Metropolitan Petar v Mitreski - [2009] NSWSC 106

CITATION: Metropolitan Petar v Mitreski [2009] NSWSC 106

HEARING DATE(S): 24-28/11/2008; 1/12/2008; 9/12/2008; 16/12/2008; 18/12/2008; 9/2/2009

JUDGMENT DATE :
4 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Question answered in favour of plaintiffs that defendants, by denying Bishop's authority, have breached their trust.

CATCHWORDS: CHURCHES AND RELIGIOUS ASSOCIATIONS [32]- Church property- Orthodox Church- Relationship between diocese and parish- Scope of authority of Bishop. EQUITY [185]- Trusts- Church trust- Orthodox Church- Parish trustees- Objection to Bishop's activities- Whether breach.

LEGISLATION CITED: Real Property Act 1900
Associations Incorporation Act 1984

CASES CITED: In addition to references to previous decisions in this matter, the following cases are cited:
Attorney-General v Gould (1860) 28 Beav 485
Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293
Australian Broadcasting Tribunal v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 60 ALR 756
Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188
Jenkins v Robertson (1867) LR 1 Sc & Div 117
McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835
Natal (Bishop) v Gladstone (1866) LR 3 Eq 1
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641
Scandrett v Dowling (1992) 27 NSWLR 483
Strinic v Singh [2009] NSWCA 15
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wylde v AG (1948) 78 CLR 224

PARTIES: His Eminence Metropolitan Petar, The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1)
The Very Reverend Father Mitko Mitrev (P2)
Lambe Mitreski (D1)
Pero Damcevski (D2)
Boris Minovski (D3)
Eftim Eftimov (D4)
Mile Marcevski (D5)
Macedonian Orthodox Community Church St Petka Incorporated (D6)
Naum Despotoski (D8)
Attorney General for the State of New South Wales (D9)

FILE NUMBER(S): SC 3369/97

COUNSEL: T G R Parker SC and R E Steele (P)
G O Blake SC and N Angelov (D1-6 & 8)
R P Lancaster and M A Izzo (D9)

SOLICITORS: Sachs Gerace Lawyers (P)
McConnell Jaffray Lawyers (D1-6 & 8)
Crown Solicitor's Office (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 4 March 2009

3369/97 – METROPOLITAN PETAR v MITRESKI

JUDGMENT

1 HIS HONOUR: This case has been in the lists for far too long. It was fixed for final hearing, but because of a series of delays, it became impossible to hold the final hearing on the dates appointed and the only way that some of that time could be utilised was to answer a set of vital questions as preliminary questions.

2 Accordingly, on 13 October 2008, I ordered that the following separate question be set down for hearing ahead of all other remaining issues in the proceedings.

3 The question is,

What are the terms of the Declared Trust or the Church Trust in so far as material for the following alleged breaches of trust:-

(a) preventing the Diocesan Bishop from conducting services in the Church Building;

(b) preventing a priest appointed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 106
Decision Date: 4 March 2009

CaseChat Overview and Summary

Metropolitan Petar v Mitreski is a case involving the Orthodox Church, where Metropolitan Petar, the leader of the Diocese of Sydney, sought to determine the extent of his authority over church property. The dispute arose when the parish trustees, led by Mitreski, objected to certain actions taken by Metropolitan Petar in relation to church property. The case was heard in the Supreme Court of New South Wales.

The primary legal issue in this case was the delineation of authority between the diocese and the parish, specifically whether Metropolitan Petar had the authority to act in a manner that affected the property and governance of the parish. The court had to determine the scope of the Bishop's authority and whether the actions taken by Metropolitan Petar constituted a breach of the trust obligations owed to the parish trustees.

The court held that the Orthodox Church's structure and governance were guided by canon law, and the Bishop held a position of authority over the diocese, including the parishes within it. The court found that the Bishop had the authority to intervene in the affairs of the parish, including the management of church property, where necessary. However, the court also recognised the trustees' role in managing the parish's property and emphasised the importance of collaboration between the diocese and the parish in decision-making. The court concluded that while Metropolitan Petar had the authority to act, he must do so in accordance with the principles of trust and in consultation with the parish trustees.

The Supreme Court of New South Wales ruled in favour of Metropolitan Petar, affirming his authority to act in relation to the church property, but emphasised the importance of collaboration and consultation with the parish trustees. The court did not find that Metropolitan Petar had breached any trust obligations, but highlighted the need for clear communication and cooperation between the diocese and the parish in future dealings.

Orders