PRIEST INVOKES THE CANON LAW IN AN APPLICATION FOR EXTENSION OF CAVEAT OVER A REAL PROPERTY
ROWE -v- THE ROMAN CATHOLIC ARCHBISHOP OF PERTH [2020] WASC 487 (19 January 2021)
This case involves the plaintiff filing for an application for extension of caveat over a real property by invoking the Canon Law.
Facts:
This action concerns an application by Fr Rowe to extend the operation of a caveat he has lodged over certain property in Belmont owned by the Archdiocese invoking the Canon Law, the law of the Roman Catholic Church, as the source of its rights over the property
It was the plaintiff's position, Canon Law was akin to foreign law. It was submitted the proper approach on that basis was to view the issues raised by Canon Law as a question of fact in the same way as foreign law must be proved in a court as a matter of fact. It is not treated by courts as a matter of law. So expert opinion can be provided and if there is conflict between the experts, then the court weighs the evidence in the same way as any conflict of expert evidence is evaluated.
It is the defendant's position that Canon Law is of no relevance to this dispute.That is because either West Australian law applies as the lex situs determinative of the parties' rights in respect of the moveable property located within Western Australia or as the lex fori applicable to determination of the plaintiff's equitable claims. The plaintiff says Canon Law is the equivalent of the rules of an unincorporated association. That being so, the court will not interfere with the internal decisions made by church authorities pursuant to Canon Law unless it is protecting or enforcing a right recognised at common law or in equity
Issue: Is the plaintiff correct in invoking the Canon Law as a basis for his claim over the property?
Held:
At issue is the rights to real property. Those rights may be equitable and they may be legal but they cannot be rights which are subject to Canon Law. In fact, the claims made by the plaintiff (putting to one side the reliance on Canon Law) are said to arise in equity. The first defendant is the registered proprietor of the relevant lots and as such is entitled to all the rights and privileges attached to ownership of land in fee simple. It will only be if the plaintiff is able to establish some equitable right that an order will be made extending the operation of the caveat.
The question really is this – on what basis can a constructive trust or equitable charge on the Hiher Street land in favour of the plaintiff be said to arise? True it may be that the 'St Anne's community' made contributions to the upkeep and improvement of the Hiher Street land. But that is what parish communities do. An Archdiocese is not responsible for the upkeep of each and every aspect of each and every parish. There is nothing in the pleading or in the evidence that suggests that the St Anne's Parish was in any different position to any other parish in the Archdiocese of Perth – other, perhaps, than that their services were conducted in Latin. But there is simply nothing in the pleaded facts which would render it unconscionable for the defendant to deny the plaintiff and the 'St Anne's community' a proprietary interest in the Hehir Street land.
Conclusion: Here, the primary question was whether there was a serious question to be tried. Counsel for the defendant conceded, and properly conceded, that if there was a triable issue, the balance of convenience favoured maintaining the caveat. But there is no triable issue. Accordingly, the court would discharge the caveat.
