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Appellant Procedures in the Lower Courts - An Overview

     The  Presbyterian Church has set up  five basic procedures that enable all members in the church to be heard in the courts of the church if they so wish. These are Appeal, Dissent and Complaint, Petition, Overture and Reference.  Among these is a procedure to meet  the need of anyone wishing to bring a matter before an appropriate court.

The problem is to know which procedure to use and then to follow the steps correctly.
It is important to follow these processes laid down to avoid a technical challenge, which may result in delay or dismissal of the matter. Any person wishing to follow one of the procedures listed below should become familiar with the relevant section of the Code. The appropriate references are shown.

However the Code lays a clear responsibility on the officials of the church courts, especially moderators and clerks, to assist and advise any member who intends to take one of these courses of action.

The Code contains samples of the correct formats for following these procedures.

For more detailed information:

Dissent, Appeal and Complaint
Procedures for Appeal and Complaint
Petition
Reference and Overture

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The Right to Dissent, Appeal and Complain

Dissent  (Code II 3.35-41)
A dissent is the most basic of the appeal processes of the church. It is a clear indication of disagreement with a decision of a church court and involves the recording of a personal objection in the minutes of the meeting. It is a course of action only available  to those members  who have voted against a particular motion.

If they wish they may have their reasons for dissent recorded in the minutes with their names, but  the reasons given must respect the rights of the court and other individuals. The court has the power to reject inappropriate reasons.

Dissent frees the members involved  from any blame that may follow the decision, but they remain under an obligation to comply with the decision until it is altered or withdrawn.

Appeal and Complaint (Code II 3.42-60)
An appeal is a signed document submitted by a person who was at the bar of the house at the time the decision was made  and it is designed to bring a decision under the review of a higher court.
Persons intending to appeal must seek leave to appeal at the time of the decision and the court is required to inform them of this obligation.

A complaint is a signed document submitted for the same reason by a person who was a member of the court and who was not at the bar of the house at the time of the decision. The member complaining must have dissented at the time of the decision with the words "I dissent and protest for leave to complain".

The formal document of appeal or complaint must be submitted within ten (10) days of  the meeting to the Clerk of the court  whose decision is being challenged.

The document must contain the reasons for appeal or complaint. These reasons must include at least one of the following:

  • Irregularity in the proceedings of the court,
  • refusal of reasonable indulgence in the conduct of the case,
  • reception of irrelevant evidence,
  • refusal to receive relevant evidence,
  • mistake or injustice in the judgment,
  • undue haste in proceeding to judgment,
  • judgment against the evidence,
  • judgment against the weight of evidence, and
  • denial of natural justice.

     Persons appealing or complaining have the right to receive copies of all relevant papers including full sets of minutes if necessary.

It is the responsibility of the appellant or  the complainant to see that all necessary documents have been forwarded prior to the hearing  in the higher court.

A court whose decision is being complained or appealed against may go ahead with its decision in the meantime if it wishes but, in doing so,  it assumes all responsibilities that may result. Nevertheless the courts are obliged to protect the rights of all parties.

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The Right to Petition

Petition   (Code II 3.78-3.84)
A petition is a written and signed request  made to a court relating to the affairs of the petitioners.  It may ask only for something that cannot be obtained by other proper means.

Any individual person or group of people, or a lower court or committee of management,  may present a petition.  It is not possible to use a petition as an alternative to lodging an appeal or complaint.
The Code instructs Sessions and Presbyteries to assist communicants and adherents  in preparing petitions. but petitioners must present their own cases.

In presenting a petition, the petitioner is obliged in reasonable time to inform any other involved parties either by personal delivery or registered mail.

Procedure  for Hearing Petitions
At the hearing, petitioners are called to the bar of the house. This means that, although they are non-members, they are given a status in which they can conduct their business before the court but they are unable to take part in the normal processes of debate.

Following a reading of the petition, the court usually hears the petitioner's case but the court is not obliged to do so if it sees good reason.  If it chooses not to receive the petition the matter stops there.
Following the presentation of the petitioner's case, questions are asked.

After the parties are removed from the bar, the matter is considered by the court which decides whether to "grant the prayer of the petition".

A no vote  results in a motion to dismiss the petition.  A yes vote is followed by a motion to give effect in some way to the request in the petition.

   
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References and Overtures

Reference   (Code II 3.85-91)
A reference is a document containing matters of difficulty or importance which is sent to a higher court  from a lower court for advice or opinion.

It is sent in the form of an extract minute from the records of the lower court. All persons having a direct interest in the matter contained in the reference must be informed by the lower court.
A member of the court forwarding the reference speaks to the matter before the higher court. Apart from the moderator, no-one may interrupt until the speaker has finished.

If the court votes to sustain the reference, the matter is then considered by the court on its merits.
Any members of the referring court in the house have the right to take part in the debate and vote.
Options available to the court include determining the issue directly or advising the lower court to deal with the matter according to the laws of the church.

Overture (Code  II 3.61-77)
An overture is a formal, written proposal either to enact a new church law, to change an existing law or to have something done which will benefit the church.

Overtures may be presented by lower courts or by any two members of the church. In the case of the Assembly, it requires seven members but overtures may also be presented by committees of the church. Except in cases of urgency, overtures from sessions are forwarded through Presbyteries which are obligated to pass it on but may do so with or without comment.

A overture requires notice either at a previous sitting of the court or by circular to all members.

Procedures for Hearing Overtures
As overtures are not judicial proceedings, all parties are able to take part in the debate, but only if they are members of the court.

Lower courts appoint two persons to state the case for the overture. After they have been heard, questions may be asked.

The overturists have prior rights to move that the overture be sustained. If this is approved a further motion from the overturists that some kind of action be taken is considered. If it is not approved the overture is dismissed

     The Assembly may sustain an overture in its original or amended form, but  it has the right to send proposals that may result from an overture down to lower courts for consideration. However any proposal that  will result in a change to the Code of the church must go down to presbyteries under the Barrier Act.

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Procedures for Hearing a Complaint or Appeal

    Following the presentation of the written documentation by the appellant or complainant, it is forwarded to the Clerk of the higher court.

A date is set for the hearing, although cases forwarded to the NSW General Assembly are dealt with, in the first instance, by a Conciliation Committee which seeks a negotiated resolution to the problem in an informal climate. The parties then have to decide whether they wish to proceed. If they do, the case is heard by the Assembly in a formal hearing.

All courts of appeal may place a matter in the hands of a committee for enquiry and report.
In a hearing in any court, all parties are called to the bar of the house. The appellant or complainant is heard first and the persons appointed by the court to respond are heard next. Questions may then be asked by members of the court.

All parties are removed from the bar and the court considers its findings. The court of appeal has a range of options. It can sustain or dismiss the appeal/complaint as a whole or it can alter the original decision in any way that it sees fit.

The parties are then recalled to the bar of the house and they are informed of the findings. The moderator asks both parties if they acquiesce.

Both parties have a right of appeal and should indicate their intention to do so with the words. "I do not acquiesce and I protest for leave to appeal."

The sustaining of an appeal does not necessarily mean that the decision of the original court is reversed. The Court of Appeal has the right to return the matter to the lower court for reconsideration.

      The dismissal of the appeal or complaint indicates approval for the decision of the lower court