Metropolitan Petar v Mitreski - [2009] NSWSC 106

No judgment structure available for this case.

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 by the Diocesan Bishop as parish priest of the St Petka Parish from conducting religious services in the Church Building;

(c) preventing a priest licensed by the Diocesan Bishop to conduct religious services in the Church Building from doing so;

(d) excluding the priest appointed by the Diocesan Bishop as parish priest of the St Petka Parish from the executive committee of the body responsible for the administration of the St Petka Parish;

(e) employing a priest not appointed by the Diocesan Bishop to act as the parish priest of the St Petka Parish;

(f) employing a priest under valid ecclesiastical discipline in accordance with Church Law to act as the parish priest of St Petka Parish;

(g) requiring or permitting a priest to conduct religious services upon the Church Land when:

(i) that priest has not been authorised by the Diocesan Bishop to do so; or

(ii) that priest is under valid ecclesiastical discipline in accordance with Church Law.

(i) closing the Church Building;

(ii) removing the Holy Objects from the Church Building;

(iii) installing Holy Objects;

(iv) reinstalling Holy Objects;

(v) carrying out of building works in and upon the Church Building without the authority and blessing of the Diocesan Bishop.

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

(j) failing to remit to the Diocesan Bishop the contribution from the income of the parish as specified in the Diocesan Statute.

(k) are any such terms fundamental terms?

4 The order noted that, “The Church Trust for this purpose is the trust for using 65 Railway Street, Rockdale as a site of a church of the Macedonian Orthodox Religion and for other purposes concerned with or ancillary to the encouragement practice and promotion of that Religion.”

5 The term “Declared Trust” refers to the terms of the Trust declared by Hamilton J in an earlier set of preliminary questions to which reference will be made hereafter.

6 The “Diocesan Statute” means the constitution adopted at a meeting in Geelong in 1996 and thereafter purportedly ratified by the central church authority in Macedonia.

7 It is important to note that I am not asked to consider whether the actions taken by the defendants or any of them in fact were a breach of trust. However, this exercise is not an academic one. There are allegations as to what has in fact occurred and it would be a waste of time and resources if the answers to the questions delved into matters outside that ambit. Accordingly, it is necessary in these reasons to consider some aspects of the underlying facts.

8 The separate question came on for hearing before me on 24 November 2008 and continued through until 1 December 2008. Mr TGR Parker SC and Mr RE Steele appeared for the plaintiffs, Mr GO Blake SC and Mr N Angelov appeared for the 1st to 6th and 8th defendants and Mr RP Lancaster and Mr MA Izzo appeared for the 9th defendant. There is not in fact at present any 7th defendant.

9 Unfortunately, at the end of the oral hearing further evidence came to light and as a result the matter was mentioned on some subsequent dates up to 9 February, 2009 and further evidence and submissions were received.

INDEX

10 It is useful at this point to set out the headings used in this judgment. In this Index and throughout the judgment “MOC” stands for the Macedonian Orthodox Church.

114-118 The Evidence

396-397 Alleged breach (d)

Overview

11 It is necessary to commence these reasons with a brief overview of the proceedings to date. In these reasons I will refer to all defendants other than the 9th as “the defendants” and I will refer to the 9th defendant as “the Attorney-General”.

12 The proceedings were commenced on 28 July, 1997 when Simos J granted leave to file a summons returnable on short notice. The first version of the statement of claim was filed on 24 November, 1997. It has been amended from time to time. The latest version is known as Version 9.

13 The current version of the defence of the first to sixth and eighth defendants runs to 204 pages.

14 The key substantial issues that will need to be decided in the suit may be

15 As I have said, there was a substantial hearing of preliminary questions in these proceedings before Hamilton J. This took place before Hamilton J between August and November 2002 and his Honour gave judgment on 4 April 2003, coded [2003] NSWSC 262. I will refer to this as “Hamilton J’s judgment”.

16 Both sides have sought to appeal Hamilton J’s decision. However, the Court of Appeal has made it clear that it will not give leave to appeal until there has been a final order or at least deep consideration of the major issues in the case.

17 I should note that there has been a considerable amount of evidence including documentary evidence in this case. In addition, facts have been found in earlier judgments which, at this time are binding on the parties and I have applied them.

18 I am conscious of the remarks made by the Court of Appeal in Strinic v Singh [2009] NSWCA 15 that judges who hear a number of cases involving particular issues may delude themselves into thinking that they can substitute their experience for evidence. That decision, of course, is not directly applicable to this Court which is recognised as a specialist Court in matters of conveyancing, see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 435 per Deane J and probably in trust and corporation and church matters as well together with matters in the Commercial and Technology Lists.

19 I have taken care to see that, apart from having recourse to judicial knowledge of commonly known matters, I have not strayed in this respect.

20 I certainly have referred to some material from my reading in church law generally. I believe that I have in every case mentioned this material to counsel during addresses so that there has been an opportunity to gainsay it. It may just be that an occasional peripheral matter of fact has slipped through not in evidence. I rely on counsel to point any such fact out to me before the judgment that must follow these reasons is entered.

21 Before dealing with the separate question, I need to give an overview of the history and background of the practice of the Macedonian Orthodox Church (MOC).

History of Macedonian Orthodox Church—Worldwide

22 Hamilton J’s judgment finds a number of basic historical facts. As these bind the parties, unless there is a successful appeal, I will adopt what His Honour found and set out in the following paragraphs such of the background facts as are relevant to the present question.

23 A consideration of the history of the MOC involves a consideration of its worldwide history and then the history of the Rockdale Parish. The worldwide history as set out in Hamilton J’s judgment was substantially that given by the first plaintiff in an affidavit and was not disputed.

24 Christianity in Macedonia is said to have had its origins from the time of the Apostles. From very early times Christianity developed institutions and an organisational structure to carry on its mission. That structure was hierarchical: that is, believers were organised into parishes, each under the leadership of a priest; and parishes into dioceses, each governed by a bishop. Such a hierarchical organisation existed in what is now Macedonia just as it existed elsewhere in the early Church. The attendance of bishops and other representatives of the Church from what is now Macedonia is recorded at early ecumenical councils of the Church in the time of the Roman Empire.

25 What is now the Republic of Macedonia formed part of the Roman (later Byzantine) Empire. Under the Emperor Justinian I an Archbishopric was established centred on the city of Justiniana Prima in what is now Macedonia. This occurred in 535AD. Subsequently, the structure of the Church in what is now Macedonia and the Archbishopric of Justiniana Prima were disrupted by Slavic invasions. The Archbishopric was re- established by St Clement the Wonderworker (d 916) in Ohrid (sometimes called “Ochrid”) at about the end of the 9th Century AD. Thereafter the Archbishopric was known as the Archbishopric of Ohrid, although it was referred to by its old name of Justiniana Prima as well.

26 The Archbishopric of Ohrid endured until 1767, when the Ottoman Sultan abolished it. From that time forward, control over the Church in what is now Macedonia was ultimately exercised by the Patriarch of Constantinople.

27 In 1879, at the Congress of Berlin, what is now Serbia became an independent country. An independent Serbian Orthodox Church was established, under a Patriarch whose seat was (and is) at Belgrade.

28 At that time, what is now Macedonia was still part of the Ottoman Empire. In 1912 and 1913, there were two wars between the Ottoman Empire, Greece, Bulgaria and Serbia. Following those wars, most of what is now Macedonia was annexed to Serbia.

29 Following the First World War, the borders were again adjusted and Macedonia became a province of the Kingdom of Yugoslavia. At that time, jurisdiction over the Church in Macedonia was transferred from the Patriarch of Constantinople to the Serbian Orthodox Patriarch at Belgrade. Thereafter, the Church in Macedonia came under the jurisdiction of the Serbian Orthodox Church.

30 In 1941, Yugoslavia was invaded by the Axis powers, defeated and occupied. Jurisdiction over the Church in Macedonia was then split between the Archbishop of Albania and the Patriarch of Bulgaria. Most of what is now Macedonia was under the jurisdiction of the Bulgarian Patriarch and the western part of the country was under the jurisdiction of the Archbishop of Albania. These arrangements lasted until 1943 when the defeat of the Axis powers was followed by the withdrawal from Macedonia of the Bulgarian hierarchy.

31 This left no bishops with recognized jurisdiction over the Church in Macedonia.

32 At a conference of priests held in 1943, and again at a Church assembly of the laity held in 1945, it was resolved that the Archbishopric of Ohrid should be re-established. However, this did not occur until 1958.

33 Following the Second World War, Yugoslavia was reorganised under the Communist Government led by Tito. The country was structured as a series of Federal Republics, one of which was Macedonia. The Republic of Macedonia had its own flag and its own official language (Macedonian). It had its own constitution and parliament and its own organs of government, although, for practical purposes, the Communist Party hierarchy in Belgrade controlled them.

34 In 1958, there was a general assembly of delegates representing members of the Church in Macedonia. At that time, Dositej, who was a native Macedonian, was serving as the Vicar Bishop of the Serbian Orthodox Church. He was elected by the assembly as the first Archbishop of the re-established Archbishopric of Ohrid. At the same time, two other bishops were elected. A written constitution was adopted and a church government established, which provided both for canonical and executive government of the affairs of the Church. This government included a Church Court and a Church Legislative Council. These events marked the beginning of the independent autocephalous MOC.

35 The MOC continues to have a hierarchical structure in common with other episcopal Christian Churches. The spiritual head of the MOC is the Archbishop, who is styled the “Archbishop of Ohrid and Macedonia” and whose seat is in Skopje. There are ten dioceses, each administered by a bishop.

36 In Macedonia itself, the MOC has seven dioceses and approximately 2,000 churches and 250 monasteries. The MOC has 24 parishes in Australia and New Zealand. There is a Diocese of the United States of America and Canada. This is governed directly by the Archbishop. There is a Diocese of Europe with its own designated Bishop.

37 The Diocese of Australia was established as a separate Diocese in 1974, although it was under the auspices of the Bishop of America and Canada. The Diocese of Australia had its own ruling committee and other administrative organs. The Diocese was expanded to include New Zealand in 1996.

38 The MOC has a liturgy, which is generally similar to that of other Orthodox Churches, but which has certain distinctive features.

39 To the above, I should add the following. The evidence of Father Erickson of the USA, the expert in canon law called by the defendants, was that the MOC proclaimed itself autocephalous in 1967. The Serbian Orthodox Church from which it separated declared the MOC to be schismatic and broke relations with its hierarchy.

40 Despite the split, the MOC is treated by all parties to these proceedings as being a legitimate Orthodox Church governed by the basic rules and structures of Orthodox Churches generally.

41 The worldwide MOC is regulated by its Constitution as adopted in November 1994. I refer to this as “the 1994 Constitution”.

42 The 1994 Constitution provided for the adoption of a Diocesan Statute.

43 The procedure for adoption of such a statute was set out in the 1994 Constitution, namely that there should be a document agreed to at local level by the Diocesan Assembly and ratified by the Archbishop’s Assembly.

44 The Australian diocese purportedly adopted a Diocesan Statute in 1996.

45 However, there is dispute between the parties as to whether the Diocesan Statute was validly adopted so as to be binding on the parish of St Petka and, if it was, whether certain provisions in it are ultra vires the 1994 Constitution.

46 A draft of the proposed Diocesan Statute was prepared and submitted to a meeting of the Diocesan Assembly. This Assembly consisted of delegates of the parishes, including the parish of St Petka at a meeting in Geelong held on 14-16 February 1996 over which Metropolitan Petar presided. What occurred at that meeting was the subject of contest and this is dealt with later in these reasons.

History of Parish of St Petka, Rockdale

47 I now pass to consider the history of the Church of St Petka at Rockdale.

48 In 1975 there was at least one church of the MOC in Sydney, being the Church of St Kiril and Metodij in Rosebery. This church was fast becoming inadequate for the growing number of Macedonians in Sydney. There also appears to have been disagreement among many members of the Macedonian community as to the manner in which that church was being conducted.

49 A meeting was held in October 1975 at the Chuck Vagan Restaurant in Rockdale at which there was discussion as to what ought be done. Other meetings followed and, in early 1976, there was negotiation to buy an existing church building on Wollongong Road, Arncliffe. However, at the eleventh hour that church was withdrawn from sale. Thereafter the search was continued and premises were found which were deemed suitable for conversion to a church at 65 Railway Street, Rockdale (“the first property”).

50 The inquiries were being conducted by what was described as “the Initiative Committee for Purchase of a Church in the Area of St George – Rockdale”.

51 On 9 November 1976 Pasko Grbevski wrote a letter as president of the Initiative Committee to the Holy Synod of the MOC, Skopje. That letter contained the following:

52 A further meeting was called for 20 November 1976 and there are in evidence two versions of a report prepared on behalf of the Initiative Committee. It is unclear whether this was presented in writing or formed the basis of a speech made at the meeting, but Hamilton J found that its substance was conveyed to that meeting.

53 That report contained the following concerning the management and structure of the proposed church:

54 At the meeting of 20 November 1976, it was decided to proceed with the purchase of the first property and a set of by-laws was adopted (“the by-laws”). Two translations of the by-laws were tendered, one by the plaintiffs and the other by the defendants. Neither was a translation of all the articles. Neither was agreed to be correct.

55 One difference is that the plaintiffs’ translation is of the by-laws as adopted on 20 November 1976. The defendants’ is of the by-laws as subsequently approved by the Holy Synod in Skopje. There are some differences between the two sets of by-laws in the original Macedonian. Some are apparent from the English translations, but it is not clear what all of them are.

56 Taking the plaintiffs’ translation of the by-laws, articles 3 and 4 were as follows:

“ Article 3

All property of the Church ‘St Petka’, both real-estate property and movable assets, are vested in the Church and cannot be transferred to a person or group of people, company or any other institution.

Article 4

57 The defendants’ translation makes it plain that “Church” is used in article 3 in the sense of the local church community, not in the sense of the institutional MOC (see also the defendants’ article 4). The aims and goals of the new church were to ”instruct its members in the spirit of the Orthodoxy” and to preserve the glorious traditions of the MOC: article 6a and b.

58 By article 12 membership was open to “honest persons of the Orthodox faith whose parents are Orthodox Christians”, with certain exceptions: see article 9.

59 Article 17 provided that the organs of the unincorporated association (in addition to the priest) were the Church Managing Committee and the Assembly. The Managing Committee (of “13 to 35 members”) was to be elected periodically by a vote of the members in the Assembly (articles 19 and 25).

60 Article 59 provided that the by-laws should become effective upon approval by the Holy Synod of the MOC in Skopje. Article 60 provided for amendment of the by-laws by a simple majority of votes in the Assembly.

61 Article 63 provided:

“ Article 63

These By-laws are passed at a membership Assembly and should be approved by the Holy Synod of the Macedonian Orthodox Church in Macedonia and should be verified by the relevant authorities in Australia.”

62 Hamilton J considered that the defendants’ Article 66 was a better translation than the plaintiff’s 64. The text is:

“ Article 66

Each article of these By-laws shall be changed or annulled if it is contrary to the common law of Australia, that is contrary to the civil – provincial and the federal law of Australia.”

63 It should be added that there was no evidence of any ratification by the Assembly (or, indeed, anyone) of the changes made in Skopje, nor that the by-laws were “verified by the relevant authorities in Australia”, whatever that may mean.

64 On 20 December 1976 Mr Grbevski wrote “To The Macedonian Diocese for Australia, Melbourne, Victoria” a letter commencing in the following fashion:

65 Among the points made in the letter was the following:

66 On 23 December 1976 contracts were exchanged for the purchase of the first property for the price of $40,000.

67 On 15 February 1977 Mr Grbevski and Jone Belcheff, the then secretary of the committee addressed a letter “To Metropolitan for Canada, America and Australia The Most Reverend Kiril” which contained the following:

68 It was in this context that the deed of trust, which is the central document in this case, was executed on 8 March 1977 and subsequently registered No 550 Book 3271 (“the deed of trust”).

69 The deed of trust was expressed to be between Mr Grbevski, Mr Belcheff and three other gentlemen named as “the appointors” and John Sergius Peetz, who was by now acting as the solicitor for the group and who was described as “the Trustee”.

70 The deed of trust contained the following recitals:

71 The operative portion of the deed of trust contained the following provisions:

1 T

8 T

12 T

13 U

JOHN SERGIUS PEETZ

72 On 28 March 1977 the vendor’s solicitor served a notice to complete specifying 11 April 1977 as the day for completion and completion of the purchase of the first property did duly take place on or before that day, probably on 5 April 1977.

73 Immediately after completion of the purchase demolition work and then construction was carried out on the first property. Its progress is recorded in loving detail in a Souvenir Booklet, to which reference will shortly be made.

74 On 7 April 1977 Mr Peetz wrote to the Secretary, Macedonian Orthodox Church St Petka, Rockdale, to report on the settlement of the purchase. He stated in that letter that the “Constitution has been drawn as well as the Trust Deed and we note you hold copies of both documents”. He stated that both documents should be put to a meeting for adoption as soon as possible. He confirmed that he was proceeding with the application to register the organisation under the Charitable Collections Act 1934 (“the Charitable Collections Act”), but concluded with a note of very recent telephone instructions to hold back that registration pending possible further amendments to the Constitution.

75 Hamilton J said “Whilst there is no positive identification of the document referred to as the ‘Constitution’ in this letter, the inference I draw is that it was the Constitution as adopted on 28 October 1977, with or without some amendment as foreshadowed; that Constitution was in existence in some form on 7 April 1977.” I will adopt that conclusion.

76 On 9 May 1977 Messrs Grbevski and Belcheff wrote again to his Grace Metropolitan Kiril in Skopje asking for approval of the by-laws. The request was probably unnecessary because the by-laws were approved by a decision of the Holy Synod of the MOC at a meeting on 10 May 1977, which made the following decision:

”The newly formed Macedonian Church Community ‘St Petka’ – Rockdale – Sydney, to be accepted under the spiritual jurisdiction of the Holy Macedonian Orthodox Church – The Macedonian Archdiocese in Skopje.

77 A number of the people who were present at the inception of the new church and who, indeed, worked physically on the construction of the building gave evidence before Hamilton J. To a large degree the evidence has gone to the question of the intent with which the trust was initially created, however it also went to the history of events at the time.

78 Hamilton J said that, in general terms, he preferred the evidence of contemporaneous or near contemporaneous documents where a witness’s account conflicts with those documents. He said that the reason for this is that the events occurred some 25 years ago. Memories are fallible. The issues in this case quite naturally raise strong emotions and those emotions tend to have their effect on the quality of recollection.

79 His Honour then noted that, fortunately, a number of significant documents are available from those times, more, indeed, as will appear below, than have been put into evidence surrounding later events, such as the incorporation of the incorporated association which is the sixth defendant.

80 One document which Hamilton J said helped to fill in gaps is a document which was prepared for the first anniversary of the new church, which was celebrated on 20 November 1977. It was a long historical document (“the Souvenir Booklet”) prepared by Mr Grbevski and Mr Belcheff, who became the first president and secretary of the church committee.

81 Hamilton J noted that both of those gentlemen gave evidence before him, so were available for cross examination concerning any material in the Souvenir Booklet, although it was prepared so long ago. The events recounted in the document were no more than a year or two old when the Souvenir Booklet was written. Both gentlemen were intimately involved in the various events recounted in the Souvenir Booklet. His Honour regarded the account of events in the Souvenir Booklet as more accurate than any that can now be given by the participants.

82 The main motivation for the establishment of the new church is set out as follows in the Souvenir Booklet:

83 The Souvenir Booklet then recounts a disagreement among the parishioners of the Church of St Kiril and Metodij which occurred at a meeting on 7 June 1975 and continues:

84 The Souvenir Booklet sets out an “act of remembrance” which was deposited in the foundations of the new church while concrete was being poured on 29 April 1977. That act of remembrance recorded concerning the meeting of 20 November 1976:

85 The Souvenir Booklet also records the new church’s negotiations with the hierarchy in Macedonia to obtain the services of a priest.

86 The first service was held in the church on 7 August 1977. By dint, it would seem, of almost Herculean efforts, the building was completed by that time. However, no new priest had yet arrived and there were difficulties in obtaining a priest to celebrate services in the church in the meantime. The new priest finally arrived on 20 November 1977, coincidentally the date of the anniversary.

87 On 21 October 1977 application was made on behalf of the “Macedonian Orthodox Church St Petka Rockdale NSW Australia” for registration under the Charitable Collections Act. That application stated that it was accompanied by “a certified copy of the rules governing the conduct of the affairs of the charity”. There is little doubt, and His Honour found, that what was forwarded with that application to the then Chief Secretary’s Department was a copy of the Constitution which was adopted on 28 October 1977.

88 On 28 October 1977 there was a meeting of the “board” of the unincorporated association which, in the words of the Souvenir Booklet, decided as follows:

89 His Honour also found the inference established that it was also at that meeting that the following occurred, again as recorded in the Souvenir Booklet:

90 There are no minutes of that meeting in evidence, but its business is recorded in a declaration of trust made by Mr Peetz thereafter:

PETER GRBEVSKI

JOHN BELCHEFF

YONCE KOKALEVSKI

TANAS RISTEVSKI

TANAS LOZANOVSKI

GEORGE SIMONOVSKI

ILO VELGANOVSKI

ILO IVANOVSKI

MITRE DUPESOVSKI

TODE BASEVSKI

91 Despite the recording in this document of the date of the meeting as 29 rather than 28 October, Hamilton J found on the probabilities that there was only one meeting and that it took place on 28 October 1977.

92 Mr Grbevski also that day certified as the original Constitution of “the Macedonian Church of St Petka Rockdale NSW Australia” a document which was subsequently registered in the general register of deeds (“the Constitution”). Whether this had undergone any amendment since it was referred to in Mr Peetz’ letter of 7 April 1977 is not clear.

93 The Constitution contained the following relevant provisions. Clause 3 contained objects including:

“A Generally, to encourage, practice and promote the Macedonian Christian Orthodox Religion and the activities concerned with or ancillary to the said Religion, and more particularly to
B Remain an integral part of the Macedonian Orthodox Church of Macedonia in Yugoslavia and wherever reasonably possible abide with the Canons of that Church.
C To educate members of the Church in the spirit of Orthodox Christianity.
D To maintain the glorious tradition of the Macedonian Orthodox Church in Macedonia Yugoslavia.”

94 Mr Peetz subsequently transferred to the trustees as tenants in common his registered interest under the Real Property Act 1900 (“the RPA”) in the first property.

95 Subsequently to the purchase of 65 Railway Street, Rockdale five more pieces of what popularly would be called “realty” have been acquired for the Church of St Petka Rockdale. They are: 7 – 10 Firth Street, Arncliffe (“the Arncliffe property”); 66 Railway Street, Rockdale (“the second Rockdale property”); 2/64 Railway Street, Rockdale (“the first unit”); 1/64 Railway Street, Rockdale (“the second unit”); and 5/64 Railway Street, Rockdale (“the third unit”).

96 The interest which is held in the three home units is not in law real property, the units being in a block of units which is the subject of company title. The holding in those cases is the holding of shares in Gloucester Home Units Pty Limited (“the unit company”).

97 Details of the time of acquisition of those properties and the manner in which they were held after acquisition is set out in a document which was put into evidence and reproduced in a schedule (“Schedule A”) to the judgment as has subsequently been referred to as “The Schedule A property”.

98 In the case of all three titles under the RPA the property was registered in the individual names of trustees. In the case of the first unit the share certificate was in the name of “The Trustees for the Macedonian Church St Petka”; in the case of the second unit and the third unit the share certificates were issued in the name of “Macedonian Orthodox Church St Petka, Rockdale”.

99 In respect of only one of the properties acquired subsequent to the first property is there in evidence any separate declaration of trust. That is in respect of the property secondly acquired, namely, the Arncliffe property.

100 That was a declaration dated 15 August 1978 (“the Arncliffe declaration of trust”) by which John Belcheff and Tode Basevski, therein described as the trustees, recited that “The trustees of the Macedonian Orthodox Church St Petka Rockdale NSW Australia (hereafter called the ‘Church Trust’) have decided to purchase” the Arncliffe property and declared:

“1 That the funds provided for the purchase of the property at [sic] all been provided by the Church Trust.

2 That they will hold the property in absolute trust for the Church Trust.

3 That upon request by the Church Trust they will transfer the legal estate to the Church Trust in accordance with its constitution and will co-operate and sign all documents necessary to effect such transfer or other legitimate authorised and approved dealing with the property.
4 That in the meantime they will act in accordance with the Constitution of the Macedonian Orthodox Church St Petka Rockdale NSW Australia, its rules and regulations.”

101 Other than the acquisition of the further properties, between late 1977 and 1992 there does not appear to be evidence of any event material to the present proceedings. There is no substantial evidence to indicate whether during that time the unincorporated association operated under the original by-laws or the by-laws approved in Macedonia or the Constitution adopted on 28 October 1977.

102 Unlike the situation in 1976 and 1977 where, as can be seen, there is considerable documentation of the events and meetings which took place, there is only the barest evidence of how the constitutional change came about in 1992 that led to and arose from the incorporation of the sixth defendant (“the incorporated association”) under the Associations Incorporation Act 1984 (“the Incorporation Act”).

103 Indeed, the only documents relating to that incorporation are a copy of the resolutions for incorporation and a partial copy of the application for incorporation (lacking the constitution and the list of property said to have been annexed to it).

104 The resolutions are certified to have been passed at an extraordinary meeting of the unincorporated association held on 2 March 1992 and are as follows:

Associations Incorporation Act

‘Macedonian Orthodox Community

Church St. Petka’

2 To accept and adopt a new constitution being the Constitution displayed prior to this Extraordinary General Meeting at the Community Church Hall and identified by the signatures of the members of the Executive Council.
3 That the trustees are hereby authorised and directed upon the proper registration of the new constitution and upon proper registration as an incorporated association to sign all such documents to transfer the assets and real estate held in their name on behalf of the Macedonian Orthodox Church St Petka Rockdale to the Macedonian Orthodox Community Church St Petka as an incorporated association.

4 The operations, funtions [sic] and assets as well as liabilities incurred on behalf of the Macedonian Orthodox Church St Petka Rockdale Community, shall upon the registration as an incorporated association known as Macedonian Orthodox Community Church St Petka be transferred to or accepted by the new association.”

105 In the absence of the annexures referred to, the application does not contain a great deal of useful information. It does state that the objects of the proposed incorporated association are “A, E, G, & H AS SET OUT IN MORE DETAIL IN THE CONSTITUTION FOR THE CHURCH ANNEXED HERETO”. There is adjacent to that reference to the constitution a handwritten note “(20 PAGES)”. The Constitution of 28 October 1977 does contain objects A, E, G and H and is of 20 pages, but one could not safely infer that the initial constitution of the incorporated association was identical with the Constitution. The application contained a statement that the “proposed incorporated association will not be the trustee of any trusts”.

106 The other document that is in evidence concerning the constitution of the incorporated association is a notice of alteration of rules registered with the Department of Consumer Affairs on 11 December 1992. It attaches a 23 page constitution said to have been adopted by special resolution at a general meeting of the incorporated association held on 28 September 1992. There is no dispute that this is the current constitution of the incorporated association. It repeats the objects in the Constitution, including those set out above. Its provisions as to membership, voting at general meetings and the Council substantially repeat those of the Constitution (see clauses 8, 18 and 21), as do its provisions as to amendment and disposal of assets on dissolution (see clauses 32 and 31).

107 Thereafter the incorporated association took steps to have itself recorded as the holder of all the real property in this case. In respect of the first property (with which the second Rockdale property was by then consolidated), it lodged an application in the prescribed form dated 29 May 1992 for it to be recorded on the title as the registered proprietor. That was supported by a certificate of public officer as to vesting of property which certified that the first property:

108 There was a similar application and certificate in respect of the Arncliffe property (although in that case there seems to have been some confusion as to whether two of the original trustees remained as trustees). There is an ASIC search of the shareholding of the unit company which shows the holder of the relevant shares in that company to be the incorporated association. Although there are not documents showing the mechanism of the change in respect of the registered shareholding, in the case of the first unit, from the trustees of the unincorporated association and, in the case of the other two, from the unincorporated association itself to the incorporated association, there is no reason to doubt that this was effected at about the same time by application to those maintaining the share register of the unit company.

109 In 1997 disputes broke out between the Diocesan Bishop and the governing body of the incorporated association. The separate question concerns the issues that arose. They included issues about the appointment of the parish priest and the control of property and money.

110 Unfortunately the circumstances of this case are not unique. The background to the dispute is the same as in other cases involving orthodox congregations. Basically, a group of sincerely religious citizens give money to build and establish a church. They devote a lot of time and money to this project. Then, after a few years, they find that their particular vision for their church runs contrary to that of the hierarchy.

111 Being now members of a democratic society, there is a deep feeling that it is amoral that their money and energy should now be controlled by another. However, that consequence often follows because of the hierarchial nature of the Orthodox Church.

112 What has happened in this church over the past 12 years is indeed tragic. Apart from the breaking of relationships, vast sums of money have been spent on this case which could have been used for church purposes.

113 Further, the Bishop, Father Mitrev and their supporters have been excluded from the parish church by the defendants for 12 years. The Bishop and Father Mitrev have instead had to use an otherwise disused former Methodist church in the vicinity to conduct services for the Church members who have remained faithful to them.

The evidence tendered on the separate question

114 A large number of affidavits were read before me and eleven witnesses were cross-examined. Most of the evidence was directed to the issue of whether the 1994 constitution was validly adopted.

115 One piece of expert evidence was tendered. Father John Erickson of the American Orthodox Church gave written evidence as to the law of the Orthodox Church. He was cross-examined from Boston, USA by videolink on the second day of hearing. He was acknowledged to be an expert in the law and customs of the Orthodox Church.

116 Although one needs to adjust Father Erickson’s evidence because he was working within the American Orthodox Church which appears to be a merger of all the Orthodox Churches in the USA whilst, in Australia, the various national churches of orthodoxy are autocephalous, in general all parties accepted his expert evidence as reliable. I will refer to it extensively during the course of these reasons.

117 Unless I note otherwise, I have accepted what Professor Erickson has said. However, as noted below one must be careful to realize that what he says are “principles of ecclesiology” are, in reality, no more than how modern clergy are taught leads to best results. It does not form part of church law in any real sense.

118 I will shortly examine each of the alleged breaches of trust set out in sub-questions (a)-(j). However, first, it is necessary (a) to examine the structure of the MOC; (b) to look generally at what is meant by “Church Law”; and (c) to examine the role of the bishop in that church.

A Conciliar Church?

119 It has often been said, see for example my comments in Radmanovich v Nedeljkovic (2001) 52 NSWLR 641, 669, that in hearing church disputes it is essential to classify the church, the usual categories being: (a) Hierarchal; (b) Presbyterian; or (c) Congregational. Broadly speaking, in category (a) the decisions are made by the chief clergy, in category (b) by an elected board and in category (c), democratically.

120 It is also worth noting that Hamilton J described the Macedonian Orthodox Church as “hierarchical” in his judgment: Macedonian Orthodox Church [19].

121 Mr Blake has said that the MOC is a “Conciliar Church”. His submissions show that what he meant by this was not a church run by the authority of ancient council decisions, nor a presbyterian church, but a church which might be said to be run by a sort of constitutional hierarchy, that is, the hierarchy might make the ultimate decision but they were limited by the constitutions of the various bodies of the church only to adopt what the various local bodies would accept.

122 Professor Erickson says in his Expert Report that, whilst it is meaningful for many purposes to classify churches as ”hierarchial” or “congregational”, that classification is less appropriate if viewed from an ecclesiological perspective.

123 However, Professor Erickson agrees that the classification of the church as hierarchial is a correct statement of basic ecclesiastical principle (Transcript: p 81).

124 I had problems in getting my mind around the concept of “ecclesiological perspective.” My understanding of Professor Erickson’s evidence is that he means the perspective of church administration when he employs this term.

125 I also had difficulty with the term “conciliar”. My first thoughts conjured up a church governed by the decrees of the ecumenical councils or a church ruled by a council such as a presbyterian church.

126 However, neither of these concepts were meant. Although the text referred to in the next paragraph is not part of the evidence, it assisted me in coming to grips with Mr Blake’s submissions.

127 Lewis J Patsavos, Spiritual Dimensions of the Holy Canons (Holy Cross Press, Brookline Mass 2003) pp 36-9 defines the concept that I believe the defendants were presenting thus,

The concept of conciliarity…is not confined solely to convening various types of synods, but also includes every expression of ecclesiastical life and pastoral ministry.

….

….

128 Professor Erickson says that in modern ecclesiology, there is greater emphasis on co-responsibility of the faithful, clergy and laity, for the life of the church.

129 I have no difficulty with this sort of analysis. Indeed my judgment in Radmanovich v Nedeljkovic proceeds along very similar lines. However, I do not consider that the analysis leads anywhere.

130 The clue is that this conciliarity is a matter of ecclesiology, not of church law and order. That is, the Orthodox Church has a policy and expects bishops and other leaders to exploit the gifts of all members of the church to strengthen the church. However, there is no compulsion for any leader to put conciliarity in place. Indeed Patsavos at pp 39-40 points out that some bishops still are too authoritarian and their conduct weakens the church, but they are not behaving unlawfully.

131 Mr Blake submitted that the fundamental ecclesiastical principle which ought to be considered is that of “conciliatory” (Transcript: p 316). The defendants submitted that the Macedonian Orthodox Church involves the co-responsibility of clergy and laity, including bishops (Transcript: p 316).

132 While this may be so, as I said in Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 at 315, a church with bishops will ordinarily fall into the category of “hierarchical”, even notwithstanding that some governmental powers are given to clergy of inferior rank or to laity.

133 Here, church practices such as the canonical norm of the Bishop having “full and exclusive authority” in the appointment and removal of clergy (Father John’s affidavit, [14.7]) suggest that while certain organs of the church apart from the bishop may have some say in what goes on, ultimate authority is with the bishop.

134 However, those organs can only be those nominated in the constitutional documents or trust deed. There is no authority given to the founders of a church or to a Parish Council to act as judge in its own cause and overrule the bishop.

135 However, an alternative way of looking at the matter is that the persons who have founded a parish have agreed that the hierarchy shall “rule” the church subject to the provisions of the constitutional documents.

136 In the ultimate it matters not whether one adopts a ”top down” or “bottom up” rationalization.

137 However, the fact that for ecclesiological purposes the Church acknowledges that conciliarity is the way forward, does not mean that the legal status of the church or the authority of a bishop is degraded except as is stated in constitutional documents.

138 Indeed, even Mr Parker accepts that the church may be conciliar in the above sense, but truly says that this does not affect the principles governing the authority of a bishop on which he relies.

139 Even if I accept that the church is “conciliar”, that does not justify the Parish Council of St Petka from assuming powers that are not granted to them by the constitutional documents and by laws of the church.

“Church Law”

140 One must be careful when using the expression “Church law” to make it clear what one is really considering.

141 In countries such as England, where there is an established church, a great part of the law governing the church is the statute and common law of the country. However, where there is no established church, the “law” of the church is a collection of traditions, contracts, consensus and trusts which may or may not be enforceable in a court of law or equity.

142 Indeed, the term church “law” to a degree denotes something more akin to the rules of a club than to the binding rules of a sovereign State. The primary sources of church law relied upon in these proceedings have been ecclesiological principles and positive law.

143 Rev Mr Lacey in his well respected “Handbook of Church Law” (Grant Richards, London, 1903) says at p 32 of the early rules and canons of the church, “If it be asked by what authority these heterogeneous materials were imposed as law upon the Church, it can only be replied that they were in fact received as such. They expressed the general sense of the Church; the expression might be local, particular, accidental; the sense was universal.”

144 Apart from the commands in Scripture itself, which do not feature at all in the present case, the law of the church is that which can be found as a fact to have been recognised as law over a period of time by a particular branch of the church. It is not always necessary to trace the alleged law back to the authority of an authoritative law maker.

145 However, again as Rev Mr Lacey points out at p 11 of his book, it is a dominant feature of church law that, apart from authoritative legislation, the law is not enforced by penalties or constraint. Much of church “law” is directed to what is expected to occur so that things are done decently and in order by the people best suited to the task.

146 Again there are laws of the church which have nothing to do with right conduct. From early times in the church, sections of the church had definite rules fixing the date of Easter. These were not uniform throughout Christendom. However, historically such rules were considered to be some of the most basic law of the church.

147 Thus, often the task of the fact finder as to what is the law of a particular church is to examine what principles have been accepted for many years as being the law of the church in that area or denomination rather than search for authoritative origins.

148 Outside of Scripture, the opinions of the Church Fathers, where they agree, often constitute good evidence as to what is recognised by a church as principles of its law. This is so even though those fathers had no legislative authority.

149 The Christian Church has been in existence since the Resurrection. In its early days its members met informally, but by about 100 AD it was already having to formulate rules of order. The Didache is an early collection of some of those rules.

150 By the time the Christian Church became officially recognized in the fourth century, there was already a body of rules recognised as being part of the law of the church.

151 Shortly after the Emperor Constantine embraced Christianity, the Roman emperors, particularly the Eastern Emperor, convened Councils of the Church to decide on matters of great dissention within the church. Pre-eminent amongst these were the Seven great Ecumenical Councils, viz: (1) Nicaea I, (325), (2) Constantinople I (351), (3) Ephesus (431), (4) Chalcedon (451), (5) Constantinople II (553), (6) Constantinople III (680-1), (7) Nicaea II (787).

152 Although each of these Councils was convened to deal with a particular perceived heresy, their decisions usually went beyond the heresy to state basic doctrine on wider matters and has been accepted by Orthodox, Catholic and most protestant churches as setting out the doctrine of the church.

153 The Apostolic Constitutions, according to the well regarded Oxford Dictionary of the Church, is a collection of ecclesiastical law dating from the latter half of the fourth century almost certainly of Syrian provenance. It has 8 books. Volume 1 incorporated part of the Didache: Volume VIII 28-46 consists of canons while VIII 47 consists of 85 canons attributed to the Apostles known as the Apostolic Canons.

154 Father Erickson says that it is clear that all Orthodox churches accept in addition to the Scriptures and the creed, “the dogmatic decrees of the Ecumenical Councils and a common liturgical and patristic tradition”.

155 The commonly accepted material includes the Apostolic Canons, the Canons of the seven Ecumenical Councils, as well as canons of various local councils and certain patristic writings.

156 Indeed Article 6 of the 1994 Constitution spells it out that the MOC “administers itself on the basis:

(a) of the Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church;

(b) the Apostolic Constitutions, Constitutions of the Ecumenical Councils, Local Councils and Holy Fathers;

(c) the Acts of the Local Councils and Patriarchial Synods, if the MOC adopted it;

157 The most comprehensive collection of the authoritative writings on the law of the Orthodox Church is a collection known as “The Rudder”. However, none of the various translations of The Rudder into English is entirely satisfactory.

158 Thus it is clear that there is a body of rules which all parties accept as being part of church law. However, indeed as Father Erickson acknowledges, there are other rules which also are part of the law of the MOC in Australia.

159 In paragraph 9 of his affidavit, Father Erickson says that the canons taken by themselves do not provide detailed regulation of all aspects of church life. In modern times these have been supplemented by positive ecclesiastical law which seeks to adapt the principles of the orthodox canonical tradition to particular circumstances.

The doctrine of economy

160 An important part of the submissions in this case focussed on the doctrine of economy.

161 There is no doubt that the doctrine of economy applies to the MOC. This is accepted by all. However, there is issue as to the extent of the doctrine.

162 It is almost impossible to find a good modern definition of the doctrine. Part of the reason for this is that in the Western Church there is rarely any

163 Essentially the doctrine is that if it is not possible to comply with the law of the church, then it is lawful to do the best one can in the circumstances.

164 I briefly discussed this doctrine in the Ancient Church of the East Case (AG ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293, 297-8).

165 I there cited the words of S Cyril (Patriarch of Alexandria d 444) that “where it is not possible to keep everything, surrender some in order that we might not lose all”. However, it is to be noted that Sparrow Simpson on Dispensations (SPCK London 1935) p2 says that these words were uttered in connection with the dispensing power rather than the doctrine of economy and, on reflection, this is probably correct.

166 The classic example of the operation of the doctrine of economy is, if people are captured by rebels and are held in a camp without a priest, or are shipwrecked on an island without a priest, the doctrine of economy will allow them to select a layperson to celebrate the Eucharist and that will be a valid Eucharist despite any rule requiring the celebrant to be in bishop’s or priest’s orders.

167 The debate between the plaintiffs and the defendants has centred on what degree of necessity has to be present before the principle can operate.

168 In this connection it should be noted that the Council of Nicea I stated that prior to that council there had been overmuch reliance on the doctrine of economy and that, in future, the appropriate procedure where emergency action was required was to apply to the bishop for dispensation.

169 As is pointed out in Sparrow Simpson on Dispensations at p 1:

170 This development makes me tend to the plaintiffs’ view that the doctrine of economy is only applied in cases of absolute necessity where because of lack of time or resources, no other course is open. I will however, return to the submissions made on the point in due course.

The role of the bishop

171 A considerable amount of time was spent in this case on the “law” of the church as to the role of the bishop.

172 It was accepted on all sides and by Father Erickson that the bishop has considerable powers within all orthodox churches. However, the limitations on a bishop’s authority was a matter of dispute.

173 It is undisputed that, from early times in the Orthodox Church, a bishop’s leadership position has been endorsed by the leading churchmen of the day.

174 St Ignatius the God-bearer, Bishop of Antioch, wrote in his Epistle to the Church at Smyrna 8:2, written about AD 105, “Do ye all follow your Bishop”.

175 St Ignatius also wrote in his Epistle to the Romans that the best safeguard of the unity of the Christian faith is the bishop, who is pre-eminent because he is “as the Lord” and without whose authority neither the Eucharist nor marriage may be celebrated.

176 St Cyprian, Bishop of Carthage wrote in 251AD his Letter lxvi, 8. This states that “The bishop is in the church and the church in the bishop, and if anyone be not with the bishop, he is not in the church”.

177 The defendants do not accept that St Ignatius the God bearer’s writings nor that St Cyprian’s letters constitute part of the authoritative canon law of the Eastern Orthodox Church in Australia. As to the former they say that the text is merely a highly respected statement of a holy father, and not part of the authoritative canon law. I will return to this.

178 Apostolic Canon XXXVIII says “Let the Bishop have the care of all ecclesiastical matters and let him manage them, on the understanding that God is overseeing and supervising …” The interpretation of this is that a “bishop should be given care of all things belonging to the Church”. Apostolic Canon XXXIX directs “Let Presbyters and Deacons do nothing without the consent of the Bishop…”. The interpretation of this is that “presbyters and deacons cannot perform any sacerdotal or priestly function or office without the consent and permission of their bishop”.

179 Father John Erickson agreed with a qualified version of this rule (at p. 87 of transcript) – he thought it important to note that while the Bishop has the upper hand, he does not have “the only hand” (p 87 of transcript). However, this qualification does not seem to alter the meaning of the rule.

180 Article 71 of the 1994 Constitution provides (Father Erickson’s translation):

“As its spiritual leader, the Diocesan Bishop heads the Diocese. The Diocesan Bishop represents the Diocese and directs the whole of its ecclesiastical and spiritual life as well as order within the Diocese. In dogmatic, theological and liturgical questions, he carries out his governing responsibilities independently, in cooperation with the clergy and the monks who are in clerical orders; but in administration and management of material and financial affairs he works together with the priests, monks and people of the Diocese who are represented in Diocesan bodies and agencies.”

181 Article 12 of the 1996 Diocesan Statute follows the same pattern save that it says that in temporal matters the bishop works “together with the Diocesan Administrative Council and other bodies and agencies of the Diocese.”

182 The whole of the material before the Court goes in one direction and that is that possibly subject to some limited exceptions, in the Orthodox Church the bishop has the care of all things pertaining to the church in his diocese.

183 Those exceptions are all in the field where a constitutionally valid provision of the church recognises that the bishop shares his authority or permits a body of clerics or laypersons to perform certain functions.

184 Accordingly, generally speaking, unless I am satisfied that some valid “law” of the church excludes the bishop from doing what he considers appropriate, his view should prevail.

General Considerations

185 I gave three judgments during 2008 which should be noted. All are entitled “Metropolitan Petar v Mitreski”. [2008] NSWSC 243 dated 22 February 2008 considered whether undertakings should be varied. [2008] NSWSC 293 of 27 March 2008 considered various procedural matters. [2008] NSWSC 1021 of 30 September 2008 considered substantive matters when I struck out various parts of the defence. I will refer to this last mentioned judgment as “My judgment 1021.”

186 Considerable time was spent on certain alleged basic principles which covered more than one of the individual sub-questions. Chief among these were: (a) the terms of the trust on which the Church Building is held; (b) the ambit of the duties of the trustee; (c) the validity of the Diocesan Constitution; (d) who is entitled to retain surplice fees. I should deal with these before turning to the sub-questions.

The Trust

187 This matter was canvassed at some length in both Hamilton J’s judgment and also in my 1021 judgment.

188 In the latter, I said at [29] and [30] that it was axiomatic that once trusts have been laid down by the founding members of a church or charity, unless power to amend has been reserved in the declaration of those trusts.

189 Thus the Trusts are those that were in existence on 8 March 1977 (if not November 1976). The Trusts were not varied by anything that happened in the parish after 8 March 1977.

Duties of the Trustees

190 At the conclusion of the oral submissions last year, by consent (said to be given reluctantly), I dissolved undertakings that prevented the bishop from celebrating the rites of the church in the Church Building.

191 Senior Counsel for the defendants told me that the defendants feared that if the undertakings were released there might be violence towards the bishop and his entourage if they entered the Church Building. My riposte was that the trustee had an obligation to maintain order.

192 However, immediately before Eastern Christmas, the trustee briefed new counsel to approach the Vacation Judge and put to him that the trustee conscientiously and reasonably believed that it could not prevent violence if the bishop attended and sought judicial advice that, in those circumstances it was entitled to prevent the bishop attending.

193 The judicial advice application was heard ex parte apparently without notice to any other party and the judge was persuaded to give the trustee the advice it desired.

194 I do not know what the vacation judge was told, particularly whether he was informed of my ruling referred to above.

195 The judicial advice was never served on the plaintiffs so to be binding on them. If the advice was obtained without full disclosure to the judge, it will be of no protection to the trustee. However, it had the practical effect of keeping the bishop out of the church of St Petka at Eastern Christmas.

196 It would now be unwise, even if it were ever wise to rely on that advice. Indeed, it is to be noted that the learned Vacation Judge made it clear his advice was given subject to final determination of the parties’ rights.

The validity of the Diocesan Constitution

197 A considerable amount of evidence was tendered on this issue.

198 As I have indicated, a draft of the constitution was presented to the Diocesan Assembly at its meeting in Geelong in 1996.

199 The defendants say that: (a) Metropolitan Petar did not put each and every clause of the draft to the vote and in respect of some clauses, he did not accept amendments; (b) the Statute was not duly ratified by the Archbishop’s Assembly and; (c) even if I find against the defendants on sub-issues (a) and (b), parts of it are ultra vires the 1994 Constitution.

200 A vital preliminary question arises and that is whether it matters one way or the other whether the diocesan constitution is valid or not. That is, is the validity of the Diocesan Statute a false issue?

Whether the validity or invalidity of part of the Diocesan statute affects the answers to the sub-questions

201 We have here a situation where there is an hierarchial church, though probably an hierarchial church with a conciliar flavour. That is, a church where the hierarchy are constrained by valid constitutional provisions limiting their authority.

202 If a constitutional instrument is valid then that might validly limit a bishop’s authority.

203 However, no invalid instrument can affect the bishop’s authority.

204 Thus, generally, if the Diocesan Constitution is invalid in whole or in part, it does not affect the bishop’s authority. The only consequence is that if the Diocesan Statute purports to limit that authority by empowering others or requiring the consensus of others, those provisions will be inoperative.

205 Accordingly, although I will make rulings on the submissions as to the validity of the Diocesan Statute in case the matter goes further, I do not consider that those rulings affect the ultimate decision on the question posed.

206 I will now deal with the factual issues that arise with respect to the diocesan constitution. I will deal with the matter under three sub-heads: (a) The Geelong meeting; (b) The ratification in Macedonia; and (c) whether in any event parts of the diocesan constitution are contrary to the 1994 constitution.

(a) The Geelong meeting

207 A large amount of evidence was received on this issue. Various people who were present at the meeting gave evidence and there were vast differences in their recollection.

208 During the proceedings, I heard a good deal of conflicting evidence on whether or not the Diocesan Statute passed at a Meeting of the Diocesan Assembly held at Geelong on 15 and 16 of February 1996 (“the Geelong meeting”). The plaintiffs say it did. The defendants say it did not. I will outline the evidence below, before making factual findings on whether the Statute passed. (Assuming it is of consequence). Although I eventually received transcriptions of tapes of the meeting, the evidence of these witnesses is still of import, as it deals with the surrounding circumstances of the meeting, such as the signing of minutes and the preparation of a text to be sent to the Holy Synod.

209 Before considering the oral evidence I must note that during the proceedings, I expressed concern that there were situations where the independence of interpreters were in question. In particular, at one stage, the interpreter had been sitting with the plaintiffs (Transcript: p 238).

438 As regards the provisions put forward by the plaintiffs, the defendants say that Articles 71 and 77(5) of the 1994 Constitution on their proper construction either have no application to any requirement of the authority and blessing of the diocesan bishop for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building within a diocese; or in the alternative, that these Articles have no application to any requirement of the authority and blessing of the diocesan bishop for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building, to a church community in a diocese outside of Macedonia.

439 In the alternative to their submissions on Article 71 and 77(5) of the 1994 Constitution, the defendants submit that if these Articles do provide that the authority and blessing of the Diocesan Bishop is required for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building within the Diocese, then they are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the erection, maintenance, improvement, and alteration of the church building a church community outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and applicable laws of Australia, and have not applied to the Association.

440 On the issue of the Statute, the defendants again say that the Statute never came into force, or has never applied to the affairs of the Association. In the alternative to this submission, the defendants say that if the Statute did come into force, then Articles 13(3), (5), (6) and (19) of the Statute are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the erection, maintenance, improvement, and alteration of the church building a church community outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia, and have not applied to the Association. In the further alternative, the defendants submit that if the Statute has come into force and has applied to the Association, Articles 13(3), (3), (6) and (19) of the Statute are not fundamental rules of the Church.

441 Professor Erickson says that the rule the plaintiffs allege here is “significantly more sweeping than the particulars that are advanced in its support” (Affidavit, [18.1]). He says that Article 71 of the 1994 Constitution speaks in “very general terms” about the Bishop’s authority as spiritual leader of the diocese.

442 Article 77 gives a long list of the rights and obligations of the Diocesan Bishop. Professor Erickson says that only two points in this Article have any bearing on the subjects here under consideration. These are 77(3), which says “Gives blessing for construction of churches, monasteries, chapels and cemeteries wherever it is necessary” (this is the plaintiffs’ translation, the defendants’ translation adds “and looks after their upkeep”), and Article 77(5), which says “Consecrates temples” (this is the plaintiffs’ translation, the defendants’ adds “’Antiminsi’ and other”, which Professor Erickson says presumably means other sacred objects). Professor Erickson says that neither of these texts addresses the question of whether the bishop’s authority and blessing is required for all the activities which the statement of claim sets out at [22.9].

443 Professor Erickson says that Articles 13(3) and 13(5) of the Statute simply repeat the provisions of Articles 77(3) and 77(5) of the Constitution. However, he believes Article 13(6) is more to the point. It “Authorizes all building works in church communities and the Diocese, ensures buildings are constructed in a Macedonian Orthodox styles and that the churches and the faithful are provided with orthodox icons with Macedonian script”. Professor Erickson says that the overriding concern is with “ensuring that building style and iconography” are “appropriate from a Macedonian perspective”. He does not comment further on this provision.

444 Article 13(9) provides that “In cases of temporary closure of a church (the bishop) determines the place for the storing of its holy relics and objects”. Professor Erickson says this is to “ensure that these sacred objects are given proper care and respect”. While he gives his interpretation of the rationale for each provision, he does not, with respect, really indicate the relevance of the provisions to the alleged breach at hand. He does warn us with Article 13(9) to keep in mind the principle of economy. He concludes that no fundamental provision of church law is at stake here (but does not explain whether he means to restrict this comment to Article 13(9) or all of Article 13).

Alleged breach (i): refusing or failing to accept applications for membership from believers in the doctrines of the Macedonian Orthodox Church who have satisfied the criteria for eligibility specified in the Constitution, the Diocesan Statute and By-Laws

445 The plaintiffs say that all believers who live within the St Petka Parish and who satisfy the eligibility criteria specified by or under the Church Constitution are entitled to participate in the parish assembly of the St Petka Parish: statement of claim [22.11]. For this rule, the plaintiffs rely upon Articles 106 and 107 of the 1994 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” (Transcript: p 295).

446 In his oral argument, Mr Parker also referred to the 1977 By-Laws – Articles 9 and 10.

447 The defendants deny the plaintiffs’ allegations as regards this claimed breach. They say that the Association Constitution when read with the 1994 Constitution provides that the right to participate in the governance of the Association is limited to the members of the Association. They rely upon clauses 8 to 17 of the Association Constitution and Article 193 of the 1994 Constitution in support of this submission.

448 The defendants further submit that Articles 106 and 107 of the 1994 Constitution on their proper construction have no application to the eligibility and criteria for eligibility of persons who have the right to attend and vote at the parish assembly as referred to in the 1994 Constitution. In the alternative, they submit that Articles 106 and 107 of the 1994 Constitution on their proper construction have no application to the eligibility and the criteria for eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia.

449 In the alternative to the submissions set out above, the defendants argue that if Articles 106 and 107 of the 1994 Constitution on their proper construction provide that “all believers who live within St Petka Parish” and who satisfy the eligibility criteria specified or under the Church Constitution are entitled to participate in “the parish assembly of the St Petka Parish”, then they are: (a) inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with the provisions of the Association Constitution and applicable laws of Australia and have not applied to the Constitution; or (b) they are not fundamental rules of the Church; or (c) the Statute never came into force or has never applied to the affairs of the Constitution.

450 Another view is (d), if the Statute did come into force, then Articles 65, 66, 67, 68, 69 and 78 of the Statute are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the eligibility and the criteria for eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia and have not applied to the Constitution; again alternative view (e) is that if the Statute came into force and has applied to the Association, then Articles 65, 66, 67, 68, 69 and 78 of the Statute are not fundamental rules of the Church.

451 In his affidavit, Professor Erickson points out that Articles 106 and 107 of the 1994 Constitution apply to parishes within the territory of the Republic of Macedonia. He goes on to recount the content of Article 193, which says that parishes and communities outside the Republic of Macedonia are “regulated with specific Statutes, passed in accordance with the church canons and the MOC’s Constitution and the Statute of the Diocese, coordinated by the Diocesan Archierarch, and proposed by the church councils of the general assemblies of the church communities. The Statutes of the Macedonian Orthodox church municipalities abroad are approved by the ACCP, after a thorough inspection of the Holy Synod”.

452 Professor Erickson says that Articles 65-69 and 78 of the Diocesan Statute indicate who may be regarded as a member of the community and participate in the parish assembly. He identified as the most important Article 67 which says “Each church community has a Church Community Elected Assembly which is comprised of all adult Orthodox Christian 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”.

453 Professor Erickson believes the “spiritual, moral and material obligations of the church” to be those set out in the Constitution of the Macedonian Orthodox Community Church St Petka Articles 8, 9, 10 and 11. He believes that if the Diocesan Statute is applicable, it does not conflict with these obligations (Affidavit, [20.3]).

454 Professor Erickson agrees that this claimed breach is one of church law, but agrees with the defendants that it is not a “fundamental provision of Church Law” (Affidavit, [20.4]). He posits that the criteria for participation in parish assemblies given in the documents “are strictly a matter of positive ecclesiastical law” (Affidavit, [20.5]). A nationality criterion is “quite contrary to basic ecclesiological principles of the Orthodox Church – contrary to Paul’s teaching in Galatians 3:28, contrary to what has been condemned more recently as the ‘heresy of phyletism’ “.

455 However, all this really means is that what Professor Erickson considers to be good administrative principles for the Church in the 21st Century, especially the Orthodox Church of America may be out of kilter with the basic law of the Church. This view is irrelevant to the decision in this case.

Alleged breach (j): failing to remit to the Diocesan the contribution and the income of the Parish as specified in the Diocesan Statute

456 The 1996 Diocesan Statute provides at Article 26.11 that the Authority of the Diocesan Assembly “determines the level of parish contributions to the Diocese”.

457 The plaintiffs contend in the statement of claim at 22.13 that a parish within the Diocese may be required by the Diocesan Assembly to contribute funds for the benefit of the Diocese and for the purposes of the Church. They rely upon Article 26.11 of the Statute in support of this proposition, but do not go on to demonstrate that here the Diocesan Assembly has in fact required the Diocese to contribute funds for the benefit of the Diocese and for the purposes of the Church.

458 The defendants deny the plaintiffs’ claim. Their submission is that the Statute never came into force or has never applied to the affairs of the Association. In the alternative they submit that if the Statute did come into force, Article 26.11 is inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the financial affairs of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia and has not applied to the Constitution.

459 In the further alternative, the defendants submit that if the Statute came into force and has applied to the Association, Article 26.11 of the Statute is not a fundamental rule of the Church.

460 The provisions which the defendants argue in the first alternative submission that Article 26.11 are inconsistent with are: Clause 21A of the Association Constitution and Article 190 (in some versions 193) of the 1994 Constitution which are in similar terms. Article 190 of the 1994 Constitution provides that: “The organization and the work of the church municipalities that are out of the territory of the Republic of Macedonia are regulated with specific Statutes, passed in accordance with the church canons and the MOC’s Constitution and the Statute of the Diocese, coordinated by the Diocesan Archierarch, and proposed by the church councils of the general assemblies of the church communities. The Statutes of the Macedonian orthodox church municipalities abroad are approved by the ACCP, after a thorough inspection of the Holy Synod.”

461 In his affidavit, Professor Erickson notes that if neither the Statute nor the 2001 By-Laws are valid or applicable here, determination of any financial contributions from the St Petka Parish to the Diocese, if any, would depend upon “what the foundational documents of St Petka Parish had authorized and/or what customary practice had sanctioned”.

462 As mentioned in [347], if the Diocesan Statute were inoperative with respect to parish contributions to the diocese one would have to revert to the previous law or the intention of the donors of any specific gift.

463 Professor Erickson also says in his affidavit that he believes the rule set out in the statement of claim, that is, “a parish within the Diocese may be required by the Diocesan Assembly to contribute funds for the benefit of the Diocese and for the purposes of the church” is a provision of church law, but that it is “not a fundamental provision” of church law. He gives no reason.

464 It is difficult to support this proposition. Support of the Parish by the Diocese and the Diocese by a parish is one of the core relationships in any Church.

465 The plaintiffs submit (statement of claim [22.14]) that the parish priest of the St Petka Parish is entitled to be paid a stipend out of the monies of the St Petka Parish. They rely upon both Canon XVI of the Apostolical Canons and the practice of the Church up to the establishment of the Church Trust as reflected, in particular, in the letter dated 1977 on the letterhead of the Macedonian Orthodox Church St Petka to Metropolitan Kiril.

466 Mr Parker’s oral argument did not further this argument in any real way: he simply stated that the rule which the plaintiffs rely upon is “supported ecclesiologically” “at a very, very general level” by the canons which refer to the right of support from the altar “and the like”: Transcript: p 295.

467 The defendants say, first, that the entitlement of a priest of the Church who enters Australia to be the priest of the Association pursuant to a visa issued under the Migration Act to a salary, stipend or other remuneration is subject to the contract of employment entered into between the priest and the Executive Council and continues only so long as his employment by the Association continues. They claim that this argument is supported by the requirement that the Association enter into a contract of employment with the priest as part of the requirements under the Migration Act for the issue of a visa. Secondly, the defendants submit that Canon XLI of the Canons of the Holy Apostles on its proper construction does not provide that a priest is to be paid out of the monies of a parish. Thirdly and in the alternative, the defendants submit that if Canon XLI does on its proper construction provide that a priest is to be paid out of the monies of the parish, it only applies so long as the employment of the priest by the Association continues.

468 In his affidavit, Professor Erickson considered Apostolic Canon XLI in relation to claimed breach (j), and noted that the last sentences of the canon were probably what the plaintiffs had in mind: “For the law of God has ordained, that they who wait at the altar should be nourished by the altar. Neither does any soldier bear arms against an enemy at his own cost”.

469 For these sentences, Professor Erickson relied upon the translation Nicene and Post-Nicene Fathers Volume 14. He said that the general principle being set forth here is that “the clergy are entitled to compensation for their services out of church funds” (Affidavit, [23.1]). He noted that the Association Constitution acknowledges this principle when it makes provision for a salary for the priest “whilestever his position in the Church remains” (29.B).

470 Professor Erickson also examined the opening sections of Apostolic Canon LXI: “We ordain that the bishop have authority over the goods of the Church; for if he is to be entrusted with the precious souls of men, much more are temporal possessions to be entrusted to him. He is therefore to administer them all of his own authority, and supply those who need, through presbyters and deacons, in the fear of God and with all reverence”.

471 The witness posited that the text “envisions a small church community more closely corresponding in scope and structure to a modern parish than to a modern diocese”. Accordingly, Professor Erickson concludes that while the canon indicates that a priest is to be supported for his ministry, it does not indicate how or by whom he is to be supported. In practice, this has “varied considerably over the centuries”. In some countries priests are paid by the government, while in others priests are paid by the parish. He believes that the consequence of this is that the rule contended by the plaintiffs here cannot be regarded as a fundamental provision of church law.

472 It should be noted that Father Erickson relied upon St Nikodemos the Haghiorite’s interpretation of the canon to support his own. St Nikodemos wrote that Canon LXI, like XXXVIII “gives the bishop all authority over ecclesiastical property”. St Nikodemos goes on to say that the bishop must be well provided for, and he must “keep himself from giving offence to anyone, and must be irreproachable in everything”.

473 Professor Erickson says the point being made here is that church monies need to be properly accounted for. This does not alter the analysis here, as it is not entirely relevant. Professor Erickson did not further address this issue orally.

474 So far as surplice fees are concerned, the defendants have not shown any right which the bishop or priest has violated. As far as contributions from the parish to the diocese are concerned, it would seem that any failure to deal with the parish monies properly in this respect must be placed at the defendants’ feet.

Sub Question (k) which of the alleged breaches is fundamental to the trust ?

475 The defendants say that the court would only interfere if it held that there were fundamental breaches of trust. Assuming, for the moment, that this is so, the question must be asked, what is meant by “fundamental” in this context?

476 During the proceedings there was some confusion as to the precise meaning of “fundamental”.

477 The word was used in the statement of claim. The plaintiffs submitted that all of the provisions of church law which had they relied upon are “fundamental provisions of Church Law” that apply to the St Petka Parish. They say they took this wording from my decision in Radmanovich v Nedeljkovic (2001) 52 NSWLR 641, where I held that in such cases it is necessary to determine the fundamental principles of the trust, breach of which would give rise to an action in that the trust property would be affected, and distinguish these from non-fundamental practices and prohibitions laid down by the rules of the church.

478 The confusion became obvious during Professor Erickson’s oral evidence that he was not entirely sure of the meaning of “fundamental” in the statement of claim, but he took it to mean “unchangeable”; “basic ecclesiological principles” (Transcript: p 66).

479 His evidence was given based on this church law meaning of “fundamental”, rather than the meaning of “fundamental” in the Australian law of charitable trusts of what was so fundamental to the founders’ intentions that it is incorporated into the trust as a core provision.

480 In light of these different meanings, Mr Parker has requested that I give some definition to the word.

481 While I acquiesce to this request, it ought to be noted that as Professor Erickson thought he was being asked whether particular church law provisions pleaded were fundamental to church law, and as this is why his expertise was needed, the confusions which arose do not cause any great problems to this analysis.

482 The first consideration is whether there is indeed a difference between matters which are fundamental to the faith of the MOC and those which are fundamental to the trust.

483 Whilst there might be some exceptional situations, in my view it is a fair assumption is that what is fundamental to church law must have been fundamental to the founders’ intentions when creating the trust unless specific contrary provision was made.

484 It is a general rule of ecclesiastical law that when one sets up a church which is clearly allied and associated with a well recognized church, that the rules and liturgy of that other church are applicable; see eg Natal (Bishop) v Gladstone (1866) LR 3 Eq 1, 35-6.

485 In Radmanovich, I noted that in a religious trust not every provision of the rules or every matter of doctrine will necessarily be a term of the trust, breach of which will give rise to an action: Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 at 668.

486 A principle has developed in the case law that a church trust embodies only those parts of ecclesiastical doctrine which are “fundamental” or “essential”. It should be noted that a rule being a fundamental principle of church law will not automatically make it a term of the trust: for example, it must affect property.

487 There is no hard and fast rule for determining which church rules are fundamental ones, or which will be incorporated into a church trust. It is too difficult to answer precisely where the line is to be drawn in every case. However, the cases do provide us with some guidance.

488 In Attorney-General v Gould (1860) 28 Beav 485 at 495, Lord Romilly said that the question was whether the use of the building for the purpose of open communication was “such a perversion of the objects and trusts for which it was established, that is, whether it is a violation of those trusts which this Court will interfere to prevent”.

489 His lordship found the practice of strict or free communion to be “no part of what was essential for the maintenance of a congregation of particular Baptists” and consequently not to form a part of the foundation trusts on which the Church was held.

490 The High Court also examined this issue in Wylde v Attorney-General (the Red Book Case) (1948) 78 CLR 224. There, Latham CJ and Williams J found that uniformity of worship in the Anglican Church of Australia as it existed in 1948 was a fundamental principle of the Church, and that breach of that uniformity constituted a breach of trust.

491 Another example is the case of Scandrett v Dowling where the Court of Appeal found that breaching a church rule that priests must be male would not constitute a breach of trust: (1992) 27 NSWLR 483.

492 In Radmanovich, I found that 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: 669.

493 My conclusion is that it is too difficult and of little use to find where the line is to be drawn in every case, however excluding the Bishop from the church is certainly a breach of a “fundamental” rule of church law which goes to the heart of the trust.

494 This is because it goes to the heart of an hierarchial church, even one which has provided for involvement of the laity to a significant degree that the basis leadership of the bishop is excluded.

495 The doctrine of Apostolic Succession as accepted by the MOC heavily relies on the tradition from one set of bishops to the next of the faith of the Apostles. The direction of the church by a person whose orthodoxy is pure and accepted is vital to the framework of the whole church.

496 Thus I have no difficulty in finding that the alleged breaches (a), (b) and (h) and their associated breaches are fundamental.

497 There may be some doubt as to alleged breaches set out in (d)(i) and (j) are fundamental, but this is of little moment as these matters will be subsumed in the more serious matters.

Answer to the Question

498 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?

499 The question should be answered by saying that the terms of the relevant trust do not justify the exclusion of the bishop from the parish Church of St Petka nor the employment of any priest not authorised by the bishop nor the closing, alteration, addition to the Church building or its ornaments without the Bishop’s approval.

500 I do not consider that it is useful to address each sub-question, I will direct the plaintiffs to bring in short minutes of orders. It may be that I will be persuaded that it would be helpful to provide some answers to the sub-questions.

Costs

501 As the defendants have really failed on all aspects of the separate question, I can see no reason why they should not pay the costs of the exercise.

Orders for further conduct of the proceedings

502 The proceedings should stand over to 6 March 2009 at 10.00am for short minutes to be brought in. The short minutes should, in addition to stating orders that are appropriate because of these reasons, also contain directions for the ongoing conduct of the proceedings.

******************************************

Actions

Download as PDF Download as Word Document

Citations

Metropolitan Petar v Mitreski [2009] NSWSC 106

Most Recent Citation

Fennell v Wright [2006] SADC 88

Cases Citing This Decision

16

Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223

Mitreski v His Eminence Metropolitan Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2009] NSWCA 319

Ba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 191

Cases Cited

10

Statutory Material Cited

2

Metropolitan Petar v Mitreski [2003] NSWSC 262

Strinic v Singh [2009] NSWCA 15

Giumelli v Giumelli [1999] HCA 10

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)