Metropolitan Petar v Mitreski

[2003] NSWSC 1007

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 of judicial attention already. On 4 April 2003, Hamilton J provided answers to (but without, to this point, making orders formally determining) three questions which had become the subject of an order for separate determination under Part 31 of the Supreme Court Rules. His Honour decided in essence that certain real property in Rockdale and Arncliffe vested in the sixth defendant (an association incorporated under the Associations Incorporation Act) is held upon a trust for charitable purposes, being a trust to permit the property to be used by the Macedonian Orthodox Church of St Petka, Rockdale as a site for a church of the Macedonian Orthodox religion and for ancillary activities: see Metropolitan Petar v Mitreski [2003] NSWSC 262 That is substantially the position for which the plaintiffs contend in the proceedings.

3 The defendants, however, deny the existence of any such charitable trust affecting the property vested in the sixth defendant. They also say that, if there is any charitable trust, its terms are subject to the terms of the sixth defendant’s constitution and are accordingly not as stated by Hamilton J. These matters are made clear in the defendants’ defence extracts from which are quoted at paragraph 45 of the reasons published by Hamilton J on 4 April 2003. It was made very clear before me by counsel for the sixth defendant that the defendants reserve the possibility of challenging on appeal the answers to the preliminary questions given by Hamilton J after those answers have assumed the status of formal determinations under Part 31; also that the defendants continue to reserve the right to pursue the defences to which I have referred.

The existing interlocutory regime

4 At the time his Honour published his reasons on 4 April 2003, an interlocutory regime had been in place for more than five years. Hamilton J had himself made interlocutory orders on 13 August 1997 and 20 January 1998. These orders had dealt to a certain extent with the question of which priest or priests was to act as parish priest. After his Honour’s decision of 4 April 2003 had clarified the status of the real property as trust property, there was some hope that a new interlocutory regime might be agreed. Despite mediation ordered under s.110K of the Supreme Court Act, no consensual solution emerged. Hamilton J therefore made, on 3 July 2003, new interlocutory orders superseding those then in place. Those new orders (made on the application of the plaintiffs) were varied by further orders made by Master Macready on 6 August 2003, and by Young CJ in Eq on 27 August 2003, also on the application of the plaintiffs. The orders now in force are:

“Upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages
1 Order the eighth defendant be restrained from officiating at any service in the church of St Petka Rockdale (‘the church’) until further order.
2 [omitted]
3 Order that the defendants permit the second plaintiff to conduct services including weddings christenings and funerals in the church on the Saturdays specified in the Schedule to these orders.
4 Order that after Saturday 16 August 2003 the defendants permit the second plaintiff to conduct divine service in the church on each Saturday not specified in the Schedule up to and including 27 March 2004 provided tat such service is concluded by 1pm.
5 Order that the defendants permit the first but not second plaintiff to conduct on Friday 8 August 2003 a service in the church in honour of St Petka the patron saint of the church provided that such service including any service of reconsecration is concluded by 2pm.
6 [omitted]
7 Order that each of the plaintiffs be released from his undertaking given to the Court on 20 January 1998 to the extent necessary to permit him to enter the church to conduct the services permitted in orders 2, 3, 4, 5 and 6. In the case of the first plaintiff this release is on condition that the only content of the services in orders 2 and 6 shall be celebration of those rites which are liturgically necessary for the purposes of the reconsecration of the church.
8 Order that the defendants shall not by complying with orders 3, 4 and 5 come under any liability to remunerate the second plaintiff.
9 Order that the operation of orders 3, 4 and 5 shall be conditional on the first plaintiff procuring Gligor Kiselinov or any other priest acceptable to the defendants to act as a priest at the church from and including Sunday, 8 August 2003 until the installation of Zoran Alexovski.

10 Note the agreement of the first plaintiff and the sixth defendant that:

(a) the sixth defendant will promptly do all things reasonably necessary on its part to appoint Zoran Alexovski to the position of a priest at the church and to make arrangements for and to pay his remuneration;
(b) the first plaintiff will promptly do all things reasonably necessary on his part to appoint Zoran Alexovski to the position of a priest at the church;
(c) the first plaintiff and the sixth defendant will cooperate to expedite Zoran Alexovski’s immigration to Australia for the purpose of performing the duties of a priest at the church;
(d) the first plaintiff will do all things within his power to procure Gligor Kiselinov or another priest acceptable to the defendants to act as a priest at the church and will not do anything to prevent or discourage him from so acting pending the availability of Zoran Alexovski to act as a priest at the church.
(e) nothing in this agreement shall be taken as a concession or conduct evidencing or other wise affecting their respecting their respective positions in the litigation concerning the power of appointing priests and related matters;
(f) the obligations of the first plaintiff under this agreement are conditional upon reconsecration of the church taking place.
11 Order that the plaintiffs’ motion filed on 2 May 2003 be otherwise dismissed.
12 Order that there be no order as to the costs of the motion.
13 Grant to the parties liberty to apply on 3 days’ notice such liberty to be exercised in the absence of Hamilton J before the Chief Judge in Equity.”

5 It is necessary to record two further items in the short minutes signed by Master Macready on 6 August 2003:

“2. Order that the Defendants by themselves, their servants and agents take all necessary steps to permit the Plaintiff to have access to the Church in accordance with Hamilton J’s orders as further varied.
3. Note that for the purposes of these Short Minutes ‘the Church’ is that part of the property of the Sixth Defendant which has been used as the Church for divine and other religious services since …. [sic] 2001.”

6 So that these orders may be better understood, it should be explained that the second plaintiff was installed as a priest at the church of St Petka by the bishop (i.e., first plaintiff) but afterwards arguably removed by the sixth defendant. After the departure of the second plaintiff, another person officiated as priest at the church but is said by the plaintiffs to have been unqualified to do so. This, in the view of the plaintiffs (but, it seems, not in the view of the defendants), caused the church to be in need of a form of reconsecration. Hence the focus on reconsecration in the orders set out above.

7 It appears that the church building itself (situated in Railway Street, Rockdale) is in the course of extensive renovation to reduce problems with noise from low flying aircraft using the nearby Sydney airport. Work started on November 2001 and is still incomplete. For some time, therefore, services have been held in the hall adjacent to the church: hence Order 3 made by Master Macready on 6 August 2003. The bishop has not yet reconsecrated the church. Indeed it appears that it may not be in a state fit to be reconsecrated. Nor has the bishop yet made available a priest as envisaged by the interlocutory regime now in place. On one view of matters ecclesiastical, the hall adjacent to the church, not having ever been consecrated, may not be put to all forms of religious use unless there is installed in it an antimension, which is a type of altar cloth the presence of which in unconsecrated premises is, according to that view, necessary to permit those premises to be the venue of the full range of worship and sacraments. In addition, “reconsecration” is not a process to which the unconsecrated hall can be subjected.

Interlocutory orders sought by the sixth defendant

8 By its notice of motion heard by me on 16 and 31 October 2003, the sixth defendant seeks:

(a) an order varying the orders set out above by

(i) discharging orders 3, 4, 7 and 10(f);

(ii) inserting a new order 14 commanding the first plaintiff (bishop) to authorise the use of an antimension in the hall until further order;

(iii) inserting a new order 15 commanding the first plaintiff (bishop) to do all things in his power to procure Gligor Kiselinov or another person acceptable to the sixth defendant to act as priest of the church (including officiating at services in the hall) pending the availability of Zoran Alexovski to act as priest of the church;

(b) in the alternative to (a)(iii), an order that the first plaintiff specifically perform the agreement recorded in paragraph 10(d) of the orders.

9 Towards the end of the hearing before me, it was indicated on behalf of the sixth defendant that each of Gligor Kiselinov and another priest, Ljubomir Milosevski (who, as I shall mention presently, is already ministering, at the bishop’s behest, in the Rockdale locality), was acceptable to it, so that, to the extent that the aspects of the orders now sought as referred to in paragraphs (a)(iii) and (b) above relate to Gligor Kiselinov or another priest acceptable to the sixth defendant and chosen by the first plaintiff, the sixth defendant is content for them to be taken to refer to such one of Gligor Kiselinov and Ljubomir Milosevski as the first plaintiff shall determine.

Whether the sixth defendant may claim interlocutory relief

10 The plaintiffs say that the sixth defendant is in no position to pursue this interlocutory application because no cross-claim has been filed by it and it accordingly does not stand in need of interim protection pending determination of a claim for final relief. In support of that proposition, the plaintiffs refer to the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 as to the true nature of interlocutory relief. Gleeson CJ there said (at p 217) that

“… a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought.”

The Chief Justice later said (at p 218):

“If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation for the claim for interlocutory relief disappears.
In a context such as the present, a proposition that the respondent has a ‘free-standing’ right to interlocutory relief is a contradiction in terms.”

11 The response of the sixth defendant is that the present application is not of the kind to which the observations in Lenah Game Meats as to the character of interlocutory orders relate. Rather, in the sixth defendant’s submission, the situation is one in which an interlocutory regime is already in place under existing orders and one party does no more than to seek a variation of that regime. The sixth defendant refers to Brereton v Milstein [1988] VR 508 as an instance in which such a variation was made. It also points to observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (unreported, NSWSC, 19 September 1988).

12 In Brereton v Milstein, a defendant against whom interlocutory orders of a Mareva kind had been made sought variation of the orders by omission of the principal restraint. This followed what the defendants regarded as a significant change in the circumstances which had caused them to consent to the making of the original orders. Murphy J varied the orders in the way sought by the defendants. In doing so, he took a course which experience would suggest is routinely and uncontroversially taken in such cases.

13 There is, however, a significant conceptual difference in this case. The sixth defendant does not seek merely some dispensation or release from an existing interlocutory order binding on it. The substance of its application is a claim to have the first plaintiff compelled by the court to engage in particular conduct. That, it seems to me, entails much more than variation of existing orders, at least when variation is viewed as something that modifies within some existing scope. It is here that the sixth defendant prays in aid observations in Brimaud v Honeysett. McLelland J was there asked to vary an interlocutory regime under which a provisional liquidator was in office. It is appropriate to set out part of the judgment:

“The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable [1982] AC 529, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing (see eg s75A(8) of the Supreme Court Act 1970).
Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see e.g. Warringah Shire Council v Industrial Acceptance Corporation - McLelland J 22 November 1979 unreported).
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application (see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447 - 8 ; Chanel v Woolworth & Co [1981] 1 WLR 485 at 492-3; Adam P Brown Male Fashions v Philip Morris 148 CLR 170 at 177-8; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894).
The following passages illustrate the point: ‘The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position.’ ( Chanel v Woolworth & Co at 492-3 per Buckley LJ.) ‘A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ...... . Of course the changed circumstances must be established by evidence ( Adam P Brown Male Fashions at 178 per Gibbs CJ and Aickin, Wilson and Brennan JJ.)”

14 The sixth defendant focuses upon the references by McLelland J to material change in circumstances as a trigger for the availability of orders varying an interlocutory regime. It says that, in the present case, there has been a material change in circumstances since the interlocutory orders currently in force were most recently the subject of consideration by the court, that is, when they were before Master Macready on 5 and 6 August 2003 in the context of an application by the plaintiffs for variation. The change in circumstances is said to consist of the failure of the first plaintiff to reconsecrate the church and to allow the hall to be used for worship. The sixth defendant says that all previous orders making up the interlocutory regime proceeded on the clear, although implicit, footing that the first plaintiff would reconsecrate the church or take other steps making the premises in Railway Street, Rockdale fit to be used by a duly authorised priest installed by the bishop, this being an essential pre-condition to the grant of authority to and installation of a priest. Because there has been no reconsecration and no other steps have been taken, the orders have, it is said, been frustrated.

15 The plaintiffs say, however, that none of this is any form of answer to their principal objection, namely, that the sixth defendant does not seek any substantive relief in the proceedings and therefore cannot assert any claim to interlocutory relief, whether by way of variation of existing interlocutory orders or otherwise – at least to the extent that the interlocutory relief entails an attempt to impose positive obligations on the first plaintiff. It seems to me that this must be so. As the Lenah Game Meats case shows, interlocutory relief cannot be granted at large. Nor do I gather from Brereton v Milstein, Brimaud v Honeysett and similar cases any suggestion that a party who is no more than a defendant and does not seek substantive relief in the proceedings may properly claim an interlocutory order regulating the conduct of a plaintiff in relation to the general subject matter of the plaintiff’s claims. Those cases were not concerned with the fundamental requirement referred to in Lenah Game Meats. Brereton v Milstein involved a defendant’s application to be freed from Mareva restraint. In Brimaud v Honeysett, the defendant sought termination of the appointment of a provisional liquidator previously made upon the application of the plaintiff. In neither case was there any claim by the defendant/applicant to have the court impose some positive requirement with respect to the plaintiff’s future conduct.

First legal or equitable right asserted by sixth defendant

16 Despite what I thus consider to be a fatal procedural obstacle to the grant of the relief the sixth defendant seeks, I proceed to the substance of its claims. The sixth defendant asks the court to compel a bishop to do two things: first, to authorise the use of a particular ecclesiastical article in a particular building so that the availability of that building for comprehensive ecclesiastical purposes may be put beyond doubt and, second, to do all things in the bishop’s power to procure one of two named priests to perform priestly functions at a particular location.

17 The legal or equitable rights upon which the sixth defendant relies in asserting an entitlement to such orders are said to have two sources. The first is said to be found in the evidence of Father John (John Cluny Macpherson) of St Ephrem’s Cell, 41 Irvine Street, Wallsend who, since June 2002, has been a priest of the Russian Orthodox Church Outside of Russia, having previously been, at various times over a period stretching back to the 1950s, a Stravrophore Monk of that church, an Athonite Monk of the Orthodox Church under the authority of the Patriarch at Constantinople and a Friar’s Minor of the Society of St Francis of the Church of England. I admitted, over objection, an expert report of Father John on matters of ecclesiastical law and practice of the Orthodox Church.

18 Father John’s report contains a section headed “Responsibilities of a Bishop of the Orthodox Church”. That section refers to the content of a purported letter of St Ignatius of Antioch (said to have lived from AD25 to AD107) to Bishop Polycarp of Smyrna and to a work of unstated date and provenance entitled “Didascalia apostolorum”. Each purports to set out exhortations to bishops or descriptions of good conduct on the part of bishops. In the former, there is a exhortation “to continue on in your course and to exhort all people so that they may be saved” and to “[v]indicate your office with all diligence, both fleshly and spiritual”. The latter says that it behoves bishops to care for all and that they are “in sore peril of destruction if you neglect your people”.

19 On the basis of this evidence, the sixth defendant submits that the first plaintiff, being a bishop, has a legal duty to authorise the use of an antimension in the hall in Railway Street, Rockdale and to do all things in his power to procure a named person or some other person acceptable to the sixth defendant to act as a priest at the Railway Street premises.

20 These contentions are not sustainable. The acts of the first plaintiff the court is asked to compel are acts of a discretionary and, one might say, a spiritual kind. There is, in my view, no difference in character or substance between the present claims and a claim that a bishop ordain a particular person priest or baptise a particular child or grant absolution of a particular sin of a particular person. The court would never compel those acts. Nor will it compel the acts the sixth defendant asks it to compel. English cases said by the sixth defendant to indicate otherwise will be examined presently.

21 Even if the writings of church fathers as to the duties of a bishop towards his flock are properly regarded as requiring performance by the first plaintiff of the particular acts in relation to Railway Street establishment, it has not been suggested that the requirements are of a contractual kind giving rise to a contractual right. Nor could a claim to any such species of contractual right be made by the sixth defendant. It is a body corporate which has no soul and does not stand in need of the spiritual succour contemplated by those writings. A corporation “is incapable of exercising itself in the duties of piety and true religion, either publicly or privately, on any day of the week”: Rolloswin Investments Ltd v Chromolit Portugal Cutelarias e Produtos Metalicos SARL [1970] 1 WLR 912 per Mocatta J.

22 The requirements emerging from the writings of the fathers, whatever may be their precise content, are of a domestic and non-justiciable kind to which the following observation of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan (1934) 51 CLR 358 is applicable:

“The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer of member concerned to a civil sanction.”

I do not regard the matters as to the pastoral responsibilities of bishops referred to in the evidence of Father John as the source of enforceable legal rights and duties attracting civil sanction in the event of non-compliance.

23 It was submitted on behalf of the sixth defendant that the views I have expressed are too narrow and that it is not correct to say that a court will never compel a bishop to appoint a priest to a particular church. This submission was made by reference to the decisions in Notley v Bishop of Birmingham (1930) 99 LJ Ch 305 and Notley v Bishop of Birmingham (No 2) [1931] 1 Ch 529. That litigation involved refusal by a bishop of the Church of England to allow a clerk in holy orders duly nominated by the patrons of a perpetual curacy to take the oaths and make the declarations necessary to admit and licence him to the benefice. In the first case, Bennett J made a declaration that the clergyman concerned had been duly nominated and presented to the perpetual curacy and an order that the bishop admit and licence him “in due form according to law”. The bishop, who had not entered an appearance in the proceedings, did not comply with the order. The patrons then moved the court, in the subsequent proceeding, for the issue of a writ directed to the Archbishop of Canterbury commanding him to admit and licence a fit person to the benefice on the nomination or presentation of the plaintiffs as patrons. Maugham J ordered that the writ issue, at the same time discharging the previous order against the bishop.

24 These English decisions are decisions about the enforcement of property rights. In England, where there has long existed an intermingling of the affairs of the Church of England and those of the state having no parallel in Australia, a person designated patron may possess a right known as an advowson to nominate or present an ecclesiatic to a benefice – or, in more straightforward (and perhaps over-simplified) terms, to determine which clergyman is to be installed by the bishop to officiate at a particular church or chapel. An advowson, whether in gross or appendant, is, in English law, an incorporeal hereditament and therefore real property transmissible as such: see Mirehouse v Rennell (1832) 8 Bing 490 and the brief discussion by McPherson J in Bailey v The Uniting Church in Australia [1984] 1 QdR 42. Rights of property, whether real or personal, are, of course, cognisable by civil courts, with the result that English courts of common law developed procedures for enforcing rights of nomination and presentation to benefices, first by real action upon a writ of quare impedit directed to a bishop “disturber” and, after the abolition of that form of action by the Common Law Procedure Act 1860, by an analogous procedure initially in the Court of Common Pleas and later in the Chancery Division of the High Court of Justice.

25 The sixth defendant is not the patron of an advowson. No property right of that kind is known to the law of New South Wales, even though, as Bailey’s case shows, analogous (but inalienable) nomination rights may sometimes be created in this country by statute. The sixth defendant can point to no property right that is invaded by the first defendant’s failure to appoint a priest to be the incumbent of the church of St Petka, Rockdale. The two English cases have no application to the present circumstances and do not provide any useful guidance.

Second legal or equitable right asserted by sixth defendant

26 I come now to the second asserted basis for the relief the sixth defendant seeks. The circumstance that property is held upon a charitable trust for religious purposes will, of course, introduce elements of justiciability into certain matters affecting such trust property. Use of the property in a way that does not accord with the relevant religious purposes may, for example, be restrained by injunction: eg, Wylde v Attorney General for New South Wales (1948) 78 CLR 224. Considerations of this kind, in the sixth defendant’s submission, supply the second and alternative source of the sixth’s defendant’s legal or equitable right by reference to which it asserts an entitlement to the orders now sought.

27 According to this submission, the existence of a charitable trust for the purposes of the Macedonian Orthodox Church in respect of the Railway Street property means that the sixth defendant, as the trustee holding the property upon the charitable trust, is entitled to look to the hierarchy of that church to do things necessary to enable the trust to be performed and duly administered by the trustee. The sixth defendant points to a passage in the judgment of Young CJ in Eq in Radmanovic v Nedeljkovic (2001) 52 NSWLR 641 in support of the submission. In that case, it was determined that certain property was held upon a charitable trust for the purposes of the Serbian Orthodox Church. Towards the end of the judgment, reference was made to the excommunication by a church court of certain persons who became plaintiffs in the proceedings. On one view, the excommunications gave rise to what Young CJ in Eq referred to as “very considerable practical problems in carrying out the trusts”. His Honour then said:

“Whilst the court will not usually enquire into an excommunication from a church based on theological grounds, the present excommunications, if the plaintiffs are correct, flowed from their attempts to administer the trusts laid on them in a proper and legal manner. Those trusts involved using the buildings inter alia so that the people could worship in the style of the Serbian Orthodox Church. However, by their actions, the hierarchy may have made that impossible and have repudiated the trusts.”

28 The sixth defendant extracts from this, as I understand it, the proposition that where land is held by a particular person upon a charitable trust for the religious purposes of an hierarchical church, the hierarchy of the church incurs, by reason of the existence of the trust, some form of obligation not to obstruct the effectuation of the charitable purpose and perhaps even to take all such active steps as are necessary on the hierarchy’s part to enable the purpose to be fulfilled. I do not intend to examine that proposition in detail. It may however be noted that an element of the trusts found by Young CJ in Eq involved rights of the laity of the relevant community to participate in the affairs of the church conducted on the land (see Order 5(ii) at 52 NSWLR p. 678), this being an emphasis not to be found in the formulation of the terms of the charitable trust in the present case as stated by Hamilton J in answering the first of the questions for separate determination.

29 I do not think that any principle of the kind for which the sixth defendant contends on the basis of the above extract from the judgment in Radmanovich v Nedeljkovic, even if valid, assists it upon the present application. There are three reasons for this. The first is that that case concerned positive acts by the church hierarchy in the form of the excommunications. There was, as it were, a possibility of active interference with the status quo by exclusion of certain persons from membership of the church resulting, on one view, in “very considerable practical problems in carrying out the trusts” which placed emphasis on lay participation. In the present case, the sixth defendant does not point to positive acts of the first plaintiff as bishop. It relies upon his having not done certain things, by way of reconsecration and appointment of a priest. It is by no means clear to me that this inaction, particularly in circumstances where the acknowledged church building is under renovation and apparently not suitable for use, is in any way comparable with active creation of “very considerable practical problems in carrying out the trusts”.

30 The second point is that the sixth defendant is in no position to seek to enforce the charitable trust or to complain of breach of trust. It is the proprietor of the land affected and bound by the charitable trust. The Attorney-General, as the representative of the Crown as parens patriae, is the guardian of charities and the proper person to complain of non-adherence to or interference with a charitable trust. The Attorney-General was represented by counsel on the present application and made no submissions.

31 Third, the sixth defendant faces the formidable obstacle that it does not accept or recognise the existence of the relevant charitable trust. Its counsel was, as I have already said, at pains to make it clear to me that the sixth defendant reserves its right to appeal (or, perhaps more accurately, to seek leave to appeal) when formal orders are made embodying the answers to the preliminary questions given by Hamilton J on 4 April 2003; also that it considers itself at liberty to rely on its defences that there is no charitable trust or, if that is incorrect, that the terms of any charitable trust are not as indicated by Hamilton J. Having clearly and unequivocally elected to maintain that position, the sixth defendant is simply not at liberty to seek to draw support from and to base its case for interlocutory relief upon the existence of the very charitable trust it refuses to recognise and actively seeks to resist. This is, in a way, an accentuation of the insurmountable difficulty the sixth defendant faces in seeking to press a claim for interlocutory relief in the absence of a cross-claim identifying any substantive relief sought.

Conclusions

32 The sixth defendant has not shown any contractual entitlement or other legal or equitable right vested in it the vindication of which requires the making of the orders sought, even if the sixth defendant is in a position to assert an entitlement to interlocutory relief in the form of interlocutory orders requiring affirmative acts of the first plaintiff. For reasons emerging from the Lenah Game Meats case, I do not consider the sixth defendant to be in that position in any event.

33 I add that even if the insurmountable obstacles to which I have referred did not exist, the relief the sixth defendant seeks would be refused on discretionary grounds, at least insofar as it is claimed by reference to the ancient writings on the duties of bishops. There is clear evidence that two priests installed by the bishop, one of whom is Ljubomir Milosevski, regularly conduct services and administer sacraments at a church in Frederick Street, Rockdale which is only a short distance from the Railway Street premises. Even if the bishop were seen to be under some form of legally recognisable and enforceable obligation to make facilities for worship and the administration of sacraments available to the faithful in the Rockdale locality, the obligation would clearly enough be discharged by the provision of the Frederick Street facilities.

34 The sixth defendant’s notice of motion heard by me on 16 and 31 October 2003 is dismissed. In the ordinary way, the plaintiffs must be regarded as entitled to an order for costs but, bearing in mind the nature of the parties’ relationship, I shall defer making any such order unless and until the plaintiffs seek it.

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Last Modified: 11/06/2003