Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand

The Macedonian Orthodox Community Church St Petka Inc (the Church) sought judicial advice from the Supreme Court of New South Wales regarding the administration of certain trust property. The Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (the Bishop) and other parties were given notice of the proceedings under section 63(4) of the *Trustee Act 1925* (NSW). The central dispute concerned whether these notified parties were entitled to access a legal opinion obtained by the Church to assist the Court in its application for judicial advice.

The Court of Appeal was required to determine whether the legal opinion obtained by the trustee was subject to legal professional privilege, and if so, whether that privilege extended to the entirety of the opinion. Further, the Court had to consider whether the rules of natural justice or an implied waiver by placing the opinion before the Court abrogated this privilege. The Court also considered the nature of proceedings for judicial advice under section 63 of the *Trustee Act 1925* (NSW), specifically whether they were adversarial or non-adversarial.

The Court held that the proceedings for judicial advice were non-adversarial in nature. It further determined that legal professional privilege attached to the legal opinion obtained by the trustee, covering the opinion in its entirety. This privilege was not abrogated by the rules of natural justice, nor was it waived by the trustee placing the opinion before the Court. The Court reasoned that the purpose of seeking judicial advice was to obtain guidance from the Court, and the privilege protected the trustee's ability to obtain frank legal advice for this purpose without fear of disclosure to parties who might have opposing interests.

Consequently, the Court allowed the appeal, remitted the matter to the Equity Division for determination in accordance with its reasons, and ordered the opponents to pay the costs of the summons for leave to appeal and the appeal, as well as the claimants' costs of the hearing before Young CJ in Eq. The opponents were also granted a certificate under the *Suitors' Fund Act 1951* if otherwise entitled.