Attorney-General v St John the Prodromos Greek Orthodox Community Inc (No 2)

[2000] VSC 454

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:	27 October 2000
DATE OF JUDGMENT:	3 November  2000
CASE MAY BE CITED AS:	A-G v St John Greek Orthodox Community Inc (No.2)
MEDIA NEUTRAL CITATION:	[2000] VSC 454

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Practice and Procedure – costs.

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

HIS HONOUR:

1. This judgment is concerned with the question of the costs in this proceeding.

1. The plaintiffs, by which I mean the second, third and fifth plaintiffs, seek an order for payment of their costs by the first, third, fourth and fifth defendants.  On the argument as to costs there was no representation on behalf of the first, third and fourth defendants and Mr Nugent of counsel appeared on behalf of the fifth defendant only. Mr Nugent submitted that there should be no order as to costs against his client, the fifth defendant.  It is clear that an order for costs must be made against the first defendant and I have ordered accordingly.  I now consider the position as against the third, fourth and fifth defendants.

1. I should briefly refer to a little relevant history affecting this application.  At the commencement of the trial Mr Nugent announced his appearance for the third, fourth and fifth defendants.  At page 249 of the transcript he corrected this announcement by indicating that he also appeared for the first defendant.  It  appears from an examination of the court file that the first, second, third, fourth and fifth defendants for substantially all of the time during the interlocutory stages of this proceeding (until the death of the second defendant) had been represented by one solicitor and had actively defended this proceeding.  It is unnecessary to refer to all of the details of this but it is sufficient to note that after filing of the writ in December 1995 and initial appearances by a number of solicitors one firm came by February 1996 to represent the first to fifth defendants.  Subsequently there was a change of solicitor and those defendants after 8 May 1998 were all represented by the solicitor who instructed counsel at the trial.  The initial defence was delivered on behalf of all five defendants in March 1996 and a substantial amended defence of 47 pages was delivered on behalf of all five defendants in June 1998.  Their defences failed and prima facie costs follow the event.

1. However, throughout this proceeding the only order sought against the second to fifth defendants was in substance the order which the plaintiffs ultimately obtained, namely, an order that the names of those 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. The making of this order was never seriously resisted although not consented to. The second to fifth defendants were not necessary parties for the obtaining of the principal relief sought, namely, the declaration that the church property was held by the first defendant upon a religious charitable trust for the purposes of the Greek Orthodox Church or religion, the removal of the first defendant as a trustee of the charitable trust and the appointment of the third plaintiff in its place. In addition, the monastery had been abolished some years ago and the registration of those defendants was mainly of historical interest and of no current significance. The whole history of the church property was of course relevant for other reasons and among those reasons was the reliance by the plaintiffs upon breaches of trust by various of the defendants in order to show that the trust property should not be left in the hands of the Community but instead vested in the statutory trustee controlled by the Archdiocese of Australia. However that aspect of the case did not call for the necessary joinder of the second to fifth defendants as parties to the proceeding. These matters were mentioned during the course of the trial. At page 243 of the transcript, when I said to Dr Pannam QC who appeared for the plaintiffs that the application to remove the registered trustees was "fairly peripheral", senior counsel's response was that this claim was "not central to the claim in respect of the land; simply to tidy up the register". At page 467 of the transcript there was also reference to this matter in terms of expunging an entry in the Register because the monastery no longer existed. At page 469 of the transcript the following exchange occurred:

“HIS HONOUR:  Why should they have any order made against them?  The issue of the removal of the trustees from the register is a very narrow and insignificant issue and it is the only issue that directly concerns them.

DR PANNAM:  Save that they were involved in the transfer of the property that was the subject of a statutory trust, outside that statutory trust, to a company that had, as its objects, aims that were antagonistic to the terms of the trust upon which they were held.

HIS HONOUR:  We will probably leave costs until later, but I should indicate that my inclination is that if the plaintiffs succeed, the only party that should be ordered to pay costs is the first defendant.”

1. Turning to the submissions as to costs, Mr Nugent referred to s. 67 of the Trustee Act 1958 and, on behalf of the fifth defendant, contended that his client should under that section be relieved of any personal liability for the consequences of any breaches of trust which he had committed, including any personal liability for costs. In my view, s. 67 is irrelevant for present purposes. The plaintiffs did not seek to establish any “personal liability” for breaches of trust against any of the defendants. The breaches of trust pleaded and proved were relied upon to justify the vesting of the church property in a new trustee in substitution for the first defendant. The expunging of the names of the surviving registered trustees from the Statutory Register was appropriate quite independently of any breach of trust. It is true, as Mr Nugent submitted, that the fifth defendant’s personal breaches of trust were of relative insignificance in the result of the case and I do not doubt that he acted honestly. Whether he acted “reasonably” and “ought fairly to be excused for the breaches of trust and for omitting to obtain the directions of the Court” is a more difficult question which I need not decide.

1. The question to be decided does not relate to the personal liability of the fifth defendant for the consequences of his breaches of trust but why, having regard to his participation throughout the defence and trial of the proceedings as a represented party, an order for costs should not be made against him as a losing party.  In my opinion, an order for costs should be made against him, but only in a relatively nominal amount (say $5000), reflecting the limited significance of the relief sought against him which necessitated his joinder.  The same reasons would apply to the third and fourth defendants.  However, the court has been informed that the fourth defendant has died since the trial.  I will therefore order for the present that the third and fifth defendants pay to the second, third and fifth plaintiffs a total sum of $5000 towards their costs.

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