Archbishop Petros v Biru
[2006] VSC 383
•6 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8737 of 2006
| ARCHBISHOP ABBA PETROS AS HIMSELF AND AS CHAIRMAN OF THE ETHIOPIAN PLAINTIFF ORTHODOX TEWAHEDO CHURCH IN AUSTRALIA IN VICTORIA INC. AND ANOR. | Plaintiff |
| v | |
| MEZEMER BIRU AND ANOR. | Defendants |
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JUDGE: | Morris J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2006 | |
DATE OF JUDGMENT: | 6 October 2006 | |
CASE MAY BE CITED AS: | Archbishop Petros v Arch Priest Biru | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 383 | |
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Interlocutory Injunction – Serious question to be tried – Damages inadequate remedy – Balance of inconvenience – Risk of injustice – Ethiopian Orthodox Tewahedo Church in Australia – Whether rules of incorporated association consistent with law - Associations Incorporation Act 1981
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Little | Mr Thomas Egan |
| For the Defendant | Mr A. Kirby | Mr Mark Schofield, Nicholas O'Donohue & Co. |
HIS HONOUR:[1]
[1]These reasons were given orally and subsequently revised.
In this day and age it is rare for an Australian civil court to be asked to grant an injunction about the governance of a church. It is rarer still that an injunction is sought in circumstances where the church is domiciled in Africa, where the affairs of the church have been touched by the politics of a nation, and where there appears to be a dispute over the paramount leadership of the church. Indeed, this case has some of the hallmarks of a Shakespearean play, including an element of tragedy.
A factual overview
The first plaintiff is Archbishop Abba Petros. He is an Archbishop of the Ethiopian Orthodox Tewahedo Church. The second plaintiff is a supporter of Archbishop Petros. The first defendant is Arch Priest Mezzimer Biru. He is a priest of the Ethiopian Church and has been in charge of the parish in Melbourne. The second defendant is a supporter of Arch Priest Biru.
The Melbourne parish of the church has premises at 9 Navigator Street, Maribyrnong. On this land is a church building and related buildings. The registered proprietor of the land is the Ethiopian Orthodox Tewahedo Church in Australia (Victoria) Incorporated. This is an association incorporated under Victoria's Associations Incorporation Act 1981.
For the last five years the Melbourne parish appears to have been operating as a successful cohesive church under the leadership of Arch Priest Biru. A few months ago all this changed. On 18 May 2006 Archbishop Petros was appointed to be the Archbishop of Australia, a post that had been unfilled for the previous ten years. Shortly after his arrival in Australia on 22 July 2006, Archbishop Petros sought to impose his authority as leader of the Ethiopian Church in Australia. This was resisted by Arch Priest Biru and his supporters. Other members of the church in Melbourne supported Archbishop Petros. This led to the present legal action in which Archbishop Petros seeks an injunction that the keys to the Melbourne church building, and the administrative and financial records of the parish, be handed over to him.
The task of the court
Unless the parties have the sense to settle this dispute, the final determination will require a full trial. Today's judgment is not a judgment following a full trial. Rather, my task today is to determine an interim issue; that is what should be done pending a full trial.
Initially this matter came before Justice Hollingworth on 20 September 2006. On that occasion her Honour was concerned to find an immediate solution pending argument as to what should be the holding position pending the trial of the action. Justice Hollingworth received an undertaking on behalf of the defendants to the effect that they would deliver up the keys to the church in Maribyrnong and that the keys would be held in the custody of the prothonotary of this Court. That is not a desirable medium term outcome as the trial might not occur for a year or so. Clearly, it is desirable that the holding position, pending trial, enable those who wish to worship at the church at Maribyrnong to be able to do so. Hence, on Wednesday of this week, the matter was argued in great detail before me, and, might I add, with competence.
Relevant principles
Just over a week ago the High Court of Australia handed down judgment in Australian Broadcasting Corporation v. O'Neil (2006) HCA 46. The majority of the court identified four principles that ought be applied in considering whether or not to grant interlocutory relief. First, that there is a serious question to be tried. Second, that the plaintiff will suffer injury for which damages are not an adequate remedy if the injunction is not granted. Third, that the balance of convenience favours the granting of an injunction. And, fourth, that there are no discretionary factors, such as a lack of candour or clean hands, that would disentitle the plaintiff to relief.
In April this year, Victoria's Court of Appeal also considered the principles that should apply to the granting of interlocutory injunctions: see Bradto v. State of Victoria [2006] VSCA 89. The court considered the statement of Hoffman J in the English case of Films Rover International Ltd v. Canon Film Sales Ltd (1987) 1 WLR 670, and said that the flexibility and adaptability of the remedy of injunction as an instrument of justice will be best served by the adoption of the Hoffman approach, namely:
“The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial, or would fail if there was a trial, or, alternatively, in failing to grant an injunction to a party who succeeds, or would succeed, at trial. A fundamental principle is, therefore, that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described.”
On a number of occasions, I have observed that the test formulated by Hoffman J is a most helpful guide in granting interlocutory relief: see, for example, Smith v. Football Victoria Ltd (2003) 20 VAR 119. In my opinion, it is complementary to the approach recently articulated by the High Court, and is not in conflict with it. It is, in essence, a test that assists a court in determining where the balance of convenience lies in a particular matter, bearing in mind that that question is influenced by the strength of each party’s case.
The key issue
As so often happens in these disputes, it is clear enough that there is a serious issue to be tried. Both sides have advanced powerful arguments as to why they should be entitled to control the Melbourne church. It is also clear that damages would not be an adequate remedy for either party if that party is denied governance of the Melbourne church. The fight is about power and influence, not money. Further, although there have been allegations of lack of candour, I do not accept that such factors, even if accepted as true, are critical in this case. Hence, the determination of the case really turns on what is in the balance of convenience in all the circumstances. This embraces many factors, including the relative strength of the claims of the parties. The test propounded by Hoffman J in Films Rover is particularly useful as it requires the court to focus on a remedy which is least likely to cause injustice in all the circumstances.
Detailed findings of fact
It is important to understand that the following findings of fact are made on limited material and without the benefit of all that goes with a final trial, including cross-examination. Hence, my findings should be understood as only being for the purpose of determining the current interlocutory question.
The Ethiopian Orthodox Tewahedo Church - Background
The Ethiopian Orthodox Tewahedo Church is an oriental orthodox church in Ethiopia. It was part of the Coptic Church until 1959, when it was granted its own patriarch by Coptic Pope Cyril 6th. I understand the Ethiopian Church to be the only pre-colonial Christian church in sub-Saharan Africa. It is a substantial church with a membership of about 40 million people, mainly in Ethiopia, although also in many other countries throughout the world. It is the largest of all oriental orthodox churches.
It is also a church with very early origins. It is said to have commenced by a royal official baptised by Phillip the Evangelist; and certainly it has roots back into the 4th Century AD. Historically, the Ethiopian Church has had strong ties with the Egyptian Coptic Church, with the Egyptian Church appointing the head of the Ethiopian Church until just after the second world war.
As I understand it, the Coptic Church and Ethiopian Church reached an agreement in 1948 that led to the autonomy of the Ethiopian Church. This agreement led in 1959 to the crowning of Abune Basilios as the first patriarch of Ethiopia. The patriarch of the church plays a similar role to the Pope of the Coptic Church or the Roman Catholic Church; and is the head and leader of the church.
Patriarch Basilios died in 1971 and was succeeded that year by Patriarch Abune Tewophilos. It was three years later in 1974 that there was a significant change in Ethiopia. Until that time, Emperor Haile Selassie was the head of Ethiopia; and the Ethiopian Orthodox Tewahedo Church was established as a state church. But in 1974 Emperor Selassie was overthrown by the Marxist Derg regime, which ruled Ethiopia until 1991. Patriarch Abune Tewophilos was arrested in 1976 and, it is said, was executed by the Marxist Derg regime shortly thereafter. In any event, in about 1976, a new patriarch was enthroned, Abune Tekle Haymanot. Some think that the new patriarch was enthroned in place of Patriarch Tewophilos by reason of the influence of the Marxist Derg government then in power in Ethiopia.
In 1988 Patriarch Haymanot died and was then replaced by a new patriarch, Abune Merkorios. It is said that the new patriarch was sympathetic to the Marxist Derg government then in power in Ethiopia.
In 1991, after military struggle, a new government was installed in Ethiopia under the umbrella of a group known as the EPRDF. Shortly after this government was installed, Patriarch Merkorios left Ethiopia and fled abroad. Subsequently, a new patriarch was elected in Ethiopia, being Patriarch Abune Paulos.
The Ethiopian Orthodox Tewahedo Church – the current position
An affidavit has been sworn by Abun Zena Markos. He claims to be the deputy patriarch of the church. His evidence is to the effect that he was the acting patriarch after Patriarch Merkorios left Ethiopia; and then he subsequently fled from Ethiopia with Patriarch Merkorios because he feared that he would be killed or imprisoned. He says that as there can only be one patriarch at any point in time - and that if two persons are elected as patriarch, the appointment of the one who is elected first shall take priority - Patriarch Merkorios is in fact the patriarch of the church. There would appear to be members of the church throughout the world who support this proposition. These members regard Patriarch Merkorios as the patriarch of the church in exile. Within Ethiopia though, Patriarch Paulos is the person who commands the authority of the church. And it was on his authority that the plaintiff in these proceedings, Archbishop Petros, was sent to Australia.
The church in Melbourne
The church in Melbourne was established around 1992. Abun Markos claims that he played a role in this when he was acting patriarch of the church during 1991 to 1992. Whether that is the case or not ultimately does not matter. The fact is that the church was established in Melbourne around 1992 and developed a congregation of supporters and members who used the facilities offered by the church.
In about 1994 an archbishop of the church in Australia was appointed, namely, Archbishop Abba Nicodemus. He only stayed in Melbourne for a year or two; and returned to Ethiopia in about 1996. This left the church in Melbourne without a priest, although from time to time there were temporary priests. Around 1999 the first defendant, Arch Priest Biru, was approached whilst on holiday in Australia, and as a result of that approach he became the priest of the church in Melbourne. Arch Priest Biru had previously been a priest of the church in Sweden where he had spent many years. He was trained in Ethiopia and, like Archbishop Petros, is learned in the language, songs, scripture, history, liturgies and preaching of the church.
Around 1994 the congregation of the Church in Melbourne began using a church building, a hall and grounds owned by the Uniting Church at 9 Navigator Street, Maribyrnong. The Uniting Church leased this property to the Ethiopian Church in Melbourne. About 1995 an opportunity arose for the Ethiopian Church to purchase this property from the Uniting Church and that subsequently took place. (The right to use the property is at the heart of this case.)
In order to hold the property, on 26 February 1996, the Church in Melbourne became an incorporated association pursuant to the Associations Incorporation Act 1981. The association is governed by a set of rules which are called Parish Council Regulations. Under those rules, the principal executive officer of the Administrative Council of the association is "the Administrator" which in turn is defined to mean the clergyman who, being subordinate to the Archbishop, serves as the incumbent of the Parish. Arch Priest Biru has performed that role and as such has had responsibility for such things as the keys of the church building in Melbourne.
It would appear on the evidence that since 1999, when Arch Priest Biru commenced duties with the Church in Melbourne, the church has operated successfully, harmoniously and with a high degree of unity among its members. This is not to say that there were not differences. One difference related to the ultimate leadership of the Ethiopian Church. In this respect the evidence discloses that one practice of the Ethiopian Church is that certain prayers are given on behalf of the patriarch of the church; and that Arch Priest Biru did not mention Patriarch Paulos by name in those prayers. Although this was raised with Arch Priest Biru on more than one occasion he avoided the issue, rather than confronting it. I will say more about this subsequently.
The Ethiopian Orthodox Tewahedo Church in Australia, Victoria Incorporated
I now want to say something about the rules of the association. The rules of the association are important. They are important because this is a court of law and the court must be guided by the legal position established by relevant legislation and rules made under legislation. Further, the rules of the association bear upon who is empowered to govern the association; and, in turn, this is important because it is the association, and not the church at large (whatever that may be), that is the registered proprietor and owner of the church at Maribyrnong.
The Associations Incorporation Act requires a person who wishes to register an association to lodge the proposed rules of the association with the Registrar under the Act, and those rules must be rules that comply with s.6 of the Act. Section 6 states that rules will comply if they make provision, subject to and in accordance with the Act, with matters set out in a schedule to the Act. In turn, the schedule to the Act sets out some 17 matters to which rules may be provided, one of which is rules in relation to a committee or other body having the management of the incorporated association. I think it follows that an incorporated association must have a committee or some other body which has the management of the incorporated association. It is the committee, or other body, which is legally entitled to deal with and manage real property owned by the association.
In the case of the Ethiopian Orthodox Tewahedo Church in Australia Victoria Incorporated, the committee which has power to manage the affairs of the association is called the Administrative Council. It has the duty under Article 8 of the Regulations to implement the objectives of the church. Article 12 provides that the type and number of members of the Administrative Council shall comprise eight persons being members of the parish: being the Administrator of the Parish as Chairman, the secretary of the Parish, three clergymen, two lay persons and one Sunday School representative. The members of the Administrative Council hold office for a period of three years. Those members are elected by persons who form the General Assembly, which in broad terms consists of all persons who are members of the association.
Article 12(5) provides as follows:
“(a)The election result for the Administrative Council shall be submitted to the Archbishop for his approval.
(b)If the Archbishop shall not approve the election result in his own absolute discretion, the election result shall be amended or be revoked by him. If the election result is revoked, the Archbishop shall order the calling of another election.”
There are other rules that I will briefly advert to. Article 13(9) states that one of the duties and responsibilities of the Administrative Council is that "it shall be responsible to the Archbishop". Article 14(1) provides, as I have indicated, that the Administrator is the principal executive officer of the Administrative Council According to another regulation the Administrator shall be Chairman of meetings of the General Assembly and of the Administrative Council in the absence of the Archbishop.
The rules are not internally consistent. There is confusion, for example, about who is to be the Chairman of the Administrative Council. Some rules suggest that this is to be the Administrator (who I would regard to be Arch Priest Biru), whereas other rules suggest that this is to be the Archbishop.
Returning to the Associations Incorporations Act, I also wish to note certain other provisions there. Section 21(4) of the Act provides that a purpose or rule of an incorporated association is of no effect if it is inconsistent with the Act or contrary to law. Further, by reason of s.21(3), where in relation to any matter in relation to which the model rules under the Act make provision, but the rules of the incorporated association do not make provision, then the provision of the model rules shall in relation to that matter be deemed to be included in the rules of the incorporated association. I was not taken to the model rules and it remains a matter of speculation whether that provision has any relevance in determining the present dispute.
Similarly, s.14B of the Act provides that the rules of an incorporated association must set out a grievance procedure for dealing with any dispute under the rules between a member and another member; and that the grievance procedure must allow for natural justice to be applied. It may be that a grievance procedure set out in model rules might apply to this association, but once again that was not a matter that was considered in submissions before me and so I say nothing more about it.
What this brief discussion of the rules and the provisions of the Act shows is that there are a significant number of legal complexities that surround this case. They are not matters that have been able to be explored in any depth in the proceeding before me. Hence I ought be cautious in jumping to any quick conclusion that one side or the other has a strong or a weak case in relation to the substantial issues involved in the proceeding.
Allegations made by the parties
Allegations by the plaintiffs
I now want to turn to some of the allegations made on behalf of the plaintiffs and which were said to be in support of the grant of the relief they seek.
It was submitted that the Church in Melbourne has always followed the practices and procedures of the Ethiopian Church and has always regarded it to be part of that church. Hence it was said that this factor ought lead the court to grant relief which would allow the authority of the church in Ethiopia to be manifested over the church in Melbourne. It is true that the Church in Melbourne has followed the practices and procedures of the Ethiopian Church, but in my view this does not automatically mean that the hierarchy currently in power in Ethiopia has the right to control the local parish. There will be other relevant factors. One will be the constitution of the parish and, more relevantly, the constitution of the registered proprietor of the land, the association. Another factor is the wishes of the members of the parish: in particular, whether the power being exercised by the Church in Ethiopia is regarded by the parish as legitimate. I emphasise: not whether it is legitimate, but whether it is regarded by the parish as legitimate. In my view, the fact that the Church in Melbourne has always followed the practices and procedures of the Ethiopian Church is not decisive. It is equally consistent with the Melbourne Parish having an allegiance to Patriarch Paulos or to Patriarch Merkorios; or, for that matter, having no patriarchal allegiance at all.
The plaintiff then submitted that Archbishop Petros does not seek violence or division. I accept this; but I think the same can be said of the defendants. The only thing of a specific nature that was relied upon in this respect was a statement said to be made by the second defendant, who is a supporter of Arch Priest Biru. The evidence is that on 10 September 2006, with the church property padlocked, Mr Bela stood outside the church with a microphone and said words similar to:
“We are not going to open the church and we are not with the Archbishop, so it is to be closed as it is. If they try to get into the church they have to kill us before they get in.”
I do not regard this as a threat of violence. Rather I would regard it as either bravado or an expression of determination. Significantly Mr Bela was not suggesting that he would kill anyone. Rather he was saying that he was so determined to get his own way and the way of his supporters that he was willing to die, if need be, to achieve that. Certainly he was engaging in hyperbole, but I do not accept that he was threatening violence.
Then the plaintiff says that Arch Priest Biru has been involved in misleading conduct in relation to his allegiance to Patriarch Paulos. Various things are relied upon. The general tenor of is to the effect that Biru avoided the issue, or procrastinated, or said he would check with Ethiopia and did not. I do not regard Arch Priest Biru's conduct as misleading: rather he sought to avoid an issue he knew would be divisive. In this respect I note that at a General Assembly meeting held on 9 January 2005 this matter was raised and Arch Priest Biru provided the response that when he was in Sweden he had been reciting Patriarch Merkorios in his prayer and (I imply) he did not feel comfortable changing this to Patriarch Paulos. Rather he suggested the problem would be solved when the two patriarchs resolved their differences. The minutes record the Arch Priest as saying:
“He also indicated that he was living his service to the church with this in mind till now. He told the assembly that the feedback from the parish members was that it would be divisive if he goes either way and hence he has chosen not to recite both patriarchs since his arrival in Melbourne to serve the church.”
And subsequently the minutes state:
“Regarding the patriarchs since this problem exists not only in our church but also back home and in different countries, it was suggested that the arch priest is in a difficult position and we have to pray and that there should not be the spirit of disunity among us.”
There was a challenge before me as to whether those minutes accurately reflected what occurred at the relevant meeting on 9 January 2005, but for present purposes - bearing in mind they are limited - I accept that this was the position taken by Arch Priest Biru. Hence I have formed the view that his position on this topic does not display a lack of candour, but rather was a choice made by him to put the unity of the Church in Melbourne first. This might be thought to have been a wise choice.
The plaintiffs then submitted that supporters of the plaintiff have made contributions to the Church in Melbourne and that they form a significant body of the members of the Church in Melbourne. There is no doubt that this is true. Equally supporters of the defendants have made contributions and they, too, form a significant proportion of the Church in Melbourne. Hence those facts do not assist me in determining what is an appropriate holding position. If anything they make the decision more difficult, because whatever decision is made there will be a substantial number of people who will be unhappy with it.
The plaintiff then submitted that some members associated with the defendants have been seeking new members, or circulating new membership forms. If there was some attempt to stack the church, with persons favouring one group rather than the other, in a way that was unlawful or inappropriate, then that would provide a basis for equitable intervention by this court. However, the evidence before me does not satisfy me that there has been, or is to be, an attempt to stack the church with supporters of one faction rather than the other. If there is such an attempt in the future, obviously this could be a matter that could result in a fresh proceeding before the court to ensure that the law is applied.
So looking at the various allegations made by the plaintiff in support of their submission that the court should grant relief, I cannot conclude that anyone of them, or all of them taken together, are powerful.
Allegations by the Defendants
The defendants submitted that there were a number of matters which ought result in relief being refused. For example it was said that the plaintiffs failed to disclose the Magistrates' Court proceeding to this court. I do not regard that as particularly significant. It was said that the plaintiffs had attempted to circumvent the Magistrates' Court ruling, and had been slow in paying costs which were awarded by the Magistrates' Court. Once again I do not regard those things as significant.
Another matter relied on by the Defendants was that the Archbishop had shown some lack of candour himself. In this respect, there was reference to paragraph 6 of his affidavit of 3 October 2006, in which he said that he had no knowledge of a synod in exile as alleged by the Defendants; and, in particular, no knowledge of the activities of former Patriarch Merkorios. I am not prepared to make a finding of lack of candour. It may be surprising that that particular paragraph was included in the affidavit, but having regard to the seriousness of such a finding, and the fact that this matter has been dealt with without cross-examination, it would be inappropriate to make such a finding.
In a contest of this sort, there is a tendency to latch onto little things and try and make big things of them. In truth, these little things are not that important; and I do not regard them as things that ought influence me.
Lower risk of injustice
So that leaves me in the difficult position of not being persuaded by any of the particular allegations put by either side as to why they deserve to win. So I am required to go back to first principles. One of those first principles is to think about and identify the serious issues to be tried; because the relative strength of those issues is be a relevant factor in determining what is the appropriate holding position.
Serious issues
I think some of the serious issues include these. Has Archbishop Petros been validly appointed as Archbishop of Australia? Is Patriarch Paulos recognised as the patriarch of the church with authority over Australia? What is the nature of the Archbishop's power, whoever the Archbishop is, under the rules of the association? (Some of the powers in the rules are broad-sweeping, and it may be that to achieve compliance with the Associations Incorporation Act, those powers may need to be read down.) Whatever the powers may be, has Archbishop Petros actually exercised powers that may be available to him under the rules which deprive the current administrative committee and its executive officer of legal authority to manage the affairs of the Melbourne church? Does an Archbishop exercising powers under the rules have a fiduciary duty to exercise those powers fairly and without seeking to advantage any one or other faction or group in an election? (Compare Whitehouse v Carlton Hotel Proprietary Limited (1987) 167 CLR 285.)
Now, some of these claims and counterclaims are stronger than others. But it cannot be said that the claims of one side stand out as relatively stronger than those of the other side. Both sides have strong legitimate claims.
Another observation I should make is that even if the Archbishop exercised what powers are lawfully open to him in relation to the composition of the Administrative Council of the association, there is no certainty that a new committee, that might be elected after the exercise of such powers, would be a committee with a different composition to that which is currently in place; and I note that the committee that is currently in place is behind and supporting Arch Priest Biru. So that is a further factor that is relevant.
Balance of convenience
Well, let me now come to the crunch. What is the outcome that will minimise the risk of injustice, if the interlocutory decision turns out to be a bad decision? It is worth comparing two possible outcomes. The first outcome is if I grant the relief sought by the plaintiffs and then it turns out, when there is a final trial, that that holding position was wrong, in the sense that it turns out that Archbishop Petros is not entitled to exercise his authority over the Melbourne church. That is the first choice. That is the choice that I have to consider having regard to the plaintiffs' contentions. The second is that I refuse the relief sought by the plaintiffs and then it ultimately turns out that that decision was wrong because Archbishop Petros was entitled to exercise his authority over the Melbourne church. These are two choices that are open which could turn out to be the “wrong” choice; and it is important that the decision I make today, as a holding position, is that which is less likely to cause injustice.
There has been an undertaking given as to damages, but I do not regard this as a case where an undertaking as to damages by either side provides much comfort. Neither side is likely to be able to be compensated by money damages. This fight is not about money; it is about power.
When I consider the risks of injustice, they are remarkably similar, regardless of which option the Court chooses. One risk, and it is a substantial risk, is that the church will be split and that the cohesion and unity of the church may be irreparably damaged. Another risk is that persons, lawfully entitled to manage the affairs of the Melbourne church, will be denied that right during the holding period. I suppose there is a third risk: that is, that assets of the church will be dissipated; however, on the evidence, I would regard this as a low risk in either case.
So let me go back to the two main risks that I see. The first of which is that if I make a decision that ultimately turns out to be the “wrong” decision, in the sense that it is not vindicated at trial, the church would be split and the cohesion and unity of the church will be irreparably damaged. I think this risk is less likely if the status quo is maintained. This is because those members of the church supporting the authority of Archbishop Petros are more likely to feel comfortable with the status quo than those opposing his authority would feel if there was a change in the status quo. It is important to stress that the church in Melbourne was operating in a harmonious manner until recent months. When it comes to the grant of interlocutory relief it is often wise to maintain the status quo pending a final hearing. In this case, the status quo is that Arch Priest Biru and the existing Administrative Committee are responsible for the governance of the church in Melbourne and, more particularly, responsible for the church building in Melbourne, including who may enter and under what terms.
The second risk that I mentioned is the risk that persons lawfully entitled to manage the affairs of the Melbourne church will be denied that right. Again, this is difficult to assess at this stage, but I also regard this prospect as being lower if the status quo is maintained. The assertion of authority by Archbishop Petros involves the displacement of a management committee that has been elected by the members of the church. That election was unsuccessfully challenged before the Magistrates' Court. Australian law holds that democratic authority is important, and this applies where the entity is a company, a trade union or an incorporated association, just as much as it applies to the governance of a nation or a State or a local area. The fact that the Administrative Council has been recently elected - and that that election has been upheld by the Magistrates' Court - is an important factor in identifying the appropriate balance pending the final determination of the proceeding. Even if Archbishop Petros has the power to displace the management committee under the rules of the association, that would be a substantial step, even a radical step, and ought follow a full trial rather than being imposed as part of some holding order.
So, in my view, the risks associated with granting the relief sought by the plaintiffs are significantly greater than the risks associated with refusing such relief. Hence, the appropriate course is that the plaintiffs' summons be dismissed. This will maintain the status quo, or at least what was the status quo before the matter was subject of intervention in this court, until any final hearing of this proceeding.
A final word
It is apparent that many members of the church in Melbourne wish to leave the politics of Ethiopia behind them and live in Australia in peace and harmony. Both sides to this dispute have expressed a desire to show goodwill. In his letter of appointment, Archbishop Petros was urged to accomplish his service so that peace, love and unity prevails among the faithful; and Arch Priest Biru has stated that he is committed to the spiritual welfare of all members of the church. These are fine sentiments but the true test is ahead of the parties. It will be how they seek to work together to resolve their differences.
The orders I propose to make are, essentially, in the form proposed by counsel for the Defendants. They are as follows:
1.The Plaintiffs' summons filed 15 December 2006 is dismissed.
2.The Prothonotary release to the First Defendant or his solicitor the 23 keys delivered to him pursuant to the orders of Justice Hollingworth, made 20 September 2006. Such keys to remain in his control until the trial and determination of this proceeding or further order.
3.The First Defendant be at liberty to open The Ethiopian Orthodox Tewahedo Church in Australia Victoria Inc. at 9 Navigator Street, Maribyrnong, Victoria, and to have access to its original books of account, financial records or minutes of meetings as Executive Officer of the Administrative Council of the Ethiopian Orthodox Tewahedo Church in Australia Victoria Inc. until the trial and determination of this proceeding or further order.
4.The Plaintiffs are to file and serve a statement of claim on or before 4 p.m. on 18 November 2006.
5.The Defendants are to file and serve a defence on or before 4 p.m. on 18 December2006.
6.Liberty to apply is reserved to the parties.
7.This order be signed by the judge pursuant to Rule 60.04 of the Supreme Court General Civil Procedure Rules 1996.
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