Radmanovich v Nedeljkovic

[2003] NSWSC 350

CITATION:	Radmanovich v Nedeljkovic [2003] NSWSC 350
HEARING DATE(S):	09/04/03
JUDGMENT DATE:	30 April 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Appeal declared competent. Time for filing notice of appeal extended. Appeal dismissed.
CATCHWORDS:	CHURCHES AND RELIGIOUS ASSOCIATIONS - expulsion, suspension and disqualification of members - construction of rules of local church-school community - rule stating that members of community are "only" certain "members" of church - rule stating that certain persons "ineligible for membership" of community - status under rules of existing members later sentenced by church court to excommunication for a period - effect on church membership of church by-laws defining nature and consequences of excommunication - APPEAL - decision of master after referral by judge - whether appeal to Court of Appeal or to single judge - whether subject of referral to master was "trial or hearing of proceedings" or "matter" - APPEAL - extension of time for appeal - appeal instituted within time but by wrong process and to wrong court - correct process filed out of time - whether time should be extended
LEGISLATION CITED:	Supreme Court Act, s.101 Supreme Court Rules, Pt 60 rules 10, 11, 17, Sch D Pt 3
CASES CITED:	Re Anglo-Moravian Hungarian Junction Railway Co (Forbes' case) (1873) LR 8 Ch App 769 Blake v Norris (1990) 20 NSWLR 300 Braeside v Brignell [1996] 1 VR 17 Cameron v Hogan (1934) 51 CLR 358 Re Conciliation and Arbitration Act 1904; Ex parte Sims (unreported, FCA, J B Sweeney J, 16 October 1980) Crumblin v Kerr (1987) 72 ALR 461 Dawson v African Consolidated Land and Trading Co [1898] 1 Ch 6 Demaree v Scates 32 P 1123 (1893) Do Carmo v Ford Excavations Pty Ltd [1980] 1 NSWLR 409 Faramus v Film Artistes' Association [1963] 2 QB 527 Faramus v Film Artistes' Association [1964] AC 950 Government Insurance Office of New South Wales v Weeks [1981] 1 NSWLR 713 Hills v Higgins (1982) 61 FLR 131 Jackamarra v Krakover (1998) 195 CLR 516 McCoy v Board of Supervisors of Los Angeles County 114 P 2d 569 (1941) Navarro v Spanish-Australian Club of Canberra (1987) 87 FLR 390 Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 Pasdale Pty Ltd v Concrete Constructions Pty Ltd (1995) 59 FCR 446 People v Leonard 14 P 853 (1887) Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 Radmanovich v Nedeljkovic [2002] NSWSC 212 Radmanovich v Nedeljkovic [2002] NSWSC 763 Reynolds v Panten (1999) 23 WAR 215 State ex rel Olson v Langer 256 NW 377 (1934) Stollznow v Calvert [1980] 2 NSWLR 749 Warren v Coombes (1979) 142 CLR 531 Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421 Williams v Hursey (1959) 103 CLR 30 Woodford v Smith [1970] 1 WLR 806
PARTIES :	Maksim Radmanovich - First Appellant Stevan Dobrich - Second Appellant Drago Mijakovac - Third Appellant Kosta Nedeljkovic - First Respondent Nicola Lukic - Second Respondent Duro Radan - Third Respondent
FILE NUMBER(S):	SC 1354/99
COUNSEL:	Mr G B Colyer - Appellants Mr S A Glacken - Respondents
SOLICITORS:	McCabe Terrill - Appellants Nicholas G Pappas & Company - Respondents

LOWER COURTJURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S):	1354/99
LOWER COURT JUDICIAL OFFICER :	Master McLaughlin

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 30 APRIL 2003

1354/99 - MAKSIM RADMANOVICH & 2 ORS v KOSTA NEDELJKOVIC & 2 ORS

JUDGMENT

Introduction

1 On 9 April 2003, I heard submissions on a number of matters arising out of and in relation to a notice of appeal filed on 29 November 2002 by which three appellants purport to appeal to the court constituted by a judge from certain parts of a decision of a master. As a preliminary to considering those matters, I must describe the context and background.

2 On 15 June 2001, Young CJ in Eq delivered judgment in Radmanovich v Nedeljkovic (2001) 52 NSWLR 641. His Honour’s judgment dealt with disputes that had arisen in relation to control and administration of property of the Serbian Orthodox Church School Community centred on the northern beaches district of Sydney. The community was founded at Warriewood but now extends also to Mona Vale and has property at Elanora Heights. The disputes extended to the composition of the committee or council of the community. Orders were made on 15 October 2001 (see 52 NSWLR at 677-679). Among them were orders removing certain persons as trustees of the trusts upon which church land was held and appointing certain other persons to be trustees, so that there were in office three trustees, being the three persons named as respondents in the notice of appeal. Order 12 of the orders made by Young CJ in Eq was as follows:

“12. Order that the Trustees be directed:
12.1 to settle a provisional list of members of the Church School Community.
12.2 Any dispute as to the provisional list be referred for adjudication by a Master;
12.3 subject to the supervision of the Court to exercise the powers of the Management Committee of the Church School Community for the purpose of convening an Extraordinary Meeting of the Church School Community to elect a Management Committee in accordance with the 1950 Rules.”

3 References to the “Church School Community” are references to a body of persons associated together under what his Honour referred to as “the 1950 Rules”, being an English translation of rules dated 15 April 1950. I should explain that, in the Serbian Orthodox Church, a “church school community” is an association of church adherents participating in the activities of worship, mutual assistance and Christian education within or in connection with a particular parish or locality under the leadership and pastoral guidance of a parish priest. I shall refer to the church school community involved in these proceedings as simply “the Community”.

4 In accordance with order 12.1 of the orders made on 15 October 2001, the trustees settled a provisional list of members of the Community. Disputes arose about the provisional list and, in accordance with order 12.2, were referred for adjudication by a master. On 28 August 2002, Master McLaughlin published reasons for judgment in which he dealt with the matters in dispute: Radmanovich v Nedeljkovic [2002] NSWSC 763. One such matter related to four persons whose status as members of the Community was challenged because they were subject to sentences imposed by a church court. The four are Maksim Radmanovich (the first appellant), Drago Mijakovac (the second appellant), Stevan Dobrich (the third appellant) and Jovan Jamaraz. The Master held that none of the four persons subject to sentence should be included in the list of members.

Questions for decision

5 By their notice of appeal, the three appellants appeal from parts of the Master’s decision based upon a certain construction of two of the 1950 rules. They take issue with the holdings that “the effect of article 4 is that a person who was a member of the Community who subsequently has been excommunicated thereupon ceases to be a member of the Community” and that “the fact of excommunication automatically, and without more, results in the person excommunicated being ineligible for membership and, in consequence, automatically ceasing to be a member”. The latter conclusion is based on article 6.

6 The first issue debated before me was whether the appeal purportedly instituted by the notice of appeal is competent. On 25 September 2002, an ordinary summons for leave to appeal was filed in the Court of Appeal by the three persons named in the notice of appeal now before me. Thereafter, those persons took further steps directed towards having that application for leave to appeal heard and determined by the Court of Appeal. Subsequently, however, it appears that a question arose in their minds (or, at least, the minds of their advisers) as to whether that was the appropriate avenue of appeal or whether the appeal should, instead, be an appeal to the court constituted by a single judge. Steps to initiate an appeal of the latter kind were then taken by the filing of the notice of appeal of 29 November 2002. The competency of that appeal is the first matter that arises for determination by me.

7 If an appeal to the court constituted by a judge is the correct avenue of appeal, the appellants face the difficulty that such an appeal was initiated after the expiration of the period allowed by Part 60 rule 11(2) of the Supreme Court Rules with the result that, if the appeal is to be determined, there must be an order extending time. The appellants seek such an order. I must determine that application if I decide that the appeal to the court constituted by a judge is competent.

8 Assuming that both of the preliminary matters to which I have referred are decided favourably to the appellants, my third task is to determine the appeal itself. The course adopted on 9 April 2003, with the concurrence of both Mr Colyer who appeared for the appellants and Mr Glacken who appeared for the respondents, was that I heard submissions not only on the two preliminary questions but also on the appeal itself. At the conclusion of submissions, I reserved my decision on all issues, with the result that these reasons deal sequentially with all of the matters that were argued.

9 I should mention finally that, late in the hearing, the appellants sought to extend the grounds of their appeal. I heard competing submissions in relation to that and indicated that the application, like the other matters, would be dealt with in my reserved judgment.

The competency of the appeal

10 The question of the competency of the appeal – that is, whether it is properly brought before the court constituted by a judge or should be pursued in the Court of Appeal, initially by application for leave to appeal – depends on the interpretation of the relevant provisions of the Supreme Court Rules. Before turning to those provisions, I should give some further background about the processes that led to the decision of Master McLaughlin. After the matters of dispute concerning the provisional list of members had been referred to him but before he began his inquiry, Master McLaughlin noted that the parties were not in agreement as to the effect of order 12 and that they proposed to approach Young CJ in Eq to seek clarification. The matter was put in his Honour’s list on 13 March 2002 and he made observations in the course of which he noted that it is not ordinarily open to a trial judge to say later what he or she meant by a final order already made: see Radmanovich v Nedeljkovic [2002] NSWSC 212. His Honour then went on, however, to comment on parts of order 12 as follows:

“ What 12.1 of the order directed was that there be a provisional list of members settled by the trustees; ie the trustees were to produce a list of members which provisionally would stand as the list of members. It was to be a list of members, not a list of people who should be members; ought to have been members; or were qualified to be members, but a list of persons who were members as claimed by the trustees.
Step 12.2 was to allow the plaintiffs to say: (a) some of the people on that list, or all of the people on that list are not members; or (b) some people who are not on that list are members; and the Master would then adjudicate on that question.”

11 Against that background, Master McLaughlin embarked upon the task envisaged by order 12.2. He did so by reference to the provisional list of members produced by the trustees and objections to that list advanced by the present appellants. He proceeded to consider the status of and circumstances pertaining to a number of persons and concluded that the members of the Community consisted of the first 89 persons named in a revised list, minus 9 persons who, in his judgment, were not members. No order for costs was made. The Master observed that, in terms of the orders of Young CJ in Eq, further questions of costs were reserved and that the costs of the determination by the Master would be dealt with by the judge accordingly.

12 Section 101 of the Supreme Court Act 1970 says that an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division. This, however, is expressed to be subject to the rules. It follows that no appeal will lie to the Court of Appeal from the decision of Master McLaughlin in the present case if the rules make some contrary provision.

13 Part 60 rule 10 says that an appeal lies to the court constituted by a judge from any “decision” of a master, except in any case where an appeal lies to the Court of Appeal pursuant to Part 60 rule 17. Part 60 rules 10 and 17 between them cover the whole of the ground dealing with appeals from Masters and divide that ground in a way that assigns particular and defined cases to the Court of Appeal and leaves all others, by way of residue, to be dealt with by appeal to the court constituted by a judge. It follows that, if there is to be an appeal to the Court of Appeal, a provision of Part 60 rule 17 specifying that avenue of appeal must be identified.

14 The provision of Part 60 rule 17 potentially applicable to the present case is that which deals with an appeal from any decision of the Court in a Division constituted by a master “upon a trial pursuant to Schedule D Part 3 paragraphs 1, 2, 3, 3A, 4(a), 8, 9, 17 and 17A”. Such an appeal is declared to lie to the Court of Appeal in accordance with s.101, subject to leave of the Court of Appeal in cases covered by ss.101(2) and 101(4). Schedule D Part 3 sets out matters in respect of which Part 60 rule 1A(1) enables a master to exercise the powers of the court. Among these are matters referred to in paragraph 4 of Schedule D Part 3:

“4. Any –
(a) trial or hearing of proceedings (except with a jury); or
(b) matter (other than a matter in proceedings tried or to be tried with a jury),
where referred to a master by an order of a Judge or of the Court of Appeal.”

15 The determination of Master McLaughlin with which I am currently concerned was in respect of something referred to a master by an order of a judge. That determination is accordingly within paragraph 4 of Schedule D Part 3. The crucial question is whether the subject of the reference to a master by order 12.2 made by the Chief Judge in Equity on 15 October 2001 was a “trial or hearing of proceedings” (so that the case is within paragraph 4(a) of Schedule D Part 3 and the appeal avenue is the one dictated by Part 60 rule 17 involving appeal to the Court of Appeal) or whether the subject of the reference to a master was a “matter” (so that the referral was under paragraph 4(b) and any appeal lies to the court constituted by a judge under Part 60 rule 10). Whether the subject matter of the referral to a master was the “trial or hearing of proceedings” or just a “matter” must, of course, be determined by looking at the judge’s order.

16 Paragraph 4 of Schedule D Part 3 proceeds on the footing – which emerges from Part 60 rule 1A(1)(c) – that a judge may by order empower a master in one of two ways, that is, either to try or hear “proceedings” or to deal in some other way with a “matter”. The structure of paragraph 4 is such that “matter” is regarded as something distinct and different from “trial or hearing of proceedings”. In addition, there is a textual indication that a “matter” is (or, at least, will sometimes be) something that arises in the course of or forms part of “proceedings”. This indication comes from the bracketed words in sub-paragraph (b): “other than a matter in proceedings tried or to be tried with a jury” [emphasis added].

17 The word “proceedings” has an indeterminate signification that is shaped very much by context. The meaning of the word has been discussed in a number of decided cases. I mention, in particular, Blake v Norris (1990) 20 NSWLR 300, Pasdale Pty Ltd v Concrete Constructions Ltd (1995) 59 FCR 446 and Reynolds v Panten (1999) 23 WAR 215. Because of the overwhelming importance of context, however, I do not think that any particular guidance can be derived from decisions on other provisions. In the context with which I am now concerned, “proceedings” are something that can be tried or heard. That, plus the textual indication to which I have already referred (ie, that a “matter”, in the relevant sense, may be something “in” proceedings) leads me to the think that the applicable meaning of “proceedings” is that adopted by the Victorian Court of Appeal in Braeside v Brignell [1996] 1 VR 17 of an action, suit or cause as a whole.

18 On that basis, it seems to me that paragraph 4(a) is concerned with a situation where a judge has made an order in respect of an action, suit or cause initiated by appropriate originating process that has the effect of causing a master to be seised of the action, suit or cause in such a way that the master, rather than the judge, will try all relevant issues and hear and determine the controversy as a whole. Paragraph 4(b), which contemplates referral by a judge to a master of some “matter” that is not “trial or hearing of proceedings” but may be something arising “in” proceedings, must therefore be taken to be concerned with the situation where some discrete question for decision, forming part of or being incidental to the trial or hearing of proceedings, is referred by a judge to a master.

19 In the first situation, the referral puts the master in a position where he or she is to exercise all functions relevant to the trial or hearing of the proceedings, so that the result of the trial or hearing is determination of the proceedings by the master in the same way as if they had been dealt with wholly by a judge, with the master’s decision having the same status and effect as a decision of a judge. That being so, it is logical and to be expected that appeal lies direct to the Court of Appeal. In a paragraph 4(b) situation, on the other hand, where the master determines some discrete question or issue forming part of or being incidental to an action, suit or cause with which a judge is dealing, the situation is one in which the master’s function is auxiliary to that of the judge, so that there is logical consistency in any review of the master’s decision by way of appeal being undertaken by a judge rather than the Court of Appeal.

20 This meaning of “proceedings” seems to me to have been adopted in the judgment of Moffitt P (with whom Hope JA and Hutley JA agreed) in Government Insurance Office of New South Wales v Weeks [1981] 1 NSWLR 713. That case involved an earlier version of Schedule D Part 3 to the Supreme Court Rules. Paragraph 1 of that version referred to:

“Trial of proceedings where the only matters in question are the amount of damages and costs.”

21 Moffitt P observed that where in a proceeding both liability and damages are in issue the case did not fall within this paragraph. He went on to consider whether that result would be avoided by the making of an order for separate determination pursuant to Part 31 rule 2(a). The conclusion was that it would not. The rules envisage that, in such a case, there remains a single proceeding even though different questions are to be determined separately. Each such question exists within and as part of the single proceeding. That notion lends considerable weight to the conclusion that when paragraph 4(b) of Schedule D Part 3 in its current form refers to a “matter” it has in contemplation some part of a greater whole that is the “proceedings”.

22 In the present case, the relevant proceedings are those in which Young CJ in Eq gave judgment on 15 June 2001 and made orders on 15 October 2001. Those proceedings were not thereby concluded, as is shown not only by the role created for a master under order 12.2 but also by his Honour’s grant of liberty to apply. The referral to a master by order 12.2 was not a referral involving “trial or hearing” of those or any other “proceedings”. It was, rather, referral of a discrete question forming part of the trial of the proceedings of which Young CJ in Eq was seised and in which the master’s function was to be auxiliary to that of the judge in the disposition of the proceedings.

23 It follows that an appeal from the decision of Master McLaughlin now in question is an appeal in respect of a decision upon a “matter” to which paragraph 4(b) of Schedule D Part 3 refers. It is not, in terms of Part 60 rule 17(a) a decision of a master “upon a trial pursuant to Schedule D Part 3 paragraphs … 4(a) …”. The correct avenue of appeal is accordingly to the court constituted by a judge, being the avenue specified in Part 60 rule 10. The appeal initiated by the notice of appeal filed on 29 November 2002 is therefore competent.

Extension of time for appeal

24 Part 60 rule 11(2) says that an appeal from a master to the court constituted by a judge is to be instituted within 28 days after the date on which the relevant judgment was given or order or decision was made “or within such extended time as the master or the Court may fix”. Under Part 60 rule 11(1), the manner of instituting appeal is filing of a notice of appeal.

25 In the present case, Master McLaughlin’s judgment was given on 28 August 2002. As I have said, an ordinary summons for leave to appeal was filed in the Court of Appeal on 25 September 2002 but the notice of appeal contemplated by Part 60 rule 11(1) was not filed until 29 November 2002. An extension of time under Part 60 rule 11(2) is therefore necessary if an appeal to the court constituted by a judge is to be pursued.

26 Generally speaking, four factors arise for consideration upon any application for such an extension of time. As stated in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, they are the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent As Kirby P emphasised in Jackamarra v Krakover (1998) 195 CLR 516, however, there is an overriding obligation of the court, upon such an application (as in every other case), to do what is necessary for the attainment of justice.

27 In this case, it is particularly to be noted that action to initiate an application for leave to appeal to the Court of Appeal was taken within 28 days after Master McLaughlin’s judgment was given, even though the correct initiating document was not filed for another 34 days. The respondents were thus put on notice promptly that the appellants sought to take the matter further. Delay in filing what, according to the conclusions I have already expressed, was the correct initiating process is explicable wholly by reference to a decision to pursue the matter through the wrong procedural channel. That shortcoming should be regarded as the result of an error of a technical kind by the appellants’ advisers that should not be laid at the feet of the appellants themselves (see Stollznow v Calvert [1980] 2 NSWLR 749), particularly since it reflects their advisers’ views on provisions of the Supreme Court Rules which may fairly be said to be productive of some doubt. Conclusions adverse to the appellants’ application for an extension of time are, in my judgment, simply not open in relation to the issues of length of delay and reasons for delay.

28 As to whether there is an arguable case, my conclusion again favours the appellants. As will be seen, the issues are wholly issues of construction of the 1950 rules. The construction for which the appellants contend, centred upon the force to be given to the words “members” and “only” in article 4 and the meaning of “ineligible for membership” in article 6, is not fanciful or so devoid of plausibility as to be rejected out of hand. The propositions for which they contend are arguable.

29 On the question of prejudice, Mr Glacken pointed out, on behalf of the respondents, that the affairs of the Community have been for a long time in a state of suspension awaiting authoritative determination of membership issues so that a new managing committee may be elected and a new supervisory regime may come into operation in accordance with the orders of Young CJ in Eq. Those aims will not be enhanced and the interests of not only the respondents but also the general body of persons interested in the affairs of the Community will, he says, be prejudiced if there is further delay. For that reason, it is submitted that the decision of the Master should be left to stand.

30 I do not accept these submissions as to prejudice. In the particular context, the opportunity for the respondents to advance the submissions has arisen as a result of a technicality. The substance of things is that an appeal was initiated within time, albeit in an incorrect way. The appellants would be inappropriately prejudiced by a decision to refuse the necessary extension of time; and neither the respondents nor the other members of the Community will be inappropriately prejudiced by a decision to grant it.

31 In the particular context where the summons for leave to appeal was filed in the Court of Appeal within the period referred to in Part 60 rule 11(2) and the appeal to a single judge has now been argued, I am satisfied that the interests of justice will be best served by granting the extension of time the appellants seek.

The 1950 rules in context

32 The central question in the appeal turns on the construction of the 1950 rules. It is important that the rules be construed as a whole. I begin by quoting in full the three articles of greatest significance:

“Art.4. Members of the Community are only those members of St Sava’s Orthodox Church, who have voluntarily accepted duties and obligations set out by the Church–School Rules and thus acquired the right to participate in activities.
Art.5. Any member of the Serbian Orthodox Church who desires to become a member of the Community, applies to the Managing Committee, and must be sponsored by two members of the community. The Managing Committee makes a decision. Persons not accepted as members, or expelled from membership, have the right of appeal to the next General Meeting. The General Meeting has the final say in this matter.
Art.6. The following persons are ineligible for membership of the Church-School Community:
1. Persons under 18 years of age
2. Persons who are proven to be immoral in their behaviour and life, and who would scandalise others.
3. Persons who are proved to be active against the Church, the Diocese and the Orthodox Religion.
4. Persons who publicly declare to be, and can be proven to be anarchists, communists, nihilists, and bigamists. ”

33 These provisions must now be put into context. The first point to be noted is that the reference to “St Sava’s Orthodox Church” is not a reference to a localised church community or building such as, for example, St Mary’s Cathedral or St James’ Church near the Supreme Court building in Sydney. St Sava was the founding father of the Serbian branch of the Orthodox Church. “St Sava’s Orthodox Church” therefore refers to the Serbian Orthodox Church as a whole, although I note that, apparently coincidentally, the parish at Warriewood-Mona Vale also carries the name “St Sava’s” in the same way as the Sydney churches of other denominations to which I have referred.

34 Second, it is necessary to say something about the relationship between the Community and the wider Serbian Orthodox Church. Articles 1 and 2 acknowledge the jurisdiction of the American-Canadian Diocese and the role of the Patriarchate at Belgrade. Those articles are as follows:

“Art.1. The First Serbian Orthodox Church-School Community St. Sava in Warriewood and ……. is a COMMUNITY OF SERBS, adherents to the Serbian Orthodox Faith, living all over Australia, until such time as other Church-School communities are created in other places, when all who live in the vicinity of those churches will become their members.
Art.2. The Church-School Community of St. Sava in Warriewood ….. falls under the jurisdiction of the American-Canadian Diocese up until the final liberation of our land, when the Patriarchate on the basis of the Constitution of the Serbian Orthodox Church will make a final decision.”

35 In 1950, the American-Canadian Diocese was in a state of estrangement from the Patriarchate at Belgrade. The reasons lay in displacement of persons and the emergence of political divisions after World War II. Many Serbian Orthodox faithful started new lives outside Europe in the wake of the war and the imposition of communist rule in Yugoslavia. The American-Canadian Diocese distanced itself from the continuing church government in communist Belgrade. The subsequent reconciliation, involving what Young CJ in Eq called “reabsorption of the American-Canadian Diocese into the Mother Church” in 1952, saw the beginning of divisions within the Community with which I am presently concerned that led to this and earlier litigation. His Honour’s conclusion on the relationship between the Community (and its property) and the Serbian Orthodox Church was stated as follows:

“The plaintiffs say that they never accepted the subsumption of the American-Canadian Diocese and thus themselves by the Belgrade authorities in 1952. The answer to this point is twofold. First, in a hierarchical and Episcopal church there is no requirement that each congregation accept what has happened at the higher levels of the church. The second is that the inference from the conduct of the Community from 1981 until 1998 shows that it is more likely than not that the Community did accept what had happened in Belgrade and accepted that the Patriarch and the diocesan authorities were the supreme governing body which affected their Community.
What then are the trusts that govern this land?
In my view the defendants' position is basically correct. The evidence is too strong to contradict the basal contention that the property is part of the worldwide Serbian Orthodox Church and is subject to the Constitution of the Australian and New Zealand Diocese.”

36 It follows that the hierarchical allegiance or control referred to in article 2 of the 1950 rules must now be regarded as modified to the extent that the Community today falls under the jurisdiction of the Diocese of Australia and New Zealand and is thereby part of and subject to the system of church government that has at its head the Patriarchate at Belgrade.

37 Article 3 of the 1950 rules sets out the aim and duty of the Community in terms referring to Christian and humanitarian values.

“Art.3. The aim and duty of the Church-School Community of St. Sava in Warriewood and ……………….. is to maintain and further develop the church, school and all institutions beneficial to Serbs and to the Orthodox Religion, as well as to endeavour to have its members organised in the national community, living in harmony and brotherly love, in keeping with the spirit of Saint Sava’s Orthodox Church, assisting one another in the humanitarian and welfare sense through their institutions, and also to endeavour that all Serbs be good citizens of Australia and New Zealand during their residence in them.”

38 Article 7 refers to the various persons and bodies involved in the administration of the Community. These include both the general meeting and the managing committee referred to in article 5. Articles 8 to 21 are concerned with the functions and procedures of the general meeting. Articles 22 to 31 deal with the membership, functions and procedures of the managing committee, as well as referring to certain other committees. Articles 32 to 38 deal with particular officers and functionaries. Articles 39 and 40 are headed “The Parish” and refer to the parish in conjunction with which the Community operates:

“Art.39. The Serbian Orthodox Parish is a community of all Serbs who fulfil–confess the Eastern Orthodox Faith, live in Sydney and environs and in Australia (for now), use the same Parish Temple and are under the spiritual realm of the St. Sava Church in Sydney.
Art.40. The parish belonging to the St. Sava Temple in Sydney has its parish office, its own registry books, (the registers of Births and Baptisms, Marriages and Deaths) and its own parish seal, which has in its centre the image of St. Sava, and around the edges written in English and Serbian: THE SERBIAN ORTHODOX CHURCH OF SAINT SAVA IN SYDNEY.”

39 Article 42 is concerned with the Parish Priest, being “that priest who is properly and lawfully appointed and confirmed by the Bishop of America and Canada”. The Parish Priest is “in charge of the Parish and the Parish Temple”. Under Article 44, the Community may not dismiss or replace the Parish Priest without the knowledge and consent of the Diocesan Bishop.

40 Article 47 sets the quarterly financial contribution of each member of the Community. Article 48, to which significance is attached by the appellants, is as follows:

“Art.48. Other than regular members, honorary members also exist, which are elected by the Managing Committee and the General Meeting. Members known as BENEFACTORS who pay five pounds sterling once and for all, GREAT BENEFACTORS, who make a single payment of fifteen pounds sterling.
All the above categories of members need not be regular members of the Community, nor indeed adherents to the Serbian Orthodox Faith.”

41 Article 49 deals with the election of alternates for certain office holders. Article 50 is concerned with dissolution of the Community.

42 The Community is thus seen to be a group of adherents of the Serbian Orthodox Church having as their spiritual leader a priest of that church appointed by the bishop of the diocese of which the Community forms part. The existence and functions of the Community are referable to the wider Serbian Orthodox Church and ultimately to the Patriarchate at Belgrade. The Community exists under the auspices of, and as part of, that episcopal hierarchical church and “falls under the jurisdiction of” what is now the Diocese of Australia and New Zealand.

The “excommunications”

43 It is necessary to refer next to the status of the three appellants and Jovan Jamaraz within the Serbian Orthodox Church. In 1998, they became parties to proceedings instituted against them in the Diocesan Ecclesiastical Court of the Serbian Orthodox Church of Australia and New Zealand. Evidence about the canonical basis for the establishment of the court was given by Father Popovic in his affidavit of 24 April 2002, he being the secretary of the Diocese and its Ecclesiastical Judicial Prosecutor. Father Popovic’s affidavit refers to charges laid by him against those four persons (as well as others) arising out of events within and concerning the Community. The proceedings were conducted in accordance with the Laws and Procedures for Ecclesiastical Courts of the Serbian Orthodox Church, also apparently entitled “Penal By-laws”, a copy of which in English marked “Belgrade, 1961” and “Reprinted from ‘Glasnik’, the official gazette of the Serbian Orthodox Church, No 6 of 1961” was exhibited to Father Popovic’s affidavit.

44 Father Popovic testified to the adverse findings made by the ecclesiastical court in respect of the four persons in question, the sentences imposed, the Bishop’s subsequent reduction of the sentences and the eventual reinstatement of the original sentences. The English translation of the instrument recording reinstatement refers to the:

“… earlier judgment of the 23rd September 1998 by which the above named persons are

· Penalised by excommunication from the Church Community for a period of 5 years and

· Expulsion from membership of the First Serbian Orthodox Church School Community St Sava, Warriewood-Mona Vale for a period of 10 years, valid as of the initial judgment.”

45 The original sentence, thus reinstated, in respect of Maksim Radmanovich (the first appellant), Drago Mijakovac (the second appellant) and Jovan Jamaraz was that they were:

“… penalised with: withholding from the holy mystery of communion; expelled from communal prayer with believers; banned from receiving funeral services; stripping of all church serving degrees; stripped of serving church authorities and membership of church bodies, institutions and choirs and other religious organisations; stripping of the duty of church warden and stripping of the honour of kum-host at the church feastday and other festivities, 5 years and the loss of the right to Membership in First SCO ‘St Sava’ and all SCOs of this Diocese 10 years.”

46 The sentence imposed upon Stevan Dobrich (the third appellant), with others, was they were:

“… penalised with: withholding from the holy mystery of communion; expelled from communal prayer with believers; banned from receiving funeral services; stripping of all church serving degrees; stripped of serving church authorities and membership of church bodies, institutions and choirs and other religious organisation; stripping of the duty of church warden and stripping of the honour of kum-host at the church feastday and other festivities, 3 years and the loss of the right to membership in First SCO ‘St Sava’ and all SCOs of this Diocese 6 years.”

47 Having regard to article 58 of the Penal By-Laws (to be examined in some detail presently), these sentences are, in Master McLaughlin’s judgment, referred to compendiously as “excommunication”.

The Master’s decision

48 Master McLaughlin held that a person who was a member of the Community but who was later excommunicated thereupon ceased to be a member of the Community (paragraph 35 of the judgment). The basis for this was stated in paragraphs 33 and 34:

“33 If it can be established that by virtue of excommunication a person ceases to be a member of the Serbian Orthodox Church (described in Article 4 as ‘St. Sava's Orthodox Church’), then it seems to me that such person has ceased to be a member of the Community. An analogy which comes to mind would be the situation where someone who was accepted as a member of the Community whilst a member of the Orthodox Church, later chose to convert to some other religion (be it Christian or non-Christian), then that person could no longer be described as a member of the Serbian Orthodox Church. Membership of the Community seems to me to require a continuity in the status of membership of the Church.

34 It was observed, however, on behalf of the Plaintiffs that there is no provision in the Rules that has the effect of terminating a member's membership in the event of that person being excommunicated. That is true. Nevertheless, it is not the bare fact of excommunication which, in my conclusion, has the result of causing the person to cease to be a member of the Community; it is the fact that an automatic consequence of the excommunication is that the person ceases to be a member of the Serbian Orthodox Church. It is implicit in Article 4 of the 1950 Rules that continuing membership of the Church is essential to membership of the Community.”

49 This conclusion with respect to article 4 was sufficient to dispose of the question before the Master concerning the excommunicated persons. He proceeded, nevertheless, to consider further submissions based on article 6. In doing so, he noted (at paragraph 38) that it had not been submitted that the fact of excommunication should not be treated as constituting proof that the excommunicated person was active against the Church, the Diocese and the Orthodox religion. There was thus no contention that the persons concerned were not within article 6.3 of the 1950 rules. The sole question was whether a person already admitted to and holding membership of the Community who, by reason of subsequent events, became a person of the kind described in article 6.3 thereby ceased to be a member of the Community by operation of article 6.

50 After referring to Faramus v Film Artistes’ Association [1963] 2 QB 527 (and, on appeal to the House of Lords, [1964] AC 950), Woodford v Smith [1970] 1 WLR 806 and Crumblin v Kerr (1987) 72 ALR 461, Master McLaughlin said:

“42. In my conclusion, and consistently with the foregoing judicial decisions, the use of the phrase "ineligible for membership" in Article 6 has the effect of precluding the person from membership. That is, so long as the person comes within one or more of the three categories set forth in Article 6, the person cannot validly be a member of the Community. In my conclusion, the fact of excommunication brings the person so excommunicated within the description contained in Article 6.3, and, in consequence, that person thereupon is precluded from membership. I regard the provisions of Article 6 as being peremptory in their operation and effect.”

51 A further submission was then dealt with:

“43. In this regard the Plaintiffs attempt to draw a distinction between, on the one hand, persons who are not members and apply to become members of the Community, and, on the other hand, persons who are already members of the Community. In regard to the former the Plaintiffs accepted that the effect of excommunication would, in the light of Article 6.3, preclude those persons from becoming members of the Community, but the Plaintiffs submit that in the case of persons who were already members of the Community the fact of excommunication did not have that automatic and peremptory effect.
44. I do not agree with that submission. For the reasons which I have outlined, it is my conclusion that the fact of excommunication automatically, and without more, results in the person excommunicated being ineligible for membership and, in consequence, automatically ceasing to be a member. (See Faramus , at 551-552 per Diplock LJ (Court of Appeal).)”

Appellants’ submissions

52 Mr Colyer submitted, on behalf of the appellants, that the decision of Master McLaughlin, as to both article 4 and article 6, is the first decision in the common law world to the effect that a provision in the rules of an unincorporated association dealing with ineligibility for membership can operate not only to preclude admission but also to effect automatic exclusion. Such a construction, it is said, fails to recognise the full context of the 1950 rules. In particular, it fails to recognise the existence of a power of expulsion manifested by article 5.

53 In relation to article 4, the appellants say that the Master has given the word “only” a force and effect it does not have. To give that word an exclusionary effect is said to be impermissible since exclusion ought to be and generally is something with which the rules of an association deal expressly, not by implication. This submission was reinforced by reference to article 48 which recognises the existence of honorary members of the Community who “need not be regular members of the Community, nor indeed adherents to the Serbian Orthodox Faith”. This, it is said, puts paid once and for all to any argument that non-membership of the Serbian Orthodox Church is fundamentally inconsistent with membership of the Community.

54 The appellants’ submission in relation to article 6 is that the exclusionary categories are relevant only to admission to membership and, to the extent that they envisage certain characteristics or failings being proved, they are referring to a process of decision making to be undertaken by the managing committee when it considers an application for admission. Furthermore and as a matter of construction, the words “ineligible for membership” say nothing about the status or position of an existing member, being concerned solely with admission to membership.

55 Mr Colyer emphasised that article 6 does not say that if a person already a member of the Community is proved to be of a character referred to in article 6.2, 6.3 or 6.4, the person ceases without more to be a member. It is wrong, in his submission, to give the words “ineligible for membership” such a peremptory effect. To the extent that, at paragraph 44 of his judgment, Master McLaughlin supported the contrary construction by reference to what was said in Faramus by Diplock LJ at 551-552, the appellants’ submission is that the approach there manifested is a reflection of the words “or retain” in the phrase, “No person [within a particular category] shall be eligible for or retain membership in the association”. The excluding or expelling words are, “No person … shall retain membership”; and the words, “No person … shall be eligible for … membership” simply have nothing to do with a case where an existing member, duly admitted, afterwards falls into the class of disqualified persons.

56 Towards the end of the hearing before me, Mr Colyer sought leave to expand the appeal to enable him to argue that Master McLaughlin erred in viewing the particular form of excommunication to which the four individuals were subjected as having caused them to cease being “members of St Sava’s Orthodox Church” as referred to in article 4. I shall return to that matter.

Respondents’ submissions

57 The respondents say that the Master’s decision on both matters of substance is correct and should stand. The submissions made on their behalf serve to reinforce matters with which the Master dealt and to emphasise the correctness of his conclusions in relation to them.

The nature of the appeal

58 In approaching the Master’s decisions and the competing submissions in relation to them, I remind myself of the nature of the appeal and the limits upon the functions of a judge in reviewing a decision of a master on appeal. These matters are dealt with in Do Carmo v Ford Excavations Pty Ltd [1980] 1 NSWLR 409 which has been cited and approved on many occasions. The relevant principles are sufficiently stated by quoting from the headnote in the New South Law Reports:

“Under the Supreme Court Act , 1970, ss 75A, 118(5) and the Supreme Court Rules , Pt 60, rr 9, 10, 11, 12, 13, 14, 15 the master is the Court itself. An appeal from the master to a single judge is not a retrial in any sense, it is an appeal. Upon the appeal, the normal and usual principles as to the review of findings of fact or exercises of discretion are applicable. On such an appeal, if no fresh evidence is called to warrant a departure from a master's primary findings of fact those findings of fact are binding on the court hearing the appeal unless those findings, or the inferences drawn from them, are so flawed as to attract the approach taken in Warren v Coombes (1979) 53 ALJR 293. In relation to the exercise of a discretion by a master the judge on appeal is bound to approach the matter in the same way as the Court of Appeal would examine the exercise of a discretion by a judge, ie in the manner set out in House v The King (1936) 55 CLR499, at pp 504, 505.”

59 In Warren v Coombes (1979) 42 CLR 531, it was observed by Gibbs ACJ, Jacobs and Murphy JJ that an appellate tribunal is in as good a position as the trial judge to decide on the proper inference to be drawn from facts that are either undisputed or established by the trial judge’s findings.

60 In the course of submissions, reference was made to the decision of the High Court in Cameron v Hogan (1934) 51 CLR 358 and the principle that questions concerning membership of voluntary associations and the exclusion of members are not justiciable unless the complaining member has under the body’s rules some civil right of a proprietary nature. I mention this only so that I may make it plain that I do not consider any such lack of justiciability to be a factor in this appeal. The matter now before the court does concern the rights of persons to be recognised as members of a voluntary association and the interpretation of the association’s rules as to membership. But the appeal, like the decision of the Master, has its origin in the orders made by Young CJ in Eq in a suit concerned with the question whether particular property is trust property and making provision for ascertaining the persons who are the members of the group recognised by the orders as having rights referable to the trust property. The issues are therefore properly the province of legal proceedings.

The issues on appeal – article 6

61 I shall deal first with the submissions made on appeal as to the construction of article 6. I begin by saying that, in the context of rules of an association dealing with membership of the association, the words “ineligible for membership” must be taken to refer to lack of qualification, as distinct from mere lack of suitability. In Faramus v Film Artistes’ Association (above), the word “eligible” (of which “ineligible” is the converse) was said to have two possible meanings – either “suitable” (as in the case of an “eligible bachelor”) or “qualified” in the sense of legally qualified. That case, like this, involved membership of an association. Both the majority in the Court of Appeal (Upjohn and Diplock LJJ, Lord Denning MR dissenting) and all five members of the House of Lords (Lord Reid, Lord Evershed, Lord Hodson, Lord Devlin and Lord Pearce) proceeded on the footing that a rule specifying a class of person not “eligible for” membership was concerned with the identification of persons not “legally qualified”, in terms of the rules, to be members. The descriptions of the classes dealt with by article 6 of the 1950 rules seem to me to leave no room for the view that mere suitability is in question: the classes refer to persons who may be taken to be of a character incompatible with membership of the Community. It is for that reason that, in the particular context, I consider the rule to be concerned with identifying persons intended to be excluded from membership and therefore equate “ineligible for membership” with “not qualified for membership” or “not permitted to be members”.

62 Because of the overriding importance of context, it is not particularly helpful to look at decided cases dealing with analogous provisions in the rules of other associations or bodies. The limited value of such cases may be illustrated by a brief consideration of three of them. Re Anglo-Moravian Hungarian Junction Railway Co (Forbes’ case) (1873) LR 8 Ch App 769 concerned a provision of a company’s articles (clause 57) as follows:

“Every member holding not less than fifty shares shall be eligible as a director, provided all calls made on all his shares shall have been paid.”

The question whether a person named in the articles as one of the original directors who never held fifty shares was in truth a director was answered in the affirmative. Lord Selborne LC saw clause 57 as confined to persons in future proposed for election, even though the operative words were “eligible as” rather than “eligible to be elected” or “eligible to become”:

“But I am of opinion that, according to the strict construction of the articles, he was not required to take any shares as a qualification at all. The 57th clause of the articles of association cannot mean that those who are already appointed directors should take a qualification. The word ‘eligible’ must mean capable of being elected at some future election; and Stock’s Case (4 DJ&S 426) is a direct authority that such a clause does not impose the duty of obtaining a qualification on a person appointed by the articles.”

63 The provision in issue in Dawson v African Consolidated Land and Trading Co [1898] 1 Ch 6 was:

“No person other than the first directors shall be qualified to be a director who is not the holder of shares of the company of the nominal value of 200 pounds”.

Another provision (article 114) validated acts of the directors notwithstanding subsequent discovery that “any of them were disqualified”. One director (not being an original director) transferred all his shares but continued to act as a director. Chitty LJ dealt with that situation as follows:

“There was no defect in the original appointment of Nielsen: the defect was that he had become disqualified. It was argued that the words ‘were disqualified’ in art. 114 refer only to want of qualification at the time of appointment; but the words are not ‘were non-qualified at the time of appointment’, but ‘were disqualified’, which plainly include a subsequent loss of the qualification which is required in order to enable a man to act as a director. That is exactly within the words of the article, and is one of those defects, irregularities, or whatever else one ought to call them, which are remedied by the article.”

64 Re Conciliation and Arbitration Act 1904; Ex parte Sims (unreported, FCA, J B Sweeney J, 16 October 1980) concerned participation in a union election by one Roberts who was alleged to be ineligible because he was no longer employed in the relevant industry. His position was described as follows:

“During the course of the inquiry it was conceded that Mr. Roberts had been eligible for membership at the time he joined the Institute and that he had not resigned subsequently. The rules of the Institute contain no provisions entitling the Institute or a branch to terminate the membership of a person who has ceased to be eligible for membership within the terms of the rules.
Regulation 115 of the Act provides that the rules shall provide the terms when and on which persons shall become or ceased to be members.”

The court then referred to the rules of the organisation which, so far as relevant, did not go beyond allowing a member to resign his membership if he ceased to be employed in or in connection with the relevant industry. The judgment continued:

“There having been no action taken under the rules and indeed none possible under the present rules to terminate Mr Roberts’ membership, I am of opinion that he, having been eligible when he joined, remains a member until he resigns or is properly excluded from membership under the rules. He does not cease to be a member if he ceases by virtue of his employment to be eligible within the conditions of eligibility of the Association.”

65 I do not think that any conclusions of value for present purposes can be drawn from these cases. The provision in Forbes’ case stating who was “eligible as a director” co-existed with a provision dealing with vacation of office, including that the office of a director was vacated if he ceased to hold the qualification. The question whether an eligibility (or ineligibility) clause could, of its own force, operate to exclude someone who was eligible at the time of appointment but subsequently ceased to be within the eligible class did not arise because the matter was expressly addressed by the vacation of office clause. Dawson’s case was concerned with a provision validating acts of disqualified directors and cannot be regarded as providing any guidance on the effect and operation of a provision defining or imposing the qualification. Sims’ case involved a statutory context in which cessation of membership was required to be dealt with explicitly in an organisation’s rules, so that there was no room for any conclusion that membership had ceased unless the cessation could be seen to be the product of a rule dealing squarely with the subject of cessation.

66 I would make the same general comment about Faramus v Film Artistes’ Association (above). The provision there in question was a trade union rule as follows:

“No person who has been convicted in a court of law of a criminal offence (other than a motoring offence not punishable by imprisonment) shall be eligible for or retain membership of the association.”

Dicta in the Faramus case, both in the Court of Appeal and in the House of Lords, to the effect that a person who, after admission, was convicted of a relevant offence thereby ceased to be a member turned, in my view, on the words “or retain”. While the case is useful for the attention it pays to the meaning of “eligible” as discussed earlier, it otherwise cannot be regarded as throwing any light on the construction of article 6 of the 1950 rules. It follows that, to the extent that Master McLaughlin appeared to find support in that case for the result he reached concerning the construction of article 6, I think that he afforded it a significance or weight it does not merit in this particular context.

67 The words at issue in the present case are “ineligible for membership”. As I have said, it was submitted by Mr Colyer that the words refer only to qualification to be admitted to membership and say nothing about a person who, after admission as a member, comes within one of the classes referred to in articles 6.1, 6.2 and 6.3. Such a person, in Mr Colyer’s submission, may be susceptible to expulsion in exercise of the power of expulsion that article 5, by clear implication, acknowledges to reside in the managing committee; but, it is said, unless and until that power is exercised by the committee, the person remains a member of the Community notwithstanding that he or she has come within one of the classes of ineligible persons.

68 I have no doubt that a person already within one of the relevant classes may not validly be admitted to membership. Mr Colyer did not suggest otherwise. But I agree with Master McLaughlin that, as a matter of construction, article 6 has a wider operation that also causes an existing member of the Community who subsequently comes to be within one of the article 6 categories to cease to be a member. At the heart of articles 6.1, 6.2 and 6.3 is a concept of incompatibility to which I have already made brief reference. The Community is a religious group consisting of persons bound together by a shared faith and shared values and, on the findings of Young CJ in Eq, forming part of a particular branch of the greater Orthodox Church, itself a significant constituent of Christendom. That group has adopted as part of its rules certain criteria defining patterns of conduct and ideologies deemed incompatible and inconsistent with its values. Christianity is a religion in which lack of loyalty is equated with active disloyalty: “No man can serve two masters: for either he will hate the one, and love the other; or else he will hold the one, and despise the other. Ye cannot serve God and mammon” (Matthew 6:24).

69 The conduct and ideologies with which articles 6.2, 6.3 and 6.4 are concerned entail a loyalty or commitment to ways of life and value systems deemed incompatible with loyalty and commitment to the Serbian Orthodox Church. The Constitution of the Diocese of Australia and New Zealand describes categories of persons who “cannot be members of” a church school community in terms substantially the same as those referred to in articles 6.2, 6.3 and 6.4 of the 1950 rules. The incompatibility behind articles 6.2, 6.3 and 6.4 is therefore a reflection of the incompatibility recognised at diocesan level.

70 Certain United States constitutional and statutory provisions use phrases such as “not eligible to any office” to ensure that a person holding an office of one kind neither is appointed to nor continues to hold an office deemed by the particular enactment to be of an incompatible kind. A principle of mutual incompatibility has caused such provisions to be construed as having a continuing exclusionary effect that causes a person already holding one office to vacate it if he or she comes to hold an incompatible office. The provisions reflect the notion that conflicting allegiances cannot co-exist in such a way as to allow both offices to be held simultaneously: see, for example, People v Leonard 14 P 853 (1887) and McCoy v Board of Supervisors of Los Angeles County 114 P 2d 569 (1941). A stipulation that a person occupying a conflicting position is “not eligible to” an office therefore refers not only to capacity to be chosen but also to capacity or qualification to continue to serve. The matter was dealt with in Demaree v Scates 32 P 1123 (1893) by Chief Justice Horton of the Supreme Court of Kansas who, after referring to the relevant provisions, said (at p 1125):

“They evidently intended to prohibit a county commissioner, while holding that office, from being a state, county, township, or city officer, and also intended to prohibit him, while holding such office, from being an employer officer, or stockholder in any railroad in which his county owned stock. This was the evil sought to be avoided by the statute. Therefore to construe the word ‘eligible’ as meaning ‘legally qualified to hold office’ seems to us to better subserve the spirit, as well as the letter, of the statute. Even if we should construe ‘eligible’ as ‘electable’, or ‘proper to be chosen’, or ‘capable of being elected’, then, to carry out the purpose of the statute, as already stated, we must also give ‘eligible’ the additional definition of ‘legally qualified’, or ‘capable of holding office’, or of ‘acting as a member’, because it will not comply with the spirit of the statute to rule that if a person is elected county commissioner, although eligible at the time of his election, he may after accept the other offices referred to in the statute, or become connected with a railroad in which the county owns stock.”

71 A doctrine of incompatibility of office also exists in English law. It reflects the notion that acceptance of one office may entail implied surrender or vacation of another already held. The relevant common law principle was described in Chitty, “Prerogatives of the Crown” (1820) at p 87 as follows:

“A person may … lose an office merely by the acceptance of another office incompatible with that he already holds. Offices are incompatible, and cannot be holden together, when, from the nature or extent of the different duties and businesses attached to them, they cannot be properly and effectually executed by the same person; or when they are subordinate to, or interfere with each other, which creates a legal presumption, that they will not be executed with impartiality and honesty. Thus, an admiral commanding on a station loses his right to officiate there, by accepting a command on another station to which he is appointed. A Judge of the Court of Common Pleas loses his office by being appointed, and by becoming a Judge of the Court of King’s Bench … And where the offices are incompatible, the office which the party first held is impliedly surrendered or vacated, by the acceptance of the new situation.”

72 It is noteworthy that, in the United States incompatibility cases, the words “not eligible to”, used in connection with an office, are regarded as effective not only to preclude election or appointment but also to cause an office already held to be lost. This seems to me to indicate the meaning to be given to the words “ineligible for membership” in article 6 of the 1950 rules, at least so far as the criteria in articles 6.2, 6.3 and 6.4 are concerned. It cannot have been intended that a member of the Community was required to be free of the characteristics referred to in those provisions only at the time of admission to membership and might thereafter openly and with impunity embrace ideologies foreign or hostile to the church, at the same time remaining a member of the Community. The 1950 rules set their face firmly against such persons and must be taken to deny the continuity of their membership.

73 United States cases concerning incompatible offices are not the only ones giving insights into the meaning of “not eligible to”. A provision employing the same words arose for consideration in State ex rel Olson v Langer 256 NW 377 (1934), a decision of the Supreme Court of North Dakota. The question for determination in that case was whether a state governor convicted of an offence under federal law had thereby ceased to be a qualified elector of the state so that the following provision of the state constitution applied:

“No person shall be eligible to the office of governor … unless he be a citizen of the United States, and a qualified elector of the state …”.

Burke J, speaking for the majority, said:

“Clearly under this provision, had the Governor not been an elector at the time he took office, he could not have qualified. His predecessor would have been justified in refusing to turn the office over to him. This court in such a case must have held that, under the provisions of section 71, his predecessor would continue to hold office until a properly qualified individual was elected. Thus the constitution requires that to hold the office of Governor a person must be a qualified elector of the state. Accordingly, ceasing to possess the qualifications of an elector constitutes a disability and, upon this event happening, the powers of the office devolve upon the Lieutenant Governor …” [emphasis added]

74 This is another example of a case in which a provision declaring persons of a certain kind not to be “eligible to” an office are recognised not only as precluding initial appointment or election but also as putting an end to established tenure. Just as those words are, as a matter of ordinary meaning, capable of being so understood, so too are the words “are ineligible for membership”.

75 I do not lose sight of the fact that, as Mr Colyer has emphasised, article 5 contemplates, by inference, a power of the managing committee to expel and therefore a function of deciding matters relevant to expulsion. But, given the nature of the Community as an element of an hierarchical church, I do not consider that that jurisdiction, whatever its precise nature and limits may be, in any way denies or impairs the force of article 6 in automatically putting an end to the membership of someone who, being duly eligible, is admitted to membership but later comes within one of the specifications of ineligibility. In referring indirectly to decision making (as it does by the words “proven to be” and “proved to be”), article 6 cannot, in my view, be seen as having solely in contemplation some unelaborated judicial function of the managing committee of the Community. Adherents of the church live under a superior church discipline and church law. That jurisdiction was recognised in the 1950 rules from inception. The wider church of which the Community forms part has judicial organs. The 1950 rules must be taken to contemplate that decisions of those judicial organs will, of their own force, have meaning and consequences within the confines of the Community and for the purposes of its rules without re-assessment of merits or endorsement at the local level.

76 Each of the four persons now in question was, by decision of a church court, exiled from ecclesiastical society and the ordinary relations that pertain among members of that society. Although baptised, each was excluded from the communion and fellowship of the church and from membership of its institutions. It was not contested before Master McLaughlin that that was sufficient to bring each such person within the class described in article 6.3 of the 1950 rules. To say that the rules nevertheless secure for the person continuing membership of the Community unless and until its managing committee has made a decision whether banishment from the communion of the Serbian Orthodox Church warrants expulsion from the church community of Warriewood-Mona Vale is, to my mind, to deny what, in the particular context, is the obvious intention and effect of the words “ineligible for membership” in article 6. There exists such an incompatibility between the patterns of conduct and ideologies mentioned in articles 6.2, 6.3 and 6.4 and membership of the Community that proved adherence to any such pattern of conduct or ideology of itself and without more puts an end to such membership. The purpose of those articles is to prevent persons duly proved by judicial processes of or recognised by the church to be adherents to such patterns of conduct or ideologies from being members of the Community. It would be subversive of that purpose to regard the words “ineligible for membership” as operating once and for all at the time of application for admission, rather than having an ongoing exclusionary effect.

77 In my judgment, Master McLaughlin was correct in his decision that, upon and after becoming subject to the sentence of the church court, each of the persons concerned was, by force of article 6 of the 1950 rules, excluded from membership of the Community.

The issues on appeal – article 4

78 I turn now to article 4 of the 1950 rules and the question whether, having regard to the provisions of that article, the sentence of the church court upon each of the four relevant individuals gave rise automatically to cessation of membership of the Community. Article 4 purports to say who the members of the Community are. It refers to persons who exhibit two characteristics: first, membership of St Sava’s Orthodox Church (which, as I have said, is synonymous with the Serbian Orthodox Church); and, second, voluntary acceptance of duties and obligations set out by the 1950 rules with consequent right to participate in the activities of the Community. An important rider to this is indicated by article 5, namely, that the admission process for which that article makes provision must have been completed and, by implication, there must have been no expulsion as envisaged by article 5.

79 Article 4 has an ambulatory operation. It identifies the members of the Community from time to time. Acceptance of the duties and obligations arising from the rules (with concomitant rights to participate in the Community’s activities) is not alone sufficient. Persons who, for the time being, are within that class do not satisfy the rule 4 description. They must also be “members of the Serbian Orthodox Church”. Master McLaughlin’s decision proceeded on the basis that the four persons subject to the sentence of the church court were not “members of St Sava’s Orthodox Church”, making it clear that he saw the sentences as having had the effect of depriving them of membership.

80 The concept of “membership” of the Serbian Orthodox Church does not appear to have been the subject of submissions before Master McLaughlin. In general concept, a person becomes a “member” of the Christian Church by baptism and that status is ongoing and permanent. Continued enjoyment of the communion and fellowship of a church may, however, be suspended or terminated by human processes. According to article 58 of the Penal By-Laws of the Serbian Orthodox Church to which I have already referred, the penalty of “excommunication” may be either “for a certain term” of not less than three nor more than ten years or “final excommunication from the Church community by Anathema”. Mr Colyer submitted (or sought to submit) that only the second form of excommunication could be regarded as removing membership of the church, with the result that, even if Master McLaughlin’s approach to the construction of article 4 was right, there was no termination of membership of the church from which any automatic termination of membership of the Community could proceed.

81 I say that Mr Colyer sought to make this submission since he conceded that it went beyond the grounds of appeal delineated by the notice of appeal. That being so, he needs leave to pursue it and it was for that reason that he made an oral application, near the end of the hearing for such leave. Given that the submission is one that flows naturally from the issues aired upon the appeal, it is appropriate that it be addressed and that leave be given as sought.

82 At the heart of Mr Colyer’s submission is the proposition that, according to the Penal By-Laws themselves, the sentence passed upon the four relevant persons did not deprive them of the status of “members” of the Serbian Orthodox Church since, in terms of those By-Laws, the sentence amounted to no more than the suspension of certain rights, privileges and duties for a term of years. It is necessary at this point to set out article 58 of the Penal By-Laws in full:

“1) Dismissal from a Monastic Order is for life.

2) The penalty of temporary suspension of certain rights and honours in the Church includes:

a) exclusion from the holy sacrament of communion;
b) exclusion from the communal prayer with the faithful;
c) prohibition of the funeral service;
d) exclusion from the Church service degrees of Hypodeacon, Reader, Chanter;
e) exclusion from service with Church authorities, and membership of Church bodies, institutions and choirs as well as other religious organisations;
f) exclusion from the duties of Church trustees;
g) exclusion from the right to a dedicated chair in the temple, the honour of Godfather-Paterfamilias at the Church Patron-Saint Day and other honours.
The penalty of excommunication from the Church community for a certain term lasts not less than three and no more than ten years. Should such an excommunicate become terminally ill and sincerely repents, the Bishop may pardon him.
The penalty of final excommunication from the Church community by Anathema, excludes the excommunicated person from all rights and privileges and all duties and obligations in the Church.
In the case of members of a Monastic Order, excommunication from the Church community brings about dismissal from the Monastic Order.
In the case of the other faithful every penalty for a Church infringement implies a suspension of rights to membership in the Church bodies during the duration of the penalty.”

83 Mr Glacken said that evidence would be needed as to the meaning and effect of the different kinds of sentences if there were to be any attempt to argue that the particular sentences in this case did not entail loss of church membership. I disagree. The terms of article 58 and of the sentences themselves are in evidence. They seem to me quite susceptible of examination and analysis leading to a reliable conclusion as to the effect of the sentences upon church membership.

84 Article 58 spells out in unmistakable terms the consequences of “excommunication from the Church community by Anathema” (that is, by a rite of special solemnity). Excommunication of that kind “excludes the excommunicated person from all rights and privileges and all duties and obligations in the Church”. It is, in lay terms, expulsion once and for all, entailing termination of membership. The alternative sanction provided for in article 58 is “excommunication from the Church community for a certain term”. That penalty, according to article 58, “implies a suspension of rights to membership in the Church bodies during the duration of the penalty”. There is, in that case, no termination of membership, merely a suspension of rights of membership for the designated period.

85 There is, of course, a sharp and well-recognised distinction between termination of a person’s membership of a body and suspension of (or from) membership. Suspension for a period involves for the person concerned inability to assert or enjoy the rights and privileges of membership during that period but automatic reinstatement of them upon the expiration of the term. Expulsion from membership, by contrast, means that the membership (together with the rights and privileges it carries) is extinguished and ceases to exist. The distinction is referred to in the judgment of Taylor J in Williams v Hursey (1959) 103 CLR 30 at 101-102 and noticed in cases such as Hills v Higgins (1982) 61 FLR 131; Navarro v Spanish-Australian Club of Canberra (1987) 87 FLR 390 and Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421.

86 The sentences in the present case were of the kind contemplated by the parts of article 58 of the Penal By-Laws dealing with excommunication for a period. During that period, those rights specified in the sentence were suspended and could not be asserted or exercised by the affected person. Upon expiration of the sentence, however, the person’s rights are restored to him without any act on his part or on the part of the church hierarchy. Such a person’s “membership” of the church cannot be said to be at an end. It continues in a severely truncated or reversionary form and consists of no more than the entitlement to automatic restoration of rights and privileges at the end of the specified term. At that point, the person is again able to assert the full rights to which he is reinstated upon fruition of the entitlement to which I have referred.

87 In a technical sense, therefore, the four persons to whom this appeal relates remained members of the Serbian Orthodox Church despite the sentences of excommunication for a term of years to which they were subjected. But it does not follow, in my view, that they were members of the church as contemplated by article 4 of the 1950 rules. It is true that article refers to “members” of the church without qualification. But the word “members” must take its meaning from the context in which it is found. The article identifies those “members” of the Serbian Orthodox Church who are also members of the Community. It accordingly refers to persons whose membership of the church is of such a kind that they are qualified and permitted under church law to perform the duties and obligations set out in the Community’s rules and to exercise the right to participate in the Community’s activities. In other words, it is implicit in article 4 that the church members with whom it is concerned are those in good standing within the church, free from canon law disabilities and deprivations making them unable to function as members of the Community. Article 4 simply does not contemplate that persons who, although technically still members of the church, are for the time being exiled from its society and excluded from participation in its sacraments and activities will be members of the Community. Those persons are not, for the purposes of article 4, to be regarded as “members of St Sava’s Orthodox Church”.

88 It remains to consider whether, as Master McLaughlin held, article 4 operates in such a way as to exclude automatically from membership of the Community any existing member who ceases to be a “member” of the Serbian Orthodox Church in the sense to which I have just referred. In my opinion, article 4 must be construed in that way. I am satisfied that, as a matter of plain words, “only” gives article 4 an exclusionary operation. The effect of the article is to make full and unfettered membership of the church an ongoing prerequisite to continuation of membership of the Community. It therefore excludes from Community membership persons not enjoying such church membership. By its rules and, as Young CJ in Eq found, also by virtue of its actions over the half-century since its foundation, the Community is a part of the hierarchical Serbian Orthodox Church. It does not exist and operate in an ecclesiastical vacuum. Nor does it profess to be self-governing, although, within the framework of the church, there is a large measure of localised decision-making. The Community is a body of Serbian Orthodox faithful amenable to canon law. Its rules cannot be intended to maintain in office persons who are by that law excluded from office. Article 4 must therefore be accepted as having the operation ascribed to it by the decision of Master McLaughlin.

89 I have already referred briefly to the appellants’ submission that article 48 of the 1950 rules countenances retention of membership of the Community by persons who are not members of the Serbian Orthodox Church. It will be recalled that that article provides for the admission of “honorary members” and “[m]embers known as BENEFACTORS … [and] … GREAT BENEFACTORS …”. It is provided that they “need not be regular members of the Community, nor indeed adherents to the Serbian Orthodox Church”. Nothing useful to the resolution of the present controversy can be extracted from article 48. It is not a provision concerned with membership of the Community in the sense relevant to this appeal. This is shown by its opening words: “Other than regular members …”. Article 48 deals with the conferring of a mark of distinction or honour. Although it uses the words “honorary members” and refers to the two classes of “benefactors” as “members”, the concept it embodies is one of special recognition that is distinguished from membership as such and might, in other contexts, be designated by a courtesy title such as “honorary fellow” or “life governor”.

Conclusion on appeal

90 I am satisfied that the conclusions reached by Master McLaughlin on the operation of articles 4 and 6 of the 1950 rules in relation to the four relevant persons were correct, even though I do, in two respects, differ from the Master. In my view, Faramus v Film Artistes’ Association does not support the proposition for which the Master cited it as authority at paragraph 44 of his judgment, although I consider the proposition itself to be correct. Nor do I think that the Master was right to conclude that the particular form of excommunication to which the relevant persons were subjected brought about termination or cessation of church membership; but, given the opinion I have formed as to the meaning of “members of St Sava’s Orthodox Church” in article 4, my ultimate conclusion with respect to that article corresponds with that of the Master. It follows that the differences between Master McLaughlin’s analysis and my own do not affect the overall result.

91 The appeal initiated by the notice of appeal filed on 29 November 2002 must be dismissed.

Disposition

92 I make the following declaration and orders:

1. Declare that the appeal to the court constituted by a judge initiated by notice of appeal filed by the present appellants on 29 November 2002 is competent.

2. Order that the time for filing that notice of appeal be extended nunc pro tunc up to and including 29 November 2002.

3. Order that the appeal be dismissed.

93 As to costs, the appellants have been successful in establishing the competency of the appeal and in obtaining an extension of time but have otherwise failed. The application regarding competency of the appeal was not opposed. I am disposed to think that the appropriate outcome in relation to the costs of that application is that there be no order as to costs and that each side bear its own costs. The application for an extension of time was opposed. My disposition is therefore to think that the appellants should have the respondents pay their costs of that application but on the basis that, to the extent that it was necessary to canvass on the extension of time application the merits of the appeal itself, the costs thereof are not regarded as costs of the application for extension of time but as costs of the appeal. In relation to the appeal itself, there is no apparent reason why the appellants should not pay the respondents’ costs.

94 The parties must file by delivery to my Associate within 21 days brief written submissions on costs, following which I shall decide whether to list the proceedings for oral argument.

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Last Modified: 05/05/2003