Attorney-General v St John the Prodromos Greek Orthodox Community Inc

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 8772 of 1995

ATTORNEY-GENERAL FOR VICTORIA (at the relation of ARCHBISHOP STYLIANOS HARKIANAKIS) & ORS	Plaintiffs
v
ST JOHN THE PRODROMOS GREEK ORTHODOX COMMUNITY INC & ORS	Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	9-12, 16-17, 27 August 1999
DATE OF JUDGMENT:	12 October 2000
CASE MAY BE CITED AS:	A-G v St John Greek Orthodox Community Inc
MEDIA NEUTRAL CITATION:	[2000] VSC 12	Cover sheet amended 30 October 2000

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Charitable Trusts – Church property held subject to charitable trust – Greek Orthodox Church – Dispute as to trust purposes – Whether property used in breach of trust – Appointment of new trustee.

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APPEARANCES:	Counsel	Solicitors
For the second, third and fifth Plaintiffs	Dr C.L. Pannam QC with Mr S. Glacken	Nicholas C. Pappas & Co
For the first third, fourth and fifth Defendants	Mr P. Nugent	Charles Fice
For the sixth Defendant	No appearance

Table of Contents

THE PARTIES................................................................................................................................................................................. 1

THE PARISH COMMUNITY........................................................................................................................................................ 2

THE ORTHODOX CHURCH....................................................................................................................................................... 4

ACQUISITION OF THE LAND................................................................................................................................................... 9

THE 1963 CONSTITUTION...................................................................................................................................................... 11

THE 1968 CONSTITUTION...................................................................................................................................................... 13

TENSIONS ARISE....................................................................................................................................................................... 15

THE 1983 CONSTITUTION AND THE STAVROPEGIAL MONASTERY...................................................................... 16

REGISTRATION OF 1983 CONSTITUTION........................................................................................................................ 18

THE SCHOOL COMPANY........................................................................................................................................................ 21

ABOLITION OF STAVROPEGIAL MONASTERY.............................................................................................................. 23

THE START OF THE BREAK................................................................................................................................................... 23

"INCURSION" OF JERUSALEM............................................................................................................................................. 26

THE COMMUNITY COMPANY................................................................................................................................................ 28

PLAINTIFFS’ EVIDENCE.......................................................................................................................................................... 30

DEFENDANTS' EVIDENCE....................................................................................................................................................... 32

THE PLAINTIFFS' SUBMISSIONS......................................................................................................................................... 35

THE DEFENDANTS’ DEFENCE AND THE PLAINTIFFS’ CRITIQUE.............................................................................. 42

THE DEFENDANTS' SUBMISSIONS..................................................................................................................................... 44

THE NATURE OF THE CHARITABLE TRUST..................................................................................................................... 47

BREACHES OF CHARITABLE TRUST................................................................................................................................. 50

RELIEF........................................................................................................................................................................................... 55

HIS HONOUR:

The plaintiffs seek to enforce the objects of a charitable trust said to be for religious purposes concerning land and a church building (known as "St John's") at 998 Lygon Street, North Carlton ("the Church property"). The Church property is used by members of the Greek Orthodox Community and Parish of St John the Prodromos (Forerunner) and Baptist. The subject matter of the trust being land and a church building, the central issue agitated by the parties was the ascertainment of the specific charitable purpose or purposes to which the Church property was dedicated under the trust.

The plaintiffs contend that the purposes of the charitable trust were and are the maintenance and propagation of the Greek Orthodox religion through and as part of the Greek Orthodox Archdiocese of Australia. The plaintiffs say that there have been significant breaches of that trust and that a new trustee should be appointed.

The Parties

The proceeding is brought in the name of the Attorney General as first plaintiff at the relation of Archbishop Stylianos (who is also the second plaintiff and the Archbishop of The Greek Orthodox Archdiocese of Australia). The Archbishop is registered under the Religious Successory and Charitable Trusts Act 1958 (Victoria) as the head of the Greek Orthodox Archdiocese of Australia. The third plaintiff, The Greek Orthodox Archdiocese of Australia Consolidated Trust, is a statutory corporation constituted by the Greek Orthodox Archdiocese of Australia Consolidated Trust Act 1994 (NSW) which has statutory functions to hold and deal with property on trust for or for the purposes of The Greek Orthodox Church in Australia, The Greek Orthodox Archdiocese of Australia and the Holy Patriarchate in Constantinople (Istanbul). The third plaintiff was put forward as a suitable trustee to be appointed by the Court. Alternatively, the fourth and fifth plaintiffs (Drossos Stamboulakis and Athanasios Angelidis) were initially put forward as suitable trustees. The Court was told that the fourth plaintiff died earlier in 1999 and that the plaintiffs would, if necessary, put forward a substitute name or names.

The first defendant, St John the Prodromos Greek Orthodox Community Inc, is the current registered proprietor of the Church property. The first defendant is an association incorporated under the Associations Incorporation Act 1981 (Vic) and is the successor to a company known as St John the Prodromos Greek Orthodox Community Ltd. The first defendant became the registered proprietor of the land on 19 October 1994 in place of that company. The second to fifth defendants (Michael Nikolaou, Efstathios Sakellaropoulos, Nicholas Martakis and George Coutsouvelis) are registered under the Religious Successory and Charitable Trusts Act 1958(Vic) as the trustees of the trust known as The Holy Patriarchal and Stavropegial Monastery of St John The Baptist and Prodromos. The second to fifth defendants became registered as trustees of that trust on 27 February 1984 and were the registered proprietors of the land in the period 6 August 1987 to 11 May 1990. The second defendant (Michael Nikolaou) died since the commencement of the proceeding and by s.27 of the Religious Successory and Charitable Trusts Act the proceeding continued against the remaining registered trustees, the third to fifth defendants.

The Parish Community

The Philoptohos of Melbourne ("the Philoptohos") was established in 1957. Save for its honorary president, Jerotheos Kourtessis (a priest of the Greek Orthodox Church appointed by the Archdiocese) the Philoptohos was comprised of female members of the Greek community in Melbourne. A Philoptohos, or “friends of the poor”, is an organisation of women of a parish primarily dedicated to services to the poor and to the enrichment of parish life. From the time of its formation, this Philoptohos engaged in a range of activities, including the provision of assistance to Greek immigrants upon their arrival in Australia.

In 1958 a voluntary association or religious community known as the Greek Orthodox Community of St John ("the Community") was established at the instance of the Philoptohos. The affairs of the Community were managed by an executive committee with the title of “The Ecclesiastic Committee” or “The Church Committee” which kept minutes of its meetings. Minutes of the First Meeting of the Committee which took place on 19 December 1958 at the offices of the Philoptohos, record that:

"Declaring the meeting open, the president, Fr. Jerotheos Kourtessis, continued explaining to the people present, in a few words, the reasons, for which the Benevolent Society [Philoptohos] decided the establishment of the Holy Church of St John The Baptist, with the decision of an extraordinary General Meeting of the members of the Benevolent Society [Philoptohos] taken on the 11^th December 1958 and the approval of the Holy Metropolis of Australia and New Zealand, and its Prelate Archbishop Thyateiron Messrs. Athinagoras …"

In 1958 there had been a public meeting of members of the Greek Orthodox Community in Melbourne convened by Archbishop Ezekiel of the Archdiocese at the Collingwood Town Hall. The meeting was chaired by Archbishop Ezekiel and he called on members of the Greek Orthodox Community of Melbourne to become organised into communities and to build churches. It was after that meeting that Jerotheos Kourtessis told members of the Philoptohos that he had found premises in Drummond Street, Carlton consisting of a hall that could be used as a church. Members of the Philoptohos then contacted members of the Greek Orthodox Community in the Carlton area and sought their support for the establishment of the Community in Carlton.

Persons described as trustees of “The Greek Orthodox Philoptohos Christians Brotherhood of Melbourne” (Jerotheos Kourtessis, Archontia Marmaras, Sofia Ioannou and Despina Moutafi) leased a hall at 907 Drummond Street, North Carlton. Religious services were conducted in the church hall at 907 Drummond Street, later known as “old St John’s”.

In January 1962 the trustees of the Community, and the Philoptohos, paid a deposit for the purchase of freehold land at 909 Drummond Street, North Carlton later used as a residence and office. The purchase of the land at 909 Drummond Street was finalised in April 1962 and by letter dated 11 April 1962 the solicitor for the trustees, R H McMennemin, advised the trustees that a trust deed should be drawn to reflect the fact that the land at 909 Drummond Street, North Carlton was held on trust.

The founder of the Community, Jerotheos Kourtessis, was known as “a supporter” of Archbishop Ezekiel and the Archdiocese. In 1964 tensions arose in the Greek Orthodox Community in Australia with the arrival of Archbishop Photios, formerly Metropolitan of Paphos, Cyprus, who had been dismissed from his See by Archbishop Makarios of Cyprus. Archbishop Photios had purported to declare himself Bishop of America and Australia and sought to establish an independent Greek Orthodox Church organisation. In response Archbishop Ezekiel relied on the canonical validity of his appointment to the Diocese of Australia and New Zealand by the Holy Synod of the Ecumenical Patriarchate in Constantinople. Jerotheos Kourtessis pointed out that marriages and baptisms conducted in churches which Archbishop Photios sought to establish would not be recognised by the Greek Orthodox Church.

The Orthodox Church

According to a leading historian on the Orthodox Church, Timothy Ware, himself now a Bishop of the Church (Bishop Kallistos of Diokleia) in his work, The Orthodox Church (at 15), the Orthodox Church is a family of self-governing churches:

"It is held together, not by a centralized organisation, not by a single prelate wielding absolute power over the whole body, but by the double bond of unity in the faith and communion in the sacraments. Each Church, while independent is in full agreement with the rest on all matters of doctrine, and between them all there is full sacramental communion. …
There is in Orthodoxy no one with an equivalent position to the Pope in the Roman Catholic Church. The Patriarch of Constantinople is known as the ‘Ecumenical’ (or universal) Patriarch, and since the schism between east and west he has enjoyed a position of special honour among all the Orthodox communities; but he does not have the right to interfere in the internal affairs of other Churches. His place resembles that of the Archbishop of Canterbury in the worldwide Anglican communion.
This decentralized system of independent local Churches has the advantage of being highly flexible, and is easily adapted to changing conditions. Local Churches can be created, suppressed, and then restored again, with very little disturbance to the life of the Church as a whole. Many of these local Churches are also national Churches, for during the past in Orthodox countries Church and State have usually been closely linked. But while an independent State often possesses its own autocephalous Church, ecclesiastical divisions do not necessarily coincide with State boundaries.
...
Such are the Churches which make up the Orthodox communion as it is today. They are known collectively by various titles. Sometimes they are called the Greek or Greco-Russian Church; but this is incorrect, since there are many millions of Orthodox who are neither Greek nor Russian. Orthodox themselves often call their Church the Eastern Orthodox Church, the Orthodox Catholic Church, the Orthodox Catholic Church of the East, or the like. These titles must not be misunderstood, for while Orthodoxy considers itself to be the true Catholic Church, it is not part of the Roman Catholic Church; and although Orthodoxy calls itself eastern, it is not something limited to eastern people. Another name often employed is the Holy Orthodox Church. Perhaps it is least misleading and most convenient to use the shortest title: the Orthodox Church."

Later (at 243) Ware explains that:
"An Orthodox Christian is vividly conscious of belonging to a community. ‘We know that when any one of us falls,’ wrote Khomiakov, ‘he falls alone; but no one is saved alone. He is saved in the Church, as a member of it and in union with all its other members’.
… Orthodoxy insists upon the hierarchical structure of the Church, upon the Apostolic Succession, the episcopate, and the priesthood; it prays to the saints and intercedes for the departed. Thus far Rome and Orthodoxy agree – but where Rome thinks in terms of the supremacy and the universal jurisdiction of the Pope, Orthodoxy thinks in terms of the college of bishops and of the Ecumenical Council; where Rome stresses Papal infallibility, Orthodox stress the infallibility of the Church as a whole."

The role of a Bishop in the Orthodox Church is then explained by Ware (at 252-253) in the following terms:
"The Orthodox Church is a hierarchical Church. An essential element in its structure is the Apostolic Succession of bishops. ‘The dignity of the bishop is so necessary in the Church,’ wrote Dositheus, ‘that without him neither the Church nor the name Christian could exist or be spoken of at all … He is a living image of God upon earth … and a fountain of all the sacraments of the Catholic Church, through which we obtain salvation.’ ‘If any are not with the bishop’, said Cyprian, ‘they are not in the Church.’
At his election and consecration an Orthodox bishop is endowed with the threefold power of (1) ruling, (2) teaching, and (3) celebrating the sacraments.
(1)A bishop is appointed by God to guide and to rule the flock committed to his charge; he is a ‘monarch’ in his own diocese.
(2)At his consecration a bishop receives a special gift or charisma from the Holy Spirit, in virtue of which he acts as a teacher of the faith. This ministry of teaching the bishop performs above all at the Eucharist, when he preaches the sermon to the people; when other members of the Church – priests or laymen – preach sermons, strictly speaking they act as the bishop’s delegates. …..
(3)The bishop, as Dositheus put it, is ‘the fountain of all the sacraments’. In the primitive Church the celebrant at the Eucharist was normally the bishop, and even today a priest, when he celebrates Mass, is really acting as the bishop’s deputy…"

Each church organisation making up the Orthodox Church is hierarchical in nature, with government or administration of the Church being committed to superior clergy, and is episcopal in that its administration is divided into territorial dioceses.

Until the 11^th century the Christian Church was governed by the five Patriarchs of Rome, Constantinople, Antioch, Alexandria and Jerusalem although as early as the 5^th century and at least from the 6^th century onwards the Patriarch of Constantinople assumed the title of Ecumenical (or Universal) Patriarch. Each Patriarch was the head bishop of his church organisation and thus holding the office of the Patriarchate. These prelates were presidents of Episcopal Synods which in each church organisation constituted the highest canonical, doctrinal and administrative authority.

Following the schism between the Western (Roman Catholic) Church and the Eastern (Orthodox) Church in the 11^th century “primacy of honour” belonged to the Patriarch of Constantinople because Constantinople was the seat of the Eastern Roman or Byzantine Empire and the centre of Eastern Christendom in the period AD320 to 1453. Thus, of the four original or ancient Patriarchs of the Eastern Orthodox Church of Constantinople, Alexandria, Antioch and Jerusalem, the Patriarch of Constantinople is primus inter pares and his authority extends over the Greek communities in Turkey, the dioceses in the Greek Islands and in Northern Greece and the Greek speaking communities in the United States, Australia and Western Europe: see Ware, pp 15 and 139-140.

Relations between the Patriarchs are governed by the canons adopted at the Seven Ecumenical Councils (sometimes referred to as the Seven General Councils or the Seven Holy Synods) known as Nicea I (325) (First), Constantinople I (381) (Second), Ephesus (431) (Third), Chalcedon (451) (Fourth), Constantinople II (553) (Fifth), Constantinople III (680-681) (Sixth) and Nicea II (787) (Seventh): see generally Ware Ch.2. These canons include:

·    Canon 2 (Constantinople I): That Bishops are not to go beyond their own Diocese.
·    Canon 3 (Constantinople I): That the Bishop of Constantinople shall have the prerogatives of the Bishop of Rome because Constantinople is New Rome.
·    Canon 9 (Chalcedon): If a Bishop or clergyman has a difference with the Metropolitan of his province he can have recourse to Constantinople.
·    Canon 28 (Chalcedon): In the Pontic, the Asian and Thracian Dioceses, the Metropolitans of those Dioceses and of those that are among the Barbarians (the diaspora lands not then settled by Christians) should be ordained by the Patriarch of Constantinople.
·    Canon 20 (Constantinople III): That it shall not be lawful for a Bishop to teach publicly in any city which does not belong to him.
The canons of the Orthodox Church, including the canons of the Seven Ecumenical Councils, are collected in The Rudder, the long title of which is ‘The Rudder of the Metaphorical Ship of the One Holy Catholic and Apostolic Church of the Orthodox Christians”.

The term “Ecumenical Patriarchate” means today the Archbishopric of Constantinople whose presiding Bishop is the Archbishop of Constantinople (the Patriarch), and the centre of whose See is the Phanar (being the Greek speaking Orthodox Christian section of Istanbul), and whose territorial jurisdiction is determined by the canons of the Seven Ecumenical Councils.

The last and seventh of the Ecumenical Councils was held in AD787 (Nicea II) and before that time the creation of an autocephalous (or independent) church organisation was a matter to be determined at an Ecumenical Council. Subsequently, decisions on the establishment of an autocephalous church organisation within the Greek Orthodox Church have been determined by the Ecumenical Patriarch and the Holy Synod in Constantinople and this has led to the establishment of the autocephalous churches of Russia, Greece, Serbia, Romania, Poland, Bulgaria, Albania and Macedonia. Amongst those autocephalous church organisations are the Patriarchates of Russia, Serbia, Romania and Bulgaria and the non-patriarchal churches of the Archbishoprics of Cyprus, Athens (Greece) and Tirana (Albania) and the Metropolitanates of Poland, the Czech Republic and Slovakia.

Within the territorial boundaries of each Patriarchate or Autocephalous Church the Patriarch or the head of the Autocephalous Church, with the advice of his Synod of Archbishops and Bishops, from time to time delineates the areas of various Dioceses or Archdioceses. Thus, on 7 March 1924 Ecumenical Patriarch Gregory and the Holy Synod in Constantinople, pursuant to the canonical rights of Constantinople to administer the orthodox communities in "the diaspora lands", established the Bishopric or Metropolis of Australia and appointed Dr Knitis, Bishop of Serres in Eastern Macedonia, as the first Bishop to Australia.

Before 1924 the religious needs of Greek Orthodox communities in Melbourne had been met by the provision of priests by the Church of Greece in Athens.[1] In 1908 the Ecumenical Patriarch conceded to the Church of Greece jurisdiction over Greek communities abroad, including those in Australia. That conferral of jurisdiction was later withdrawn by the Ecumenical Patriarch and subsequent to the Synodical Decree of 7 March 1924 issued by the Ecumenical Patriarch for the establishment of the Metropolis of Australia, on 19 May 1924 the Holy Synod of the Church of Greece formally recognised the hierarchal supremacy of the Ecumenical Patriarchate and its canonical rights to administer orthodox communities in “the diaspora lands”, including Australia.
[1] Gilchrist, Australians and Greeks: I The Early Years, Chapter 13 esp 275-286 and Gilchrist, Australians and Greeks: II The Middle Years, pp.265-268.

The arrival of Archbishop Knitis in 1924 caused tensions in the Melbourne Greek Orthodox Community leading to a case in the Supreme Court of Victoria concerning the Greek Orthodox Church in Victoria Parade East Melbourne. The case was decided by Cussen J. who noted that: “All Orthodox Churches including the Autocephalous Church of Greece, recognised the Ecumenical Patriarch as the undisputed head of the Eastern Orthodox Church”. His Honour concluded that the original trust deed for the Evangelismos Church used by the association known as the Greek Orthodox Church of Melbourne was no longer capable of performance in accordance with the Articles of Faith and Rules of that Church passed at a meeting on 31 August 1902 (which had recognised the jurisdiction of the Holy Synod of the Church of Greece in Athens) and his Honour prepared a cy-pres scheme for the future use of that church.[2] [According to the plaintiffs (after enquiry), the Prothonotary no longer has the file for the proceeding (no. 248 of 1925) and the plaintiffs were able to obtain only a poor copy of the judgment of Cussen J. dated 28 October 1929 and part of the cy‑pres scheme scheduled to that judgment.]
[2] Gilchrist Vol II, pp. 280-283.

In September 1959 Archbishop Ezekiel was elected as the Archbishop of Australia by the Ecumenical Patriarch Athenagoras and the Holy Synod in Constantinople. The Greek Orthodox Metropolis or Diocese of Australia and New Zealand was then elevated to the status of an Archdiocese. The Patriarchal Constitution and the Special Regulations of the Archdiocese are the constitution for the government and administration of the Greek Orthodox Church in Australia.

Acquisition of the land

The minutes of the first meeting of the "Ecclesiastic Committee of the Holy Church of St John the Baptist, 907 Drummond Street Carlton", which (as I have said) took place on 19 December 1958, also record that Fr J Kourtessis stated that the Philoptohos had "decided the establishment of" St John's at an extraordinary general meeting of its members on 11 December 1958 with "the approval of the Holy Metropolis of Australia and New Zealand". The minutes further record that the Ecclesiastic Committee was a sub-committee of the Philoptohos and would be administering the income of the Church which would be applied to church expenses and that "net profits", when amounting to £1000, would be handed to the Committee of Management of the Philoptohos for the purchase of the church building.

The minutes of the 32^nd meeting of the governing committee of the Community and the members of the Philoptohos record that on 15 March 1963, Fr J Kourtessis advised that suitable land for the construction of a Church had been found in Lygon Street at a price of £12,000 and that resolutions were passed that a deposit of £3,000 would be paid using £2,000 from the bank account of the Community and £1,000 from the bank account of the Philoptohos. The minutes also record that it was decided that the money collected for the construction of the new church be deposited in the "St John's The Baptist Church Building Fund". By this time the community has generated its own revenue principally through fees for the conduct of marriages, baptisms and other services in the church hall at 907 Drummond Street and this is reflected in the statements of income and expenses contained in the minutes. In addition, special fundraising activities had been undertaken by members of the Community and at church services at 907 Drummond Street and special additional collections were taken for donations towards the acquisition of land and the construction of the church building.

The minutes of the 35^th meeting of the governing committee of the community of 9 August 1963 record that payment of the deposit was made as indicated above. The minutes also record Fr J Kourtessis informing members in relation to the clearing of the block and loan finance.

On 2 July 1964 an extraordinary general meeting of members of the Philoptohos and of the Community took place at which resolutions were passed authorising both the initial joint proprietors to enter into a loan of £20,000 from the Commercial Banking Company Savings Bank Limited and the giving of a mortgage over the Lygon Street land.

In addition to the loan of £20,000 from the Commercial Banking Company Savings Bank Limited, loans were obtained from members of the Community.

On 26 March 1965 Jerotheos Kourtessis, Agnes Marmaras, Mary Camakaris, Emmanuel Antonakakis and Sevasti Eleftheriou (“the initial joint proprietors”) took a transfer of the Church property in consideration of payment of £12,000. The transfer was not registered until 29 November 1966 and on that date the initial joint proprietors became registered as proprietors.

The 1963 Constitution

The minutes of the Executive Committee of the Community record that on 13 July 1962 it was resolved that a Special Committee be established for the preparation of a Constitution and also record that on 19 October 1962 parts or paragraphs of a Constitution were tabled, those parts dealing with trustees, members and administration.

The provisions of the 1963 Constitution include:

·    A statement that the aims of the Community include the propagation of the Orthodox Faith as set out by the Seven Holy Ecumenical Synods of the Holy Church and the Local Synods and as approved and explained by the Ecumenical Patriarchate of Constantinople (art.2(a)).
·    Recognition irrevocably and without hesitation by the Community of the Greek Orthodox Archdiocese of Australia and New Zealand as its ecclesiastical head which through canonical and historic rights is subject to the supreme spiritual and ecclesiastical jurisdiction of the Ecumenical Patriarchate of Constantinople (art.3(a).
·    That clergy of the Community will mention in all services and sacraments the name of the Archbishop of Australia and New Zealand for the time being (art.3(b)).
·    The Community will keep the faith, canons, constitution, discipline, customs, rules and orders of the Greek Archdiocese of Australia and New Zealand (art.3(c)).
·    The titles of any property of (or used by) the Community shall be held by five trustees and the initial joint proprietors (Jerotheos Kourtessis, Agnes Marmaras, Sevasti Eleftheriou, Emanuel Antonakakis and Mary Camakaris) are named as the first five trustees: two selected from the Philoptohos, two from the Community and the fifth being Jerotheos Kourtessis (art.4(c), (d) & (e)).
·    The initial joint proprietors as the first trustees are appointed for life and must hold meetings and keep minutes of meetings and resolutions carried by absolute majority (art.4(f)).
·    The property of (or used by) the Community cannot be sold, let, mortgaged or dealt with without the approval of the members of the Philoptohos and of the Community through resolution in general meeting which must be approved by the Archbishop of the Greek Orthodox Archdiocese of Australia and New Zealand (art.4(h)).
·    Priests of the Community must be appointed by the Archbishop and are responsible to the Archbishop (art.7).

The plaintiffs contended that various references in tendered documents including letters from the Community's solicitor to the lending bank pointed to the existence of a constitution and that accordingly the 1963 Constitution was probably in existence before or at the time of the acquisition of the land and the construction of the church building and was relied on by the Community, its members and its trustees in regulating the affairs of the Community including the use of property by its members. If so, it was contended that the initial joint proprietors held the land in their capacity as trustees appointed under the 1963 Constitution and acquired the land and dealt with the land in accordance with the provisions of that document.

At some time before 22 March 1967 one of the initial joint proprietors, Mary Camakaris, died and on that date a survivorship application was made. John Moutafis and Irene Miritis replaced Emanuel Antonakakis and Mary Camakaris as joint proprietors of the land with Jerotheos Kourtessis, Sevasti Eleftheriou and Agnes Marmaras, and this occurred by registration on the certificate of title on 4 April 1967.

The church building known as St John's was constructed on the land. The program for the opening ceremony of 22 December 1968 records services being presided over by a representative of the Ecumenical Patriarchate, Exarch Iakovos, the Bishop of Philadelphia (a diocese of the Ecumenical Patriarchate in Asia Minor).

The plaintiffs also relied upon the fact that St John’s contains a foundation stone the inscription upon which, when translated from the Greek, reads as follows:

"While Athenagoras the First was the patriach, while Ezekiel Tsoukalas was the archbishop, while Jerotheos Kourtessis, archimandrite of the Ecumenical Throne was the priest, the foundation stone of this Holy Church of the Honourable Forerunner and Baptist John was laid in the year of Our Lord 1963 on the 1^st day of September and it was completed in the year of Our Lord 1968 on the 22^nd day of December through the contributions of the Greek Christians of Victoria."

The 1968 Constitution

In 1968 an application was made for additional bank finance to allow for completion of the construction of the church buildings on the land. In a letter dated 29 March 1968 from Bishop Dionysios there is a reference to the trustees being those persons who became registered on the title on 4 April 1967. Those persons are named in the 1968 Constitution.

In 1968 the Community adopted a Constitution (“the 1968 Constitution”) under which the Community took the name “Greek Orthodox Community and Parish of St John the Forerunner (or Prodromos) and Baptist North Carlton”.

The provisions of the 1968 Constitution include:

·    A statement that the objects of the Community include the preservation and dissemination of the Orthodox Christian faith and tradition as developed by the Seven Ecumenical Holy Synods of the Indivisible Church as interpreted in practice by the Great Church of Christ in Constantinople, the Ecumenical Patriarchate (art 2 (1)).
·    Recognition by the Community unreservedly and irrevocably of the Greek Orthodox Archdiocese of Australia and New Zealand as its ecclesiastical authority which through regular and historic rights is under the control of the higher spiritual and ecclesiastical jurisdiction of the Ecumenical Patriarchate of Constantinople (art 3(1)).
·    That the clergy of the Community commemorate the name of the Archbishop of Australia and New Zealand (art 3(2)).
·    That the Community sustain the faith, laws, constitution, discipline, customs, rules and regulations of the Holy Archdiocese of Australia and New Zealand (art 3(3)).
·    That the Community ensure that services be performed only by regularly ordained priests approved and recognised by the Holy Archdiocese (art 3(4)(b)).
·    The property of (or used by) the Community was to be held by a committee of trustees and such property could not be sold or transferred without the consent of 90% of the members of the Community and of the Philoptohos and the written consent of the Archdiocese (art 4) and the registered proprietors were nominated as the committee of trustees (art 8).
·    That priests of the Community are to be appointed by the Archdiocese and appointments could be dissolved if priests were punished by the Spiritual Court of the Archdiocese with dismissal (art 9).
Tensions Arise

In May 1975 Archbishop Stylianos was appointed by the Ecumenical Patriarch and Holy Synod as the Archbishop in place of Archbishop Ezekiel.

On the appointment of Archbishop Stylianos the Community welcomed him and invited him to attend St Johns. However, tensions arose between Jerotheos Kourtessis and Archbishop Stylianos in the late 1970s. As early as June 1976 Archbishop Stylianos suspended Kourtessis from priestly duties for 15 days and in July 1976 the Spiritual Court of the Archdiocese censured Kourtessis for conducting services during this suspension. In 1979 Kourtessis submitted a complaint to the Ecumenical Patriarch about Archbishop Stylianos and in May 1980 the Archbishop granted Kourtessis leave of absence for two months with permission to conduct services overseas. In January 1981 Assistant Bishop Panteleimon suspended Kourtessis from priestly duties for 15 days following his alleged disrespectful conduct towards the Archbishop at an assembly of clergy.

The tensions between Archbishop Stylianos and Fr J Kourtessis were eventually resolved by a decision that the Parish Community was to be accorded the special status of a stavropegial monastery under the Patriarchate.[3] The minutes of the Executive Committee of the Community record the following matters in respect to the proposal that the Community be converted to a stavropegial monastery:

(i)on 2 March 1981 members of the Committee of the Community and the Committee of the Philoptohos voted in favour of adoption of the proposal;
(ii)on 6 April 1981 Fr J Kourtessis reported that no answer had yet been received from the Ecumenical Patriarchate;
(iii)on 29 June 1981 Fr J Kourtessis on his return from Greece and Constantinople reported that he expected that by 29 August 1981 “everything should be ready for the announcement regarding the Monastery”;
(iv)on 7 September 1981 Archbishop Stylianos had received a letter from the Ecumenical Patriarchate in which the Archbishop and Fr J Kourtessis were asked to prepare a Constitution to be forwarded to the Patriarchate. In anticipation of that Fr J Kourtessis had prepared some drafts of a Constitution and he and Messrs Delligianakis, Polychronopoulos and Sakelaropoulos were to meet on 11 September 1981 to prepare the Constitution;
(v)on 14 December 1981 it was reported that the Constitution requested by the Ecumenical Patriarchate had been given to Archbishop Stylianos on 15 October 1981 for forwarding to the Patriarchate;
(vi)on 26 April 1982 it was reported that a letter had been sent to the Ecumenical Patriarch asking for an answer in regards to the progress of the discussions and the whereabouts of the Constitution for the Monastery.

[3] “Stavropegial” means to put a cross in place.

On 24 June 1982 Fr J Kourtessis executed an agreement whereby he declared that the property of the Community was to be designated as Stavropegial of the Ecumenical Patriarchate which was to henceforth exercise rights of ownership and possession.

The 1983 Constitution and the Stavropegial Monastery

On 22 August 1983 Fr J Kourtessis made a declaration that at a meeting of 2 March 1981 resolutions were passed for adopting the proposal of the Patriarchal deputation, that the Monastery be registered under the Religious Successory and Charitable Trusts Act and he further declared that at that meeting the proposed Constitution consisting of 46 articles was read and adopted. On 27 October 1983 he made a statutory declaration in support of an application for registration of the Monastery under the Religious Successory and Charitable Trusts Act that at the meeting of 2 March 1981 resolutions were passed to adopt the proposal of the Patriarchal deputation and a Constitution tabled at that meeting (a copy of which is annexed to the declaration).

In September 1983 the Ecumenical Patriarch and Holy Synod approved the constitution submitted for the Patriarchal and Stavropegial monastery of St John the Prodromos and Baptist of North Carlton. The written constitution (“the 1983 Constitution”) recites the decision of the Executive Committees of the Community and the Philoptohos to accept the proposal of a Patriarchal deputation with the consent of Archbishop Stylianos that the Community known as the Greek Orthodox Community and Parish of St John the Baptist and Prodromos of North Carlton be converted, as decreed by the Holy Synod, to the Holy Patriarchal and Stavropegial Monastery of St John the Baptist and Prodromos in accordance with the canons of the Orthodox Church in respect of stavropegial monasteries.

The provisions of the 1983 Constitution include:

· A statement that the aims of the monastery include the maintenance and propagation of the Greek Orthodox Christian faith and tradition as ordained by the Holy Seven Ecumenical Synods of the indivisible Christian Orthodox Church sanctioned and as interpreted by the Great Mother Christian Orthodox Church in Constantinople known as the Ecumenical Patriarchate (art.2(1)).
· Recognition of the Ecumenical Patriarch as the Ecclesiastical head of the monastery and that his name is to be commemorated in church services (art. 3).
· That real estate of or used by the monastery will vest in a committee of trustees under the jurisdiction of the Ecumenical Patriarchate with such committee being authorised to apply for legal recognition of the 1983 Constitution and the trusts contained in it by registration under the Religious Successory and Charitable Trusts Act 1958 (art.4).
· That a committee of trustees comprised of Jerotheos Kourtessis and the second to fifth defendants (Michael Nikolaou, Efstathios Sakellaropoulos, Nicholas Martakis and George Coutsouvelis) be responsible for property of the monastery and the trustees were to signify their acceptance of such appointment and their agreement to carry out the terms of their trusteeship under the document by attesting their signatures at the foot of the Constitution (art.5(3)-(9)).

· That property of (or used by) the monastery shall be under the jurisdiction of the Ecumenical Patriarchate and managed in accordance with the orders and directions of the Ecumenical Patriarchate and no property shall be sold, leased or exchanged or otherwise dealt with without the written consent of the Holy Synod of the Ecumenical Patriarchate (art.5(2)).

The 1983 Constitution also made provision for the monastery to be accountable to the Archbishop and Archdiocese but the Abbot (Jerotheos Kourtessis) was to report directly to the Ecumenical Patriarchate: art 2(5). As contemplated by the provisions of the 1983 Constitution (art 5(3)) the second to fifth defendants (and Jerotheos Kourtessis) signed at the foot of the document.

Registration of 1983 Constitution

The provisions of Part II of the Religious Successory and Charitable Trusts Act provide a statutory exception to the general rule that notations as to the existence of trusts affecting land are to be kept off the register maintained under the Transfer of Land Act. The origins of the provisions of Part II lie in the Successory Trusts Act 1878. The provisions were intended to provide a mechanism for the vesting of trust property in succeeding trustees without the need of a conveyance, transfer or assignment. The provisions of Parts I and III have their origin elsewhere. Part I is derived from the Religious Trusts Statute 1865 (28 Vic No.244) and Part III is derived from the Charities Procedures Act 1812 (UK) (“Sir Samuel Romilly’s Act”).

Section 33 enables the registration of heads of religious denominations, the registration of whom is recorded in the Denominational Register. Sections 9–15 of the Religious Successory and Charitable Trusts Act provide a procedure for applications to register religious or charitable trusts and for the registration of such trusts. These trusts once registered are recorded in the Register of Successory Trusts [The registration of the 1983 Constitution is recorded in folium 709 of the Register of Successory Trusts]. Sections 16 and 17 allow for the endorsement of certificates of title that lands are held subject to a registered trust and s.24 enables registered trustees to take transfers of land. Section 25 provides for the automatic vesting of trust property in succeeding trustees and s.26 obliges trustees for the time being of every registered trust to deal with property vested in them in such a way to ensure that it vests in their successors. Finally, ss.28 and 29 contain deeming and evidentiary provisions. As an exception to the rule that notations as to the existence of trusts affecting land are to be kept off certificates of title, the records maintained under the Religious Successory and Charitable Trusts Act enable persons to identify the registered proprietors of land when the certificate of title is endorsed with the statement that the land is held by the trustees for the time being of a registered trust.

On 19 October 1983 Archbishop Stylianos, as the registered head of the denomination known as the Greek Orthodox Church for the Archdiocese of Australia provided his consent to an application for the registration of the 1983 Constitution as a trust for religious and charitable purposes connected with the Greek Orthodox Church under the Religious Successory and Charitable Trusts Act.

On 27 October 1983 Fr J Kourtessis on his behalf and on behalf of his co‑trustees (the second to fifth defendants) made application for registration of the 1983 Constitution supported by a statutory declaration annexing a copy of the 1983 Constitution signed by Fr J Kourtessis and the second to fifth defendants. On 23 February 1984 the application was amended by deleting reference to the Church property as part of the property of the trust to be registered because at that time Fr J Kourtessis and the second to fifth defendants were not registered on the certificate of title. On 27 February 1984 the Registrar registered the 1983 Constitution in the Register of Successory Trusts and accorded it folium 709, with the title the Holy Patriarchal and Stavropegial Monastery of St John The Baptist and Prodromos Trust, recorded as a trust for religious purposes connected with the Greek Orthodox denomination. Upon registration the trust so registered was deemed to be a trust which might be properly registered under the Religious Successory and Charitable Trusts Act, ss. 12 and 28.

Thus in February 1984, upon the registration of the trust, the relations between the Community and The Greek Orthodox Church of Australia were formalised in the provisions of the 1983 Constitution. The last minute removal of references to the Church property as part of the property of the registered trust at the instance of the solicitors responsible for the application, Rennick and Gaynor, is explained in their reporting letters of November 1984 in which they advised that steps were continuing to bring that land and other parcels of land under the registered trust.

In January 1985 an application was made under s. 16 of the Religious Successory and Charitable Trusts Act for an endorsement to be made to the certificate of title for the land to the effect that the land was held pursuant to the registered trust. The statutory declaration in support refers to the survivors of the committee of trustees under the 1968 Constitution and thus the Registrar made a requisition of title noting they are not the trustees registered under the Act in February 1986 and Rennick and Gaynor requested a further statutory declaration in May 1986.

The application under s.16 of the Act, however, was not pursued because in July 1987 the surviving registered proprietors named as trustees under the 1968 Constitution (Jerotheos Kourtessis, Agnes Marmaras, Irene Miritis and Sevasti Eleftheriou) transferred the land to Jerotheos Kourtessis and the second to fifth defendants named as trustees under the 1983 Constitution. The transfer of 14 July 1987 was signed by Jerotheos Kourtessis and the second to fifth defendants as transferees who are described as the trustees for the time being of the Holy Patriarchal and Stavropegial Monastery of St John the Baptist and Prodromos Trust registered in folium 709 in the Register of Successory Trusts. The transfer having been made to Jerotheos Kourtessis and the second to fifth defendants pursuant to s.24 of the Religious Successory and Charitable Trusts Act on 6 August 1987 an endorsement was made to the certificate of title that the proprietors of the land were the trustees for the time being of the Holy Patriarchal and Stavropegial Monastery of St John the Baptist and Prodromos Trust registered in folium 709 in the Register of Successory Trusts. Immediately thereafter the solicitors responsible for the applications for registration of the trust and for the endorsement to the certificate of title advised the Registrar that the lastmentioned application was to be withdrawn in lieu of the registration of the dealings of July 1987.

Subsequent to the approval given by the Ecumenical Patriarch and Holy Synod of the 1983 Constitution, the Church property was in the period September 1983 to September 1989 used in a manner consistent with the provisions of that document:

(i)the name of the Ecumenical Patriarch was commemorated in religious services conducted in the church buildings;
(ii)the Community recognised the Ecumenical Patriarch as its ecclesiastical head;
(iii)religious services were conducted in the church buildings by clergy ordained and approved by the Ecumenical Patriarchate.

The School Company

On 13 September 1989 a company known as St John the Baptist Greek Orthodox Community, Monastery and School Ltd (ACN 007 303 648) ("the school company") was formed. The main reason for the formation of the company appears to have been to meet certain governmental requirements for education funding for the Community's day school. The Memorandum and Articles were signed by Jerotheos Kourtessis (a registered trustee) Vasilios Kourtessis, Nicholaos Armenis, Michael Nicolaou (second defendant and a registered trustee), George Coutsouvelis (fifth defendant and a registered trustee) George Poly (formerly Polychronopoulos), Peter Liveriadis, Efstatios Sakellaropoulos (third defendant and a registered trustee) and Basil Vassis.

The stated objects of the formation or establishment of the school company included the taking over of property "presently held pursuant to the trust filed on 27 October 1983 at the titles office of Victoria under the Religious and Charitable Trusts Successories Act of 1958 [sic] referred to in the Memorandum and Articles of Association as "St John's Monastery".

The Memorandum and Articles of Association of the school company were largely reflective of the provisions of the 1983 Constitution although provisions in the Constitution relating to the limited supervisory role of the Archdiocese were removed. The provisions of the Memorandum and Articles of the school company included:

(i)a statement of the aim of the monastery to be the practice of the Greek Orthodox Christian Faith as interpreted by the Ecumenical Patriarchate of the Great Christian Church of Constantinople although under the direct guidance and supervision of the Abbot for the time being in charge of the monastery;
(ii)power to undertake and execute any trust, the undertaking of which may seem to be in the interests of or for the benefit of the school company;
(iii)power of the Ecumenical Patriarchate or Holy Synod to direct the distribution of property of the school company upon its dissolution and making accounts of the company available to those bodies;
(iv)establishment of the monastery in accordance with the organisation provided for by the Ecumenical Patriarch in various protocols;
(v)the teaching of students of St Johns College in accordance with the Greek Orthodox Christian Faith and tradition as interpreted by the Ecumenical Patriarchate;
(vi)ratification by the Ecumenical Patriarchate of any successor to the founding Abbot (Jerotheos Kourtessis) and the appointment of outside clergy by the Ecumenical Patriarchate;
(vii)approval by the Ecumenical Patriarchate of rules for the management of the monastery;
(viii)recognition of the Ecumenical Patriarch as the Ecclesiastical head of the monastery and provision for his name to be commemorated in services;

(ix) the forwarding of accounts to the Ecumenical Patriarchate.

The school company was to be managed by a council of directors who comprised the initial members of the company thus including four of the registered trustees.

Abolition of Stavropegial Monastery

In 1989 the tensions between the Archdiocese and Jerotheos Kourtessis resurfaced with the latter accusing the Archdiocese of interference with the workings of the monastery.

In a telegram of 16 September 1989 from Ecumenical Patriarch Dimitrios to Jerotheos Kourtessis the latter was told that the Holy Synod has decided to abolish the monastery and that Kourtessis was suspended from duties for one year. By letter dated 25 September 1989 (protocol no.651) the Chief Secretary of the Holy Synod of the Ecumenical Patriarchate informed Jerotheos Kourtessis that the Holy Synod had decided to abolish the monastery and that it was to revert as a parish community within the jurisdiction of the Archdiocese. The reasons cited for the abolition of the monastery included the change of the monastery into a company, that is, "from an ecclesiastical organisation into a purely worldly organisation" and the alleged anti-canonical actions of Jerotheos Kourtessis, thus causing him to be suspended from all ecclesiastical services. Jerotheos Kourtessis was also informed of the directions that the name of Archbishop Stylianos was now to be commemorated in the parish community, that property titles of the monastery be transferred to the trustees of the parish community and that a constitution be prepared to safeguard such property.

These communications were followed by an announcement made by Ecumenical Patriarch Dimitrios on 28 September 1989 recording the decision of the Holy Synod that the monastery return to the status of a parish community within the jurisdiction of the Archdiocese and that Jerotheos Kourtessis be suspended from conducting ecclesiastical services for one year.

The Start of the Break

Not all of the directions made by the Holy Synod of the Ecumenical Patriarchate in September 1989 were considered by it to have been implemented. In October 1989 Assistant Bishop Ezekiel called on Fr J Kourtessis to undertake to obey those directions but Fr J Kourtessis replied by submitting his resignation and advising that the matter should be settled by the Archdiocese and the committee of management for the monastery.

In November 1989 the Holy Synod of the Ecumenical Patriarchate issued a further synodical decree confirming the decisions made by it in September 1989 and condemning the “anti canonical” behaviour of Fr J Kourtessis.

On 10 January 1990 resolutions were passed by members of the school company to amend the Memorandum and Articles of Association. The corporate constitution of the school company was amended by:

(i)deleting reference to the need for services to be conducted by canonical and validly ordained clergy recognised by the Ecumenical Patriarchate;
(ii)deleting the power of the Ecumenical Patriarchate or Holy Synod to deal with property of the school company upon its dissolution and the requirement that accounts of the school company be forwarded to those bodies;
(iii)deleting the need for the monastery to be organised in the manner provided for by the Patriarchal Decrees of September 1983 and September 1988;
(iv)deleting the requirement that any successor to the Abbot be ratified by the Ecumenical Patriarchate and deleting the power of the Ecumenical Patriarchate to appoint outside clergy;
(v)deleting the requirement that rules of management for the monastery be approved by the Ecumenical Patriarchate;
(vi)deleting recognition of the Ecumenical Patriarch as the Ecclesiastical head of the monastery and the requirement that his name be commemorated in services.

In February 1990 Fr J Kourtessis approached the Patriarchate of Jerusalem and requested “protection, shelter and spiritual subordination”.

In April 1990, after the amending of the Memorandum and Articles of Association of the school company, the registered trustees of the registered trust (Jerotheos Kourtessis and the second to fifth defendants) transferred six parcels of land (including the Church property) to the school company. The five registered trustees were named as transferor and are described in the transfer as "being the trustees for the time being of the Holy Patriarchal and Stavropegial Monastery of St John the Baptist and Prodromos Trust” registered in Folium 709. The consideration is expressed to be by virtue of incorporation of the transferee pursuant to s.66 of the Companies (Victoria) Code, which made provision for the formation of limited companies for charitable purposes.

In 1990 the tensions between the Archdiocese and Fr J Kourtessis over the refusal of the latter to comply with the decisions and directions of the Ecumenical Patriarchate made in September 1989 grew stronger and in September 1990 Bishop Ezekiel warned Fr J Kourtessis that unless a new constitution to give effect to the directions was not submitted then any future recognition from the Archdiocese would not be forthcoming.

Charges of anti‑canonical behaviour against Fr J Kourtessis and Fr V Kourtessis were referred to the Holy Synod of the Ecumenical Patriarchate and in March 1991 the Holy Synod defrocked both of them of the priesthood of the Greek Orthodox Church. The reasons cited for the defrockment include disobedience to the Archbishop and the Holy Synod by both of them. Father V Kourtessis also resigned from his "active services at the Holy Archdiocese of Australia" in a letter dated 8^th March 1991 to Bishop Ezekiel of Dervis.

The evidence shows that:

(a)in the period November 1966 to September 1983 and in the period September 1989 to February 1991 the name of the Archbishop was commemorated in religious services conducted in the church building;
(b)in the period November 1966 to February 1991 religious services were conducted by clergy who were ordained and approved by the Archdiocese and the Ecumenical Patriarchate;
(c)in the period March 1981 to September 1983 and in the period September 1989 to February 1991 the Archbishop was recognised as the Ecclesiastical Head of the Community and had ecclesiastical authority over the community;
(d)in the period November 1986 to February 1991 the name of the Ecumenical Patriarch was commemorated in services conducted in the church building, and the Community recognised the Ecumenical Patriarch as its ecclesiastical head.

"Incursion" of Jerusalem

In March 1991 Fr J Kourtessis and Fr V Kourtessis formed an alliance with the Greek Orthodox Patriarchate of Jerusalem.

In August 1991

(i)the members of the school company passed resolutions to further amend the Memorandum and Articles of Association of that company by substituting references to the Ecumenical Patriarchate with references to the Patriarchate of Jerusalem and in effect making the Patriarch of Jerusalem the ecclesiastical head of the monastery;
(ii)members of the school company resolved to transfer to the Patriarchate of Jerusalem property of the monastery, including the Church property, and a deed of agreement was executed between the school company and the Patriarchate of Jerusalem. The deed of agreement recited that the school company held property pursuant to the registered trust, that the company and the Patriarchate of Jerusalem had formed an association and that at a meeting of the school company's council on 1 August 1991 it was resolved to transfer property of the school company, including the Church property, to the Patriarchate of Jerusalem. The operative clauses of the deed included provision that upon transfer the Patriarchate of Jerusalem should hold such property "pursuant to the terms of any present trust for religious or charitable purposes" and that the Patriarchate of Jerusalem was to provide spiritual guidance for the Community. The deed was executed on behalf of the Patriarchate of Jerusalem by Bishops Isihios and Timotheos, Bishops of the Greek Orthodox Patriarchate of Jerusalem.
(iii)the school company transferred the Church property to the Greek Orthodox Patriarchate of Jerusalem. The consideration was expressed to be the resolution passed by the school company's council on 1 August 1991. The transfer was executed on behalf of the Patriarchate of Jerusalem by Bishops Isihios and Timotheos.

The transfer of 9 August 1981 was later registered on 19 March 1992 and the Patriarchate of Jerusalem became the registered proprietor of the Church property

The plaintiffs contend that from March 1991 to October 1993 the Church property was used in breach of trust because, contrary to the canon law of the Greek Orthodox Church:

(i)the Community recognised the Patriarch of Jerusalem and Bishop Isihios as its ecclesiastical head;
(ii)the names of the Patriarch of Jerusalem and Bishop Isihios were commemorated in religious services conducted in the Church property at various times since March 1991;
(iii)services were conducted by clergy that were not approved by the Archdiocese or the Ecumenical Patriarchate.

In July 1992 Fr J Kourtessis died at the age of 71.

In July 1993 a Greater and Supreme Synod was convened in Constantinople attended by the Patriarchs of Constantinople and Alexandria and by the heads of other Greek Orthodox church organisations representing the Greek speaking members of the Greek Orthodox Church. Patriarch Diodoros of Jerusalem was invited to attend but declined. The Greater and Supreme Synod was convened to consider charges of anti canonical conduct by Patriarch Diodoros of Jerusalem and Bishops Isihios and Timotheos of the Patriarchate of Jerusalem and it was resolved that:

· Bishops Isihios and Timotheos be deposed from the rank of Bishop.
· Unless Patriarch Diodoros withdrew from Australia (and other regions) by the feast of Christmas he would also be deposed from the rank of Archbishop.
The Community Company

Shortly after the meeting of the Greater Synod on 31 July 1993 the Patriarch of Jerusalem decided to withdraw from Australia.

By a deed of agreement dated 6 October 1993 the Patriarchate of Jerusalem agreed to transfer the land to the soon to be formed St John the Prodromos Greek Orthodox Community Limited (ACN 062 050 408) ("the community company"). Like the deed of 4 August 1991 the deed of 6 October 1993 provided that upon a transfer being made to the community company that company was to hold the land "pursuant to the terms of any present trust for religious or charitable purposes". The deed was executed by former Bishop Isihios.

On 22 October 1993 Fr V Kourtessis and others formed the community company. The memorandum of association is signed by Vasilios Kourtessis, Steve Kardamis, Spiros Politis, Jim Caras, John Deligiannakis, Michael Nicola (or Nikolaou) (second defendant and a registered trustee), Arthur Rigas, Dimitrios Ourelidis, Thomas Loupetis and Nikolaos Kourtessis.

The Memorandum of Association of the community company speaks of that company having objects connected with the maintenance and propagation of "the Eastern Orthodox Christian Faith" (see clause 2(a)). Neither the Memorandum nor the Articles of Association refer to the development of that religion in accordance with the Seven Ecumenical Councils or Holy Synods, nor is any reference made to what person or body has ecclesiastical authority over the association of persons represented by that company.

On 1 November 1993 the Patriarchate of Jerusalem transferred the land to the community company. The consideration expressed for the transfer was the deed of agreement of 6 October 1993. The transfer was signed on behalf of the Patriarchate of Jerusalem by former Bishop Isihios.

Subsequent to the decision of the Patriarchate of Jerusalem to withdraw from Australia, and since October 1993, Vasilios Kourtessis has been recognised by the Community as its ecclesiastical head.

In April 1994 the community company (the first defendant) made application for incorporation as an incorporated association under the Associations Incorporation Act 1981 and that application was granted on 30 June 1994.

The statement of purposes of the first defendant includes purposes connected with the maintenance and propagation of "the Greek Orthodox Faith ... the Holy Canons, its discipline ... and its customs and manners". Neither the statement of purposes nor the rules make specific reference to the development of that faith by the Seven Ecumenical Councils, although the reference to the Holy Canons is no doubt a reference to the canons adopted at the Ecumenical Councils (statement of purposes cl. 2(a)). The rules of the first defendant further provide, however, that the ecclesiastical head of the community represented by the first defendant shall be Vasilios Kourtessis (rule 23.1). The initial committee of management comprises Vasilios Kourtessis, Jim Caras, Spiros Politis, John Deligiannakis, Arthur Rigas, Dimitrios Ourelidis, Thomas Loupetis and one of the registered trustees of the registered trust, the second defendant Michael Nicola.

In October 1994 the first defendant made application for the issuing of a new certificate of title on the basis that there had been a change of name of the registered proprietor, that is, the community company, by that company becoming an incorporated association on 30 June 1994. As a consequence on 19 October 1994 a new certificate of title was issued for the Church property (volume 10216 folio 090) and the former certificate of title was cancelled on the same day (volume 4537 folio 235).

Plaintiffs’ Evidence

Most of the foregoing account was uncontradicted and made out on admissions made on the pleadings, under notices to admit facts and documents, in answers to interrogatories and by witnesses and, in particular, the detailed evidence of Father Elias Kentrotis in relation to the history, structure and canons of the Orthodox Church.

I will not set out the evidence of Fr Elias much of which is covered in the above summary. It is useful to refer to the evidence of two of the other witnesses called by the plaintiffs.

Emmanuel Harkiolakis, Bishop Joseph Arianzos ("Bishop Joseph"), said that he was an assistant bishop of the Greek Orthodox Church in Adelaide and an assistant bishop to Archbishop Stylianos. He was ordained as a deacon in Athens in 1979, as a priest in Crete in 1981 and as a bishop in Australia in 1989. He had lectured and published on religious topics and was completing a doctoral dissertation at the Sydney College of Divinity on the subject of the uncanonical incursion of the Patriarchate of Jerusalem into Australia. Bishop Joseph testified that the various autocephalous churches comprising the Orthodox Church each had their own territories but the Ecumenical Patriarchate of Constantinople had for many centuries been responsible not only for its own territory but for other regions including the "barbarian" or "diaspora" lands (such as Australia), that is, countries which did not have their own autocephalous church. Bishop Joseph referred to the canonical system and said that the Church was hierarchical with the bishop as the central and total authority – the archbishops and patriarchs were all bishops with administrative positions. He outlined the line of authority in Australia from the Patriarch and the Holy Synod to the archbishop, assistant bishops, priests and deacons. Bishop Joseph said that Australia became a metropolis or diocese in 1924 and an archdiocese in 1959, with a constitution and regulations. He said that it was a canonical obligation to commemorate in the religious service the name of the person in authority: thus the priests and bishops were bound to commemorate the name of the archbishop and the archbishop was bound to commemorate the name of the patriarch. Bishop Joseph said that as a matter of ecclesiastical law a non-ordained person could not perform a religious service and a defrocked priest was a layman who was not permitted to do anything as a clergyman. Extracts from the relevantly applicable canons were in evidence and the book "The Rudder" was also produced. Bishop Joseph said that no particular flock had the right to select its own ecclesiastical head – only the Holy Synod of the bishops could do that.

Bishop Joseph explained that the ancient patriarchates (apart from Rome) comprised Constantinople, Alexandria, Antioch and Jerusalem and the "new" patriarchates comprised Russia, Serbia, Bulgaria, Romania and Georgia (the newest one). He said that outside the boundaries of the patriarchates, in the diaspora, it was tolerated but not accepted by the Church that people could belong to a church reflecting their ethnic origin. For example, people in Australia of Syrian and Lebanese descent, or Arabic speaking people, might belong to a church which recognised the Antiochan patriarchate and conducted services in Arabic. He said that this had happened in this century and that it was a central matter to be fixed up by a future Holy Synod. However, canonically, Australia had always been within the jurisdiction of the Ecumenical Patriarchate of Constantinople (with two historical qualifications relating to the late nineteenth century and to the period 1908 to 1924 which are irrelevant for present purposes). Bishop Joseph agreed that there were also some "independent orthodox churches" in Australia which did not recognise any of the patriarchates but he said that these churches were not recognised in any of the Orthodox Churches in the world – they were "not only self-appointed, but uncanonical as well".

Mr Athanassios Angelides, the fifth plaintiff, testified that he was a member of the Community from the late 1950s until about 1971. For his donations and services to St John's he had received a medallion and a certificate from Fr J Kourtessis. The medallion had on one side the picture and name of St John's and on the other side a reference to the Ecumenical Patriarchate and the Archdiocese of Australia and New Zealand. The certificate, when translated from Greek, read:

"Holy Archdiocese of Australia, Greek Orthodox Community of St John Prodomos, 998 Lygon Street, North Carlton Victoria. A letter of appreciation. Having taken into consideration your zeal and dedication to the Holy Orthodox Faith and to our Church, also your sincere interest and the great care and the many services rendered. To the honourable Mr Angelides Athanassios to the Holy Archdiocese and our Greek Orthodox community, we award this memorable gold medal of our community. This was issued as proof and confirmed by our own signature and the seal of our community, Melbourne, 7 February 1970. The Rector of the church Jerotheos Kourtessis, archimandrite of the Ecumenical Throne, and President John Moutafis, Archon Depuduntos of the Great Church of Christ."

Defendants' Evidence

The following witnesses gave evidence on behalf of the defendants: Fr Vasilios Kourtessis, Mrs Theodora Lukas, Mr George Coutsouvelis, Mr Efstathious Sakellaropoulos, Mr Spiros Politis and Mr John Deligiannakis.

Fr Vasilios Kourtessis said that he was the "Reverend of the North Carlton Community" and that the late Fr Jerotheos Kourtessis was his uncle. He came to Australia at the age of 22 in March 1964 at the request of his uncle and the Philoptohos. He assisted the church and the community in a number of roles and decided to become a priest. At the time of his arrival the land had been bought and the construction of the Church had commenced. A plate was passed around in every church service to collect donations to repay the loan and for building costs. His uncle also handed out money boxes and when doing so said that the money would be used "to build your Church" or "to build a church for this Community". Substantial amounts were raised through the money boxes. Fr V Kourtessis said that he recalled the adoption of the 1968 Constitution but, as far as the 1983 Constitution was concerned, there was never any meeting of the Community or a Committee of the Community or the Philoptohos to approve it.

Mrs Theodora Lukas, who is and has been a member of the Community from the beginning, came to Australia in 1923 and was involved in the formation of the Philoptohos in 1957. The members were all women. The Philoptohos did not have a written Constitution but it was created for charitable purposes and in particular to assist Greek migrants who came to Australia. Mrs Lukas gave an account of the setting up of the Philoptohos in East Melbourne, the coming to Melbourne of Fr Jerotheos Kourtessis and the developments in the Carlton area, the details of which need not be recounted. Mrs Lukas said that by the end of 1958 there were two separate bodies in the Greek community in the Carlton area, although they often met together: the Community which was concerned with establishing and building a new church in Carlton and with charitable works and the Philoptohos. In 1962 Fr Jerotheos Kourtessis called a meeting of both bodies and announced that he had found land where "we could build a big beautiful Church for our community".

Mrs Lukas said that in 1962 the Community and the Philoptohos had good relations with and accepted Archbishop Ezekiel as their spiritual head and that they were also aware that they "needed [him] as a figurehead to stamp marriage certificates and birth registrations and the like". Mrs Lukas agreed under cross-examination that by "figurehead" she meant that she accepted him as the head of the Church in Australia under the ecclesiastical authority of the Ecumenical Patriarchate of Constantinople. Mrs Lukas deposed that it was always said in fundraising activities that the money was being collected to buy land or build a church for the Community and it was never suggested that the Church property would be controlled by the Archbishop, the Archdiocese or anyone other than the Community itself.

Mr George Coutsouvelis (the fifth defendant) said that he had attended St John's since the early 1960s. He said that Fr J Kourtessis frequently made statements in the course of fundraising for the building of the new Church that the church was the community's church or that it belonged to the Community and to the Philoptohos or was for the use of the Greek Community of North Carlton. Mr Coutsouvelis said that he accepted Fr V Kourtessis as the priest of St John's and in evidence he otherwise distanced himself from the "ecclesiastical dispute".

Mr Estaphios Sakellaropoulos, the third defendant, said that he had been a member of the Community since 1960. He confirmed the broad historical account which others had given of the founding of St John's and the new Church.

Mr Spiros Politis said that he became a member of the Community in about 1963, that he was still a member and was the President of the first defendant. He, like other witnesses, confirmed that his purpose in making donations was so that the Community would purchase the land and build the Church, that the Archbishop was to provide spiritual guidance but not to control the way in which the Church property was to be used by the Community. Mr Politis said that, although St John's opened in 1968, it took 20 or more years to finish it (the woodwork, icons, internal finishes etc) and that this was all paid for by contributions of the people over that time.

Mr John Deligiannakis said that he came to Australia in 1950 and joined the Greek Orthodox Community of Melbourne, then centred in East Melbourne in about 1955. He met Fr J Kourtessis in about 1957 through his father-in-law. His mother-in-law was a foundation member of the Philoptohos. He gave a somewhat more detailed account of the early history of the Community but along the same lines as other witnesses. He became a member of the Community Committee in 1963 and remained a committee member for about 20 years. He became a trustee when his father-in-law Mr Moutafis died. He said that the land was bought and the Church was built for the Community and not for the Archdiocese or the Greek Orthodox Church. He also gave a potted history of the ecclesiastical basis of the Church in Australia which he said he had been taught and I mean no disrespect to him in saying that I am unable to accept his version where it differs from the evidence provided by the plaintiffs from historical, canonical and documentary sources and by the evidence of Bishop Joseph.

In his witness statement Mr Deligiannikis said (and a number of the defendants’ witnesses testified to the same effect):

“A further reason why I had no objection to Archbishop Ezekiel acting as the spiritual head of the Committee’s Church was because he had stated, quite openly, that he was not interested in acquiring property for himself or the Archdiocese, and that he wanted Greek Communities to establish Churches, without the Archdiocese having any control over those Communities other than being recognised as its spiritual head… As a consequence of the statements made by Archbishop Ezekiel the Community was not at all concerned at that time about aligning the Church with Constantinople. The Church was opened in about 1966 or 1967.
I was a member of the Community Committee when it was decided to have a Constitution put into writing. Prior to the 1968 constitution being produced I was aware of a handwritten document which the later Father Jerotheos Kourtessis referred to as a ‘guiding document’. The Committee had no input whatsoever into this document. This document has not been located.
The late Father Jerotheos Kourtessis first discussed the idea of a written constitution with the Committee in about 1967. Because of the very dominant role the late Father Jerotheos Kourtessis played in the Community, the Community would usually carry out his wishes. If anyone suggested doing something in a different way, or raised some objection, he would often say: ‘Okay you do it I’m going home’.
The late Father Jerotheos Kourtessis informed the Community Committee that the purpose for having a written Constitution was to enable it to be registered and to have the Trust registered under the Charitable Trusts Act. In order to do that, it had to be translated into English. The Community did not have the money to get the document translated and although a number of people promised to provide translations, none was ever produced. I had not seen an English translation of the 1968 Constitution until this proceeding was commenced.
I would not have played any part in raising money to buy the land and to build the Church if I had thought that the property could be taken by the Archdiocese or the Archbishop.
It was my understanding at the time that I helped raise money to buy the land and to build the Church that the Community would always retain the right to use its property for the purposes that it saw fit provided that those purposes include the conduct of Orthodox Christian religious services. The Church itself is now regarded by me and by the Community as a Holy Place and is to be treated as such.”

The Plaintiffs' Submissions

The plaintiffs submitted that the following relevant propositions arose from the authorities:

(i)If there was no formal trust deed in existence at the time of purchase of the land on trust or erection of the church, contemporaneous evidence of the intention and conduct of the donors of the trust property and of usage of the trust property was admissible to ascertain the objects of the trust.[4]
(ii)Where a church building is held on trust for purposes then, prima facie, the religious purposes of the donors/founders constituted those purposes. Further, the form of doctrine and worship intended was that professed by the donors/founders.[5]
(iii)The alteration of those religious purposes is prohibited unless there is institutional or constitutional power for the change.[6]
(iv)Where a group of persons in Australia of a particular ethnic origin proclaim that they are members of a church with an identical name of an overseas church which services their people, it is presumed that they are members of that overseas body or that the canon law and discipline of their church is, mutatis mutandis, that of the overseas body.[7]
(v)Where there is a church which has uniformity of worship any charitable trust governing the church building will generally carry with it the requirement to celebrate the liturgy by recognised celebrants and essentially in accordance with the rules of the church.[8]
(vi)The trustees of a charitable trust have implied authority from the donors of trust property to prescribe accurately in writing the objects and terms of the charitable trust, provided such prescription is consistent with the general objects of the original donors.[9]

[4] Warburton & Morris, Tudor on Charities, 8^th ed 1995, pp.168-172, Attorney General v Pearson (1817) 3 Mer 353 [36 ER 484] and Popov v Drenchev (unreported, Murray J., 11 April 1986).

[5] Craigdallie v Aikman (1813) 1 Dow. 1, 3 ER 1; and (1820) Bligh 529, 4 ER 435; A-G v Pearson (1817) 3 Mer. 351, 36 ER 135 esp 154; Milligan v Mitchell (1837) 3 My & Cr 72, 40 ER 852 at 854; Broom v Summers (1840) 11 Sim 351, 59 ER 909; A-G v Welsh (1844) 4 Hare 572, 66 ER 775 at 778-80; A-G v Munro (1849) 2 DeG. & Sm 122, 64 ER 55 esp 74 and 77; A-G v Murdoch (1852) 1 DeG M&G 86, 42 ER 484, 488-9, 493 495-7; A-G v Calvert (1857) 23 Beav. 248, 53 ER 97, 100-101; General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515 at 612-3, 617-8, 620, 626-7, 629, 643-5, 648, 666 and 704; A-G v Grant (1976) 135 CLR 587 at 600-603; Popov v Drenchev (supra).

In relation to their alternative submission involving the nature of the “Greek Orthodox Faith” the defendants, as I understood it, attempted to put a number of contentions that the territorial jurisdiction in Australia of the Ecumenical Patriarch and the Archbishop was either “not a matter of faith” or somewhat nebulous in historical terms or not part of the terms of the charitable trust or not “fundamental” to the Greek, or Eastern, Orthodox faith.

The defendants contended that the plaintiffs had failed to prove any breaches of the charitable trust. In relation to the alleged breaches constituted by the provisions of, or the changing of provisions of, articles of association and like documents, it was submitted that the court should look rather at the use to which the Church property had been put and not to the contents of documents. A similar submission was made as to the various transfers of legal title to the Church property. The defendants next submitted that it was not a breach, in Australia, of a charitable trust for the purposes of the Greek, or Eastern, Orthodox Church to commemorate the name of a Patriarch other than the Ecumenical Patriarch or not to recognise, or commemorate the name of, the Archbishop of the Archdiocese of Australia or, in effect, to practice the religion of the Orthodox Church or faith independently of the authority of the Archdiocese. The defendants submitted overall that the various breaches alleged by the plaintiffs were not breaches of any term of the charitable trust upon which the Church property was held, however the purposes of that trust might be characterised. The breaches alleged related to “political” and “territorial” matters which were not fundamental to the “Orthodox Faith” either generally or, in particular, in this country having regard to the history of the church in Australia.

The nature of the charitable trust

Given that it is common ground that the Church property is held and has at all relevant times been held pursuant to a charitable trust, the first question to be determined is the nature of the objects or purposes of that charitable trust. Because there was no trust deed or other express declaration of trust, it is necessary to have regard to contemporaneous evidence of or indicating the intention of the donors of the trust property and of usage of the trust property.

It is, I think, simply to state the obvious that the prime intention of the donors and founders was that the Church property be used for the specific purpose of a Greek Orthodox Church. The evidence shows that the land was acquired for this purpose and that a building was erected on the land for this purpose. The evidence further shows that the church building, once erected, was used for this purpose. It must therefore follow, it seems to me, that the charitable trust by which the Church property was held was one solely for the advancement of religion, that is to say for the advancement of the Greek Orthodox Church or religion – unless it can be said (as the defendants contend) that the original trust of the property was formed also for other charitable purposes. In my opinion, the evidence does not support this contention of the defendants. While the evidence shows that the Philoptohos was instrumental in the foundation of the Community and the erection of the church, the evidence does not show that the property was acquired or the church building erected to serve, even in part, the philanthropic purposes of the Philoptohos. Nor does the evidence show that the property was acquired or the church building erected to serve any purposes of the Community other than the religious purposes of the Community, namely, the purposes of conducting the ritual and other religious activities of the Greek Orthodox Church thereon and therein. It is true that the evidence of oral statements at the time shows that money was collected to establish a church “for the (Carlton) Community” but the defendants did not seek to contend (no doubt advisedly) that there was thereby a trust for the Community but rather a trust for the general charitable purposes of the Community. The evidence as to the contemporaneous oral statements to my mind simply supports the conclusion that the trust was for the religious purposes of the Community, namely, the establishment and conduct of a Greek Orthodox Church for use by that Community. As to the evidence adduced from the defendants’ witnesses to the effect that those making donations for the building of St John’s were assured both that the church would “belong to the Community” and that the Church (in the institutional sense) and the Archdiocese would not own or manage the Church property, I do not consider that that evidence detracts from the conclusion that the charitable trust was a trust for the purposes of the Greek Orthodox Church. Rather, the evidence indicates that it was then intended, in lay terms, that the Community should control and manage the Church property but it does not show that such control and management was to be for purposes other than the advancement of the religious purposes to which I have referred.[10] Of course, the legal device chosen to retain that management and control was the appointment of persons from within the Community and the Philoptohos as trustees of the charitable trust and hence as registered proprietors of the Church property. This analysis is supported by reference to the intent disclosed in the terms of the 1968 Constitution, in particular those terms dealing with the trustees and with property (see para [36] above).
[10] Cf. Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56,69.

In order to determine whether the various acts or the conduct of the trustees impugned by the plaintiffs constituted breaches of the charitable trust, it is necessary to consider whether those acts were or that conduct was inconsistent or incompatible with the purposes of the trust or the “terms” of the trust. The plaintiffs in essence contend that once it is found that the purpose of the charitable trust is the advancement of the Greek Orthodox Church or religion, then any uncanonical conduct in relation to or affecting the use of the Church property is contrary to the purpose and the terms of the trust. The defendants’ stance is that even if the conduct or usage was uncanonical (which in many respects they did not challenge) it was not proscribed by any part of the trust purpose or trust terms because, in substance, no fundamental or essential doctrine or rule of the Greek Orthodox Church or faith had been transgressed and nothing more was comprehended within the terms of the trust.

In my opinion, there is relevant and cogent contemporaneous evidence which supports the plaintiffs’ submissions as to the contents of the trust purpose or the terms of the trust in that sense. I will assume, without deciding, that the 1963 Constitution should be disregarded because there is no evidence of its adoption although there is some strength in the submissions at para [99] above. The foundation stone of St. John’s (see para [33]) demonstrates generally the founders’ recognition of the ecclesiastical jurisdiction of the Ecumenical Patriarch and the Archbishop of the Archdiocese of Australia.[11] The 1968 Constitution, adopted in the same year as the opening of the church, contains an express definition of the “Orthodox Christian faith and tradition” as being that developed by the Holy Synods and interpreted by the Ecumenical Patriarchate and also contains clear statements recognising the ecclesiastical authority of the Archdiocese under the control of the spiritual and ecclesiastical jurisdiction of the Ecumenical Patriarchate (see para [36] above). The 1968 Constitution explicitly required that the clergy of the Community commemorate the name of the Archbishop of Australia and New Zealand and that the Community sustain the faith, laws, constitution, discipline, customs, rules and regulations of the Archdiocese and ensure that services be performed only by regularly ordained priests approved and recognised by the Archdiocese, and provided that the appointment and dismissal of such priests should lie with the Archdiocese. There was virtually uncontradicted evidence that all of these matters enunciated in the 1968 Constitution were fundamental elements of Greek Orthodox Church doctrine and practice but, in addition, the 1968 Constitution throws light upon the intention of the donors and founders and shows that it was intended that the trust extend to and not deviate from these elements.[12]
[11] Cf. Milligan v Mitchell (1837) 40 ER 852, 854.
[12] See Free Church of Scotland v Overtoun [1904] AC 515, 612-3, 617; A-G v Clapham (1855) 43 ER 638, 652.

The use of the Church property from 1968 until the defrocking of Fathers J and V Kourtessis in 1991, insofar as it relates to the conduct of ritual by an ordained priest[13] and the recognition of ecclesiastical authority and the commemoration of names in such ritual (see para [67] above), is also confirmatory of the character and content of the trust purposes.
[13] Cf.A-G v Munro (1849) 64 ER 55, 75-6; A-G v Murdoch (1852) 42 ER 484, 488-9.

Breaches of charitable trust

In Wylde v Attorney General for New South Wales[14] the Supreme Court of New South Wales had held that the practice of certain ceremonies in churches of the Church of England in New South Wales were breaches of the charitable trusts for the purposes of the Church of England upon which those churches were held. On appeal to the High Court, Latham CJ and Williams J (the statutory majority) varied the order below only so far as necessary to confine the injunction granted to the particular breaches of trusts proved and otherwise the appeal was dismissed. Rich and Dixon JJ would have allowed the appeal. A number of the bench expressed unhappiness at a civil court having to decide such issues at all – a sentiment with which one can only agree. Latham CJ said (at 270):
[14] (1948) 79 CLR 224.

“It is contended, however, that the church is a voluntary association and that a breach of the rules of the church cannot properly be described as a breach of trust… [he referred to the position of a club]… The case, however, is quite different where property has been given in trust for the purposes of a particular church the doctrine and ritual of which is ascertainable.”

Latham CJ (at 270-71) referred with approval to what Jordan CJ had said in the Full Court.[15]
“At the hearing of the suit, the onus will be on the informant to make good his allegations; but there is nothing in the information, or in such of the documents referred to in the schedule of points of law as have been relied upon in argument, which shows that it will then necessarily appear that the matter complained of is only a permissible variation of a ceremony provided for by the rules governing the church, or a mere irregularity in the performance of such a ceremony, capable of being dealt with and if thought fit adopted and approved by a church authority provided by its rules, so that its authorisation would prevent the user complained of from constituting a breach of trust. If authority is required for the proposition that the court will intervene by injunction to restrain such a breach of trust if established, it is supplied by such cases as Milligan v Mitchell: Attorney-General v Munro; Attorney-General v Murdoch. There are no ecclesiastical courts of law in New South Wales, and hence doctrinal questions, if they have to be determined for the purposes of litigation, must be determined by the ordinary courts of justice.”

Latham CJ (at 271) went on to say:
“I have given my reasons for my opinion that the Church of England in New South Wales, so long as it is a Church of England, is bound to observe the ritual as well as the doctrine, prescribed by the Book of Common Prayer, and that the divergences therefrom proved in this case are not ‘permissible variations’ of ceremonies, or ‘mere irregularities in the performance’ of ceremonies which can be adopted or approved by the Church. In the Free Church Case, the Privy Council applied what was said in Craigdallie v Aikman, where it was held that the use of church property was for purposes other than worshipping in accordance with the doctrine for the maintenance and furtherance of which trust property was given constituted a breach of trust. The Lord Chancellor said in delivering the judgment of the Privy Council: ‘You’ (i.e. the court) ‘may direct that land and those buildings to be enjoyed for the purposes to which they were originally directed.’ Accordingly, in my opinion Roper CJ in Eq. was right in holding that breaches of trust have been established.
It was finally contended for the defendants that there has been a long-continued and accepted practice of altering the forms of service as laid down in the Prayer Book and that the Court should for this reason exercise its discretion by abstaining from giving any of the relief claimed. In the State of New South Wales there are no ecclesiastical courts and a member of a church complaining of breaches of trust, as in the present case, must resort to the civil tribunal. There are obvious objections to the determination of questions of doctrine and ritual by a civil court. But, as pointed out in the Free Church Case, no other remedy is available in the absence of the ecclesiastical courts which are associated with the establishment of a State religion. If a plaintiff comes into a court of equity and establishes a breach of a religious trust his only method of enforcing the trust in this country is to obtain a decree from a civil court. As Lord Halsbury L.C. said in the Free Church Case: ‘there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another.’ In my opinion no reason has been shown for refusing to afford the only remedy which can prevent the continuance of the breaches of trust…“

[15] ((1945) SR (NSW) 83, 99-100).

Latham CJ had earlier stated (at 262-3) that it was not for the court to determine the soundness of any particular doctrine or the wisdom of a particular ritual, nor was it proper for the court to distinguish between what was important and unimportant in a matter of doctrine or ritual where property had been given in trust for a particular church which could be identified by the doctrines in association with which ritual was prescribed.

Williams J agreed for the most part with Latham CJ, stating (at 310-11):

“The purpose of erecting a church is to provide a building for public worship. If it is a fundamental rule of the Church of England that the public worship of that Church shall be conducted in a particular order and form, then the conduct of public worship in a church of that Church otherwise than in accordance with that order and form is not a lawful service of the Church of England and is a misuse of the church. The church is not being used for which it was erected. The misuse may be restrained by an appropriate injunction (Milligan v Mitchell; Attorney-General v Welsh; Attorney-General v Murdoch. The court has a discretion and would only grant an injunction in respect of substantial deviations or variations from the order and form in the Book of Common Prayer. But it cannot be said that the deviations and variations from the proper order and form of administration of Holy Communion complained of in the Red Book are not substantial.”

However, Rich J considered, inter alia, that the particular ceremonies alleged to constitute breaches of trust had not been shown to be deviations from any fundamental elements of Anglican worship or liturgy “embodied in or deemed to be written into the trusts” and said (at 274-5):

“If that were the case it would follow no doubt that, although a service is conducted by a duly consecrated bishop or duly ordained and licensed clergyman of the Church of England for members of that Church, a variation of or departure from the strict order of the Prayer Book has this effect. But unless substantial compliance with or adherence to the Book of Common Prayer is part of the purpose of the trust, it is impossible to treat the variations from the rubrics found in the present case, as amounting to a breach of trust.
No case was cited to us, and I know of none, which has ever decided that a deviation of ritual in the Church of England constitutes a breach of trust.”

I note his Honour’s reference to the conduct of a service by a duly ordained and licensed clergyman – which may be contrasted with the facts of the present case.

Dixon J, like Rich J, considered that the decree went beyond and outside the administration of charitable trusts whilst accepting (at 289-90) that “[u]ltimately of course the question whether strict adherence to the formularies and ceremonies of the church is involved in the performance of the trusts of property must depend on the trusts themselves. These are to be ascertained from the trust instruments and from an examination of the history, doctrines and organisation of the community or body whose religious purposes they serve.”

The defendants referred to a Saskatchewan case of Dwirnichuk v Zaichuk[16] in which emigrants to Canada of the Greek Orthodox faith had organised a Greek Orthodox church and erected a church building but the congregation had never submitted itself to the jurisdiction of any particular branch of the Church. The priests concerned were ordained and of good standing. They were aligned with a movement to found a Ukrainian branch of the Church. Brown CJKB noted that jurisdictional questions in the Church in the United States and Canada were then in a “state of chaos”. He held in those circumstances that it was the right of the majority of members to select such priest as they saw fit provided he was “in good standing in the Greek Orthodox faith”.
[16] [1926] WWR 508.

However, that case may be readily distinguished from this case. The defendants conceded that in this case the evidence showed that for most of its history this church and congregation had operated as part of the Greek Orthodox Archdiocese of Australia. Furthermore, how can it be said that Father Vasilios, a defrocked priest, is a priest “in good standing in the Greek Orthodox faith”? The defendants were unable to satisfactorily answer this question.

The defendants’ submissions that no breaches of trust had been shown depended for their success to a very great extent upon the acceptance of their propositions as to the nature of the purposes of the charitable trust. If, on the other hand, Church doctrine and practice, or at least those canons of the Church to which particular reference was made, are fundamental elements of the Greek Orthodox Church or faith and if the trust is one for the purposes of that Church or faith, it follows that there have been some clear breaches of trust.

In my opinion, the plaintiffs have established that breaches of the charitable trust have occurred and are continuing in that the Church property has been used or permitted to be used by the defendants since 1991 for the conduct of services contrary to the canons of the Church:

(a)by a defrocked priest, that is, a person no longer recognised or approved as a priest by the Archdiocese or the Church as a whole;
(b)in which the name of the Archbishop has not been commemorated.

I note that the breach of trust constituted by the conduct of services on the Church property by a defrocked priest has been “entrenched” by the community company’s constitutional provision that Vasilios Kourtessis is the ecclesiastical head of the Community. Indeed, the rules of the first defendant provide that “Reverend Vasilios Kourtessis” shall be “the Rector of the Community for life” (cl. 23.3(a)).

The rejection of the ecclesiastical jurisdiction of the Ecumenical Patriarchate of Constantinople and of the fundamental hierarchical nature of the Greek Orthodox Church is also involved in the use of the Church property constituted by the specific breaches referred to above. I consider that the other breaches of trust alleged by the plaintiffs have also been made out (see para [106] above) but it is unnecessary to set them out again.

Relief

The defendants conceded that if the alleged breaches of trust were established it would necessarily follow that “members of the community” had participated in them. The plaintiffs provided detailed written submissions as to the participation of each of the defendants in the said breaches of trust. The defendants did not seek to contest these submissions by the plaintiff and I am satisfied that they are correct. The defendants accepted that if the Court reached this point it was necessary for a new trustee or trustees to be appointed in place of the existing trustees and for the Church property to be vested in the new trustee or trustees. The defendants accepted that the new trustee or trustees should be an entity or persons who had not participated in the breaches of trust if so found to have occurred but that a new community entity to be formed should be preferred to the third plaintiff.

The plaintiffs on the other hand submitted that it was appropriate to appoint the third plaintiff, the Greek Orthodox Archdiocese of Australia Consolidated Trust, as the new trustee and to make the following declaration and orders:

“A. A declaration that the land (being the land described in certificate of title volume 10216 folio 090) and the church buildings thereon (including the articles contained therein referred to at F below) are held by the First Defendant upon a religious charitable trust having as its objects the maintenance and propagation of the Greek Orthodox faith through the Greek Orthodox Church of Australia as recognised and interpreted by, and under the jurisdiction and authority of, the Archdiocese of the Greek Orthodox Church of Australia and the Ecumenical Patriarchate in Constantinople (Istanbul).
B.An Order that the First Defendant be removed as trustee of the said trust.
C.An Order that the Third Plaintiff be appointed as trustee of the said trust.
D.An Order that the First Defendant transfer the title to the land to the Third Plaintiff, and that the Sixth Defendant amend the Certificate of Title accordingly.
E.An Order that the names of the Second to Fifth Defendants be removed as the surviving registered trustees of the Holy Patriarchal and Stavropegial Monastery of St John the Baptist and Prodromos in folium 709 of the Register of Successory Trusts kept pursuant to the Religious Successory and Charitable Trusts Act 1958.
F.An Order that the First Defendant vacate and deliver up possession of the land and the church buildings thereon, including all fixtures, fittings, ornaments, iconography, relics and such other articles used in connection with religious services conducted in the said church buildings, to the third plaintiff.
G.The Defendants pay the Plaintiffs’ costs of the proceeding, including reserved costs.”

In addition, the third plaintiff offered an undertaking not to sell, lease, mortgage or encumber the Church property without first obtaining a Court Order.

The defendants’ counter-proposal was expressed as follows:

“… If a breach of trust has occurred, and it is regarded as appropriate to transfer the property from the current trustee who has committed that breach of trust, it does not follow that an entity, which is incorporated in New South Wales, ought to be the appropriate trustee. The position suggested by the Defendants… is as follows:
(a)a new Association be incorporated, under the Associations Incorporation Act 1981 (Vic);
(b)the new Association adopt as its statement of purposes Article 2 of the 1968 Constitution, being the objects of the religious and charitable trust;
(c)the new Association adopt as its rules the remainder of the 1968 constitution, including the consequential amendments made to the 1968 constitution, which simply clarify ambiguous wording, or give effect to the role of the new trustee;
(d)the property be conveyed to the new Association, to be held on trust for the purposes specified in Article 2;
(e)the Association be registered pursuant to the Religious Successory and Charitable Trust Act 1958 (Vic);

4.It is proposed that the number of members of the Committee of Management of the new trustee be 5. Under the 1968 Constitution the number of trustees was 5. The proposed members are set out in Article 8.7, and comprise:
(a)a representative of the Archdiocese;
(b)two representatives of the Philoptohos; and
(c)two representatives of the Community.

5.Under the Defendants’ proposed scheme, the Archdiocese will have far greater input into the management of the trust than was originally the case, as it will have its own representative as a member of the Committee of Management.”

The solution proposed by the defendants comes, I think, too late. It may well present difficulties of implementation and is fraught with the risk of perpetuating disharmony and disputation concerning the Church property and its use between the Archdiocese and members of the Community. The defendants presented a lengthy set of rules, based (ironically) on the 1968 Constitution, which they proposed should be adopted by the new Association to be incorporated. I think that it is inappropriate that the Court become involved in the settling of such a document which goes beyond matters concerned with the protection of the charitable trust.

The third plaintiff is a suitable entity to guard and protect the use of the Church property for the purposes of the charitable trust and there is no reason to think that the third plaintiff’s appointment will be prejudicial to the interests of the Community, other than to those interests which expressed themselves in the breaches of trust which were committed. The possibly reduced input of even a reformed Community and Philoptohos in the direct management and control of the Church property, while regrettable, is a consequence of the breaches of trust which have occurred under such a regime. The third plaintiff is best suited to administer the trust in the circumstances prevailing.[17]
[17] See Mendelssohn v Centrepoint Community Growth Trust [1999] 2 NZLR 88, 97.

I conclude that, upon an undertaking by the third plaintiff that it will not sell, lease, mortgage or encumber the Church property or any interest therein, or agree to do so, without an order of the Court, the declaration and orders sought by the plaintiffs should be granted. Prima facie costs should follow the event.

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CERTIFICATE

I certify that this and the 57 preceding pages are a true copy of the reasons for judgment of Mandie J of the Supreme Court of Victoria delivered on 12^th October 2000.

DATED this 12^th day of October 2000.

__________________________
Deborah Mandie
Associate to Justice Mandie

[2000] VSC 12

12 October 2000