"OY" V THE ASSESSORS AND ORS HC AK CIV-2009-404-005165

"OY" V THE ASSESSORS AND ORS HC AK CIV-2009-404-005165

It is not an abuse of process for the Church to proceed with disciplinary charges after a criminal acquittal where the constitution expressly permits such proceedings and the disciplinary process has a distinct protective purpose, different procedure and standard of proof; however, the Book of Order mandates that the complaints hearing committee include a representative of the complainant's ethnic group (Korean) and the committee cannot lawfully hear the charges until such a representative is included.

Citation
openlaw-359f78ab_0a95_497d_9e8e_bfd45d577845.pdf
Parties
Plaintiff: "OY"; First Defendant: THE ASSESSORS; Second Defendant: COMPLAINTS HEARING COMMITTEE; Third Defendant: JUDICIAL COMMISSION (AS APPOINTED BY THE COUNCIL OF ASSEMBLY OF THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND); Fourth Defendant: PRESBYTERY OF AUCKLAND
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 March 2010
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application dismissed in part; declaration issued that complaints hearing committee cannot hear charges unless it includes a Korean national; leave reserved to applicant to apply for further relief; no costs ordered.
Legal Topics
Abuse of Process, Disciplinary Proceedings, Standard of Proof in Disciplinary Hearings, Ethnic Representation in Tribunal Composition
Administrative Law Ecclesiastical / Church Law Civil Procedure Criminal Law (contextual) Abuse of Process Disciplinary Proceedings Standard of Proof in Disciplinary Hearings Ethnic Representation in Tribunal Composition

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Parties

"OY"

Plaintiff

THE ASSESSORS

First Defendant

COMPLAINTS HEARING COMMITTEE

Second Defendant

JUDICIAL COMMISSION (AS APPOINTED BY THE COUNCIL OF ASSEMBLY OF THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND)

Third Defendant

PRESBYTERY OF AUCKLAND

Fourth Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether continuing Church disciplinary proceedings after acquittal in criminal court is an abuse of process
  2. 2 Whether Z v Dental Complaints Assessment Committee applies to internal Church discipline
  3. 3 Whether the complaints hearing committee must include a representative of the complainant's ethnic group (Korean) under the Book of Order

Ratio Decidendi

It is not an abuse of process for the Church to proceed with disciplinary charges after a criminal acquittal where the constitution expressly permits such proceedings and the disciplinary process has a distinct protective purpose, different procedure and standard of proof; however, the Book of Order mandates that the complaints hearing committee include a representative of the complainant's ethnic group (Korean) and the committee cannot lawfully hear the charges until such a representative is included.

Court Disposition

Application dismissed in part; declaration issued that complaints hearing committee cannot hear charges unless it includes a Korean national; leave reserved to applicant to apply for further relief; no costs ordered.

Orders

  • Application for declaration and quashing of charges dismissed
  • Declaration that the complaints hearing committee may not hear the charges unless and until it includes a Korean national