His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich - [2014] NSWSC 1215

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215
Hearing dates: 19 - 23, & 26 - 30 May & 6 June 2014; written submissions 30 June, 25 July, 15, 20 & 29 August 2014
Decision date: 02 September 2014
Jurisdiction: Equity Division - Expedition List
Before: Stevenson J
Decision:
Proceedings dismissed

Catchwords: EQUITY - estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings - whether previous declarations and orders are in rem - whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) - whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES - terms of the trust - charitable trusts - proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church - whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register - whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY - whether relief should be denied on a discretionary basis - whether plaintiffs have clean hands - whether false evidence given in these proceedings and in earlier proceedings - whether false evidence directly and immediately related to equity sought
Legislation Cited: Associations Incorporation Act 1984
Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822
Brandling v Weir [2003] NSWSC 723
Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245
Clegg v Abel (1898) 14 WN(NSW) 131
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (1993) 43 FCR 510
Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465
Macedonian Orthodox Community Church St Petka Inc v Metropolitan Petar [2013] NSWCA 223
Metropolitan Petar v Mitreski [2003] NSWSC 262
Metropolitan Petar v Mitreski [2009] NSWSC 106
Metropolitan Petar v Mitreski [2012] NSWSC 16
Metropolitan Petar v Mitreski [2012] NSWSC 167
Ramsay v Pigram (1968) 118 CLR 271
Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Texts Cited: Halsbury's Laws of England, vol 26
J D Heydon, Cross on Evidence, (8th Aust ed, 2009)
J Phipson, On Evidence, (18th ed, 2013)
R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane "Equity: Doctrines and Remedies" (4th ed, 2002)
Spencer Bower and Handley, Res Judicata, (4th ed, 2009)
Category: Principal judgment
Parties: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (First Plaintiff)
The Very Reverend Father Mitko Mitrev (Second Plaintiff)
Peter Kotevich (Defendant)
Representation: Counsel:
T G R Parker SC with L Livingston (Plaintiffs)
J Horowitz (Defendant)
Solicitors:
Sachs Gerace Lawyers (Plaintiffs)
Horowitz & Bilinsky Pty Ltd (Defendant)

File Number(s): SC 2013/378817

Judgment

Introduction

These proceedings arise out of a dispute within Sydney's Macedonian community concerning the control of the affairs of the St Petka parish of the Macedonian Orthodox Church ("the Church"). The St Petka parish is located in Rockdale.

The plaintiffs are His Eminence Metropolitan Petar, the Diocesan Bishop of the Australia and New Zealand Diocese of the Church ("the Diocese") and the Very Reverend Father Mitrev, the parish priest of the St Petka parish.

Bishop Petar was appointed as the Australian and New Zealand Diocesan Bishop of the Church in November 1995. In April 1996, Bishop Petar appointed Father Mitrev as the parish priest for St Petka. Father Mitrev arrived in Australia to take up that position in June 1996.

The Church is a self-governing church with its seat in Skopje in the Republic of Macedonia. The structure of the Church is hierarchical. At its head is the Archbishop of Ohrid and Macedonia, who acts in conjunction with the Holy Archbishopric Synod. The Church is organised into a number of dioceses situated throughout the world. There are seven dioceses in the Republic of Macedonia itself. There are also dioceses for Europe, North America and, relevantly to this case, Australia and New Zealand. Each is headed by a diocesan bishop and divided into parishes under the spiritual leadership of a parish priest. In each parish there is a Parish Assembly. The Parish Assembly elects a Parish Council (which carries out broad executive functions, such as building works, fundraising and the purchase and sale of property). The Parish Council appoints a Parish Committee (which deals with day to day matters).

The Church is governed by a constitution adopted in 1994 ("the Constitution") and the Diocese is administered under a diocesan statute made in accordance with the Constitution ("the Statute").

Macedonian Orthodox Community Church St Petka Inc ("the Association") was incorporated in April 1992 pursuant to the Associations Incorporation Act 1984. Since 1992 it has been the registered proprietor of a number of properties in Railway Street, Rockdale and in Firth Street, Arncliffe ("the Properties"). The St Petka Church is erected on one of the Properties. A church hall and a childcare centre are erected on other of the Properties. Other of the Properties are retained as investments. The Properties were purchased in the 1970s with funds raised from within the Macedonian community. Prior to 1992, various individuals held the Properties in trust for, to put the matter loosely, the Church.

In 1997, the plaintiffs commenced proceedings in this Court ("the 1997 Proceedings") against the Association and a number of its members.

In the 1997 Proceedings:

(1) on 7 February 2007, Hamilton J, following delivery of judgment in Metropolitan Petar v Mitreski [2003] NSWSC 262, made the following declarations:

"1. Declare that [the Properties were] prior to the transfer of the legal titles to [the Association] held upon charitable trust to permit [the Properties] to be used by the Macedonian Orthodox Church St Petka Rockdale NSW Australia as a site for a church in the Macedonian Orthodox religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion ("the Trust").

2. Declare that in accordance with the terms of the Trust and in the events which have happened, the [then registered proprietors of the Properties] [are] bound to permit [the Association] to use the [Properties] as a site for a church of the Macedonian Orthodox relation [sic: religion] and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox religion."

(2) On 9 June 2009, Young CJ in Eq (as his Honour then was), following delivery of judgment in Metropoliton Petar v Mitreski [2009] NSWSC 106 and an unreported judgment on 6 March 2009, answered a separate question by saying that the terms of the trust declared by Hamilton J did not justify the exclusion of Bishop Petar from the parish Church at St Petka, nor the closing, alteration or addition to the Church building or its ornaments without Bishop Petar's approval;

(3) On 5 March 2012, Brereton J, following delivery of judgments in Metropolitan Petar v Mitreski [2012] NSWSC 16 and [2012] NSWSC 167, made the following declaration:

"Declare that, apart from [the Properties], all of the property of [the Association]...was acquired and is held by [the Association] as trustee upon charitable trust to permit the trust property to be used by [the Association] as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement practice and promotion of the Macedonian Orthodox Religion."

(4) On 18 July 2013, the Court of Appeal (Beazley P, Macfarlan and Emmett JJA), following delivery of judgment in Macedonian Orthodox Community Church St Petka Inc v Metropolitan Petar [2013] NSWCA 223, dismissed an appeal from these decisions.

The effect of the declarations made by Hamilton and Brereton JJ, and upheld by the Court of Appeal, is that the Association, since its incorporation in 1992 has acted, and continues to act, as trustee of the trusts the subject of the declarations (together, "the Trust"). The Trust, as declared, is a charitable trust to permit the trust property (including the Properties; together "the Trust Property") to be used by the Association as a site for a church of the Macedonian Orthodox Religion, and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.

The only evidence before me as to the existence and terms of the Trust is the judgments and orders made in the 1997 Proceedings.

The defendant, Mr Kotevich, is the secretary and public officer of the Association. He claims to have been a member of the Association since 2003. Mr Kotevich was not a party to the 1997 Proceedings. He contends that he is not bound by the declarations and orders made in the 1997 Proceedings and that the plaintiffs have not otherwise established the existence of the Trust in these proceedings.

The plaintiffs contend that Mr Kotevich is bound by the declarations and orders made in the 1997 Proceedings and that their effect is that there are terms of the Trust that:

(a) the membership of the Association must correspond with the requirements of Church law for membership of a Parish Assembly;

(b) the Association must take all reasonable steps to facilitate the obtaining or renewal of membership by believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the Constitution, the Statute and any Parish By-Laws;

(c) the Association must admit into its membership those persons whose names appear in the Parish Register kept by Father Mitrev and recognised by Art 119 of the Constitution and Art 77 of the Statute; and

(d) the Association must not accept or renew any application for membership from any person who does not satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the Constitution, the Statute and any Parish By-Laws.

The plaintiffs contend that, by admitting Mr Kotevich as a member, the Association has contravened term (d) of the Trust. That is because, the plaintiffs contend, Mr Kotevich does not satisfy the criteria for membership of the Parish Assembly. The plaintiffs case is that this is demonstrated, indeed proven, by the fact that Mr Kotevich's name does not appear on the Parish Register (or "domovnik") kept by Father Mitrev referred at (c) of the preceding paragraph. I will refer to the current iteration of Father Mitrev's domovnik, being that annexed to his affidavit of 20 March 2014, as "the Current Domovnik".

In closing submissions, and doubtless in light of the extraordinary evidence Father Mitrev gave as to the circumstances in which he prepared and maintained the Current Domovnik, Mr Parker SC, who appeared (initially with Mr Livingston) for the plaintiffs, endeavoured to advance a more nuanced case for the plaintiffs. But, as I discuss below, the plaintiffs' pleaded case (and indeed the case on which Mr Parker opened) is contingent entirely on the fact that Mr Kotevich's name does not appear in the Current Domovnik. For the reasons I discuss below, the plaintiffs must be confined to this case.

There are many other persons in the same position as Mr Kotevich. They purport to be members of the Association but are not named in the Current Domovnik. The plaintiffs describe all such persons (including Mr Kotevich) as "Ineligible Members".

On 27 February 2014, by consent, Kunc J made a representative order pursuant to r 7.6 of the Uniform Civil Procedure Rules appointing Mr Kotevich to represent the class of persons ("the Represented Persons") who, at the date of the order, answered the plaintiffs' description of "Ineligible Members".

The plaintiffs seek to enforce the terms of the Trust by obtaining the following declaratory and injunctive relief against Mr Kotevich and the Represented Persons:

(a) A declaration that, for so long as the Association acts as trustee of the Trust, Mr Kotevich and each of the Represented Persons:

(i) have not been, and are not so long as the Association continues to be the trustee of the Trust, eligible to be a member of the Association; and

(ii) are not, so long as the Association continues to be trustee of the Trust, entitled to vote upon any resolution which it may be put at any general meeting of the Association.

(b) An injunction permanently restraining Mr Kotevich and the Represented Persons from:

(i) voting upon any resolution which may be put at any general meeting of the Association; or

(ii) nominating for membership of, or accepting nomination or appointment as a Councillor of the Executive Council of the Association;

as long as the Association continues to act as trustee of the Trust.

Mr Horowitz, who appeared for Mr Kotevich and the Represented Persons, did not challenge the plaintiffs' standing to bring the application.

The Association is not a party to the proceedings. Mr Horowitz informed me that Mr Kotevich had made an application that the Association be joined as a party, but that as the parties subsequently agreed on the terms of the representative order referred to at [16], the parties were content for Kunc J simply to note that the Association was aware of, and did not wish to be joined in the proceedings. This occurred on 27 February 2014. Mr Horowitz did not submit that the absence of the Association as a party was, itself, a reason that the plaintiffs should be denied relief.

The history of the Church and details of the disputes that have led to this case are set out in the various judgments in the 1997 Proceedings. I will not repeat those details here, except insofar as is necessary to resolve the dispute before me.

The plaintiffs' case

The plaintiffs' pleaded case is that Mr Kotevich and the Represented Persons are not entitled to be members of the Association for one reason only: their names do not appear in the Current Domovnik.

The allegations in the Amended Statement of Claim are as follows (substituting terms as defined in these reasons):

"12. Since 1997, Fr Mitrev, as parish priest of the St Petka parish, has maintained, and continues to maintain, the Parish Register required under article 119 of the [Constitution] and article 77 of the [Statute].

Particulars

Reasons of Brereton J in Metropolitan Petar v Mitreski [2012] NSWSC 16 at [92] and upheld by the Court of Appeal in [2013] NSWCA 223 at [194] - [199].

13. Since 14 April 1997, there have been admitted to membership of the Association certain persons who do not meet the criteria for membership set out in the provisions of the [Constitution] of the [Church] pleaded in paragraph 5 above and in the provisions of the [Statute] pleaded in paragraph 7 above ("Ineligible Members").

Particulars

The persons not entitled to membership are those persons who have been admitted to membership of the Association but are not identified in the [domovnik] maintained by Fr Mitrev under article 119 of the [Constitution] and article 77 of the [Statute], as referred to in the reasons of Brereton J in Metropolitan Petar v Mitreski [2012] NSWSC 16 at [92]-[96], upheld by the Court of Appeal in [2013] NSWCA 223 at [194]-[199].

Brereton J recorded at [94] that, at the hearing in August 2010, the Association claimed to have about 200 members. Recent inspections of the register of members maintained by the Association under clause 21(G) of the Constitution of the Association indicated that the Association now claims to have approximately 900 members, many of whose names do not appear on the [domovnik].

14. The defendant is an Ineligible Member.

Particulars

The defendant's name does not appear on the [domovnik] maintained by Fr Mitrev under article 119 of the [Constitution] and article 77 of the [Statute].

15. The admission to membership of the Association of the Ineligible Members, including the defendant, was a breach by the Association of the terms of the Trust, as found by Brereton J and upheld by the Court of Appeal.

Particulars

Reasons of Brereton J in Metropolitan Petar v Mitreski [2012] NSWSC 16 at [91]-[98] and [2012] NSWSC 167 at [17], upheld by the Court of Appeal in [2013] NSWCA 223 at [194]-[199].

By order 3(d) made on 5 March 2012, Brereton J declared that, since April 1997, the Association has breached the Trust by failing to accept applications for membership by believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the [Constitution] the [Statute] and any Parish By-Laws (see [2012] NSWSC 167 at [25]).

By order 4(d) made on 5 March 2012, Brereton J ordered that, in its control and administration of the Trust Property, the Association, by itself, its servants and agents, admit into its membership those who are the subject of the membership applications referred to in paragraph 47 of affidavit of Fr Mitrev sworn 4 August 2010 (except to the extent that any such applicant has by then informed the Association in writing that he or she no longer wishes to proceed with such application); and thereafter take all reasonable steps to facilitate the obtaining or renewal of membership by believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the [Constitution], the [Statute] and any Parish By-Laws; and be restrained from accepting or renewing any application for membership from any person who does not satisfy those criteria (see [2012] NSWSC 167 at [25]).

The appeal by the Association from those orders was dismissed by order 5 made by the Court of Appeal on 18 July 2013 (see [2013] NSWCA 223 at [199]-[201], [234]).

16. A restraint upon accepting nominations for membership of the Association from Ineligible Members is the corollary of the conclusion of Brereton J, upheld in the Court of Appeal, that membership of the Association must correspond with the requirements of Church law as to membership of a parish assembly.

Particulars

Reasons of Brereton J in Metropolitan Petar v Mitreski [2012] NSWSC 16 at [91]-[98] and [2012] NSWSC 167 at [17], upheld by the Court of Appeal in [2013] NSWCA 223 at [194]-[201]." (emphasis added)

That the plaintiffs' case is so confined was made clear by the manner in which the plaintiffs sought the representative order from Kunc J referred to at [16] above.

The class of persons the subject of Kunc J's order was:

"...all persons as at the date of these orders:

(a) whose names appear on the register of members of the [Association];

(b) who were admitted to membership of the Association on or after 14 April 1997 [that date is not relevant to the issues before me]; and

(c) whose names do not appear on [the domovnik]."

Initially, the plaintiffs sought to add a subparagraph (d) to the description of Represented Persons as follows:

"Are not eligible to be members of the Association in accordance with Church Law because they are not believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the [Constitution], the [Statute] and any Parish By-Laws".

That led to the following exchange between Kunc J and Mr Livingston on 21 February 2014:

"HIS HONOUR: Just before you come to the authorities, I am looking at the orders which you seek. (a) it seems to me is fine; (b) is in accordance with findings and declarations that have been made so far; (c) also they are all essentially objective matters, who is there, who is not and who was admitted and so on. I am a little troubled by (d).

MR LIVINGSTON: That does differ from what is in the Summons, I should have said. I provide the short minutes of order which set out the precise terms of the orders sought (handed up). It deals with the concern your Honour has raised about finding objective criteria. This form of the proposed order conforms closely with that as pleaded in the definition of eligible members.

To put it directly, my client's case fails or succeeds on the proposition that it must be a member of the parish register in order to be a member of the Association. So the inquiry is not whether individuals satisfy other criteria under church law to satisfy the specific requirement of being on the church register. That confines it to objective matters.

It is a matter of comparing the church register with the members of the Association. That would seem to indicate there are approximately 900 people on the register of the Association but not on the priest's register. Those are the 900 people pleaded as being 900 ineligible members and members of this class." (emphasis added)

On this basis, the plaintiffs did not seek that the representative order include the proposed subparagraph (d) set out at [25] above. Indeed, Mr Livingston eschewed, in terms, any case wider than that pleaded, namely that a person cannot be a member of the Association unless that person's name is recorded in the Current Domovnik.

I am not prepared to allow the plaintiffs to make a case wider than this.

The Constitution

So far as concerns these proceedings, a critical provision of the Constitution is contained in Art 119 which provides that:

"The parish priest has the following rights and obligations: ...

(d) he keeps a register (home book) of all the parishioners of the family, with the following details: surname, name, date of birth and christening, marriage, professional, death and eventual changes in the parish." (emphasis added)

The word "family" is not defined in the Constitution but, evidently, is synonymous with "parish".

The "register" or "home book" is the "Parish Register" (see [12(c)] above) or "domovnik" (see [13] above).

The Diocesan Statute

In February 1996, the Holy Senate of the Church approved the Statute. The Statute takes effect in the Diocese by reason of Art 193 of the Constitution.

A provision of the Statute upon which the plaintiffs placed great weight is Art 77 which provides:

"Any baptised orthodox christian [sic] who is a congregant of a parish church and is enrolled in the register of the parish priest (Article 119 of the Constitution of the Macedonian Orthodox Church) and who annually has donated a minimum of one dollar ($1.00) to the Macedonian Orthodox Diocese for Australia and New Zealand is a member of the parish, that is of the Macedonian Orthodox Church Community." (emphasis added)

The "register of the parish priest" referred to is the domovnik.

There is no provision in either the Constitution or the Statute which otherwise regulates the function of a parish priest in deciding whether or not to enrol an individual in the domovnik.

There are other provisions of both the Constitution and the Statute which are relevant and which I will refer to later in these reasons.

The Parish By-Laws

Although the plaintiffs' contentions made reference to the Parish By-Laws (see [12(d)] above), neither party tendered them before me. I must therefore assume that neither party saw them as being relevant to any issue I must decide.

The terms of the Trust declared in the 1997 Proceedings

An issue in the 1997 Proceedings was whether the Association held the Trust Property on its own account or as trustee for the Church. The judgment of Hamilton J was that it was acting as trustee.

An allied issue was whether, for all practical purposes, the Association was acting as the "Parish Assembly" of the Church for the St Petka Parish and whether, accordingly, membership to the Association should be determined in the same away as membership to the Church's Parish Assembly.

In his judgment in the 1997 Proceedings, Young CJ in Eq said (at [445]):

"The plaintiffs [Bishop Petar and Father Mitrev] say that all believers who live within the St Petka Parish and who satisfy the eligibility criteria specified by or under the [Constitution] are entitled to participate in the parish assembly of the St Petka Parish.... For this rule, the plaintiffs rely on Articles 106 and 107 of the [Constitution], and Articles 65, 66, 67, 68, 69 and 78 of the Statute. Mr Parker's oral submissions confirmed that the plaintiffs rely on these provisions of positive church law, as well as 'basic ecclesiology'."

One of the separate questions Young CJ in Eq was asked to determine was (at [3]):

"What are the terms of the [Trust declared by Hamilton J] so far as material for the following alleged breaches of trust:

...

(i) refusing or failing to accept applications for membership [of the Association] from believers in the doctrines of the Macedonian Orthodox Church who have satisfied the criteria for eligibility specified in the Constitution, the [Statute] and the By-Laws".

Young CJ in Eq found that, amongst other things:

(a) in a religious trust, not every provision of church rules or every matter of doctrine will necessarily be a term of the trust, breach of which will give rise to an action: a church trust embodies only those parts of ecclesiastical doctrine which are "fundamental" or "essential" (at [485] to [486]);

(b) what must be decided is whether each particular rule is so fundamental that it is a term of the trust, or whether it is merely an "incidental matter of regulation" which does not go to the core of the trust (at [492]).

Brereton J observed (at [91] of his judgment of 3 February 2012):

"Young CJ in Eq, while finding that church law required that membership of the body which elects the executive body responsible for administration of the affairs of the parish [ie the Association] be determined in accordance with the prescribed eligibility requirements [of the Church], entertained some doubt as to whether this was so fundamental as to be a term of the [Trust]".

Brereton J continued (at [95] to [98]):

"95 Following the delivery of Young CJ in Eq's judgment, the plaintiffs' solicitors lodged a large number of applications from Fr Mitrev's parishioners for membership of the Association. Those applications disclosed all details necessary to demonstrate eligibility for membership of the parish assembly under the [Statute]. Ultimately, the Association refused to entertain the applications, on the ground (reflected in the Association's printed membership application form, and presumably reflecting a requirement prescribed by the executive council) that they were not proposed and seconded by existing members. As a result, voting membership of the Association does not correspond with that required for a parish assembly under the [Statute]. On the findings of Young CJ in Eq, this is a breach of church law.

96 The practical consequence is that the organisation which has responsibility for the affairs and property of the parish, and which is entitled to use the Church and the other trust property, has a membership that differs from that required by church law. In particular, it excludes a significant number of believing Macedonian Orthodox Christians within the parish.

97 Although I am hesitant, particularly in a field in which his Honour has such unique experience and learning, to go further than Young CJ in Eq was prepared - or perhaps more accurately, found it necessary - to go, I have concluded that this requirement of church law is fundamental in the relevant sense, for the following reasons. This requirement impacts not only on control of the trustee, but more importantly on achievement of the purpose of the trust. When the trust was originally established providing for use of the church by the unincorporated association, no distinction was drawn or recognised between the parish assembly and the unincorporated association. The trust contemplated that the membership of the user of the trust property - originally the unincorporated association, to whose position the Association later succeeded - would be the equivalent of the parish assembly. In my view, it is implicit in the trust "to permit the sixth defendant to use the trust property as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement practice and promotion of the Macedonian Orthodox Religion" that the membership of the [Association] would be substantially in accordance with that of a parish assembly under church law.

98 To exclude from membership a significant number of believing Macedonian Orthodox Christians within the parish is to exclude a portion of those who were intended to be able to use the Church. If a significant number of believing Macedonian Orthodox Christians within the parish are excluded from the body entitled to use the church under the trust, the trust property is not being used for the Macedonian Orthodox Church or religion, but for a schismatic purpose, representing a diversion from the authorised purpose. Accordingly, this is not just a requirement of church law, but a term of the trust. While the Association says that eligibility for membership is determined by its constitution, and that applications for membership must comply with the requirements prescribed by or under its constitution, it is open to the executive council under Article 8(1) to alter the form of application. Breach (i) is established, is a breach of trust, and is continuing." (emphasis added)

In his judgment of 1 March 2012 in the 1997 Proceedings, Brereton J concluded:

"...membership of the Association must correspond with the requirements of Church law as to membership of a parish assembly." ([2012] NSWSC 167 at [17])

Thus, Brereton J concluded that the rule of Church law that membership of and voting at meetings of the Association must correspond with membership of and voting at meetings of the Parish Assembly was sufficiently fundamental and important to be a term of the Trust.

Accordingly, on 5 March 2012, in addition to making the declaration referred to at [8(3)] above Brereton J:

(a) declared that since April 1997, the Association had breached the Trust:

"...by failing to accept applications for membership by believers in the doctrines in the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the [Constitution], the [Statute] and any Parish By-Laws"; and

(b) ordered that the Association admit certain persons to the Association by 2 April 2012:

"...and thereafter take all reasonable steps to facilitate the obtaining or renewal of membership by believers in the doctrines of the Macedonian Orthodox Church who satisfy the criteria for membership of the Parish Assembly for St Petka Rockdale specified in the [Constitution], the [Statute] and any Parish By-Laws; and be restrained from accepting or renewing any application for membership from any person who does not satisfy those criteria."

The Court of Appeal agreed with Brereton J's conclusion. Thus, Macfarlan JA (with whom Beazley P and Emmett JA agreed) said at [194] and [196]:

"In giving the Association the right to use the trust property as a site for the Macedonian Orthodox church, the trust contemplated that the Association would have a role equivalent to, and would in fact be, a parish assembly of the type which the Constitution envisaged would be responsible for the day to day conduct of the local churches. As Brereton J held...it was implicit in the trust that the membership of the Association would reflect that of a parish assembly under [Church] law.... This was because the trust required the St Petka Church to be conducted as a church of the Macedonian Orthodox Religion and a disconformity between membership of the organisation conducting it and that of a parish assembly under Church law would be a departure from that requirement...

[The Association] submitted that there was no evidence to support Brereton J's finding that the trust contemplated that the membership of the user of the trust funds would be the equivalent of the parish assembly. However the finding was justified by the terms of the trust when considered against the background of the then [Church constitution]...and of the [Statute]. These documents contemplated that the day to day affairs of the parish church would be administered by the Church Community or, to use another expression for the same concept, the parish assembly. Thus the user of the church property was to be the Church Community. As the trust identified the user as [the Association], it can be inferred, in the absence of any indication to the contrary, that the latter was intended to constitute the Church Community (or parish assembly) for the St Petka parish." (emphasis added)

I accept the submission of Mr Parker that it follows from these reasons, and from the declaration and order made by Brereton J on 5 March 2012, that there were terms of the Trust as set out in subparagraphs (a), (b) and (d) at [12] above, namely that membership of the Association must correspond with the requirements of Church law as to membership of a Parish Assembly, and that the Association must admit members of the Church who satisfy the criteria for membership of the Parish Assembly, and must not admit those who do not.

I do not, however, accept that it follows from what was determined in the 1997 Proceedings that it has been established that there is a term of the Trust, as set out at subparagraph (c) at [12], namely that the Association must admit persons whose names appear in the Current Domovnik, nor that the Association must not admit those who do not (such as Mr Kotevich and the Represented Persons).

There is no finding in any of the judgments given in the 1997 Proceedings that it was a term of the Trust that members of the Parish Assembly must be listed in a domovnik.

The only mention of a domovnik in the 1997 Proceedings are the following passages from Brereton J's judgment in [2012] NSWSC 16:

"[92] The diocesan statute prescribes the membership of the parish assembly. Articles 67, 69, 77 and 82 have the effect that the voting membership of the parish assembly must consist, and consist only, of believing Macedonian Orthodox Christians within the parish. The practice of the Macedonian Orthodox Church is that the parish priest maintains a register of those to whom he ministers as parishioners ('the Parish Register'). The Parish Register is recognised by the [Constitution], article 119. This in effect means that all of the voting members should appear on the Parish Register."

[93] Since his expulsion from St Petka, Fr Mitrev has continued to keep the Parish Register required by the diocesan statute. It currently includes hundreds of individuals (although some of them are children)." (emphasis added)

The Court of Appeal affirmed Brereton J's decision on this question without any reference to a domovnik (see [194]-[198] of the Court of Appeal's judgment).

I accept Mr Horowitz's submission that the declaration and order made by Brereton J on 5 March 2012 (see [47] above) leave open the question of whether it is a term of the Trust that the Association must admit to membership those persons whose names appear in the Current Domovnik (and must not admit those that do not).

It is for the plaintiffs to establish the answer to these questions in these proceedings.

As I discuss below, the case was argued before me on the basis that the answer to these question turns on the proper construction of the Constitution and the Statute, to which I return below.

Are Mr Kotevich and the Represented Persons bound by the declarations and orders in the 1997 Proceedings?

I have mentioned that Mr Kotevich contends that he is not bound by the outcome of the 1997 Proceedings and, in particular, is not bound by the declarations made by Hamilton and Brereton JJ as to the existence of the Trust and its terms. In that regard a number of issues arose.

Are the declarations and orders made in the 1997 Proceedings decisions in rem?

Mr Parker submitted that the declarations of trust made by Hamilton and Brereton JJ, and the further declaration and order made by Brereton J on 5 March 2012 were decisions in rem such that they bind Mr Kotevich and the Represented Persons, notwithstanding that they were not parties to the 1997 Proceedings.

A decision in rem:

"...conclusively determines the status of a person or thing; that is its jural relation to persons generally, not just parties and privies. It is sometimes said to be binding on the world, unlike decisions in personam which determine the jural relation of persons to each other." (Spencer Bower and Handley, Res Judicata, (4th ed, 2009) at [10.01] (citations omitted))

and is:

"...a judgment of a court of competent jurisdiction determining the status or disposition of a thing, as distinct from a particular interest in it of a party to the litigation" (J D Heydon, Cross on Evidence, (8th ed, 2009) at [5015] citing Halsbury's Laws of England, vol 26 at [503] adopted in Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 at 475 per Evershed LJ).

The declarations of trust

The declarations of trust made by Hamilton and Brereton JJ determined the status of the Association as trustee of the Trust Property. Neither counsels' researches, nor my own, were able to find any case where such a declaration has been held to be in rem. For example, no such declaration appears in the "list of principal adjudications which are thought to operate in rem" in Phipson, On Evidence, (18th ed, 2013) at [43-14].

Nonetheless, it appears to me that the declarations of Hamilton and Brereton JJ that the Association was trustee of the Trust Property are decisions in rem.

This case differs from one in which a determination is made that a person is the "true owner" of a piece of property (cf Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 per Pembroke J especially at [10]) or that a person is an equitable chargee of a piece of property (which is probably not a decision in rem: per Barrett J in Brandling v Weir [2003] NSWSC 723 at [58]).

The declarations made by Hamilton and Brereton JJ determine the status of the Association so far as concerns the Trust Property, namely that the Association is a trustee and holds the Trust Property on a charitable trust (and not beneficially). The import of the declaration is not, in substance, as to the "particular interest" that the Association has in the Trust Property (which, in the case of the Properties, appears from the fact that it is the registered proprietor) but, rather, as to the "particular interest" that it does not have - namely the beneficial interest. The declarations establish that the beneficial interest in the Trust Property lies with, in substance, the Church and its parishioners. The declarations thus did not merely determine the Association's interest in the Trust Property. They determined the status of the Association itself. For that reason, the declarations were made in rem and so as to be conclusive of the question against "all persons, whether parties, privies or strangers" (Phipson, On Evidence, at [43.10]).

The further declaration and order made by Brereton J on 5 March 2012 - the terms of the Trust

I have concluded that it follows from the declaration and order made by Brereton J on 5 March 2012 that it was a term of the Trust that the Association must admit to membership those whose satisfy the criteria for membership of the Parish Assembly.

For that reason, I incline to the view that the declaration and order made by Brereton J on 5 March 2012 was made in rem, as it states, implicitly, but necessarily an essential term of the Trust already declared.

In any event, I am prepared to make declarations in these proceedings to the effect of those referred to at [49] above which will, on any view of the matter, bind Mr Kotevich and the Represented Persons.

Privity of interest

The plaintiffs also submitted that there is a privity of interest between Mr Kotevich and the Represented Persons on the one the hand and the Association on the other such that a res judicata estoppel arises preventing Mr Kotevich and the Represented Persons from disputing the outcome of the 1997 Proceedings.

Mr Parker emphasised that Mr Kotevich and the Represented Persons are sued only in their capacity as members of the Association.

In Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, Gummow J said (at 413):

"The requirement of identity of parties between the parties in the concluded action and the action in which the estoppel is raised is satisfied where there is privity in interest. The basic requirement of a privy in interest is that the privy must claim 'under or through' the person to whom he is said to be a privy."

This conclusion was based on the observations of Barwick CJ and Taylor and Windeyer JJ in Ramsay v Pigram (1968) 118 CLR 271 at 279, 288 and 290 respectively.

An appeal from the decision of Gummow J was dismissed by the Full Court of the Federal Court (Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (1993) 43 FCR 510). The Full Court confirmed that:

"...privity of interest is limited to cases where a person claims a title or right or makes a claim by virtue of a title or right in someone before him." (per Northrop and Lee JJ at 526)

In the same case, Burchett J held that a "director and shareholder of a company is not, as such, its privy" (at 542 citing Clegg v Abel (1898) 14 WN(NSW) 131; cf Spencer Bower and Handley, Res Judicata, (4th ed, 2009) at [9.47]).

On the other hand, in Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245, Handley AJA said at [131]:

"I see no reason in principle why an issue estoppel binding on a company should not bind its controlling shareholder/director and vice versa where, as will generally be the case, the shareholder has a real financial 'interest' in proceedings brought by the company. Nor do I see any reason why the converse should not also apply, although ordinarily a company will have no equivalent interest in proceedings by or against its controlling shareholder/director."

I need not resolve such conflict as may appear to exist between these two observations.

That is because I see this case as quite unlike one where it is contended that a director or shareholder of a company is a privy of that company, and thus bound by a res judicata estoppel concerning a declaration, judgment or order made against the company in litigation concerning the company's external legal relationships.

Here, Mr Kotevich and the Represented Persons claim to be members of the Association. The plaintiffs challenge that purported entitlement to membership.

The declarations and orders in the 1997 Proceedings concern the status of the Association as a trustee, and the terms of the Trust so far as they concern admission to membership to the Association. The Association resisted the making of those declarations and orders, but was unsuccessful. The Association is, of course, now bound by those declarations and orders and thus bound to admit to membership those who satisfy the relevant terms of the Trust, and not to admit those who do not.

Persons purporting to be members of the Association make their claim subject to the terms of the constitution of the Association (which makes particular provision in that regard). However, their claims are also subject to what this Court has now declared to be the Association's status as trustee of the Church's property in the St Petka Parish and the terms of that trust so far as they concern membership of the Association. That is because the Association is bound by both its constitution and the outcome of the 1997 Proceedings.

In those circumstances, such rights as Mr Kotevich and the Represented Persons have to membership of the Association are in my opinion "under and through" the Association. Accordingly, so far as concerns the declarations and orders made in the 1997 Proceedings, they are privies of the Association and bound by those declarations and orders.

It would be extraordinary if this were not so. In that event the Association would be bound to admit members in accordance with the outcome of the 1997 Proceedings but members of the Association who were not parties to the 1997 Proceedings could seek to compel the Association to act contrary to that outcome.

Order under s 70 of the Civil Procedure Act 2005

The declarations and orders made in the 1997 Proceedings are in evidence.

By reason of s 91 of the Evidence Act 1995 those decisions, and the findings of fact in them, are not admissible to prove the existence of the facts that were in issue in those proceedings.

Under s 70 of the Civil Procedure Act 2005 the court has the power to dispense with such rules of evidence "as may give rise to expense or delay".

I find myself in the same position as did Brereton J in the 1997 Proceedings where his Honour said, in his judgment of 3 February 2012 at [22]:

"This case does not come before me as a clean slate. Earlier judgments of Hamilton J and Young CJ in Eq (as his Honour then was) on separate questions determine the questions that were subject to them. It would not only be wrong in law, but also wasteful in resources, to revisit the issues that have been decided by them."

The Association, of which Mr Kotevich and the Represented Persons purport to be members, was a party to the 1997 Proceedings, and was an active participant in them before Hamilton J, Young CJ in Eq, Brereton J and the Court of Appeal.

The plaintiffs bring these proceedings to establish what they contend to be a corollary of the findings in the 1997 Proceedings. If the Association were a party to the proceedings before me (as I have said, it is aware of them but does not wish to be joined: see [19] above) it would, of course, be bound by and unable to contest the findings in the 1997 Proceedings. It would be extraordinary, and highly unsatisfactory, if Mr Kotevich and the Represented Persons, as members of the Association, were in a different position.

It would also in my opinion, cause unnecessary expense and delay to require the plaintiffs to prove against Mr Kotevich and the Represented Persons the matters already established in the 1997 Proceedings.

For those reasons, if, contrary to the opinion I have expressed above, the relevant decisions in the 1997 Proceedings were not in rem, or Mr Kotevich and the Represented Persons are not privies of the Association, then I would dispense with the rules of evidence, in particular s 91 of the Evidence Act, to the extent necessary to render the findings and decisions of the various members of this Court in the 1997 Proceedings admissible in these proceedings as evidence of the existence of the Trust and, to the extent I have set out above, its terms.

What are the requirements of the Constitution and the Statute for membership of a Parish Assembly; do they include enrolment in the domovnik?

It follows from the 1997 Proceedings that it is a term of the Trust that membership of the Association must correspond to that of the Parish Assembly. I have held that Mr Kotevich and the Represented Persons are bound by those findings.

The next question is, what are the requirements for membership of the Parish Assembly?

Brereton J expressed the opinion that the effect of Arts 67, 69, 77 and 82 of the Statute was that "voting membership of the parish assembly must consist, and consist only, of believing Macedonian Orthodox Christians within the parish", that it was the "practice" of the Church that the parish priest maintain a domovnik and that the names of all voting members of the Parish Assembly "should" appear in the domovnik (in his judgment of 3 February 2012 at [92]: see [52] above). However, Mr Parker, who appeared for the plaintiffs in the 1997 Proceedings, informed me that the precise question now before me (whether, on the proper construction of the Constitution and the Statute, a person may not be a member of the Parish Assembly unless recorded in the domovnik maintained by Father Mitrev; now the Current Domovnik) was not debated before his Honour.

Neither party led expert evidence on this question. Before Young CJ in Eq, Father John Erickson, an expert in the laws and customs of the Church gave evidence. No such witness was called before me.

I must therefore determine the matter by examination of the terms of the Constitution and the Statute and form an opinion as to the proper construction of those terms. I have found that to be a challenging task.

Both the Constitution and Statute were originally written in Macedonian, and in Cyrillic script. Although Mr Parker made some reference to it in his written submissions, the Macedonian versions were not in evidence.

There is in evidence an English translation of the Constitution and Statute. I was told that there is no "official" or Church approved English translation of these documents.

It is clear that there are some shortcomings in the translation of the Statute.

In relation to two clauses of the Statute (Arts 77 and 78), Mr Horowitz adduced evidence of a competing translation (which, as I understood it, Mr Parker ultimately accepted as being correct). In another case it is obvious, and accepted by the parties, that there has been a mistranslation: see [102] below.

Brereton J's orders, upheld in the Court of Appeal, refer to the "Parish Assembly", and were apparently based on Young CJ in Eq's observations set out at [40] above (which also refer to the "parish assembly") which, in turn, were evidently based on the plaintiffs' submission to his Honour.

Yet the expression "Parish Assembly" does not appear at all in the Constitution and, in the Statute, is to be found only in the heading preceding Arts 74 to 81. The full heading reads:

"Parish, Parish Church, Parish Assembly, Parish Council and Church Committee".

Article 122 of the Constitution refers to the "members' Church Assembly". Arts 82, 83, 84 and 86 of the Statute refer to the "Parish Electoral Conference" or, in Art 85, simply as "the Conference".

It is common ground that each of these expressions is synonymous with "Parish Assembly". Accordingly, unless the context otherwise requires, I will refer simply to the "Parish Assembly".

The Statute also refers to a "Church Community Electoral Assembly" (called the "Church Community Elected [sic] Assembly" in Art 67 and the "Church Communities [sic] Electoral Assembly" in Art 69). Evidently, Young CJ in Eq, Brereton J and the Court of Appeal understood these expressions also to be synonymous with "Parish Assembly" (for example, see the last emphasised passage in the judgment of Macfarlan JA at [48] above). Mr Horowitz submitted that this was a misapprehension, and that the "Church Community Electoral Assembly" is a "parallel but conceptually distinct" body to the Parish Assembly, unique to the Australia and New Zealand diocese of the Church, and devoted to promoting a parish's connection with "fatherland Macedonia" (to use an expression which appears in Art 73). I do not consider I need to make any finding about this matter, as resolution of the critical question can be achieved by reference to provisions in the Constitution and Statute that, on any view of it, do refer to the Parish Assembly.

I will now set out the provisions of the Constitution and the Statute that I consider to be relevant to the question at hand.

The Constitution

Article 104 provides:

"The parish is a church community of clergymen and believers of the Orthodox Christian faith, residing within a specified territory, under the spiritual leadership of a parish priest, that is, a parson.

There may be more parishes within a single populated locality, and more localities may form a single parish."

Article 106 provides:

"Every Orthodox Christian belongs as a member to the parish for that region in which he lives and has all the rights and obligations in the Church that belong to him according to this Constitution."

Article 107 provides:

"The members of the parish have an obligation to confess, practice, support and strengthen and spread the faith of the Orthodox Church, to act in such a way that all believers live in accordance with the teachings of the Orthodox faith, to attend the Holy services; to accept the Holy Mysteries; to perform the deeds of Christian mercy/charity/compassion; to sustain and help the Church and its servants."

Article 122 provides:

"In every Church Community there is a members' Church Assembly [that is the Parish Assembly], which is made up of all adult orthodox Christians from the region of the parish church (the parish), who fulfil the religious, moral and material obligations towards the Church and its institutions."

Article 124 provides:

"An assembly for electing members of the Church-community Council [that is the Parish Council] is called 10 days before it is held. The assembly is led by a parish priest...

The Assembly can validly elect members for the Church-community Council if it has the attendance of at least 5% of the total recorded membership".

Article 190 is concerned with the making of Diocesan Statutes. I was informed that, outside Macedonia, there are three Dioceses; Europe, North America and Australia and New Zealand.

Article 190 is, relevantly, in these terms:

"The highest church-governing body of the eparchies [that is, the dioceses] outside the territory of the Republic of Macedonia is the eparchial [that is, diocesan] Assembly...

The statute of the Eparchy of the Macedonian Orthodox Church [that is, the diocesan statutes] must be in accordance with the Orthodox Canons and reconciled with this Constitution and the valid laws of the relevant state."

The effect of Art 190 is that, to the extent that there is inconsistency between the Statute and the Constitution and the "valid laws of the relevant state", the Statute gives way to the Constitution and those laws.

The Statute

The following articles appear in the Statute under the heading "Church Community, Church Council and Church Administrative Council".

Article 65 provides, relevantly:

"Each Macedonian Orthodox Church in its own area represents a Church community...

Church communities represent all clergy and orthodox christians [sic] - Macedonians and others who belong to and attend a Macedonian Orthodox Church."

Article 66 provides:

"Each Macedonian Orthodox Church Community... is an integral part of the Macedonian Orthodox Diocese of Australia and New Zealand and the Macedonian Orthodox Church whose seat is in Skopje, Makedonia, and, as such is subject to the rules of the Constitution of the Macedonian Orthodox Church, this Statute, the regulations of the Macedonian Orthodox Church Communities and all other regulations of the Macedonian Orthodox Church and this Diocese."

Article 67 provides:

"Each church community has a Church Community Elected [sic] Assembly which is comprised of all adult orthodox christian [sic] Macedonians who are of Macedonian descent and are under the jurisdiction of the parish church (the parish) who meet the spiritual, moral and material obligations of the church and its institutions".

Article 68 provides:

"Members of the church communities, who have attained the age of maturity, and have met the conditions of Article 107 of the Constitution of the Macedonian Orthodox Church and Articles 67, 69 and 75 of this Statute may elect and be elected to the church council..."

Article 69 provides:

"Any orthodox faithful believer may be a congregant and a member of the Macedonian Orthodox Church Community. Those believers who are not Macedonian or of Macedonian descent may be honorary members.

Regular members of the Church Communities [sic] Electoral Assembly of a church community which is under the canonic and spiritual jurisdiction of the Macedonian Orthodox Church cannot simultaneously be members of another Macedonian Orthodox Church Community."

The following articles appear under the heading "Parish, Parish Church, Parish Assembly, Parish Council and Church Committee" (emphasis added).

I have set out the terms of Art 77 at [33] above. It is, however, convenient to repeat it here:

"Any baptised orthodox christian [sic] who is a congregant of a parish church and is enrolled in the register of the parish priest (Article 119 of the Constitution of the Macedonian Orthodox Church) and who annually has donated a minimum of one dollar ($1.00) to the Macedonian Orthodox Diocese for Australia and New Zealand is a member of the parish, that is of the Macedonian Orthodox Church Community".

Mr Bobby Josifovski, an expert translator called by Mr Horowitz, gave evidence, ultimately unchallenged and which I accept, that the Macedonian words translated as "that is" in the second last line of the article could also be translated, in this context, as "namely". Mr Josifovski said that the sense of the concluding words of the article is that the words from "that is" are not intended to qualify the words "the parish", but simply provide a synonymous expression for those words.

The translation of Art 78 initially in evidence was:

"Every orthodox Macedonian who resides within the area of a parish may belong to that parish and has all the rights and obligations pursuant to this Statute and the Regulations of Church Community". (emphasis added)

Mr Josifovski gave evidence, which I accept, that the Macedonian word or words translated in that version of Art 78 as "may belong" should have been translated as "belongs" so that Art 78 should read:

"Every orthodox Macedonian who resides within the area of a parish belongs to that parish and has all the rights and obligations pursuant to this Statute and the Regulations of Church Community". (emphasis added)

Article 82 provides:

"Each parish has a Parish Electoral Conference [that is, a Parish Assembly] which is comprised of all adult christian [sic] Macedonians and those of Macedonian descent within the territory jurisdiction of the Parish Church (Parish) who fulfil the faithful, moral and material duties and responsibilities towards the church and its institutions.

Those...faithful who consecutively for at least one month fail to attend the weekly liturgy, as well as those who have not at least once during the main fasts received communion or confession lose their right to elect or be elected to the Parish Electoral Conference [Parish Assembly]."

Article 84 provides:

"For the election of members of the Parish Council, the Parish Electoral Conference [that is, a Parish Assembly] is called fifteen (15) days prior to the meeting by the placing of a notice on the entry door of the church.

The Conference has a quorum and may elect members for the Parish Council if five (5) percent of the members as entered in the register of the parish are present."

Article 85 provides:

"The Conference [that is, the Parish Assembly] elects eleven (11) to fifteen (15) members of the Parish Council".

Article 86 deals with the Parish Council and provides:

"The parish Council is a body which assists the priest and the Bishop in christian [sic] education, christian [sic] charities and in presenting spiritual life, morals and spiritual development as well as the financial status of the parish. The Council works under the direction of the priest.

When there is an election of the Council by the Parish Electoral Conference [that is, the Parish Assembly] the Bishop or his emissary is present.

In addition to Article 107 of the Constitution of the Macedonian Orthodox Church and Articles 67, 69 and 75 of this Statute, each member of the council [sic] must meet the following conditions:

(a) be registered in the parish and be over twenty-one (21) years of age;

(b) not owe any debts to the church or its organisation;

(c) be an honourable congregant who attends church frequently and enjoys a good reputation among the congregation;

(d) have the capabilities to undertake all his tasks/duties in the parish."

Analysis

Parish Membership

Article 104 of the Constitution provides that the parish is a "church community of clergymen and believers...residing within a specified territory, under the leadership of a parish priest". The Constitution thus equates a "parish" with the relevant "church community".

Article 106 of the Constitution provides that "every Orthodox Christian" belongs "as a member to the Parish for the region in which he lives".

Article 119 of the Constitution imposes an obligation on the priest of each parish to keep a domovnik (called "register (home book)") of "all the parishioners in the family". As I have said (see [30] above), I understand that "family" in this context means no more than "parish". The article thus assumes the existence of parish members whose names the priest must include in the domovnik. This demonstrates that a person's status as a parish member is not a result of the inclusion of the person's name in the domovnik and arises independently of, and antecedent to such inclusion. The recording of a parishioner's name in the relevant domovnik is thus an administrative matter, which reflects, and does not create, the parishioner's status as a parish member.

To the extent that the Statute suggests a contrary conclusion, it must give way to the Constitution. The Statute is created "in accordance with" the Constitution and must be "in accordance with Orthodox canons and reconciled with this Constitution" (Constitution Art 190 and Statute Art 66).

Article 65 of the Statute provides that "each Macedonian Orthodox Church" (which appears in this article to be a reference to the Church building itself; also called the "temple") "represents a Church community" (which I would also equate with a parish) and that Church communities represent "all clergy and all orthodox christians-Macedonians [sic] and others who belong to and attend a Macedonian Orthodox Church". Article 65 thus contemplates that Orthodox Christians ("and others") who are not "Macedonians" (as well as those who are) will be part of the Church community or parish, if they attend a Macedonian Orthodox Church.

Article 69 of the Statute provides that "any orthodox faithful believer" may be a "congregant" and a member of the "Macedonian Orthodox Church Community" (which, again, I would equate with parish).

Article 69 goes on to say that "those believers who are not Macedonian or of Macedonian descent may be honorary members" and thus, like Art 65, draws a distinction between Orthodox Christians who are Macedonian or of Macedonian descent, and those who are not. All "may be" a member of the parish, but non-Macedonians are "only" (my word) "honorary members". The Statute does not provide a definition of an "honorary" member of the parish. However, as I discuss below, non-Macedonian (thus "honorary") members of the parish are not eligible for membership of the Parish Assembly or the Parish Council (see Art 68).

I see Arts 104 of the Constitution and 65 and 69 of the Statute as being the critical articles for determining whether a person is a member of a parish of the Church. What is required is that the person be a believer of the Orthodox Christian faith (Constitution Art 104), that is an "orthodox faithful believer" (Statute Art 69), reside within a "specified territory" (of the parish in question) and be under the "spiritual leadership of the parish priest" (Constitution Art 104) and "attend" a Macedonian Orthodox Church (Statute Art 65).

Article 77 also deals with membership of the parish. It provides that "any baptised orthodox christian [sic]" (that is, I would interpolate, whether or not they are Macedonian, or of Macedonian descent) "is a member of the parish" if that the person, first, is a "congregant of a parish church", second, is "enrolled in the register of the parish priest" (that is, the parish domovnik); and third annually donates $1 to the Diocese.

A question arises as to whether the authors of the Statute intended the three conditions in Art 77 to impose additional requirements for parish membership beyond those arising from Art 104 of the Constitution and Arts 65 and 69 of the Statute, or whether Art 77 simply provides a means by which parish membership may be demonstrated, without elevating the three circumstances to conditions precedent to parish membership.

So far as the first circumstance is concerned (being a congregant), it does seem likely that a person may not be a member of the parish unless they are a congregant, that is a member of the Church congregation. But that emerges from Art 69, which provides that any orthodox faithful believer "may" be a congregant. Presumably, the authors of the Statute intended that such a person actually be a congregant in order to be a member of the parish.

However, so far as concerns entry in the domovnik, the conclusion to which I have come is that, on the proper construction of the Statute, read in light of the relevant provisions of the Constitution, Art 77 does not have the effect of elevating entry in the relevant domovnik to a condition precedent to parish membership.

It is true that Art 77 states that if a person is "enrolled" in the domovnik (and satisfies the other two conditions in Art 77), then that person "is a member of the parish". Article 77 does not however say, in terms, that a person cannot be a parish member unless enrolled in the relevant domovnik. If it did, it would contradict (and must give way to: see [130] above) Art 119 of the Constitution that, in effect says the opposite; namely that a priest must record in the domovnik a person who is a parish member.

Article 77 of the Statute can, and should in my opinion, be reconciled to Art 119 of the Constitution by construing it as being merely facultative and setting out three matters, including enrolment in the domovnik, which, if established, show that a person is a parish member. To construe Art 77 as imposing conditions precedent to parish membership would be to elevate its role to one which, in effect contradicts Art 119; that would allow the stream to rise higher than its source.

Clearly, Art 77 assumes that the parish priest maintains a domovnik. I read the parenthetical reference in Art 77 to Art 119 of the Constitution (which obliges the parish priest to maintain a register, or domovnik of "all parishioners" of "the family") to bespeak an assumption within Art 77 that the domovnik must be maintained by the parish priest in accordance with Art 119 of the Constitution. In order for the domovnik to be maintained in accordance with Art 119, it must contain the names of "all" parish members; and must not contain the names of any other persons.

This position can be summarised as follows, in my opinion. If the parish priest maintains a domovnik, and does so in accordance with Art 119 of the Constitution, then entry of a person's name in the domovnik will be one of the factors showing that such a person is a member of the parish. However, a person's status as a parish member does not depend on entry of that person's name in the domovnik. Provided the person satisfies the requirements of Art 104 of the Constitution and Arts 65 and 69 of the Statute, that person is a parish member, whether or not that person's name is in the domovnik. Thus, there can be parish members even if the parish priest does not maintain a domovnik at all or even if, as has occurred in this case (see below), the parish priest manipulates the domovnik to include persons who are not parish members and thus maintains the domovnik otherwise than in accordance with Art 119 of the Constitution.

That conclusion is, in my opinion, fatal to the plaintiffs' case because, as I explain below at [154], it must follow that entry in the domovnik is not a condition precedent to membership of the Parish Assembly (nor the Association).

Mr Horowitz submitted that Art 78 of the Statute is also directed to the question of who may be a member of the parish.

Article 78 provides that "every orthodox Macedonian" who resides within the area of a parish "belongs" (or "may belong": see [122] above) to "that" parish.

Mr Horowitz submitted that, in Arts 77 and 78 of the Statute, its authors are drawing a distinction between the requirements for membership of the parish for "any baptised orthodox christian [sic]" (Art 77) on the one hand, and "every orthodox Macedonian" on the other (Art 78). Thus, Mr Horowitz submitted, a non-Macedonian orthodox Christian must satisfy the requirements of Art 77 and can only be a member of the parish if, amongst other things, that person's name is recorded in the domovnik. On the other hand, Mr Horowitz submitted, Macedonian Orthodox Christians need only satisfy the requirements of Art 78 and thus, if residing "within the area of a parish" are, without more, entitled to be a member of that parish.

In view of the conclusion to which I have come concerning the proper construction and role of Art 77, it is not necessary for me to come to any conclusion concerning this submission. However, I do not accept the submission.

In my opinion, the better view is that Art 78 is not directed to the question of parish membership, but to a different question, namely the particular parish to which orthodox Macedonians belong. That is, to use Mr Parker's words, Art 78 "allocates orthodox Macedonians between parishes" and is equivalent to Art 106 of the Constitution which, at a Church wide level, provides that "every Orthodox Christian belongs as a member to the parish for the region in which he [sic] lives". Article 78 speaks of belonging to "that" parish (the one in which the relevant person resides) whereas Art 77 speaks of membership of "the" parish. The different language used in the two articles points to the conclusion that they are directed to different matters.

The Parish Assembly

As I have mentioned, the Constitution and Statute use differing expressions to describe what Brereton J referred to in his declaration and order of 5 March 2012 as the "Parish Assembly" (see [47] above).

The function of the Parish Assembly is to elect the Parish Council (see Statute Art 85 at [125]). The Parish Council carries out, essentially, executive functions (see [4] above) and elects the Parish or Church Committee (which is responsible "for the carrying out of ordinary/regular aspects of the parish priest and the parish": Art 90 of the Statute).

There are in my opinion, four requirements for membership of the Parish Assembly.

First, the person must be a member of the parish. Second, that parishioner must be an adult. Third, that adult parishioner must be Macedonian or of Macedonian descent. Fourth, that adult Macedonian parishioner must fulfil "the religious, moral and material obligations towards the Church and its institutions".

As to the first requirement (membership of the parish) that seems to me to be a necessary implication of the requirement in Art 122 of the Constitution that membership of the "Church Assembly" (that is, Parish Assembly) be of persons "from the region of the parish".

As I have concluded that the recording of a person's name in the priest's domovnik is not a condition precedent to membership of the parish, it must follow that such recording is not a condition precedent to membership of the Parish Assembly and thus, the Association. That conclusion is fatal to the plaintiffs' case that it is a term of the Trust that the Association must admit persons whose names appear on the Current Domovnik, and must not admit those (such as Mr Kotevich and the Represented Persons) whose names do not (see subparagraph (c) at [12] and [50] above).

The second requirement (being an adult) is found in Art 122 of the Constitution (see [107] above). The third requirement (being Macedonian or of Macedonian descent) is found in Art 82 of the Statute (see [123] above). The fourth requirement (fulfilling religious and other obligations to the Church) is found in both Art 122 of the Constitution and Art 82 of the Statute

Article 84 of the Statute (see [124] above) provides that there cannot be a quorum of a meeting of the Parish Assembly for the purposes of electing the Parish Council unless five per cent of members "as entered in the register of the parish" (that is, the domovnik) are present.

This article corresponds to Art 124 in the Constitution (see [108] above) which provides that the Parish Assembly (there simply called "the Assembly") can elect members of the Parish Council (there called "the Church-community Council") "if it has the attendance of at least 5% of the total recorded membership".

Further, Art 86 of the Statute (see [126] above) provides that, to be a member of the Parish Council, a person must be "registered in the parish" (which I understand to mean, recorded in the parish priest's "register", or "home book" or "domovnik" for the purposes of Art 119 of the Constitution).

These provisions show that there is good reason why members of the Church who are Macedonian or of Macedonian descent, and thus eligible for membership of the Parish Assembly, would wish to be entered in the domovnik, notwithstanding the fact that their membership of the parish does not depend on it. Otherwise, they cannot be counted as part of the quorum of the Parish Assembly to elect the Parish Council, and cannot be elected to the Parish Council itself.

But it does not follow that entry in the domovnik is a condition precedent to membership of the Parish Assembly. On the contrary, if that were so, the provisions in Arts 84 and 86 would be otiose, as everyone in the Parish Assembly would, necessarily, be enrolled in the domovnik.

A further indication that recording in the parish priest's domovnik is not a condition precedent to membership of the parish, or Parish Assembly, is to be found in the provisions in the Statute concerning the circumstances in which a parishioner loses his or her entitlement to be a member of the Parish Assembly.

Article 82 of the Statute provides that persons "mentioned in Art 29 rule 2 of this Statute", and persons who "consecutively for at least one month" do not attend weekly liturgy, or "at least once during the main fasts receive communion or confession" lose their right to "elect or be elected for" the Parish Assembly.

The persons "mentioned" in Art 29 include persons who are:

"...under investigation or are convicted of a criminal offence, or offence against public morals, who live in sin, or in a marriage not blessed by the church".

But there is no provision that absence or removal from the domovnik has this consequence.

Conclusion as to the role of the domovnik

My conclusion is that, on the proper construction of the Constitution and the Statute, enrolment in the domovnik is not a condition precedent to membership of the parish, and is thus not a condition precedent to membership of the Parish Assembly (or the Association).

It follows from these conclusions that it is not in my opinion a rule of Church law that a person must be named in the domovnik to be a member of the Parish Assembly. It follows from the 1997 Proceedings that there are terms of the Trust that membership of the Association must correspond with the requirements of Church law as to membership of a Parish Assembly; the Association must not admit to membership persons who do not satisfy the criteria for membership of the Parish Assembly as set out in the Constitution and the Statute (see [49] above). In my opinion, the Association does not act in breach of those terms merely because it accepts to membership persons whose names do not appear in the domovnik (leaving aside, for the moment, the state of the Current Domovnik as actually maintained by Father Mitrev).

In my opinion, the persons who are entitled to membership of the Parish Assembly, and thus the Association, are those who satisfy the requirements of Art 104 of the Constitution and the relevant parts of Arts 65 and 69 of the Statute (and are thus eligible to be members of the parish), and who also satisfy the further requirements for membership of the Parish Assembly set out in Art 122 of the Constitution and Art 82 of the Statute.

Thus, to be members of the Parish Assembly, and thus the Association, a person must:

(1) be a believer of the Orthodox Christian faith (Art 104 of the Constitution);

(2) reside within a specified territory (Art 104);

(3) be under the spiritual leadership of a parish priest (Art 104);

(4) attend a Macedonian Orthodox Church (Art 65 of the Statute);

(5) be a congregant and a member of the Macedonian Orthodox Church Community or "Parish" (Art 69 of the Statute);

(6) be an adult (Art 122 of the Constitution);

(7) be Macedonian or of Macedonian Descent (Art 82 of the Statute); and

(8) fulfil the faithful, moral and material duties and responsibilities towards the Church and its institutions (Art 122 of the Constitution and Art 82 of the Statute).

I am prepared to make a declaration to this effect.

I do not know, and doubt that I could ever determine, whether Mr Kotevich (let alone each of the Represented Persons) satisfies these requirements. The answer to that question would involve a determination of, amongst other things, whether those persons meet their "spiritual, moral and material obligations" to the Church. I doubt that such matters are justiciable.

What is clear, in my opinion, is that I should not declare that Mr Kotevich or the Represented Persons are not, and are not entitled to be, members of the Association. Nor should I grant an injunction restraining those persons from voting on any resolution at a general meeting of the Association or from nominating for membership of the executive of the Association.

For those reasons, the proceedings should be dismissed.

Having reached this conclusion, it is not necessary for me to deal with other bases on which Mr Kotevich and the Represented Persons contended that the plaintiffs should be denied relief and, in particular, with the criticisms made by Mr Horowitz on behalf of Mr Kotevich and the Represented Persons of the process undertaken by Father Mitrev to create the Current Domovnik and of the evidence given by Father Mitrev about that matter.

However, because of the serious nature of the criticisms made of Father Mitrev, and the fact that a large part of the hearing before me was devoted to the issue (Father Mitrev was cross-examined over six days), I will deal with some aspects of the matters raised.

The defence of "unclean hands"

Mr Kotevich's defence is in the following terms:

"11 Further or in the alternative, in answer to the whole of the Statement of Claim, the Defendant says that the Court should decline to grant any relief to the Plaintiffs because they lack clean hands.

Particulars

(a) The "register of parishioners for the parish of St Petka" referred to in paragraph 5 of the Affidavit of Father Mitko Mitrev sworn 20 March 2014 and in paragraph 3 of the Affidavit of Father Mitko Mitrev sworn 16 December 2013 is a sham, in that:

(i) the "parish of St Petka" does not exist;

(ii) the purported register has not been kept by Father Mitrev since his appointment to St Petka Church ("St Petka") in 1996, but is a recent invention, having been created by Father Mitrev some time after September 2006;

(iii) the purported register includes:

 names of non-existent people, invented by Father Mitrev;

 names obtained by deception by agents of the Plaintiffs from people who were led to believe they were signing a petition to have St Petka re-open/resume normal services; and

 names of people who are not, and never have been, regular congregants of St Petka; and

(iv) the purported register excludes the names of hundreds of people who are, in fact, regular congregants of St Petka.

(b) The Plaintiffs have attempted to mislead the Court by propounding false or misleading affidavits (as set out in subparagraph (a), above) to prove the allegation made in paragraph 12 of the Statement of Claim relating to the "Parish Register".

(c) The Plaintiffs' reliance on false or misleading affidavits (as set out in subparagraph (a), above) amounts to an abuse of process.

(d) In the alternative to subparagraphs (a), (b) and (c), above, the Plaintiffs are attempting to derive advantage from their own wrong by improperly excluding the Defendant from the "Parish Register" in circumstances where the Defendant's name should properly appear therein."

Father Mitrev's evidence

Father Mitrev was a most unsatisfactory witness.

As I describe below, he gave false evidence before me in these proceedings and, Mr Parker accepts, before Brereton J in the 1997 Proceedings. Had Father Mitrev not given that false evidence before Brereton J, I doubt that his Honour would have made the orders he did. The false evidence he gave before me would have provided a powerful basis on which to deny relief to the plaintiffs, were they otherwise entitled to relief.

That false evidence was about the matter at the heart of these proceedings, namely the Current Domovnik. As Mr Horowitz submitted, the equity sued on by the plaintiffs is to restrain those whose names do not appear in the Current Domovnik (including Mr Kotevich and the Represented Persons) from being members of the Association or voting at meetings of the Association. Father Mitrev's impropriety in giving false evidence about the Current Domovnik is "directly and immediately related" to that equity (to use the words in R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane "Equity: Doctrines and Remedies" (4th ed, 2002) at [3-135]).

The Current Domovnik

Father Mitrev annexed the Current Domovnik to his affidavit of 20 March 2014.

By reason of Art 119 of the Constitution, the Current Domovnik should have represented a register "of all the parishioners of the family".

Initially, Father Mitrev gave evidence that he updated his domovnik every six to twelve months. He later agreed that this was false. He also said that he regularly updated his domovnik by reference to the parish christening and marriage register he maintained. His cross-examination revealed this also to be false. Ultimately, Mr Parker accepted that he was unable to point to any evidence that Father Mitrev maintained his domovnik "regularly or sequentially".

On Father Mitrev's own evidence, the Current Domovnik is neither a complete, nor an accurate record of the persons Father Mitrev claims to be his parishioners, let alone a true record of all persons who claim to be members of the St Petka Parish. Mr Parker accepted that it was "an incomplete and unreliable guide" to the identity of Father Mitrev's parishioners.

Prior to 2009

Father Mitrev swore that he had maintained a domovnik since his appointment as parish priest of St Petka. He said:

"I maintained this register on my computer. I have done so since 1997. Prior to that date, I kept the details of parishioners in a book".

On the sixth day of the hearing before me, and after Father Mitrev's cross-examination was concluded, Father Mitrev admitted that this evidence was false.

He produced a 10 page hand written list of some 218 names which he claimed to be "the first domovnik". Those names were written in a diary with the date "January 2001" although Father Mitrev conceded that the document may have been prepared later than that. This hand written document was not a "register of all parishioners" as required by Art 119 of the Constitution. It does not contain the names of some persons who Father Mitrev agreed were his parishioners at the time and contains the names of some parishioners whose names do not appear on the Current Domovnik, despite the fact that, according to Father Mitrev, such persons continue to be his parishioners.

The earliest record of a computer version of a domovnik maintained by Father Mitrev was metadata in respect of a document entitled "domovnik" which stated that it was created on 14 January 2003. There is also a document called "domovnik" listing 824 names which, according to its metadata, was first created on 3 June 2004.

I am not able to draw any conclusion as to how many names were on this document when it was first created. Mr Horowitz submitted that it likely contained only a few names, and that the bulk of the names were added much later than 2009. However, it is not necessary to come to any conclusion about this.

2009

On 4 March 2009, Young CJ in Eq delivered his judgment in the 1997 Proceedings concluding, inter alia, that the terms of the Trust declared by Hamilton J "did not justify" the exclusion of Bishop Petar from St Petka or the employment at St Petka of any priest not authorised by the Bishop.

Three weeks later, on 26 March 2009, the plaintiffs filed a notice of motion in the 1997 Proceedings seeking much the same relief as they seek in these proceedings, namely an order that the Association expel or suspend all members of the Association who "are not enrolled as congregants" in Father Mitrev's "register of congregants" (that is, his domovnik).

That notice of motion was supported by an affidavit by the plaintiffs' solicitor in the 1997 Proceedings, also their solicitor in these proceedings, which stated:

"Under Article 119 of the Constitution of the Church, the parish priest is to maintain a register of congregants. I am informed by Father Mitko [Mitrev], and believe, that he at all times maintained a register of congregants for the St Petka parish, and that he has continued to do so since his purported dismissal as Parish Priest [in 1997]. A copy of that Register of Congregants correct as at 8 March 2009 has been provided to me by Father Mitko [Mitrev]. A copy of that document is exhibited to me at the time of swearing this affidavit and marked 'H'."

The annexure to the affidavit is what purports to be Father Mitrev's domovnik as at 8 March 2009 (the "March 2009 Domovnik").

The metadata of what appears to be the first version of the March 2009 Domovnik shows that it was "created" on 14 January 2003 and "last saved" on 6 March 2009. It is thus probable that this first version is the same, or based on, the document referred to at [186] above. The metadata of a second version of the March 2009 Domovnik is headed "Za Advokatite" ("for the lawyer") and was both created and saved on 6 March 2009.

By these documents, the names of hundreds of purported parishioners of Father Mitrev were added to the pre-existing database. However, numerous people, who Father Mitrev claims were his parishioners in March 2009, are missing from the March 2009 Domovnik.

I think it probable that the March 2009 Domovnik was prepared in anticipation of, and to provide evidentiary foundation for, the 26 March 2009 notice of motion. That is, the document was probably prepared solely for use in the 1997 Proceedings and does not represent any genuine attempt by Father Mitrev to comply with his obligations under Art 119 of the Constitution.

It is not, however, necessary to come to any final conclusion about this in light of the clear evidence concerning events leading more immediately to the creation by Father Mitrev of the Current Domovnik.

2012

On 3 February 2012, Brereton J handed down his judgment in the 1997 Proceedings. His Honour concluded that the plaintiffs were entitled to, amongst other things, declarations to the effect that the Association was in breach of the trust declared by Hamilton J (and the further trust his Honour proposed to declare) by, amongst other things, failing to admit to membership persons entitled to be members of the Parish Assembly (together with corresponding injunctive relief).

There was a further hearing before Brereton J on 1 March 2012 concerning the precise orders that should be made. Final orders were pronounced on 5 March 2012.

One of those orders was that, by 2 April 2012, the Association admit to membership the persons whose membership applications to the Association were referred to in par 47 of an affidavit sworn by Father Mitrev on 4 August 2010 in the 1997 Proceedings (that is during the hearing before Brereton J).

In that paragraph, Father Mitrev swore:

"In 2009 I countersigned 321 documents which appeared to me to be applications for membership of [the Association]...I signed these documents having checked that all of the applicants named in those 321 documents were on the [domovnik]."

Mr Horowitz's cross-examination of Father Mitrev before me has demonstrated, to my satisfaction, that this evidence given by Father Mitrev to Brereton J was false. Indeed, Mr Parker accepted that this was so.

The "321 documents" to which Father Mitrev referred (he said in fact there were some 500 documents) were applications made in April 2009 by persons for membership of the Association. In fact, more than 80 per cent of the April 2009 applicants for membership of the Association were not recorded in the March 2009 Domovnik (which Father Mitrev claimed to be his then current domovnik).

Father Mitrev sought to explain this state of affairs as follows:

"Most probably I had been checking it on the computer, it's on the computer, and I saw that it's - it's in order, that it's there. Most probably when I printed it off I thought that it was all ok, and in that moment during the printing maybe something has happened. After it was printed up, that I didn't check it, that's the problem. I made a mistake in that respect. At this moment I thought that everything was in proper order...

I...check it on the computer and I have assumed that they are all there and I believe the computer when it's printing that everything has been done in a proper way and I haven't checked in. That means what had been printed out I haven't checked. That's where the mistake is."

If by this evidence Father Mitrev was meaning to state that although the names of the relevant applicants for membership of the Association were not in his March 2009 Domovnik, but were somehow "on the computer", I do not accept that evidence. There is in evidence two earlier iterations of the March 2009 Domovnik which must reflect what was "on the computer" at the relevant time. The names of the applicants for membership of the Association missing from the March 2009 Domovnik are also missing from those earlier iterations.

It is thus clear to me that the evidence which Father Mitrev gave before Brereton J, which provided the foundation for his Honour's orders of 5 March 2012, was false. The explanation he gave to me for his "mistake" I find to be entirely unconvincing, and do not accept. In my opinion the correct conclusion is that Father Mitrev was prepared to certify, on the application forms, that the relevant people were recorded in his domovnik when they were not.

2013

On 18 July 2013, the Court of Appeal handed down its judgment in the 1997 Proceedings dismissing, so far as relevant to these proceedings, the appeals made by the Association from the orders of Hamilton J, Young CJ in Eq and Brereton J.

The next month, August 2013, a large number of people signed application forms for membership of the Association. In each case Father Mitrev certified, on the application forms, that each person was recorded in the "Register of Parishioners" (that is, the domovnik).

But they were not. On the contrary, Father Mitrev used the names on the application forms to add to his March 2009 Domovnik. These were the first additions Father Mitrev had made to that document since 2009.

At around this time, Father Mitrev also added to his domovnik names that he had found in St Petka's wedding and christening registers. He did so uncritically and indiscriminately, using entries which were up to five years old, and without regard to whether or not the persons were, in fact, his parishioners. On at least one occasion, Father Mitrev created a name in the domovnik using the first name of a person in one of the registers, adding to it the surname of another person; thus creating a "name" of a "person" who did not exist. Mr Parker accepted that this conduct was "indefensible".

In November 2013 another group of people signed applications for membership of the Association. Again, Father Mitrev certified, on each application form, that the relevant person was enrolled in his domovnik.

But, again, they were not. In January 2014 Father Mitrev added to his domovnik the names of many of those applicants.

Finally, some time prior to 20 March 2014 (the date of the affidavit to which Father Mitrev annexed the Current Domovnik) Father Mitrev added further names from the April 2009 applicants for membership of the Association (having falsely certified, on each of those application forms, that those persons were already on the domovnik).

The Current Domovnik

The evidence revealed further problems with the Current Domovnik. It includes the names of persons who Father Mitrev knew to be deceased at the time he added their names. It contains the names of people who appear not to exist. It contains the names of people who signed applications for membership of the Association mistakenly believing that they were signing a petition in relation to the future of the St Petka Parish. Mr Peco Petkovski, Mr Ivan Razmovski and Mr Gorgija Zengoski each gave unchallenged evidence before me to this effect. It also contains the names of persons who are not parishioners of Father Mitrev. Mr Ivan Razmovski and Mr Gorgija Zengoski gave unchallenged evidence before me to this effect. It also does not contain the names of many of Father Mitrev's current parishioners, including the names of parents whose children do appear in the domovnik, and the names of children whose parents appear in the domovnik.

The provenance of the Current Domovnik reveals, in my opinion, that it has not been prepared in accordance with Art 119 of the Constitution and provides no reliable guide as to who is, and who is not, a parishioner of Father Mitrev or of the St Petka Parish. As Mr Parker accepted, it has "deplorable defects".

I find the Current Domovnik to be a farrago of fact, falsity and fabrication. It does not represent a genuine attempt by Father Mitrev to maintain a "register" or "home book" for the purpose of Art 119 of the Constitution. It was prepared for use in these proceedings.

One aspect of the case the plaintiffs seek to make out in these proceedings is that the Association "must admit into its membership those persons whose names appear" in the Current Domovnik (see [12(c)] above).

Were I otherwise satisfied that I should make the declaration and order sought by the plaintiffs based upon a domovnik prepared properly and in accordance with Art 119 of the Constitution, I would not have been prepared to make any such declaration or order based on Father Mitrev's Current Domovnik.

Can Father Mitrev now "wash his unclean hands"?

At the conclusion of the proceedings, Father Mitrev, through Mr Parker, proffered an undertaking to prepare a fresh domovnik in accordance with his obligations under Art 119 of the Constitution and which did not have any of the egregious deficiencies manifest in the Current Domovnik.

That offer does not persuade me to adopt a different course. First, it is too late, and only offered after Father Mitrev's disgraceful conduct has been exposed. Second, as Mr Horowitz submits, in order to properly "wash his hands", Father Mitrev would have to apply to set aside the orders made by Brereton J, in the absence of which, the plaintiffs claim in these proceedings would fail.

Bishop Petar

Bishop Petar did not give evidence.

Mr Horowitz pointed out that Father Mitrev acts under the supervision and management of Bishop Petar, and that Bishop Petar is responsible for giving instructions in relation to court proceedings. Mr Horowitz also submitted that it is probable that Bishop Petar was aware of the allegations made by Mr Kotevich in the proceedings so far as concerns Father Mitrev's domovnik, and yet "deliberately chose not to put on any evidence of his own".

However, I cannot conclude from these circumstances that Bishop Petar knew of the matters relating to Father Mitrev's conduct that was revealed by Mr Horowitz's cross-examination.

The most I could conclude is that Bishop Petar could not give evidence to assist the plaintiffs' case. But that conclusion is as consistent with Bishop Petar's ignorance of the facts, as his knowledge of them.

I am not prepared to make any findings critical of Bishop Petar.

Conclusion

The proceedings should be dismissed.

I will hear submissions as to what precise orders and declarations should be made.

**********

Decision last updated: 02 September 2014

Medium Neutral Citation:	His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215
Hearing dates:	19 - 23, & 26 - 30 May & 6 June 2014; written submissions 30 June, 25 July, 15, 20 & 29 August 2014
Decision date:	02 September 2014
Jurisdiction:	Equity Division - Expedition List
Before:	Stevenson J
Decision:	Proceedings dismissed
Catchwords:	EQUITY - estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings - whether previous declarations and orders are in rem - whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) - whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES - terms of the trust - charitable trusts - proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church - whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register - whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY - whether relief should be denied on a discretionary basis - whether plaintiffs have clean hands - whether false evidence given in these proceedings and in earlier proceedings - whether false evidence directly and immediately related to equity sought
Legislation Cited:	Associations Incorporation Act 1984 Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005
Cases Cited:	Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 Brandling v Weir [2003] NSWSC 723 Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245 Clegg v Abel (1898) 14 WN(NSW) 131 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (1993) 43 FCR 510 Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 Macedonian Orthodox Community Church St Petka Inc v Metropolitan Petar [2013] NSWCA 223 Metropolitan Petar v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2009] NSWSC 106 Metropolitan Petar v Mitreski [2012] NSWSC 16 Metropolitan Petar v Mitreski [2012] NSWSC 167 Ramsay v Pigram (1968) 118 CLR 271 Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Texts Cited:	Halsbury's Laws of England, vol 26 J D Heydon, Cross on Evidence, (8th Aust ed, 2009) J Phipson, On Evidence, (18th ed, 2013) R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane "Equity: Doctrines and Remedies" (4th ed, 2002) Spencer Bower and Handley, Res Judicata, (4th ed, 2009)
Category:	Principal judgment
Parties:	His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (First Plaintiff) The Very Reverend Father Mitko Mitrev (Second Plaintiff) Peter Kotevich (Defendant)
Representation:	Counsel: T G R Parker SC with L Livingston (Plaintiffs) J Horowitz (Defendant) Solicitors: Sachs Gerace Lawyers (Plaintiffs) Horowitz & Bilinsky Pty Ltd (Defendant)
File Number(s):	SC 2013/378817