Petros v Beru - [2007] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8737 of 2006

ARCHBISHOP ABBA PETROS
	Appellant
v
MEZEMER BERU and ANOR	Respondents

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JUDGES:	MAXWELL ACJ, CHERNOV and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2007
DATE OF ORDERS:	7 August 2007
DATE OF REASONS FOR JUDGMENT:	12 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 226

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INTERLOCUTORY INJUNCTION – Whether trial judge erred in refusing interlocutory injunctive relief – Dispute over access to parish church and property – Whether causes of action in conversion and detinue available – Status of rules of incorporated association – Whether member has private right of action against another member alleging non-compliance with rules – Balance of convenience – Whether trial judge erred in considering risks of injustice – Associations Incorporation Act 1981 (Vic), ss 14A(1), (2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K McMillan SC with Mr P Little	Thomas Egan
For the Respondents	Mr P G Priest QC with Mr A R Kirby	Nicholas O’Donohue & Co

MAXWELL ACJ,
CHERNOV JA,
KELLAM JA:

There is in Melbourne an active congregation of the Ethiopian Orthodox Tewahedo Church (“the Church”). Unhappily, a serious split in the congregation has developed, because of a dispute over who is the rightful patriarch of the Church.

The Church in Victoria has its legal existence as an incorporated association, the Ethiopian Orthodox Tewahedo Church in Australia (Victoria) Incorporated (“EOTCV”). The church building used by the congregation for its services (“the parish church”), and all of the associated property, are vested in the EOTCV. What prompted the issue of proceedings was a dispute over access to the parish church.

There was a change of government in Ethiopia in 1991. Before the change, the patriarch of the Church was Abune Merkorios. Following the change, Patriarch Merkorios left Ethiopia and fled abroad. A new patriarch, Abune Paulos, was then elected. The appellant (who is the first plaintiff) (“Petros”) was appointed Archbishop of the Church in Australia by Patriarch Paulos. The first respondent (“Beru”) has, since 1999, performed the role of administrator of the Church in Melbourne. Beru and his supporters do not recognise the appointment of Patriarch Paulos, or the appointment of Petros as Archbishop of Australia. They maintain that Patriarch Merkorios remains the patriarch of the Church, although he has been forced to live in exile.

The second plaintiff (who is not a party to the appeal) is a supporter of Petros. The second respondent is a supporter of Beru. The second plaintiff was, from 2001 until 30 July 2006, the Vice-Chairman of the Administrative Council of EOTCV, which manages its affairs and its property (“the Council”). He did not nominate for, and hence was not elected at, the elections for the Council which were held on 30 July 2006. The second respondent was elected Vice-Chairman of the Council at the 2006 election.

Petros arrived in Australia in July 2006 and in Melbourne in early September 2006. Petros and his supporters sought to attend at the Church…

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 Petros v Beru

Details

AGLC: Petros v Beru [2007] VSCA 226
Case: [2007] VSCA 226
Decision Date: 12 October 2007

CaseChat Overview and Summary

Petros v Beru involved a dispute over access to a parish church and its property. The plaintiff sought an interlocutory injunction to prevent the defendant from interfering with his access, and the defendant was a member of the church's governing body. The case was heard in the Supreme Court of Victoria. The plaintiff argued that the trial judge erred in refusing the interlocutory injunctive relief, and the defendant contended that the plaintiff did not have a valid cause of action in conversion and detinue.

The court had to determine whether the trial judge was correct in finding that the plaintiff's claim in conversion and detinue was not available, and whether a member of an incorporated association could bring a private right of action against another member for non-compliance with the association's rules. Additionally, the court needed to assess whether the trial judge had erred in considering the risks of injustice and the balance of convenience when deciding whether to grant the interlocutory injunction.

The court found that the trial judge was correct in determining that the plaintiff's claim in conversion and detinue was not available, as these causes of action were not appropriate in the context of the dispute over access to the church. The court also held that a member of an incorporated association did not have a private right of action against another member for non-compliance with the association's rules. Furthermore, the court concluded that the trial judge had not erred in considering the risks of injustice and the balance of convenience when deciding whether to grant the interlocutory injunction.

The court dismissed the appeal and affirmed the decision of the trial judge, finding that the interlocutory injunctive relief was not warranted in the circumstances of the case.

Orders