Bishop Irinej Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust - [2015] NSWSC 637

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637
Hearing dates: 10, 12-14, 17-21, 24-28 February; 3-7, 10-14, 19-21 March 2014
Decision date: 29 May 2015
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to para [523] of judgment.

Catchwords:
VOLUNTARY ASSOCIATIONS – CHURCHES AND RELIGIOUS ORGANISATIONS – interpretation of unincorporated religious association’s constitution – validity of amendments to constitution – whether association had power to dissolve itself or to merge with another association – whether members of association could validly dissolve or merge the association by majority vote at a meeting – whether resolutions were validly passed at meetings to amend constitution – where practice or usage of the association was inconsistent with its constitution – held that: (1) the usage and practice of the association effected an implied amendment to the method of appointing bishops and to permit the appointment of bishop-administrators, such that the appointment of the first plaintiff as bishop-administrator of the association was valid; (2) the association’s constitution did not contain a power to dissolve or merge the association; (3) all members of the association must be present to constitute a quorum, there being no rule and no evidence of practice or usage permitting a quorum by less than full attendance; (4) the association was not validly dissolved or merged by any purported resolutions or by practice or usage

TRUSTS – CHARITIES – charitable trust in favour of the Free Serbian Orthodox Church (FSOC), an unincorporated religious association – whether implied amendment to the FSOC‘s constitution effected an amendment of the terms of the charitable trust – whether the changes to the constitution constituted a departure from fundamental or essential aspects of the FSOC’s doctrines or principles – held that neither the method of appointing bishops nor the continuation of the FSOC’s separation from the Serbian Orthodox Church (SOC) were fundamental aspects of the FSOC

TRUSTS – CHARITIES – cy-près schemes – schism developed within the FSOC – where FSOC was purportedly dissolved or merged with the SOC – whether an order should be made for a cy-près scheme at general law or under s 9 of the Charitable Trusts Act 1993 (NSW) – consideration of the purpose of the trust and the “spirit of the trust” – consideration of the constitution and principles of the FSOC as evidencing the purpose of the trust – held that: (1) the purpose of the trust had been to operate a monastery for the purpose of the FSOC; (2) the spirit of the trust included that the monastery be used by members of the association as a Serbian church; (3) the FSOC had continued in existence, but the changes to its character and membership were such that an order should be made for a cy-près scheme under s 9 of the Charitable Trusts Act to vary the purpose of the trust to provide that the monastery be used for the purposes of the SOC, but that the FSOC be permitted to use the monastery where that is not inconsistent with the trust’s new purpose

TRUSTS – CHARITIES – breach of trust – removal of trustee – the first defendant company was the trustee of the charitable trust in favour of the FSOC – the first defendant was controlled by the second to fifth defendants – the first to fifth defendants rejected the authority of the first plaintiff as bishop-administrator of the FSOC, prevented him from conducting services at the monastery and permitted a priest to conduct services at the monastery contrary to the bishop-administrator’s direction – held that: (1) the conduct of the first to fifth defendants was in breach of the trust and should not be excused; (2) the first defendant should be removed as trustee of the trust, and the second plaintiff company should be appointed in its place as the new trustee of the trust , because of the alteration to the trust’s purpose
EQUITY – equitable defences – unclean hands – first plaintiff is a bishop of an unincorporated religious association – bishop sought declaratory relief and an order for a cy-près scheme on behalf of the association, and did not assert personal rights – bishop had purported to excommunicate members of the association or deprive them of rights without due process – whether bishop’s conduct should preclude orders being made for a cy-près scheme to vary the terms of a charitable trust in favour of the association – held that the bishop’s conduct did not preclude the granting of relief
Legislation Cited: Charitable Trusts Act 1993 (NSW)
Charities Act 1993 (UK)
Trustee Act 1925 (NSW)
Cases Cited: Attorney-General (NSW) v Grant (1976) 135 CLR 587
Attorney-General (NSW) v Fred Fulham [2002] NSWSC 629
Attorney-General v Gould (1860) 28 Beav 485; 54 ER 452
Attorney-General v Pearson (1817) 3 Mer 353; 36 ER 135
Attorney-General v Sherborne Grammar School (1854) 18 Beav 256; 52 ER 101
Ball v Pearsall (1987) 10 NSWLR 700
Burton v Murphy [1983] 2 Qd R 321
Cotter v National Union of Seamen [1929] 2 Ch 58
Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601
Craigdallie v Aikman (No. 2) (1820) 2 Bli 529; 4 ER 435
Craigie v Marshall (1850) 12 D 523
Daugars v Rivaz (1860) 28 Beav 233; 54 ER 355
Director of Public Prosecutions v Head [1959] AC 83
Doyle v White City Stadium Limited [1935] 1 KB 110
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515
Green v Page [1957] Tas SR 66
Green v The Queen (1891) 17 VLR 329
Harington v Sendall [1903] 1 Ch 921
Hole v Garnsey [1930] AC 472
J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd & Ors [2006] NSWCA 46; (2006) 57 ACSR 149
J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd [2005] NSWSC 238
Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568
Lewis v Heffer [1978] 1 WLR 1061
Long v Bishop of Cape Town (1863) 1 Moo PC (NS) 411; 15 ER 756
Macqueen v Frackelton (1909) 8 CLR 673
Master Grocers’ Association of Victoria v Northern District Grocers Co-operative Ltd [1983] 1 VR 195
Milligan v Mitchell (1837) 3 My & Cr 72; 40 ER 852
Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) (2011) SLT 1213; [2011] CSIH 52
Municipality of St Leonards v Williams [1966] Tas SR 166
Ousley v The Queen (1997) 192 CLR 69
Phillips v Roberts [1975] 2 NSWLR 207
Popovic v Tanasijevic [2001] SASC 289
Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641
Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485; (2006) 200 FCR 243
Re Korda in the matter of Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424
Re Lepton’s Charity [1972] Ch 276
Scandrett v Dowling (1992) 27 NSWLR 483
Click here to enter text.Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 at 703-705 (1976)
Solicitor-General v Wylde (1945) 46 SR (NSW) 83
Thellusson v Viscount Valentia [1907] 2 Ch 1
Tomasevic v Jovetic [2012] VSC 223
Tomasevic v Jovetic [2012] VSC 405
Varsani v Jesani [1999] Ch 219
Varsani v Jesani [2002] 1 P & CR DG 11
White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575
Wylde v Attorney-General (NSW); ex rel Ashelford (1948) 78 CLR 224 at 275
Young v Ladies’ Imperial Club Limited [1920] 2 KB 523
Texts Cited: “The Orthodox Church”, Timothy Ware, Metropolitan Kallistos of Diokleia (Penguin Books New Edition 1997)
Mr Justice McPherson “The Church as Consensual Compact, Trust and Corporation” (2000) 74 ALJ 159
Category: Principal judgment
Parties: Bishop Irinej Dobrijevic (1st Plaintiff)
Serbian Orthodox Church in Australia and New Zealand Properties Ltd (2nd Plaintiff)
Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (1st Defendant)
Branko Rupar (2nd Defendant)
Ratomir Nesic (3rd Defendant)
Ilija Cubrilo (4th Defendant)
Petar Mandic (5th Defendant)
Attorney-General of New South Wales (6th Defendant)
Representation:
Counsel:
S A Glacken QC with J K Taylor (Plaintiffs)
G O Blake SC with W A D Edwards (1st – 5th Defendants)
N L Sharp with A Hochroth (6th Defendant)
Solicitors:
N G Pappas & Company (Plaintiffs)
Hunt & Hunt (1st – 5th Defendants)
Crown Solicitors Office (6th Defendant)

File Number(s): 2011/247393

INDEX

Introduction [1]

Orthodox Churches are Hierarchical [13]

Division in the Serbian Orthodox Church in 1964 [18]

1964 Constitution of the FSOC-ANZ Diocese [26]

FSOC-ANZ Diocese's 1976 Constitution [49]

Appeal for the Monastery Fund [63]

Changes in the Free Serbian Orthodox Church [83]

1988 Constitution [100]

Trust Purpose and Consensual Compact [129]

Reconciliation Proposal [141]

Transitional Regulations [165]

Concelebration of the Liturgy [174]

Reception of Reconciliation in Australia [175]

Divisions in the NGM-ANZ Diocese [204]

Meeting of 29 December 2007 at Monastery
[236]

Disputes over the Monastery [240]

Divisions in Church-School Congregations [264]

St Nicholas, South Brisbane [265]

St George, Manuka/Forrest [288]

Saint Stefan of Dechani, Carrum Downs [294]

Saints Peter and Paul, Wodonga [300]

Meetings of 3 and 4 September 2010 [302]

Had the Free ANZ Diocese Merged with the Serbian Orthodox Church before September 2010 [317]

Authority of Bishop Irinej over the Free ANZ Diocese [325]

Could the NGM-ANZ Diocese Vote Itself out of Existence as an Independent Church? [332]

Justiciability [347]

Notice to and Attendance of Associated Organisations [355]

Notice to and Attendance of Church-School Congregations [364]

Parallel Assemblies [383]

Breach of Trust [400]

Involvement of the OCOCG-HSIR and Incorporation of New Company [404]

Cy-près Scheme [426]

No Jurisdiction at General Law to make a Cy-près Order [438]

Section 9 of the Charitable Trusts Act: The Spirit of the Trust [458]

Free ANZ Diocese and Ecumenism [465]

The Old Calendarists and Bishop Ambrose's Apostolic Succession [474]

Relationship between the Free ANZ Diocese and the OCOCG-HSIR [493]

Conclusions on the Spirit of the Trust [498]

Should the Plaintiffs be Refused Equitable Relief? [514]

Conclusions and Orders [521]

Judgment

Introduction

HIS HONOUR: This case concerns the control of the monastery of St Sava, New Kalenic in Wallaroo Road, Wallaroo near Canberra. The monastery was built between 1983 and 1990 from funds raised by the religious organisation then called the Free Serbian Orthodox Church – Diocese for Australia and New Zealand (“the FSOC-ANZ Diocese” or “the Free ANZ Diocese” or, between 1991 and 2010, “the NGM-ANZ Diocese”). The Free Serbian Orthodox Church was formed in about 1964 because of a split within the Serbian Orthodox Church.
The first plaintiff, Bishop Irinej (Dobrijevic), is a bishop of the Serbian Orthodox Church and head of the Metropolitanate of Australia and New Zealand of that church (“the SOC-ANZ Metropolitanate”). The second plaintiff is a company that was established in 2008 to hold newly acquired property for the Serbian Orthodox Church in Australia.
The first defendant (“the Property Trust Company”) is the registered proprietor of the land on which the monastery stands. The second to fifth defendants are directors of the Property Trust Company. The Attorney-General is the sixth defendant.
It is common ground that the Property Trust Company holds the monastery on a charitable trust. The plaintiffs submit that the monastery was held on a charitable trust for the purposes of the FSOC-ANZ Diocese. The first to fifth defendants say that there is a more particular trust, namely that it be used for the purposes of a monastery, diocesan centre and aged care home for the FSOC-ANZ Diocese. The Attorney-General submits that the property is held on trust for the purpose of propagating the Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church through the Free Serbian Orthodox Church ANZ Diocese.
The plaintiffs submit that in the events that have happened the Property Trust Company now holds the monastery on trust for the purposes of the SOC-ANZ Metropolitanate. They submit that this is the result of events that occurred from the early 1990s and which culminated on 4 September 2010 and 23 May 2011 with the adoption of a new constitution for a unified church which is the SOC-ANZ Metropolitanate. They submit that the Property Trust Company and its directors have breached the terms of the charitable trust on which the monastery is held by refusing Bishop Irinej and clergy of the Serbian Orthodox Church access to the property, by preventing them from conducting church services on the property, and by preventing use of the property for the public worship of the Orthodox faith through the Serbian Orthodox Church. Other breaches of trust alleged are that the Property Trust Company engaged a former priest of the Serbian Orthodox Church, a Father Dragan Saracevic, who the plaintiffs say had been stripped of his clerical rank, to conduct non-canonical church services on the property, and allowed the monastery to be used for non-canonical church services by clerics of a group styled as the Old Calendar Orthodox Church of Greece Holy Synod in Resistance (“OCOCG-HSIR”) that is not in communion with the Serbian Orthodox Church.
Alternatively, the plaintiffs submit that the original purposes of the trust have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, and the purpose of the trust should be altered to allow the property to be applied cy-près towards the maintenance and propagation of the Orthodox Christian faith through the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church.
The Attorney-General submits that the trusts on which the property were held required it to be applied for the purposes of the FSOC-ANZ Diocese and did not permit the property to be applied for the purposes of a different church (the Serbian Orthodox Church) that recognised a different hierarch than one to be appointed in accordance with the constitution of the FSOC-ANZ Diocese. The Attorney-General submits that if the plaintiffs are correct in contending that there had been a merger of the churches with the effect that the FSOC-ANZ Diocese no longer existed, then both at general law and under s 9 of the Charitable Trusts Act 1993 (NSW), it is impossible to perform the objects of the original trust and the property ought to be applied cy-près in the manner for which the plaintiffs contend. The Attorney-General also submits that even if the FSOC-ANZ Diocese has not ceased to exist, there has been a fundamental change in the nature of that church such that the trust should be varied cy-près so that the property is held for the purposes of the SOC-ANZ Metropolitanate.
The first to fifth defendants submit that the monastery property can only be used in a way which is consistent with the fundamental or essential doctrines and principles of the Free ANZ Diocese.
They submit that it is a fundamental tenet of the Free ANZ Diocese that it be independent of the Serbian Orthodox Church in respect of its governance and that it retain the right independently to determine if, when, and how it might affiliate with the Serbian Orthodox Church. They submit that there has been no valid decision by the Free ANZ Diocese to unite administratively with the Serbian Orthodox Church, that there are people conducting religious activities as a continuance of the Free ANZ Diocese, and that the original purpose of the trust continues to provide a suitable and effective method of using the trust property. They contend that the FSOC-ANZ Diocese was and continues to be an independent Orthodox church. They accept that the Free ANZ Diocese has brought itself within the spiritual jurisdiction of the Old Calendar Church of Greece Holy Synod in Resistance and that is a church which is not in communion with the Serbian Orthodox Church or with the other recognised autocephalous Orthodox churches. But when the trust was established, the Free ANZ Diocese was not in communion with the Serbian Orthodox Church and had been in communion with only one of the recognised autocephalous churches of the Orthodox church. Accordingly the first to fifth defendants submit that there has been no departure, or no substantial departure, from the original trust purposes by the Free ANZ Diocese having brought itself within the spiritual jurisdiction of the OCOCG-HSIR.
The first to fifth defendants submit that the resolution purportedly passed by persons claiming to be representatives of church-school congregations of the Free ANZ Diocese on 4 September 2010 was not validly passed. The validity of the resolution purportedly passed on 4 September 2010 is attacked on a number of grounds including that the purported Church National Assembly of the Free ANZ Diocese could only be convened by a bishop of the Free ANZ Diocese and that Bishop Irinej, who had been purportedly appointed by the Holy Assembly of Bishops of the Serbian Orthodox Church in Belgrade as Bishop Administrator of the Free ANZ Diocese, was not validly so appointed; that even if he were, as Administrator, he did not have power to effect such a fundamental change as convening a meeting which would see the extinction of the Free ANZ Diocese as a separate entity; that persons purportedly attending the meeting as representatives of community organisations and Church-school Congregations of the Free ANZ Diocese did not represent those bodies; and that there were other procedural flaws in relation to the meeting.
The first to fifth defendants also submit that the plaintiffs are disentitled to equitable relief because Bishop Irinej is said to have repudiated the charitable trust on which the monastery was held by disregarding the terms of the Free ANZ Diocese’s constitution, by participating in a purported decision of the Ecclesiastical Court of the Free ANZ Diocese on 20 December 2007 excommunicating one of the directors of the Property Trust Company (the third defendant, Mr Nesic), by participating in purported decisions of the Diocesan Council of the Free ANZ Diocese in December 2007 and January 2008 purporting to deprive persons who attended a meeting held at the monastery on 29 December 2007 of financial and spiritual rights, and also by purporting to declare four church-school communities as schismatic without a valid ecclesiastical disciplinary process of the Free ANZ Diocese.
To come to grips with these contentions some background as to the Serbian Orthodox Church, an explanation of some tenets of Orthodoxy, and a summary of the events that led to this litigation are required.

Orthodox churches are hierarchical

The Serbian Orthodox Church was established in 1219 as one of the recognised autocephalous (that is, autonomous or self-governing) Orthodox churches. In that year the Patriarch of Constantinople consecrated Rastko Nemanja, who had received the name Sava when he entered monastic orders in 1175, as Archbishop of all Serbian and Sea Coast Lands and presented him with a staff which proclaimed the elevation of the Serbian Church into an archdiocese. The Patriarch of Constantinople granted Sava’s requests that his country be granted Church autonomy, that is, autocephaly, and that an archbishop be appointed as its head. Sava was later canonized. The monastery bears his name.
The Serbian Orthodox Church, as with other Orthodox churches and the Orthodox Tradition, is a hierarchical church in which authority for the regulation and administration of the affairs of a diocese rests with the bishop. Bishops are appointed by the Holy Assembly of Bishops who also elect the Patriarch who is the supreme head of the church. The Holy Assembly of Bishops is composed of all diocesan bishops under the presidency of the Patriarch. The Holy Assembly, as the highest hierarchical body, has legislative authority in matters of faith, worship, church order (discipline) and internal organisation and is the highest church juridical authority. It can exercise control over the Holy Synod of Bishops which is composed of the patriarch and four diocesan bishops and which exercises executive and some juridical functions. The Holy Synod of Bishops supervises the work of Bishops. Bishops are elected by the Holy Assembly. Article 102 of the 1947 Constitution of the Serbian Orthodox Church provides that a Diocesan Bishop in his archpastoral calling, in accordance with the Orthodox teaching and the church canons, has full hierarchical authority in matters of faith and morals, worship, and archpastoral care in his Diocese. Article 107 provides that all ecclesiastical offices and organs in the Diocese are subject to the Diocesan Bishop.

This is in accordance with the Orthodox Church’s view of Holy Tradition. In his book “The Orthodox Church”, Timothy Ware, Metropolitan Kallistos of Diokleia (Penguin Books New Edition 1997) says:

“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.’ (Confession, Decree x) ‘If any are not with the bishop,’ said Cyprian, ‘they are not in the Church.’ (Letter lxvi, 8)
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 laypeople – preach sermons, strictly speaking they act as the bishop’s delegates. But although the bishop has a special charisma, it is always possible that he may fall into error and give false teaching: here as elsewhere the principle of synergy applies, and the divine element does not expel the human. The bishop remains a man, and as such he may make mistakes. The Church is infallible, but there is no such thing as personal infallibility.
(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 the Divine Liturgy, is really acting as the bishop’s deputy.”

Archbishop Chrisostomous of the OCOCG-HSIR, who gave evidence for the first to fifth defendants, said:

“5.2.2.1.   Administrative unity within a diocese has theological significance. Administrative unity at supra-diocesan levels (that is, within archdioceses, metropolitanates, national Churches, and patriarchates) is a desired good and, according to many canonical formulations, is even considered necessary to the welfare of the Church. But, unlike diocesan unity, it is not considered essential to the very existence of the Church.
5.2.2.2.   Since the first centuries, a hierarchical administrative rule has been considered an absolute necessity for each diocese, wherein the ruling bishop, presiding harmoniously and authoritatively over his clergy and laity, is considered an iconic representation of Christ and the Apostles, ministering to the faithful.
5.2.2.3.   The historical enlargement of the sphere of hierarchical administrative rule, with its extension to the administrative structures of archdioceses, metropolitanates, national Churches, and patriarchates, is understood to be an acceptable accommodation to the cooperative relationship that, since the fourth century, developed between Church and State. Though these supra-diocesan offices and structures often establish rules of order that seem to imply higher levels of authority than that of the local bishop, such organizational rules are, at their core, accommodations to principles of harmony. Fundamentally, the Orthodox Church sees all bishops (i.e., hierarchs) as equal; there is no higher office.
5.2.2.3.1.   ‘The system of Patriarchs and Metropolitans is a matter of ecclesiastical organization. But if we look at the Church from the viewpoint not of ecclesiastical order but of divine right, then we must say that all bishops are essentially equal, however humble or exalted the city over which each presides. All bishops share equally in the apostolic succession, all have the same sacramental powers, all are divinely appointed teachers of the faith. If a dispute about doctrine arises, it is not enough for the Patriarchs to express their opinion: every diocesan bishop has the right to attend a General Council, to speak, and to cast his vote. The system of the Pentarchy [the five ancient patriarchates] does not impair the essential equality of all bishops, nor does it deprive each local community of the importance which [St.] Ignatius [of Antioch] assigned to it.’ (Timothy Ware (Bishop Kallistos of Diokleia), The Orthodox Church, rev. ed. (Harmondsworth, England: Penguin Books, 1997), p. 27 (emphases original). …”

In recognition of the Bishop’s authority and the fact that in conducting the liturgy, the priest is acting as the Bishop’s delegate, a priest will elevate the name of his Bishop in the course of the liturgy. As referred to below, after a reconciliation between the Serbian Orthodox Church and the Free Serbian Orthodox Church in the 1990s the Holy Assembly of Bishops in Belgrade appointed Bishops to the Free ANZ Diocese. The priests of the Free ANZ Diocese elevated the name of the Bishop so appointed, even though, as seen below, the appointments were not made in accordance with the constitution of the Free ANZ Diocese.

Division in the Serbian Orthodox Church in 1964

A significant number of Serbs adhering to the Orthodox faith emigrated to Australia after World War II. At that time there was no organised diocese for them and they came under the jurisdiction of the American-Canadian Diocese of the Serbian Orthodox Church. In 1952 the Holy Assembly of Bishops decided to recall under its jurisdiction all Serbs living in the diaspora in countries where there was no organised diocese. Church-school communities in Australia were brought under the jurisdiction of the Patriarchate in Belgrade.
In 1963 the Holy Assembly of Bishops divided the American-Canadian Diocese into three dioceses and appointed the incumbent bishop, Bishop Dionisije, as a bishop of only one of them. Bishop Dionisije refused to recognise the actions of the Holy Assembly of Bishops and charged that Assembly as being communistic and under the dictates of the communist government of Yugoslavia. The Holy Assembly suspended and later removed Bishop Dionisije as bishop and appointed an administrator to the American-Canadian Diocese. In November 1963 the American-Canadian Diocesan National Assembly declared the diocese autonomous and purportedly amended its constitution to provide for the election of the bishop by the diocese itself and resolved that the constitution of the diocese could be amended without the approval of the Holy Assembly in Belgrade.
On 5 March 1964 the Holy Assembly divested Bishop Dionisije of his episcopal and monastic ranks following his refusal to recognise the competence of the court of the Holy Synod to try him on charges of defying decisions of higher church authorities. Bishop Dionisije denounced the Holy Assembly and Holy Synod as schismatic and pro-communist and asserted that they were acting in violation of the church’s constitution. (These events are recited in the judgment of the US Supreme Court in Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 at 703-705 (1976).)
Most of the Serbian Orthodox School Communities in Australia aligned themselves with Bishop Dionisije although some continued to accept the authority of the Patriarchate in Belgrade. In October 1964 Bishop Dionisije visited Australia and attended what became known as the First Assembly (also called Sabor) of the Free Serbian Orthodox Church Diocese for Australia and New Zealand held in Melbourne on 31 October 1964.
In 1989 a record of those proceedings was published in a book called “Serbs in Australia, History and Development of Free Serbian Orthodox Church Diocese for Australia and New Zealand”. It records that Bishop Dionisije called on delegates to form a Diocesan Council for Australia. Delegates resolved to establish a diocese and decided on the composition of a Diocesan Council. Bishop Dionisije announced that he had decided to divide Australia administratively into two regions and had decided to promote two priests to the rank of archpriest to administer the separate regions. He said he would visit parishes in Australia to ordain a number of young priests so that positions of parish priests could be filled in some parishes. Delegates to the Assembly proposed that Archimandrite Dimitrije (Balak) be elected as Bishop. Bishop Dionisije asked the Diocesan Council formally to apply to him in writing and this was done. Bishop Dionisije advised that Father Dimitrije would have to return to America where he would be consecrated as Bishop and that the American Sabor would have to give its support to the application. The Bishop advised that the people and clergy would jointly have to decide on and elect a bishop. He advised that the American Sabor had resolved in 1959 and 1960 that the Holy Assembly of Bishops in Belgrade be asked that after his death subsequent bishops be elected that way, but those proposals had been rejected by the Holy Assembly in Belgrade. Bishop Dionisije stated that until a new bishop was ordained and returned to Australia, he would be the administrator of the newly formed diocese for Australia and New Zealand.
A Diocesan Council was elected and a draft constitution was considered and adopted. Resolutions passed by the Assembly included the following:

“2.    We condemn the indoctrination of Communist principles and practice and we call on all Serbs to do everything in their power to defend the Holy Orthodox Faith, freedom, justice and democracy.
3.    We do not recognise the imposed Communist dictatorship in enslaved Yugoslavia particularly that inflicted on the Serbian people and we reject any cooperation or contact with representatives of Communist Yugoslavia abroad.
4.   We confirm and maintain that in the Communist world including our old enslaved homeland there is no personal, economic, political nor religious freedom. We therefore condemn the enslavement and oppression of our Serbian Orthodox Church in Yugoslavia inflicted by the dictatorial criminal communist regime instituted by Tito.
5.    We acknowledge and accept the decision brought down by the Tenth Sabor of the Serbian Orthodox Diocese of A-C held in August and November of 1963 in the Serbian Orthodox Monastery of St. Sava, Libertyville, Illinois. We also recognise their Head, His Grace Bishop Dionisije as a legitimate bishop. The charges laid against him we believe to be false and tendentious whilst the verdict and subsequent dismissal we find illegal and unfounded bearing in mind that it was instigated by the Titoist regime contrary to Church canons and against the interests of unity in the Serbian Orthodox Church and its holy mission with the Serbian people.
6.   Our church life in Australia we are organising within the framework of the Free Serbian Orthodox Church-Diocese for Australia and New Zealand which is in unity with the Serbian Orthodox A-C Diocese having the one constitution, however passing our own decisions within our respective dioceses. With the formation of the Diocese in Australia in light of the constitution adopted at the Tenth Sabor in America, we are not separating spiritually or nationally from our Holy Serbian Orthodox Church and our Serbian people. We still remain in dogmatic, spiritual and national unity with her and only chose not to accept her decrees and decisions as they are dictated by the godless Communist authorities. Even today we partake in her tribulations praying to God that she does not succumb and that she finds salvation. When the Serbian Orthodox Church frees itself of Communist dictatorship we will again fall under its administrative rule.”

As the plaintiffs submit, this last resolution indicates that it was not the intention of the founders of the Free ANZ Diocese that its independence from the Serbian Orthodox Church should be permanent and immutable. Rather, the Church was formed to deal with what was hoped to be only a temporary situation, namely the Serbian Orthodox Church’s being (allegedly) subject to the dictates of the Communist Government in Yugoslavia.
By the beginning of 1964, 14 church-school communities in Queensland, New South Wales, the ACT, Victoria and South Australia had asked the Diocesan Council of the American-Canadian Diocese and Bishop Dionisije to take them under their jurisdiction. Later up to 16 church-school congregations belonged to the Free ANZ Diocese. Four church-school congregations remained under the jurisdiction of the Patriarchate.

1964 Constitution of the FSOC-ANZ Diocese

The constitution for the Free ANZ Diocese adopted on 31 October 1964 stated that the Assembly on that day had adopted the constitution of the Serbian Orthodox Church of the United States of America and Canada as its own constitution with minimal changes or additions. Article 1 stated that:

“Art.1
The Free Serbian Orthodox Church Diocese for Australia and New Zealand shall be deemed in spiritual terms as an organic part of the Serbian Orthodox Patriarchate of the Kingdom of Yugoslavia [1918 to 1943] and enjoys all benefits stemming therefrom.”

This article reflected the founders’ determination that the FSOC-ANZ Diocese should be part of the Serbian Orthodox Church before its having become subject to communist rule in Yugoslavia. Articles 3 and 4 provided:

“Art. 3
The jurisdiction of the Free Serbian Orthodox Diocese for Australia and New Zealand, with its Seat in Sydney in the State of New South Wales shall enhance the whole political territory of Australia and New Zealand and as such in geographic terms it enjoys full administrative freedom. Therefore, it can administer and organise its affairs and those of churches, schools and all other organs of the diocese, as well as all of the funds and goods organise and administer independently with the assistance of its organs in accordance of its constitution and laws of Australia and New Zealand.
The said jurisdiction shall expand so it will enhance parts of Australia and New Zealand where Serbian people have resettled and organised their Serbian Orthodox Parishes who are seeking refuge and connection with the aim of preserving, defending and rejecting all activities that are contrary to the Serbian Orthodoxy and Holy Mother Church in the Kingdom of Yugoslavia [1918 to 1943].
Art. 4
The Free Serbian Orthodox Diocese for Australia and New Zealand is comprised of Free Serbian Orthodox Church-School Congregations, parishes, churches, monasteries, proto-presbyterates, established within the territories of the above mentioned states who shall voluntarily seek sanctuary and affiliates with said diocese to preserve the Holy Mother Church, and which shall thereby fall under the spiritual, executive, ecclesiastical-judicial and controlling authority of the diocesan organs (Bishop and Diocesan Council). Therefore, every Free Serbian Orthodox Church-School Congregation, church, monastery, and protopresbyterate already existing or which shall be established in the above mentioned territories must be in ecclesiastical-canonical bond with this Diocese and reorganise its authority and power.”

These articles stressed the administrative independence of the FSOC-ANZ Diocese and the spiritual affiliation of the FSOC-ANZ Diocese with the Serbian Orthodox Church as it was before 1943, being the year in which the Democratic Federal Yugoslavia was proclaimed and recognised by the Allied powers.
Article 5 listed the different legislative and administrative organs of the Diocese, being the Diocesan Church National Assembly, its executive and administrative organ, being the Diocesan Council, the Diocesan Ecclesiastical Court, and lower authorities and organs, including Free Serbian Orthodox Church-school Congregations.
Article 9 provided for the appointment of the Diocesan Bishop. It relevantly provided:

“Art. 9
The Bishop of the Free Serbian Orthodox Diocese for Australia and New Zealand shall be nominated the [sic] Diocesan Council and the Diocesan Ecclesiastical Court, elected by a secret ballot of the Diocesan Church National Assembly, and consecrated by Orthodox Bishops having apostolic succession.
Candidates for Bishops must fulfil canonical and legal requirements provided for the position of Bishop in the Orthodox Church. They must have the required theological education; Theological Academy, Theological Faculty or university education with prior theological education. They must show by their diligent church work, faithfulness to church and people and by their exemplary life, as well as by their ability to merit position of Bishop.
In case of vacancy or widowhood of the Diocese, the Diocesan Council shall convoke within six months at the most a Church National Assembly in extraordinary session. The Diocesan Council shall within three weeks before the Assembly propose to the Church National Assembly two or three candidates for Bishop who fulfil the necessary requirements as set forth in the previous subsection of this article.”

Article 10 specified matters that were to come within the “jurisdiction of activity” of the bishop. These included the preservation and defence of “One Holy Ecumenical and Apostolic church” and the repelling of “all activities contrary to Orthodoxy”, seeing that divine worship in church was conducted in accordance with church law and the constitution, the establishment, erection and repair of churches and the provision of sacred relics, church books, crosses and similar requirements, the consecration of new churches, the visitation of churches, the ordaining of priests and the appointment of priests to parishes and the execution of “all canonical laws of the One, Holy, Ecumenical and Apostolic Church and the Assembly of Bishops of the Free Serbian Orthodox Church”.
Article 12 provided:

“Art. 12
The Diocesan Bishop of the Free Serbian Orthodox Church for Australia and New Zealand is obliged to recognise spiritual and liturgical unity of the Serbian Orthodox Diocese in America and Canada and Mother Church in the Kingdom of Yugoslavia [1918 to 1943].
The Diocesan Bishop is responsible to the Diocesan Council for his work and the governing of the affairs of the Diocese and its institutions. In case of disagreement between Diocesan Council and the Bishop, the final decision remains with the Diocesan Church National Assembly but for his spiritual work and spiritual administration of the Diocese he shall be responsible to the Assembly of Bishops of the Free Serbian Orthodox Church.”

Article 14 provided that the Bishop was the supreme head of a monastery when a monastery was built and would appoint the Abbott and conduct the canonical supervision and higher executive authority over the monastery.
Article 15 provided that the National Assembly was the main legislative and controlling body in the Diocese and represented the entire Free Orthodox Serbs in Australia and New Zealand. The Diocesan Assembly consisted of delegates elected by individual church-school congregations, including two laymen in addition to the president of the church-school congregations, all the Serbian Orthodoxy clergy of both orders (that is, monastic and parochial), all bishops, all members of the Diocesan Plenum together with representatives of all “Serbian colonies” who were without a church and priest, but who had a regular school operating under diocesan jurisdiction. Thus the National Assembly would be predominantly comprised of laymen or women, although the bishop and clergy would be represented. Each church-school congregation was entitled to one vote.
The president of the Assembly was to be the Bishop. There were to be two vice-presidents, one of whom was a priest and one a layman. The functions of the Diocesan Assembly included approving the program of work of the Diocesan Council for the ensuing three years and deciding on all matters which the Diocesan Council submitted for its consideration and electing the Diocesan Council for a three-year term. The Diocesan Assembly was to control the assets of the Diocese and to decide on changes and amendments to the constitution (Article 23).

The Diocesan Council was the main executive and “controlling board” of the Diocese for external church religious education and educational matters (Article 24). The Diocesan Council was to consist of the Bishop plus 12 other regular members to be elected by the Diocesan Assembly. Seven of those members were to be laity and five clergy. Hence the majority of the members of the Diocesan Council were to be laity.
Article 42 provided for the establishment of a Diocesan Ecclesiastical Court to be comprised of the Bishop as president and four regular, and three alternate members appointed by the Bishop and who could be relieved of duty by the Bishop. The Diocesan Ecclesiastical Court was not authorised to meet without the knowledge of the Bishop or his appointed substitute (Article 48). The function of the Diocesan Ecclesiastical Court included the making of all decisions pertaining to the unfrocking of priests. This jurisdiction included seeing that the teaching of the faith was preserved intact and that church rituals were maintained and that priests and presbyter-monastics perform their duties. The Court had the jurisdiction to judge in all disciplinary matters relating to church discipline and order and in relation to matters concerning the performance of the holy sacraments, as well as decisions in relation to matters of divorce and annulments.
Article 56 provided that if the bishop should disagree with a decision of the Diocesan Ecclesiastical Court or with the decision of some diocesan committee or diocesan council, then the matter in question will be sent to the Diocesan Plenum, apparently being the Council, Ecclesiastical Court and “Controlling/Auditing Board”.
Article 68 provided:

“Art. 68
Each Church-School Congregation is considered an integral part of the Free Serbian Orthodox Church – Diocese for Australia and New Zealand and as such is subject to all the statutes of this Constitution, church canons and other regulations, rules and orders of the Diocesan authorities headed by the Diocesan Bishop.”

Article 155 provided that the diocesan funds were to be supervised by the Diocesan Council. However, Article 156 provided that:

“Art. 156
All real estate and personal property of Serbian Monasteries, if they are founded, are supervised by the monastery’s administration under the direct control of the Diocesan Bishop.”

Hence from its inception the model for the governance of the FSOC-ANZ Diocese laid down in its constitution departed from the principles on which Orthodox churches are established. The constitution did not provide for the Bishop to be a ‘monarch’ in his own diocese. He was responsible to the Diocesan Council and in the event of disagreement with the Diocesan Council the dispute would be resolved by the Church National Assembly. The laity had majority representation on the Diocesan Council and the National Assembly. A bishop was to be elected by the National Assembly from a list of candidates proposed by the Diocesan Council. Over the following decades the governance of the FSOC-ANZ Diocese, particularly on the critical question of appointment of the Bishop or an administrator, departed in practice from the requirements of the constitution. The significance of that departure is addressed later in these reasons.
The election of Archimandrite Dimitrije (Balak) by the first national assembly of the FSOC-ANZ Diocese was ratified by the American-Canadian diocese two years later. Archimandrite Dimitrije was consecrated as a bishop by bishops of the American-Canadian Diocese of the Free Serbian Orthodox Church, being Bishops Dionisije and Irinej. (Bishop, later Metropolitan, Irinej of the Free Serbian Orthodox Church is not to be confused with, the present plaintiff. A priest of the Orthodox Church, on entering a monastic order, takes a saint’s name. Bishops are appointed from the monastic orders.)
At the Fifth Sabor of the FSOC-ANZ Diocese held in December 1976, at the request of Bishop Dimitrije, the Sabor elected Archimandrite Petar (Bankerovic) as his assistant. The Sabor was attended by Bishop Irinej from the Free Church in America. Bishop Irinej told the Sabor that the Free Church had been recognised by the Patriarchate in Alexandria. On 5 November 1977 Archimandrite Petar was consecrated as a Bishop in the Free Serbian Orthodox Church in Chicago by Bishop Irinej and Bishop Dimitrije. Also present was the Metropolitan of the Ukrainian Church. Bishop Petar arrived in Australia two weeks after his consecration as assistant to Bishop Dimitrije.
Meanwhile, the Holy Assembly of Bishops of the Serbian Orthodox Church established a Serbian Orthodox Diocese of Western Europe and Australia on 12 March 1969. The See of the Diocese was in London. On 4 June 1973 the Holy Assembly of Bishops formally established the Serbian Orthodox Diocese in Australia and New Zealand. From that time parishes, church-school congregations, deaneries and other institutions of the Serbian Orthodox Church in Australia and New Zealand came under the authority of the local diocesan bishop elected by the Holy Assembly.
Thus after 1964 there was in Australia both a Free Serbian Orthodox Church that did not recognise the authority of the Holy Assembly of Bishops in Belgrade but which nonetheless regarded itself in spiritual terms as an organic part of the Serbian Orthodox Church as it was before 1943, and a Serbian Orthodox Church that remained under the authority of the Holy Assembly of Bishops in Belgrade. From 1973 two bishops headed the Serbian Orthodox faithful in Australia and New Zealand: one administering the FSOC-ANZ Diocese, and one administering the ANZ Diocese of the Serbian Orthodox Church. The first plaintiff, Bishop Irinej, deposed that a central tenet of the Serbian Orthodox Church is the supremacy of the bishop in the territory of his diocese and that according to canon law there can be only one diocese for any given territory overseen by one bishop.
In 1968, four years after the split, the Holy Synod of Bishops of the Serbian Orthodox Church published a decree that those who had left the Serbian Orthodox Church had excluded themselves from the community of the Serbian Church and from the Holy Orthodoxy and had no rights in the Serbian Orthodox Church or in the general Orthodox Church community worldwide. Sacraments administered by the Free Church were not recognised. Those who had left the Serbian Orthodox Church to join the Free Church could not be buried in consecrated ground of the Serbian Orthodox Church. They were treated as schismatics. Priests who took part in the schism were defrocked and it was said that their names would be forever deleted from the list of clergy of the Serbian Orthodox Church. An example of the effect of this was that parents, one of whom was a member of the Serbian Orthodox Church and the other of the Free Serbian Orthodox Church would have their children baptised in both Churches. This position continued until the 1990s when steps for reconciliation were implemented.
There was litigation in the United States following the split in the Serbian Orthodox Church there. In 1963 Bishop Dionisije had been suspended and in 1964 he was defrocked by the Holy Assembly in Belgrade. In 1963 Bishop Dionisije brought proceedings in Illinois seeking to enjoin the administrator appointed by the Serbian Orthodox Church from interfering with the assets of the Diocese. After years of litigation the Supreme Court of Illinois ultimately held that Bishop Dionisije’s removal and defrockment was invalid as contrary to the Court’s interpretation of the Church’s constitution and penal code. It held that the Diocesan reorganisation was invalid and in substance reinstated Bishop Dionisije as Diocesan Bishop. On 21 June 1976 the US Supreme Court reversed this decision (Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 (1976)). The US Supreme Court held that by reason of the First and Fourteenth Amendments, the Illinois courts had no jurisdiction to enquire into the exercise of disciplinary functions by a hierarchical church’s governing body under religious law. The Diocesan Bishop controlled the monastery of St Sava in Illinois and was the principal officer of the companies that held diocesan property. Resolution of the religious dispute over Bishop Dionisije’s defrockment determined control of the property. By reason of the First and Fourteenth Amendments to the US Constitution civil courts could not become entangled in an essentially religious controversy.
The result of this decision was that control of the diocesan property in the United States reverted to the administrator appointed by the Holy Assembly in Belgrade.

FSOC- ANZ Diocese’s 1976 Constitution

It was against this background that the constitution of the Free ANZ Diocese was amended at the Fifth Assembly held in Sydney on 30 December 1976. Articles 1 to 4 of the new constitution provided as follows:

“Art. 1
The Free Serbian Orthodox Church – Diocese for Australia and New Zealand maintains her sister’s relations with the Free Serbian Orthodox Church – Diocese for America and Canada as well as with the Free Serbian Orthodox Church – Diocese for Europe and their Bishops in charge, respectively.
Art. 2
This Free Serbian Orthodox Diocese is governed on the basis of:
(1) The Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church
(2) Canons of the Ecumenical Councils and by them recognised Canons of the Apostles, Regional Councils and Holy Fathers.
(3) Ordinances, by-laws and general rulings of the competent Church authorities as stipulated by this Constitution.
Art. 3
The jurisdiction of the Free Serbian Orthodox Church – Diocese for Australia and New Zealand with Bishop’s Headquarters and Seat in Sydney N.S.W., includes the entire geopolitical territories of Australia and New Zealand, which, as such, by its geographic location, enjoys in full the administrative freedom in managing independently through its own organs its: Church affairs, Schools and other Diocesian establishments, as well as all funds and real estates in accordance with this Constitution and Australian and New Zealand’s Laws and By-laws.
Art. 4
This Free Orthodox Diocese is not subject to, or under the authority or patronage of any higher ecclesiastical or hierarchical authority. This Diocese is free to independently regulate its own spiritual and secular affairs as well as to affiliate or disaffiliate with any group or hierarchical entity, in accordance with the resolution by its own Diocesian Church National Assembly.”

Counsel for the first to fifth defendants place particular emphasis on Article 4 of the 1976 constitution as establishing what they submitted was a fundamental tenet and principle of the Free ANZ Diocese, namely its independence to regulate its own spiritual and secular affairs as well as a power to affiliate or disaffiliate. This, counsel submit, does not extend to a power to vote itself into extinction by becoming reabsorbed into the Serbian Orthodox Church as compared with affiliating itself with the Serbian Orthodox Church.
The 1976 constitution in substance maintained the provisions of the 1964 constitution in relation to the relations between the Bishop, the Diocesan Council and the Diocesan Church National Assembly. Article 20 provided that the Bishop was responsible to the Diocesan Council for his work and the governing of the affairs of the Diocese and its institutions. In case of disagreement between the Diocesan Council and the Bishop the final decision was to lie with the Diocesan Church National Assembly. Articles 32 and 33 dealing with the Diocesan Council provided:

“Art. 32
The Diocesan Council is the main executive and controlling organ in the Diocese for external church-religious and church-educational matters.
Art. 33
The Diocesan Council, in addition to the Bishop, is composed [of] twelve regular members elected by the Diocesan Assembly for a period of three years, seven of whom are of the laity; five are the clergy (if this is possible), and six alternates; four of whom are of the laity and two of the clergy.”

Hence the laity was to have majority representation on the Diocesan Council. Articles 23 and 24 dealing with the Diocesan Church National Assembly provided:

“Art. 23
The Church-National Assembly is the Supreme Legislative and Supervisory Body within the Diocese and represents the whole Free Serbians in Australia and New Zealand
Art. 24
The Diocesan Church-National Assembly is constituted of:
1.    Delegates of the Church-school Congregations – two laymen with the president of the same Church-school Congregation, who is delegate ex officio. In case of his inability to attend, he shall be replaced by the vice-president of the Church-school Congregation.
2.    All Serbian Orthodox clergymen of this Diocese; both orders.
3.    The Diocesan Bishop.
4.    All Serbian colonies who are without a church and priests but who have regular school operating under Diocesan jurisdiction have the right to two delegates, one of whom is obligatory the school teacher. The Federation of the Serbian Sisters’ Circle have the right to two delegates.
5. All members of the Diocesan Plenum from Article 10 of this Constitution,
6.    Representatives of the people at large and distinguished educators and friends of Orthodoxy and of our people’s welfare are privileged to attend all Diocesan Assembly meetings, but without the right to vote.”

Article 10 provided:

“Art. 10
The DIOCESIAN PLENUM is constituted of: Diocesian Council, Ecclesisastical Court, Supervisory Board, Diocesian Dispute Committee (Sud Casti), President and Secretary of the Federation of the Serbian Sisters Circles and the Editor of the ‘Herald’ (Eparhijski Vesnik). The PLENUM shall meet at the request of the Diocesian Council when there may be need for such a meeting, and on occasions when there are questions to be resolved by Plenum exclusively stipulated by this Constitution.”

Article 50 provided that the Diocesan Ecclesiastical Court was comprised of the Bishop as its president and two regular members. They were to be appointed by the Bishop and could be relieved of duty by the Bishop. Article 51 provided that members of the Ecclesiastical Court could be clergy of both orders (that is, both monastic and parochial), but could not be related amongst themselves or with the Bishop. Article 61 provided that in certain matters, including the defrocking of priests, decisions were to be forwarded to what was called the “higher Church authority”, namely the Ecclesiastical Court of the Diocese for America and Canada. Article 64 provided that if the Bishop disagreed with a decision of the Ecclesiastical Court as well as with decisions of some of the Diocesan committees or Diocesan Council, the matter in question should be forwarded to the Diocesan Plenum. It is not clear how this article would operate in tandem with Article 20 that provided in case of disagreement between the Bishop and the Diocesan Council the final decision would remain with the Church National Assembly. But the significant point is the departure of the Free ANZ Diocese from the principles of a hierarchical church in accordance with Orthodox Holy Tradition in relation to the position and authority of the Bishop.
Article 16 provided that in the case of “vacancy of [sic] widowhood of the Diocese” the Diocesan Council and the Ecclesiastical Court should manage the Diocese until the newly elected Bishop took over. A Church National Assembly was to be convened within six months to elect a new Bishop.
As with the 1964 constitution the Bishop was to be elected by the Church National Assembly from two or three candidates nominated by the Diocesan Council (Articles 16 and 17). The elected Bishop was to be ordained by two Orthodox Canonical Bishops having Apostolic succession.
Members of the Diocesan Council were to be elected by the Diocesan Assembly for a period of three years (Article 33).
As with Article 156 of the 1964 constitution Article 176 of the 1976 constitution provided that all real estate and personal property of monasteries, when they are provided, should be managed by the monastery’s board under the direct supervision of the Diocesan Bishop. Article 22 provided:

“Art. 22
…
The Diocesan Bishop is at the same time the supreme supervisor of the Monastery when this is provided and erected. The Bishop appoints Abbots and carries canonic supervision as well as having the higher spiritual managing power over Monastery.”

The 1976 constitution contained provisions for Church-school Congregations, who could or could not be members of Church-school Congregations and how the affairs of Church-school Congregations were to be managed. Article 103 provided that disagreements between the committee of a Church-school Congregation and the priest were to be submitted for consideration to the Diocesan Council (not the Bishop). The “Diocesan authorities” were empowered to annul decisions of a general meeting of a Church-school Congregation that overstepped the boundaries of its jurisdiction and intentionally prevented the execution of the directives of the Diocesan authorities (Article 110).
Article 134 provided that a parish priest was appointed by the Diocesan Bishop or could be selected by a Church-school Congregation if the appointment was confirmed by the Ecclesiastical Court. Article 138 provided that a Church-school Congregation had no right to dismiss a priest or to bring in another one without the knowledge and approval of the Diocesan Bishop. Article 139 provided that the priest could not resign his parochial duties without the consent of the Bishop and the knowledge of the Church-school Congregation. Article 143 provided that in the case of a dispute between the Church-school Congregation on the one hand and the priest on the other, or between the Church-school Congregation and a teacher or teachers, the subject of the dispute should be “submitted to the Diocesan Bishop, namely, the Diocesan Council, whose decision shall be considered as final.” Similarly, Article 154 provided that disagreements between the priest and a teacher which could not be resolved between them were to be submitted to “the Diocesan Bishop, i.e. to the Diocesan Council for consideration and decision.” The meaning of these articles seems to be that the dispute should be submitted to the Diocesan Bishop who in turn was to submit it to the Diocesan Council for decision.
The 1976 constitution provided that the constitution could be amended at the request of two-thirds of the Assembly.
Counsel for the first to fifth defendants submitted that the FSOC-ANZ Diocese could be characterised as a congregational, rather than a hierarchical, church. I think it would be more accurate to describe its governance as a form of presbyterianism where ultimate authority is vested in a council made up substantially of representatives of the congregations. But notwithstanding Article 2, the governance of the Free ANZ Diocese was not in accordance with Holy Tradition or holy canons according to the teaching of the Orthodox Church. This disconformity was later to play a significant role in disputes that emerged from at least 2007 when the first plaintiff, Bishop Irinej, attempted to bring the affairs of the Free ANZ Diocese wholly within his authority. It poses a particular problem in identifying what doctrines or principles of the Free ANZ Diocese should be regarded as fundamental. Was independence from the Serbian Orthodox Church and the ability to affiliate with and disaffiliate from other churches fundamental? Was the model of governance whereby the Bishop was subjected to the authority of the Diocesan Council and the Church National Assembly fundamental, or was adherence to the Holy Tradition as applied in Orthodox churches more important? Was it any part of the principles of the Free ANZ Diocese that it seek to become united with the Serbian Orthodox Church when the political climate changed?

Appeal for the Monastery Fund

In June 1972 suggestions were sought as to how the FSOC-ANZ diocese might buy a parcel of land and build on it a monastery, a home for the aged and a home for abandoned children.
On 9 December 1978 the Diocesan Council of the Free ANZ Diocese resolved to draft an appeal for the building of a monastery in Australia.
On 2 January 1979 Bishop Petar wrote to the church-school congregations urging the need for building a “Free Serbian Monastery”. Bishop Petar wrote:

“The history of the Serbian people teaches us what Serbian monasteries did over the centuries in preserving the holy heritage of our forefathers. They were places of spiritual and nationalist activity for freedom-loving Serbs. They were the defenders of Orthodoxy, St. Savaism and holy Serbian traditions. They were the seats of Bishops, monks who became consecrated saints, educators, teachers, schools, spiritual and nationalist literature as well as homes for the aged and helpless. All nationalist, spiritual and welfare work was in the hands of the Serbian people through its holy church which centred around these monasteries. The idea of building a free Serbian monastery in this country is not outdated even in this 20th century of spiritual aimlessness. On the contrary, this idea is our nationalist and spiritual necessity, moreover it is the historical calling of our hearts and souls. Finding ourselves in this free and democratic country of Australia through no fault of our own which we have accepted, we have built our churches and halls and this is where we are raising our children. In this time of historical development of our Diocese, it has become imperative to have a Serbian monastery … We hope that the Serbian spirit of church-building, the spirit of our forefathers once again shines upon us and so leave a monument in this fine and friendly country, Australia … We will have a place where we can come, rest and quench our spiritual thirst. We will be happy on this small piece of ‘Serbian soil’ which we have through our own efforts and love secured.”

On 3 February 1979 a meeting of the Diocesan Council of the FSOC-ANZ diocese and representatives of church-school congregations and national organisations discussed what was called the “all vital issue” of building a monastery. Approval was given for the collection of funds through the “St Sava Monastery (Missionary) Fund which would try to locate a property.
On 23 November 1979 Bishop Petar (described as Bishop-Administrator of the Free Serbian Orthodox Diocese for Australia and New Zealand) published an appeal for the raising of funds for the construction of a monastery. Five thousand copies of the appeal were sent out. He asked the parishes to assign diligent and capable members the task of collecting donations for the building of the monastery, diocesan centre, youth hostel and home for the aged. He stated that a place had been found which would be suitable to have a Serbian Orthodox monastery built on it.
In May 1979 Bishops Dionisije and Dimitrije both died. At the Sixth Sabor of the Free Serbian Orthodox Church ANZ Diocese held in Sydney in December 1979 Bishop Irinej from the American Diocese put to the Sabor a motion that Bishop Petar be installed as the official bishop for the diocese. The Sabor ratified that decision and Bishop Petar became the second bishop for the diocese for Australia and New Zealand. This was not the mode of election provided for by the 1976 constitution whereby the Church National Assembly (Sabor) was to elect a bishop from two or three candidates proposed by the Diocesan Council, but the appointment was nonetheless made by the Sabor.
The property at Wallaroo Road was purchased on 24 November 1980. The purchaser was “THE FREE SERBIAN ORTHODOX CHURCH DIOCESE FOR AUSTRALIA AND NEW ZEALAND, a body incorporated in the State of New South Wales”. The FSOC-ANZ Diocese was not an incorporated body. But there is no question but that the property was acquired for the purposes of the FSOC-ANZ diocese. On 30 December 1981 the property was transferred to the Property Trust Company for nominal consideration.
The book called “Serbs in Australia” (which was admitted without objection as evidence of the facts referred to in it) stated that by 11 October 1980 almost $140,000 had been collected in donations. A bank loan for the balance of the moneys required to purchase the property was taken out.
In January 1981 the site of the monastery at Wallaroo Road, Wallaroo was blessed and dedicated to St Sava by Bishop Petar in the presence of, amongst others, Bishop Irinej from the Free Serbian Orthodox Church America-Canadian Diocese. A banquet was attended by over 5,000 people.
Mr Ilija Veselinovic was a member of the Diocesan Council of the FSOC-ANZ diocese. He deposed that although the Diocesan Council had some funds from donations raised over the previous years, those funds were not enough to purchase the land. The Diocesan Council resolved to raise further funds from the congregations to acquire the land. Mr Veselinovic received donations from many of the faithful from all around Australia to assist with the purchase of the land and the construction of the monastery. The FSOC-ANZ Diocese owned a house in Cabramatta which was used as the Bishop’s residence. The diocese sold that house and put the moneys towards the purchase of the monastery property. (The property acquired included a residence that could be used as a residence for the Bishop as well as other facilities.) Mr Veselinovic deposed that by the end of 1981, after receiving many donations and after the sale of the Bishop’s residence in Cabramatta, over $250,000 had been raised. There were additional donations of materials and labour.
Donations of money, labour and materials continued after the acquisition of the land and the commencement of construction of the monastery building. The donations continued to be received during the 1980s.
When the monastery property was purchased there were several buildings in existence, including a residence that was used as the bishop’s residence, an incomplete hall and incomplete units for residents. Construction of the monastery church commenced in about 1984. The buildings constructed on the site (or which were already there), were the monastery church, a bishop’s residence, a hall, some units, a dormitory, a dining-room/kitchen and another brick building whose use was not identified. There are extensive grounds which include tennis courts and a football field. Although the initial appeal in November 1979 sought donations for the projects of building the monastery, a diocesan centre, a youth hostel and a home for the aged, it does not appear that the land was used for the construction of a youth hostel or a home for the aged. The primary focus of the various appeals that were made to the faithful was for the provision of funds for the construction of a monastery and the discharge of debts which were incurred in connection with its acquisition and construction.
The buildings that were on the site on its acquisition were described as the monastery even before the construction of the monastery church. Thus, in “Serbs in Australia” it was reported that the Seventh Sabor for the diocese was held for the first time in the new monastery at the end of 1982. At that time voluntary workers were “putting up the roof of the monastery flats”. In his report to the Sabor Bishop Petar stated:

“For two years now we have our Free Monastery … it requires much work and sacrifice in order that that which is not completed be completed. We need to build the monastery church which will be the pride and joy of all Serbs in the free world, particularly those in Australia … so let each one of us do his work, let us be good Orthodox Serbs who respect God’s laws as they are unchangeable and eternal.”

The cornerstone was blessed on 18 November 1984. In attendance was Prince Andrej and Princess Eva-Marie and Metropolitan Irinej and Bishops Basil and Petar, as well as nine priests. Metropolitan Irinej referred to the Serbian tradition of building churches and monasteries that were spiritual fortresses and a witness to future generations of the faith of those who built them.
Part of the funds used to acquire the land and construct the buildings and associated facilities that comprised the monastery came from existing diocesan funds, part from funds raised by church-school congregations, and part from individual donations from many people. Part of the contributions to the monastery were in the form of voluntary labour and part in the form of the provision of materials.
After the monastery church was built it was consecrated in January 1990. According to the work “Serbs in Australia” a further $400,000 was donated over the Consecration weekend, but there was still a debt of some $800,000 which included many items incurred for the consecration itself. In 1990 Archimandrite Sava issued a circular advising that there was still $350,000 of bank debt owed. The loan was paid off by the end of 1991.
The book “Serbs in Australia” records that during 1986 the monastery community increased in size with new residents, both men and women. The monastery was a community of some of the faithful as well as a church and related facilities. It is not clear how many of the community were monks or nuns. Bishop Irinej deposed that at first the monastery property was used as a monastery for monks and then for nuns. He said that in the Serbian Orthodox Church monasteries are not cloistered but are all-purposes places which people from outside the monastery can visit. Monks and nuns were re-installed in the monastery from around mid-2007, but there were none there by February 2013.
Thus, moneys were raised from 1980 to 1991 for the purposes of the acquisition of the land on which the monastery stands, for the construction of the monastery, and to repay debt which was incurred in connection with the monastery. Those donations were made for the purposes of the monastery of the FSOC-ANZ Diocese and facilities associated with it, as the FSOC-ANZ Diocese was constituted from time to time. That period spanned events described below, in particular, the formation of the Free Serbian Orthodox Church, 1985 resolutions of the Eighth Sabor, amendments to the 1976 constitution effected in 1988, and resolutions of the extraordinary Sabor on 22-23 June 1991 accepting the Reconciliation Proposal.
There being no trust instrument, the identification of the trust purpose depends on what the intentions were of those who contributed to the acquisition of the land and construction of the monastery and related facilities. Regard may also be had to the use to which the property was put from which the contributors’ intentions can be deduced (Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641 at [149]-[151]).
In my view, the property was acquired by the Free ANZ Diocese and is now held by the Property Trust Company upon a trust for the purpose of building and conducting a monastery, a monastery church, and related facilities for the purposes of the Free ANZ Diocese. It was not acquired for the purposes of the Free ANZ Diocese generally, but for the more specific purpose of building the monastery buildings, including the church, conducting a monastery on the site and conducting church services in the church that was to be built. The monastery as a whole, including the church, was to be used for the purposes of the Free ANZ Diocese. It would be a breach of trust if the monastery were sold in order that the proceeds could be used for the purposes of the Diocese, but there is no suggestion that that is contemplated.

Changes in the Free Serbian Orthodox Church

During this period (1979 to 1991) there was a change to the structure of the wider Free Serbian Orthodox Church. By 1984 there were three dioceses calling themselves the Free Serbian Orthodox Church: one in America and Canada, one in Australia and New Zealand, and one for Western Europe including Britain. On 14 August 1984 an extraordinary Sabor was held in Illinois attended by delegates from each of the dioceses, including Australia. The delegation from Australia was headed by Bishop Petar in the company of a priest and three members of the Diocesan Plenum of the FSOC ANZ Diocese. The bishops and the delegates of the three dioceses unanimously proclaimed the formation of the Free Serbian Orthodox Church and accepted a constitution for that church. That constitution provided for the church to have a more hierarchical structure with less lay involvement.
Article 1 of the constitution provided:

“ARTICLE 1.
The Free Serbian Orthodox Church is unitary, indivisible and autonomous. It was established to preserve Serbian Orthodoxy in the Diaspora as it was confessed through the centuries by the autocephalous Serbian Orthodox Church in the Serbian Fatherland which presently is oppressed by a militantly atheistic communist regime. It publicly confesses its religious teachings, publicly performs its religious services, and independently controls and regulates its ecclesiastical-religious affairs and temporal affairs.”

Article 5 provided:

“ARTICLE 5.
The structure of the Free Serbian Orthodox Church is: ecclesiastical-hierarchical and ecclesiastical-administrative.”

Articles 7 and 18 provided in substance that the primate of the Free Serbian Orthodox Church was the Metropolitan who was to be selected by an Hierarchical Synod. The Synod was to be made up of the Bishops of the Free Diocese outside the Homeland. Article 19 provided:

“ARTICLE 19.
…
The Hierarchical Synod is the supreme administrative, supervisory, judicial and executive authority of the Church-national sabor of the F.S.O.C.”

Article 22 provided that the duties of the Hierarchical Synod included:

“ARTICLE 22.
…
5.    [maintaining] an official list of candidates for the rank of bishop and [concerning] itself with the education and preparation of these candidates and [taking] care of the selection of bishops;
6.    [assisting] the diocesan hierarchs in the performance of their duties;
7.    [maintaining] supervision over dioceses without a bishop and [appointing] administrators.
…
10.    [maintaining] supervision over the work of the diocesan bishop.
…
23.    In the second and last level of jurisdiction:
a.    [mitigating] the judgments of the High Ecclesiastical Court on the proposal of the authoritative bishop prior to their being carried out: in cases of lifetime prohibition against priestly-action, and deprivation of priestly rank with and without exclusion from the church community and disciplinary punishments of teaching personnel in seminaries.”

Article 23 provided for the establishment of a High Ecclesiastical Court of the Free Serbian Orthodox Church. The High Ecclesiastical Court was to be composed of two diocesan bishops, four members and a “referent”. The members and the referent were to be selected by the Hierarchical Synod. They were to be chosen from persons with higher theological training who had spent a minimum of 10 years in church service. The High Ecclesiastical Court could examine, approve, change or annul decisions and verdicts of Diocesan church courts of stipulated kinds including the annulment of marriage and the deprivation of priestly rank or the final expulsion of lay people from the church community.
Articles 15, 16 and 17 provided for the establishment of a joint Church-National Sabor that was described as being the “supreme ecclesiastical-legislative authority”. The Sabor was to be composed of:

“1. Diocesan hierarchs of the free dioceses.
2. Ten (10) delegates from each diocese of which five (5) are priests and five (5) are lay people who are selected by the Church-national sabor of the respective diocese from its midst.”

The functions and duties of the Church-National Sabor did not include the supervision of the work of Diocesan Bishops or resolving any dispute that a bishop might have with the Hierarchical Synod. The duties of the Church-National Sabor were described in Article 17 as follows:

“ARTICLE 17.
The Church-national sabor of the Free Serbian Orthodox Church has the following duties, to:
1.    Defend the church order of the F.S.O.C.;
2.    Guard and advance the Orthodox faith, Serbian tradition and customs;
3.    Establish institutions and schools for the production of church paintings, church adornments and religious books;
4.    Establish church museums or depositories for the preservation of relics and commemorative issues, as well as church libraries;
5.    Make decisions regarding the maintenance of the F.S.O.C.; and
6. Perform all remaining business which pertains to its authority according to this Constitution.”

Article 33 provided:

“ARTICLE 33.
This Constitution was adopted at the Church-national sabor of the Free Serbian Orthodox Church on August 10, 1984, and becomes effective when it is accepted by the Church-national sabors of all three dioceses.”

If implemented at diocesan level the constitution of the Free Serbian Orthodox Church would have effected important changes to the governance of the Free ANZ Diocese. Instead of being responsible to the Diocesan Council and the Diocesan Church National Assembly the Bishop would be subject to the supervision of the Hierarchical Synod consisting of bishops of the other dioceses. The Hierarchical Synod would be responsible for maintaining a list of candidates for the rank of bishop and would “take care of” the selection of the bishop. Under the 1964 and 1976 constitutions of the Free ANZ Diocese the nomination and election of the bishop was the responsibility of the Diocesan Council and the Church National Assembly. The “joint Church-National Sabor” of the Free Serbian Orthodox Church would have a majority of clerical, rather than lay, representation. The Hierarchical Synod would maintain supervision over dioceses without a bishop and could appoint administrators. Under the 1976 constitution, there was no power to appoint an administrator and the affairs of the diocese were to be administered by the Diocesan Council and the Ecclesiastical Court until a new bishop was elected.
The first to fifth defendants submit that the Free Serbian Orthodox Church was a new religious association consisting of the three existing dioceses, but its establishment did not alter the continuing constitution of the Free ANZ Diocese or change the nature or the fundamental tenets of the Free ANZ Diocese. They submitted that the Free Church did not absorb the Free ANZ Diocese into an hierarchical church such that the congregational (or presbyterian) elements of the Free ANZ Diocese were to be ignored.
The correctness of this submission depends upon whether and how the Free ANZ Diocese submitted itself to the 1984 constitution of the Free Serbian Orthodox Church.
The Eighth General Assembly of the Free ANZ Diocese was held between 28 and 30 December 1985. The journal of the church, the Diocesan Messenger, reported that:

“The Eighth General Assembly … has unanimously accepted the constitution of the Free Serbian Orthodox Church, and ratified the Metropolitanate.

Over one hundred delegates from among the clergy and laity of the church-school congregations and members of national organisations and the Diocesan Plenum, met on 28, 29 and 30 December 1985, for this extremely important General Assembly.

…

The first major issue placed before the Assembly was the constitution of the Free Serbian Orthodox Church. His Eminence Metropolitan Iriney explained in great depth, the background, essence and meaning of the Metropolitanate. Without hesitancy or debate, the Assembly unanimously ratified the constitution of the Free Serbian Orthodox Church and the Metropolitanate. The delegates were especially pleased with the formation of the Holy Synod of Bishops and the Supreme Ecclesiastical Court.

…”

The resolutions passed at that Assembly included:

The role of Bishop Ambrose as bishop of the OCOCG-HSIR answerable to the synod of that church and at the same time Bishop of the Free ANZ Diocese not responsible to that synod is dubious. Archbishop Chrysostomos, who is also a member of the synod of the OCOCG-HSIR described the situation as very irregular. Archbishop Chrysostomos said that as a matter of canon law it was not prohibited for a person to be a bishop at the same time in two different Orthodox churches, but it was irregular.
The affiliation of the Free ANZ Diocese with the OCOCG-HSIR was carried out to an extent that it became very closely associated with the OCOCG-HSIR. Thus Bishop Ambrose received Father Saracevic as a priest of the OCOCG-HSIR in late 2007. Bishop Ambrose received Father Jovic into the OCOCG-HSIR in 2010. On 27 June 2012 he ordained Father Vlajic as a priest of the OCOCG-HSIR. Prior to his ordination Father Vlajic was a deacon in the Serbian Orthodox Church. He had been suspended from that position and was then being punished for having allegedly stolen money, a charge he denied. He answered an advertisement on the internet for a position of priest in Australia. He left without a canonical release. Father Vlajic served at the church of King Stefan of Dechani, Carrum Downs since mid-2012. Bishop Ambrose appointed Father Hristifor as abbot of the St Sava Monastery and also as a priest serving the church-school congregation at St Nicholas, South Brisbane in November 2013. Father Hristifor had been ordained a deacon in the Serbian Orthodox Church in October 2008. He left the Serbian Orthodox Church without a canonical release. He knew that was contrary to canon law. He left the Serbian Orthodox Church for what he called “personal reasons”.
At no time prior to the hearing were any of the priests who had been received or ordained into the OCOCG-HSIR appointed by Bishop Ambrose as priests of the Free Serbian Orthodox Church. Bishop Ambrose said that this was an administrative oversight on his part. It was corrected after he gave evidence. Until then, the priests administering the churches that described themselves as being part of the Free ANZ Diocese were serving as priests of the OCOCG-HSIR.
The website of the OCOCG-HSIR included in its list of parishes and churches the church of St Stefan Dechani, Carrum Downs and St George, Forrest. It also included the monastery as part of its diocese.

Conclusions on the Spirit of the Trust

The close association of the Free ANZ Diocese with the OCOCG-HSIR is not in accordance with the original spirit of the trust. It was not part of the original spirit of the trust that the Free ANZ Diocese took any particular view on the issue of ecumenism. It had no occasion to take any view upon the use of the Old Calendar. Whilst ethnicity is not part of the Orthodox Church tradition, the spirit of the trust was for the use of the monastery by a church with a distinctly ethnic and nationalist Serbian focus. The OCOCG-HSIR does not have that focus. Its roots lie in a dispute concerning the adoption of the Old Calendar by the church of Greece; something with which the Free Serbian Orthodox Church had nothing to do. Bishop Ambrose is an Englishman. Whilst Bishop Ambrose, as Bishop of the Free ANZ Diocese, acts separately from his position as a bishop of the OCOCG-HSIR, there is nonetheless a close association between the two churches of a kind that is not in accordance with the original spirit of the trust on which the monastery was established.
I also accept the submissions of the plaintiffs and the Attorney-General that the association of the Free ANZ Diocese with the OCOCG-HSIR is contrary to the spirit of the trust upon which the monastery was founded in that that association is inimical to any future reconciliation between the Free ANZ Diocese and the Serbian Orthodox Church. It was part of the original spirit of the trust that such a reconciliation was something devoutly to be wished. But whilst Bishop Ambrose is bishop of the Free ANZ Diocese, or the association of the Free ANZ Diocese with the OCOCG-HSIR continues, such a reconciliation could only be achieved if the issue of the use of the New Calendar and issues concerning ecumenism were resolved by a Greater Orthodox Synod (that is, a council of all or substantially all Orthodox churches) to be held at some time in the future. As no such Greater Synod has been convened during the 90 years over which these issues have festered, there is no reason to think that it might happen in a reasonable time in the future. The Free ANZ Diocese’s association with the OCOCG-HSIR is likely to be counterproductive to any future reconciliation of the remaining members of that diocese with the Serbian Orthodox Church. This obstacle to reconciliation is not in accordance with the spirit of the trust.
To apply the monastery in the circumstances that now exist would be contrary to the spirit of the trust in the following respects. First, the original spirit of the trust was that it was a trust for the benefit of all of the church-school congregations and associated organisations who formed the Free ANZ Diocese. The character of that organisation has changed markedly. Only a rump of that organisation now remains. Many of those who do remain, or at least their leaders, were persons who acted contrary to the terms of the constitution of the Free ANZ Diocese by acting contrary to the directions of the diocesan authorities, namely Bishop Irinej and the Diocesan Council, albeit under provocation.
Secondly, the spirit of the trust was that the monastery be held for the purposes of a church that was Serbian, in nationality and ethnicity. The monastery was to be a continuation of a tradition of the Serbian Orthodox Church. The Free ANZ Diocese has departed from that spirit by affiliating itself with the OCOCG-HSIR and appointing an Englishman, Bishop Ambrose who is a bishop of that church. His position as bishop of two churches both professing the Orthodox faith is irregular.
Thirdly, it was part of the original spirit of the trust that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church. That purpose is likely to be frustrated whilst the Free ANZ Diocese remains associated with the OCOCG-HSIR.
I have found that the original division of the Serbian Orthodox Church and the Free Serbian Orthodox Church was not a division on a point of religious principle, but on a matter of church politics. For the monastery to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with any religious principle of the Free ANZ Diocese.
However, it would be inconsistent with part of the original spirit of the trust if the monastery were not available for the purposes of all of what were the constituent elements of the Free ANZ Diocese and their successors. To deprive those who adhere to the Free ANZ Diocese of the benefits of the use of the monastery is not in accordance with the spirit of the trust. But this has to be weighed against the facts favouring the making of an order to alter the original trust purposes.
In Varsani v Jesani [1999] Ch 219 the Court of Appeal in England held that a cy-près scheme could be ordered pursuant to s 13(1)(e)(iii) of the Charities Act 1993 (UK), which is in relevantly similar terms to s 9 of the Charitable Trusts Act, because schism within a Hindu sect meant that the original purposes of the trust had ceased to provide a suitable and effective vehicle for using the trust property having regard to the spirit of the gift at the time the two groups were in harmony. The Court of Appeal held that the spirit in which donors gave property upon trust for the promotion of a Hindu religion was that it provide facilities for a small but united community of followers. Because of a division of that group, with each faction believing that it alone continued to profess the true faith, the original purposes of the trust had ceased to provide a suitable and effective method of using the trust property. The Court of Appeal held that a scheme for settlement of the trust property could be directed without an inquiry as to which of the two sides of the schism more closely adhered to the original religious purposes of the sect.
Following the decision of the Court of Appeal, Patten J subsequently directed that the larger of the two sides of the schism should be entitled to use the temple. Other trust property was sold for the purposes of providing a property which could be used by the smaller side. Patten J, as he was bound to do, said that it would be contrary to the decision of the Court of Appeal for the Court to make a “qualitative distinction between the two groups in terms of their status as adherents to this branch of the Swaminarayam faith.” He divided the property of the charity on the basis of what each group would require in order to continue the practice of their faith in a way which would cause least offence to each group, would respect the dignity and integrity of each group, and would minimise the risk of future conflict (Varsani v Jesani [2002] 1 P & CR DG 11 at [11]).
In White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 Briggs J said (at [19]):

“19. While it is necessary to be cautious when seeking to extract principles from cases decided on particular (and different) facts, I consider that the Varsani’s case provides the following useful guidance relevant to the question whether the court's cy-près jurisdiction is engaged in the circumstances of this case. First, the court is ill-equipped to determine by reference to issues of belief or ecclesiastical order which of two or more groups emerging from a schism represent the true faith. Secondly, it will usually be unnecessary to do so in the context of a cy-près application under section 13(1)(e)(iii) of the 1993 Act. This is because, in relation to property donated to a religious charity prior to the relevant schism, the spirit of the gift is to be ascertained as at the time when the gift was made, and the schism will, of itself, commonly lead to the results (i) that the appropriation of the whole of the property to the use and control of one of the emerging factions will be contrary to the spirit of the gift, and (ii) that the use of the donated property for the advancement of the religion of one of those factions, to the exclusion of any others, will no longer be a suitable and effective method of using that property. This will (as on the particular facts of Varsani’s case) almost inevitably be the consequence where the schism has the effect of dividing a previously united worshipping congregation into incompatible factions which can no longer worship together. …”

Mr Blake SC and Mr Edwards who appeared for the first to fifth defendants submitted that this approach elevated the spirit of the trust above the original purposes of the trust and could not be supported as a matter of statutory construction. I do not accept this criticism. Whether the original trust purpose is providing a suitable and effective method of using the trust property must be gauged against the spirit of the trust.
A difficulty I have with the approach taken in Varsani v Jesani is that where the condition for the exercise of the statutory power is satisfied, the order that can be made is for the application of the trust property “cy-près”, that is, as nearly as possible to the original trust purpose, but in a way which provides a suitable and effective method for using the trust property. That is to say, a cy-près scheme should provide a suitable and effective method for using the trust property having regard to the spirit of the trust, but, subject to that requirement, it should adhere as closely as possible to the particular manner in which the settlors of the trust sought to achieve their general charitable intention.
The particular difficulty which arose in Varsani v Jesani does not arise in the present case. In this case there is no relevant difference in faith of the two groups. It is true that the Extended Plenum held on 29 December 2007 and the Church National Assembly held on 29 December 2012 rejected the doctrine of ecumenism and this is a point of difference in religion between the current two competing groups. But it was not an issue of religious principle for the Free ANZ Diocese when the trust was established. No question arises as to which group is more closely aligned to the opinion of the Free ANZ Diocese on the issue of ecumenism at the time the trust was established because it does not appear that this was an issue that troubled the Free ANZ Diocese at that time.
I have concluded that the changes to the character of the Free ANZ Diocese since the trust was established and the migration of the majority of the church-school congregations that were formerly part of the Free ANZ Diocese to the SOC-ANZ Metropolitanate mean that not only has the existing trust purpose ceased to provide a suitable and effective method for using the monastery having regard to the spirit of the trust, but that the use of the monastery for the purposes of the SOC-ANZ Metropolitanate would be closer to the original trust purpose, having regard to the spirit of the trust, than would its continued application for the purposes of the Free ANZ Diocese.
Neither the plaintiffs nor the Attorney-General submitted any details of a cy-près scheme. In their statement of claim the plaintiffs sought an order that the original purposes of the charitable trust be altered to allow the property to be applied cy-près towards the maintenance and propagation of the Orthodox Christian faith through the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church. No other details of a cy-près scheme were identified.
I accept that an order should be made to allow the monastery to be applied substantially in the way proposed by the plaintiffs. But to the extent practicable, the monastery should also be available to those individual members and organisations associated with the current Free ANZ Diocese, provided that their use of the monastery property is not inimical to its use by the ANZ Metropolitanate of the Serbian Orthodox Church. The monastery consists of more than the monastery church. I accept that it would be impracticable for the monastery church to be used by priests of the Free ANZ Diocese or the OCOCG-HSIR who are not in communion with the Serbian Orthodox Church. The evidence is that if that were to happen the church would have to be re-blessed before it could be used again by the Serbian Orthodox Church, although the reasons for that were not clearly explained. But there is no reason that individual members of the Free ANZ Diocese could not attend church services of the Serbian Orthodox Church in the monastery, or use the monastery church for private prayer. The OCOCG-HSIR and, I assume, Bishop Ambrose in both his capacities, do not consider that the Serbian Orthodox Church is without grace. There is no reason that I can see that other parts of the monastery, including its sporting or recreational facilities, could not be used by individuals or organisations associated with the Free ANZ Diocese. No evidence was presented that would suggest that this was impracticable. It may be that relations between the different factions have reached such a point that any attempt to accommodate the interests of both would be productive of more friction. But if not, the original purposes of the trust would be more closely followed if arrangements were in place that would permit the use of the monastery by adherents to the Free ANZ Diocese as well as to the Serbian Orthodox Church.

Should the Plaintiffs be Refused Equitable Relief?

The first to fifth defendants submitted that the plaintiffs should be refused equitable relief because Bishop Irinej had repudiated the charitable trusts on which the monastery was held. I accept the evidence of Archbishop Chrysostomos that under both Scripture and canon law, the imposition of ecclesiastical discipline presupposes a right of procedural fairness or due process (e.g. John 7:51 and see also Acts 25:14-26:32). Archbishop Chrysostomos quoted St Theophylact of Ohrid, commenting on the passage from the gospel of St John, that “the law commanded that no-one condemn a man without first judging [i.e., trying] him. By doing just that, the Pharisees obviously transgressed the law.” I accept Archbishop Chrysostomos’ opinion that the canons, in accord with Scripture, presuppose the principle of due process in the ultimate resolution of any case. He said that in the exercise of a bishop’s discretionary power to protect the vulnerable, the public, and the institution of the church itself in difficult situations, the canons permit a bishop to exercise his discretionary authority through initial ecclesiastical discipline, but the exercise of preliminary disciplinary actions is only provisional. They anticipate a properly constituted court of second instance wherein due process would come into play. I accept that opinion. No such process was offered to Mr Nesic or to various other individuals.
However, it does not follow that the plaintiffs should be denied equitable relief. Bishop Irinej is not seeking to assert any personal rights. The question whether the trust purposes should be altered cy-près is one that affects the interests of the members of both churches and not just the Bishop personally. More fundamentally, it involves giving effect to the discerned intentions of those who contributed to the establishment of the monastery. I do not consider that criticism of the Bishop’s actions should provide a basis for withholding cy-près relief if the grant of that relief is otherwise appropriate.
The first to fifth defendants relied on observations of Young CJ in Eq in Radmanovich v Nedeljkovic at [207]-[210]. That case concerned the trust of church buildings for a Serbian Orthodox church-school community at Elanora Heights known as the Warriewood Community of St Sava. The plaintiffs sought a declaration that the property was held on trust for the church-school community as an autonomous body with respect to the management of its real and personal property. The defendants sought declarations that the property was held on trust for the religious and charitable purposes of the SOC-ANZ Diocese, being part of the Serbian Orthodox Church. The defendants sought the removal of two of the trustees and their replacement with two individuals sympathetic to the defendants. They sought orders in relation to the management of the church-school community. Young CJ in Eq held that the land was held on trust for the purposes of a Serbian Orthodox Church and subject to relevant parts of the constitution of the SOC-ANZ Diocese and the rights of members of the unincorporated association known as the First Serbian Orthodox Community of St Sava in Warriewood to participate in the affairs of that association in accordance with rules adopted in 1950. His Honour recorded (at [62]-[66]) that in 1998 rival meetings had been held of members of the church-school community. A majority of members attended one meeting that purported to adopt a new set of rules. A smaller meeting was called by the Bishop and it purported to remove the committee and elect a rival committee. The plaintiffs (being trustees of the land) were charged before a church court with disobeying the Bishop and were sentenced to be excommunicated. There were some attempts at reconciliation. The sentences of excommunication were modified to suspension, but, after a flare-up, the sentences of excommunication were reimposed, either by the Bishop or the ecclesiastical court. Young CJ in Eq said of these matters:

“(b) The Excommunications
[207] Although little significance was put on the fact of the excommunications in 1998, I considered that they had great significance. Whilst, if the defendants' arguments were correct, the excommunications might be seen as a necessary step to preserve essential discipline in the church, if the plaintiffs are correct, the excommunications present very considerable practical problems in carrying out the trusts.

[208]    Whilst the Court will not usually enquire into an excommunication from a church based on theological grounds, the present excommunications, if the plaintiffs are correct, flowed from their attempts to administer the trusts laid on them in a proper and legal manner. Those trusts involved using the buildings inter alia so that the people could worship in the style of the Serbian Orthodox Church. However, by their actions, the hierarchy may have made that impossible and have repudiated the trusts.
[209]    There have unfortunately been many court cases involving the Orthodox Churches in Australia. In almost all of them part of the problem has been that the European idea of banishing all opponents by excommunication has come up against the Australian ethos of unity in diversity, tolerance and democracy. Experience has shown that if the hierarchy excommunicate the lay leaders of an Australian parish, the whole Church's mission will be detrimentally affected, not the least by the passing of hundreds of thousands of dollars from the Church's funds into the pockets of lawyers.
[210]    The great problem for the defendants is that under the 1950 Rules it requires a unanimous vote of all the members of the Church School Community to change the rules. It would not seem, though the point has not been argued, that the fact of excommunication prevents the plaintiffs from exercising their rights as members. Further, the fact of the excommunication and its status being maintained during the hearing of the suit and the absence of any offer by the defendants to do equity may mean that no meaningful relief can be given on the defendants' cross-claim.”

It is unfortunate that what Young CJ in Eq said in para [209] was not heeded in this case. However, with respect, it is not clear how Young CJ in Eq contemplated that the fact of excommunications might have affected the defendants (cross-claimants) in Radmanovich v Nedeljkovic. Young CJ in Eq did not need to take the matter further. It does not appear that his observations were based on any doctrine of unclean hands. It is not clear what offer to do equity the defendants might have been required to make which was precluded by their insistence on the excommunications being effective.
I do not consider that the criticisms of the Bishop’s conduct in the present case, although substantially justified, provide any basis for not making a cy-près order, nor for refusing an order for the removal of the Property Trust Company as trustee. The latter order is inevitable once it is determined that a cy-près order should be made to provide substantially for the monastery to be held for the purposes of the ANZ Metropolitanate.
Although it is not relevant to the legal issues to be determined, nonetheless, in fairness to him, I should say that Bishop Irinej’s actions were taken in good faith for the purpose of fully implementing what he considered to be the assimilation of the NGM-ANZ Diocese into the Serbian Orthodox Church. Bishop Irinej’s conduct, although itself provocative, was also the result of provocation by a disaffected minority.
I will direct that the plaintiffs and the Attorney-General prepare a draft cy-près scheme for the use of the monastery for the purposes of the SOC-ANZ Metropolitanate and that so far as practicable the scheme include provisions that would permit individual members or organisations associated with the Free ANZ Diocese access to the monastery. The plaintiffs and the Attorney-General should seek consultation with Bishop Ambrose, if he is prepared to co-operate, or persons nominated by him for that purpose, as to the details of such a scheme.

Conclusions and orders

For these reasons I have reached the following principal conclusions:

the monastery was and is held by the Property Trust Company upon a trust for the purposes of building and conducting a monastery, a monastery church and related facilities for the purposes of the Free ANZ Diocese as constituted from time to time;

as submitted by the first to fifth defendants, only limited amendments were made to the 1976 constitution in 1988;

neither the Reconciliation Proposal, nor the Transitional Regulations, nor the change of name, nor the acceptance by the NGM-ANZ Diocese of the appointment by the Holy Assembly of Bishops in Belgrade of bishops or a bishop-administrator to the NGM-ANZ Diocese, nor the concelebration of the liturgies by clerics of the SOC-ANZ Diocese and the NGM-ANZ Diocese, nor any other events prior to the holding of the meetings on 3 and 4 September 2010 resulted in the NGM-ANZ Diocese’s having merged with the SOC-ANZ Diocese;

Bishop Irinej was entitled to exercise the authority of Bishop of the NGM-ANZ Diocese as provided for in the 1976 constitution. This included authority to supervise the monastery;

the rejection by the Property Trust Company of Bishop Irinej’s authority to supervise the monastery, the exclusion of Bishop Irinej and of persons authorised by him to attend the monastery and to conduct services in the monastery church, and the allowing of Father Saracevic to conduct services in the monastery church between 2008 and 2010, were breaches of the trust on which the monastery was held;

those breaches of trust should not be excused;

the resolution of the Church National Assembly of the NGM-ANZ Diocese on 4 September 2010 to adopt a new constitution whereby the NGM-ANZ Diocese purportedly ceased to exist as a separate association was invalid on the grounds that:

the constitution of the NGM-ANZ Diocese did not permit its dissolution or its amalgamation with the SOC-ANZ Diocese into the ANZ Metropolitanate; and

four church-school congregations were not invited to and did not attend the meetings of 3 and 4 September 2010 by duly appointed delegates, and it is not open to the plaintiffs, nor to the Attorney-General, to contend that those church-school congregations were not entitled to attend because they had already left the NGM-ANZ Diocese;

the other grounds on which the first to fifth defendants challenged the validity of the resolution of 4 September 2010, including the ground that entering into a union with the Serbian Orthodox Church was contrary to a fundamental purpose of the trust, have been rejected;

the monastery is not presently held on trust for the purposes of the SOC-ANZ Metropolitanate;

having regard to the matters put in issue it cannot be concluded that the NGM-ANZ Diocese (now again called the Free ANZ Diocese) has ceased to exist. But its character is very different from the character of the Free ANZ Diocese when the trust was established;

because the Free ANZ Diocese has not ceased to exist and continues to function, including through the use of the monastery, it remains possible to execute the trust and there would be no ground at general law for making a cy-près order to alter the purposes of the trust;

the spirit of the trust included that:

the monastery would be available for the use of all of the members of the Free ANZ Diocese as it then existed and their successors;

the monastery would be a piece of Serbian soil in Australia, that is, the monastery and the church that used it, would be a Serbian church;

the establishment of the monastery would be a continuation of a centuries-old tradition of the followers of the Serbian Orthodox Church who had built monasteries to preserve their holy heritage;

the monastery would be used for the purposes of a church that it was hoped would one day reunite with the Serbian Orthodox Church when the reason for the division that prevailed when the monastery was established was removed; and

the monastery would be used by members of the Free ANZ Diocese that was led by a bishop having apostolic succession.

as a corollary of (l)(iv), the permanent independence of the Free ANZ Diocese from the Serbian Orthodox Church was not part of the spirit of the trust;

opposition to ecumenism was not part of the spirit of the trust, nor a principle of the Free ANZ Diocese. The division within the Free ANZ Diocese from 2007 was occasioned by matters of church politics, not faith. Use of the monastery by the ANZ Metropolitanate would not be inconsistent with any religious principle of the founders of the monastery;

Bishop Ambrose has apostolic succession, but his position as Bishop of the Free ANZ Diocese and also a Bishop of the OCOCG-HSIR is irregular;

the affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the appointment of Bishop Ambrose as Bishop of the Free ANZ Diocese is not consistent with the spirit of the trust;

because:

those persons now forming the Free ANZ Diocese are only a small minority of the successors to the members of the Free ANZ Diocese at the time the trust was established;

use of the monastery for the purposes of the ANZ Metropolitanate would be consistent with the spirit of the trust;

the affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the appointment of Bishop Ambrose as Bishop is inconsistent with the spirit of the trust,

the original trust purpose has ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust;

the trust purpose should be altered pursuant to s 9 of the Charitable Trusts Act to allow for the monastery to be used for the purposes of the SOC-ANZ Metropolitanate;

for the trust purpose to be altered cy-près, consistently with the spirit of the trust, the monastery should be held and used not only for the purposes of the SOC-ANZ Metropolitanate, but to the extent it is not inconsistent with that purpose and is practicable having regard to the need to avoid conflict, it should be available for use also by those individuals and organisations that form or are part of the Free ANZ Diocese. Whilst this does not mean that the monastery church could be used by priests or the Bishop of the Free ANZ Church, or by the priests of other churches that are not in communion with the Serbian Orthodox Church (this being inconsistent with the use of the church for the purposes of the SOC-ANZ Metropolitanate), to the extent it is possible to do so without provoking conflict, other facilities of the monastery should be available to the individuals and organisations forming or being part of the Free ANZ Diocese, provided workable arrangements can be made for that to be done. Individual members of the Free ANZ Diocese should not be denied access to the church for the purposes of private prayer;

the Property Trust Company should be removed as trustee of the trust and the second plaintiff appointed as trustee in its place. A vesting order will be made and the Property Trust Company will be required to transfer title of the land to the second plaintiff;

the plaintiffs and the Attorney-General will be directed to prepare a scheme to give effect to the cy-près purpose so declared.

For these reasons I propose to make the following declarations and orders, subject to any submissions counsel for any of the parties may have as to their form or sufficiency:

1. Declare that the land at 453 Wallaroo Road, Wallaroo, NSW, being the land described in Folio Identifier 1/248210 and the buildings thereon (“the monastery”) is held by the first defendant upon a charitable trust for the purpose of conducting a monastery, a monastery church and related facilities for the purposes of the unincorporated association known as the Free Serbian Orthodox Church – Diocese of Australia and New Zealand (“the Free ANZ Diocese”).

2. Declare that the trust purpose on which the first defendant holds the monastery has ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust.

3. Order that the first defendant be removed as trustee of the trust and that the second plaintiff be appointed as trustee in its place.

4. Order that the monastery vest in the second plaintiff.

5. Order that the first to fifth defendants forthwith do all that is required on their part to transfer title to the monastery to the second plaintiff.

6. Order pursuant to s 9 of the Charitable Trusts Act 1993 that the terms of the trust on which the monastery is held by the first defendant, and is to be held by the second plaintiff, be altered to provide that the trustee hold and use the monastery for charitable purposes of the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church provided that:

a) to the extent that to do so is not inconsistent with the said purpose; and

b) to the extent that to do so is practicable having regard to the need to avoid conflict,

the monastery be available for use not only for the purposes of the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church, but also be available for use by those individuals and organisations that comprise or form part of the Free ANZ Diocese.

7. Direct that the plaintiffs and the Attorney-General, after consultation with Bishop Ambrose, if he is willing to participate, or any persons nominated by him for that purpose, prepare a scheme, in accordance with the reasons for judgment published on 29 May 2015, to give effect to the trust purpose as so altered.

8. Order that within seven days the second defendant withdraw caveat no. U58320C.

9. Order that the plaintiffs’ claim for relief, save as to costs, be otherwise dismissed.

I will stand the proceedings over to a convenient date to hear any argument on the declarations and orders to be made to give effect to these reasons, including as to whether an order should be made appointing the first to fifth defendants as representatives of the interests of the individuals comprising the Free ANZ Diocese. I will then deal with any issue as to costs.

Amendments

02 June 2015 - sub-paragraph lettering added to paragraph 521

Decision last updated: 02 June 2015

Medium Neutral Citation:	Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637
Hearing dates:	10, 12-14, 17-21, 24-28 February; 3-7, 10-14, 19-21 March 2014
Decision date:	29 May 2015
Jurisdiction:	Equity Division
Before:	White J
Decision:	Refer to para [523] of judgment.
Catchwords:	VOLUNTARY ASSOCIATIONS – CHURCHES AND RELIGIOUS ORGANISATIONS – interpretation of unincorporated religious association’s constitution – validity of amendments to constitution – whether association had power to dissolve itself or to merge with another association – whether members of association could validly dissolve or merge the association by majority vote at a meeting – whether resolutions were validly passed at meetings to amend constitution – where practice or usage of the association was inconsistent with its constitution – held that: (1) the usage and practice of the association effected an implied amendment to the method of appointing bishops and to permit the appointment of bishop-administrators, such that the appointment of the first plaintiff as bishop-administrator of the association was valid; (2) the association’s constitution did not contain a power to dissolve or merge the association; (3) all members of the association must be present to constitute a quorum, there being no rule and no evidence of practice or usage permitting a quorum by less than full attendance; (4) the association was not validly dissolved or merged by any purported resolutions or by practice or usage TRUSTS – CHARITIES – charitable trust in favour of the Free Serbian Orthodox Church (FSOC), an unincorporated religious association – whether implied amendment to the FSOC‘s constitution effected an amendment of the terms of the charitable trust – whether the changes to the constitution constituted a departure from fundamental or essential aspects of the FSOC’s doctrines or principles – held that neither the method of appointing bishops nor the continuation of the FSOC’s separation from the Serbian Orthodox Church (SOC) were fundamental aspects of the FSOC TRUSTS – CHARITIES – cy-près schemes – schism developed within the FSOC – where FSOC was purportedly dissolved or merged with the SOC – whether an order should be made for a cy-près scheme at general law or under s 9 of the Charitable Trusts Act 1993 (NSW) – consideration of the purpose of the trust and the “spirit of the trust” – consideration of the constitution and principles of the FSOC as evidencing the purpose of the trust – held that: (1) the purpose of the trust had been to operate a monastery for the purpose of the FSOC; (2) the spirit of the trust included that the monastery be used by members of the association as a Serbian church; (3) the FSOC had continued in existence, but the changes to its character and membership were such that an order should be made for a cy-près scheme under s 9 of the Charitable Trusts Act to vary the purpose of the trust to provide that the monastery be used for the purposes of the SOC, but that the FSOC be permitted to use the monastery where that is not inconsistent with the trust’s new purpose TRUSTS – CHARITIES – breach of trust – removal of trustee – the first defendant company was the trustee of the charitable trust in favour of the FSOC – the first defendant was controlled by the second to fifth defendants – the first to fifth defendants rejected the authority of the first plaintiff as bishop-administrator of the FSOC, prevented him from conducting services at the monastery and permitted a priest to conduct services at the monastery contrary to the bishop-administrator’s direction – held that: (1) the conduct of the first to fifth defendants was in breach of the trust and should not be excused; (2) the first defendant should be removed as trustee of the trust, and the second plaintiff company should be appointed in its place as the new trustee of the trust , because of the alteration to the trust’s purpose EQUITY – equitable defences – unclean hands – first plaintiff is a bishop of an unincorporated religious association – bishop sought declaratory relief and an order for a cy-près scheme on behalf of the association, and did not assert personal rights – bishop had purported to excommunicate members of the association or deprive them of rights without due process – whether bishop’s conduct should preclude orders being made for a cy-près scheme to vary the terms of a charitable trust in favour of the association – held that the bishop’s conduct did not preclude the granting of relief
Legislation Cited:	Charitable Trusts Act 1993 (NSW) Charities Act 1993 (UK) Trustee Act 1925 (NSW)
Cases Cited:	Attorney-General (NSW) v Grant (1976) 135 CLR 587 Attorney-General (NSW) v Fred Fulham [2002] NSWSC 629 Attorney-General v Gould (1860) 28 Beav 485; 54 ER 452 Attorney-General v Pearson (1817) 3 Mer 353; 36 ER 135 Attorney-General v Sherborne Grammar School (1854) 18 Beav 256; 52 ER 101 Ball v Pearsall (1987) 10 NSWLR 700 Burton v Murphy [1983] 2 Qd R 321 Cotter v National Union of Seamen [1929] 2 Ch 58 Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601 Craigdallie v Aikman (No. 2) (1820) 2 Bli 529; 4 ER 435 Craigie v Marshall (1850) 12 D 523 Daugars v Rivaz (1860) 28 Beav 233; 54 ER 355 Director of Public Prosecutions v Head [1959] AC 83 Doyle v White City Stadium Limited [1935] 1 KB 110 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515 Green v Page [1957] Tas SR 66 Green v The Queen (1891) 17 VLR 329 Harington v Sendall [1903] 1 Ch 921 Hole v Garnsey [1930] AC 472 J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd & Ors [2006] NSWCA 46; (2006) 57 ACSR 149 J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd [2005] NSWSC 238 Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 Lewis v Heffer [1978] 1 WLR 1061 Long v Bishop of Cape Town (1863) 1 Moo PC (NS) 411; 15 ER 756 Macqueen v Frackelton (1909) 8 CLR 673 Master Grocers’ Association of Victoria v Northern District Grocers Co-operative Ltd [1983] 1 VR 195 Milligan v Mitchell (1837) 3 My & Cr 72; 40 ER 852 Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) (2011) SLT 1213; [2011] CSIH 52 Municipality of St Leonards v Williams [1966] Tas SR 166 Ousley v The Queen (1997) 192 CLR 69 Phillips v Roberts [1975] 2 NSWLR 207 Popovic v Tanasijevic [2001] SASC 289 Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641 Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485; (2006) 200 FCR 243 Re Korda in the matter of Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424 Re Lepton’s Charity [1972] Ch 276 Scandrett v Dowling (1992) 27 NSWLR 483 Click here to enter text.Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 at 703-705 (1976) Solicitor-General v Wylde (1945) 46 SR (NSW) 83 Thellusson v Viscount Valentia [1907] 2 Ch 1 Tomasevic v Jovetic [2012] VSC 223 Tomasevic v Jovetic [2012] VSC 405 Varsani v Jesani [1999] Ch 219 Varsani v Jesani [2002] 1 P & CR DG 11 White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 Wylde v Attorney-General (NSW); ex rel Ashelford (1948) 78 CLR 224 at 275 Young v Ladies’ Imperial Club Limited [1920] 2 KB 523
Texts Cited:	“The Orthodox Church”, Timothy Ware, Metropolitan Kallistos of Diokleia (Penguin Books New Edition 1997) Mr Justice McPherson “The Church as Consensual Compact, Trust and Corporation” (2000) 74 ALJ 159
Category:	Principal judgment
Parties:	Bishop Irinej Dobrijevic (1st Plaintiff) Serbian Orthodox Church in Australia and New Zealand Properties Ltd (2nd Plaintiff) Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (1st Defendant) Branko Rupar (2nd Defendant) Ratomir Nesic (3rd Defendant) Ilija Cubrilo (4th Defendant) Petar Mandic (5th Defendant) Attorney-General of New South Wales (6th Defendant)
Representation:	Counsel: S A Glacken QC with J K Taylor (Plaintiffs) G O Blake SC with W A D Edwards (1st – 5th Defendants) N L Sharp with A Hochroth (6th Defendant) Solicitors: N G Pappas & Company (Plaintiffs) Hunt & Hunt (1st – 5th Defendants) Crown Solicitors Office (6th Defendant)
File Number(s):	2011/247393

Introduction	[1]
Orthodox Churches are Hierarchical	[13]
Division in the Serbian Orthodox Church in 1964	[18]
1964 Constitution of the FSOC-ANZ Diocese	[26]
FSOC-ANZ Diocese's 1976 Constitution	[49]
Appeal for the Monastery Fund	[63]
Changes in the Free Serbian Orthodox Church	[83]
1988 Constitution	[100]
Trust Purpose and Consensual Compact	[129]
Reconciliation Proposal	[141]
Transitional Regulations	[165]
Concelebration of the Liturgy	[174]
Reception of Reconciliation in Australia	[175]
Divisions in the NGM-ANZ Diocese	[204]
Meeting of 29 December 2007 at Monastery	[236]
Disputes over the Monastery	[240]
Divisions in Church-School Congregations	[264]
St Nicholas, South Brisbane	[265]
St George, Manuka/Forrest	[288]
Saint Stefan of Dechani, Carrum Downs	[294]
Saints Peter and Paul, Wodonga	[300]
Meetings of 3 and 4 September 2010	[302]
Had the Free ANZ Diocese Merged with the Serbian Orthodox Church before September 2010	[317]
Authority of Bishop Irinej over the Free ANZ Diocese	[325]
Could the NGM-ANZ Diocese Vote Itself out of Existence as an Independent Church?	[332]
Justiciability	[347]
Notice to and Attendance of Associated Organisations	[355]
Notice to and Attendance of Church-School Congregations	[364]
Parallel Assemblies	[383]
Breach of Trust	[400]
Involvement of the OCOCG-HSIR and Incorporation of New Company	[404]
Cy-près Scheme	[426]
No Jurisdiction at General Law to make a Cy-près Order	[438]
Section 9 of the Charitable Trusts Act: The Spirit of the Trust	[458]
Free ANZ Diocese and Ecumenism	[465]
The Old Calendarists and Bishop Ambrose's Apostolic Succession	[474]
Relationship between the Free ANZ Diocese and the OCOCG-HSIR	[493]
Conclusions on the Spirit of the Trust	[498]
Should the Plaintiffs be Refused Equitable Relief?	[514]
Conclusions and Orders	[521]