Macedonian Orthodox Community Church St Petka Inc v Petar the Diocesan Bishop, Macedonian Orthodox Diocese of Australia

[2006] HCATrans 681

[2006] HCATrans 681

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S383 of 2006

B e t w e e n -

MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED

Applicant

and

HIS EMINENCE PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND

First Respondent

THE VERY REVEREND FATHER MITKO MITREV

Second Respondent

ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 2.35 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR G.O. BLAKE, SC, for the applicant.  (instructed by McConnell Jaffray)

MR T.G.R. PARKER, SC:   May it please the Court, I appear with my learned friend, MR R.E. STEELE, for the respondents.  (instructed by Sachs Gerace)

GUMMOW J:   There is a submitting appearance for the Attorney-General for the third respondent.  Yes, Mr Walker.

MR WALKER:   Your Honours, one way to come ‑ ‑ ‑

GUMMOW J:   Could you just get us into the matter in this way.  Is there a statement of defence gone on yet?

MR WALKER:   Not to the latest, that is, I think, the seventh amended statement of claim.  There is a defence that your Honours will find starting at page 11 of the supplementary application book.  That, I suspect, but I am guessing of course, may not answer the inquiries your Honour Justice Gummow had.

GUMMOW J:   Do we have a document that sets out the text of the alleged trust?

MR WALKER:   Yes.  Your Honours will find that in the same volume.  The supplementary book, page 38, paragraph 7 sets it out.  The nub of the dispute, however, is going to raise the question whether the terms of the trust are such as to require acquiescence in – that is, acceptance of – hierarchical direction in the appointment of priests.  That is based upon an argument, not yet heard or determined by Justice Hamilton, concerning the effect on the terms of a trust generally constituted as paragraph 7 of the statement of claim would have it of provisions concerning the employment of a priest by the Association.

Perhaps the handiest way of noting that unresolved question is to be found in the supplementary application book at page 122.  At the very top of that page there is, in answer to Justice Hodgson, a statement by Mr Blake concerning what I have called two principal issues.  They relate to the question of whether some autonomy has been left to the Association with respect to issues of priests and buildings.

GUMMOW J:   Yes, thank you.

MR WALKER:   Now, it is against that background, in our submission ‑ ‑ ‑

GUMMOW J:   But you have a primary submission which denies any trust, do you not?

MR WALKER:   Yes.  Your Honours will be aware of the Associations Incorporation Act (NSW) which provides, as we argued unsuccessfully before Justice Hamilton, for a very thorough going statutory regime tantamount to the control on the use of property that the law of charitable trusts would impose and, indeed, giving the Attorney-General a role in that supervision.  We lost that argument but, as your Honours have seen, there has not been any order made following that argument so that everything can be brought to an appeal eventually at the one and the same time. 

In other words, as to the church, the premises where a childcare centre is being conducted and what used to be three and are now two investment residential apartments called the “Schedule A property”, Justice Hamilton reached a conclusion, not crystallised in any order as yet, that they were subject to a trust to permit the Association to use the premises for the purpose of the church, et cetera, et cetera. 

He was unable, on the evidence, to determine the question in relation to the non‑Schedule A property also held by the Association and of considerable worth.  He was also not determining and did not determine the question of breach and the breaches most particularly include the use of the consecrated or arguably consecrated building in particular ways and the resistance to the officiation by the second respondent, Father Mitrev, as priest, bearing in mind the break down of relations between them. 

GUMMOW J:   Now, the suit is constituted in this way only because of an order made under the Charitable Trusts Act, is it not?

MR WALKER:   Yes.

GUMMOW J:   Particularly the Attorney-General seems to evaporate.

MR WALKER:   He has not evaporated.  He has played a considerable role in argument.  He is not here today.

GUMMOW J:   No.  The time for considering costs arrangements was at the time when that leave was granted, was it not, back in October 2001?  This was obviously going to be an ocean of litigation, I would have thought.

MR WALKER:   Yes.  Your Honours, that matter has been ‑ ‑ ‑

GUMMOW J:   The point of embarkation was 31 October 2001 before Justice Hamilton.

MR WALKER:   But, your Honours, that period ‑ ‑ ‑

GUMMOW J:   Neither of you seem to have agitated that matter at that time.

MR WALKER:   But that is not in controversy and does not affect the present issue because there is no difference in ‑ ‑ ‑

GUMMOW J:   Well, it is by reason of its absence that the present issue has arisen years later.

MR WALKER:   No, your Honour.  This issue would have arisen either then or later in exactly the same ‑ ‑ ‑ 

GUMMOW J:   Yes, and if it had arisen then, we might not be here now.

MR WALKER:   In the same form it would have arisen.  In other words, it has to be dealt with.  The costs between the beginning and when it was first raised, Justice Hamilton and the Court of Appeal differing as to when it was first raised, but fixing that date being in principle common ground between the courts below, are not in question.

GUMMOW J:   The “it” it seems to me is when leave was given under the Charitable Trusts Act.

MR WALKER:   Your Honour, I am not concerned at the moment to, with respect, dispute ‑ ‑ ‑

GUMMOW J:   Anyhow, we are now being invited to intervene in this matter years later when this costs situation has reached this critical stage.

MR WALKER:   But what is clear, your Honour, is that it was critical from the beginning.

GUMMOW J:   I know it was – exactly.

MR WALKER:   So that what has happened between 2001 and 2003 is not in question between these parties.  None of the parties say ‑ ‑ ‑

GUMMOW J:   All I am saying to you is it is weighing on my mind now in this Court when we are being invited to get into this litigious disaster, as it seems on one view of it.

MR WALKER:   Your Honours, what I am suggesting is that, one way or the other, this a matter which is bereft of authority in this Court.  There is no authority which in terms addresses the question of charities in this regard and it is clear ‑ ‑ ‑

GUMMOW J:   But you say it is not charity, you see.  You cannot approbate and reprobate, I think.

MR WALKER:   We are not approbating and reprobating at first instance at all.  There has been a determination, hence, judicial advice being capable of being sought in relation to the Schedule A property, which your Honours have seen reference to.  For the purposes of the argument before the Court of Appeal, we were bound to argue and did argue without any approbation or reprobation simultaneously that it was not until an appeal that we would be able to deny what is called the trust in relation to the Schedule A property. 

Now, for those reasons, the fact that the parties have no dispute between them in relation to either Justice Hamilton’s disposal of the injunctive proceedings or the Court of Appeal’s disposal of them about the period of costs being incurred between 2001 and 2003, and bearing in mind what you can see from the litigious stance of these parties, which is, to put it mildly, very conflictual – your Honours will have read the references by Justice Hamilton in particular to the as of course fierce opposition to move and counter‑moves ‑ ‑ ‑

GUMMOW J:   Now, as to practical effect, what do you say is the practical effect of the Court of Appeal’s order on your side’s further conduct of this litigation as to its financing?

MR WALKER:   The practical effect is that unless people could be found who would, as it were, donate hundreds of thousands of dollars worth of legal services, then there will be no legal representation for the defendants, my clients.  In our submission, simply stated, that raises ‑ ‑ ‑

GUMMOW J:   It is not a question of donating legal services.  It is a question of whether members of the Association were funded out of their own pocket, is it not?

MR WALKER:   There is, in fact, on the record, out of court – that is, on this record, as your Honours will have seen, there has been a position taken by the plaintiffs against us that donations for the purpose of fighting this case are themselves impressed with the trust which would be breached by using it to fight for this case.  So, your Honours, it is not, in our submission ‑ ‑ ‑

GUMMOW J:   Well, I am sure you can give some robust advice about that ‑ ‑ ‑

MR WALKER:   And to be fair, it would appear that Justice Hamilton has, at least provisionally, a robust view about that as well.  But it will give your Honour an indication, in our submission, of the public interest of this being a set of proceedings determined through what is, after all, was before incorporation and remains after incorporation, a community association, that there should not be contemplated resort to funding from outside the application when what is in question is the claim – and I stress the claim – by the plaintiffs undetermined in any way to the non‑Schedule A property.

The Court of Appeal has said because, by reason, we submit, Justice Palmer has accepted, but that is contestable by the respondents here, because we say there has been an arithmetic error – not just arithmetic but a failure to take into account the true state of affairs when the Court of Appeal came to exercise the discretion anew concerning the state of the property, the Court of Appeal reached the rather fatalistic position that even with the money being raised from the available Schedule A and the available non‑Schedule A property, there would not be on the estimates of past and future costs the capacity for the defendants to fund the defence to a conclusion.  I stress that has to be on estimates – market value estimates as well as litigious costs estimates.

GUMMOW J:   What is the current position of the bank, which is not a party to all of this, but in fact it has a proprietary interest in this property.

MR WALKER:   Indeed, on the information in the record 655.  Now, one of the errors was that their Honours ‑ ‑ ‑

GUMMOW J:   Has that loan been serviced or what is happening to it?

MR WALKER:   So far as I understand, yes, your Honour.

HEYDON J:   You say 655, but Mr Parker says there was no evidence before the Court of Appeal of that.  Is that correct or not?

MR WALKER:   Your Honour, can I just check about no evidence?  I cannot answer the question about evidence.  I can say that there was information available that is given to the Court of Appeal about 655,000 being the balance resulting from the sale of one of the three properties subject to the mortgage.  Your Honours know that the Court of Appeal took into account that those properties had shrunk from three to two and so that side of the ledger shrank, but what the Court of Appeal did not do was to reflect that in the shrinking of the debt to the bank. 

In our submission, that shows beyond any doubt, regardless of whether there was evidence in the sense of testimony or an exhibit, that the Court of Appeal correctly took into account an updated state of affairs in one respect but made that the source of fatal error by not taking into account the integral and correlative effect of reducing the indebtedness.  That is the explanation, I think, your Honour, of the difference between the parties shown in submissions of this Court concerning 750 and 655,000.

HEYDON J:   He has another complaint about whether or not the liabilities could be refinanced by employing the Schedule A property.  I mean, you criticise the Court of Appeal for an error.  He says maybe it was an error but it was not an error that anyone told them anything about.

MR WALKER:   Your Honour, I think the short point is, until it was seen in the Court of Appeal’s reasons, there was no reason to suppose that that error would be committed.  It is not suggested there is any juncture at which there was, as it were, the two parties going off in opposite directions and the Court of Appeal showing that it had an interest in one of them.  At no stage, for example, has my learned friend suggested that factually or logically one could envisage a situation where you reduced the estimate of the value of the assets by noting the sale of one of the apartments without noting that the indebtedness had also been reduced.  They are one and the same – two sides of the one coin.  So, in our submission, there is no after the event rethink involved in the criticism we make of the error in the Court of Appeal.  That is an error that emerges for the first time. 

HEYDON J:   One other thing, you refer to various English, Hong Kong and Canadian cases.  Were they cited to the Court of Appeal?  They are not listed.

MR WALKER:   The English one was and that incorporates, of course, a number of them.  Now, in the book of authorities, United Mizrahi [1998] 1 WLR 435, your Honours will pick up in Mr Burton QC’s reasons, starting at 438G and then continuing over that page to the foot of page 439, some of the decisions, particularly Sundt Wrigley & Co Ltd v Wrigley, are there noted, but not all of the others, no, your Honour. 

HEYDON J:   The decision of Mr Burton that you have referred to is not referred to as a case or text cited at the front of the – I mean, Mr Blake may be right, but I am just pointing out that on the ‑ ‑ ‑

MR WALKER:   I am told by Mr Blake it was in written submissions.  I am sorry.  I had not noticed that discrepancy, your Honour.  Xylas v Khanna was, I am instructed.

GUMMOW J:   What in short measure do you say is the relevant principle and what do you say is the erroneous application of it?

MR WALKER:   As to the relevant principle, it is that where a claim proprietary in nature and alleging a trust which is disputed – that is one case; second case, where a claim which is proprietary in nature, alleging a trust which is not disputed but the alleged breach of trust is disputed, then in both those cases, in relation to the question for the purpose of an interlocutory injunction of restraining resort to the property claimed to be trust property or claimed to have been affected by breach of trust by the plaintiff, there needs to be taken into account the following considerations, in particular in a case of this kind, being a charity, that there is a public interest transcending the private interests of the parties and the ordinary public interest that there be something in the nature of equality of arms, that there is a public interest that requires the controversy to be quelled by adjudication on its merits. 

Second, that for this case, not particularly because it is charitable but because it is a case where the allegations of breach of trust where the trust is for these purposes conceded, that is disputed, and where the existence of a trust for a considerable part of the property is disputed, that determination of an interlocutory injunction in a way which prevents the determination on the merits by depriving the defendant of resort to its only property – and that is this case – is a wrong exercise of the discretion.  Third, more particularly to this case ‑ ‑ ‑

GUMMOW J:   A wrong exercise of the discretion in which particular House v The King sense?

MR WALKER:   Wrong because the principle requires that there be an attempt to strike the correct balance, to use Mr Justice McLelland’s formulation which was put at the very forefront of Justice Hamilton’s reasons, application book 4, paragraph 3, quoting from that 1987 decision of Mr Justice McLelland:

must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled –

It goes on, of course, but that is the emphasis.  That, in our submission, is a principle of law as to how the discretion is to be approached.  It is an error of law not to have approached the question in that regard.  Here, the consequence to the defendant is that because there has been claimed against it that some of its assets are held subject to a trust, that is the non‑Schedule A properties, that is enough in relation to what is called a balance of convenience – see the Court of Appeal’s own proposed catchword at page 37 of the application book – that is enough that it be claimed to have produced the startling result that an allegation having been made without its relative merits having been weighed against the answer to the allegation, the defendant may not thereafter use its property which is the subject of the claim.

GUMMOW J:   You say its property.

MR WALKER:   That is obviously a defendant’s point of view, but the court has not decided that the property is not the defendant’s and the legal title is with the defendant.

GUMMOW J:   At the moment – and we have to go on this – there seems to be a view by Justice Hamilton that there is a trust of some description.

MR WALKER:   No, your Honour, that there is a – he says there is a sufficient case – I am sorry, that is the Schedule A property, your Honour?

GUMMOW J:   Yes.

MR WALKER:   The submission I was last putting was for non‑Schedule A property ‑ ‑ ‑

GUMMOW J:   You are talking about Schedule B.

MR WALKER:   ‑ ‑ ‑ where there is simply a claim of trust.  Where there is, for the present purposes, a conceded trust, that is where there is simply a claim of breach of trust which is disputed.  Your Honour, I note the time.  In our submission, this is a case where a lack of intervention by this Court will bring to an end a litigation about a controversy which will not cease with the litigation being concluded without a determination on the merits.  It is a controversy that needs judicial rather than any other form of resolution. 

GUMMOW J:   Yes, Mr Parker.

MR PARKER:   The injunction granted by the Court of Appeal had a double aspect.

GUMMOW J:   Yes.  What was the equity to get the injunction by the way?

MR PARKER:   I am sorry, your Honour. 

GUMMOW J:   What was the equity found in any injunction?  Your client’s equity, what was it?

MR PARKER:   Because it was found that we, in effect, representing the public interest as a result of the grant of leave, had demonstrated on a prima facie basis, first, that the property that had not already been the subject of the decision by Justice Hamilton was in fact subject to the same trust as found by his Honour.

GUMMOW J:   This is the non‑Schedule A property?

MR PARKER:   Yes.  Can I say something briefly about that.  The non‑Schedule A property includes things like other properties purchased with the assistance of security on the Schedule A property.  It includes things purchased with money which was derived from the Schedule A property.  It was argued before Justice Hamilton that there was not even a prima facie case that the money which had been received, for instance, by way of rent from the Schedule A property was not itself subject to Schedule A.  His Honour found against that. 

So the equity was that we have demonstrated on a prima facie basis, first, that the non‑Schedule A property was subject to the same trust that his Honour had found in relation to the other property, one might say, of a like character and, secondly, that we had demonstrated on a prima facie basis that the application of that money towards the defence of these proceedings, subject to the exceptions which we are prepared to concede, would be a breach of trust. 

It is important to refer to those exceptions because one of the exceptions that we have always accepted and is recorded in the Court of Appeal’s judgment is that we have always accepted that should Justice Palmer be persuaded to grant the applicant here judicial advice that would allow it to defend these proceedings in the public interest out of the Schedule A property, well, that is built into the injunction.  They are free to do that.  But his Honour has not found that yet.  What this litigation was about, what this particular injunction sought, was to stop the applicant helping itself to the Schedule A property and the non‑Schedule A property without any sanction from the court.  That is all this injunction was sought to achieve.

GUMMOW J:   It has the practical effect though, does it not?

MR PARKER:   So they say, yes.

GUMMOW J:   That these members of the congregation will have to dip into their own pockets.

MR PARKER:    Yes, but one thing that is ‑ ‑ ‑

GUMMOW J:   Do you say they cannot even do that?

MR PARKER:    We have not, I do not think, said that.  We have accepted quite clearly that if they were to go out and say, “We’re going to have a fundraising exercise.  This money is being raised not for the purpose of the Church; it is being raised to litigate against the Bishop”, that would be fine.  We do not claim that that money would necessarily be the subject of a trust.  So we do not accept what Mr Walker said about us trying to stop them from raising any money.  We just say if they are going to raise money, they should not be using the Schedule A assets to do it.  They should make it perfectly clear to their supporters that this money is being raised to pay lawyers to fight against the Bishop and to deny the trust.

Now, your Honours, it is important to appreciate, we say, that the Court of Appeal had a double aspect to consider.  That is the Schedule A property and the non‑Schedule A property.  There was an injunction at first instance in relation to the Schedule A property.  Can I take the Court to page 23 of the application book, the decision of the primary judge.  In the second sentence of paragraph 41 where his Honour is dealing with the Schedule A property, his Honour says:

In relation to that subject matter, I do not consider that any of the defendants’ submissions put as precluding any injunctive relief at all at the plaintiffs’ suit should preclude relief.

That included, for instance, the arguments that there was no proper prima facie case of breach and the like.  So his Honour concluded that there should be an injunction with respect to the Schedule A property.  The issue was from what date should it go, and the Court of Appeal decided on the facts, and it is not contested here, that it should go from 4 April 2003, whereas his Honour had found at first instance that it should be from 7 May 2004.

Now, there was no cross‑appeal from his Honour’s judgment and, in our submission, therefore, one can put aside immediately any question of challenge in this Court to the injunction so far as it related to Schedule A property.  Now, once one reaches that stage, and one reaches the conclusion that the Schedule A property is properly to be the subject of an injunction, subject of course to whether they can persuade Justice Palmer to let them have some of the money to run the issues which might properly be funded from that, but once one accepts that there is an injunction, the question then becomes, is there any point in letting them have access to the non‑Schedule A property, and the question arises, can they fund the litigation out of the non‑Schedule A property.  That was the factual issue which the Court of Appeal had to determine, and it determined it in our favour and against them.

GUMMOW J:   Where does the bank fit in with this explanation?

MR PARKER:    We do not know what the bank’s position is.  I have some material which was not before the Court of Appeal, because this very issue was not before the Court of Appeal.  Can I go back a step?  The argument now put in this Court is, “Well, that’s okay.  The non‑Schedule A investment properties”, which are worth $560,000, it is said, “that can be made available by simply taking all the liabilities to the bank off that and putting them on to the child care centre”.

GUMMOW J:   Yes, I noticed that.

MR PARKER:    Now, that is the argument that is put here.  We do not believe that that was put in any clear way to the Court of Appeal, and certainly there was no evidence about it in terms of would this transfer be possible.  In fact, we know – and I have the evidence here with me – that the last word we have from the bank in May this year is that they were saying that they did not want a mortgage over the child care centre and they were not prepared to take it.  Since the Court of Appeal judgment has come down, we have learned that my friend’s instructing solicitors have a mortgage over the child care centre.

So we are in the position where it is not even clear what the equity is in that building and whether it indeed can be refinanced.  The reason we know these facts is because they have come out in a piece by piece way through the judicial advice proceedings, and this is part of the problem.  In the judicial advice proceedings all we get, of course, is the statement of facts which is what the applicant wants to present to the Court. 

There is no ability by us to test that, and if the issue had been raised in these proceedings, which of course were proceedings inter partes, and it had been said, “Oh, well, the bank will take that debt over.  Don’t worry, we can refinance it”, that would have been a highly controversial factual matter, we would have been able to investigate it and it could have been made the subject of findings both at first instance or even on appeal.  That did not happen.  In effect this Court is being asked to make a decision on the basis of a factual assumption, namely, that this debt can be refinanced, when that has not been the subject of any finding ‑ ‑ ‑

GUMMOW J:   That is one of the things that has been worrying me.

MR PARKER:    Well, in our submission, that is a fatal objection to this particular application for special leave.  Can I make one other point about it which is not raised in our written submission, and that is this.  Suppose they can transfer their debt away from the non‑Schedule A investment properties, that is, the three units which at the moment are not accepted to be the subject of a trust.  Those units are said to be worth $560,000.  There is $600,000 in past costs to pay and there is $400,000 to run the trial.  That is in addition of course to all the money that has already been spent on this litigation by the Association.  That is just what is left to pay the past costs that have not been paid and that is a figure ‑ ‑ ‑

GUMMOW J:   Why would a trial be so complicated in this case?

MR PARKER:    I am sorry, your Honour?

GUMMOW J:   What are the great issues of fact?

MR PARKER:    Well, one of the questions we want to know, your Honour, is what is the issue about the ability of the Bishop to appoint the priest?  We say the judge has found that this is a property which is impressed with a trust which incorporates the purposes of the Macedonian Orthodox religion.  That is a hierarchical church.  What sort of church would it be, or what sort of trust would it be, if the Bishop did not have the ability to appoint the priest?

Now, that is something which – and this was a question your Honour Justice Gummow asked as the beginning of my friend’s address – one of the questions we ask is, just exactly what is this will‑o’‑the‑wisp case which is said to be the case that – the true terms of the trust?  The litigation has been going for nine years and we still do not know what it is.  All we know is that we have alleged in paragraph 22 of our statement of claim that one of the terms of the trust is that the Bishop has the exclusive right to appoint the priest and we have a bare denial of that proposition on the pleadings, and that is it.  For the very reason that the questions of public interest and the like have not been raised in this case, we have had no means of finding out from the defendant exactly what the case is that it wants to put on that and what the substance of that case is.  That is the thing I wanted to say about public interest. 

I accept the correction in my friend’s submission in reply that there does appear to have been a submission made to the primary judge that the public interest was itself a reason why the injunction should be refused, but his Honour did not act on that and that submission was not put to the Court of Appeal, and this Court is now being asked to say that the Court of Appeal was wrong in failing to take that relevant consideration into account, or allegedly relevant consideration into account, when that was not put to the Court of Appeal.

My learned friend referred to what he described as his primary case.  We picked this up in our written submission.  For completeness, we would wish the Court to know that there is going to be a big issue about whether that primary case, that is that there is no trust at all, is still open, and the reason is approbation and reprobation.  When my learned friend was in this case running the trial back in 2002, that point was taken and it was open.  Since then the applicant has invoked the court’s jurisdiction, that is, the Equity Court’s jurisdiction, for judicial advice, and it has done so on the basis that it is the trustee.

GUMMOW J:   Yes, it is an application under section 63 of the Trustee Act.

MR PARKER:    Yes, and by doing that we say that now ‑ ‑ ‑

GUMMOW J:   This is the recent decision of Justice Palmer.

MR PARKER:    Yes, and, with respect, a correct decision on that point, and they have invoked that jurisdiction.  They have also invoked their rights under section 59 of the Trustee Act, that is, the right of indemnity, and they have also invoked what they say are their rights under Uniform Civil Procedure Rule 42 part 25, which gives a trustee a right of indemnity of trust assets.  That is in the course of argument in the Court of Appeal.

Now, none of that is part of their record in this case, but the Court should appreciate, we say, that this apparently attractive argument, or what is now said to be the primary argument, it will be highly questionable whether that will actually ever be permitted to be run, at least with respect to the Schedule A property, and it will not become obvious whether that will be able to be run until we get a defence from them and until we file our reply to that defence and we can see where the parties join issue on that.  Those are our submissions.

GUMMOW J:   Yes.  Mr Walker.

MR WALKER:   Your Honours, the public interest in having properly, that is judicially, quelled a controversy about this kind of charitable trust where members of a community band together, contribute money, form an association, have a constitution of the association, take the association to incorporation, is a matter of public interest which was explicitly relied upon in the Court of Appeal, and your Honours will have seen reference to it in the reasons of the Court of Appeal. 

As to the other matters of public interest that my learned friend is referring to, if they truly be distinct, in our submission, it is extremely plain that from the beginning there has been a reference to the charitable nature of the trust or alleged trust and so, in our submission, there is nothing in the point that there has been, as it were, a missing argument in the Court of Appeal.  The whole of the position between the parties, particularly bearing in mind the leave sought and granted to the plaintiffs themselves, is imbued with the public interest.  No one in the case has a private interest. 

That then brings me to the second point in reply.  It is not the case that the alternative contention on the primary issue is one that says there being no trust this is property which is held free of obligations of a kind that a trust would impose.  The dispute is between a contention upheld by Justice Hamilton, and therefore binding us for present purposes, that there is a trust and an alternative contention that there is a set of obligations exactly tantamount to those of the trust but contained wholly and exclusively within a State statute.  No one suggests that there is a case to be put by which there can be any private benefit gained from the Association under its primary contention compared with the trust imposed by Justice Hamilton.  It is for those reasons, in our submission, that the charge of approbation and reprobation is not to the point. 

Your Honours, at the nub of this case is the repeated findings, repeated in particular in the Court of Appeal, that there will be an inability without the money which Justice Hamilton’s version of the injunction would have left available – we stress, as my friends do, there is no cross‑appeal – there is no question, commonly the case, the Court of Appeal pronounces, “You can’t run this case without at least the money that Justice Hamilton would have left available to you”.  The difference between the parties is the Court of Appeal then said, “But even if you had that, you won’t be able to run it to finality”. 

In our submission, for the reasons we have put and I should repeat in reply, that is an approach which gives the plaintiffs all the practical consequences of success in their final claim by reason of interlocutory hearing which could not and does not and avowedly did not go into the relative merits, that is, the weighted cogency compared with each other of

the plaintiff’s case or the defendant’s contentions either on breach of the found trust or existence of the disputed trust. 

In our submission, that is such a surprising result where there has not been a Mareva‑style adjudication at the interlocutory level concerning the merits of the defendant’s position that this case calls out for intervention so that for the first time this Court can pronounce what is to be the approach when there is a corporate trustee or alleged trustee against whom either disputed breaches have been alleged or against whom a disputed trust is alleged and its only property is the very property that the plaintiff lays claim to in toto.

The matter outside charities has been addressed in the authorities to which we have drawn attention.  This Court has not looked at either those authorities or the general matter of principle.  In our submission, there are special reasons why in the charitable area, in a case particularly where the Attorney‑General is neutral on the issue, for this Court to take the opportunity to pronounce principles against the background of what presently seems to be the stymieing of a determination on the merits based upon disputed estimates of costs and values.

GUMMOW J:   Thank you, Mr Walker.

Even allowing in favour of the applicant the errors of fact attributed to the New South Wales Court of Appeal, we are not satisfied that there are sufficient prospects of success in demonstrating error in the identification and application of principle to warrant the grant of special leave.  Accordingly, special leave is refused with costs.

The Court will now adjourn to 10.15 am on Tuesday, 12 December at Canberra.

AT 3.16 PM THE MATTER WAS CONCLUDED