MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED

[2009] NSWSC 3

CITATION:	MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED [2009] NSWSC 3
HEARING DATE(S):	6 January 2009
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	6 January 2009
DECISION:	In respect of the management and administration of the trust property of St Petka's Church, the trustee is entitled to exclude Father Mitrev from officiating or assisting in officiating at any service provided the decision is based upon an honest and conscientious assessment of what is required for the good order and dignity of the mode of use of the church property and its safeguarding. This advice is necessarily subject to any final determination of the rights and obligations of the parties in the principal proceedings as they come to be made by the trial judge. Costs of the application are to be paid out of trust property.
CATCHWORDS:	Trustee seeking judicial advice - use of trust property - right to exclude particular person uncertain - likelihood of cuasing offence - duty of trustee
LEGISLATION CITED:	Trustee Act 1925
CATEGORY:	Principal judgment
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 1089 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 249 ALR 250
PARTIES:	Macedonian Orthodox Community Church St Petka Incorporated
FILE NUMBER(S):	SC 2009/1030
COUNSEL:	M F Holmes QC - Applicant - ex parte Mr McIlwaine (s) - intervening (Attorney General)
SOLICITORS:	McConnell Jaffray - Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ADAMS J

TUESDAY 6 JANUARY 2009

1030/09

MACEDONIAN ORTHODOX COMMUNITY CHURCH
ST PETKA INCORPORATED

JUDICIAL ADVICE

1 HIS HONOUR: This is an ex parte application by the Macedonian Orthodox Community Church St Petka Incorporated (the trustee) for advice under s 63 of the Trustee Act 1925, the relevant provisions of which are:

“(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
(2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction.”

2 The trustee is the registered proprietor in fee simple of property occupied by a church and is bound to use that property, "as a site for the 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": Metropolitan Petar v Mitreski [2003] NSWSC 1089 at [3].

3 For many years the trustee together with other members of St Petka’s have been engaged in litigation with the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand and the Very Reverend Father Mitko Mitrev (who was described in a judgment of the High Court of Australia in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 249 ALR 250 at [3] as “a former (emphasis added) priest of the St Petka parish in Rockdale, Sydney”). Whether, indeed, Father Mitrev is a former priest or the present parish priest has been the subject of litigation since 1997, the trustee claiming that it dismissed him on 14 July 1997 and the priest contending that the dismissal was invalid. There has been a great deal of litigation surrounding this controversy. It is evident that feelings in the Macedonian community run high concerning the dispute, especially in the parish of St Petka.

4 The matter about which the trustee seeks advice is whether it has the power and is authorised by the terms of its trust to exclude Father Mitrev from entering the church of St Petka tomorrow to conduct or play an active participating role in the conduct of the celebration of the Nativity of Jesus in the First Day Christmas service, 7 January being the date upon which the Macedonian Orthodox Church celebrates this holy anniversary.

5 The members of the Executive Council of the trustee, which may fairly be said to represent the congregation, take the view that Father Mitrev was validly dismissed for reasons that adversely affected his ability to carry out his priestly functions and that he ought not to conduct services in the church or participate in an official way in them, although they accept that he should be entitled to visit the church and attend services as an ordinary member of the congregation should he wish to do so. In 1998, during the course of the litigation, undertakings were entered into by the trustee on the one part and the Bishop and Father Mitrev on the other concerning attendance at religious services. So far as the former is concerned, they would permit the Bishop and Father Mitrev to enter St Petka’s for the purpose of attending religious services as ordinary members of the congregation, whilst the latter undertook to enter the premises only for the purpose of attending religious services as ordinary members of the congregation. Those undertakings stood for near enough to ten years. As it happened they were unnecessary after 2003 since from that time until, perhaps, tomorrow there have been no services of any kind conducted at St Petka’s. Tomorrow's service, if it takes place, will be the first for a long time. Because of events that arose in the principal proceedings the undertaking made by the Bishop and Father Mitrev was discharged on 18 December 2008.

6 It seems that some time late in December 2008, although the date is unclear, the Bishop had issued a program disclosing his proposed visits to the churches in the diocese over the Christmas period commencing 4 January 2009 and ending 20 January 2009. A number of services were proposed for St Petka’s. No reference was made in the program to any officiating priests in addition to the Bishop. On 31 December 2008 the program was forwarded by the Bishop's solicitors to the trustee's solicitors to obtain access to the church for the specified services. No reference was made in that letter to the possible attendance of Father Mitrev. In answer to an enquiry made by the trustee's solicitors, the Bishop's solicitors informed them, "His Eminence Petar will be assisted by Deputy Bishop Very Reverend Jovaci Simonovski, the Diocesan Treasurer, the Very Reverend Dusko Spirkoski and the Deputy Prelate and Parish Priest, the Very Reverend Mitko Mitrev.” A flurry of correspondence, not surprisingly, then ensued, the trustee essentially protesting at what was evidently seen as a pre-emptive strike by the Bishop and Father Mitrev and the Bishop, on the other hand, asserting the right to determine who was appropriate to assist him at the services and the authority in this respect to appoint Father Mitrev. I say pre-emptive strike because the principal litigation has moved some significant steps further on with the Chief Judge in Equity informing the parties that on 9 February 2009 he intended to deliver a judgment as to separate and, I think, preliminary questions involving a consideration of whether the terms of the trust permitted the trustee to prevent a priest licensed by the diocesan bishop (such as Father Mitrev) to conduct religious services in St Petka’s from doing so. At the same time, it is fair to observe that the services at Christmas time are very important in the calendar of Christian liturgy and it is quite understandable that the Bishop would wish to encourage and instruct his flock at this time of particular goodwill. However, it may also be observed that the controversy as to Father Mitrev’s suitability has been ongoing and has given rise to bitter feelings, certainly on the part of many of the congregation of St Petka’s and I suspect also on the side of those who support him, and the provocative character of the Bishop’s decision is clear enough.

7 On the face of it, the owner of property who is in possession is entitled to exclude the world from entering upon his or her land. This is a fundamental common law right qualified only where others have legally recognized rights to enter. It is certainly arguable that a duly appointed parish priest has such a right of entry in respect of parish property and the church in particular and, no doubt, the right and responsibility to conduct the church’s liturgical ceremonies. In this case, the trustees assert that Father Mitrev is not the parish priest and it is unnecessary to consider whether, if he were, he has a right to enter the premises despite their exclusion of him, whilst for his part, Father Mitrev has maintained that he is, indeed, still the parish priest, amongst whose rights are those of entry and officiation without interference. As more than one judge has said, who has been required to give judgment in the various disputes between the parties in the principal litigation, the question is not an easy one to answer and something can be said on both sides of the case.

8 There is evidence before me that many parishioners will be profoundly offended by the attendance of Father Mitrev at a service such as that proposed tomorrow and it is apprehended that so strong are the feelings of some of them that a breach of the peace might occur. Certainly, it seems reasonable to apprehend that actions inconsistent with due decorum on a necessarily formal and dignified occasion might well occur.

9 The trustees, therefore, are faced with a dilemma. If they permit Father Mitrev to participate as envisaged there is a substantial risk that the service itself will be subverted by the expressions of strong feelings and, perhaps, worse. As a consequence, of course, the church could be brought into disrepute. On the other hand, if they exercise their powers as owner in possession of the property to exclude Father Mitrev and, in the result, it is held that he was not validly dismissed and had, in addition, as parish priest a right to enter the church and conduct or participate in the conduct of services they will have acted unlawfully in excluding him. They cannot avoid making a decision as to which on each side there is a risk that they might in the result be mistaken as to their powers.

10 I am satisfied that the members of the Council conscientiously have the opinion that Father Mitrev was validly dismissed and that this was for reasons adversely affecting his suitability as a pastor. If this is their honest opinion, based upon reasonable grounds, the mere fact that others also on reasonable grounds have a different opinion does not mean they are not entitled to hold it and give it such effect as to them seems proper. Accordingly, the exclusion of Father Mitrev from tomorrow's service is one which at all events the trustee considers its duty to ensure and, when there is added the risks of untoward proceedings arising out of his attendance because of the strong feelings that the controversy has raised, it seems to me that the trustee must be entitled to act upon a conscientious view of the facts and judgment about the proper and responsible course they should undertake and that in so it is not acting in breach of trust but in the proper exercise of its functions. Faced with what I have called the dilemma, in which a decision one way or another cannot be avoided (a position in which they were placed by the Bishop and Father Mitrev) they must be entitled to act according to its best judgment about what will maintain the dignity and reputation of the church for which it is the trustees.

11 It is, accordingly, my opinion that, in respect of the management and administration of the trust property of St Petka’s church, the trustee is entitled to exclude Father Mitrev from officiating at any service, providing the decision is based upon an honest and conscientious assessment of what is required for the good order and dignity of the modes of use of church property and its safeguarding.

12 The costs of this application are to be paid out of trust property. It was reasonable in the circumstances to brief Senior Counsel.

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