Judgement of the Appeal Tribunal for case Lilburne - Dowling, 301 00 165, Second Instance, of 19 September 2001.







CASE: LILBURNE-DOWLING 301-00-165 21-0243

Australia and New Zealand


In the Name of God. Amen.

With Pope John Paul II as our Holy Father and Archbishop George Pell as Moderator, the National Tribunal of Second Instance, consisting of :

 Rev G Carroll

 Presiding Judge

 Rev K Matthews


 Rev D Price


 Rev R McGuckin


 Rev P Quirk



issued on 19th September 2001 the following decision in the case of alleged violation of rights in which :

 John Lilburne

 is the Petitioner

 Dean Gerard Dowling

 is the Respondent

In response to the point at issue "Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of cann. 230 #3, 220, 231 #2 & 846 #1?" agreed upon on February 6, 2001, the Melbourne Regional Tribunal issued on 14/03/2001 the following decision on all alleged violations of rights:

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 230.3? NEGATIVE.

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 220? NEGATIVE.

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 231.2? NEGATIVE.


Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 846.1? NEGATIVE.

In view of these decisions, the rest of the dubium concerning punishment lapsed.

The doubt we must address is whether or not the decisions of the First Instance are to be confirmed or reformed either in part or in whole (Can. 1639 #2).


A competent first instance tribunal from the Archdiocese of Melbourne issued a decision at first instance on March 14, 2001 in which they issued negative decisions to the claims of the petitionerthat the respondent had violated his rights by breaching the prescriptions of canon 230,3; canon 220; canon 231,2 and canon 846,1.

On April 23, 2001, the Petitioner , John Lilburne, appealed the First Instance decision to the Appeal Tribunal of the Catholic Church for Australia and New Zealand. In making the appeal he enclosed a document criticising the judgement and containing his reasons for appealing the decision.


Canon 230 states: "1. Lay men who posses the age and qualifications established by the decree of the conference of bishops can be admitted on a stable basis through the prescribed liturgical rite to the ministries of lector and acolyte. Nevertheless, the conferral of these ministries does not grant them the right to obtain support or remuneration from the Church.
2. Lay persons can fulfil the function of lector in liturgical actions by temporary designation. All lay persons can also perform the functions of commentator or cantor, or other functions, according to the norm of law.
3. When the need of the Church warrants it and ministers are lacking, lay persons, even if they are not lectors or acolytes, can also supply certain of their duties, namely, to exercise the ministry of the word, to preside over liturgical prayers, to confer baptism, and to distribute Holy Communion, according to the prescripts of law."

Canon 220: No one is permitted to harm illegitimately the good reputation which a person possesses not to injure the right of any person to protect his or her own privacy."

Canon 231,2:"Without prejudice to the prescription of canon 230,1 and with the prescriptions of civil law having been observed, lay persons have the right to decent remuneration appropriate to their condition so they are able to provide decently for their own needs and those of their family. They also have a right for their social provision, social security, and health benefits to be duly provided."

Canon 846,1. "In celebrating the sacraments the liturgical books approved by the competent authority are to be observed faithfully; accordingly, no one is to add, omit, or alter anything in them according to one's own authority.
2. The minister is to celebrate the sacraments according tot he minister's own rite."


Canon 1035,1. "Before anyone is promoted to the permanent or transitional diaconate, he is required to have received the ministries of lector and acolyte and to have exercised them for a suitable period of time.

No: 11 of the Apostolic Letter issued Motu Proprio "By which the Discipline of First Tonsure, Minor Orders, and Subdiaconate in the Latin Church is reformed" states: "Candidates for ordination as deacons and priests are to receive the ministries of reader and acolyte, unless they have already done so, and are to exercise them for a suitable time, in order to be better disposed for the future service of the word and of the altar."

Pope Paul VI, motu proprio, "Laying down certain Norms regarding the Holy Order of Deacons", in The Rites vol. 2, states on page 35: "It is especially fitting that the ministries of reader and acolyte should be entrusted to those who, as candidates for sacred orders, desire to devote themselves to God and to the Church in a special way...In this way the candidates are to approach holy orders fully aware of their vocation, fervent in spirit, serving the Lord in constant prayer, and aware of the needs of the faithful."


Most people tend to speak of their rights in very broad terms. But, there is a vast difference between the right to life, which is the most fundamental of all human rights, and the right to exercise the ministry of Lector. Authors tend to distinguish three levels of rights:

1) PERSONA RIGHTS: Like the right to life. These rights come from my human dignity, they are built into my human nature. They can never be denied.
2) SOCIAL RIGHTS: Like the right to form associations. These can be denied, if for example, one is imprisoned for some crime.
3) INSTRUMENTAL RIGHTS: These are conditions required so that human dignity can be respected and preserved. Sometimes a society cannot provide for the needs of all its members, e.g. the police force, or a hospital in remote areas. Within the Church many instrumental rights depend on availability are circumstances.

{Footnote 1: K. Matthews, "Concultation in the Church", in A.C.R., Vol. LXVII (3), 199, p. 330}

Under this final heading, we find that while John Lilburne possesses the dignity of Lector, he is unable to be given a mandate to exercise that dignity at this time in one particular place since rosters have already been made to cater for readers at St Patrick's Cathedral. He has not been refused, there is just no vacancy at this time, and so there is no abuse of his rights if such were to exist.

Another approach to rights is to distinguish between ecclesial rights that come with baptism and ecclesiastical rights that are given by Church law.

{Footnote 2: K. Matthews, "Christ's Faithful: Their Obligations and Rights", in Proceedings of the Canon Law Society, 1987, p. 106}

John Lilburne has been installed as a lector but has not been given a right to exercise this ministry. He has an eligibility but not a right.


On pages 18 and 19 of the acts, the seminary rector, the Very Reverend Michael McKenna states that the seminarians were installed as lectors at the Cathedral church because the seminary chapel had not yet been opened and the seminary was close to the Cathedral. The installation was a seminary celebration that simply took place in the Cathedral church. The seminary is a public juridic person exempt fom parochial governance (c. 262) and, therefore, the installation ceremony is independent of the Cathedral parish.

The seminary rector has a clear understanding of the installation being made because of the requirement of canon 1035 that those being prepared for ordination be installed in the ministry of lector. He states: "The importance of institution as lector can probably be summed up as: "You have reached a certain stage in your preparation and discernment for Holy Orders. Continue preparing and discerning.'"

The Diocesan Bishops of the Province who act as the Trustees of the seminary decided that "Lector be conferred, in the Seminary Chapel, at the beginning of the second year."(p.20) They see the installation in relation to "the completion of the first year program and entry into full-scale seminary life is an important step in the seminarian's discernment and formation."(P.20)

The Most Reverend Denis Hart, now Archbishop of Melbourne, states on page 25: "It has been the practice of this Archdiocese of Melbourne only to have instituted lectors who are transitional. I am not aware of anyone in the Archdiocese of Melbourne ever being instituted as a lector who has not been in transition to the permanent diaconate or to the priesthood." In other words, only seminarians are installed as Lectors, and they are installed as part of their preparation for priesthood. They are expected to exercise that ministry for a limited period of time.

The intention of the installing bishop, according to Bishop Denis Hart, was not to give the Petitioner an office that gave him the right to displace other lay people appointed as readers at the Cathedral or any other parish in the archdiocese or the world. He only received the ministry because he was a second year seminarian preparing for priesthood. The fact is he has now left the seminary, and the fact that he is not on the reading roster at the cathedral does not mean he has lost his good reputation according to canon 220. He offers no real proof for this claim. He may have lost his status as a seminarian but that is independent of being installed as a lector.

The seminarians are maintained by the Church because they are seminarians and preparing for priesthood, not because they are lectors.(cf.P.15) No one has a right to ordination, and in a parallel manner no one has a right to paid ministry in the Church.

The petitioner was installed in a ministry. The reality is that there had to be a separate determination to specify the community on behalf of whom this service was to be rendered. The bishop did not do this when he installed him. The bishop did the installation as part of the seminary programme in accord with canon 1035,1 because the Petitioner had now begun his second year of seminary training. This requirement is important to help the seminarians experience ministry and help them discern their vocation.

A parallel can be drawn to ordained ministers, as even priests need faculties to perform certain functions. They cannot impose themselves on a community but are appointed to serve one.


The reality is the Petitioner is now in a very different situation to the remainder of his class preparing for ordination.

Arguing from the stronger case of priests and bishops and appointment to an office we find the following:

Clergy are required to be available for ministry. This means that secular Clergy are not to be absent from their diocese without permission (even if only presumed permission - c. 283), and that "unless they are excused by a legitimate impediment," they are to be ready to undertake whatever duty their ordinary entrusts to them (c. 274,§2)

Must their ordinary entrust a duty to them? In the Latin code there is no corresponding obligation on the part of the Church to provide clergy with an appointment to office or even some ministry which is not organised as an ecclesiastical office.

{Footnote 3: The original proposals for the revision of the code did include such a statement: "Clerici, verifiatis conditionibus iure requisitis, ius habent ad obtinendum aliquod ministerium ecclesiasticum," Communicationes 16 (1984) 170. In response to comments on the 1977 De Populo Dei schema, however, the consultors debated whether to keep the canon. Some felt it would lead to many controversies and could be dangerous. Others felt it was superfluous, since incardination already indicated the cleric was needed for ministry and so would be given something to do. Others judged the canon should be retained precisely because it flows from incardination. A vote on the issue resulted in 4-4 tie, which Cardinal Felici broke by deciding to delete the canon. Communicationes 14 (1982) 73-74.}

The Eastern code is more explicit on this, stating a 'right' (ius) of clergy to obtain some office, ministry or function to be exercised in the service of the Church, provided they have the requisites for the appointment (CCEO c.371,§1) (See James Provost, "Clerical Sexual Misconduct" The Jurist 52 (1992) 633)

Regarding the distinction between a function (munus) and an office (officium) the following is relevant.

Lest this assertion that a share in the functions of teaching and governing was imparted in episcopal consecration give rise to the erroneous view that bishops were autonomous from the rest of the college and its head in the exercise of their teaching and governing powers, Pope Paul VI ordered that an explanatory note be attached to Lumen gentium to serve as the key to the constitution's interpretation. This Nota explicativa praevia [=NEP] explained:

{Footnote 4: John P Beal in "The Exercise of the Power of Governance by Lay People: Sate of the Question" in The Jurist, 55(1995), p. 13.}

In the consecration is given an ontological participation in three sacred functions, as is undoubtedly clear from tradition, including the liturgical tradition. The word functions (munerum) is used deliberately, and not powers (potestatum), because the latter word could be understood of power all ready for action (ad actum expedita). But to have such power ready for action there has to be added, through hierarchial authority, the canonical or juridical determination. This determination can consist in the granting of a particular office or in the assignment of subjects, and it is given in accordance with the rules approved by the supreme authority (emphasis in the original) (NEP 2).

The "hierarchical communion" in which alone the Episcopal functions of teaching and governing can be exercised was not a squishy sentiment but "an organic reality which requires a juridical


form." The juridical form is elsewhere called "canonical mission" which:

can come into being by means of lawful customs which have not been revoked by the supreme and universal power of the church, or by means of laws made by the same authority or recongised by it, or directly by the successor of Peter himself; and if the latter opposes the appointment or refuses apostolic communion, the bishop cannot be admitted to office (see LG 24 and NEP 2)

We argue then, from this stronger case that, as clerics have no right in the Latin Code to an appointment to an office, those installed in the ministry of lector have the "munus" of lector but certainly have no right to an office.


NEGATIVE IN CAUSA: The petitioner has no right to replace the present readers at Mass at the Cathedral. Furthermore, he cannot claim the right to be paid to carry out the ministry and claim he is being denied that salary now. Canons 220 and 846,1 have not been violated.

The simple answer to this doubt is that the rights of John Lilburne were not harmed by the response of Dean Dowling in his letter of October 25, 2000. Dean Dowling did not refuse to use the services of John Lilburne, but pointed out that at that time there were no vacancies. There is in fact no decision or decree to challenge. Even if the Dean had refused to use his services, there would have been no infringement of rights.

Therefore, having the law and the facts before our eyes, we confirm the decision of First Instance, and answer the dubium in the same way:

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 230.3? NEGATIVE.

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 220? NEGATIVE.

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 231.2? NEGATIVE.

Whether the respondent has violated the rights of the petitioner by breaching the prescriptions of can. 846.1? NEGATIVE.

In view of these decisions, the rest of the dubium concerning punishment lapsed.

This judgement is published according to the second method determined in canon 1615.

Costs for this case are to be met by the Petitioner.

Given in Melbourne. September 19th 2001


 [Signed] G. Carroll  
 Rev G Carroll  
 Presiding Judge  
 [Signed] K Matthews  [Signed] R. Mc Guckin
 Rev K Matthews  Rev R McGuckin
 Ponens  Judge
 [Signed] D Price  [Signed] PD Quirk
 Rev D Price  Rev P Quirk
 Judge  Judge
 Notary: ......[Signed] Boon  


Copyright J.R. Lilburne, 19 October 2001.