S.W.), and that various other procedures under

that Act would, m utatis m utandis, apply to proceedings before such

tribunals. Article 20 dealt with what might broadly be described as

incapacity of the clergy, and art. 21 with the suspension and revocation of

clergy licences. Article 24 has already been set out earlier in this chapter.

For the purposes of this thesis it is not necessary to deal with the content of

the remaining five articles of the constitutions.

After referring to ss. 4 and 5 of the 1902 A c t and arts. 3, 18, 18, 23

and 24 of the constitutions, Jordan, C.J. noted that the constitutions

contained no formulation of the doctrines or practices which it was the

purpose of churches in dioceses in the Province to foster. If they were to

be ascertained, in his Honour’s view it could only be from evidence obtained aliunde. Rather than undertake this exercise, he referred to what

he saw as shortcomings in the draftsmanship of various articles in the

constitutions and their relationship one with the other. He also noted that

while art. 18 permitted the establishment of tribunals for the trial of

clergymen, it made no provision for the trial of a bishop. Further, while it

allowed the Provincial Synod to define offences for which clergymen

might be tried, it did not provide for offences for which a bishop might be

tried. However, neither of these matters figured in his Honour’s reasons for

dismissing this part of the appeal. There followed one paragraph which

contained the core of the Chief Justice's reasons for dismissing this part of

the appeal. After repeating that the information alleged that Wylde was

committing a breach of trust by using church buildings for a purpose not

authorized by, as distinct from being inconsistent with, the trust, he

continued:

123

At the hearing of the suit, the onus will be on the informant to make good his allegations; but there is nothing in the information, or in such documents referred to in the schedule to the points of law as have been relied upon in argument, which shows that it will necessarily appear that the matter complained of is only a permissible variation of a ceremony provided for by the rules governing the church, or a mere irregularity in the performance of such a ceremony capable of being dealt with and if thought fit adopted and approved by a church authority provided by its rules, so that its authorisation would prevent its user from constituting abreach of trust....... There are no ecclesiastical courts in NewSouth Wales, and hence doctrinal questions, if they have to be determined for the purposes of litigation, must be determined by the ordinary courts of justice: B ishop o f N a ta l v. G ladston e. Hence A tto rn ey-G en era l v. R ipon C a th edra l, D ea n a n d C h a p ter is of no assistance in New South Wales.

Nicholas, C.J. in Eq. dealt with this aspect of the appeal far more

shortly, and, in so doing touched upon wider considerations than the

narrow question which fell for determination. He said:74

I feel no doubt myself of the injury which the Church of England must suffer from litigation such as this, whatever its result. In England, where the final appeal from Ecclesiastical Courts is to the Privy Council, the manner of litigation of such matters as those now involved has been considered by two Royal Commissions, one of which reported in 1883 and one in 1906. The Commission of 1906 cites a speech delivered in the House of Lords by Bishop Bloomfield [sic] in 1850, and itself refers to the unsatisfactory nature of a lay tribunal, both because of the training of its members and the difficulty of securing obedience to its decrees. In R e a d v. B ishop o f L incoln, the Archbishop of Canterbury sat with ecclesiastical assessors to consider questions similar to those mentioned in the information; and one of his assessors, Bishop Stubbs, expressed his wonder and apprehension that such questions should be litigated ... In this State there is no Ecclesiastical Court, and the Church of England, in the absence of legislation establishing a constitution of its own, is subject to the rules applicable to voluntary societies as they have been applied to

(1945) 46 S.R. (N.S.W.) 83 at 110.

124

the Church of England elsewhere than in England and to other churches in the United Kingdom. ... I can find nothing in the ordinances relating to the Diocese of Bathurst which would enable the claims made in this information to be investigated otherwise than in the Courts of this State.

* * * *

On 13 August Roxburgh advised Wylde of the Full Court’s

decision.75 The connexion between the fate of this appeal and taking

evidence on commission was brought out again, as in this letter Roxburgh

noted that he had cabled Lee, Boulton & Lee to retain and consult Wilfred

Barton, and to seek nomination of a suitable person to take the evidence.

However, while the taking of evidence on commission was being written

about, the decision of the Full Court was not to be the end of this episode

in the litigation. On 21 August Roxburgh wrote to Wylde advising that,

subject to his approval Maughan and Kerrigan were of the view that an

application for special leave to appeal to the High Court should be made.76

A form of retainer was enclosed. Wylde must have returned this retainer

swiftly, as special leave was refused on 24 September, on the basis that

only questions of practice and costs were involved.77

Maynard was advised of the Full Court’s decision, and of

developments concerning taking evidence on commission.78 As well as

bringing Maynard up-to-date about the case, Wylde was also replying to

Maynard’s letters of 3 and 17 August79 In both those letters Maynard

75 Roxburgh to Wylde, 13 August, 1945. Bathurst Diocese Archive, Solicitor's correspondence.76 Roxburgh to Wylde, 21 August, 1945. Bathurst Diocese Archive, Solicitor's correspondence.77 The refusal to grant special leave is noted at (1945) 46 S.R. (N.S.W.) 83 at 111. The reasons for such refusal were mentioned in the report of Wylde's second appeal to the Full Court: A ttorn ey-G en era l v. W ylde (1946) 47 S.R. (N.S.W.) 99 at 103. The reasons for refusal of the special leave application were confirmed by Roxburgh in a letter written to Wylde shortly after the event: Roxburgh to Wylde, 30 August, 1945. Bathurst Diocese Archive, Solicitor's correspondence.

Wylde to Maynard, 21 August, 1945. Maynard papers.Maynard to Wylde 3 and 17 August, 1945. Bathurst Diocese Archive, Clergy correspondence.

78

79

125

mentioned the possibility of Wylde meeting with 'some friends' at the

meeting of General Synod scheduled for September. From the letter of 17

August, it appears that Maynard had three things in mind: an account from

Wylde of the present position in the litigation; an indication from him of

the ways in which sympathetic elements of the Australian Church could

assist, and a discussion of what action should be taken in the event of

'secular courts invading the spiritual sphere with their pretended authority.'

Wylde was receptive to the idea of such a meeting at the time of General

Synod, expressing the view that Chauvel, Hope, d'Arcy Collins and

'several from Adelaide' would wish to be present. From his grateful

reference to the Australian Church Union's willingness to help, it seems

reasonably clear that Wylde thought one form of assistance would be

financial.

Illness prevented Maynard from attending General Synod, but while

Wylde was there he met with '[Melbourne] A.C.U. members, several

priests and quite a number of bishops also Mr. Cross, the Brisbane

solicitor, and Mr. Rigby, one of [Maynard's] Melbourne solicitors.'80 In

this letter Wylde took Maynard through the three matters which had been

mentioned in his letter of 17 August. As to the first, and with the special

leave application rejected, Wylde advised that as all interlocutory points

had been cleared out of the way, the case could now proceed, presumably

to a hearing on the merits. So far as the second was concerned, Wylde's

treatment of it confirmed that it centred upon financial matters. It is

worthy of note that Wylde proposed to put £2,000 from three legacies from

England toward the costs of the case, and that he also expected to raise

another £500 from insurance policies. He also confirmed that although it

Wylde to Maynard, 29 September, 1945. Maynard papers.

126

was not publicly known, a fund to raise money for the defence of the

proceedings had been opened in Bathurst, and said that 'others from all

states' were asking what they could do.

Although professedly considering the third point, Wylde in fact dealt

with his prospects of succeeding in the case. He reported bishops and

lawyers as all emphatically expressing the view that his only mistake was

to authorize the Red Book. He also said that Cross and Rigby suggested

that he seek opinion from England as to whether he had any chance of

successfully defending the proceedings without withdrawing his

authorization. Wylde told Maynard that he had already written to Wand in

London and to Kenneth Kirk, Bishop of Oxford, for advice, and that

Roxburgh had also written to Lee, Boulton & Lee for advice. In this

connexion he noted that one purpose in writing to experts in England was

to assist him in determining whether the proposed taking of evidence on

commission should proceed or not. Quite reasonably Wylde did not want

to incur heavy expense if the opinion was that he had no chance in the

case.

Wylde showed some ambivalence on the question of authorization.

If those in England to whom he had written recommended withdrawal of

his authorization, then there would not be one in any reprint of the Red

Book. This was subject to the pragmatic caveat that he would be prepared

to withdraw authorization if the case came on for a hearing before the

opinions sought from England were to hand. There was an element of risk

management here. At the time of Wylde's writing to Wand and Kirk all

copies of the first edition of the Red Book had sold out, and Wylde was

considering release of a second edition in Advent, 1945. But, as usual

127

Wylde sought Maynard's advice on the proposed second edition of the

work.81

Maynard's response to this letter was significant.82 In it he again

expressed the view that it was better for bishops to approve or disapprove

supplementary booklets rather than to authorize a single use. But, the

importance of the letter lay in Maynard going one step further in opposing

authorization. It was for the 'practical reason that not all bishops could be

relied upon, I suppose, to authorize only such supplements as are sound

liturgically or theologically.' Although the point was not expressly made,

and may not have occurred to Maynard at the time, there was a much wider

implication in this avowedly practical observation. If, contrary to fears

earlier expressed, authorization was not fatal to Wylde’s defence of the

proceedings and he succeeded in them, the way could be clear for other

bishops who, in Maynard's eyes lacked Wylde's theological soundness, to

authorize service books of their own. It was a point to be made more

clearly in correspondence a little over a month later.

In a wide ranging letter which will be examined in more detail

shortly, in which he again considered the question of authorization,

Maynard observed:83

It seems to me your defence of a right to "authorize” the Red Book is precarious from two points of view. First the claim might be disallowed with implications far beyond the failure of the case. Secondly, if it were successful, the success might be more disastrous than the failure if it were taken to mean that every bishop could authorize a revision of the Prayer Book for his

81 As will appear from discussion in Chapters XI and XII there was no second edition of the Red Book. There was published in Melbourne a green covered book called A dorem us. Its contents were virtually the same as the Red Book, but there was no authorization. Instead there was an Introduction from Halse, the Archbishop of Brisbane.82 Maynard to Wylde, 8 October, 1945. Bathurst Diocese Archive, Clergy correspondence.83 Maynard to Wylde, 17 November, 1945. Maynard papers, carbon copy.

128

diocese. Suppose you win your case and the book is allowed a legal status, What then? Suppose the Sydney people say: "This is certainly not what we expected, but since each diocese now has the right to put out its own version of the Prayer Book, we must certainly not be behind in putting out a really protestant one". I think we might all wish you had lost your case!

Whatever may have been the legal niceties of the case, and whatever

may have been Wylde's position, Maynard was clearly of the opinion that

the Church elsewhere in Australia was in what might be described as a "no

win" situation. Further, Maynard could see clearly what might be the

practical result of a victory for Wylde which did not involve withdrawal of

the Red Book, viz., something in the nature of liturgical anarchy. It will be

seen in due course, particularly when Hammond’s cross examination is

considered, that, in practical terms, there was a "down side" to a win for

the informant. As the above discussion of the information has shown,

absent the allegation of heresy, at the heart of the informant's case was the

proposition that anything other than strict compliance with the B.C.P.

involved a breach of trust. The evidence was to show that in Sydney as

well as everywhere else in the Anglican Communion there had never been

strict compliance with the B.C.P. Considerations such as these give an

indication why after the High Court appeal those advising Wylde

expressed the view that the outcome was as good as could have been

expected.

129

CHAPTER V

PRE-TRIAL INTERLUDE

It has been noted in Chapter IV that Wylde sought advice from

Bishops Wand of London and Kirk of Oxford. From their letters to Wylde

it is clear that the advice sought from both men went beyond the single

question of whether evidence should be taken on commission.1 Although

for present purposes it is not necessary to consider in detail the advice

given to Wylde by Wand and Kirk, it should be noted that as with other

important advice which he received, Wylde had Wand's and Kirk's letters

transcribed and forwarded to Maynard.2 The transcriptions were sent to

Maynard without any comment or analysis on Wylde's part.

Maynard responded to Wylde's request for further advice in the light

of Wand's and Kirk's letters in a single spaced two and a half page letter of

17 November, 1945. This letter has already been mentioned in the context

of Maynard's pointing out what could be unwelcome consequences of

success for Wylde in the case. After dealing briefly with the question of

financing the litigation,3 Maynard turned to the broader question of what

1 Wylde did not keep copies of his letters to Wand and Kirk. Indeed, as with much of his correspondence he may have written holograph letters without keeping copies. On 29 October, 1945 Wand cabled advice to Wylde on the question of whether he should withdraw his authorization of the Red Book. The following day Wand wrote Wylde a short letter dealing with the same topic. On 16 October Kirk wrote a long letter to Wylde in which he considered four questions which Wylde had put to him. From his answers it is clear that Kirk was asked to deal with matters which went beyond the question of taking evidence on commission.2 Wylde to Maynard, 3 November, 1945. Maynard papers.3 Maynard told Wylde that as he had left England in 1910 he no longer had any useful contacts there. Further, he said that not only did the Australian Church Union (A.C.U.) not have much in the way of funds, in his view it would not be permissible to use such funds as the A.C.U. did have to finance legal proceedings. In Maynard's opinion an appeal for funds was the best option. Not only would it raise money, but it 'would have the advantage of putting the whole matter before the people of the Church.'

130

ought to motivate Wylde in deciding whether or not to continue with the

litigation. In Chapter III reference was made to Maynard's letter of 8

February, 1944, in which he looked at the case in a broader context, and

expressed the view that a loss in the court may not necessarily amount to a

defeat for Wylde. Now, over 18 months later, he again expressed similar

sentiments:

We ought not to fight unless there is a practical certainty of winning the case, I believe. Better to withdraw and fight on better chosen ground; unless withdrawal means unfaithfulness to God, or a denial of the faith in some way. In such case one could afford to lose to the world and still win by way of suffering, as the confessors and martyrs have done. This I know, with God’s help, you are willing to do. That is why I am concerned that the struggle shall be for nothing less than a necessary principle, which cannot be surrendered without unfaithfulness.

If Maynard perceived a principle in the case, it concerned Wylde's

legal right to authorize the Red Book, and it was not a principle much to

Maynard's liking. On more than one occasion Maynard and others

including lawyers had expressed the view that it was Wylde's authorization

of the Red Book which would be the most likely cause of his defeat in the

case.4 Even if this forecast were to prove incorrect, both in this letter and

other correspondence Maynard referred to the perils of a victory on the

authorization question. All of this suggests that Maynard may well have

held the view that this question was one which might be surrendered

without unfaithfulness.

Not only did Maynard express lukewarm feelings towards the case in

general, he was also reluctant to offer detailed comment on the opinions

4 Maynard again referred to the different connotations of "authorized", noting that the OxfordDictionary gave prominence to the meaning, 'approved by authority' which implied the giving of legal force to that which had been authorized rather than the milder meaning of permitted for use.

131

and advice of Wand and Kirk. In part this was because the letters of both

Bishops 'may be taken as supporting you in your authorization of the Red

Book.' He also diplomatically made the point that in his letter Kirk seemed

to be relying on 'considerations which might have more cogency in

England than in the civil courts of Australia.' That said, he properly

observed that the evaluation and decision as to what use, if any, should be

made of Kirk's opinions was a matter for Wylde's lawyers. The subsequent

history of the case shows that Kirk's views had little if any impact on the

preparation and presentation of Wylde's defence.

Finally, Maynard speculated on the motives of Wylde's opponents.

He criticized them for having no conception of the nature of the Church or

the episcopal office and thought their purpose was to 'enslave' the Church

to sixteenth century forms and formulae. In Maynard's view this was a

goal which could only be achieved over the Church's dead body. To avoid

death by stultification, there was a need to fight for freedom. But for

Maynard it had to be, 'the right form of freedom.' In the immediate

context, the right form of freedom, which he thought Wylde possessed,

was to approve the Red Book for use. The wrong form of freedom, which

he saw Wylde as trying to assert, was the freedom to authorize the Red

Book in the sense of according it some form of legal status.

This letter represents the fullest statement to that time of Maynard’s

position. However, when read alone or with his earlier correspondence it

shows that that position had unsatisfactory aspects. In the first place, while

criticizing Wylde's opponents for having no conception of the nature of the

episcopal office, Maynard's own reasoning suggests some woolly thinking,

or an inability to see the consequences of the arguments he was putting.

Underpinning the form of authorization which he opposed and which he

132

clearly saw as illegitimate was the proposition that in some way

authorization challenged the authority of the B.C.P. Maynard may be

taken as knowing that, at least so far as England was concerned, the B.C.P.’s authority derived from the A ct o f U niform ity. It seems equally

clear that to the extent that he challenged Wylde's ability to give the Red

Book anything in the nature of a legal status, Maynard must have believed

that in some way the A ct o f U niform ity fettered Wylde's entitlement to

authorize the Red Book. Similar reasoning underpinned the actions of

those who opposed Wylde. Accordingly, there seems something of the

double standard in Maynard's denunciation of them for not understanding

the nature of the episcopal office. Secondly, assuming that Maynard accepted that in some way the A ct o f U niform ity operated to prevent Wylde

from giving the Red Book its legal status, why did it not also prevent him

from permitting a Diocese wide use? A question in all of this was the extent to which that statute affected a bishop's ius liturgicum . It was a

question which Maynard did not touch upon.

* * * *

On 22 November, 1945 Lee, Bolton & Lee furnished Roxburgh with

detailed advice which came with four enclosures5 Three enclosures dealt

with liturgical questions, and the fourth concerned the meaning of the final

words of art. 24 of the Constitutions scheduled to the 1902 A ct. The first

document dealing with liturgical questions was a memorandum based on

an interview between Canon Cockin, D.D., formerly vicar of the

University Church, Oxford and Canon of St. Paul's Cathedral, London,

5 The advice was furnished in response to a letter which Roxburgh wrote to Lee, Bolton & Lee on18 September. Wylde had Lee, Bolton & Lee's letter transcribed, and a copy is in the Maynard papers. The transcribed copies were forwarded to Maynard under cover of a letter dated 19 December: Wylde to Maynard, 19 December, 1945. Maynard papers.

133

and, it is inferred, Graham Heath of Lee, Bolton & Lee.6 The other two

were letters commenting on this memorandum. One was from H.J.

Carpenter, Warden of Keble College, Oxford, and the other was from

Kenneth Macmorran, K.C., an ecclesiastical lawyer.7 The letter dealing

with art. 24 was also from Macmorran. Macmorran gave evidence on

Wylde's behalf when evidence was taken on commission in London in

December, 1946.

So far as the opinions on liturgical matters were concerned, Lee,

Bolton & Lee fairly summarized their purport as follows:

To sum up the position, we feel the consensus of opinion is that although there is nothing in the Order of Holy Communion as set out in the Red Book which falls outside the permissible limits of doctrine of the Church of England, it does differ substantially from the Orders of the Communion Service contained in the 1662 Book of Common Prayer or the Prayer Book as proposed in 1928, and further, that a Diocesan Bishop in England would have no authority to authorise its publication and use, as appears to have been done by the Bishop of Bathurst, seeing that in effect it sets up a third alternative [sic] Order of Eucharistic Devotion.

In his letter Macmorran touched upon a matter mentioned by neither

Cockin nor Carpenter, nor commented upon in Heath's summary quoted

above. Macmorran said:

Of course the real crux of this matter is mainly whether the Red Book is a "Prayer Book" in the sense that it is an alternative but authoritative Book of Common Prayer, or a manual of eucharistic devotion. One of the most popular manuals that of Bishop Walsham How, (himself a Diocesan Bishop) contains many interpolations for private use.'

6 Other enclosures to the letter of 22 November are addressed to Heath at Lee, Bolton & Lee.7 Macmorran was the editor of the 8th. Edition of Cripps, H.W., The L aw R elating to the Church a n d C lergy , Sweet & Maxwell, London, 1937. According to the title page of that work he was a K.C. and Chancellor of the Dioceses of Chichester, Ely, St. Albans and Guildford.

134

The question of whether the Red Book was a public service book or

manual of devotion to be used privately by the faithful was to be raised

later in the proceedings. As will be seen in Chapter X, only Rich, J. was

prepared to regard it as a private devotional manual. However, this finding

was not central to his Honour's determination of the case.

In his other letter Macmorran dealt at some length with art. 24

which, for some inexplicable reason he referred to as 'paragraph 9 of the

Schedule to the Act of 1902.' This mistake of nomenclature was not

indicative of the fact that he was discussing anything other than art. 24. He

thought it 'based upon a fundamental misconception' of the English

position.

* * * *

It is now appropriate to return to Maynard's letter to Wylde of 17

November, to which Wylde responded on 5 January, 1946.8 One reason

for the delay was that Wylde had given 'the gist of it' to Maughan and

Kerrigan, and had waited to receive their advice on its contents.9 While

agreeing with Maynard that his authorization of the Red Book could mean

one of two things, Wylde was at pains to make it clear that in authorizing

it, he intended to do no more than indicate his permission for its use. As

Wylde admitted that he had referred Maynard's letter to Maughan and

Kerrigan, the inference is open that in expressing this view Wylde was

embracing his counsel's opinion rather than exercising any independent

judgment of his own. Wylde also reiterated his counsel's view that no

good could come from withdrawing his authorization of the Red Book.

8 Wylde to Maynard, 5 January, 1946. Maynard papers.9 The Bathurst Diocese Archive does not contain copies of Maughan's or Kerrigan's comments on Maynard's letter.

135

However, within about seven weeks Wylde drew back from this robust

position. Writing to Maynard on 23 February, 1946,10 he said that he had

been told that the word "authorization” was the real crux, and that he was

prepared to withdraw his authorization ’at any time if it is thought good.'

There is no clear reason to account for this change of attitude. That said,

Wylde's use of the word "crux" suggests that it might have been

Macmorran's opinion which caused his reticence.

It is convenient to note that it was at about this time that Maughan

withdrew as Wylde's senior counsel. On 18 January he wrote to Wylde,11

advising that he did 'not now care for the stress of the court as an arena and

may not be conducting all aspects of [his] contest.' But, he explained

himself willing to give assistance to whomever succeeded him as Wylde's

senior counsel. It appears that at about this time Maughan was winding

down his practice.12 Notwithstanding Maughan's offer there is no evidence

to suggest that he had any further connexion with the case after this time.

Letters passing between various correspondents in late 1945 and

early 1946 were significant in a number of respects. The dominant subject

remained Wylde's authorization of the Red Book and the significance

which attached to it. There was a cleavage of opinion approach between

ecclesiastics on the one hand and lawyers on the other. Ecclesiastics

agreed that the interpretation which should be put upon Wylde's

authorization was that it betokened giving the book a legal status and that a

diocesan had no entitlement to authorize a service book. While not

10 Wylde to Maynard, 23 February, 1946. Maynard papers.11 Maughan to Wylde, 18 January, 1946. Bathurst Diocese Archive, Counsel's correspondence.12 'Sir David Maughan', 10 A.D .B ., at 453-4. Maughan was admitted to the New South Wales Bar on 18 November, 1896, and save for two periods, in 1924 and 1936-7, when he served as an Acting Judge of the Supreme Court, practised at the New South Wales Bar. At the time he wrote this letter to Wylde, he was less than a month away from his 73rd. birthday.

136

differing in their assessment of Wylde's entitlement to authorize the Red

Book, lawyers in England and New South Wales took a more practical

approach. They thought whatever damage could have been done by

Wylde's authorization of the Red Book had already been done, and that

such damage could not be remedied by withdrawal of the authorization.

Although Wylde consulted others on the question and at different times

appeared to use inconsistent language to express himself, he seemed

prepared to follow legal advice on the matter. This is not to imply fault on

Wylde's part. While he may have been imprudent in authorizing the Red

Book, he had been placed in a position not of his own making, and a wish

not to place himself at any greater disadvantage than was necessary was

understandable.

Secondly, Maynard's analysis showed that, assuming it were to be

litigated and decided upon, irrespective of how it was resolved, the

authorization question would have implications for the Church beyond the

Bathurst Diocese. A loss for Wylde on the matter would strengthen the

hand of those in the Australian Church who were of a different tradition,

and who had a vision of the Church far different from that of Wylde, Batty

and Maynard. Conversely, a victory for Wylde on the question held out

the prospect of liturgical anarchy.

Finally, the opinions of Cockin, Carpenter and Macmorran were

unanimous that although there may have been differences of substance

between the Red Book and the B.C.P. and the 1928 Book, the Red Book

did not contain doctrine which fell outside that taught by either of those

books. This must have been a strong influence upon the final decision to

seek an order for the taking of evidence on commission. When evidence

was taken on commission these views were to be confirmed. In mid-1947

137

allegation of heresy was formally abandoned. This was to be an important

factor in the disposition of the case.

* * * *

In the meantime the litigation continued, but not directly to a hearing

on the merits. When Allens rejected Roxburgh's request they produce any a d h oc authority allowing the Solicitor-General to act as informant in the

suit, his response was to file a notice of motion.13 As well as seeking an

order that the informant's taxation of his costs in the Full Court appeal be

stayed, the motion sought an order that Allens personally pay Wylde's

costs from the commencement of the proceedings to the substitution of the

Attorney-General as informant. The latter order was sought on two bases.

The first rested on the contention that as the Full Court had found the

Solicitor-General to be incompetent to act as informant, the solicitors who

acted for him must pay Wylde's costs as they had warranted the

competence of the Solicitor-General to act as informant. Secondly, it was

contended that Allens had allowed the Full Court to be misled on a

question of fact which they knew or ought to have known was incorrect, namely that the Solicitor-General had no a d h oc authority to act as

informant. This was contended to be misconduct on Allens' part such as to

render them liable, in the exercise of the Court’s disciplinary jurisdiction,

to pay Wylde's costs.14

13 A ttorn ey-G en era l v. W ylde (1946) 47 S.R. (N.S.W.) 99 at 103. The motion was probably filed on 24 October, 1945. On that day Roxburgh wrote to the Attorney-General enclosing a copy of the motion and advising that it was returnable on 2 November: Roxburgh to Attorney-General, 24 October, 1945. Attorney-General's Division. Alphabetical card index to correspondence 1939-1956, N.S.W. State Archives, Box 11/11471. Allens forwarded a copy of the same document two days later: Allens to Attorney-General, 26 October, 1945. Attorney-General's Division. Alphabetical card index to correspondence, N.S.W. State Archives, Box 11/1468.14 A ttorn ey-G en era l v. W ylde Unreported, Roper, J., 17 December, 1945 at 3.

138

The second ground was rejected on the basis that as the existence or

non existence of any a d hoc authority was irrelevant to the matters

determined by the Full Court in the first appeal, no question of its being

misled could arise. Roper, J. characterized the question before the Full

Court as being whether the mere fact that the information was filed when

the office of Attorney-General was not vacant necessarily showed that it

had been filed without proper authority. For good measure, he opined that

had the Full Court been told that the Solicitor-General had not been

authorized to present the information, it would have treated such a

revelation as irrelevant.15

The first ground upon which the order that Allens personally pay

Wylde's costs was opposed was that the Attorney-General had ratified the

actions of the Solicitor-General. On the hearing of the motion, junior

counsel for the informant told Roper, J. that the Attorney-General adopted

and ratified all acts done in the litigation by the Solicitor-General. It also

appears that counsel submitted that the Court could infer ratification.16

Roper, J. noted that in acting as informant Weigall did so as his Majesty's

Solicitor-General,17 adding elegantly, 'a very special agent for an unique

principal.' That being so, two questions arose. The first was whether the

actions of the Solicitor-General were capable of ratification. Secondly,

assuming they were, could they be ratified by the Attorney-General rather

than the Govemor-in-Council? His Honour had no doubt that the first

question could be answered in the affirmative; ratification could be

effected by the Attorney-General by virtue of his office. The Attorney-

General represented the Crown for forensic purposes. If he were wrong in

1516 17

As above, at 5.As above.'Cecil Edward Weigall' 12 A .D .B ., 434-35.

139

that conclusion, Roper, J. thought that the Solicitor-General should be

given the opportunity in the proceedings of seeking a proper ratification of

his actions. In the result the motion was dismissed with costs.

Roxburgh advised Wylde of this result on 19 December,18 and

reported Kerrigan as being satisfied that Roper, J.'s decision was

monstrous, and recommending that an appeal be lodged. This advice was

accepted, and a notice of appeal was lodged on 11 January, 1946.19 For

their part, Allens appeared to have thought their clients lucky as on 2

January, 1946 they wrote to the Attorney-General requesting the passing of

an Executive Council Minute ratifying the powers and actions of the

Solicitor-General in the case.20 An executive Council Minute was signed

on 13 February, 1946.21

As well as appealing from Roper, J.’s judgment, on 11 January,

1946, Roxburgh filed a summons for an order that a writ of commission

issue for the examination of seven witnesses, whom it was sworn were able

and willing to give evidence on matters in issue in the suit, that their

attendance at the hearing could not be procured, that counsel had advised

that their evidence was necessary and material to Wylde's case and that he

18 Roxburgh to Wylde, 19 December, 1945. Bathurst Diocese Archive. Solicitor's correspondence.19 A ttorn ey-G en era l v. W ylde (1946) 47 S.R. (N.S.W.) 99 at 103.20 Allens to Attorney-General, 2 January, 1946. Attorney-General's Division. Alphabetical card index to correspondence 1939-1956, N.S.W. State Archives, Box 11/11468.21 A ttorn ey-G en era l v. W ylde (1946) 47 S.R. (N.S.W.) 99 at 103-04. The text of the minute was 'Now know ye that We with the advice of our Executive Council do hereby approve, ratify and confirm the action of our said Solicitor-General in instituting on our behalf the said suit by the said information and all steps taken by him or on his behalf in relation to the said suit; and also (by way of confirmation and not so as to limit or prejudice the validity or effect of the actions of our said Attorney-General hereinafter mentioned, and in so far as the same may be necessary), do hereby approve, ratify and confirm, (1) the action of our said Attorney-General in procuring himself to be substituted as informant in lieu of our said Solicitor-General; (2) the ratification and adoption of our said Attorney-General of the institution of the said suit by our said Solicitor-General on our behalf and of all steps taken by our said Solicitor-General on our behalf in the said suit; and (3) all steps taken on behalf of our said Attorney- General in the said suit. Provided that nothing in these presents shall be construed as purporting to affect the operation of any order as to costs hitherto made or hereinafter to be made in the said suit.'

140

could not safely proceed to the hearing of the suit without their evidence.22

The application was supported by an affidavit sworn by Roxburgh. Allens

opposed the application, and arranged for affidavits to be sworn by

Hammond and William George Hilliard, Bishop Coadjutor of the Sydney

Diocese.23 While this reinforces Hammond’s continuing connexion with

the matter and his willingness to assist the relators when required, Hilliard

apparently had some diffidence about the matter. On 11 February he wrote

to Wylde advising that he had received an approach from lawyers for ’the

other side' to swear an affidavit stating that, in his opinion, there were

sufficient people locally to advise on the law and practice of the Church of

England.24 Hilliard told Wylde that his action did not go to the merits of

the case and was not intended to be an unfriendly act.

If Hilliard was attempting to mollify Wylde with this letter, he failed.

Wylde forwarded it to Roxburgh, who responded on 20 February.25 To the

extent that Hilliard said his actions did not go to the merits of the case,

Roxburgh suggested a form of reply to the effect that the reason for his

affidavit was to prevent Wylde from obtaining evidence which he required

for his case, and, apparently in the absence of such evidence, to force

Wylde to use that of his opponents. While it may have been that Hilliard

genuinely believed that his assistance to the informant did not go to the

22 Judges' Notebooks. Roper, J. Equity Motions, Book 9. N.S.W. State Archives, Box 3/4971. A tto rn ey-G en era l v. W ylde, Unreported, Roper, J. 21 March, 1946 at 1.23 Hilliard was bom in 1887, and was made deacon in the Sydney Diocese in 1911, and was priested in the following year. He was consecrated bishop in 1934, and died in 1960: Judd, S.E.I. & Cable, K.J., Sydney Anglicans, A.I.O., Sydney, 1987 at 339. William George Hilliard' 14 A .D .B ., 453- 54. In West, J.E., Innings o f G race - A Life o f B ishop W .G. H illiard , Standard Publishing, Rozelle, 1987, there is no mention of the Red Book Case or of the part which Hilliard played in it. It is perhaps unusual that Hilliard should have sworn an affidavit on the availability of expert witnesses in Australia. He had never completed any formal theological training, and, according to his biographer 'as a theologian, he lacked both depth and breadth.': West at 30.24 Hilliard to Wylde, 11 February, 1946. Bathurst Diocese Archive, Bishop's correspondence. Wylde sent a copy of Hilliard's letter to Roxburgh who passed it on to Kerrigan who in turn sent a formal response to Hilliard on 20 February.25 Roxburgh to Wylde, 20 February, 1946. Bathurst Diocese Archive, Solicitor's correspondence.

141

merits of the case, there was an indirect sense, hinted at by Roxburgh, in

which it did. If at any hearing on the merits the allegation of heresy could

be made out, there could have been no doubt that the informant would have

succeeded in the case. An important motivation in seeking to have

evidence taken on commission was to allow Wylde better to deal with the

allegation of heresy. Accordingly, by opposing Wylde's application for

this purpose, the informant was seeking to impede him in this endeavour.

The application to take evidence on commission was heard by

Roper, J. on 22 February, 1946. He reserved his decision for about a

month,26 and from his reasons it appears that the informant relied upon

several arguments of varying weight to persuade his Honour that the writ

of commission should not issue.27 First, relying on Hammond's and

Hilliard's affidavits, it was put that there was in Australia a large number of

experts competent to give evidence as to the law and practice of the Church

of England in England. While accepting that this may have been so,

Roper, J. noted that the case before him appeared to be a special one, and

that the matters in respect of which expert evidence was to be given

appeared 'to involve a strong conflict of opinion.' Moreover, 'England is

naturally and necessarily the home of learning on the subject.' In the

circumstances he concluded that Wylde would be unduly restricted if he

were compelled to make his choice from experts in Australia.28

Secondly, and subject to relevance, the informant was prepared

admit certain facts which remained in dispute on the pleadings as a q u id

26 Judges' Notebooks, Roper, J. Equity Motions, Book 9, N.S.W. State Archives, Box 3/4971. As Kerrigan appeared without a leader (The informant was represented by Teece, K.C. and Henry) it may be that a successor to Maughan as Wylde's senior counsel had not yet been chosen. The judgment was delivered on 21 March.27 A ttorn ey-G en era l v. W ylde, Unreported, Roper, J., 21 March, 1946.28 As above, at 2.

142

p r o quo for not having a writ of commission issue. While his Honour

accepted that the admissions the informant was prepared to make would

have disposed of the need for some of the evidence which experts would

give as to existing usages of the Church of England in England, especially

relating to the 1928 Book, the admissions would not dispose of the need

for evidence as to the legality of those usages, and so would not have led to

a situation in which the calling of such expert evidence was unnecessary.29

Next the informant offered to treat the case as though the court could

take judicial notice of the law of the Church of England in England and

that counsel could refer the Court to authorities and texts as well as the

sources from which experts derived their knowledge. Wylde declined the

offer. In Roper, J.'s view, as the matters in dispute were 'obviously

controversial', he did not think the Bishop was bound to accede to the

informant's offer.30 Lastly, and perhaps gamely, it was submitted that as

there had been unreasonable delay in making the application, the Judge, in

the exercise of his discretion should reject it. This submission received

short shrift, 'In the light of the history of the case so far as it has gone I do

not think that the delay was unreasonable.'31

The above was sufficient to dispose of the summons, and so it was

resolved in Wylde's favour. However, Wylde's victory was not unalloyed.

Roper, J. noted that all seven experts were to be examined in the same field

of knowledge. Perhaps with reason, he thought this was excessive, and

that two, or perhaps three, would suffice, adding, '[t]he matter is one which

in this case can I think be met by a proper order as to costs when the

evidence is presented, and I mention it only to indicate that at this stage I

29 As above, at 3 A .30 As above, at 5.31 As above.

143

think that seven witnesses should not be called to give evidence as to the

same matters.*32

Without correspondence from the relators' side of the record, it is

difficult to come to know just how seriously they viewed the prospect of

evidence being taken on commission, and the consequences which they

thought would or might flow from such an exercise. In particular, it is not

known to what extent they saw success of the heresy allegation being

jeopardized. The objective evidence suggests that they viewed the matter

as one of considerable seriousness. Rather than relying just on affidavit

evidence from Hammond, they obtained from a bishop an additional

affidavit as to the availability of experts in Australia capable of giving

evidence as to the laws and usages of the Church of England in England.

Secondly, although the last argument put in submissions was something of

a makeweight, other submissions put show that considerable thought was

put into the matter. Thirdly, and most significantly, the informant was

prepared to make some admissions if to do so would have avoided the

issue of a writ of commission.

Interest in the matter was more than local. On 23 March, Claude

Haselwood of Montreal, Canada wrote to Wylde enclosing a clipping from

that day's M on trea l D a ily S tar. The clipping had a Sydney dateline, and

incorrectly said that the Bishops of Oxford and London were among

church leaders who would be called to give evidence on Wylde's behalf. It

went on to state that on an application brought by Wylde the New South

Wales Supreme Court had issued a commission for the taking of evidence

in England from the two bishops and other members of the English clergy.

It was said that the 'plaintiffs' were seeking to restrain Wylde from making

32 As above, at 5-6.

144

any departure from the B.C.P., and that they objected particularly to the

ringing of the sanctus bell at the Communion.33

* * * *

The day after argument before Roper, J. on the summons to take

evidence on commission, Wylde wrote to Maynard.34 The portion of this

letter dealing with the question of authorization has already been discussed.

As well as noting that there was 'great Sydney objection to our asking for

evidence to be taken in England', he said, inaccurately as it turned out, that

Roper, J. was 'decidedly against us.’ Further, in this vein he commented

that his counsel thought that if and when the case was decided against him,

he should appeal directly to the Privy Council. Then he continued:

I am beginning to believe that it will be best, when the case comes on, to appear undefended [sic] & to refuse to speak at all, simply showing that I feel what we have fought for up till now to be right & that no court of Law is competent to have the case before it. I realise what that would mean.

It has been noted above that on occasion Wylde had shown

confusion of thought. His comments just quoted offer further evidence of

this. In one breath, and perhaps repeating the opinions of his solicitor or

counsel, he observes that such is Roper, J.'s view of the case that no joy

can be expected when a judgment on the merits is ultimately delivered, and

that an appeal directly to the Privy Council from such judgment was

seriously in contemplation. Then, in the very next sentence, and

expressing himself to be mindful of the consequences, he raises the

possibility of taking no part in the hearing. Not only is there this confusion

of thought, but there is also an inconsistency of outlook. While on the one

3334

Haselwood to Wylde, 23 March, 1946. Bathurst Diocese Archive, Laity correspondence.Wylde to Maynard, 23 February, 1946. Maynard papers.

145

hand Wylde denied the Supreme Court's competence to deal with the case,

on the other he was apparently prepared to contemplate the possibility of

an appeal to the Privy Council. If the Supreme Court was not competent to

deal with the matter, on what convincing basis could it be contended that

the Privy Council was? This puts entirely to one side the traditional High

Church and Anglo-Catholic opprobrium for Privy Council decisions in

ritual matters and ecclesiastical questions generally.

Maynard received Wylde's letter on 27 February, and responded on

that day.35 As might be expected, he devoted the bulk of his reply, which

ran to almost four single spaced quarto pages, to the question of authority.

In it he expressed the view that the case really had nothing to do with the question of whether or not Wylde possessed a ju s litu rgicu m which

allowed him to authorise the Red Book. Indeed, he said that he did not

think bishops possessed any such thing, and doubted whether it existed.

Otherwise Maynard did not deal specifically with other matters raised by

Wylde. To the suggestion that Wylde might not take any direct part in the

trial, Maynard confessed that he was not clear in his own mind as to the

implications involved in such a decision, and sought more information on

the subject.

From this period there is also an interesting letter to Wylde from

Bishop Kirk.36 From Kirk's response it seems clear that in earlier

correspondence Wylde raised the possibility of a appeal direct to the Privy

Council from the expected adverse judgment from Roper, J. Without

saying how they could be separated, Kirk said that although he had no

35 Maynard to Wylde, 27 February, 1946. Maynard papers, carbon copy.36 Kirk to Wylde, 2 March, 1946. Copy Maynard papers. As with other important correspondence concerning the case received by him, Wylde had Kirk's letter transcribed and forwarded a copy of it to Maynard: Wylde to Maynard, 23 March, 1946. Maynard papers.

146

objections to such an appeal on questions of fact, an appeal on questions of

law would be 'undesirable from the side of the Church.' Then, in a

foretaste of remarks which Fisher was to make after Roper, C.J. in Eq.'s

judgment was eventually given in February, 1948, Kirk commented that it

could not be said beyond fear of contradiction that an appeal on points of

law might not have adverse repercussions for the Church in England. In

this Kirk correctly saw that the status of the Australian Church as disclosed

by the Nexus Opinions was a factor giving rise to a greater than normal

concern over the prospect of a Privy Council appeal And, looking back to

the nineteenth century ritual cases Kirk said that there were few

'responsible people in England who would wish for a revival of Privy

Council appeals in church matters.'

* * * *

Argument in the appeal from Roper, J.'s judgment of 17 December,

1945 took place before the Full Court on 12, 13 and 14 June, 1946.37

Following Maughan's retirement this appeal marked the first appearance of

Frank Walters Kitto, K.C. (as he then was) as Wylde's leading counsel.

Kitto remained Wylde's leading counsel for the remainder of the litigation.

As will appear from correspondence to be referred to in later chapters of

this thesis Kitto developed a high regard for his client and on occasion put

himself out on Wylde's behalf.

It has been noted above that Kerrigan was to say that interlocutory

applications had been made on Wylde's behalf in an attempt to bring the

37 A ttorn ey-G en era l v. W ylde (1946) 47 S.R. (N.S.W.) 99 at 99 and 104. The Court comprised Davidson, J., Street, J. (as he then was) and Nicholas, C.J. in Eq. 'Sir Cohn George Watt Davidson’, 8 A .D .B ., at 223-24.

147

litigation to an end without the need for any adjudication upon the

potentially dangerous questions left in dispute on the pleadings.

Notwithstanding the nature of the questions which were before the Full

Court, the submissions put by Kitto would, if accepted, have brought those

proceedings to an end.38 At the core of his argument was the proposition

that a suit for the administration of a charitable trust was the monarch's suit

and could only be instituted on the authority of the responsible minister of

the Crown, the Attorney-General, and no one else. He argued that two

consequences flowed from this: the Solicitor-General could not be given an a d h oc authority to act in the Attorney's position, and there could be no

confirmation of the Solicitor-General's actions. The result was that the

proceedings were a nullity, and the defect arising from the fact that they

had been brought in the name of the Solicitor-General as informant, could

not be cured. In a submission designed to take cognizance of the

Executive Council's actions in February, Kitto argued that the Governor

had no authority to ratify the acts of the Solicitor-General.

The above did not represent the totality of the ways in which Kitto

submitted that ratification was irrelevant. He argued that the orders which

were sought did not rest upon tort or contract but were grounded in the

relators' solicitor's representation to the Supreme Court that their retainer

justified institution of the suit. If their retainer did not afford justification,

they could be ordered to pay a defendant's costs as such costs had been

incurred as a result of those solicitors instituting the suit and continuing it

without authority. The representation was to the court and could not be

cured by ratification.39

38 Kitto's submissions are in (1946) 47 S.R. (N.S.W.) 99 at 104-05. It should be mentioned that ending the proceedings and ending the dispute which gave rise to them were two distinct things. More will be said of the latter in due course.39 For these propositions Kitto cited M yers v. Elman [1940] A.C. 282 at 304, 307, 317, 319 and 324-36 and Young v. Toynbee [1910] 1 K.B. 215.

148

Teece submitted that not only was ratification of the Solicitor-

General's actions possible, but it had been effected as soon as the Attorney-

General applied to be substituted as informant, and took place when he

signed documents requesting Allens to apply for amendment of the

information. For the purposes of the argument the Executive Council

Minute was an exercise in more abundant caution.40

The Full Court reserved for almost six weeks with Street, J. (as he

then was) agreeing in the judgment of Davidson, J. Nicholas, C.J. in Eq.

delivered a separate judgment which although adopting different reasoning,

did not differ as to the result. Just as the first appeal produced virulent

judicial attacks on those involved in the suit, and Wylde and his legal

advisers in particular, so the second appeal produced a similar outburst

from Davidson, J.41 As in the first appeal Nicholas, C.J. in Eq., was milder

in his observations and he returned to and expanded upon comments he

had made in it:42

I have already expressed the opinion that this litigation, whatever its result, will inflict a grave injury on the Church of England in Australia, and I have cited opinions with which I respectfully concur on the undesirability of calling upon a civil Court to adjudicate on the manner of celebrating one of the services of that Church, its most solemn Sacrament. If this litigation were to end now all parties would be more likely to obtain the objects they have at heart than they can be by its continuance.'

After recounting relevant background Davidson, J. went directly to

the question of ratification, noting at the outset that there were three

requisites to a valid ratification: the agent must have purported to act for

40

41

42

A ttorn ey-G en era l v. W ylde (1946 ) 47 S.R. (N.S.W.) 99 at 105-07.As above, at 100.As above, at 120-21.

149

the principal; at the time of the agent's acts there must have been a

competent principal, and at the time of ratification the principal must have

been capable of doing the act himself. Without referring to Kitto's

submission that such matters were irrelevant, his Honour observed that the

three requisites applied in contract and tort.43 Again, without referring to

the authorities cited by Kitto, Davidson, J. held that the Governor-in-

Council could have confirmed an assumed authority to approve an

information.44 The first step in the reasoning was that the Governor's

Letters Patent authorized him to appoint such necessary officers as could

be lawfully constituted or appointed by the monarch. This, in his Honour's

view, was sufficient to authorize the appointment of a Solicitor-General,

and to assign duties to the holder of that office. From this, it followed that there could be 'no obstacles' to the granting of an a d h oc authority to the

Solicitor-General, nor to confirmation of an authority assumed by him.

However, that was not the end of the matter. As at the time of

Roper, J.'s judgment of 17 December the Govemor-in-Council had not

confirmed the Solicitor-General's actions in the case. Davidson, J. rejected

Roper, J.'s conclusion that as an attachment to or as an incident of the

powers of his office, the Attorney-General had sufficient authority to adopt

the proceedings as far as they had then gone. In Davidson, J.'s view the

Attorney-General had the sole right to approve an information and had to

exercise this function personally in a fiduciary capacity and not according

to his own discretion. In this regard his Honour saw the Attorney's

position as analogous to that of a company director,45 and the purported

43 As above, at 109.44 As above, at 110. Kitto relied upon A ttorney-G eneral v. B utterw orth (1938) 38 S.R. (N.S.W.) 195 at 240-1 and the Parliamentary Handbook, 1945 Ed., at 185, par. 8.45 He relied upon the dissenting judgment of Isaacs, J. (as he then was) in D avidson v. Vickery's M o to rs L td. (1925) 37 C.L.R. 1 at 24.

150

confirmation of the Solicitor-General's authority as going beyond the mere

routine and, in the absence of 'some special provision', the maxim d e le g a tu s non p o te s t d e leg a re applied.

From this Davidson, J. proceeded to consider the question whether

Roper, J.'s order for amendment of the information, which introduced the

authority of the Attorney-General to control the suit had been complied

with, and, if so, what was the effect of the amendment. After dealing with

various submissions on the question,46 his Honour concluded that as the

Attorney-General was incompetent to confer any authority on the Solicitor-

General to institute the suit, it was a nullity and this fault could not be

cured by amendment. But, the Order-in-Council, which had not existed at

the time of Roper, J.'s judgment of 17 December, 1945 did confirm the

authority of the Solicitor-General from the commencement of the suit up to

the time when the Attorney-General intervened under the amendment and

therefore adopted the proceedings in his name. The effect of the Order-in-

Council was that the suit was now valid as to form, and the only

outstanding question was one of costs. Davidson, J. declined to make an

order that Allens personally pay Wylde’s costs. He also held that there

should be no order for costs in respect of the hearings before Roper, J. or

the Full Court.47

Nicholas, C.J. in Eq. agreed that the acts of the Solicitor-General in

the suit could not be ratified by the Attorney-General, but could be ratified

by the Govemor-in-Council.48 If that was so then, in his Honour's opinion,

the Executive Council 'had power to ratify the action of the Solicitor-

General as it had purported to do.' For reasons which differed from those

46 (1946) 47 S.R. (N.S.W.) 99 at 110-112.47 As above, at 110-116.^ As above, at 119-20.

151

of Davidson, J., Nicholas, CJ. in Eq. declined to order that the informant's

solicitors should be personally liable to pay any of Wylde's costs.49 He

agreed that the costs order made by Roper, J. on 17 December, 1945

should be varied as proposed by Davidson, J. Accordingly, there was

unanimity as to the manner in which the appeal should be disposed of.

It was galling for Wylde and his legal advisers to learn that the event

which proved fatal to their success in the appeal was the intervention of the

Executive Council, especially as that intervention occurred almost two

months after Roper, J. delivered his judgment on 17 December, 1945. It

was a point made by Roxburgh when, on 25 July, he wrote to Wylde

advising of the outcome of the appeal.50 In that letter, Roxburgh advised

that the suit would now go to trial. On 12 August, Kerrigan wrote to

Wylde in a similar manner to discuss the outcome.51

However, even assuming that there had been no intervention by the

Executive Council with the result that Wylde's appeal would have been

upheld and the suit brought to an end,52 there is no certainty that the

dispute, for which the suit was but the vehicle, would have come to an end

with the decision of the Full Court. Putting to one side technical questions

which may have been necessary to finalize the case, it may well have been

that those who were pursuing the matter on behalf of the relators to that

point would, through their solicitors, have been able to persuade the Attorney-General to give his f ia t for fresh proceedings which would have

been properly constituted from the outset. The contested application for

the writ of commission suggests that they had lost none of their zest for the

49 As above, at 120-21.50 Roxburgh to Wylde, 25 July, 1946. Bathurst Diocese Archive, Solicitor's correspondence.51 Kerrigan to Wylde, 12 August, 1946. Bathurst Diocese Archive, Counsel's correspondence.52 In his judgment Nicholas, C.J. in Eq. commented that this would be the result of the appeal being upheld: (1946) 47 S.R. (N.S.W.) 99 at 120.

152

fight. Further, they were putting in place arrangements to continue funding

the litigation. This zest was also demonstrated on 3 April when Allens

wrote to the Attorney-General requesting that he grant a licence under s. 34 of the C om pan ies A c t, 1936 (N.S.W.) to the Church of England

Evangelical Trust for N.S.W.53 As will be seen in due course, this

organization became involved in appeals for funds to meet the informant's

costs.

This raises for further consideration Kerrigan's remarks that in

making interlocutory applications such as that which culminated in the

second Full Court appeal, the motivation was to avoid compelling the

Supreme Court to rule on the questions left in dispute on the pleadings.

While there may be no ground for disagreeing Kerrigan when he says that

this was the motivation for making the applications, it leaves open the

question of whether adopting such a course was ever capable of achieving

the goal. As the second appeal shows, the most that could be hoped for in

bringing such applications was bringing to an end proceedings which were

improperly constituted. There was no guarantee that proceedings, properly

constituted, would not thereafter be commenced. If that were to happen

there would have been no scope for bringing any interlocutory application,

and Wylde would have been back to square one.

Kerrigan's approach also failed to take into account the existence of

other players, principally Hammond and others supporting the relators and

the Attorney-General who, after all, had a legitimate interest in the due

administration of charitable trusts. As has been noted above, there could

be no certainty that a loss in the second appeal would have led Hammond

53 Attorney-General's Department. Justice Division. Alphabetical Card Index to correspondence 1944-53, N.S.W. State Archives, Box 11/11478.

153

to drop the matter. The fund-raising which was being undertaken suggests

that exposure to costs orders was not a grave problem for the relators'

camp, and certainly not one that would cause them to lose the will to go on.

Perhaps the most that could have been hoped for if the second appeal had

been upheld was that some of the relators may have lost enthusiasm for the

matter, and that the Attorney may have been more hesitant to allow his f ia t

for a second set of proceedings.

* * * *

It has been mentioned that Kenneth Macmorran provided Lee Bolton

& Lee with advice on the interpretation of the final words of art. 24 of the Constitutions scheduled to the 1902 A ct. While the Full Court was

reserved on the second appeal, the question was raised in an unusual way

between two unlikely correspondents. On 11 July, 1946 Batty wrote to

'Lord Justice [sic] Uthwatt.'54 The letter makes no reference, direct or

indirect to the Red Book case. In it Batty referred to a lapse of 30 years

since their last contact, and to Uthwatt's decision in A tto rn ey G en era l v.

D ea n a n d C h a p ter o f R ipon C a th edra l ,55 In this context he drew

Uthwatt's attention to the final words of art. 24, viz., the nature of an

authority of the Church in England competent to make alterations in the

articles, liturgy or formularies of the Church, and asked whether the Letters

of Business of 10 November, 1904 issued by Edward VII to the

Convocations of York and Canterbury constituted them as competent

authorities of the Church of England in England to make alterations in the

sense contemplated by the article. Uthwatt's view differed markedly from

Batty to Uthwatt, 11 July, 1946. Carbon copy, Newcastle Archives, Box A5319. Augustus Andrewes Uthwatt was appointed a Justice of the Chancery Division of the High Court of Justice on 1 January, 1941. Without ever being a member of the Court of Appeal, he was appointed a Lord of Appeal in Ordinary on 9 January, 1946. He died on 24 April, 1949. [1950] A.C. at vii, x and xiii.55 [1945] 1 Ch. 239.

154

that of Macmorran.56 Foreshadowing an opinion that was to be given by

Hammond, Uthwatt opined that it was clear that the only competent

authority of the Church of England in England within the meaning of art.

24 was Parliament. In offering this view he asked Batty to keep it

confidential as ’Law Lords were not supposed to express any private

opinions on the law.'

The interest of this exchange of letters goes beyond the opinion

sought and expressed. It is difficult to know why Batty wrote to Uthwatt at

this time, and whether his prime concern was the Red Book case or some

other matter. Judgment in R ipon C a th edra l was delivered on 21 March,

1945, and as correspondence referred to above shows, Batty had been

aware of it for some time. Accordingly, there does not appear to have been

any imperative for Batty to have written when he did. As extant

correspondence suggests that Batty had had little direct contact with Wylde

or Roxburgh at about this time, it may be that the Red Book case was not

uppermost in his mind when he wrote to Uthwatt. The other aspect worthy

of note is that the letter shows Batty's readiness to call upon connexions,

even if somewhat tenuous, for advice. This readiness became more

pronounced when he was in London early in 1948 and decisions were

being considered about where and how to appeal from the judgment of

Roper, C.J. in Eq.

* * * *

Following Roper, J.’s order of 21 March, the Commission for taking

evidence in London was issued on 27 May, 1946.57 On 8 October

Uthwatt to Batty, 23 July, 1946. Newcastle Archives, Box A6747.Hammond, T.C., The Bathurst R itual Case, George M. Dash, Sydney, 1949[?] at 180.

155

Roxburgh wrote to Wylde advising that Neville Gray, K.C., had been

retained to represent him before the Commissioner, Humphrey H. King.58

Gray was, Roxburgh reported, Commissary General of the Diocese of

Canterbury and an experienced Chancery barrister. Roxburgh also told

Wylde that Lee, Bolton & Lee required £200 on account of costs. The

taking of evidence before King commenced on 16 December, 194659

After the second day of evidence, Lee, Bolton & Lee wrote to Roxburgh

reporting progress.60 It was recounted that Macmorran, Dr. Alan Don,

Dean of Westminster and Canon Robert Cecil Mortimer of Christ Church,

Oxford, gave evidence on Wylde's behalf, and that they all stood up well in

cross examination. Dr. Charles Sydney Carter, head of Clifton Theological

College, gave evidence on behalf of the informant. According to Lee,

Bolton & Lee he 'adopted an extreme Protestant position and exasperated

counsel on both sides by his general manner and evasion of questions put

to him, and spoke so fast it was impossible to take down what he was

saying.' This may have been a fair assessment as none of Carter's evidence

was tendered at the trial.61 The remaining evidence for the informant,

principally that of Dr. John Ralph Strickland Taylor, Bishop of Sodor and

Man and Norman Charles Armitage, a Chancery counsel and Chancellor of

the Diocese of Leicester, was taken in 17 January, 1947.62 It does not

58 Roxburgh to Wylde, 8 October, 1946. Bathurst Diocese Archive, Solicitor's correspondence. King is identified as Commissioner in Hammond, as above, at 180.59 Hammond, as above, at 180. W.S. Wigglesworth, who has been referred to above, was Gray's junior. W.F. Waite appeared for the informant.60 Lee, Bolton & Lee to Roxburgh, 18 December, 1946. Bathurst Diocese Archive, Solicitor's correspondence. This letter was sent on to Wylde by Roxburgh on 30 December along with a request for a further £300 for Lee, Bolton & Lee: Roxburgh to Wylde, 30 December, 1946. Bathurst Archive. Solicitor's correspondence.61 Notwithstanding that the allegation of heresy was formally abandoned in June, 1947, the bulk of the evidence taken on commission was tendered at the trial. That which was tendered by the informant is in Hammond, n. 57 above, at 150-71, and that tendered on behalf of Wylde is at 180-209. Aside from Carter, the only other witness whose evidence was not tendered was George Frederick Grimster, who was called to give evidence on Wylde's behalf. As it was tendered at the trial, the evidence on commission will be considered along with other evidence given or tendered at the trial.62 Hammond, as above, at 180.

156

emerge from extant correspondence whether Lee, Bolton & Lee reported to

Roxburgh on this evidence.

On 6 March Wylde advised Batty that the transcript of evidence

taken on commission had arrived and that copies were being made.63 The

letter contained no comment on the evidence given. Indeed, it did not even

indicate whether Wylde had seen the transcript. As he was in Sydney for

conferences with Roxburgh and Kerrigan this letter was written to Batty

from the Royal Commonwealth Society in Sydney. It is clear from the

letter that although no hearing date had been set, consideration was being

given to who might be suitable witnesses to give evidence on Wylde's

behalf. Batty was asked to give evidence, and wrote the following day

confessing himself 'flattered and delighted' to give any help he could.64 He

said that he expected to be in Sydney the following week, and would

confer with Kerrigan at that time. On 14 March Batty wrote to Wylde

advising that he had conferred with Kerrigan.65 At that conference it was

agreed that Kerrigan would submit questions to Batty, and, on the basis of

his responses, it would be determined whether or not he would be called as

a witness.

Although in his letter of 6 March Wylde said nothing of the content

or quality of the evidence taken on commission, when writing to Batty on

11 March to thank him for agreeing to give evidence,66 he pronounced the

evidence to be 'very good', and told Batty that it may help him in his

constitutional work. On 17 April Roxburgh wrote to Batty, among other

63 Wylde to Batty, 6 March, 1947. Newcastle Archives. Box A6747.64 Batty to Wylde, 7 March, 1947. Bathurst Diocese Archive, Bishops' correspondence. On 11 March Wylde wrote to Batty to thank him for agreeing to be a witness: Wylde to Batty, 11 March, 1947. Newcastle Archives. Box A6747.65 Batty to Wylde, 14 March, 1947. Bathurst Diocese Archive, Bishops' correspondence.66 Note 64 above.

157

things to enclose a copy of the transcript for perusal and comment. He also

confirmed that no hearing date had been set, but advised that Kerrigan had

said that he would like to have available to give evidence at the trial a

priest with many years' experience in the Diocese of Newcastle and who

would, by reason of such service, be in a position to give evidence of long

standing departures from the B.C.P. in that Diocese.67 In the event no such

evidence was led on Wylde's behalf at the trial.

The activity of March and April 1947 suggests that even without a

hearing date having been set, Wylde's legal advisers were taking serious

steps to prepare the case for trial, even to the point of identifying,

approaching and proofing possible witnesses. To the extent that Batty was

approached there was some formalization of the assistance he had given to

Wylde up to that time. The other thing about this correspondence with

Batty which merits comment is Wylde's remark that the transcript of

evidence taken on commission might contain material useful to Batty in his

constitutional work. Although, as previous correspondence has shown,

appreciation of the relevance of the Red Book case to the constitutional

question was not new, it was unusual to find such a link being made by

Wylde; hitherto the connexion had usually been made by Batty or

Maynard.

There appears to have been little correspondence passing between

Wylde and Maynard concerning the various interlocutory applications and

the appeals to which they gave rise. Further, there was not much reliance

placed upon Maynard by Wylde in respect of them. That correspondence

67 Roxburgh to Batty, 17 April, 1947. Newcastle Archives. BoxA6747. Roxburgh had obviously failed to enclose the transcript, as Batty wrote the following day requesting it. He also said that he would think about a suitable priest to give evidence: Batty to Roxburgh, 18 April, 1947. Carbon copy, Newcastle Archives, Box A6747.

158

and reliance was resumed once this skirmishing was over and the focus of

the case shifted back to the "main game".

Wylde sent a copy of the transcript of evidence taken on commission

to Maynard.68 When writing to Wylde on 10 April, Maynard said that he

was still working on the transcript, and proposed taking extracts before

returning it.69 Extant correspondence does not indicate clearly whether

Maynard honoured his promise and ever offered Wylde any detailed

comments on the evidence contained in the transcript. The only remaining

letter written between 10 April and the trial was that of 16 July, 1947.70 In

it Maynard wrote as though he may have written earlier to Wylde about the

evidence as, almost as a post script, he said he did not know whether he

mentioned it before, but in the transcript there was almost no reference to

the language and teachings of the Fathers of the Church. Presumably with

Sydney in his sights, Maynard expressed the view no one was more

insistent about the Church of England's appeal to the Fathers than Thomas

Cranmer.71

While at this time attention was being devoted to preparing the case

for trial, it was not the only thing occupying peoples' minds. On 20 May

Kerrigan wrote to Wylde indicating that thought was being given to

bringing the case to an end by the exercise of influence at a political

level.72 Under consideration was the possibility that the Rev. William

Alfred Clint, popularly known as Alf Clint, might make representations to

68 On 21 March, 1947 Maynard wrote to Wylde, confirming receipt of the transcript. He also said that, at that time, he had not read it: Maynard to Wylde, 21 March, 1947. Bathurst Diocese Archive, Clergy correspondence.69 Maynard to Wylde, 10 April, 1947. Bathurst Diocese Archive, Clergy correspondence.70 Maynard to Wylde, 16 July, 1947. Bathurst Diocese Archive, Clergy Correspondence71 Cranmer, who was Archbishop of Canterbury from 1533 was largely responsible for the B.C.P. of 1549 and the Forty Two articles which formed the basis of the later Thirty Nine Articles: Carpenter, E., C an tu ar The A rchbishops in their O ffice, Mowbray, Oxford, 1988 at 133-42.72 Kerrigan to Wylde, 20 May, 1947. Bathurst Diocese Archive, Counsel's correspondence.

159

the Labor Attorney-General, Clarence Edward Martin. Clint, who was a

long standing member of the Australian Labor Party, had been made

deacon in 1929 and ordained priest in 1932. In 1947 he was rector of the

parish of Portland in the Bathurst Diocese.73 While not objecting to him

meeting with Martin, Kerrigan did not think Clint should meet either

himself or Roxburgh before so doing. In that way Clint could meet Martin

'as a churchman and not as an emissary.' Kerrigan also made suggestions

as to what form the representations might take. They should not be based

upon the facts that the Red Book had ceased to be used, or that in England

and Australia deviations from the B.C.P. Communion order were common.

Rather, the point should be made that to the extent that the suit was based

upon an allegation of false doctrine, the evidence taken on commission was

to the effect that the Red Book was consistent with accepted doctrines and

views of the Church of England. He also thought the point could be made

that should Wylde lose the case it would imply that services of the Church

of England must be put back into a form which was inappropriate to the

times. Conversely, if Wylde succeeded, the result would be a court

approved freedom from the forms prescribed by the B.C.P. This had the

potential to encourage widespread licence to deviate from the B.C.P. which

would be difficult to restrain.

In an observation which was apparently unrelated to whether or not

Clint saw the Attorney, Kerrigan thought it was the duty of the Primate to

intervene and to make representations to Martin 'for the sake of the Church

to halt the suit'. If it was inappropriate for the Primate to take such action

or he was otherwise unwilling to do so, Kerrigan raised the idea that Batty

might be willing to speak to him. In making this point, Kerrigan

William Alfred Clint' 13 A .D .B ., at 444-5.

160

acknowledged that it might be 'too much to ask [Batty] to do.' In all of this

there was no doubt as to the earnestness of Kerrigan's desire to bring the

case to an end before there was a decision on the merits. He said to Wylde:

The more I think about this case the more forcibly it becomes my view that of all questions that have been brought to the courts for determination this one ought to be left undetermined.

However, he added the comment that if the case had to go on, then it

should be tackled with vigour and determination, adding that even if the

Court thought the deviations from the B.C.P. contained in the Red Book

were impermissible, it was unlikely that, in the exercise of its discretion, it

would issue an injunction. On the matter of expert witnesses, he noted that

both he and Kitto saw no need to go beyond Batty; one good witness was

better than two or three if the others were not so good.

There is nothing in the correspondence examined to indicate whether

or not Clint ever met with the Attorney-General over the case. All that can

be said with any certainty is that if he did, Martin was not persuaded that

he ought to intervene to bring it to an end. Similar comments might also

be made about the Primate, and, in this connexion, some additional

remarks are appropriate. Although it might seem a pedantic observation to

make, at the time Kerrigan made this suggestion there was no Primate. Le

Fanu, the Primate since March, 1935 died on 9 September, 1946, and

Mowll, his successor, was not elected until November, 1947.74 During the

interregnum, Reginald Halse, Archbishop of Brisbane, was acting Primate.

Given the somewhat fractured nature of the Australian Church in 1947, it

was perhaps unrealistic of Kerrigan to think that it would have been

appropriate for an acting Primate to have intervened in such a manner in

74 'Henry Frewin Le Fanu' 10 A .D .B ., at 61. Davis, J.C., A ustra lian A nglicans a n d their C onstitu tion , Acorn Press, Canberra, 1993 at 132.

161

the case. Particularly is this so when it is remembered that the Red Book

was closely based upon Halse's own Riverina book.

It is also significant that in putting suggestions as to what

representations Clint ought to make, Kerrigan made the point, earlier made

by Maynard, that irrespective of the way in which the case was decided

there were dangers for the Church. Put at its crudest there could be either a

liturgical straight jacket or anarchy.

Preparations for the hearing continued.75 In mid-July a hearing date

of 23 September was fixed.76 However, before the hearing there was one

last contested interlocutory application. On 6 June Kerrigan advised

Wylde that an application was to be made to take Hammond’s evidence

before he travelled abroad in July, 1947. He told Wylde that it was

intended to oppose the application, but that in the event of failure, steps

would be taken to have Batty available to assist in cross examination77

The application came before Roper, J. on 13 June, with junior counsel

appearing for the informant and Wylde. In addition to reading an affidavit

sworn by Roxburgh on 11 June, 1947, surprisingly, Kerrigan also read

Hilliard’s affidavit of 13 February 1946. That affidavit, which has been

referred to above, had been relied upon by the informant to resist the

application to have evidence taken on commission. After hearing cross

75 On 19 May Roxburgh wrote to Batty asking for various materials including copies of permissive uses such as that which Halse has used in the Riverina Diocese: Roxburgh to Batty, 19 May, 1947. Newcastle Archives. Box A6747. Batty replied on 21 May: Newcastle Archives, carbon copy, Box A6747. Wylde had sent copies of such manuals on 13 March: Wylde to Roxburgh, 13 May, 1947. Bathurst Diocese Archive, Carbon copy, Solicitor's correspondence.76 On 19 July Roxburgh wrote to Batty confirming the hearing date: Roxburgh to Batty, 19 July, 1947. Newcastle Archive, Box A6747. He wrote to Wylde in similar terms eight days later: Roxburgh to Wylde, 27 July, 1947. Bathurst Diocese Archive, Solicitor's correspondence.77 Kerrigan to Wylde, 6 June, 1947. Bathurst Diocese Archive, Counsel's correspondence. There was further correspondence on the subject in the following week as Batty wrote to Roxburgh about suitable dates: Batty to Roxburgh, 8 June, 1947. Carbon copy, Newcastle Archives, Box A6747, and Kerrigan wrote to Wylde telling him not to postpone a confirmation as Batty would be in court and available to help: Kerrigan to Wylde, 10 June, 1947. Bathurst Diocese Archive, Counsel's correspondence.

162

examination of Roxburgh and submissions, his Honour fixed 24 June for

the taking of Hammond's evidence. Costs were ordered to be costs in the

suit.78 On 22 June Batty wrote to Wylde advising of these developments,

and confirmed that he would be at court to assist Kitto and Kerrigan.79 In

the meantime Batty said he was trying to guess the type of evidence

Hammond would give, and what might be the best line of cross examine on

it. He also thought that Hammond would be the informant's 'star witness'.

This development meant that, unusually, the evidence in the case

came in three stages. Evidence on commission had already been taken. It

may be accepted that the informant shared the view of Wylde and his

advisers as to its quality; as it was on the strength of it that the allegation of

false doctrine was dropped.80 While this did not make the informant' case

hopeless, if that allegation remained and could have been made out, Wylde

would have had no answer to the case against him. With Hammond's

evidence taken before a hearing date had been set, it was clear that both

sides would have ample time to consider it before the hearing. For Wylde

this meant knowing not only what was the evidence of the informant's

expert 'star witness' was, but also how he had handled himself as a witness.

For the informant it meant that any deficits in Hammond's evidence would

be known in advance, and could be cured at the trial. Hammond's evidence

began on 24 June as scheduled, and concluded on the following day. It

was tendered at the trial, and will be considered along with evidence which

was given for the informant at the trial.81

78 Judges'Notebooks. Roper, J., Equity Motions, Book 12. N.S.W. State Archives, Box 3/4971.79 Batty to Wylde, 22 June, 1947. Carbon copy, Newcastle Archives, Box A6747.80 It was noted in Chapter IV that the order allowing the amendment to the information withdrawing the allegation of heresy was made on 24 June, the first day upon which Hammond gave evidence.81 It became Exhibit "F", Hammond, n. 58 above, at 90 and 91-133.

163

While conventional steps were being taken to prepare the case for

trial,82 Wylde was engaged in some unusual evidence gathering from an

unexpected source. On 6 September he wrote to the Archbishop of

Canterbury, seeking advice concerning the sanctioning by the Archbishops of services under the A ct o f U niform ity A m en dm ent A c t 1872 (U.K),83

commonly known as the Shortened Services Act.84 In seeking this advice

Wylde referred to equity proceedings against him which were scheduled to

be heard in a fortnight, and requested that Fisher's response be forwarded

directly to Roxburgh in Sydney.

Four days later Batty also wrote to Fisher,85 ostensibly to thank

Fisher for centenary services held in Westminster Abbey to mark the

erection of various dioceses, including Newcastle. Another purpose was to

offer instruction to the former headmaster of Repton.86 In a sermon to

mark the centenary Fisher had implied that the Church in Australia enjoyed

ritual autonomy. Batty sought to disabuse Fisher of this incorrect notion,

82 On 1 August Batty wrote to Roxburgh confirming a conference to be held on 23 September. He also asked for a copy of the recently published Canon Law of the Church of England: Batty to Roxburgh, 1 August, 1947. Carbon copy, Newcastle Archives, Box A6747. The recently published work to which Batty referred was probably The Canon L aw o f the Church o f E ngland - B eing the R eport o f the A rch b ish ops' C om m ission on Canon Law, together w ith P ro p o sa ls fo r a re v ise d B o d y o f C anons; a n d a m em orandum "Lawful Authority" by the H onourable M r. Justice V aisey, S.P.C.K., London, 1947. On 25 August Kerrigan wrote to Batty seeking comments on suggestions from English counsel as to the authority of (presumably English) Metropolitans to regulate the use of prescribed services by a suffragan: Kerrigan to Batty, 25 August, 1947. Newcastle Archives, Box A6747. It also appears from this letter that Batty had read Vaisey, J.'s memorandum "Lawful Authority". The title of the memorandum refers to the meaning of that expression as used in the declaration of assent to be sworn by every deacon and priest imder the C lerica l Subscription Act, 1865, (U.K.), 2 4 & 2 5 Viet, c. 22. On 12 September Roxburgh wrote to Richards, rector of Canowindra seeking more information on the parish and the extent of opposition to the Red Book: Roxburgh to Richards, 12 September, 1947. Bathurst Diocese Archive, Solicitors' correspondence.83 3 5 & 3 6 Viet., c. 35. Wylde to Fisher, 6 September, 1947. Fisher papers, Lambeth Palace Library, Vol. 39. folio 345.84 Jasper, R.D.C., The D evelopm ent o f the A nglican L itu rgy 1662-1980 , S.P.C.K., London, 1989, at 57.85 Batty to Fisher, 10 September, 1947. Fisher papers, Lambeth Palace Library, Volume 39, folio 346.86 Fisher was appointed headmaster of Repton at the age of 28, and remained in that position until he became Bishop of Chester in 1932. He was translated to London in 1939, and to Canterbury in 1945 following the death of William Temple: Carpenter, n 71 above, at 490.

164

and in so doing sent him a typewritten extract of his contribution to a

forthcoming volume which was being edited by Wand.87 In what may

have seemed to Fisher as something of a coincidence, Batty also referred to

the proceedings then pending in the Supreme Court as further evidence of

the lack of ritual autonomy in Australia.

On 16 September, and before he had seen Batty's letter, Fisher gave

his first response to Wylde.88 After receiving Batty's letter Fisher again

wrote to Wylde saying that when he had written two days earlier he had

not understood Wylde's reference to the equity case, and was therefore not

certain what Wylde had wanted of him.89 He said Batty's letter had

clarified matters for him, after noting the nature of the proceedings pending

in New South Wales he proceeded to give Wylde a history lesson. Fisher

also expressed regret that Wylde should be facing something in the nature

of a test case. On the same day he wrote to Batty thanking him for his

background information and noted that no case like that involving Wylde

had ever been brought in England.90

It is difficult to know what prompted Wylde to write to Fisher at

what was a very late stage in the case's preparation. It is uncertain whether

he wrote at the behest of his legal advisers, or whether they were even

aware that he had done so. Although it can only be a matter for surmise, it

seems that Wylde wrote without prompting. If Wylde's legal advisers

thought that such information was necessary in the preparation of the case,

it could be expected that they would have sought it through Lee, Bolton &

87 Wand, JW.C.. [Ed.], The Anglican Communion, Oxford University Press, London, 1948.88 Fisher to Wylde, 16 September, 1947. Initialled copy, Fisher papers, Lambeth Palace Library, Volume 39, folio 352.89 Fisher to Wylde, 18 September, 1947. Bathurst Diocese Archive, Bishop's correspondence.90 Fisher to Batty, 18 September, 1947. Fisher papers. Lambeth Palace Library, Volume 39, folio 353.

165

Lee, who were familiar with the case and had access to expert witnesses

who were also familiar with it. It could also be expected that if, in early

September solicitors thought the information necessary, they would have

used the speedier method of a cable to obtain it, rather than the slower

method of correspondence. Questions would also have been formulated

with greater precision so as to be sure of eliciting the required information.

Although from the dates of earlier correspondence passing between Wylde

and Batty in Australia and Fisher it could be expected that Wylde received

both of Fisher's letters while the trial was still continuing, they were not

tendered at it.91 Finally, his letter to Fisher appears to have been the only

instance during the case when Wylde took any step on his own behalf

without first taking advice from an ecclesiastic or a lawyer.

There is one other matter occurring at the pre-trial stage of the case

which should be mentioned. On 27 August Roxburgh wrote to Wylde

saying that Kerrigan wanted to discuss with him an endeavour to settle the

case on the basis that each party bear its own costs.92 Roxburgh expressed

the view that he thought the informant 'would be glad to settle', and that the

only question was on what terms. He also mentioned the uncertainty in all

litigation, '[l]ike many actions we never know what will happen until the

numbers are up.' He wanted to confer with Wylde when he was in Sydney

at the end of August. Obviously the case did not settle, and it was apparent

by 12 September that it would not. In his letter of that day to Richards,

Roxburgh referred to the possibility of a settlement but noted that 'the

opponents are determined for a fight.'93

91 Judges' Notebooks. Roper, C.J. in Eq., Equity Cases Book 6 for 23, 24, 25 and 30 September and 1 October, 1947. Book 7 for 2 and 7 October. N.S.W. State Archives. Box 3/4968.92 Roxburgh to Wylde, 27 August, 1947. Bathurst Diocese Archive, Solicitor's correspondence.93 Roxburgh to Richards, 12 September, 1947, Bathurst Diocese Archive, Solicitor's correspondence.

166

The meagre correspondence on the possibility of a settlement does

not allow a great deal to be said about it with any certainty. It seems

reasonable to infer that no serious negotiations were in progress when

Roxburgh wrote his letter of 27 August. The matter had not been

discussed with Wylde, and so Roxburgh would have had no instructions to

put any proposal to Allens. Likewise, if Allens had put any proposal to

Roxburgh prior to 27 August, it would be reasonable to expect that

Roxburgh would have mentioned it in his letter, at least to have Wylde

thinking about it before conferring with him at the end of August. At the

time of writing on 27 August, Wylde's legal advisers had the evidence

taken on commission as well as Hammond's evidence which had been

taken in June. The allegation of false doctrine had been abandoned.

Taking these factors into consideration it appears that Roxburgh was

thinking of a settlement on a "drop hands" basis, and was not

contemplating one which would involve Wylde in submitting to any orders

being made against him, or the payment of any costs to the informant.

Implicit in his thinking appears to have been the proposition that, where

necessary, existing costs orders would be vacated.

While there may not have been any negotiations before 27 August,

the tenor of Roxburgh's letter to Richards suggests that some discussions

did take place between that date and 12 September. The letter also invites

the inference that the discussions were fairly perfunctory, and that it

emerged quickly that there would be no settlement.

167

CHAPTER VI

THE EVIDENCE

The witnesses who gave evidence in London in December, 1946 and

January, 1947 have been identified in Chapter V. With the exception of

Macmorran, whose evidence was tendered by the informant, all evidence

which was tendered at the trial was tendered by the party which called the

witness.1 The evidence of all witnesses was recorded in consecutively

numbered questions, and it appears that, save for that of Bishop Taylor and

Canon Mortimer, all witness's evidence was tendered in its entirety.2

Although the heresy charge had been abandoned in June, 1947, it is worth

considering briefly some of the evidence taken on commission which was

tendered at the trial. That evidence suggests that the Red Book did not

contain any teaching contrary to the doctrines of the Anglican Church. It

may also be inferred that such of the testimony as was not tendered would

not have established heresy either. If it had gone so far, it is doubtful if the

allegation of heresy would have been withdrawn.

1 The tender of Macmorran's evidence is in Hammond, T.C., The B athurst R itual C ase, George M. Dash, Sydney, 1949 [?] at 150.2 Bishop Taylor's evidence is set forth in Hammond, as above, at 159-164. It includes questions 1-7, which dealt with qualifications and other formal matters, resumes at question 35 and proceeds through to question 60. Question 67 is added. No cross examination or re-examination is included. Of Mortimer's evidence, questions 1-75, 128-216 and 270-294 were tendered. Cross examination began at question 171. Therefore questions 76-127 of examination in chief and questions 217-269 of the cross examination were omitted from the tender: Hammond at 200-01, 204 and 206. The evidence of other witnesses is set forth in Hammond as follows: Macmorran at 150-58; Armitage at 164-71; Don at 181-92 and Dashwood at 208-9.

168

This is a convenient point to examine the comment of Rich, J., that

'the advisers of the informant ... had made a charge of heresy against the

defendant Bishop somewhat recklessly.*3 Superficially this strong criticism

might seem justified. The allegation of heresy was dropped shortly after

the evidence taken on commission had been considered by both parties.

The bulk of such evidence was tendered at the trial, and Rich, J. could see

that no witness came close to condemning the Red Book as teaching false

doctrine. His Honour would have been aware from reading the Appeal

Book that the evidence of two witnesses, Carter and Grimster, had not been

tendered. It would have been reasonable for him to infer that neither of

them was willing to condemn the Red Book as heretical, because if the

situation had been otherwise the allegation of heresy would not have been

dropped and their evidence would have been tendered.

However, this is not to tell the whole story. From the transcript, his

Honour would have known that, although in a minority of one on the point,

in examination in chief and cross examination Hammond expressed the

view that the Red Book taught false doctrine.4 Given that Hammond had

been involved in the matter since June, 1943, it is reasonable to infer that

the allegation of heresy was included in the information on his advice.

Moreover, there is nothing to suggest that when the information was drawn

any expert other than Hammond had been consulted by the informant's

legal advisers. Although his may have later been shown to be a minority

opinion, in April, 1944 Hammond could have been reasonably regarded by

the informant's legal advisers as credible on the question. To this might be

added the observation that when they became aware, via the evidence

taken on commission, that Hammond's views on the question were

3 W ylde v. A ttorn ey-G en era l (N .S.W .) (1948) 78 C.L.R. 224 at 273.4 Hammond, n. 1 above, at 95 and 106-07.

169

heterodox, the informant's legal advisers abandoned the allegation of

heresy. None of this suggests recklessness on their part.

* * * *

On Tuesday 23 September, 1947, almost three and a half years after

the information had been filed, the hearing of the Red Book case

commenced before Roper, C.J. in Eq.5 It occupied seven sitting days. If

the two days in June when Hammond's evidence was taken and the three

days in December, 1946-January, 1947 when evidence was taken on

commission are taken into account, the trial occupied 12 days.

Approximately half of the seven sitting days was devoted to evidence, and

the remainder to legal argument.6 Before Roper, C.J. in Eq. the informant

called five lay witnesses and one expert witness. The lay witnesses were:

Ernest Athol Sharpe, a Canowindra solicitor;7 Alfred Norman Henry

Sambrook, a 78 year old architect from Bathurst;8 Christopher Wren, a 75

year old retired farmer and grazier from the Canowindra district;9 Walter

Eric Taylor Frost, a chartered accountant from Canowindra,10 and Reginald

Thomas Hole, a retired District Engineer from Bathurst.11 Of them only

Sambrook was not a relator. The expert witness was Broughton Knox.12

A ttorn ey-G en era l v. W ylde (1948) 48 S.R. (N.S.W.) 366. Judges' Notebooks, Roper, C.J. in Eq., Equity Cases, Books 6 and 7, New South Wales State Archives, Box 3/4968.6 Judges' Notebooks, as above. His Honour recorded Teece as having commenced hissubmissions on 30 September. They were concluded on the following day, when Kitto began to address. Kitto's submissions occupied the whole of the next day, 2 October, and continued over to the next sitting day, 7 October. They were concluded on that day as were Teece's submissions-in-reply.

Hammond, n. 1 above, at 13-19.As above, at 19-21.

78910 11 12

As above at 39-41. As above, at 41-47. As above, at 47-50. As above, at 21-39. Knox's evidence was given between that of Sambrook and that of Wren.

From a reading of the transcript, it does not appear that there was any forensic reason for Knox being interposed in this way. An account of Knox's appearance as a witness is given in Loane, M.L. andJensen, P., B roughton Knox P rin cipa l o f M oore C ollege, 1959-1985 , Moore College, Newtown, 1994 at 5-6.

170

Wylde gave evidence on his own behalf,13 as did John Stanley Richards,

rector of Canowindra when the Red Book was introduced in that parish.14

Batty gave expert evidence on Wylde's behalf.15

As well as painting an unflattering group portrait of the relators,

Teale has noted that their evidence was, for the most part, unimpressive.16

This is a fair assessment. Particularly was this so in the case of Sambrook.

His evidence was to the effect that although once a parishioner at All

Saints' Cathedral, he had ceased to be such in 1911, citing liturgical

innovation as his reason for departure. Between 1911 and 1947 he said

that he had been to church about a dozen times, and then to St. Barnabas',

Broadway and St Andrew's Cathedral in Sydney. He had never seen a

copy of the Red Book, let alone been present at a service in which it had

been used. There was nothing in his evidence which took the informant’s

case beyond the point to which it was taken by the other lay witnesses

called on behalf of the informant. Although one might reasonably wonder

why Sambrook was called at all, the fact that he was suggests that the

informant's legal advisers were having difficulty in finding laymen who

were willing to give evidence.

With differing degrees of attention and comprehension, the relators

who gave evidence had read the Red Book and had been to at least one

service at which it had been used. In examination in chief each witness

was asked what it was about the Red Book to which he objected. The

answer of each was to the same effect. Sharpe said it gave a meaning that

13 Hammond, as above, at 70-81.14 As above, at 61-69.15 Batty's evidence is in Hammond, as above, at 51-66 and 81-88. Batty's evidence was given in two stages as the result of a deliberate decision on Kitto's part to reserve part of his examination in chief.16 Teale, R.M.., The "Red Book" Case' (1982) 12 Journal o f R elig ious H is to ry 74.

171

the bread and wine ’actually became the Body and Blood of Our Lord.’17

Wren referred to the rubric on page 20.18 Frost thought the rubric implied

'a change in substance of the elements.'19 Hole objected to 'the implied

teaching in it, of Transubstantiation in particular, that human blood and

human flesh are consumed at the Communion Table.’20 Even though the

allegation of heresy had been withdrawn, save for Wren, each of the

relators was cross examined on his understanding of the doctrine of

Transubstantiation, and the Anglican Church's teaching upon it. While in

cross examination Frost maintained that, on his reading of it, the Red Book

implied a complete change in the nature and substance of the elements at

the communion,21 Sharpe confessed himself unfamiliar with the doctrines

of Transubstantiation and the Real Presence, and of the Anglican Church's

doctrinal position with respect to the former. He also admitted that he did

not know what was the Roman doctrine of Transubstantiation.22 Hole's

earthier assessment was that the rubrics dealing with the matter were 'sheer

nonsense to me'. 23

All relators, except Wren who was not pressed on the point,

conceded that there had been pre-Red Book deviations from the B.C.P.

Communion order, with Sharpe and Frost identifying some of these

deviations as being objectionable to them.24 All relators who gave

evidence were cross examined to ascertain the extent of their

17 Hammond, n. 1 above, at 13.18 As above, at 39.19 As above, at 41-42. Frost also expressed objection at the omission of the Ten Commandments and the Words of Distribution. Perceptively, he also observed, 'Personally I feel that if each Bishop is to be permitted to issue his own form of prayer we will find in every diocese a different interpretation of our doctrines and a different form of service and we will not be a united Church of England at all.'

As above, at 48.As above, at 45.As above, at 19.As above, at 49.As above, at 15-16 (Sharpe) and 43-44 and 46 (Frost).

2021222324

172

understanding of the respects in which the Communion order in the Red

Book differed from that in the B.C.P. Although each could point to certain

things in addition to the belief in transubstantiation contended for, it is fair

to say that none of them exhibited a deep and detailed knowledge of the

B.C.P. order, nor of the points of similarity between that order and the Red

Book. Likewise, to the extent that they were cross examined on it, their

evidence exhibited very little knowledge of the 1928 Book.

So far as these witnesses are concerned, some additional comments

are pertinent. First, it should not come as any surprise that they were not

able to give detailed evidence on the m inutiae of orders of service and

rubrics contained in the B.C.P., the 1928 Book and the Red Book and the

doctrinal significance of such rubrics. Secondly, Hole, Wren and

Sambrook had been confirmed by Camidge in the 19th century, so that

when they gave evidence they were all elderly men. This too may have

affected their ability to acquit themselves well in the witness box.

Although there was some duplication in the informant's experts'

evidence, it is proposed to deal with it in the order in which it was obtained

rather than as one unit. As it is unusual for parties to have three bites at the

cherry in assembling evidence, it is useful to note what use may have been

made of this opportunity. Particularly is this so when it is borne in mind

that there were approximately six months between the taking of evidence

on commission and Hammond's evidence, and about three months between

that evidence and Knox's evidence. Of those experts whose evidence was

taken on commission and tendered by the informant Macmorran and

Armitage were lawyers and Taylor was an ecclesiastic.

173

Bishop Taylor's examination in chief was not tendered in its entirety,

and none of his cross examination was tendered. He made the point that

the Red Book was intended to be a book of devotion designed to help the

worshipper. This was neither the first time nor the last that the question

was raised as to whether the Red Book was a public service book or a

manual of private devotion.25 Having drawn this distinction, Taylor

considered separately the order of service in the Red Book and the

rubrics.26 So far as the former was concerned, he sought to show that

differences between the Red Book order and the B.C.P. suggested that

Wylde's purpose was to make his book 'as far as possible in line with' the

Prayer Book of 1549.27 Taylor also sought to show that in constructing the

1552 Prayer Book Cranmer had been concerned to strike at the doctrines of

the Real Presence and eucharistic sacrifice. The implication was that in the

Red Book Wylde intended to restore these doctrines. When considering

the rubrics, Taylor noted that they also taught these doctrines.28

Chancellor Armitage undertook a similar exercise, but to a different

end. Before doing so he confirmed that in England the B.C.P. was prescribed by the A ct o f Uniform ity, and that in England any departures

from its orders of service, even on matters which appeared trivial or

unimportant, were illegal.29 From this it followed that in his opinion

because it did not conform with the B.C.P., in England use of the Red

25 Previously the matter had been raised by Macmorran in his letter of to Lee, Bolton & Lee of 19 November 1945.26 Rubrics are ritual or ceremonial directions contained at the beginning of a service book, or in the text. The word derives from the Latin ruber, meaning red: Cross, F.L., The O xford D ic tion ary o f the C hristian Church , Oxford University Press, Oxford, 1966, at 1187 and Onions, C.T. (Ed.) The O xford D iction ary o f E nglish E tym ology, Oxford University Press, Oxford, 1978 at 775. In his evidence: Hammond, n. 1 above, at 159, Taylor observed, incorrectly, that there were various notes which were in red and could properly be called rubrics. With the exception of some headings for the intercessions at 11-14, red print is used for private prayers and for congregational responses. Generally Wylde had used black italicized print for the rubrics.27 Hammond, as above, at 159.28 As above, at 164.29 As above.

174

Book would have involved infringement of the A ct o f U niform ity and

consequent illegality.30 However, in cross examination he accepted that it

was 'common knowledge that every clergyman departs from it.'31 In cross

examination it was put to him that such differences as there were between

the Red Book and the B.C.P. were within the 1928 Book. The purpose of

such questions was to show that there was nothing doctrinally inconsistent

between the Red Book and the 1928 Book. It was also relevant to adoption

of the 1928 Book by the Church Assembly, and the attitude of the

Convocations of Canterbury and York to it after its rejection by the House

of Commons. After Armitage had said he had detected 13 differences

between the Red Book and the 1928 Book there was the following

exchange which gives an unmistakable indication of what he thought of the

whole exercise:32

Q. And would you agree with me that most of them are not very important? - I should say that the whole thing was not very important.

Although it did not arise from cross examination, in re-examination

counsel put to Armitage questions concerning the construction of the final

words of art. 24 of the Constitutions scheduled to the 1902 A c t.33 Armitage

was hesitant to express an opinion on the construction of a New South

Wales Act, and approached the matter on the assumption that it was a

question of English law. On that basis, and speaking as at 1945, he replied

that the competent authority of the Church in England within the meaning

of art. 24 was the Church Assembly. He also expressed the view that it

30 As above, at 168.31 As above, at 170.32 As above.33 The article provided, 'No rule, ordinance or determination of any Diocesan or Provincial Synod shall make any alteration in the article [sic], liturgy, or formularies of the Church, except in conformity with any alteration which may be made therein by any competent authority of the Church of England in England.’

175

was a competent authority for the purposes of alterations to the law

concerning the church.34

After an initial objection by counsel for the informant, Macmorran

was also questioned on art. 24. Like Armitage he looked at the matter

from the standpoint of English law in 1945. Consistently with the opinion

he had earlier given to Lee, Bolton & Lee, he said that the whole of art. 24

was ’really based on an entire misconception of the position’ in England.35

In an opinion which might have applied to the position in both 1902 and

1945, he said that although Parliament might be a competent authority, it

was not an authority of the Church of England. In cross examination

counsel for the informant put it to Macmorran that if any sense was to be

made of it, the article must be taken to mean that there could be no change

in the Church’s liturgy except in conformity with an alteration made by a

competent authority in England. Presumably because the effect of this

construction would be to excize the words "of the Church of England"

from art. 24, Macmorran was not prepared to accept it on the basis that it

did ’undue violence to the plain language of the Enactment.’

It has already been noted that in his letter of 19 November, 1945,

Macmorran expressed the opinion that the Red Book was not a public

service book. It was a view to which he adhered in his evidence. In cross

examination he said that the things which were to be judged under the A c t

o f U niform ity were public service books which may be used in churches,

but that the Red Book was not a public service book at all. So when it was

put to Macmorran that the Red Book contained divergences from the

34 Hammond, n. 1 above, at 171. The Church Assembly had been established by the Church o f E n glan d A ssem b ly (P o w ers) Act, 1919 (U.K.). 9 & 10 G eo, V, c . 76. Throughout this thesis this statute will be referred to as the Church P ow ers Act.35 Hammond, as above, at 153. It was a view he repeated in cross examination: Hammond at 157.

176

B.C.P. and the 1928 Book, he responded that the Red Book was not a

prayer book.36

Hammond’s evidence, which was the most extensive in the case,

covered much the same ground as that of Taylor, Armitage and

Macmorran. In some respects he agreed with their evidence, and in others

he did not. It is also fair to say that Hammond’s evidence bore the

hallmarks of interestedness to be expected from one who had promoted the

litigation and who had rendered assistance to those opposed to the Red

Book and or Wylde for almost four years.

He agreed with Armitage that in England the Church of England was

the Church of the realm, and that its articles and forms of worship were determined by statute. He relied upon R idsda le v. C lifton37 as authority for

the proposition that it was not lawful to use any ceremony not contained in

the B.C.P., especially the administration of Holy Communion. Therefore,

to the extent that it contained additions and omissions from the B.C.P., the

Red Book was illegal.38 Like Taylor and Armitage he went through the

exercise of pointing out differences between the Red Book and the B.C.P.

In so doing he volunteered what were, in his opinion, similarities between

the Red Book order and the Roman rite.39 Further, while Armitage and

Macmorran did not think that differences between the Red Book and the

1928 Book were significant, Hammond maintained that they were.40

36 As above, at 156.37 (1877) 2 P.D. 27638 Hammond, n. 1 above, at 91, 92, 94 and 103. Hammond accepted the conclusion in the Nexus Opinions that the Church in England in New South Wales was part of the Church of England in England, and as such was bound by its rites, formularies and ceremonies. He added that it was bound by judicial decisions lawfully made' in England. As to what were lawful decisions, he instanced those of the Privy Council, those of civil courts, and English Ecclesiastical courts, 'perhaps I should say.'39 As above, at 94-99.40 As above, at 106-07, 112 and 119.

177

Hammond also disagreed with the other experts on the meaning to be

given to the final words of art. 24. The question was dealt with shortly in

examination in chief, with Hammond agreeing with Lord Uthwatt's view

that the competent authority referred to was '[t]he parliament of England.

That is the only competent authority that can authorise an alteration of the

formularies of the Church of England.'41 In cross examination Kerrigan

asked Hammond if Parliament was an authority of the Church of England,

and received an answer in the affirmative which was put on two bases.

The first was the Establishment with the monarch as 'supreme ordinary of the Church.' The second was as a matter of construction of the C hurch

P o w e rs A ct, which provided that no form of ceremony could be introduced

except by a resolution of the Houses of Parliament. So, reasoned

Hammond, the legislature was 'the body set up to represent the Church of

England.'42

It is not disputed that Hammond genuinely believed that Parliament

was a competent authority of the Church in England within the meaning of

art. 24. It is also understandable why he should have thought so. The 1928

Book had been accepted by the Church Assembly. It was only the

Commons which had rejected it. For Hammond to have agreed with

Armitage that the Church Assembly was a competent authority of the

Church would have involved acceptance of the proposition that the 1928

Book had been accepted by a competent authority of the Church. Given

the evidence of all experts bar himself that the Red Book did not differ

significantly from the 1928 Book, this is not a conclusion Hammond would

have wished to embrace.

As above, at 92.Hammond, n. 1 above, at 104.

178

The question of whether the Red Book was or was not a public

service book was not really considered by Armitage or Taylor. Upon it

Hammond disagreed with views expressed by Macmorran in and out of the

witness box. Hammond's view was that the whole of the Red Book, even

so much of it as contained what was manifestly private devotional material,

was a public service book. In a view which may have given Maynard

some satisfaction, Hammond thought the fact that it had been authorized

made the whole of the Red Book a public service book.43

Wylde's claim to possess a ius liturgicum was not touched upon by

the English experts whose evidence was tendered on behalf of the

informant, but was considered by Hammond. While he accepted that in pre-Reformation England bishops possessed a ius litu rg icu m , Hammond's

view was that the aim of every Act of Uniformity since the first of 1549

had been to put an end the power of bishops to authorize liturgies. In Hammond's view bishops possessed no ius liturgicum other than that

permitted by the A ct o f U niform ity. Under that statute the ius liturgicum

was confined to 'certain discretions set out in the Rubrics.'44 Kerrigan

tried unsuccessfully to shift Hammond in this view.

In his cross examination of Hammond Kerrigan did not seek to

disturb the central pillar of his evidence in chief that what the A c t o f

U niform ity required was strict compliance with the B.C.P., and that any

deviation from it, even in apparently trivial matters involved illegality.

Rather, Kerrigan sought to show the results which flowed from

Hammond’s position. In so doing he dealt principally with the Sydney

Diocese. After putting to Hammond service books from the Dioceses of

As above, at 108.As above, at 100.

179

Sheffield, Armidale, Riverina, Goulburn, Wangaratta, Gippsland and

Brisbane, there was the following exchange45

Q. So we have illegality in New South Wales, Victoria and Brisbane? - And England, Scotland and Ireland.

Q And we have illegalities, I suppose in the Diocese of Sydney? - Yes.

So far as the Sydney Diocese was concerned, Hammond further

conceded that he did not believe that he could point to any church in it in

which the B.C.P. order was followed exactly. Kerrigan also put a series of

questions concerning services at Christ Church St. Laurence. Hammond

conceded that on hearsay he was aware of what were, in his opinion, illegal

ceremonies conducted within it. He further admitted that so far as he knew

such ceremonies had been going on since his arrival in the Diocese, and

that he had taken no steps to stop them.46

Kerrigan also dealt with Hammond’s own church, St. Philip's,

Church Hill. While agreeing that services conducted by him in that church

were illegal, Hammond offered an explanation:47

Q But the Rubric in the Book of Common Prayer says you should read it [the warning]; you do not consider yourself bound by that? - No, I do not. If my congregation thought I was bound to do it, I would do it.

A little later in the cross examination there was the following:48

Q. Do you regard the omissions of some Prayers a departure from the Act of Uniformity? - 1 think for the purpose of facility to

45

46

47

48

As above, at 118.As above.As above, at 109.As above, at 118.

180

people who have long distances to go, it is an omission which is not significant.

Q. Are these deviations in your view to be based on a matter of convenience of the congregation? - 1 think they have to be based on the convenience of the congregation.

This aspect of Hammond’s cross examination has been considered in

detail for four reasons. First, because it shows the essential difficulty of

the informant's position. If what Wylde or Richards were doing in

Bathurst or Canowindra was illegal and involved breaches of trust, then so

did the conduct of Hammond at St. Philip's, and that of every other

Anglican clergyman in the Sydney Diocese. While it is difficult to accept

that prior to June, 1947 Teece, Minton Taylor and Hammond would not

have been aware of the implications of the case they were mounting

against Wylde, as the evidence just quoted shows, by that time they must

have been. This raises the question of why they were determined to

proceed with the case, and not to embrace the prospect of a settlement to

which Roxburgh had referred. The absence of material from the relators'

side of the record or anything detailed from Roxburgh means that it is not

possible to answer this question with any certainty.

Secondly, it showed that although aware of what he regarded as

illegal liturgical practices in the Sydney Diocese, Hammond took no steps

to put a stop to them. Why was it that he was prepared to allow Fr. Hope

to carry on with apparent impunity and yet take up the cudgels on behalf of

men who appeared to have little interest in or knowledge of what they were

pleased to describe as their religion? This raises one of the most important

features of the Red Book case: why was it that it should have occurred

when and where it did? Again, because of the absence of papers from

181

Hammond or anybody else on the informant's side of the record, this is a

question which cannot be answered with certainty.

Thirdly, while it is not suggested that Hammond gave testimony

which he did not believe to be true, his evidence shows that, unlike the

English experts, he was not so much the dispassionate witness as a

protagonist arguing a case. When it came to the activities of his opponents,

Hammond treats us to an open-and-shut explanation of what he considered

to be the law. Conversely, although he readily admitted to his own illegal

acts, the excuses offered for them bordered on the egregious.

Finally, and in part this is related to the third point, when seeking to

justify use of a book which he admitted was authorized by the Sydney

Diocese for use in military camps, Hammond was thrown back on the

excuse that it was intended for use by troops and not clergymen.49 This

prompted Kerrigan to put it to him that the Red Book was precisely the

same, a book primarily intended for use by the laity. Hammond would

have none of it.

The last expert to give evidence on behalf of the informant was

Broughton Knox, who had been lecturing at Moore College since early

1947.50 After eliciting Knox's qualifications Teece began to ask questions

on the connexion between the Church of England in England and in New

South Wales. Knox gave it as his opinion that the Church of England in

New South Wales was part of the Church of England in England, and as

such was 'entirely bound' by the faith, doctrine, ritual and liturgy of the

Church of England in England.51 The Nexus Opinions underlay this

49 As above, at 130.50 As above, at 21. An account of Knox's career is given in Loane & Jensen, n. 12, passim.51 As above, at 22. This view was consistent with counsel's answer to question 10 of the Nexus Opinions.

182

opinion and the remainder of Knox's evidence on the position of the

Church in New South Wales was undertaken expressly in the context of

them. They were put to Knox who confirmed he had read them.52 Over

Kitto's objections the Nexus Opinions were tendered, and as Teece took

him through them Knox expressed agreement with counsels' answers to

questions 2, 3, 6, 7, 9 and 10. At the conclusion of this series of questions

the Nexus Opinions were admitted into evidence.53 By having the Nexus

Opinions in evidence Teece was able to put before Roper, C.J. in Eq. a

large amount of material which was of great importance to the questions

which he ultimately had to decide.

In cross examination Kitto pursued Knox's understanding of the

relationship between the Church in England and in New South Wales in

order to tease out Knox's opinion on the A c t o f U niform ity's operation in

New South Wales. Knox thought that at the time of settlement the Church in New South Wales was an established Church, with the A c t o f U niform ity

operating of its own force. In Knox's view, the Church ceased to be

established in the 1830s, following the passage of statutes which

'established' other churches by paying their clergy and 'giving them

establishment', and which 'abolished state aid to religion.'54 In Knox’s opinion, after dis-establishment the A ct o f U niform ity continued to operate

52 As above. Although it is only a minor matter, it is necessary to correct Loane's inaccurate account of Knox's evidence: Loane & Jensen, n. 12 at 5. Loane refers to the Nexus Opinions as though they were written entirely by Adrian Knox. He then has Broughton Knox rejecting a suggestion from 'R.W. Kitto' [sic] that he had just read the Nexus Opinions in preparation for the case. He proceeds to give it as Knox's evidence that, as a boy of 16, he had read them and had formed an opinion from which he had had no need subsequently to depart. The reality was more than a little different. In his evidence Knox confirmed that he had seen the Nexus Opinions when he was 16 (in 1932). In fact, Knox's evidence was 'I cannot recall that I read it through, I quite distinctly remember seeing the book and glancing at it.' In response to a question as to when he first read the Nexus Opinions he replied 1 have read it quite recently for the first time thoroughly, but I cannot tell you when I first read it.': Hammond, n. 1 above, at 30.53 Hammond, as above, at 22-23. They became Exhibit "P".54 As above, at 29-30.

183

by reason of an agreement among Church members.55 Just as in his cross

examination of Hammond Kerrigan sought to establish the difficulty of the

informant's position, Kitto put the following to Knox:56

Q. If you look at the use in the Church in Australia you do not find anywhere the Act of Uniformity obeyed implicitly? - You find it obeyed in the same way as in the Church in England.

Q. It is not exactly anywhere? - Not exactly; not to my knowledge, I have never seen it exactly.

Q. If you do not find it obeyed in Australia, on what do you base your opinion that it is binding in Australia? - Because it is binding on the Church of England in England.

* * * *

The evidence considered so far in this chapter was related to the

pleadings discussed in Chapter IV. As it is the informant's case which has

so far been considered, the question arises as to the extent to which the

informant laid the evidentiary basis to make good what the pleadings

required to established. To a lesser extent note should also be taken of the

way in which Kitto and Kerrigan were able, in cross examination, to secure

concessions which were likely to assist Wylde.

The bulk of the informant's energies were devoted to establishing

that the B.C.P. contained the only lawful order for Holy Communion, and

that any deviation from it was illegal. Oral evidence and the tender of the

Nexus Opinions firmly laid the groundwork for this aspect of the

informant's case. None of it was shaken in cross examination. Indeed, no

real attempt was made to shake it. Rather, Wylde's counsel were more

55 As above, at 28-29. As will appear from discussion in Chapters VIII and IX, this view appears to have been based upon views expressed by Lord Romilly, M.R. in B ishop o f N a ta l v. G ladston e (1866) L.E. 3 Eq. 1.56 As above, at 29.

184

successful in showing that deviations from the B.C.P. were widespread.

Although nothing was said as to the position in Canada, South Africa and

New Zealand, the evidence showed that the B.C.P. had never been

followed precisely in the those parts of the United Kingdom where it was required by the A ct o f U niform ity to be followed, or in Australia. Of

course, this did not go to the question of whether such deviations were

'permitted' as Wylde had pleaded in his defence. The answer to this

question appeared to depend upon whether 'permitted' should be

interpreted to mean "allowed to happen", or whether it should be

interpreted as meaning "lawfully allowed to happen." If the former

interpretation was to be preferred, then deviations were "permitted". If not,

then much depended upon the true meaning of art 24 of the Constitutions

scheduled to the 1902 A ct. On that question opinions were divided.

The evidence also showed that, as pleaded in the information Wylde

had used the Red Book himself, and that he had permitted other priests to

do the same. Wylde's attempt to meet that allegation by contending that

the Red Book did not differ in substance from the B.C.P. failed. His

alternate plea that the Red Book did not contain any teaching inconsistent

with the B.C.P. had been borne out by abandonment of the allegation of

heresy. It was also borne out by the evidence which was to the effect that

the Red Book was consistent with the doctrine of the Real Presence, and

that this was a doctrine which could be lawfully held by members of the

Church of England. Hammond was the only witness to suggest, albeit

tentatively, that the Red Book contained any impermissible teaching.

The above survey of the relationship between the pleadings and

evidence adduced in the informant’s case shows two things. First, the

essential simplicity of the informant's case, which relied very little upon

185

matters of fact, but which was based principally upon legal consequences

of facts not seriously in dispute. Secondly, the survey highlights the

fundamentally different nature of the position of the informant on the one

hand and Wylde on the other. This is well demonstrated by the fact that in

cross examination of the informant's experts neither Kitto nor Kerrigan

made any attempt to shake the central element of the informant's case that

the B.C.P. contained the only lawful order for the service of Holy

Communion in the Bathurst Diocese. It is also shown in the fact that

whereas the approach of the informant was a legalistic one based upon the

meaning of 17th century legislation and subsequent case law, Wylde's was

rooted in the notion of a Church with a longer history, and as a living

organism performing its spiritual tasks in the community.

* * * *

For Wylde, Dr. Alan Campbell Don, Dean of Westminster, was the

first witness to give evidence before the commissioner.57 Like other

witnesses Don analyzed the Red Book and compared it with the B.C.P. and

the 1928 Book. While accepting that the order of service and rubrics

implied an acceptance of the doctrine of the Real Presence, and non-

acceptance of the Receptionist Theory, his conclusion was that the Red

Book did not go beyond anything contained in the B.C.P. and the 1928

Book.58 That said, he accepted that where it applied the A c t o f U niform ity

did not permit any deviation from the B.C.P. Communion order, and that

the Red Book did not conform with that order 59 While not expressing any

57 As above, at 180-81,58 As above, at 186-87. In cross examination Don expressed the view that the Red Book was 'a combination of the two.': Hammond at 187-88. Perhaps accepting that there was nothing in the 1928 Book authorizing the making of the sign of the cross at the absolution and benediction, and the ringing of the sanctus bell, Don said that both were common in England and Scotland: Hammond at 186.59 As above, at 188.

186

opinion as to the position under New South Wales law, Don accepted that

under English law the Red Book was illegal.60

There are two other aspects of Don’s evidence which should be

mentioned. Although not asked directly for his interpretation of the final words of art. 24 of the Constitutions scheduled to the 1902 A c t, in

answering questions concerning the legality of the 1928 Book, Don

expressed the view that he would 'find it very difficult’ to say that the 1928

Book did not have legal authority. The second matter concerned whether

or not the Red Book was a public service book. In examination in chief

Don expressed the opinion that it was a book of devotions for individual

communicants.61 In cross examination counsel for the informant tried

unsuccessfully to shake Don's testimony. He maintained that it was

'clearly a book for the private communicant.'62

The evidence of Canon Robert Cecil Mortimer had more of an

historical flavour than evidence which has already been considered. It

tended to concentrate on three matters, one of which was only peripherally

relevant to questions Roper, C.J. in Eq. had to resolve. This was the

appropriateness of legislation as an instrument to regulate public worship.

The essence of Mortimer's position was that while legislation ’can never

become obsolete' even though it may remain a dead letter, unenforced or

unenforceable, the religious life of the Church and its public worship were

essentially living and changing things. Indeed, he went so far as to contend

that not only was statute law an inappropriate instrument for the regulation

of public worship, but so too was almost any type of law which was

superimposed from above. The reason for this view was the notion that as

60 As above, at 189.61 As above, at 182.62 As above, at 189.

187

the Church had grown up by custom, any such form of regulation was

inappropriate.63 Taking an historical perspective which went back to the

time of St. Augustine, the first Archbishop of Canterbury,64 he noted that

the development of the liturgy in England had been gradual and not

imposed by law. Rather, it was a case of a particular rite coming to

preponderate partly because of its own intrinsic worth, and partly because

of the prestige of its source 65

This evidence prefaced the question of greater moment in Wylde's

defence: whether bishops possessed a ius liturgicum . If this expression

was taken to connote the authority of a bishop to impose and enforce upon

clergy in his diocese particular rites or ceremonies, Mortimer’s view was

that no such right had been claimed, or existed, even before the Henrician

Reformation.66 That said, he accepted that up to the Reformation bishops

possessed what might be described as certain liturgical prerogatives or

discretions of unspecified extent.67 However, as a result of post-

Reformation legislation there had been a general removal of such prerogatives.68 Although there was little cross examination on the ius

As above, at 194.Farmer, D.H., The O xford D ictionary o f Saints, Oxford University Press, Oxford, 1978, at 24-

25.6 Hammond, n. 1, at 194-95.66 As above, at 195 and 207.67 As above, at 195.68 Although Mortimer thought there had been a general removal of liturgical prerogatives, he did not think that it had been complete. In the first place there was the following exemption contained in the B.C.P. itself, 'And forasmuch as nothing can be so plainly set forth, but doubts may arise in the use and practice of the same; to appease all such diversity (if any arise) and for the resolution of all doubts, concerning the manner how to understand, do and execute, the things contained in this Book; the parties that so doubt, or diversly take any thing, shall alway resort to the Bishop of the Diocese, who by his discretion shall take order for the quieting and appeasing of the same; so that the same order be not contrary to any thing contained in this Book. And if the Bishop of the Diocese be in doubt, then he may send for the resolution thereof to the Archbishop.' He saw subsequent statutes as effecting a partial restoration of such prerogatives. The first of these statutes was the C lerica l Subscrip tion A c t, 1856 [28 & 2 9 Viet., c. 122] which introduced a Declaration by which ordinands promised in the administration of the sacraments to use the B.C.P. order 'and none other, except so far as shall be ordered by lawful authority.' Secondly, the Shortened Services A ct [55 & 3 6 Viet., c. 35] allowed the diocesan to permit services additional to those contained in the B.C.P. Finally, there was the "veto" created by ss. 8 and 9 of the P u blic W orship R egulation A ct, 1874 [57 & 3 8 Viet., c . 85].

188

litu rgicum the result was telling. Mortimer agreed that the A c t o f

U niform ity remained in force and that under it no deviation from the B.C.P.

was lawful. Mortimer's evidence on the subject also showed the

complexities and difficulties which attached to Wylde's claim to possess a ius liturgicum . He acknowledged that prior to the Reformation a diocesan

possessed only limited liturgical prerogatives which fell short of

constituting a ius liturgicum as he had defined it. However, whatever may

have been their extent, such prerogatives had been greatly curtailed by

legislation particularly the A ct o f U niform ity. This threw up the question of

that statute's operation in New South Wales in the 1940s. Knox's view on

this has been noted, and it is a question which will be considered in greater

detail in Chapters IX and X.

The third matter of significance in Mortimer’s evidence was the

meaning of art. 24 of the Constitutions scheduled to the 1902 A c t . In

considering the position prior to the passing of the Church P o w ers A ct,

Mortimer's opinion was that although Convocation was an authority of the

Church of England, because a statute was necessary to effect change, it

was not competent to alter the Church's liturgy. Conversely, although

Parliament was the only authority which could, by legislation alter the

Church's liturgy, it was not an authority of the Church of England. For this

reason, as with Macmorran, Mortimer thought the closing words of art. 24

were 'almost meaningless.'69 In re-examination Mortimer was asked to consider the words' meaning on the footing that the A c t o f U niform ity did

not apply in New South Wales. Making that assumption, and still looking

69 As above, at 200. In cross examination Waite tried unsuccessfully to have Mortimer modify this view and agree that Parliament was a competent authority within the meaning of art. 24. However, Mortimer continued to assert that art. 24 was based upon ’a very inadequate knowledge of the Establishment of the Church of England, and has, in fact, been drafted with a phrase that is meaningless.': Hammond at 206.

189

at the pre-1919 position, Mortimer accepted that Convocation was a

competent authority of the Church within the meaning of art. 24.70

Evidence in Wylde's case was presented before Roper, C J. in Eq.

disjointedly. On 25 September Batty was examined, cross examined and

re-examined. Then for forensic reasons his evidence was discontinued.

Richards was interposed and gave his evidence in its entirety. Wylde was

also examined, cross examined and re-examined, but was recalled on the

next sitting day, 30 September. After having given evidence on 25

September, Wylde thanked Batty for all he had done, and expressed the

hope that, by the way he had handled himself in the witness box he had not

made things difficult for Batty when he resumed his evidence. Wylde

parted with the shot that Teece is not only clever, but nasty.71 Batty

completed his evidence on 30 September.72 * It is proposed to consider

Wylde’s evidence first, then that of Richards, and, finally, Batty's evidence.

Wylde's background had been mentioned in Chapter III, and this

may have contributed to his being less adept at dealing with an experienced

and skilled advocate like Teece than Hammond and Knox had been in

dealing with Kerrigan and Kitto. It should also be mentioned that during

Crotty’s episcopate, and while Wylde was coadjutor, Teece had been

Chancellor of the Bathurst Diocese. This meant that the two men would

have had some previous knowledge of each other. It is something to be

remembered in considering Wylde's cross examination.

Kitto's examination of Wylde was as short as he could make it, and

was largely confined to formal matters. In common with other witnesses,

7® As above, at 208.71 Wylde to Batty, 26 September, 1947. Newcastle Archives, Box A6747.72 Judges' Notebooks, Roper, C.J. in Eq., Equity Cases, Vol. 6, New South Wales State Archives,Box 3/4968.

190

Wylde confirmed that in his experience in England and Australia the

B.C.P. Communion order had never been strictly followed.73 However, in

view of matters left in dispute on the pleadings, what was more significant

was Wylde's evidence on the use of the Red Book in the Bathurst Diocese.

Wylde authorized its use in about 20 of the 45 parishes in the Diocese, and

in examination in chief he said that in some instances he refused

authorization where he 'thought the people would not be quite up to it in

their standard of Churchmanship.'74 In cross examination Wylde denied

that by this he meant that he refused to authorize use of the Red Book in

parishes which were not Anglo-Catholic. However, the considerations

which actuated Wylde in this regard became lost in cross examination

concerning how Wylde characterized his own churchmanship 75 * Wylde

also denied that he had ever required or persuaded any priest to use the Red

Book contrary to his own wishes. Teece appeared to accept this, but

pressed Wylde as to whether he recommended the Red Book to priests who

might have been kindly disposed to it. Wylde replied tha t' ... by putting

out a book I was recommending it.176

From the pleadings, a related question was the continued use of the

Red Book in the Diocese. Wylde confirmed that in December, 1943 he

had withdrawn his authorization for its use in Canowindra, and that at the

time of the hearing it was not being used in the Diocese as a whole.77

While Teece also appeared to accept this,78 he did raise other matters

73

74

75

76

Book.

Hammond, n. 1 above, at 70.As above, at 70-72.As above, at 80.As above, at 77. Teece also asked Wylde to deny that he had ever encouraged the use of the Red

Perhaps evading the question, Wylde replied that he and Teece would probably disagree over the meaning of "encouraged."77 As above, at 72. In re-examination it was confirmed that Wylde's letter to his clergy requiring them to return copies of the Red Book to him and to cease using it was dated 31 March, 1947: Hammond, at 79.78 As above, at 76.

191

related to the use of the Red Book or a variant of it in the Diocese. The

first was that, apparently after the Red Book ceased to be used, a Green

Book appeared in the Diocese. Wylde said that it was used only as a

manual, implying that it was not a public service book.79 Secondly, Teece

touched upon Wylde's claim to be entitled to re-introduce the Red Book.

Wylde stated that in general terms he claimed such a right, and that he

would also see himself as justified in issuing some other form of book if he

'... thought it was advancing the Church and our Lord.'80

Thirdly, Teece questioned Wylde concerning his relationship with

his Metropolitan, and his understanding of his obligation of canonical

obedience to Mowll. The context was Mowll's letter of 16 June, 1944. His

responses to Teece's questions show that Wylde was just as prepared as

Hammond to take points over the form of questions when he thought it

suited him. Asked if the Archbishop had asked him to withdraw the Red

Book, Wylde replied that Mowll had said that if he might, he would advise

him to withdraw it. When pressed as to whether he had adhered to Mowll’s

'suggestions in this respect', Wylde rejected any idea that any had been

made: ' "If I may advise." - 1 remember the words very carefully.'81 In re­

examination Kitto brought out the fact that Mowll's letter had been written

after Wylde had sent him copies of the Red Book and 'pleadings' in the

case.82

79 Hammond, at 77. This book was called A dorem us, and the circumstances of its introduction will be considered in Chapter XI.80 As above, at 76.81 Hammond, n. 2 at 74-75. Wylde went so far as to say that he did not interpret Mowll's letter as a wish that he would withdraw the Red Book. He said, 1 think he was just giving me a bit of his own advice.'82 As above, at 79. Although in his question Kitto referred to 'pleadings' the only court document which Wylde had sent to Mowll was a copy of the information.

192

While Kitto did qualify Wylde as an expert on legal or constitutional

matters, Teece asked him several questions on the subject, beginning with

a general question as to whether Wylde was familiar with the law of the

Church of England. The elliptical reply was, 'Fairly well, but not very.'83

From this Teece moved to the sanctus bell, and in response to a question as

to whether he was aware that the Privy Council had declared it to be an

illegal ornament, Wylde replied, 'In England.'84 So far as the ceremonial

use of the sign of the cross was concerned, Wylde admitted to using it even

though he knew it had been declared to be an illegal ceremony by the

Archbishop's Court in Canterbury. His justification was that'... there is a

moral law of God that is far above that law.’85 Again, this answer

underscored the different approaches of Wylde on the one hand and those

who advised the relators on the other.

Teece then turned to Wylde's understanding of the position of the

B.C.P. in New South Wales. After securing the admission that the B.C.P.

was the 'established liturgy' of the Church of England, he continued:

Q. And it is in the liturgy of the Church in New South Wales is it not? - 1 suppose it is.

Q. And yet you think you are entitled to depart from that? - 1 had that in common with all the Bishops including the Archbishop of New South Wales [sic].

Q. But does it not strike you that because other persons may be doing wrong you are not there to do wrong? - 1 think it is a very commonsense way of looking at it.

Teece also asked about Wylde's understanding of the relationship

between the Church of England in England and the Church in New South

83

84

85

As above, at 75.As above.As above, at 76.

193

Wales. In reply to a question as to whether the Church in New South

Wales was different from the Church in England, Wylde said that 'It is a

daughter church of the Church of England.'86 Wylde's position was also

confused in that although he conceded that doctrines and liturgy were the

same in England and New South Wales, he did not agree that the Church in

New South Wales was bound by the laws relating to doctrine, rites and

ceremonies of the Church in England.

Kitto did not put any questions of theological import to Wylde, and

when Teece ventured into such fields the harvest was meagre. Wylde

came across as a person who had not made a great study of such questions,

and his evidence was not of any consequence when compared with that of

the expert witnesses. Also, Wylde appeared not to have given any real

thought to the relationship between the Church in New South Wales and

the Church in England. Unlike Hammond or Knox, and, as will be seen,

Batty, Wylde's views were inchoate, if not confused. However, in

common with other clerical witnesses, there are passages in Wylde’s

evidence which show that he was aware of the problem of trying to confine

liturgical practices within a legislative framework.

The evidence of John Stanley Richards, rector of Canowindra when

the Red Book was introduced, was short.87 In chief Kerrigan confined it

principally to the meeting held at Canowindra on 19 July, 1943 and the

service at which Wylde preached there on 5 December. So far as the

former was concerned, Richards said there were about 100 present. This

compared with an average Sunday attendance of about 40, and Christmas

and Easter attendances of between 80 and 100. Such an attendance in the

As above, at 75.As above, at 66-69.

194

middle of winter in mid-western New South Wales suggests either there

was a lot of genuine feeling about the Red Book, or that those who were

opposed to it were drumming up the numbers. Although it can only be

speculation, it may well be that the latter is the correct interpretation.

Certainly those in Canowindra who were opposed to the Red Book had

already shown some organizational skills in the meetings they had had

among themselves and with Richards, and in their early contact with

Mowll and Hammond. Further, as discussion in Chapter IV has shown,

there was a level of animosity to Wylde particularly within the eastern part

his Diocese, and that might have contributed to the high attendance.

In examination in chief Richards said that between his arrival in

Canowindra in June, 1942 and introduction of the Red Book about a year

later he had never followed the B.C.P. exactly, and that during that time he

had not received one complaint from parishioners as to the manner in

which he conducted services. Although it is no more than a matter of

impression, a reading of Richards' evidence suggests that there were

liturgical innovations following his arrival at Canowindra.

As he had done with Wylde, when cross examining Richards, Teece

asked questions concerning his understanding of Church law so far as it

related to liturgical practices. The exercise was about as productive as it

had been with Wylde. The only concession of value to the informant's case

to come from it was that Richards regarded the indications for use of the

sanctus bell and the ceremonial sign of the cross in the Red Book as being

mandatory rather than discretionary.

Batty commenced his evidence with an historical survey in which he

noted that there had been four Acts of Uniformity, beginning with that

195

passed in 1549, and ending with the A c t o f U niform ity. He agreed that

there had never been strict compliance with the B.C.P. and this evidence

led into a consideration of the ius liturgicum . Batty expressed the view

that down to the 1549 Act, and subject to the Provincial Synod, bishops

had a discretion with respect to the services permissible in their dioceses.

This discretion was abolished by the Act of 1549, and such abolition was continued by its successors, including the A c t o f U niform ity. Then, in

apparent conflict with this view, Batty asserted that even after the commencement of the A ct o f U niform ity bishops continued to exercise

their ius liturgicum Very widely'.88 As it went on, Batty's evidence on this

subject was to show greater inconsistency .

Batty's evidence on the New South Wales position was based upon

three assumptions: that the Church of England had never been established in New South Wales; that the A cts o f U niform ity did not apply in Australia,

and that there was nothing in the history of the Church in Australia which

amounted to a consensual adoption of the A c t o f U niform ity.*9 He

expanded to observe that conformity to the A c t o f U niform ity was a

requirement of the Church of England in England because it was the

established Church of the State, but that this consideration did not apply to

churches which were not established by law.90 Given his three underlying

assumptions and his evaluation of the English position, Batty’s view of the

New South Wales position appeared to be that bishops in Australia possessed in full plentitude a ius liturgicum as he understood that term. In

England it had existed, only to be abolished by the A c t o f U niform ity. As

that statute did not operate in Australia, and the Church had never been

As above, at 52.As above, at 52-53. As will be seen in Chapter X. this view commended itself to Dixon, J.As above, at 53.

196

established, it followed that the pre-1549 operation of the ius liturgicum

would be unaffected. This tidy view did not emerge scatheless from

Teece’s cross examination.

While of the view that in England the P u b lic W orsh ip R egu la tion A c t

had introduced some form of negative ius litu rg icu m , in response to

questions from Teece, Batty acknowledged that that statute was not part of

the law of New South Wales and that there did not exist in that State the

system of Church courts upon which its operation was predicated. Further,

after some undignified hedging, Batty eventually admitted that there was

no bishop's veto in New South Wales.91

The ius liturgicum was discussed further when Batty resumed his

evidence on 30 September. Then there was a significant change in his

position. The essence of his revised position was that the Acts of Uniformity did not abolish the ius liturgicum , but merely operated to

prevent its exercise.92 At first blush this change was not so startling.

Underlying the opinion that the ius liturgicum existed prior to the first Act

of Uniformity was the notion that it was an incident of a bishop's orders.

As a matter of construction the Acts of Uniformity were silent as to the

nature of the office of bishop and did not declare that this incident of a

bishop's orders ceased to exist. Rather, under pain of penalty, and in the

interests of liturgical uniformity, its exercise was forbidden. However, this

superficially reasonable change of position came unstuck when Teece

sought to have Batty apply it to local conditions. The result, when seen in

the light of Batty's earlier evidence, was little short of a contradictory and

inconsistent mess. It began with the admission that the first members of

Hammond, n. 1 above, at 63.As above, at 84.

197

the Church of England to arrive in New South Wales brought with them

the law of the Church. A corollary of this in Batty's view was that there was no opportunity for the exercise of the ius litu rgicu m , and this situation

continued until 1874; the plain implication being that after that date it was

exerciseable.93

Several things may be said about this evidence. First, and most

obviously, it seems odd to be speaking about the possibility of exercise of a ius litu rgicu m at all in a colony which did not have a bishop, and which

did not come under direct episcopal control until erection of the Diocese of

Calcutta. Secondly, and more fundamentally, it cut right across two of the underlying assumptions of Batty's earlier evidence, viz., that the A c t o f

U niform ity never applied in New South Wales either of its own force or as

part of a consensual compact. This inconsistency is underscored when it is

remembered that earlier in his evidence Batty had said that the P u b lic

W orsh ip R egu lation A c t had never been part of the law of New South

Wales. Consistency should have dictated that Batty put forward the view that for so long as there had been bishops in New South Wales the ius

litu rgicum existed and was exerciseable.

Batty was also examined and cross examined as to the meaning of

art. 24 of the Constitutions scheduled to the 1902 A ct, and the substance of

his evidence in chief was that he was unable to identify any competent

authority of the Church of England in England.94 Although it might have

been expected, at no stage of his cross examination did Teece put to Batty

that the legislature was a competent authority of the Church of England in

England within the meaning of art. 24.

As above.As above, at 53.

198

Batty's evidence also touched upon subjects which had been

considered by other experts. He agreed that to the extent that the Red

Book differed from the 1928 Book it did not do so in matters of

substance,95 and that the order for Communion in the Red Book did not

contain anything which was against any rule of the Church in New South

Wales, and that it was Anglican and not Roman Catholic in character.96

The book was, in Batty's opinion, a manual to guide people's worship,

intended to help them follow the service, and, when it came to matters such

as Collects, Epistles, Gospels and the like, it was a book which was not self

sufficient.97

The other noteworthy feature of Batty's evidence is that in cross

examination Teece put to him extracts from an article and a letter written by him and published in the Church S tan dard on 13 September and 25

October, 1946 respectively.98 In the former Batty wrote:

It [the Australian Church] has never claimed the power to alter the Prayer Book ... and if any dispute concerning the interpretation of that book should arise it would have to be settled in accordance with decisions given in England. No decisions given by any Australian court, whether ecclesiastical or civil could have any force at all if they differed from these English decisions. So that, as I have often said, the Australian Church is bound by laws which it had no share in making and which it is powerless to amend, and by decisions of courts before which it is powerless to plead.

In the second Batty referred to the fact that legislative participation

would be necessary in the process of the Australian Church acquiring its

own constitution, and the role of the law of charitable trusts in making such

acquisition a necessity:

As above, at 55.As above, at 54,55 and 57.As above, at 55 and 57.As above, at 57 and 58.

199

The writer who appeared strongly to favour the idea of autonomy for the Australian Church asked why it was necessary to approach Parliament in the matter ... The answer is ... property. If the Church owned no property and had no endowments; if it could do without money to pay the stipends of its clergy and finance its institutions, it could do exactly as it pleased, and order its worship and discipline in any way it liked provided of course that it did not interfere with the civil rights of its members. But as things are, it cannot. The law relating to charitable trusts rightly requires that money given for a specific purpose must be used for that purpose ... Now what you have to get clear is that in the eyes of the law the Church of England in Australia is subject, like every other charitable body, to the law of trusts. It must use its property for the purposes for which it was acquired, i.e., for Church of England purposes, and that means purposes which conform in all respects to the existing laws and formularies of the Church of England in England and to the decisions given by English Courts in relation to them.

The forensic purpose in putting these articles to Batty was clear. Not

only did they reveal an inconsistency with evidence which he had earlier

given, but they also contained statements of opinion which were of

assistance to the informant's case. As well they laid the groundwork for

Teece to put to Batty various English authorities which contained

statements which also supported the informant's case." There is a further

point to be made about these articles. Above mention has been made of the

fact that Kerrigan's cross examination of Hammond and Kitto’s cross

examination of Knox revealed a fundamental difficulty in the informant's

position in the case. In putting these articles to Batty, Teece revealed a

difficulty in the Wylde's position.

The passages from his writings quoted to Batty served another

purpose. They highlighted with precision and eloquence matters of

considerable importance which lay not far beneath the surface of the Red

" As above, at 62.

200

Book case. They made it plain why it was that those like Batty wished to

have an autonomous Church in Australia, and why others did not. They

also hinted at a possible motive in those like Hammond who were advising

the relators. This was to obtain an authoritative statement from an

Australian court as to the legal position of the Church in this country, and

as to the applicability of English decisions on ecclesiastical law.

* * * *

In several respects evidence on Wylde's behalf was to the same

effect as that given on behalf of the informant: the B.C.P. order was never

followed exactly; the Red Book did not differ materially from the 1928

Book; there were decisions of English courts declaring against (not using

that expression as a term of art) the sanctus bell and the ceremonial sign of

the cross and holding that strict compliance with the B.C.P. was necessary,

and that the doctrine of the Real Presence or the Receptionist Theory could

be held by loyal members of the Church of England. The weight of the

evidence was also to the effect that those who adhered to the Receptionist

Theory would find the Red Book distasteful to use.

On the important topic of the ius liturgicum , the evidence, given by

Mortimer and Batty, was unsatisfactory. The problems with that of the

latter have already been commented upon. So far as the former was

concerned, problems stemmed from a lack of definition. In one sense he

was of the view that such a thing never existed. However, he accepted that

before the Acts of Uniformity, bishops possessed some liturgical

prerogative or discretion. However, its nature and extent were not

described, nor was the precise way in which it was affected by the Acts of

201

Uniformity dealt with satisfactorily. Nor was it made clear how this prerogative fell short of a ius liturgicum .

Don did not deal directly with the meaning of art. 24 of the

Constitutions scheduled to the 1902 A c t, and the substance of Mortimer's

opinion was similar to that of other experts. Batty's evidence was, in

substance to the same effect as other experts who gave evidence for

Wylde: the closing words of the article were unintelligible.

When considered as a whole, the evidence of both sides suggests that

there were few matters of fact which were seriously in dispute. Similarly,

and especially if Hammond’s evidence is put to one side, there were few

areas of significant dispute among the expert witnesses called. English

experts gave their evidence dispassionately, and, perhaps with some

bemusement that the matters upon which they were called to express their

opinions could be the subject of litigation in the 1940s. So far as the

Australian experts were concerned, their evidence was not as disinterested

as that of their English counterparts. Hammond, and to a lesser degree,

Knox and Batty, could be seen as protagonists as well as expert witnesses.

Their lack of objectivity affected their evidence accordingly.

* * * *

After the evidence was complete there were over of three days of

legal argument to come. This and Roper, C.J. in Eq.'s reasons will be

considered in Chapter VII. Rather late in the piece, on 7 October, Maynard

offered Wylde his thoughts and prayers for the trial.100 Two days later

Wylde wrote to Batty thanking him for all that he had done, and expressed

1°° Maynard to Wylde, 7 October, 1947. Bathurst Diocese Archive, Clergy correspondence.

202

admiration for Kitto, Kerrigan and Roxburgh.101 He also expressed regret

that Batty was not 'in court when Kitto dealt with Hammond.' This

referred to Kitto’s submissions on Hammond's evidence, which were put

with some vigour. According to Roper, C.J. in Eq.'s note, Kitto submitted

that Hammond gave evidence from one theological point of view only, and

was not a priest of the Church of England, but of the Irish Church in

communion with the Church of England. According to Kitto, Hammond

had an obvious anti-Roman complex which led him to find Rome in

everything.102 More of the flavour of Kitto's submissions concerning

Hammod's evidence came from a letter Kerrigan wrote to Wylde on 9

October.103 He described it as 'masterly: precise, critical, moderate but

destructive in the tradition of great advocacy.’ Kerrigan also said that Kitto

did not attack Hammond's sincerity, save to the extent that the latter

advocated a rigidity of rite which was too rigid for himself. He also

expressed hope as to the result, noting that the Judge took a very great

interest in the case, and appeared 'fully aware of the implications of the

decision which he has to give.'

As well as these matters of immediate concern, Kerrigan was also

reflective. He mentioned that efforts to avoid a decision by having the

information defeated on technical grounds had failed, and that they had

been forced to a trial on issues of fact and law 'which were distasteful as

issues of fact and difficult as issues of law.' For this he blamed 'an unjust

decision of the Full Court and improper use of the Royal Authority by the

101 Wylde to Batty, 9 October, 1947. Newcastle Archives, Box A6747. Batty replied on 13 October saying that he could not have done less, and only wished he could have done more. He also expressed the hope that 'righteousness will win.': Batty to Wylde, 13 October, 1947. Carbon copy, Newcastle Archives, Box A6747.102 Judges' Notebooks. Roper, C.J. in Eq. Equity Cases, 1939-1949, Vol. 7. New South Wales State Archives, Box 3/4968.103 Kerrigan to Wylde, 9 October, 1947. Bathurst Diocese Archive, Counsel's correspondence.

203

executive.' Finally, he expressed the belief 'that subsequent examination of

the matter by courts in years to come will disclose this view to be correct.'

Kitto also wrote to Wylde on 9 October.104 By today’s standards it is

unusual for senior counsel to write to a client in this way. It also shows the

regard Kitto had developed for his client. Some of Kitto’s letter deserves to

be quoted:

For my part I can truthfully say that I would not for worlds have missed the honour - for so I regard it - of appearing for you in the case.

I knew beforehand of some of the great work you have done and are doing in ministering to men and women in the highest things of life and I count it a great privilege to do even a little to counteract [?] the efforts of intolerant people who would prevent you from leading your flock in the way you judge best for their spiritual well being. I shall be bitterly disappointed if our joint efforts are not successful.

As for the personal contact the case has made possible between us I can only say it makes me look forward keenly to any and every opportunity the future may offer for our meeting.

There followed an invitation for Wylde to visit Kitto and his wife at

their home, and a P.S. to the effect that he had heard during the case that

Roper, C.J. in Eq. received a letter appealing to him to scotch that

'communist Red Book.'

This was not the last occasion upon which Kitto was to write to

Wylde in such a way.

104 Kitto to Wylde, 9 October, 1947. Bathurst Diocese Archive, Counsel's correspondence.

204

CHAPTER VII

FIRST INSTANCE AND ITS AFTERMATH

Before considering the legal argument addressed to Roper, C.J. in

Eq. by Teece and Kitto and his Honour's decision, it is convenient to

examine counsel's submissions on questions of fact and his Honour's

determination of them.

Kitto submitted that the explanatory rubrics formed no part of the

service, and, somewhat bravely, that the Red Book order was neutral as

between the doctrine of the Real Presence and the Receptionist Theory.1

Both these submissions were rejected. As to the former, his Honour held

that the rubrics 'in fact guide control and interpret the service set out in the

Book.^ As to the latter, he held that the Red Book was designed upon the

basis of a belief in the doctrine of the Real Presence, that interpretations in

it were repugnant to the Receptionist Theory, 'and would be distasteful to a

member of the Church holding the views expressed in that theory.9 His

Honour resolved the disputed allegation of encouragement of use against

Wylde. In so doing he relied upon Wylde's compilation the Red Book and

authorization of its use. These findings were coupled with observations as

to Wylde’s position in relation to clergy of the Bathurst Diocese to justify

12 3

(1948) 48 S.R. (N.S.W.) 366 at370. As above, at 378.As above, at 377.

205

the determination of this question.4 This was not unreasonable given

Wylde's admission that by putting the book out he encouraged its use.

After abandonment of the heresy allegation, his Honour found that any significance which attached to the ep ik lesis and the rubric on page 20

of the Red Book derived only from the fact that they were additions to the

B.C.P. order.5 It was also found that the prayer for the faithful departed

did not denote a belief in the Roman doctrine of purgatory, and, accordingly, it had the same significance in the case as the ep ik les is and the

rubric on page 20.6 His Honour also held that the Preparation contained in

the first five pages was not intended to form part of the service, and that no

significance attached to its presence in the Red Book.7

Roper, C.J. in Eq. rejected any suggestion that the Red Book did not

differ in essentials from the B.C.P. While there was ample evidence to

justify this finding, in part his Honour’s justification for his determination

was not satisfactory. A factor relied upon was that the prosecution of the

suit of itself established differences essential to the minds of the relators on

the one hand, and Wylde on the other.8 With respect, this was not an

inquiry relevant to the question which his Honour had to determine; what

was relevant was the identification of points of difference between the

B.C.P. and the Red Book and a qualitative assessment of their significance.

The inference is available that prosecution of the suit had more to do with

the zeal of Hammond than the relators' lust for a brawl in the rarefied

atmosphere of an equity court. Moreover, given the quality of the lay

testimony given on behalf of the informant, one might be pardoned for

4 As above.5 As above, at 378.6 As above.7 As above.8 As above, at 379.

206

thinking that ascribing to the relators any conception of what was essential

or otherwise on such a question was at best a risky enterprise.

Another reason relied upon was the Red Book's Virtual advocacy' of

the doctrine of the Real Presence as opposed to the Receptionist Theory.9

There was more substance to this ground. It was accepted that the doctrine

of the Real Presence and the Receptionist Theory were both permissible

within the Church of England, and that the B.C.P. could be used by those

who adhered to either view. As Wylde was in a minority of one on the

point, there can be no sustainable criticism of Roper, C.J. in Eq.'s finding

that the Red Book accepted the doctrine of the Real Presence, and rejected

the Receptionist Theory. In such circumstances, it was reasonable to hold

that the fact that the Red Book taught one eucharistic doctrine to the

exclusion of another was a difference of substance.

Absent from Kitto's submissions on questions of fact was an

argument that his Honour should have found that the Red Book was not a

public service book at all, but merely a manual intended for private use of

the faithful laity.10 There was evidence upon which such a finding could

have been made The reason for not arguing for such a finding is unclear.

Kitto may have taken the view that there was nothing in the defence to

have justified it,11 and that there was no point in seeking leave to make an

appropriate amendment to the defence. In addition, or alternatively, Kitto

may have thought that the prospects of a finding being made that the Red

Book was a private manual were so remote that the effort was not justified.

9 As above.10 There is nothing in the outline of Kitto's argument to suggest that such a submission was put: (1948) 48 S.R. (N.S.W.) 366 at 369-72, and Roper, C.J. in Eq.'s judgment makes no mention of any such argument. The judgment proceeds upon the understanding the Red Book was a public service book.11 The defence is set out in Hammond, T.C., The B athurst R itual C ase, George M. Dash, Sydney 1949 [?] at 6-9. It contained nothing to the effect that the suit should be dismissed on the ground that the Red Book was a manual of private devotion and not a public service book.

207

* * * *

The A c t o f U niform ity was at the centre of Teece's legal argument.12

He submitted that so far as it related to liturgy, rites and formularies, the

law and use of the Church of England were the same in New South Wales and in England. In England such law and use applied because the A c t o f

U niform ity gave them statutory force. Although that Act did not apply in

New South Wales, it formed part of the consensual compact upon which

the Church as a voluntary association had been formed.13 The terms of the

A c t o f U niform ity made the B.C.P. the only legal form of service in

England, and, because that statute was part of the consensual compact upon

which the Church in New South Wales was formed, the B.C.P. was the

only legal form of service in that State. The corollary of this was that the

Red Book was an illegal book, and to use an illegal book constituted a

breach of the trusts upon which church property was held.14

It was a very simple argument which was put as an absolute

argument, and did not depend upon a qualitative assessment of the respects

in which the Red Book differed from the B.C.P. The existence of

differences was sufficient. A consequence of the way in which the

informant’s case was put was that it was not an essential feature of its case

12 Teece's primary submissions are reported in (1948) 48 S.R. (N.S.W.) 366 at 368-9, and his submissions in reply at 372-4.13 In his submissions in reply Teece put a two tiered gloss on this argument. The first was to the effect that the A ct o f Uniform ity was part of the original consensual compact, but that subsequently the liturgy of the Church derived its force from the 1902 Act. The second was to the effect that even if the 1902 A c t had not excluded the acts complained of, the 'ordinary law' prohibited them. For this proposition he cited B ishop o f N a ta l v. G ladstone (1866) L.R. 3 Eq. 1 at 35, F ield ing v. H ouison (1908) 7 C.L.R. 393 at 406 and 423 and R e M acG regor; Thompson v. Ashton (1932) 32 S.R. (N.S.W.) 483 at 492.14 As authority for the proposition that it was illegal to conduct in a church a service which was illegal Teece relied upon Solicitor-G enera l v. W ylde (1945) 46 S.R. (N.S.W.) 83 at 97 (Jordan, C.J.), A ttorn ey-G en era l v. M unro (1848) 2 De G. & Sm. 122; 64 E.R. 55 and F ree Church o f S co tlan d v. O vertoun [1904] A.C. 515 at 611-17 (Earl of Halsbury, L.C.), 643-45 (Lord Davey), 655 (Lord James), 683 (Lord Robertson) and 703 (Lord Alverstone, C.J.)

208

that it was a breach of trust to use the Red Book because it was based upon

one lawful form of eucharistic doctrine to the exclusion of another.15 This

aspect of Teece's argument had implications for Wylde's claim to possess a

ius liturgicum . Teece submitted that in England following commencement

of the A c t o f U niform ity a diocesan had no ius litu rg icu m . As that statute

was part of the consensual compact upon which the Church in New South Wales was organized, it followed that there was no ius litu rgicu m in that

State.

So far as the trusts were concerned, Teece argued that churches in

the Bathurst Diocese were vested in the Church of England Property Trust Diocese of Bathurst to be held on the trusts set forth in the 1 9 1 7 A c t .16 He

also argued that the trusts upon which churches in New South Wales were held were embodied in the 1902 A ct. In reply he was more precise,

submitting that the trusts upon which churches in New South Wales were

held included 'a trust to the effect that the form of worship shall be in

accordance with the forms contained in the Prayer Book of 1662.’17

On the court’s discretion to refuse relief Teece argued that Wylde

claimed as of right to do the things of which the informant complained and

15 Although Teece made this point in his opening submissions, the report suggests that it was not central to his main argument as to why use of the Red Book constituted a breach of trust.16 By s. 7 of the Anglican Church o f A ustralia Act, 1976 the short title of the 1 9 1 7 A c t was changed to the A nglican Church o f A ustralia Trust P roperty A ct. Section 7 of the 1976 Act commenced on 24 August, 1981: G overnm ent G azette No. 139, 8 September, 1981 at 4892.17 Section 4 provided that the Constitutions scheduled to the 1902 A ct or any rules or ordinances made pursuant to them were 'for all purposes connected with or in any way relating to the property of the Church of England within the State of New South Wales binding upon the members the members of the said Church.' The substance of s. 5 was that excepting real or personal estate which was subject to an express trust and lands already specially provided for by an ordinance of Synod or an Act of the New South Wales legislature, all persons then or in the future holding any real or personal estate in trust on behalf of the Church of England held it subject to the constitutions and any ordinances or rules made under them, and were to be bound by them as fully and in all respects as if they were contained in a deed of conveyance and trust. Article 3 of the Constitutions conferred a general ordinance making power upon diocesan synods, art. 6 dealt with the mode of voting and quorums at such synods, and art. 23 with the calling of Provincial Synods.

209

there was no other form of remedy available to the informant. He also

made the point that the Red Book was offensive to members of the Church

in New South Wales who adhered to the Receptionist Theory. Finally, he

argued that the respects in which the Red Book departed from the B.C.P.

were sufficiently substantial to merit the remedy of an injunction being

granted.

Kitto took issue with Teece's argument that there was commonality

between the law and use of the Church in New South Wales and England

so far as it concerned liturgy, rites and formularies.18 While accepting that

in England the obligation to comply with the B.C.P. flowed from the A c t o f

U niform ity Kitto argued that that statute did not establish a rule of the

Church, but ' ... altered the law of England and so bound members of the

Church as citizens.' Moreover, he argued, there was nothing in the

evidence to show that the Church in England had, by anything like a

consensual compact, adopted a rule requiring adherence to the B.C.P. Like Teece, Kitto accepted that the A ct o f U niform ity did not apply in New

South Wales. The point of departure in his argument was whether there

was anything in the consensual compact upon which the Church in New South Wales was formed or the 1902 A c t which made the A c t o f U niform ity

applicable or otherwise required strict compliance with the B.C.P. Kitto

submitted that the evidence had not established, nor was it the fact, that

there was any rule of the voluntary association of the Church in New South

Wales which required strict compliance with the B.C.P. Further, the

Church in New South Wales had not formed itself on the basis of any

constitution which prescribed strict adherence to the B.C.P., or which

empowered any person or body to prescribe such adherence. So far as the

1902 A c t was concerned, Kitto argued that as a matter of construction, it

18 Kitto's submissions are in (1948) 48 S.R. (N.S.W.) 366 at 369-72.

210

did not incorporate the A ct o f U niform ity into New South Wales law

generally or into the law of the Church of England in New South Wales in

particular.

In dealing with the nature of the trusts upon which Church property

was held, which he said went no further than being for the erection and

maintenance of a building to be used as a church by a body known in New

South Wales as the Church of England, Kitto argued that if a person

entitled to conduct services of that Church conducted on Church property a

service which contained no impermissible teaching, there was no breach of

trust, even if the rules of the voluntary association were not observed in

their entirety. This contained the kernel of a matter of greater significance.

According to the report of Kitto's argument this was reduced to the

fundamental submission that ' [t]he failure of the heresy charge means

failure of the suit.' The importance which Kitto attached to this submission

may be gauged from the fact that variations of it appeared in four other

places in his submissions as reported.

Kitto's argument on the operation of the A c t o f U niform ity in New

South Wales also provided the basis for his submissions on the ius

liturgicum , the sanctus bell and the ceremonial sign of the cross. He

accepted that in England prior to the A ct o f U niform ity there had been a ius

litu rgicum . Because that statute did not apply in New South Wales and

had not otherwise been adopted by the Church there, it followed that the

effect which that statute had on the ius liturgicum had no application in

New South Wales. Although this submission flew in the face of Batty's

evidence on the subject, Kitto's argument was simple and consistent with

the remainder of his submissions. The argument on the ceremonial sign of

the cross and sanctus bell was similar. Without challenging the correctness

211

of authority which had declared them to be illegal in England, Kitto argued that the only reason they were illegal there was because of the A c t o f

U n iform ity19 As that statute had no application in New South Wales it

followed that the authority which rested upon it to declare illegal the

ceremonial sign of the cross and the sanctus bell could have no application

either.

As reported, Kitto's submissions began with the proposition that the

first question in the case was not whether the Red Book was illegal, but

whether Wylde's conduct amounted to a breach of trust. This question,

Kitto argued, had three aspects: the order of service itself; directions for

ringing the sanctus bell, and using the ceremonial sign of the cross. Kitto

submitted that after abandonment of the heresy allegation the case was not

about questions of doctrine or liturgy, but was only about whether certain

trusts had been breached.

The preceding paragraphs illustrate how Kitto dealt with these

questions. They have also shown that he said little on the content of the

trusts. In addition to the point that the only trust proven was for the

erection and maintenance of a building to be used as a church by a body

known as the Church of England, there were only two other significant

points made by Kitto concerning trusts. The first was that the trusts were

general and not specific and did not incorporate a requirement that

domestic rules of the Church should be observed in all things.20 Secondly,

19 Perhaps more accurately, it was not because of provisions of the A ct o f U niform ity as such, but because of the Ornaments Rubric of the B.C.P.20 In putting this submission Kitto sought to distinguish M illigan v. M itch ell (1833) 1 My. & K. 446, 39 E.R. 750, 3 My. & Cr. 72 and 40 E.R. 852; A ttorney-G eneral v. P earson (1817) 3 Mer. 353, 36 E.R. 135, A ttorn ey-G en era l v. M unro (1848) 2 De G. & Sm. 122, 64 E.R. 55 and A tto rn ey-G en era l v. M urdoch (1849) 7 Hare 445, 68 E.R. 183, which had been cited by Jordan, C.J. in for first Full Court appeal ((1945) 46 S.R. (N.S.W.) 38 at 100) as authority for the proposition that a court of equity would intervene by injunction to restrain a breach of trust, on the basis that they were all cases which involved departures from specific trusts.

212

Kitto made the point that Wylde was not a trustee of church property.

From this it was submitted that the Supreme Court had jurisdiction over

Wylde only if he took trust property and diverted it; there was no

jurisdiction if he merely went onto trust property and there did something

contrary to the rules of the Church.21 Kitto also made the point that all the

authorities relied upon by the informant involved breaches of trust by

trustees themselves in allowing strangers to use trust property or

themselves allowing impermissible doctrines to be taught.

In dealing with discretion Kitto argued that the Church had not yet

agreed upon a constitution which would enable it to deal with a matter such

as that which was before the Court. In the circumstances the Court should

not regulate the Church's internal affairs. It was, Kitto submitted, against

the public interest for the Court, on pain of imprisonment, to require

certain things to be done in spiritual matters. This was as close as he came,

and it was not close at all, to arguing that what the case involved were

matters of ecclesiastical law and jurisdiction.

Subject to one qualification there was nothing new of significance in

Teece's submissions in reply. The qualification is that he took issue with

Kitto's point that with withdrawal of the heresy allegation the informant's

case fell to the ground. While so much was inherent in what Teece had put

in his opening submissions, in reply he argued that it was not the law that

21 While not gainsaying the correctness of what Kitto was putting, the argument may be seen as resting upon a fine point. Among other things s. 5 of the 1917 A ct declared that the Church of England Property Trust Diocese of Bathurst, which had been constituted a body corporate and politic under the Church o f E ngland Trust P ro p er ty Incorporation A ct, 1881 (N.S.W.), to remain as so constituted. But, it also provided that the bishop was to be ex officio a member of the body corporate so constituted and continued. Section 19 of the 1917 A ct provided a mechanism for the vesting of church trust property in the corporate trustee. Section 4 defined "Church trust property" to include real or personal property subject to a trust for the use, benefit, or purposes of the Church of England of any diocese formed or to be formed in New South Wales.

213

there could be no breach of trust if the Red Book did not teach false

doctrine.22

* * * *

Legal argument concluded on 7 October, 1947 and judgment was

reserved for more than four months. On 23 December, 1947 Kerrigan

wrote to Wylde,23 and recounted a conversation which he had recently had

with Roper, C.J. in Eq. in which the judge said that judgment would be

given in early February, 1948. Five days later Kitto wrote to Wylde in

similar terms.24 In what suggested optimism as to the result, Kitto implied

that Roper, C.J. in Eq. was at pains to produce a judgment of some quality

as he, Roper, must have been feeling that the Attorney-General 'will ask

the Privy Council to read what he has to say.' Kitto also remarked that his

Honour would have observed plenty of deviations from the B.C.P. in the

recent royal wedding, and in referring to Christmas services in Canowindra

expressed the hope that they were not advertized as "Xmas", 'for the sign

of the cross must surely be avoided, even in print.'

If Kitto was hopeful of the outcome, Wylde was not. On 20 January,

1948 he wrote to Batty advising that judgment was expected in early

February25 and said, 'I cannot think I shall get the verdict, but if I do not

get the English costs, it will be most unjust.' In so writing Wylde did not

offer any reason for this gloomy estimate. However, if he was expecting

an adverse result, Wylde was not going to take it lying down. Although

the letter containing the request has not survived, in late 1947 or early 1948

22 For this proposition he referred to A ttorney-G eneral v. W elsh (1844) 4 Hare 572, 67 E.R. 775, A tto rn ey-G en era l v. M unro (1848) 2 De G. & Sm. 122,64 E.R. 55 and Tudor C h arities (4th. Ed.) at 248- 9 and (5th. Ed.) at 235-6.25 Kerrigan to Wylde, 23 December, 1947. Bathurst Diocese Archive, Counsel's correspondence.24 Kitto to Wylde, 28 December, 1947. Bathurst Diocese Archive, Counsel's correspondence.25 Wylde to Batty, 20 January, 1948. Newcastle Archives, Box A6747.

214

he wrote to Maynard asking for ideas about a possible appeal if judgment

was given against him. With apologies for a tardy response Maynard

answered Wylde's letter on 19 January, 1948.26 Maynard did not offer any

advice, saying that he would rather respond after he had considered the

judgment and consulted with others. In Maynard’s assessment, much

depended upon the 'justice and common sense of the judgment.' In any

event he suggested that Wylde should try to use 'the enemy's attack' as an

opportunity for widespread teaching concerning the nature of the church

and its relationship to the state. If such teaching were done well and

thoroughly, he told Wylde, much good could come from his distress, and

the church would be forever grateful.

* * * *

Two days after Wylde had written to Batty on 15 February, 1948,

and while Kitto was involved in the Bank Nationalization case, Roper, C.J.

in Eq. gave judgment.27 With those of Latham, C.J. and Williams, J.,

central aspects of Roper, C.J. in Eq.'s reasons will be recorded and

critically examined in Chapter IX. For the purposes of this chapter it is

sufficient to give a skeleton outline of them such as will render intelligible

the discussion of events which occurred between February and August,

1948.

26 Maynard to Wylde, 19 January, 1948. Bathurst Diocese Archive, Clergy correspondence.27 Bank o f N ew South W ales v. C om m onw ealth (1948) 76 C.L.R. 1. Argument in the Bank Nationalization case was heard in Melbourne on February 9-12, 16-20, 23-27, March 1-5, 8-12, 15-19, 22-25, 31 and in Sydney April 1, 2 and 13-15. May, A.L., The B a ttle f o r the B anks, Sydney University Press, Sydney, 1968 gives an account of that case from the perspective of an economic historian, and Barwick, Sir Garfield, A R ad ica l Tory, The Federation Press, Sydney, 1995, Chapter 5, contains an account written by a participant. The fact that the Bank Nationalization case was being argued at the time is relevant to the extent that it indicates that while decisions were taken upon an appeal from Roper, C.J. in Eq.'s judgment Kitto was involved in other litigation of profound importance.

215

Although he accepted the informant's claim, Roper, C.J. in Eq. did

not embrace Teece's submissions in the terms in which they were put. His

Honour accepted that although it had initially been established, gradually

the Church in New South Wales ceased to be so and became a voluntary

association, depending for its existence and continuation upon the consent

of those who chose to remain in it.28 He found that the nature of the

consensual compact at the foundation of the voluntary association was

implied. The essence of the consensual compact was that where in a

colony which had a legislature there was no religion established by that

legislature and a number of persons established in that colony a church

with the doctrines rites and ordinances of the Church of England, its

members were by implicit agreement bound by all its laws.29 30 In Roper,

C.J. in Eq.'s view nothing since had changed the voluntary association's foundation, and this situation had been reinforced by the 1902 A c t and in

particular art. 24 of the Constitutions scheduled to that statute. In his

Honour's view, by art. 24 the framers of the Constitutions successfully

ensured that the articles, liturgy and formularies of the Church in New

South Wales should remain identical with the articles, liturgy and

formularies of the Church in England as they existed when the Church

Trust P ro p e r ty M anagem ent A c t was passed in New South Wales in 1866.30

28 (1948) 48 S.R. (N.8.W.) 366 at 381. Whatever the process of change from established Church to voluntary association may have comprised, his Honour noted it as including 7 Wm. IV, N o. 3, and as having been completed by 1862 at the latest, following the abolition of state aid to religion.29 (1948) 48 S.R. (N.S.W.) 366 at 382. For this implication his Honour relied upon B ishop o f N ata l v. G ladston e (1866) L.R. 4 Eq. 1 at 35-6. Although it is not the function of this chapter to offer a critique of Roper, C.J. in Eq.'s reasoning, two comments may be made of this point. The first is that while it may in theory be possible for colonists to establish a church with the doctrines, rites and ordinances of the Church of England, how is it to be determined as a matter of fact that they have done so? Secondly, and assuming the first matter is satisfactorily resolved, ought the words "its laws" be confined to the laws of the Church itself, or should they be read as including statute law as well?30 As above, at 383. To this his Honour added the qualification that art. 24 would permit alterations made to conform with lawful alterations effected in England. This reasoning shows that Roper, C.J. in Eq. accepted the Nexus Opinions as correct.

216

In England the Church's liturgy was prescribed by the A c t o f

U n iform ity , and was to be found in the B.C.P. which was annexed to that

statute.31 His Honour held that because the A c t o f U niform ity was imposed

on the Church as part of the law, and because of that statute's 'binding force

and universality', the liturgy prescribed by it was a 'fundamental rule of the

Church.'32 Further, while the A ct o f U niform ity was never part of the law

of the land in New South Wales, Roper, C.J. in Eq. said, 'it follows

necessarily I think that this fundamental rule of the Church of England in

England was a fundamental rule of the voluntary association in New South

Wales.'33 In other words, it was a fundamental rule of the Church in New

South Wales that the liturgy of the Church in that State was to be found in

the B.C.P.

At this point it is convenient to note that after a short discussion, his

Honour seemed prepared to determine the case on the bases that church

property was held on trust for the use, benefit and purposes of the Church

of England in the Bathurst Diocese.34 Later in his judgment Roper, C.J. in

Eq. repeated that finding,35 and also repeated that, subject to any possible application of the Shortened S erv ices A ct, it was a 'fundamental rule of the

Church of England in New South Wales' that public services in its

churches should be conducted 'in accordance with the form and order

prescribed by the Prayer Book.'36 The result of this was that the use of a

church to conduct a service not in that form and order was a use of that

31 As above. While noting the effect of the Shortened Services A ct, for this proposition his Honour relied upon M artin v. M ackonochie (1868) L.R. 2 P.C. 365 at 382-3 and S h eppard v. B ennett (1871) L.R. 4 P.C. 371 at 403-04.32 As above, at 384.33 As above.34 As above, at 390-80. This formula of words appears in the long title, preamble and definition of"Church trust property" in s. 4 of the 1917 Act.35 As above, at 387.36 As above, at 388.

217

church otherwise than for the use, benefit or purposes of the Church of

England in New South Wales and necessarily involved a breach of trust.37

This was the heart of his Honour's reasoning, and it involved rejection of

Kitto's submission that abandonment of the heresy allegation was fatal to

the informant's case.

There is one matter in the preceding paragraph which is of recurring

significance and ought to be considered here. It is whether by his

observation that in New South Wales the public services of the Church

should be conducted in accordance with the form and order of the B.C.P.

his Honour meant that any failure to conform strictly to that order involved

a breach of trust. It is submitted that this is the only inference available. The evidence of English experts was that by reason of the A c t o f

U niform ity anything other than strict compliance with the B.C.P. involved

illegality. Because the A ct o f U niform ity was a fundamental rule of the

Church in New South Wales, his Honour reasoned that any deviation from

the B.C.P. there must have the same consequence as it had in England, viz.,

illegality. Applying that reasoning, anything other than strict compliance

with the B.C.P. involved a breach of a trust which required that property be

held for the use benefit or purposes of the Church of England. As well as

being required contextually, this conclusion is also required by the

language which his Honour used. If what his Honour had intended to say

was that substantial conformity with the B.C.P. order was acceptable and

would not involve illegality or a breach of trust, it would have been easy

enough to have said so. However, for him to have so held would have

created difficulties, not the least of which would have been dealing with

Kitto's point that abandonment of the allegation of heresy was fatal to the

informant's case.

37 As above.

218

Having concluded that to conduct services in accordance with the

Red Book involved a breach of trust, his Honour considered whether

Wylde should be enjoined from using it. While accepting that Wylde was

not a trustee, Roper, C J. in Eq. said that Wylde was personally liable to be enjoined from using the Red Book. This view rested upon the proposition

under the rules of the Church that Wylde was entitled to conduct services

in churches in the Bathurst Diocese, and could not be prevented from so

doing by the corporate trustee. Accordingly, ' ... on principle and on

authority he is personally liable to be injuncted if his acts cause the church

property to be used in breach of trust.'38 * 445

38 As above. While his Honour did not refer to any particular principle, as authority he cited S o lic ito r-G en era l v. W ylde (1945) 46 S.R. (N.S.W.) 83 and A ttorn ey-G en era l v. M urdoch (1849) 7 Hare445 at 469-70, 68 E.R. 183. Although Roper, C.J. in Eq. gave no page number in his reference to S olic ito r-G en era l v. W ylde, it is clear that he was referring to a paragraph in the judgment of Jordan, C.J. at 99-100. In that paragraph the Chief Justice referred to the fact that at the hearing of the matter the informant would bear the onus of establishing that Wylde's acts complained of constituted breaches of trust. He went on to observe that there was nothing in the information to suggest that such acts were permissible variations of a ceremony provided for by the Church’s rules or a mere irregularity in the performance of a ceremony capable of being adopted and approved, so that an authorization would prevent the user complained of from being a breach of trust. He continued, If authority be required for the proposition that the court will intervene by way of injunction to restrain a breach of trust if established, it is supplied by such cases as ... A ttorney-G eneral v. M urdoch.' In referring to A ttorney- G en era l v. M urdoch Jordan, C.J. referred to the same pages of the Nominate Report as were cited by Roper, C.J. in Eq. From this analysis it is clear that Jordan, C.J. was citing A tto rn ey-G en era l v. M urdoch as authority for the broad proposition that courts will intervene by the grant of an injunction to restrain a breach of trust. He was not dealing with the narrower question, which Roper, C.J. in Eq. had to consider, namely whether a person who was not a trustee, and whom the trustee could not render corrigible, could commit a breach of trust and be similarly restrained. That narrower question did not arise in argument before the Full Court in the first appeal. Finally, it might be added that the Chief Justice's remarks were clearly obiter.

A ttorn ey-G en era l v. M urdoch was not a case which involved the restraining of a breach of trust upon the part of an individual in circumstances in which the trustees were powerless to prevent such individual from committing a breach of trust. Accordingly, the question which Roper, C.J. in Eq. had to consider did not arise in that case. A ttorney-G eneral v. M urdoch was a relator action brought on the information of four trustees of the Low Meeting House at Berwick on Tweed, and, by bill, the same four trustees as plaintiffs sued Murdoch and such of the trustees as were not plaintiffs in the relator suit. Relevantly the plaintiffs sought a declaration that no person was qualified or competent to exercise the office of minister without being a licentiate and recognized minister of the Church of Scotland, and an order that Murdoch be restrained from occupying and using the pulpit and otherwise acting as minister of the House. At the time of his appointment to the House, Murdoch was a licentiate of the Church of Scotland, but subsequently seceded from it. For this reason the informants argued he was disqualified from and incompetent to exercise the role of minister in the House. The Vice-Chancellor found (at 458- 60) that Murdoch had severed his connexion with the Church of Scotland. After reviewing evidence he concluded (at 467-8) that until the creation of the Free Church of Scotland there was established in the House a connexion with the Church of Scotland which was as close as practicable. Accordingly, far from involving a situation in which trustees were powerless to prevent a person who had every right so to do

219

Discretion was dealt with in one paragraph in which no authority

was cited. Roper, CJ. in Eq. gave three reasons for exercising his

discretion in the informant's favour. The first was that Wylde had claimed

an entitlement to commit the acts complained of and had threatened to

continue doing them. Secondly, and his Honour's choice of words suggests

that to his mind it was subsidiary to the first ground, was that the acts

complained of could not be regarded as trivial or unimportant. Thirdly, the

informant had no remedy other than the one which he had sought in the

suit.* 39 Although normally not a matter of great moment, because it

continued to rankle, his Honour's costs order should be noted. He ordered

Wylde to pay the costs of the relators in the suit, 'including the costs

ordered to be paid by the relators, and one half of the costs of the Writ of

Commission to take evidence in England and the taking of evidence under

it.'40

Roper, CJ. in Eq. declared each of the use of the Red Book, ringing

of the sanctus bell and making of the ceremonial sign of the cross in

churches in the Bathurst Diocese constituted breaches of trust. Wylde was

enjoined, in All Saints' Cathedral and every other church in the Diocese,

from using, authorizing for use or encouraging the use of any order for the

administration of Holy Communion other than that contained in the B.C.P.

He was also enjoined from making the ceremonial sign of the cross, and

using a sanctus bell. By these orders the informant had secured all that had

been asked in the information. Following the High Court appeal these

from going onto trust property from entering upon it and there committing a breach of trust, A ttorney- G en era l v. M urdoch was a case in which trustees were responsible for the institution of proceedings to prevent a person who had no right so to do from going onto trust property and there committing a breach of trust.39 (1948) 48 S.R. (N.S.W.) 366 at 388.40 As above at 388-9.

220

orders were narrowed, and such narrowing was of considerable

importance.

* * * *

On 17 February, 1948 Roxburgh advised Wylde of the result,41 and

the following day Wylde cabled Batty,42 who responded with

commiserations 43 Batty's remark that he was 'hoping against hope that a

more enlightened view might prevail', suggests that he may have expected

a result pretty much as that which was given.44 Batty's reply also shows

that the judgment set him thinking on the effect the decision could have on

the constitution, as he told Wylde it might harden Sydney's attitude 'to any

constitution which would deprive them of the opportunity to describe

people like you and me as law-breakers.'45 Some form of autonomy which

would not have included Sydney was also mentioned.46 Finally, Batty

expressed his continuing willingness to do whatever he could to assist

Wylde. Importantly in this regard, Batty said that he would be lunching

41 Roxburgh to Wylde, 17 February, 1948. Bathurst Diocese Archive. Solicitor's correspondence42 Wylde to Batty, 18 February, 1948. Newcastle Archives, Box A6747.43 Batty to Wylde, 19 February, 1948. Bathurst Diocese Archive, Bishop's correspondence. Wylde had this letter transcribed, and a copy of the transcription in the Maynard Papers.44 On 23 February, 1948 Batty wrote to Halse, Archbishop of Brisbane and acting Primate saying, among other things ' ... we have known all along that on a strictly legalistic view Bathurst's case was lamentably weak.': Batty to Halse, 23 February, 1948, Queensland provincial Archives. Copy Newcastle Archives, Box A6747.45 If Roper, C.J. in Eq.'s judgment may have hardened Sydney's opposition to a constitution, there were countervailing matters which might have made autonomy appealing to Sydney. Later in the letter Batty mentioned that if proposals for reform of the Canon Law then under consideration in England proceeded in directions which had been suggested, 1 should suppose that Sydney's attitude to the Nexus will be considerably modified.' In this context Batty referred to a cable from the Ven. Herbert Smirnoff Begbie to Fisher which suggested 'considerable apprehension on [Sydney's] part.' On 13 January, 1948 Fisher had written to Batty advising of a cable he had received from Begbie and Canons David James Knox (father of Broughton Knox) and Richard Bradley Robinson (father of Donald William Bradley Robinson, Archbishop of Sydney, 1982-93) expressing Sydney's concerns over new canon law proposals, which they wanted delayed: Fisher to Batty, 13 January, 1948. Copy, Fisher Papers, Lambeth Palace Library, Vol.. 39 fol. 314.46 Batty told Wylde his present inclination was to summon the Archbishops of Perth, Melbourneand Brisbane and the Bishops of Adelaide and Willochra to a conference to discuss 'the possibility of independent provincial action.' It was a proposal which Batty also mentioned in a letter of 23 February to Halse: Batty to Halse, 23 February, 1948. Queensland Provincial Archives, Copy NewcastleArchives, Box A6747. In this letter to Halse, Batty referred to Fisher as being lamentably ignorant of the facts of our position vis-a-vis the Church in England.'

221

with Geoffrey Fisher, Archbishop of Canterbury, on 3 March, and asked

Wylde to respond by air mail if there was 'anything you would like me to

tell him.' Batty remained in England for the first half of 1948, and while

there did what he could to assist Wylde.

On 19 February Kerrigan expressed his disappointment, and

observed that Kitto would be very surprised at the result.47 Halse,

Archbishop of Brisbane and acting Primate, wrote the following day.48 He

made no comment on the judgment, and stated that his purpose in writing

was to express the hope that the Church at large might show its practical

sympathy by doing its full share to meet Wylde's costs.

The judgment was well covered in the religious press. The A u stra lia n Church R eco rd published Roper, C.J. in Eq.'s reasons and

offered two comments upon them. In the first,49 the main features of the

judgment were outlined as were Wylde's avenues of appeal. It was then

said that the judgment contained the first authoritative definition of the

Church's constitution in New South Wales, and that it contradicted 'the

opinions of those who have been framing the new constitutions.' Finally

and inaccurately it said that the judgment showed 'that the widespread

practice of Australian bishops of issuing their own order of Holy

Communion [was] a breach of contract through which bishops hold their

position and it declares the practice illegal.' The second article was more

concerned to attack the episcopate and affirm the laity's entitlements.50

47 Kerrigan to Wylde, 19 February, 1948. Bathurst Diocese Archive, Counsel's correspondence. This suggests that Kitto did not share Batty's pessimistic assessment of Wylde's prospects of success.48 Halse to Wylde, 20 February, 1948. Bathurst Diocese Archive, Bishop's correspondence.49 A ustralian Church R ecord , 26 February, 1948, at 6.50 A ustralian Church R ecord , 11 March, 1948, at 3. It said Wylde's plea was of such a character as to place himself 'above all Church legislation in the conduct of his episcopate, a plea only to be stated to be seen as incapable of proof.' It went on to say that bishops existed for the Church, not the Church for bishops, and that the Church was composed largely of laity 'whose rights in the Church must always be

222

From the other side of the fence there were two editorials in the Church

Stan dard . The first sought to demonstrate the futility of the judgment by

observing that notwithstanding its terms and publication in 'our contemporary The A u stra lian Church R e c o r d deviations from the B.C.P.

continued at St. Andrew's Cathedral.51 The second editorial explored the

judgment's consequences saying that 'if the Law as interpreted by the

judgment were carried out, the Church might as well put up the shutters.'52

Kitto wrote to Wylde on 24 February53 saying that he could only

describe his disappointment at Roper, C.J. in Eq.'s judgment 'as bitter.’54

He had read the judgment with incredulity, and denounced it as 'superficial

and entirely unsatisfactory.' Being the typical lawyer and not giving any

guarantees, Kitto also said that be did not believe that the judgment would

stand on appeal. From Kitto's letter it appears that Wylde had written to

him after judgment had been given, and that he mentioned possible

disobedience of Roper, C.J. in Eq.’s orders. In showing his earlier concern

for Wylde, Kitto said:

I fully appreciate the difficulties with which you are now faced.Let me at once say that I would strongly advise against defying the injunction. You will be the first to appreciate that by so doing you would raise an entirely new issue - whether the law of the land is

respected.' It concluded 'the Bathurst laymen had every right to take steps against the infringement of their liberties by an autocratic action of their bishop.'51 Church S tandard, 19 March, 1948 at 3. It instanced that in a broadcast service of 7 March 'there were five notable deviations.' More importantly it said that the 'impasse' created by the judgment should hasten the adoption of a Constitution which would enable the Church 'to escape from an intolerable situation.'52 Church S tandard, 2 April, 1948 at 1-2. That said, the editorial ended positively by noting that 'most of the irregularities are not objected to by anyone at all' and that litigation was unlikely to result from them.53 Kitto to Wylde, 24 February, 1948. Bathurst Diocese Archive, Counsel's correspondence. Kitto wrote from Melbourne, where he was appearing for one of the plaintiffs in the Bank Nationalization case: B ank o f N ew South W ales v. Com m onw ealth (1948) 76 C.L.R. 1.54 Toward the end of the letter Kitto referred to the judgment as 'this unexpected loss'. This confirms Kerrigan's assessment that Kitto had been expecting a favourable result from Roper, C.J. in Eq. On this basis, it is strange that Batty who had been so closely involved in the case on Wylde's behalf should have apparently held an opposite view: n. 44 above.

223

to be obeyed or not - and you would only be placing yourself in the wrong by rebellion. I am sure you will pardon me writing in such direct terms. It is from regard for you that I feel I must urge you most strongly to put aside any idea of defying the court, natural though the impulse to do so most undoubtedly is.

On 22 February Wylde wrote to Fisher reporting on the judgment,

costs and future options, including the possibility of an appeal to the Privy

Council.55 Fisher’s concerns were aroused by Wylde's letter. On 9 March

he sent circular letters to J.W.C. Wand Bishop of London, Kenneth Kirk

Bishop of Oxford, Batty, Chancellor Macmorran and Dr. A.C. Don, Dean

of Westminster56 in which he referred to Wylde's letter and proposed a

meeting at Lambeth Palace. In proposing this meeting he asked his

addressees to invite others they thought necessary. In a post script Fisher

mentioned dangers for the Church in England which would lie in the wake

of a Privy Council appeal. His worry was that in deciding an appeal from

Australia the Privy Council would also be stating the law by which the

Church in England would be bound.57

Kirk tendered his apologies and suggested that disregard of the

judgment by Wylde might hasten a constitution for the Australian

Church.58 Batty confirmed that he would attend,59 and sought to allay

Fisher’s concerns about a possible appeal directly to the Privy Council by

advising that any appeal from the judgment of 17 February would be to the

55 Wylde to Fisher, 22 February, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 359.56 Fisher to Wand, Kirk, Batty, Macmorran and Don, 9 March, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 369. Apparently at Don's suggestion R.C Mortimer, Regius Professor of Moral Theology, Oxford and Bishop of Exeter, was added as an addressee: Don to Fisher, 10 March, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 370. The letter to Batty is in the Newcastle Archives, Box A6747.57 Whether as a matter of strict law this was so is questionable. A decision of the Judicial Committee on appeal from the Supreme Court of New South Wales would not have been imperatively binding on English courts. However, the persuasive nature of such a decision must be acknowledged. It might also be added that with the reform of canon law then under discussion in England, an appeal to the Privy Council by Wylde would have been regarded as inopportune.58 Kirk to Fisher, 10 March, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 371.59 Batty to Fisher, 12 March, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 374.

224

High Court. In writing in this way, Batty was repeating the substance of

letters which Kerrigan had written to him on 26 February,60 and which

Wylde had written on 27 February.61 Batty also suggested that Sir Harry

Vaisey also attend the proposed meeting.

Kerrigan had earlier advised that he and Kitto thought Roper, CJ. in

Eq.'s judgment wrong and that Wylde ’for [his] own sake and for the

interests of the Church should appeal.' An appeal to the High Court was

recommended. A Privy Council appeal was ruled out on the basis of cost.

Wylde's letter to Batty referred to in the preceding paragraph was to much

the same effect, but contained two observations which should be

mentioned. First, Wylde seemed to be opposed to an appeal directly to the

Privy Council on the basis that that tribunal might be unwilling to upset a

decision from another country. Secondly, Wylde said that Kerrigan was

against any appeal to the Full Court of the Supreme Court of New South

Wales so long as Sir Frederick Jordan was Chief Justice.

The correspondence discussed in the preceding paragraphs

suggests that by late February, 1948 it had been decided to appeal to the

High Court. This decision was confirmed by Roxburgh's letter to Wylde of

2 March in which it was noted that Kerrigan was preparing a notice of

appeal to the High Court.62 It appears never to have been contemplated

that Wylde should appeal to the Full Court of the Supreme Court of New

South Wales. One is left with the impression that the decision of the

majority of the Full Court in the first appeal had left such a lingering nasty

taste in the mouths of Wylde's legal advisers that an appeal to it from

Roper, CJ. in Eq.'s judgment was out of the question. This view is

606162

Kerrigan to Batty, 26 February, 1948. Newcastle Archives, Box A6747.Wylde to Batty, 27 February, 1947. Newcastle Archives, Box A6747.Roxburgh to Wylde, 2 March, 1948. Bathurst Diocese Archive, Solid tor's correspondence.

225

reinforced by Kerrigan's reported comment referred to in the preceding

paragraph. The alternatives were the High Court, or the Privy Council.

The prospect of a Privy Council appeal aroused the interest of the Church

in England. For reasons which had nothing to do with expense, it did not

wish to see Wylde appeal to the Privy Council.

Even though he had not seen the judgment Maynard advocated a

religio-political response to it.63 He thought a manifesto signed by as many

bishops and priests as possible stating that they could not accept directions

from civil courts in matters of worship would be appropriate, and he

thought it would perform a function similar to the statement issued by the

Archbishop of Canterbury following rejection of the 1928 Book. Maynard

also suggested meetings in parishes throughout the country adding that

they 'might do much to discredit the people who call themselves

"Evangelicals" and who know so little about Gospel grace.' The proposed

manifesto did not eventuate. This should not surprise as to that time

bishops of the Australian Church had shown themselves unwilling publicly

to nail their colours to Wylde's mast. If the suggested meetings were held,

there is no discussion of the fact in correspondence examined.

On 2 March, Maynard had a three hour meeting with Kitto, and he

wrote to Wylde reporting on it later that day.64 He told Wylde that he and

Kitto had discussed the question of 'appeal from all angles’, with Kitto

repeating his earlier view that any appeal instituted had good prospects of

success. Maynard's discussions with Kitto also shed some light on Wylde's

threats to disobey Roper, CJ. in Eq.'s orders. From Maynard's letter it

seems that the sticking point for Wylde was the injunction against use of

63

64Maynard to Wylde, 28 February, 1948. Bathurst Diocese Archive, Clergy correspondence.Maynard to Wylde, 2 March, 1948. Bathurst Diocese Archive, Clergy correspondence.

226

the ceremonial sign of the cross, something which Wylde thought he could

not in conscience abandon at the behest of a civil court. This part of his

discussion with Maynard made an impression on Kitto, as he wrote to

Wylde about it on 10 March65 saying that when he had written on 24

February the text of the judgment which he had read referred only to

paragraphs in the information, and that he did not realize that the sign of

the cross was included in the injunctions. That it should have been so

included was, in Kitto's view, the highwater mark of absurdity. He

continued:

I quite realise that in regard to the sign of the cross you have much more to take into account than the purely legal aspects of the matter, and I would not for worlds presume to advise you on a matter of conscience. I deeply respect your sentiments on this subject; and because they involve you in making the choice between obedience to God and obedience to man, I feel even greater anxiety than before to establish, if I can, that man’s law is not as the judge held it to be.

I myself should not feel that by challenging the correctness of the judge's interpretation of the law you would be in any sense submitting to the law rather than to the commands you feel laid upon you by divine authority. But I feel that I am transgressing upon ground I have no right to enter when I say so much.

Although the contrast between this and Kitto's letter of 24 February

is striking, they both disclose a high degree of concern by the advocate for

his episcopal client. The substance and manner of expression of Kitto's

letter of 10 March reinforces the regard for Wylde discussed at the end of

Chapter VI. Kitto's meeting with Maynard and his letter of 10 March are

even more noteworthy when it is remembered that at the time Kitto was

appearing as leading counsel for one of the plaintiffs in the Bank

Nationalization case, probably the most important case in Australia's legal

65 Kitto to Wylde, 10 March, 1948. Bathurst Diocese Archive, Counsel's correspondence.

227

history to that time. It says much of Kitto that in such circumstances he

went to such trouble.

On 5 March Wylde replied to Maynard and advised that he had

written to Roxburgh advising of his intention to appeal to the High Court.66

On the same day Wylde wrote to Batty confirming his intention to appeal

to the High Court,67 and Halse was also advised of the decision.68 A

strange feature of the letter to Halse is that in it Wylde said that personally

he had been against an appeal. If Wylde had been personally opposed to an

appeal, there is no suggestion of any real opposition to such a course in the

correspondence. Indeed, the suggestion is inconsistent with letters he

wrote to Kitto and Fisher which have been referred to earlier in this

chapter.

On 9 March Batty wrote to Wylde advising that he had met with

Fisher and Wand.69 Fancying a hint of intrigue, Batty advised Wylde 'entre nous' that Fisher proposed to summon a small meeting to discuss

Roper, C.J. in Eq.’s judgment and its implications for the Church in

England and Australia. This small meeting was that to which Fisher had

issued invitations on 9 March. It was held on 17 March.

By about mid March the notice of appeal had been drafted, filed, and

copies of it forwarded to England.70 Batty received his copy on or before

18 March, as on that day he wrote to Wylde advising of a meeting which

66 Wylde to Maynard, 5 March, 1948. Bathurst Diocese Archive, carbon copy, Clergy correspondence.67 Wylde to Batty, 5 March, 1948. Newcastle Archives, Box A6747.68 Wylde to Halse, 5 March, 1948. Bathurst Diocese Archive, carbon copy, Bishop's correspondence.69 Batty to Wylde, 9 March, 1948. Bathurst Diocese Archive, Bishop's correspondence.70 On 11 March Wylde wrote to Batty advising that by that time Roxburgh would have sent copies of the notice of appeal to him, Fisher, Wand and Lee, Bolton & Lee: Wylde to Batty, 11 March, 1948. Newcastle Archives, Box A6747. There is also a copy of this document in the Fisher Papers, Lambeth Palace Library, Vol. 39, folios 355-57.

228

he had had with Vaisey.71 In this meeting Vaisey, to whom Batty referred

in his letter as 'a high legal authority, whose name I am not at liberty to

mention, but whom you would recognise as being specially competent to

deal with such matters', gave oral advice on the notice of appeal which

Kerrigan had drafted, and retained Batty's copy of it for closer study. The

substance of Vaisey's view was that in any appeal Wylde should not attack

the judgment head on, but seek only modification of the injunctions which

required compliance with the B.C.P. order. In apparent conflict with

Kitto's view, Vaisey thought that as a statement of the law 'the judgment is

undoubtedly sound, and that an appeal for its reversal would almost

certainly fail.'72 However, Vaisey thought the injunction granted by Roper,

C.J. in Eq. was impossible for Wylde to obey, and would leave him open

for 'arraignment' for contempt of court for any failure to comply literally

with the B.C.P. order.73

In this letter Batty also told Wylde that at the meeting of 17 March

the consensus of opinion on Wylde's prospects in the appeal was much as

Vaisey had outlined them. For his part, Batty recommended that Wylde

accept Vaisey's advice, and seek only a variation of Roper, C.J. in Eq.’s

orders. However, Batty added the rider that an appeal on this limited

ground 'would almost certainly succeed, and would go very far towards

rendering Mr. Justice Roper's judgment innocuous.' Although neither

Batty nor Vaisey could have predicted what was to occur, in some respects

later events showed this to be a fairly prescient assessment. As Kitto

71 Batty to Wylde, 18 March, 1948. Bathurst Archive, Bishops' correspondence. Wylde had this letter transcribed, and there is a copy of the transcription in the Maynard Papers. Batty also sent a copy of this letter to Vaisey: Batty to Wylde, 21 March, 1948. Bathurst Diocese Archive, Bishop's correspondence.72 Batty volunteered that other ecclesiastics and lawyers, whom he did not name, shared Vaisey's assessment on this point.73 In his letter Batty, apparently referring to what Vaisey had said, instanced: failure to recite the Ten Commandments in full; failure to read one or other of the long Exhortations, and failure to recite the full words of administration to every communicant.

229

observed almost a year later, the variation of Roper, C.J. in Eq.’s orders

proposed by Latham, C.J. and Williams, J. and agreed in by Rich, J. and

Dixon, J contributed to emasculating the effect of the judgment at first

instance.

Vaisey returned the notice of appeal to Batty on 19 March, and in so

doing commented upon it, and confirmed that in his letter of 18 March

Batty had accurately recounted the substance of their earlier discussions.74

Of the notice of appeal Vaisey said:

The Notice of Appeal seems to be framed in comprehensive terms, covering every point, good bad or indifferent, with the consequences (a) that the appellant can raise such contentions as he likes, without the respondents being able to say that they have been taken by surprise, and (b) that they will be kept in the dark as to the line which the appellant is going to take. These are the proper and legitimate functions of a notice of appeal!

His lordship was accurate in his comments on the

comprehensiveness of the notice of appeal.75 It challenged virtually every

finding of fact and law upon which Roper, C.J. in Eq.’s judgment rested,

ranging from the clearly unsustainable assertion that his Honour erred in

holding that there were differences of substance between the B.C.P. and

the Red Book, to the significant point that the judge was in error in holding

that the Church as a voluntary association in New South Wales was part of

the Church of England in England and bound by its laws, articles, liturgy

and formularies.

74 Vaisey to Batty, 19 March, 1948. Newcastle Archives, Box A6747.75 The notice of appeal was filed on 8 March, 1948, is reproduced in Hammond, n. 11 above, at 226-28.

230

Upon receipt of Vaisey's letter, Batty wrote to Wylde to advise him

of what his Lordship had said.76 In this letter Batty offered the following

further comment upon his meeting with the Archbishop of Canterbury:

To go back to [Vaisey's] comments on the Notice of Appeal. I rather gathered from the Abp. of C. that he was going to advise you to cut out some of its terms, and to leave in only those on which you intend to proceed. But if I understand my H[igh]L[egal] A[uthority]'s comments rightly, he thinks it would be good tactics to leave it as it stands. But of course your own counsel will know all about that.

On 21 March Fisher wrote two letters to Wylde. The first of them

was intended to be his principal report to Wylde on the meeting of 17

March.77 Fisher recounted the views of those present as being similar to

Vaisey’s opinion as discussed above. From this letter it also appears that

after the meeting of 17 March Fisher had received written advice from

Wigglesworth, Wylde's junior counsel when evidence had been taken on

commission. Fisher said that Wigglesworth's view was that it would 'be

extremely ill advised, and indeed foolish, to appeal against the bulk of the

findings of the Court which are undoubtedly good in law.' Like Vaisey,

Wigglesworth expressed concerns on the terms of the injunctions granted

by Roper, C.J. in Eq. Accepting this advice, Fisher said it was important

for Wylde to withdraw his authorization for use of the Red Book. On the

footing that Wylde agreed to act as he wished, Fisher said that would leave

only two, or possibly three of the 28 paragraphs of the notice of appeal

standing.

76 Batty to Wylde, 21 March, 1948. Bathurst Diocese Archive, Bishop's correspondence. This was another letter which Wylde had transcribed, and, as with the others from this series of correspondence, there is a copy in the Maynard Papers.77 Fisher to Wylde, 21 March, 1948. Bathurst Diocese Archive, Bishop's correspondence. This letter was also transcribed, and a copy of it is in the Maynard Papers.

231

Fisher intended that his second letter should deal with matters 'of

subsidiary importance.'78 79 One concerned the sign of the cross. Upon it

Fisher made three observations. The first was to the effect that advice of

English lawyers was that Australian courts were not bound to accept

decisions of English ecclesiastical courts on matters of ritual. Secondly,

decisions on ritual and ecclesiastical practice depended to some extent on

historical investigation. In Fisher's opinion such investigations as had been

made since the 1890s would warrant a different conclusion on this question

from that reached by the Judicial Committee in R e a d v. B ish op o f

L incoln .19 Finally, and displaying none of Kitto's sympathy, Fisher

commented tersely:

For my own part I should have thought the less said about this particular point the better. It is in fact merely a matter of personal preference and has no doctrinal significance of any kind. Personally I think it is always a mistake for a Bishop to try to give some status to these personal acts with the implication that they ought to be used. ... In this point you should ignore the Judgment and while using the practice yourself you should give it no publicity and not make it obtrusive. I do not think anybody will take any action.

Not only are these comments remarkable in that they recommend

open defiance of Roper, C.J. in Eq.'s order, but they also suggest a certain

impatience on Fisher's part for Wylde's sensibilities. They also leave the

reader wondering whether, at least in so far as it related to the ceremonial

sign of the cross, Fisher thought that the case had descended into

trivialities.

78 Fisher to Batty, 21 March. The original of this letter does not appear to have survived in the papers in the Bathurst Diocese Archive. However, like Fisher's other letter of the same date, it was transcribed and a copy of the transcription in is the Maynard Papers.79 [1892] A.C. 644.

232

When he replied to Fisher's letters on 5 April,80 the only aspect of

them which Wylde touched upon was the terms of the injunctions granted

by Roper, CJ. in Eq. Wylde reminded Fisher that he had withdrawn the

Red Book, and, being literally truthful, said that no second edition had

been printed. He also said that in using the word "authorized" in

connexion with the Red Book he meant no more than that he was

approving and permitting its use, a sense in which Bishops Long and Halse

had used the word in service books which they had published. Finally,

Wylde confessed himself ready to be guided by Fisher and those with

whom he had consulted. Subsequent events were to reveal little evidence

of any such readiness in Wylde's later actions in connexion with the

appeal.

In April and May of 1948 Vaisey back-pedalled on two points which

he had made in earlier correspondence. In a letter of 18 April Vaisey said that the obligation imposed by the A ct o f U niform ity was one of substantial

and not strict compliance.81 While not expressly acknowledging that there had been any shift of opinion in his part, Vaisey relied upon the maxim de

m inum us non cu ra t lex to justify the conclusion that substantial compliance

was sufficient.82 In making this point, Vaisey accepted that the difficulty

in it was knowing what ought to be considered a 'm in im a ' [sic], and what

went beyond acceptability and constituted something less than substantial compliance. This vo lte fa c e on Vaisey's part is literally stunning. If he

was speaking of the English position, his view was heterodox and contrary

to the opinions of every expert who had advised or given evidence in the

case. If he was speaking of the Australian position, he was striking at the

80 Wylde to Fisher, 5 April, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39 folio 389. A copy of a transcription of this letter is in the Maynard Papers.81 Batty to Vaisey, 13 April, 1948. Carbon copy, Newcastle Archives, Box A6747. Vaisey to Batty, 18 April, 1948. Newcastle Archives, Box A6747.82 An approximate translation of the Latin is that the law does not concern itself with trivialities.

233

heart of Roper, C.J. in Eq's conclusions which he had earlier described as

'undoubtedly sound.'

The second change of view on Vaisey's involved tactics, and came in

the wake of his consideration of Kitto's and Kerrigan's joint memorandum

of 8 May, 1948.83 Before considering Vaisey's change of stance, it is

desirable to examine the main features of the joint memorandum. Its

opening lines make it clear that it was prepared in the light of the views of

English lawyers that as a statement of law Roper, C.J. in Eq.'s judgment

was correct and that it ought not to be challenged on that account. Kitto

and Kerrigan were of the view that any attempt to seek to have the High

Court vary the orders made at first instance without offering any challenge

to the findings of law which underpinned them would be a futile exercise.

Kitto and Kerrigan saw Roper, C.J. In Eq.'s reasoning on the

substantive questions in the litigation as resting on three major steps, each

of which they thought had been decided incorrectly. The first was that the

trusts in question were for the use, benefit, and purposes of the Church of

England in the Bathurst Diocese. The next was that the conduct in

churches in that Diocese of services which differed from a form and order

required by a fundamental rule of the Church in New South Wales was to

put such church to a use inconsistent with its being held on trust for the

use, benefit and purposes of the Church of England. Finally, that it was a

fundamental rule of the Church in New South Wales that public services

should be conducted according to the B.C.P. order and not otherwise. * 39

83 A transcription of the joint memorandum is in the Fisher Papers, Lambeth Palace Library, Vol.39, folios 391-96. Roxburgh wrote to Wylde about preparation of the joint memorandum on 28 April, and in so doing mentioned that Kerrigan agreed with him that it would be useless to ask the High Court to water down Roper, C.J. in Eq.'s judgment or merely to alter it, rather than launch a full scale attack upon it: Roxburgh to Wylde, 28 April, 1948. Bathurst Diocese Archive, Solicitor's correspondence.

234

So far as the terms of the trusts were concerned, Kitto and Kerrigan

made two points. The first was that Roper, CJ. in Eq. had formulated their

terms too narrowly. Secondly, in their view, for the informant to succeed in

the case it was necessary to construe the trusts as trusts 'for a church

wherein no services other than those prescribed by the Book of Common

Prayer shall be conducted.' In their view such a construction was quite

opposed to long and divergent practices of the Church to depart in various

ways from the B.C.P. order.

In expanding upon their second point Kitto and Kerrigan referred to

Roper, C.J. in Eq.'s finding that any breach of what he characterized as a

fundamental rule prevented a service from being within the scope of the

trusts as found. In their opinion, such a use of the word "fundamental"

begged the question which the judge had to decide:

Even assuming that precise adherence to the [B.C.P.] is required by a rule of the Church ... in New South Wales, it does not follow that every service in which there is a departure from the Prayer Book must be regarded as not being a service of the Church of England. If it is a service for the Church of England, conducted in the manner mentioned, we fail to see that property can be said to be used otherwise than in accordance with a trust for or for the use, benefit and purposes of the Church of England.84

In considering the third step in Roper, C.J. in Eq.'s reasoning counsel

disagreed that the requirement of strict compliance with the B.C.P. should

be regarded as a rule of the Church of England in England, much less a

fundamental one. They also disagreed with the conclusion that the Church

in New South Wales must be taken to have been formed with an implied

84 The reference to a service 'conducted in the manner mentioned', was to a service conducted in a Church of England church by a person authorized by the rules of the Church to conduct such service provided that such service did not involve doctrines impermissible to be held in the Church of England.

235

rule that services should be conducted in accordance with the only form

which was lawful in England.

In Kitto's and Kerrigan's view the A c t o f U niform ity did not create a

rule of the Church, but a rule for the Church. They doubted whether in

England it would be contended that if a church were held on trusts similar

to those found by Roper, C.J. in Eq., a service conducted in it which

departed in any degree from the B.C.P. would be regarded as a diversion of

property from the use, benefit and purposes of the Church of England. In their opinion such a service would involve a breach of the A ct o f

U n iform ity , 'but no more.'

As to the crux of Roper, C.J. in Eq.'s judgment that the Church in

New South Wales was formed on an implied rule that services would be

conducted strictly in accordance with the B.C.P., Kitto and Kerrigan

commented:

Such an implied rule would place the Church here, by its own choice, in a straight-jacket which the Church in England had never accepted; and it appears to us to be quite impossible to suppose that such a rule ever was implied. Moreover it must be remembered that even if the [Act o f Uniform ity] were to be treated as incorporated into the rules of the Church, that Act on its own terms had no application outside the realms of England, Wales and the town of Berwick-upon-Tweed. ... Yet, according to the judgment, the Church ... in New South Wales not only adopted by implication a rule assumed to be in force in ... England, but adopted it with the variation that the Prayer Book should be adhered to in a territory where the [A ct o f U niform ity] did not run,...

They were equally dismissive of his Honour's interpretation of art.

24. As a matter of construction they did think it banned or prohibited

variations from the B.C.P. order existing at the time it or its predecessor,

236

the C hurch o f E n glan d Trust P ro p erty M an agem ent A c t, was passed.

Rather, in their view, art. 24 was intended to prevent the imposition of a

new liturgy upon a diocese by its synod. To interpret art. 24 as declaring

the B.C.P. as containing the only permissible liturgy was, in counsel’s

opinion, ’to place a wholly unwarranted strain upon its language.'

A copy of Kitto's and Kerrigan's joint memorandum was sent to

England shortly after it was written. In a letter to Batty of 25 May, in

which he again requested that his anonymity be preserved, Vaisey

commented upon it.85 While saying that he would not deal with it point by

point, Vaisey said that it put Wylde's case at its highest and overstated it.

After commenting that Kitto and Kerrigan appeared to be under the

impression that they were being recommended to confine their argument in

the High Court to the form of the injunctions granted, leaving Roper, CJ. in

Eq.'s legal findings unchallenged, Vaisey said that he was not in favour of

such a tactic. If Kitto and Kerrigan were under the impression that English

lawyers had recommended that they confine their challenge of the

injunctions granted rather than embark upon a full attack on the judgment,

such impression was based upon a fair reading of what had come from

English lawyers, Vaisey included. The fundamental changes in his

position suggest that Vaisey was more impressed with the joint

memorandum than he was prepared to state.

On 19 May Maynard wrote to Wylde describing the joint

memorandum as 'a very able bit of work.'86 He was impressed by the

8-5 Vaisey to Batty, 25 May, 1948. Newcastle Archives, Box A6747. The copy of the memorandum in the Lambeth Archives was sent by Wylde under cover of a letter dated 14 May, in which he told Fisher that copies of it were being forwarded to those English witnesses who had given evidence on his behalf: Wylde to Fisher, 14 May, 1948. Fisher Papers, Lambeth Palace Library, Vol. 39, folio 370.86 Maynard to Wylde, 19 May, 1948. Bathurst Diocese Archive, Clergy correspondence. Although it was the view of a layman, Maynard said he could not understand the limited form of

237

memorandum's argument as the basis for a general attack on Roper, C J. in

Eq.'s judgment, and thought it should have good prospects of success. He

also discerned that success in the appeal might have implications for the

constitution. Without showing much charity for Wylde's opponents,

Maynard said:

I hope that [Kitto and Kerrigan] may succeed as it will move us strongly towards the formation of a constitution, and will not put us at the mercy of Sydney in bargaining away our liberties for all time.

Maynard's remarks had a reverse side. Assuming that Maynard's

point on implications for the constitution had substance, might not Sydney

have thought there was some bargaining advantage in constitutional

deliberations to be had from a favourable decision in the appeal from the

High Court? Such a question touches upon the motives of those who had

been instrumental in the promottion of the suit.

Notwithstanding Wylde's comments about being guided by Fisher

and those with whom he had consulted, it seems that by mid-May a

decision had been taken that Kitto and Kerrigan would conduct the appeal

as they saw fit, and not as English lawyers and ecclesiastics had suggested.

On 24 May Wylde wrote to Maynard to express his delight that the latter

was 'in agreement with the line that Kerrigan & Kitto are to take in the

High Court.'87 Although the amount of time available prior to

commencement of the High Court appeal was a factor, on 22 June Wylde

wrote to Roxburgh turning down a suggestion that the joint memorandum

be placed before Neville Gray, K.C. and Wigglesworth for comment.88

challenge to the judgment of Roper, C.J. in Eq. which had been suggested by the English lawyers, and thought Kitto's and Kerrigan's argument against it to be common sense.87 Wylde to Maynard, 24 May, 1948. Maynard Papers.88 Wylde to Roxburgh, 22 June, 1948. Carbon copy, Bathurst Diocese Archive, Solicitor's correspondence.

238

However, showing the reliance upon the judgment of others which had

been evident throughout the case, Wylde added that he would have been

prepared to consult English counsel if 'the Bishop of Newcastle strongly

advises that we do so.' Otherwise, Wylde was content to place his 'full

confidence' in Kitto and Kerrigan. These instructions were confirmed by

Roxburgh who advised Batty that the appeal would be heard in July or

August, and that further opinions of English counsel were not to be

sought.89

The correspondence just considered is revealing in several respects.

In the first place it shows a significant cleavage of opinion on the related

questions of whether Roper, C.J. in Eq.'s judgment was correct or not, and

whether the manner in which he had decided the case had been expected or

not. Even allowing for advocates' perception that their side of an argument

is the correct one, there can be little doubt that Kitto and Kerrigan were

genuinely surprised at the outcome, and that their conviction that the

judgment was incorrect was sincerely held. Conversely, Batty claimed to

have expected the result to which the judge came. So far as the legalities

of the matter were concerned, Batty seemed to be content to take his time

from the English lawyers with whom he consulted while in England in

early 1948. Except for the breadth of the injunctions granted, those

lawyers thought the case had been correctly decided. One should not be

too critical of Batty and the English lawyers in this. Their view appears to

have been based upon an assumed correctness of authority, most of which

had been unchallenged since it was decided. However, as their letters, the

joint memorandum and Kerrigan's notice of appeal show, Wylde's counsel

were operating at deeper levels. From letters and the joint memorandum it

emerges clearly that they thought little of Roper, C.J. in Eq.'s technique. In

89 Roxburgh to Batty, 25 June, 1948. Newcastle Archive, Box A6747.

239

other words, even meeting the judgment on its own ground, they thought it

wrong. Further, while caution should be exercised in reading too much

into the notice of appeal as a statement of genuinely held opinion, that

document showed a willingness to challenge an unstated assumption of the

informant's case, the correctness of the Nexus Opinions.

One thing which is surprising in all of this is that Wylde, the person

most affected by the judgment, appears not to have recorded whether the

result was something which he was or was not expecting. Also, rather than

looking to the significant legal questions which the case raised and their

implications, he appears to have adopted an inward looking focus,

concentrating on the two matters which were of greatest concern to him

personally: the injunction against using the ceremonial sign of the cross,

and so much of the costs order as related to the evidence taken on

commission.

The other matter of interest concerning Wylde is that, as with earlier

stages of the case, his letters suggest either a failure to grasp the import of

what was occurring, or, at the least, some confusion of thought. In letters

he gave differing reasons for not favouring an appeal to the Privy Council,

and one of them rested upon criticisms of that body as standing at the apex

of the structure of ecclesiastical courts in England. An appeal to the Privy

Council from Roper, C.J. in Eq.'s judgment was available not because of its

position in the hierarchy of English ecclesiastical courts, but because of the

place it occupied in the hierarchy of Australian courts. However, of

greater importance than why the Privy Council might have been an

inappropriate venue for an appeal was Wylde’s inconsistent statements as

to whether there ought to be an appeal or not. Letters written in the wake

of the judgment suggest that there was no doubt in his mind that there

240

should be an appeal. Yet, when writing to Halse he declared that he had

not personally favoured an appeal. There is no really satisfying

explanation for such inconsistency. It is difficult to imagine that, when

writing to Halse, Wylde was deliberately dissembling. Similarly, it is not

easy to accept that in his earlier letters his willingness to countenance an

appeal was simply the reiteration of the views of others, which he did not

share. If those like Kitto were suggesting a course with which he did not

agree, it would have been easy enough for Wylde to have said so in this

early correspondence.

The other noteworthy aspect of Wylde's conduct at this time was his

dealings with Fisher. Fortunately push did not come to shove on the

question of whether there should have been an appeal to the Privy Council

from the judgment of Roper, C.J. in Eq. However, once that matter was

resolved, Fisher made it plain what he thought should be Wylde's approach

to the appeal to the High Court, and how narrow the scope of argument

should be. Yet, within approximately six weeks of telling Fisher that he

would be guided by him in the matter, Wylde had, without further

consulting the Archbishop of Canterbury, determined on a quite different

course. While it does not account for his failure to advise Fisher of his

intentions, the reason for Wylde agreeing to a full attack on the judgment

of Roper, CJ. in Eq. may have been what he saw as the cogency of the joint

memorandum and Maynard's acceptance of its approach. Consideration

will now be given to that full attack and its remains.

241