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Metropolitan Petar v Mitreski

Metropolitan Petar v Mitreski

Case [2003] NSWSC 1007 5 November 2003

Interlocutory Orders

Unjust Enrichment

Breach of Trust

Civil Litigation & Procedure

Property Law

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CITATION: Metropolitan Petar v Mitreski [2003] NSWSC 1007

HEARING DATE(S): 16/10/03, 31/10/03

JUDGMENT DATE:
5 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Notice of motion dismissed

CATCHWORDS: PROCEDURE - interlocutory orders - application by defendant for interlocutory order compelling plaintiff to act - whether claim maintainable in absence of cross-claim - CHURCHES AND RELIGIOUS ASSOCIATIONS - claim by owner of land subject to charitable trust for religious purposes of particular church to compel bishop to authorise installation of ecclesiastical article and to appoint priest - whether claim justiciable on basis of spiritual obligations of bishop to flock - whether claim justiciable on basis of duty of church hierarchy to uphold charitable trust - whether bishop amenable to control of court as in case of advowson

CASES CITED: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Bailey v The Uniting Church in Australia [1984] 1 QdR 42
Brereton v Milstein [1988] VR 509
Brimaud v Honeysett Instant Print Pty Ltd (unreported, NSWSC, 19 September 1988)
Cameron v Hogan (1934) 51 CLR 358
Metropolitan Petar v Mitreski [2003] NSWSC 262
Mirehouse v Rennell (1832) 8 Bing 490
Notley v Bishop of Birmingham (1930) 99 LJCh 305
Notley v Bishop of Birmingham (No 2) [1931] 1 Ch 529
Radmanovic v Nedeljkovic (2001) 52 NSWLR 641
Rolloswin Investments Ltd v Chromolit Portugal Cutelarias e Produtos Metalicos SARL [1970] 1 WLR 912
Wylde v Attorney-General for New South Wales (1948) 78 CLR 224

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

FILE NUMBER(S): SC 3369/97

COUNSEL: Mr B A J Coles QC/Mr T G R Parker/Mr R E Steele (P1 & 2)
Mr G O Blake SC (D1-6 & 8)
Ms N L Sharp (D9)

SOLICITORS: Sachs Gerace Lawyers (P1 & 2)
McConnell Jaffray (D1-6 & 8)
I V Knight (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 5 NOVEMBER 2003

3369/97 – HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITREVSKI & 8 ORS

JUDGMENT

The proceedings

1 The first plaintiff is the diocesan bishop of the Australia and New Zealand diocese of the Macedonian Orthodox Church. He and the second plaintiff, a priest of that church, commenced these proceedings in 1997 following the emergence of disputes about the incumbency of the second plaintiff as parish priest of the parish of St Petka, Rockdale, and about ownership of property and money associated with that parish. A final hearing of the claims in the plaintiffs’ further amended statement of claim is scheduled for March 2004.

2 Certain questions relevant to the controversy have, however, been the subject…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2003] NSWSC 1007
Case: [2003] NSWSC 1007
Decision Date: 5 November 2003

CaseChat Overview and Summary

The plaintiff in this case, Metropolitan Petar, sought an interlocutory order to compel the defendant, Mitreski, to authorise the installation of an ecclesiastical article on land owned by the plaintiff and held on trust for religious purposes of the particular church. The defendant argued that the claim was not maintainable without a cross-claim. The dispute was heard in the Supreme Court of Queensland. The central legal issues the court needed to address were whether the claim was justiciable based on the spiritual obligations of the bishop to the flock and the duty of the church hierarchy to uphold the charitable trust. Additionally, the court had to consider whether the bishop was subject to the court's control in the same manner as the advowson.

The court found that the claim was not justiciable on the basis of the bishop's spiritual obligations to the flock, as these obligations were not subject to legal enforcement. The court also determined that the claim was not justiciable based on the duty of the church hierarchy to uphold the charitable trust, as this would involve the court in matters of church governance and doctrine, which are outside the scope of judicial intervention. Furthermore, the court held that the bishop was not amenable to the court's control in the same way as the advowson, as the advowson relates to the right to present a candidate for a benefice, which is a matter of ecclesiastical law rather than a spiritual obligation.

Consequently, the court dismissed the plaintiff's application for an interlocutory order. The court ruled that the claim was not maintainable in the absence of a cross-claim against the bishop. The decision underscored the principle that the courts should refrain from interfering with matters of church governance and doctrine, except where there is a clear legal right or obligation that is not of a spiritual nature.

Orders