04 November 2013


In Gallagher v McClintock [2013] QSC 292 the Supreme Court of Queensland has refused to make orders for an injunction in a dispute about claims of brainwashing.

A church member was banned by the Yeppoon Wesleyan Methodist Church Board from church attendance after writing and distributing 'warning pamphlets' stating that the pastor was unqualified for his position and was implementing an entirely new concept of Christianity involving brainwashing.

Gallagher - described by McMeekin J as someone who "seems a sincere man of senior years" -  failed in his bid for an interlocutory injunction to remove the ban.

Gallagher sought orders requiring-
(i) That the applicant be allowed “to pass freely without let or hindrance into the Sanctuary of the Yeppoon Wesleyan Methodist Church”; 
(ii) That the Board’s “edict of suppression” of the applicant’s “spoken and written word” be disallowed and quashed; 
(iii) That the applicant be afforded “every assistance and protection of which he may stand in need”.
The Court refused to make orders for the injunction on the grounds that there was no serious question to be tried.

McMeekin J comments that
It is worth observing that the legislative provisions relied on by Mr Gallagher for his “right of free speech” do not assist him. 
There is no section within the Australian Constitution which entitles a person to freedom of speech, nor is it enforced by the Bill of Rights of 1688. The specific section referred to by the applicant applies to the proceedings of parliament. It is commonly known as ‘parliamentary privilege’. It is a protection afforded to politicians to allow for open debate. The protection has now been codified in the Parliamentary Privileges Act 1987 and does not extend to the general public. 
That is not to say that there is no freedom of speech in our community or that the Constitution does not have a part to play in the preservation, at least, of freedom of political communication. 
What Mr Gallagher asserts is a right to enter someone else’s property and distribute pamphlets there. Freedom of speech has nothing to do with it. 
In my view Mr Gallagher cannot point to any right of his that is infringed by the respondents. Hence I cannot see that there is any serious question to be tried. 
That finding is sufficient to dispose of the application. Absent some colourable right there can be no basis for an injunction: Lenah Game Meats at [11] per Gleeson CJ; [60] per Gaudron J; [90]-[91] per Gummow and Hayne JJ. 
n case I am wrong on that point I will make some brief comments on the remaining issues. 
Given the absence of any enforceable right it is not really sensible to speak of damages. None could ever be awarded and indeed none is sought. 
The balance of convenience does not favour the imposition of an injunction. While it is evident that Mr Gallagher wishes to worship at the respondent’s Church it is not evident why. He disagrees with the approach of the Pastor. He is at odds with the members of the Board. It is a reasonable inference to draw that those members have been chosen as representatives of the congregation. Mr Gallagher’s actions, no matter how well motivated, are disrupting and disturbing the manner of worship of the other members of the congregation. It is evident that Mr Gallagher has every intention of continuing his outspoken approach. 
Mr Gallagher has not pointed to any harm that he would suffer in the interim if he was obliged to worship at some other Church. Given that he does not accept the preaching of Pastor McClintock at the Yeppoon Wesleyan Methodist Church he might well find the approach of the several other Christian churches in the area more congenial. 
The apparent reason for Mr Gallagher’s refusal to attend another church is that he suspects that other Christian churches are taking the same approach and it is God’s will for him to take a stand. Mr Gallagher may be right but I would think it at least reasonable to visit other congregations to determine if the practice they adopt is more compatible with his beliefs. 
For present purposes Mr Gallagher has failed to show that the balance of convenience favours the grant of an injunction in the terms that he seeks.