Solowij & Ors v the Parish of St Michael & Ors No. Scciv-00-649

SOLOWIJ & ORS v THE PARISH OF ST MICHAEL & ORS
[2002] SASC 408
WILLIAMS J
SUMMARY

The plaintiffs who are members of the Parish of St Michael of the Ukrainian Autocephalic Orthodox Church in Adelaide complain that they have been oppressed by the actions of a Parish Action Committee acting under the authority of a resolution of a Parish meeting held on 5 March 2000.
On 8 March 2000 the personal defendants (comprising the members of the Action Committee and the Chairman of the Parish Council) wrote to Patriarch Filaret of the Kyiv Patriarchate entreating His Holiness to receive the Parish under his protection; concurrently the personal defendants gave notice to Metropolitan Constantine of South Bound Brook, New Jersey, USA that the Parish was leaving his care and jurisdiction. A schism has developed as to which of these leaders the Parish (as part of the Australian and New Zealand Diocese of the Church) should adhere.
In my opinion the issue (at least in the form in which it has been raised) concerns a spiritual or religious question which is not justiciable by the Court; the defendants’ conduct is not of a nature in respect of which the Court should give relief.
INDEX  Par Nos
1      The nature of the proceedings   4
2      The schism   12
3      The organisation of the Orthodox Church   37
4      Constitution of Ukrainian Autocephalic Orthodox Church       51
5      The Constitution of the Diocese in Australia and
                  New Zealand   57
6      The Constitution of the Parish   61
7      Historical - The seeds of the dispute   63
8      The further development of the dispute   90
9      The oral evidence  100
10     The Orthodox Churches in Ukraine and abroad  111
11     The ambit of the dispute to which necessary parties                 127
                  have been joined
12     Resolution of the dispute  136
13     A non justiciable issue  146

1      The nature of the proceedings
The plaintiffs as members of the defendant association (The Parish of St Michael) claim to have been oppressed by the actions of the association in general meeting. The defendant Pradun is the Chairman of the Parish Council; the other defendants Mr Shumsky, Mrs Kowalski (recently deceased) and Mr Tkachuk comprise an Action Committee who have been authorised by an extraordinary general meeting of parishioners on 5 March 2000 to take steps to bring the Parish under the spiritual care of the Kyiv Patriarchate of the Ukrainian Orthodox Church. On 8 March 2000 the personal defendants wrote to Patriarch Filaret (of Kyiv Patriarchate) entreating His Holiness to receive the Parish under his protection; concurrently the Parish gave notice to Metropolitan Constantine (of New Jersey USA) of the withdrawal of the Parish of St Michael from his care and jurisdiction.
The action of the defendants flies in the face of a resolution of a Synod at which the Diocese (of which the Parish forms a part) was represented. That resolution dated September 1999 confirmed that the Church remained an independent Church under the leadership of Metropolitan Constantine “until the union of all Ukrainian Orthodox Churches in Ukraine will become a reality”.
The defendants put in issue the status of the 1999 resolution; they plead the effect of a Request in the form of a formal written address by the Diocesan Synod in December 1991 which was accepted and implemented by a Synod of Bishops in Kyiv in April 1992 so as to bring the Diocese under the direct authority of Kyiv. As further justification for their actions the defendants complain as to an agreement made between Metropolitan Constantine and the Ecumenical Patriarch (of Constantinople) for the exercise of ecclesiastic jurisdiction by a foreign prelate in a way which they contend is inconsistent with the independent nature of an autocephalic organisation.
The Parish of St Michael of the Ukrainian Autocephalic Orthodox Church in Adelaide South Australia is incorporated under the Associations Incorporation Act. In terms of its rules the Parish is a constituent part of the Australian and New Zealand Diocese of the Ukrainian Autocephalic Orthodox Church in Diaspora (ie outside Ukraine). The Church of which the Diocese forms a part asserts itself to be a continuation of the Orthodox Church in Ukraine which had its origins in the preaching of the Holy Apostle St Andrew. The constitution of the Church declares the Church to be independent of other Orthodox Churches. The name of the Church and the Diocese was altered in 1994 by appending “in Diaspora” to the title.
Upon the petition of the plaintiffs and others the Diocese Consistory on behalf of the UAOC in Diaspora (Diocese of Australia and New Zealand) on 16 April 2000 declared the Executive of the Parish Council and the Action Committee to be in breach of the Parish constitution in acting without the consent of the Governing Authority of the Diocese to “change the jurisdictional status” of the Parish. By letter dated 25 November 2000 the Diocesan Council required the Parish within one month to withdraw the letters of 8 March 2000 and to cease “unconstitutional actions” against the Parish Priest. The dispute between the Parish Council and its Priest Rev Kvasniuk is the subject of correspondence which centres around (a) the Priest’s contention that the Parish Council does not have authority to interfere with the directions of the Priest concerning his ecclesiastical pastoral and teaching duties and (b) the Chairman’s requirement in accordance with a Parish meeting on 16 July 2000 that the Priest should mention in prayer His Holiness the Patriarch of Kyiv and all Rus-Ukraine.
The defendants having failed to withdraw their letters to Constantine and Filaret the plaintiffs have brought these proceedings for declaratory and injunctive relief and to require the matters in issue to be submitted to the Diocesan authority for resolution.
The plaintiffs complain that the defendants’ actions are oppressive in that the plaintiffs’ deeply held religious beliefs are offended by the impugned conduct. The plaintiffs also complain that the actions of the personal defendants exceed the authority contained in the resolutions of 5 March 2000. The plaintiffs also complain about the conduct of the meeting of the Parish on 16 July 2000 and of directions to and treatment of the Parish Priest. The plaintiffs Mr Bondaruk and Mr and Mrs Solowij were expelled from the Parish by resolution of the Parish Council on 20 January 2002 by reason of their participation in a Diocesan Synod in 2001 by invitation but without Parish authority. This decision was confirmed by a general meeting of the Parish on 17 March 2002. However, by letter dated 6 May 2002 the Diocese Consistory notified the Parish Council that these actions had been annulled upon appeal and that Mr Bondaruk and Mr and Mrs Solowij had been reinstated as full Parish members. The plaintiffs rely upon these facts in support of their claim of oppression.
The response dated 27 March 2000 of Patriarch Filaret to the Parish letter of 8 March 2000 was to refer to the events of some years ago whereby (in his view) all Australian Parishes were admitted into the Kyiv Patriarchate; His Holiness asserts that in fact the Parish “belongs” to his church and that the Parish is under his direct subordination. On the other hand Metropolitan Constantine as Primate of UAOC in Diaspora and Archbishop Ioan as Governing Bishop of the Diocese by memorandum dated 7 June 2000 declared the Parish notification (to Filaret and Constantine) to be a violation of the Parish constitution. The division which is apparent within the Parish is therefore reflected in a general way in the response of the Church leaders in Kyiv on the one hand and in the United States and Belgium on the other hand.
2 The Schism
(a) In summary
There is evidence that this dispute has been festering for some years. In part 13 of these reasons I have reached the conclusion that the issue as formulated in this action is not justiciable. Therefore it seems to me that I should do nothing more than identify the issue and the contentions of the parties. To go further than this would require me to exercise a jurisdiction which I do not consider the Court possesses. However, as I have dealt with the matter in the alternative upon the footing that in the exercise of my discretion the matter of complaint should not attract relief from this Court it is necessary that I deal with the facts in sufficient detail in order to justify that conclusion. (There may be a fine line between a refusal of relief as a matter of policy in respect of spiritual issues and the absence of jurisdiction to entertain the topic). In any event as the plaintiffs complain about the conduct of the defendants it is necessary to examine that conduct to see what it entails so as to relate it to the rules of the incorporated association and the application of the Associations Incorporation Act.
The defendants assert that the Diocese was brought under the spiritual and ecclesiastic jurisdiction (or omophorion) of the Patriarch of Kyiv in June 1992, before the incorporation of the defendant Association on 16 December 1992. The defendants contend that steps taken in 1995 by Metropolitan Constantine to bring the Church in Australia and elsewhere for limited spiritual purposes only under the jurisdiction of the Ecumenical Patriarch, Bartholomew Archbishop of Constantinople are beyond power of an organisation which is autocephalic (ie independent and self-governing). This dispute essentially concerns the spiritual allegiance owed by the Parish and the Diocese.
The dispute was probably brought to a head by the contents of a memorandum dated 26 January 2000 to Rev Kvasniuk from the head of the Diocese Consistory (a) reporting to the Parish Council upon telephoned advice from Metropolitan Constantine as Primate as to the appointment of Archbishop Ioan from Belgium to be Governing Bishop of the Diocese of Australia and New Zealand and (b) directing a form of liturgy which acknowledges Metropolitan Constantine and Archbishop Ioan of London and Western Europe the Governing Bishop of the Diocese of Australia and New Zealand UAOC. (The appointment of His Grace Ioan, the Archbishop of London was initiated by a request to Constantine in September 1999 from the Australian delegates to a Synod of the Church in Diaspora).
The defendants assert that the Diocese was properly brought under the spiritual and ecclesiastic jurisdiction of the Patriarchate of Kyiv in 1992 as a result of the decision a Synod of Bishops held with the concurrence of the then Primate Archbishop Mstyslav on 5 June 1992 in Kyiv and acting upon resolutions of the Australasian Diocesan Synod of 27-29 December 1991.
The defendants allege that by memorandum dated 9 November 1992 the Consistory under the hand of the Rev Serdiuk as Chair and Mr V Bushtedt as Secretary promulgated to all Parishes (as well as Clergy and the members of the Diocesan Council) the acceptance of the Diocese into the Kyiv Patriarchy. However there is a dispute as to whether this is the proper construction of this document.
It now appears that Church leaders (particularly those outside Australia) have decided not to recognise the decision made in Kyiv on 5 June 1992.
The effect of the Consistory’s memorandum is at the heart of the dispute. However, the difference which has been generated by refusal of Church leaders to recognise the decision made on 5 June 1992 (and consequentially the status of Patriarch Filaret as Primate) has been compounded by the action of Metropolitan Constantine who was elected in April 1994 as Metropolitan of the UAOC in Diaspora. On 12 December 1994 Archbishop Constantine and the Ecumenical Patriarch (Archbishop Bartholomew) agreed to a document entitled “Points of Agreement” between the Ukrainian Orthodox Church in the USA and the Ecumenical Patriarchate of Constantinople. The agreement provides for the Ukrainian Orthodox Church in the USA to be considered an ecclesiastical entity directly under the omophorion of the Ecumenical Patriarchate. (Omophorion means “jurisdiction” or alternatively “protection”). The canonical head of this entity is the Ecumenical Patriarchate. The agreement provides for the Metropolitan to submit a slate of candidates for the office of Metropolitan and Bishops to the Ecumenical Patriarchate for canonical election. The agreement also provided:
“The Primate of the Ukrainian Orthodox Church in the USA will commemorate the venerable name of His All Holiness. The Ecumenical Patriarch of Constantinople; the eparchial (diocesan) bishops will commemorate the name of the Primate; the reverend clergy will commemorate according to the existing order. Each bishop will bear the title of the city over which he presides, namely: Constantine, Metropolitan in the USA and Archbishop of Chicago, Archbishop Antony of New York and Washington DC, and Bishop Paisy of Minneapolis. To enhance their cooperation and better serve their flock, these hierarchs shall periodically meet in conferences of bishops of the Ukrainian Orthodox Church in the USA presided over by the Metropolitan.”
(“Commemoration” as used in this context is a reference to the Orthodox practice as part of the Order of Service of mentioning the name of a higher functionary so as to honour superior clergy).
This agreement of 12 December 1994 is not expressed to involve the Church in Diaspora (which includes the Australian Diocese) but protocol No 337 issued by the Ecumenical Patriarchate dated 13 March 1995 discloses the following:
“…it is our purpose joyfully to make known …. a decision of our Holy and Sacred Synod, according to which the Ukrainian Orthodox in the Diaspora have been received as a unified ecclesiastical entity in our jurisdiction, under the Most Reverend Metropolitan Constantine of Eirinoupolis (USA); Anatolios of Sozopolis (France); Archbishop Antonios of Israpolis (USA), responsible also for the Ukrainian Orthodox of Oceania, ie the Pacific region; and the Right Reverend Bishops Paisios of Daphnousia (SA); Ieremias of Aspendos (Brazil); and John of Parnasos (Belgium).
Most Holy Church of Constantinople proceeded with this canonical act after the aforementioned appropriately and repeatedly expressed their wishes in the matter, but also after exhaustive and comprehensive study and discussion of their situation. These led ultimately to a providential agreement insuring, as we believe, a firm and substantive step towards the unification and reconciliation of Orthodox brethren heretofore divided, who in that condition suffered the familiar political misadventures of this evil century about to end.
Moreover, given the sacred ties of these brethren, rooted in the distant past, it was natural that they should address themselves to our Most Holy Church of Constantinople, not only as the eldest Church, and therefore duty bound to harmonize Orthodox affairs, but primarily as their ancient Mother Church, from which their forebears received the pure faith of Christ.”
(Bishop John is Bishop Ioan to whom I have already referred).
Upon becoming aware of this material the defendant Mrs Kowalski sought an explanation from the Church hierarchy as to what was going on; it appeared that the agreement extended generally to the Church in Diaspora - an autocephalous body of which Constantine was discharging the function of Primate. By letter dated 15 September 1995 she put the clergy on notice that she was looking for an explanation from Archbishop Anthony (of Washington) who was then acting as guardian Bishop to the Diocese and responsible to Constantine in his New Jersey headquarters. She made the assertion that the opinion or wishes of Parishioners had not been canvassed.
From this point onward parishioners or representatives of St Michael’s Parish have attempted to find out the supposed justification for what prima facie might appear to be significant constitutional irregularities in the ecclesiastical administration. The reaction of the parishioners in pursuing their interests led to a report by the Chairman of the Consistory to a Synod of the Diocese in October 2001 in which he describes the St Michael’s Parish as “the stormiest Parish in the Diocese”; a session of Diocese Council on 24-25 November 2000 had previously undertaken to finance the responsibility of the plaintiffs for the present proceedings.
On 11 August 2000 Mr Pradun on behalf of the Parish and with the authority of an extraordinary General Meeting of the Parish held on 16 July 2000 directed the Parish Priest to mention in prayers “only our one superior the Patriarch of Kyiv and All Rus-Ukraine”. The response of the Priest was to point out that the Parish does not have the right to instruct the Priest for whom he should offer prayers. By letter dated 21 August 2000 Mr Pradun asked the Consistory of the Diocese to remove the Parish Priest. A request by Mr Pradun was made to Archbishop Ioan for the Priest’s removal on 24 November 2000. At about the same time financial sanctions were imposed by the Parish Council upon the Priest and the locks to the Church premises were changed.
The Parish of St Michael was incorporated on 16 December 1992 as a result of the amalgamation of the former Parish of the Holy Angel Michael (originally associated with the Orthodox Church of Canada) and the former Parish of the Holy Pokrova (being a Parish of UAOC). The Dioceses in Australia of UAOC and Orthodox Church of Canada merged on 27 December 1991; the amalgamation of the two Parishes abovementioned was directed by the Diocese Consistory in its circular No 3 dated 9 November 1992. It was in this same circular that Parish Councils were informed of the steps taken to unify the Church in Ukraine (“notwithstanding the constant intrigues of the Moscow Patriarch Aleksei II”) and to secure the admission of the Diocese to the body of the Kyiv Patriarchate. The defendants (who claim to represent the will of the majority of the parishioners voting in general meeting) allege that although the process of amalgamation had been in train for some time it was on the footing of the information in circular No 3 that the new Parish was incorporated. (The minutes of a combined Parishes council meeting held on 15 November 1992 shows that the circular was read to the meeting; the arrangements to amalgamate were already proceeding in order to achieve “the joining of the two brotherly Diocese in Australia into one Diocese UAOC in the bosom of a Ukrainian Patriarchate).
Whilst there is no counterclaim by the defendants for an order modifying the Rules of the Association (see s 61(2) of the Associations Incorporation Act) it is arguable on the defendants’ case that in a fundamental respect the achievement and performance of the compact between the majority of the members of the Association is being frustrated by the actions of non-members (namely the Church hierarchy) in the purported exercise of the powers of the Diocese to which the Parish constitution is subject. However this is not the way in which formally the defence is put forward. The defence raises an issue questioning in the circumstances the authority which Diocese purports to exert; however at the end of the day the will of the majority of an association as to their chosen spiritual adherence is allegedly being denied by a hierarchy which itself acknowledges and asserts a different allegiance in circumstances where the rules of the Association require a common adherence of all. The defendants (claiming to represent the majority of the parishioners of St Michaels) argue that in forming the association they did so in fulfilment of their desire to bring themselves under the spiritual care of an “independent (Autocephalic) Ukrainian Church” with its Primate in Kyiv and separate and apart from the influence of the Moscow Patriarch. On one view they are in the position to argue that their aspirations and expectations are being frustrated by an irregular and undemocratic process; on another view (based on the English ecclesiastical case law) the Church organisation by its very nature is one in which the authority of a minority can prevail so as to frustrate the goals of the local church and deprive it of a remedy.

The Church Court of the Diocese is unable to resolve the difference because the decisions of the Church Court are subject to ratification by the Governing Bishop. However the parties are in disagreement as to whom fulfils this role. Whether or not the issue as presented in this action is justiciable it would appear that the majority of the parishioners may be able to justify a claim for relief (to obtain an alteration of the rules) based on the intolerable situation created by a series of decisions to which they were not a party and which arguably are not consistent with the state of affairs envisaged by Consistory circular 3 dated 9 November 1992 (abovementioned) when amalgamation of the two former Parishes was demanded by the Consistory.
The basic questions were debated at an extraordinary meeting of the Parish held on 3 May 1998. The Rev Serdiuk as Chairman of the Consistory and Mr Bushtedt as its Treasurer attended that meeting together with (inter alia) the Parish Priests.
So far as one can judge from the minutes there appears to be evidence of consensus within the Parish and also within the Consistory as to a common desire to see the Church united under a Patriarchal administration in Kyiv. The minutes provide a useful starting point in recording facts which appear not to be controversial. It appears to be common ground that the situation of Orthodoxy in Ukraine is far from ideal with two Patriarchs - Filaret as Patriarch of Kyiv and all Rus-Ukraine and Dymytriy as Patriarch of UAOC (until his death) alongside each other and with the Russian Patriarch Alexsei of Moscow exercising influence at least through his Metropolitan in Ukraine (Volodymyr Sabadan). Dymytriy was described by Rev Kvasniuk (according to the minutes) as “an elderly man to whom which is a pity no-one pays attention”. Nevertheless it is said that Dymytriy was active in reviving the Church. The report given by Rev Serdiuk suggested that there was then some hope that a solution might be found in forthcoming discussions between Archbishop Anthony (of Washington) on behalf of Constantine with Patriarch Filaret. The preparation of a draft constitution unifying the elements of the Church within the Ukraine was foreshadowed by Mr Bushtedt. Unfortunately there has been no progress and the majority of the Parish of St Michaels want the matter resolved. Dymytriy has now been succeeded by Metropolitan Mefodyi so that an issue for the Church in Ukraine is to accommodate the position of Filaret and Mefodyi in a hierarchical structure if they can be persuaded to work together.
A letter dated 11 July 1995 to the Moscow Patriarch Aleksei and attributed to Patriarch Bartholomew has caused particular tensions; it suggests that those who have been accepted under the omophorion of the Ecumenical Patriarch have been “obliged to declare formally that they would not strive for autocephaly for the Ukrainian Church, not even part of it by the methods of the autocephalists who employ all possible ways/methods…” Mrs Kowalski sought an explanation of this from Archbishop Anthony of Washington during his participation in a session of the Diocesan Council at Strathfield on 11-12 November 1995. The Archbishop’s response was only to question the accuracy of the translation. Mrs Kowalski also asked a question as to what is embraced by the term “to be under the omophorion” (as now relevant) and whether it only meant a eucharistic union. According to the minutes, the Archbishop explained that entering under omophorion “includes the eucharistic and administrative union but the administrative union of a different character”.
This is not the only occasion when the arrangements with the Ecumenical Patriarch were questioned in Australia. On 21 September 1997 there was a verbal exchange in Adelaide between Constantine and Mr Shumsky. A few days later at a meeting of the Australian Synod in Canberra the minutes record an exchange between Archbishop Anthony and a delegate from the Parish of St Afanasius in which Rev Serdiuk intervened. The matter was raised in emotive language. Archbishop Anthony gave a long explanation.
It is against this background that the defendants now assert:
(a)that the Diocese has failed to acknowledge its own spiritual head namely Filaret.
(b)that the subordination of the Bishops to the Ecumenical Patriarch is contrary to the constitution of an autocephalic (or self-governing) Church.
(c)that the affairs of the defendant Parish have not been conducted in an oppressive manner and that the views of the majority of parishioners are properly represented by the defendants in their desire to support the Action Committee.
The plaintiffs on the other hand assert that the defendants (particularly by their correspondence of 8 March 2000) are in breach of clause 3 of the Parish Constitution which requires the written consent of the governing authorities of the Diocese to a change in religious subordination of the Parish. (One need only read the correspondence together with the Parish Constitution to see the strength of this contention). The riposte of the defendants is to refer to the evidence of Rev Serdiuk that the Church hierarchy treat the Church as being under the spiritual jurisdiction of the Ecumenical Patriarch and have therefore betrayed their own constitutional obligation.
(b) The dispute as documented
The defendants’ letter to Archbishop Constantine of 8 March 2000 included the following:
“…We inform you that, in accordance with the resolution of the Extraordinary General Meeting of our parish of the 3^rd of May. 1998 and the Annual General Meeting of the 5^th of March, 2000, members of our parish DO NOT WISH TO BE SUBORDINATED TO THE OMOPHORION (PROTECTION) OF A FOREIGN PATRIARCH AND SIMULTANEOUSLY TO YOU, A METROPOLITAN WHO VOLUNTARILY ACCEPTED THE SUBORDINATION TO A FOREIGN PATRIARCH WHO DEMONSTRATES CONTEMPT FOR OUR OWN CHURCH OF KYIV PATRIARCHATE AND THE PATRIARCH.
THEREFORE, HAVING TAKEN INTO CONSIDERATION THESE UNDESIRABLE AND UNEXPECTED CHANGES, WE DECLARE THAT OUR PARISH IS LEAVING YOUR CARE AND JURISDICTION AND SUBMITS ITSELF TO THE PATRIARCH OF UKRAINE-RUS HIS HOLINESS FILARET HAVING UNITED WITH THE MOTHER CHURCH OF THE UKRAINIAN NATION.
With belief and hope that in the near future you and your bishops, having comprehended the insensibility of signing “the acts of accord”, will renounce them and will return to Mother Church in Ukraine…..”
The defendant’s letter to Patriarch Filaret of 8 March 2000 included the following:
“Feeling in our beings a natural attraction to Our Native Church-Mother in the Goldendomed Sacred Kyiv we, for whom the Will of God decreed to settle in this country, rejoiced with the whole soul when the Lord granted us our state independence and our own Patriarch Mstyslav The First.
At that time our two parishes here united in one church body, in one church, with the belief that the bond with the Church-Mother in Kyiv would be preserved forever. With great sorrow we observed during the past few years as our unwise spiritual leaders here erected and erect a spiritual “brick wall” every time separating us more from our own nation and our own church in Ukraine pleasing with this only the hostile Patriarchs, who have sought always and seek our demise and especially that of our Native Church.
Therefore we, as an incorporated parish, which never signed any undertakings with regard to our spiritual subordination, being guided by our gravitation to the Native Mother-Church in Kyiv, which today is headed by you, we address Your Holiness with love - TO RECEIVE OUR PARISH UNDER YOUR HOLY PROTECTION….”
Archbishop Constantine gave a long explanation at the 14^th Synod of the Australian and New Zealand Diocese 26-27 September 1997. Some extracts from the minutes of his report are as follows:
“…In October 1994 we received an invitation from the Ecumenical Patriarch to come with Archbishop Vsevolod and Bishop Mykola (The Carpatho-Ruthenian Church) to Constantinople, in order to discuss matters which concern us all. After discussions, which lasted three days, we came to the conclusion that the Ecumenical Patriarch and Holy Synod wish sincerely to help Ukraine. We understood that we (our Church) is needed by them, but we also understood that this is to our advantage to have some contact with Constantinople. They proposed to us to make a transition to the omophorion (spiritual protection) of the Ecumenical Patriarch. The answer was simple - we will submit to the spiritual omophorion of the Patriarch of Constantinople, in a similar way as for 40 years has the Bishop of the Ukrainian Orthodox Church in America (a seperate (sic) jurisdiction from the UOC in the USA): nobody has a right to interfere in our internal church matters, our Church remains as it is and you can see that nothing has changed in the last 3 years. We said that we are prepared to take this step but we cannot decide alone, we must have the consent of our Metropolitanate Council, our Synod and the Synod of the Bishops of UAOC in diaspora. Upon our return to America we were in contact with all the bishops in this matter, they understood and agreed. In 1995 I went to Kyiv and had a meeting with Patriarch Volodymyr (Romaniuk), Metropolitan Filaret and Patriarch Dymytriy and their Bishops. They all approved our decision to submit to the omophorion, considering that this was also to their advantage….In November of that year I came to Australia and at the session of the Diocesan Council, the members of the Diocesan Council approved the decision of the Bishops and the Synod of the UOC in the USA.
In 1996 a rumour reached us that in Ukraine there are already 4 jurisdictions. The UAO Church has split, Patriarch Dymytriy has his own parishes and Metropolitan Petro his.
In June 1996 the first conference of Ukrainian Orthodox Bishops took place outside Ukraine (the first after 15 years), at which it was decided to address via a letter to the President of Ukraine with a demand that he should state publicly “that an Independent state must have and (sic) independent Church”, as has been done by the government of Estonia. The President had declined because he was closely connected with the Russian Church in Ukraine. We wrote a letter to 65 bishops: UAOC, UOC-KP, UOC-MP and UOC-PP (Petro Petrus) on the subject of unification. We received a reply only from two - Metropolitan Petro (Petrus) and from one of UOC-MP who wrote that there is no independent Ukraine. Even the hierarchy of the Churches did not reply to our letter.
In June 1996 I had a private meeting with the President of Ukraine in Washington, he came to America for discussions with vice-president Gore. In a conversation with him I declared, that we are contemplating of sending a delegation from the Conference of Bishops to the Forum of Ukrainians in Kyiv in August and are you going to accept it. Certainly, replayed (sic) the President. Delegates were elected: Archbishop Vsevolod, Bishop Yuriy from Canada and Bishop Yeremiya from South America. The President did not wish to meet with our delegation, but through my persistent intervention with the ambassador of Ukraine in America, Dr Shcherbak, and deputies of parliament in Ukraine, such a meeting took place. At the meeting the Bishops demanded that the President should declare publicly “that an Independent state should have and (sic) independent Church”. The President was not pleased with that, but at the Forum of Ukrainians he indeed stated, that in an independent state there should be an independent Church. We spoke in Constantinople and to the whole world, that we will never abandon our brothers and sisters in Ukraine and that the goal of our Orthodox Church is to return to Kyiv when there will be one independent, united Orthodox Church there. And you will not convince us otherwise. We are bishops of this Church, we are responsible for Its fate. You must understand, that they were under the communists for 75 years, and unfortunately, those that came to the so called independent Church were not the best people. Most of them were opportunists, they sought a chance to line their pockets. Metropolitan Petro (Petrus) travels to Constantinople and seeks recognition and again a split. He wanted Patriarch Dymytriy to resign so that he would take his place. And Filaret accepts….”
(The Archbishop also spoke about $3m worth of medicaments by way of aid being delivered to Ukraine from USA Orthodoxy without being properly accounted for. He also explained how large sums of monetary aid were “lost”.)
The defendants complain that they have not been able to get proper information but that must be balanced against this report and explanation.
3 The organisation of the Orthodox Church
This topic (as applied to another church) was reviewed by Mandie J in AG v St John’s Greek Orthodox Community [2000] VSC 12 where His Honour has referred to two works of authority - The Orthodox Church by Timothy Ware (1969) and The Rudder by D Cummings; the latter contains (with editorial commentary) one of the sources of Ecclesiastical Law for Orthodox Christians. It is necessary to refer to this latter publication because it contains the Sacred Canons which together with the Holy Scriptures are incorporated by reference into the internal regulations and constitution of the Diocese as at 1991 and thereafter. The plaintiffs’ counsel relied upon these works of reference and each side made available to me a history of Ukraine. A comparison of the two history books (in light of evidence in this case) demonstrated to me that I should have no regard to the text books for any historical material with respect to events occurring in Ukraine or Russia since the sovereignty of Ukraine was re-established in 1991. In matters of recent political and social history (with which this case is entangled) some of the sources relied upon by the authors are suspect and reflect clear differences in sympathies.
The full title of Cuming’s work is “The Rudder of the Metaphorical Ship of the One Holy and Apostolic Church of the Orthodox Christians”. It was first published in the year 1800 and translated into English in 1908; according to the Preface the Catholic Church of Christ is symbolised as a ship in which (inter alia) the keel represents the Orthodox faith, the beams and planks represent the dogmas and traditions of the faith and the mast represents the Cross; “its rudder whereby it is steered to the heavenly harbour is this handbook of sacred Canons.” Although The Rudder claims to “explain the canons in the vernacular by way of rendering them more intelligible to the less educated” I would be extremely cautious in referring to this scholarly work without the assistance of expert evidence. However I was necessarily referred to the text of the two canons which are specifically mentioned in the Diocesan constitution.
Ware describes the Orthodox Church as arising from the divisions which have brought about a fragmentation of Christendom and he identifies a separation conservatively dated to the year 1054 when the main body of Christians became divided into two communions - in Western Europe the Roman Catholic Church under the Pope of Rome and in the Byzantium Empire the Orthodox Church. The Orthodox Church extended its influence into Russia and neighbouring countries and on the fall of Constantinople to the Turks in 1453 the Principality of Moscow was ready to take Byzantium’s place as the protector of Orthodoxy. Ware (writing more than 30 years ago) notes how more recently there has been a:
“…partial reversal of the situation. Although Constantinople itself still remains in Turkish hands, a pale shadow of its former glory, the Church in Greece is free once more; but Russia and the other Slavonic peoples have passed in their turn under the rule of a non-Christian government.”
It is the subsequent re-establishment of “free choice” in Ukraine late in 1991 following a further fundamental change in its government and assertion of sovereignty which has given rise to the issue with what I am concerned. I have dealt with that historical fact and its constitutional significance in Part 7 of these reasons.
Ware (at 15-16) describes the Orthodox Church as being composed of a number of independent organisations:
“The Orthodox Church is thus a family of self-governing Churches. It is held together, not by a centralized organization, not by a single prelate wielding absolute power over the whole body, but by the double bond of unity in the faith and communion in the sacraments. Each Church, while independent, is in full agreement with the rest on all matters of doctrine, and between them all there is full sacramental communion. (Certain divisions exist between the Russian jurisdictions, but the situation here is altogether exceptional and, one hopes, temporary in character.) There is in Orthodoxy no one with an equivalent position to the Pope in the Roman Catholic Church. The Patriarch of Constantinople is known as the ‘Ecumenical’ (or universal) Patriarch, and since the schism between east and west he has enjoyed a position of special honour among all the Orthodox communities; but he does not have the right to interfere in the internal affairs of other Churches. His place resembles that of the Archbishop of Canterbury in the worldwide Anglican communion.
This decentralized system of independent local Churches has the advantage of being highly flexible, and is easily adapted to changing conditions. Local Churches can be created, suppressed, and then restored again, with very little disturbance to the life of the Church as a whole. Many of these local Churches are also national Churches, for during the past in Orthodox countries Church and State have usually been closely linked. But while an independent State often possesses its own autocephalous Church, ecclesiastical divisions do not necessarily coincide with State boundaries. Georgia, for instance, lies within the USSR, but is not part of the Russian Church, while the territories of the four ancient Patriarchates fall politically in several different countries. The Orthodox Church is a federation of local, but not in every case national, Churches. It does not have as its basis the political principle of the State Church.
Among the various Churches there is, as can be seen, an enormous variation in size, with Russia at one extreme and Sinai at the other. The different Churches also vary in age, some dating back to Apostolic times, while others are less than a generation old. The Church of Czechoslovakia, for example, only became autocephalous in 1951.
Such are the Churches which make up the Orthodox communion as it is today. They are known collectively by various titles. Sometimes they are called the Greek or Greco-Russian Church; but this is incorrect, since there are many millions of Orthodox who are neither Greek nor Russian. Orthodox themselves often call their Church the Eastern Orthodox Church, the Orthodox Catholic Church, the Orthodox Catholic Church of the East, or the like. These titles must not be misunderstood, for while Orthodoxy considers itself to be the true Catholic Church, it is not part of the Roman Catholic Church; and although Orthodoxy calls itself eastern, it is not something limited to eastern people. Another name often employed is the Holy Orthodox Church. Perhaps it is least misleading and most convenient to use the shortest title: the Orthodox Church.
Orthodoxy claims to be universal - not something exotic and oriental, but simple Christianity. Because of human failings and the accidents of history, the Orthodox Church has been largely restricted in the past to certain geographical areas. Yet to the Orthodox themselves their Church is something more than a group of local bodies. The word ‘Orthodoxy’ has the double meaning of ‘right belief’ and ‘right glory’ (or ‘right worship’). The Orthodox, therefore, make what may seem at first a surprising claim: they regard their Church as the Church which guards and teaches the true belief about God and which glorifies Him with right worship, that is, as nothing less than the Church of Christ on earth….”

I have quoted this last passage because it may assist in an understanding of the various ways in which “inseparable parts” of Christ’s Church as referred to in the rules of the defendant association may be viewed in law. The incorporated Parish of St Michael is a legal entity of a different character from the metaphysical body of the Orthodox Church described or symbolised as a ship (as abovementioned) in The Rudder.
Ware describes the role of the Bishops and laity separately and together as follows:
“The Orthodox Church is a hierarchical Church. An essential element in its structure is the Apostolic Succession of bishops. ‘The dignity of the bishop is so necessary in the Church,’ wrote Dositheus, ‘that without him neither the Church nor the name Christian could exist or be spoken of at all …He is a living image of God upon earth …and a fountain of all in the sacraments of the Catholic Church, through which we obtain salvation. ‘If they are not with the bishop’ said Cyprian, ‘they are not in the Church.’
At his election and consecration an Orthodox bishop is endowed with the threefold power of (1) ruling, (2) teaching, and (3) celebrating the sacraments.
and at 254-5:
“The authority of the bishop is fundamentally the authority of the Church. However great the prerogatives of the bishop may be, he is not someone set up over the Church, but the holder of an office in the Church. Bishop and people are joined in an organic unity, and neither can properly be thought of apart from the other. Without bishops there can be no Orthodox people, but without Orthodox people there can be no true bishop. ‘The Church,’ said Cyprian, ‘is the people united to the bishop, the flock clinging to its shepherd. The bishop is in the Church and the Church in the bishop.’
The relation between the bishop and his flock is a mutual one.”
Each church organisation within the Orthodox Church is hierarchical in nature with administration being committed to superior clergy and it is Episcopal in that the administration is divided into territorial dioceses. The Patriarch is the primate or head bishop of his organisation.
The expression Ecumenical Patriarchate refers to the Archbishopric of Constantinople whose presiding Bishop is the Archbishop of Constantinople (the Ecumenical Patriarch). The Ecumenical Patriarch is conventionally treated by other Patriarchs as being primus inter pares.
A footnote to Canon 34 as reproduced in The Rudder (p 51) notes that the chief amongst the Bishops of a region or province is called a Metropolitan. A Patriarch bears the same logical relation and rank to the Metropolitans as the Metropolitan bears to the Bishop. Accordingly, just as the Metropolitan is the chief and head of the Bishops so too is the Patriarch the chief and head of the Metropolitans. The relations between the Patriarchs are governed by the Canons adopted at the seven Ecumenical Councils held between the years 325 and 787 - (see Ware Chapter 2).
The Table on the prefatory page LXII of The Rudder provides a useful overview of the Canons which form part of the “Sacred Tradition” referred to in clause 3 of Exhibit 2 (being the constitution of the UAOC identified by Rev Serdiuk.) I note that in terms of this constitution the organisation (inter alia) “is governed on the basis of the Word of God given in the Holy Scriptures and the Sacred Tradition”. Although it will be inappropriate in most circumstances that the Supreme Court of this State should be called upon to pass judgment upon material of this nature, it is important to see how the constitution of the Diocese and the Church more generally is structured - incorporating both spiritual governance and temporal administration. It is the dichotomy between these two concepts and the consequential categorisation of the issue now in dispute which lies at the heart of the problem as to whether the Court may exercise jurisdiction with respect to the dispute.
As the defendants take issue with some matters in Ware’s book, I have only referred to extracts from his book which (upon the arguments of counsel) appeared to be uncontroversial.
The Holy Orders within the UAOC in ascending order of ranking are Deacons, Priests and Bishops. Deacons may only assist Priests in the celebration of religious services. Priests are ordained by Bishops and celebrate the Eucharist and administer the sacraments. There are three ranks of Priests the most senior of which is Protopresbyter. Generically the term bishop includes a Bishop or Archbishop who may also be the Metropolitan or Patriarch.
The Primate may be given the title either Metropolitan or Patriarch. The Church may be divided into regions (or Metropolitanates) headed by a Metropolitan who is responsible to the Patriarch as Primate. In smaller organisations the Metropolitan will be the Primate. In Kyiv in 1991 (as the Church was re-emerging) the usual organisation appears not yet to have been fully re-established.
4 Constitution of Ukrainian Autocephalic Orthodox Church
The Orthodox Church as a visible organisation operating within the Ukraine was effectively destroyed after 1921 but it has been maintained by being formally represented by the Church in Diaspora (literally “abroad”). This Church in exile has been formally recognised in the Constitution of the UAOC identified by Rev Serdiuk - which was seen by him in Belgium in 1992 and also much earlier. It is expressed as operating from 10 September 1984. In terms of the document the Church in Diaspora represents the Church until the time of free choice in Ukraine. There is no mention of this constitution in the Diocesan constitution until 1994 but for the purposes of this case it may be concluded as a matter of convention that this constitution has been treated by Rev Serdiuk as the senior clergyman in Australia as containing the basis of the representative obligations undertaken by the Diocese as part of the UAOC in Diaspora. The plaintiffs’ case can be put no higher than this document allows. Although the Church in Diaspora treats itself as an inseparable part of the UAOC, there is no evidence that the constitution has been accepted by the Church in Ukraine upon its re-emergence in 1991. It is a constitution which those claiming to represent UAOC until the time of free choice in Ukraine have adopted on its behalf.
The following are the more important provisions of the Constitution:
“Clause 1
The Holy Ukrainian Autocephalic Orthodox Church is a continuation of the Orthodox Church in Ukraine which has its origin in the preaching of the Holy Apostle St Andrew The First Called and which was formed during the reign of prince St Volodymyr and through the centuries has been and is linked to the Ecumenical Catholic Apostolic Orthodox Church observing the dogmatic and canonical foundations.
Clause 2
The Ukrainian Autocephalic Orthodox Church in diaspora is an inseparable part of the Ukrainian Autocephalic Orthodox and Ecumenical Catholic Apostolic Church. The Ukrainian Autocephalic Orthodox Church in diaspora represents the Ukrainian Autocephalic Orthodox Church until the time of free choice in Ukraine.
Clause 3
The Holy Ukrainian Autocephalic Orthodox Church is governed on the basis of: 1. The word of God given in the Holy Scriptures. 2. The Sacred Tradition, namely a. The Rules of the Holy Apostles. b The Canons of the Seven Ecumenical Councils and those of the Ten Local Councils, recognised by the Orthodox Church c The Canonical Rules of the Holy Fathers adopted by the Ecumenical Councils d The traditions and customs of the Ukrainian Orthodox Church.
Clause 4
The Ukrainian Autocephalic Orthodox Church is independent of other Orthodox Churches and in its internal life has full freedom of administration within the bounds of this Constitution.
….
Clause 6
The supreme organ of the Ukrainian Autocephalic Orthodox Church is the Church Synod composed of the Bishops, the clergy and the layity (sic). The Synod is convened by the Metropolitan of the Church every five years and, in case of need, more often. He chairs the Synod himself or, on his instruction, another clergyman, a member of the Synod. The Church Synod has the full power of government of the Ukrainian Autocephalic Orthodox Church.
If it is not possible to convene the Synod within the prescribed term, the date of the Synod may be deferred for a term determined by the Metropolitan Council.
The Church Synod is composed of:
a The Metropolitan and all Bishops of the UAO Church
bThe clergy of all ranks of the UAO Church, except those persons suspended by the Bishops
cRepresentatives of the laity, namely, delegates of each Diocese elected by the General Meetings of the parishes
dMembers of the higher Governing Organs of the UAO Church provided for in this Constitution
A lay representative of each Diocese should be a full member of a parish, who in the last three years went to confession and received Holy Communion and took active part in the life of the community.
The tasks of the Church Synod are
amatters concerning the preservation of the purity of the Faith, traditions and of the canonical Church order;
bthe promotion and development of church-religious life;
ctaking care of matters of administration, of religious education and of the financial needs of the Church;
dthe establishment of Episcopal Sees and separate Dioceses;
eresolution of questions of interchurch character and relations with other Churches; and
fother matters of church-religious life provided for in this Constitution.
Clause 7
The Synod of the UAO Church elects the Primate with the title The Metropolitan of the Ukrainian Autocephalic Orthodox Church of Kyiv and All Ukraine; higher governing organs of the UAO Church - Metropolitan Council, Metropolitan Administration, Ecclesiastical Court and the Control Commission.
[Note: In terms of Exhibit P7 the Title of the Metropolitan was changed in April 1994 to “The Metropolitan of the UAO Church in Diaspora].
Clause 8
For validity of the resolutions it is necessary that they be adopted by a majority of votes of members of the Church Synod, however, matters of the Faith and of the Liturgy are decided by the Synod of Bishops.
….
Clause 10
The Metropolitan is the Primate of the UAO Church with the title of The Metropolitan of the Ukrainian Autocephalic Orthodox Church of Kyiv and All Ukraine. In him is vested full hierarchical Episcopal authority in matters of the Faith and Christian morality, religious rites and pastoral duties; in him is vested the higher administrative authority within the bounds of the Constitution. The Metropolitan performs the duties of the first Bishop of a region prescribed by the 34^th Apostolic Rule.
[Note” For change in Title of Metropolitan in 1994 see note to cl 7 above].
Clause 11
The Metropolitan is the spiritual superior of the Ukrainian Autocephalic Orthodox Church and he represents the Church externally.
The Metropolitan:
aconvokes the Church Synod, the Synod of Bishops, the Metropolitan Council, the Metropolitan Administration and monitors the implementation of their resolutions;
bin concurrence with the Metropolitan Council confirms candidates for the Bishophood elected by the Diocesan Synods;
cgives to the Bishops brotherly councel (sic) concerning their performance of the Archpastoral duties and in cases of disagreement or disobedience passes the matter to the Synod of Bishops;
dreceives complaints against the Bishops and resolves them;
eaddresses the whole Ukrainian Autocephalic Orthodox Church with Pastoral Letters;
fgrants to clergy higher church awards (1 Timothy, 5:17) - adorned crosses, mitres, protopresbyterhood and archimandritehood;
gmaintains relations with the Primates of other Orthodox Churches: and
htakes care of the timely provision of the Church with the Holy Myrrh.
Clause 12
The name of the Metropolitan is mentioned in prayers during Divine Services in churches of the Ukrainian Autocephalic Orthodox Church and the Metropolitan mentions in prayers the name of the Ecumenical Patriarch.
….
Clause 22
The Church Synod elects a Church Court of three members - two clergymen and one lay member and two reserve members for the purpose of examining matters involving accusations of members of the clergy and laity of transgressions with regard to the Faith and morality, of breaches of canons and church discipline, and also matters of divorce.
….
Clause 47
Additions and alterations to this Constitution are approved only by the Synod of the UAO Church. The Constitution comes into force after it is signed by the Metropolitan of the UAO Church and after proclamation of it in the official press organ of the UAO Church “Ridna Cerkva” (“The Native Church”) not later than six months after its approval by the Ordinary 6^th Synod of the Ukrainian Autocephalic Orthodox Church which took place on the 26^th 27^th 28^th and 29^th of May in the year of the Lord 1983 in the capital of England-London.
It replaces the Constitution of the UAO Church of the 30^th of June, 1973 which was approved by the Extraordinary Synod of the UAO Church in Paris.”
5 The Constitution of the Diocese in Australia and New Zealand
There is in evidence the Constitution of the Diocese in 1991 and its amended version adopted on 24 September 1994. In 1994 the name was amended to add “in Diaspora” and clause 2 as quoted below was inserted; the clause links the Diocesan constitution to the Church constitution of 1983 (abovementioned) in a way which did not previously appear.
The constitution was further amended in 1997 but these changes do not directly bear on this case. For example the composition of the Diocesan Council was reduced in number (see rule 17)..
The Constitution (cl 29) provides for a consistory to be the Executive organ of the Diocese. That body has separately incorporated itself in New South Wales as UAOC in Australia and New Zealand Ltd; its directors are the members of the consistory. It is unnecessary to refer separately to that body whose Memorandum and Articles are set out as Exhibit 1.
Some extracts from the 1994 constitution read as follows:
“1The Australian and New Zealand Diocese is a constituent part of the Ukrainian Autocephalic Orthodox Church in Diaspora.
2In its activities the Diocese is governed by 1) The Word of God given in the Holy Scriptures, 2) The Holy Tradition which we have in a) The Rules of the Holy Apostles, b) The Rules of the Seven Ecumenical Councils and Ten Local Councils recognised by the Orthodox Church, c) The Canonical Rules of the Holy Fathers adopted by the Ecumenical Councils, d) The traditions and customs of the Ukrainian Orthodox Church; 3) The Constitution of the UAOC in Diaspora adopted by the Sixth Church Synod in 1983 and by this Constitution.
3In matters of spiritual and religious nature the resolution of which is intended to concern the whole of the UAOC in Diaspora, the Diocese in Australia and New Zealand submits its resolution for the confirmation of the Synod of Bishops (Rules of the Holy Apostles 34, Antioch 9 and others). In matters of local nature in Australia and New Zealand the Diocese shall be governed by special instructions given in this Constitution and by the resolutions of the Diocesan Synod.
4The higher legislative authority in the Australia and New Zealand Diocese is the Diocesan Synod. The ordinary Diocesan Synod shall be convoked every three years, and the extraordinary Synod when required.
….
14The Diocese is headed by a Bishop. He governs the Diocese in concurrence with the Synod of Bishops of the UAOC in Diaspora and in concordance with the Metropolitan Administration and the Diocesan Council.
….
16The governing organ of the Diocese in the interval between the Synods in all spiritual and temporal economic matters is the Diocesan Council headed by the Governing Bishop.
….
29The Consistory is the executive organ of the Diocese. It is elected by the Synod for the term of three years. The Consistory consists of the chairman (a clergyman), four members (two clergymen and two lay members) and two reserve members (one clergyman and one lay member). The reserve members become full members of the Consistory in the event of retirement of members for any reason.
30The duties of the Consistory comprise:
a the execution of the resolutions of the Diocesan Synod and the Diocesan Council;
.…
46The Diocesan Church Court is the first instance of investigation and settlement of various complaints and disagreements in the church-parish life. Members of the Church Court comprising three persons are elected by the Diocesan Synod - two clergymen and one lay member.
….
50Decisions of the Church Court require confirmation by the Governing Bishop. A party dissatisfied with the decision of the Church Court may appeal to the Diocesan Synod. The appeal and its justification shall be lodged with the secretary of the Consistory not later than one month from the day of the announcement of delivery of the decision of the Court.
….
54The basic cell of the Diocese is the parish under the jurisdiction of the Governing Bishop. The objective of a Parish is the organisation of the common church-religious life.
55New Parishes wishing to belong to the UAO Church submit to the Consistory an appropriate declaration that they adopt the Constitution of the UAOC.
56In their internal life the Parishes function on the basis of the Parish Constitution confirmed by the Diocesan Synod.
….
72Proposals for alterations and amendments to this Constitution are to be submitted to the Consistory, which shall review them and submit them for the consideration of the Diocesan Synod. Each proposed alteration of the Constitution is brought to the notice of all parishes by the Consistory at least three months prior to the opening of the Synod. Alterations and amendments to this Constitution are adopted by a simple majority of votes of the mandated delegates to the Synod.”
The constitution of the Australian and New Zealand Diocese refers generally to the Canons identified in clause 2. However, clause 3 of the constitution deals with matters of a spiritual and religious nature and the manner of their resolution.
The rule then contains a reference to “Rules of the Holy Apostles 34 Antioch 9 and others”.
As translated in The Rudder, Canon 34 of the Holy Apostles (Rudder p 50) reads as follows:
“It behoves the Bishops of every nation to know the one among them who is the premier or chief, and to recognise him as their head, and to refrain from doing anything superfluous without his advice and approval: but, instead, each of them should do only whatever is necessitated by his own parish and by the territories under him. But let not even such a one do anything without the advice and consent and approval of all. For thus will there by concord, and God will be glorified through the Lord in Holy Spirit, the Father, and the Son, and the Holy Spirit.”
Canon 9 of the Antioch Regional Synod (Rudder p 539) reads as follows:
“The presiding Bishop in a metropolis must be recognized by the Bishops belonging to each province (or eparchy), and undertake the cure of the entire province, because of the fact that all who have any kind of business to attend to are wont to come from all quarters to the metropolis. Hence it has seemed best to let him have precedence in respect of honor, and to let the rest of the Bishops do nothing extraordinary without him, in accordance with the ancient Canon of the Fathers which has been prevailing, or only those things which are imposed upon the parish of each one of them and upon the territories under it. For each Bishop shall have authority over his own parish, to govern in accordance with the reverence imposed upon each, and to make provision regarding all the territory belonging to his city, as also to ordain Presbyters and Deacons, and to dispose of details with judgment, but to attempt nothing further without the concurrence of the Bishop of the Metropolis; nor shall he himself, without the consent and approval of the rest.”

Whilst I am not now required to consider how the issues which have arisen ought to be resolved, I note that the Canons appear to address the procedural questions of dealing with ecclesiastical disputes upon the footing that resort will not be had to the secular courts but should be dealt with (for example) before referees - see for example Canon 9 of the 4^th Ecumenical Council: (Rudder page 253).
“If any Clergyman has a dispute with another, let him not leave his own Bishop and resort to secular courts, but let him first submit his case to his own Bishop, or let it be tried by referees chosen by both parties and approved by the Bishop. Let anyone who acts contrary hereto be liable to Canonical penalties. If, on the other hand, a Clergyman has a dispute with his own Bishop, or with some other Bishop, let it be tried by the Synod of the province. But if any Bishop or Clergyman has a dispute with the Metropolitan of the same province, let him apply either to the Exarch of the diocese or to the throne of the imperial capital Constantinople, and let it be tried before him.”
(How such a canon might be applied - if recognised by those now in dispute - is an example of a situation where a Court might properly regard expert evidence as necessary).
6 The Constitution of the Parish
The Parish constitution is contained in Exhibit P5. Its effect as relevant is summarised in par 8 of the Statement of Claim.
Some important extracts from the Parish constitution read as follows:
“3The Parish is a constituent part of the Australian and New Zealand Diocese of the Ukrainian Autocephalic Orthodox Church. This jurisdictional status and the complete ecclesiastical and religious subordination may not be altered without the consent in writing of the Governing Bishop and of the Governing Authorities of the Diocese.
4In all religious and ecclesiastical matters the Parish is subordinate to the Governing Bishop of the diocese. In economic matters and matters of internal administration the Parish, whilst observing all requirements of the Diocesan Constitution, has the right of independent action subject to this Constitution.
5The Parish Priest is the ecclesiastical guardian and counsellor of the Parish.
6For the purpose of administration the Parish shall elect at the General Meeting of the Parish Members a Parish Council, which shall act in accordance with this Constitution and the directives of the Diocesan Council.
….
18The General Meeting of the financial Parish Members is the highest governing body of the Parish.
19General Parish Meeting may be:
aAnnual General Parish Meeting; and
bExtraordinary General Parish Meeting
….
25The General Parish Meeting shall carry all resolutions by a simple majority of votes in a show of hands or a secret ballot. Each financial Parish Member has one vote. Proxy votes are not allowed.
….
34The Extraordinary General Parish Meeting shall be convened in any of the following circumstances:
a       when so resolved by the Parish Council;
                  b       when required by the Parish Priest;
                  c       when required by the Supervisory Board;
d      when directed by the Governing Bishop or by the Governing Authorities of the Diocese; and
e      when requested in writing by not less than two thirds of all financial Parish Members.
The Extraordinary General Parish Meeting shall be convened and conducted in the same manner as the Annual General Parish Meeting. The Extraordinary General Parish Meeting may deal only with matters for which it was convened.
….
38In matters of canons and his pastoral duties the Parish Priest shall be subordinate to the Governing Bishop and the Diocesan Council and shall submit to them reports on his work.
….
40Any disagreements between the Parish Priest and the Parish Council or the Parish Members, which cannot be resolved within the Parish, shall be referred for a decision to the Governing Bishop or the Governing Authorities of the Diocese. Their decisions in the matters in dispute shall be binding on both parties involved in the disagreement. An appeal against such decisions may be made to the Diocesan Synod whose decisions shall be final.
….
57The Parish Council is not authorised to interfere with the directives of the Parish Priest concerning his ecclesiastical, pastoral or teaching duties. In such matters the Parish Priest may be directed by the Governing Bishop or the Diocesan Council. With the concurrence of the Parish Council the Parish Priest may be assigned by the Diocesan Council to perform pastoral duties in another place.
….(P80 Exhibit 5)
88Parish assets, real estate and other property is the property and is under the control of the Parish for its purposes and for the use of its members, as a component part of the Ukrainian Autocephalic Orthodox Church.
….
100If an amendment of the Parish Constitution is required, the Parish Council shall submit the proposed amendment with the supporting argumentation for consideration of the Diocesan Council. The Diocesan Council submits the proposed amendment or alteration with its comments for consideration and approval by the next scheduled or an Extraordinary Diocesan Synod.
101Changes and alterations to the Constitution come into force on their approval by the Diocesan Synod.”
7      Historical - The seeds of the dispute
(This part of my reasons should be read in conjunction with Part 10 where I identify the various Orthodox organisations in summary).
On 24 August 1991 the Ukrainian Parliament proclaimed the independence of the republic subject to a confirmatory referendum held on 1 December 1991. On 8 December 1991 the leaders of Ukraine, Russia and Belarus met and formally dissolved the USSR. These events in combination immediately give rise to “the time of free choice in Ukraine” as referred to in Clause 2 of the constitution of the UAOC.
The structure of the Church had been put in place on the footing of temporary arrangements until “the time of free choice” arrived so as to maintain the organisation of Orthodoxy in the Ukraine. A year earlier (1990) the restraints upon civil and religious freedom were being loosened in USSR and even then the Church was beginning to re-emerge in Ukraine. It is unnecessary to refer to events during that year when fragments of Orthodoxy became recognisable. Unfortunately more than one organisation grew up from these fragments. This has led to the unsatisfactory situation (at least in the view of the Church leaders) where there are now two Orthodox Patriarchs within Ukraine itself claiming to exercise an authority independent of the Archbishop of Moscow (or his Metropolitan in Ukraine).
St Michaels of the Golden Domes has recently been rebuilt; Archbishop Filaret conducts his administration from this centre. The Synod of Bishops held on 5 June 1992 (to which I have referred) took place in the remains of St Michaels in Kyiv before the recent rebuilding was undertaken.
During the last century there has been large scale migration from Ukraine (particularly after the Second World War). Ukrainian communities have been established in Australia and New Zealand, USA and Canada. An organisation can be identified which has now become Ukrainian Autocephalic Orthodox Church in Diaspora (literally “abroad”). The organisation has one diocese in Western Europe, one Diocese in Great Britain and one Diocese in Australia and New Zealand; an organisation in South America has a close link with the Church in Diaspora and for certain reporting purposes appears to have been treated as akin to a fourth Diocese. It was given voting rights at a Synod held in Genk, Belgium in 1994 but the defendants dispute the eligibility of the South American representatives to participate in the decisions of that Synod. It appears now to be part of UOC of USA. The representatives of South American UAOC appear to have been treated as welcome visitors. The delegates to this Synod (described as the 7^th Synod of the Ukrainian Autocephalic Orthodox Church in Diaspora came from Australia, England, Germany, Belgium and France; in addition Metropolitan Constantine and Archbishop Anthony from UOC of USA were present together with Bishop Jeremiah (UAOC of South America) and Bishopresbyter Diakiw (UOC of USA). The Primate of UAOC in Diaspora was formerly Mstyslav but is now Metropolitan Constantine. Mstyslav was enthroned as Patriarch of Kyiv and All Ukraine on 18 November 1990 (according to counsel). He was Polish but lived in Canada and USA. He died at an advanced age on 11 June 1993. He was succeeded by Patriarch Volodymyr [Romaniuk] who was enthroned on 12 October 1993; he died on 14 July 1995 and Patriarch Filaret was enthroned on 22 October 1995.
Other churches as now relevant outside Ukraine are the Ukrainian Orthodox Church of USA and UOC of Canada. These last two mentioned churches as well as the Australian and New Zealand Church are independent and self governing (Autocephalic). USA and Australia/New Zealand purports to have the same Primate - Metropolitan Constantine; however this is a matter of contention.
The Church in Kyiv has strong historical links to Constantinople - now Instanbul, Turkey (see Ukraine: A History (2^nd ed) 1994 by O Sutelny at 34-35).
The Diocese of the UAOC (in Diaspora) in Australia and New Zealand has eleven Parishes, namely (1) St Nicholas, Annersley Brisbane, (2) St Afanasius, Granville Sydney, (3) Holy Pokrova, Strathfield West Sydney, (4) The Holy Transfiguration, Blacktown Sydney, (5) Holy Pokrova, Essendon Victoria (6) The Holy Trinity, Carlton Melbourne (7) Holy Assumption, Balaklava Melbourne (8) St Marys, Geelong Victoria (9) St Nicholas, Canberra (10) Mission of Holy Pokrova New Zealand and (11) St Michael’s Adelaide. (The last-mentioned Parish was formed upon the amalgamation of two parishes).
By circular letter dated 9 November 1992 (under the hand of M Serdiuk and V Buschtedt) the Consistory of the UAOC in Australia and New Zealand recited the Union between the UAOC and a part of the UOC under the jurisdiction of Filaret and observed the need for “an Independent (Autocephalic) Ukrainian Church”. The circular then gave a direction (having regard to declining membership) that the Parish of the Holy Pokrova (Adelaide) amalgamate with the Parish of the Holy Archangel Michael (Adelaide) before Christmas 1993. The circular reported upon the admission of the Diocese to the body of the Kyiv Patriarch and a decision to appoint Rev Anthony of Pereyashav and Sicheslav (Administrator of UAOC Patriarchate in Kyiv) as Governing Bishop of the Diocese (subject to the confirmation of Mstyslav as Patriarch of Kyiv). Following receipt of this letter an application was made for the incorporation of a new association on 16 December 1992 to be called “The Parish of St Michael of the Ukrainian Autocephalic Orthodox Church in Adelaide South Australia - short title: The Parish St Michael UAOC in Adelaide”.
On 20 December 1992 the former Adelaide parishes of St Michaels and Holy Pokrova held a meeting to amalgamate and adopted as the Parish constitution the rules of the incorporated body.
The circular letter of 9 November 1992 was incomplete in its reporting of events in Kyiv. In December 1991 the Australian Diocesan Synod passed resolutions (inter alia) in the following terms:
“2Taking into account the fact that the XII-th Diocesan Synod is taking place at the time when Ukraine has become a full independent Nation and that after the Synod of the UAOC in 1990 the ancient Kyiv Metropolitanate was raised to the dignity of the Patriarchate, the XII-th Diocesan Synod solemnly declares that the Australian and New Zealand Diocese is an inseparable part of the Holy Apostolic Ukrainian Autocephalic Orthodox Church formalised* in the Kyiv Patriarchate.”
“10The XIIth Diocesan Synod addresses his holiness Patriarch Mstylsav the First with a humble request to attach the Australian and New Zealand Diocese of UAOC to one of the Metropolitanates in Ukraine and to appoint for this Diocese a governing bishop if possible from the Ukraine, who would reside permanently in Australia in Canberra. Pending the appointment of a permanent Governing Bishop the Diocesan Synod requests his holiness the Patriarch to retain his Grace Anthony the Archbishop of Washington as a permanent Ecclesiastical Guardian of the Diocese with the prerogatives and privileges of a Ruling Bishop.”
(*Note: There is some difficulty here in selecting an apt translation; “formed” may be more appropriate than “formalised”).
In the absence of Mstyslav a synod of Bishops of the Kyiv Patriarchate on 5 June 1992 resolved as follows:
“1to admit the Australian and New Zealand Diocese to the Kyiv Patriarchate;
2to appoint His Grace Anthony, the Metropolitan of Pereyaslav and Sicheslav and the Administrator of the Affairs of the Pariarchate of UAOC in Kyiv, as Governing (Bishop);
and to promulgate appropriate documents to that effect.”
(Note: His Grace Anthony referred to in this resolution is to be distinguished from another person Anthony of Washington).”
On 25-26 June 1992 there was a resolution of the All Ukrainian Orthodox Synod (Patriarchate of Kyiv and All Russia-Ukraine) certified by Patriarch Filaret as follows:
“R1To amalgamate the Ukrainian Orthodox Church and the Ukrainian Autocephalic Orthodox Church into one Ukrainian Orthodox Church - Kyiv Patriarchate.
R2The Ukrainian Orthodox Church - Kyiv Patriarchate is the legal successor of the UOC and of the UAOC, of all agreements and contracts entered into by them to this day, and of all their costs, property, real and personal, including the churches, the monasteries, the teaching institutions and other. All bank accounts of the UOC and of the UAOC become the accounts of the Ukrainian Orthodox Church of Kyiv Patriarchate.”
Mstyslav later disclaimed these steps (taken on 25-26 June 1992) in an address dated 20 October 1992 and a communique dated 25 October 1992 on the footing that he had not convened the Synod. (However, there has never been any question raised with respect to the decision made on 5 June 1992). The address included the following:
“Being in constant prayer for the unification of all orthodox Christians of Ukraine and Diaspora I inform my spiritual children that the decision concerning the unification of UAOC with any other Church, in accordance with the constitution of the UAOC, may be made only by a Synod of the hierarchy, clergy and faithful of the UAOC convened by me, the preparation for which has started.
In connection with that, the decision of the so-called “All Ukrainian Orthodox Synod” of the 15^th-26^th June, 1992, of “the committee for the protection of orthodoxy”, and also of that part of the hierarchy of the UAOC, which recognised the decisions of the above-mentioned synod and committee, are not binding for the hierarchy, clergy and faithful of the UAOC.
The hierarchy, clergy and faithful of the UAOC are under my archiepiscopal protection and are in the jurisdiction of the Patriarch of Kyiv and All Ukraine of UAOC.”
The communiqué included the following:
“On the 25^th of June, 1992 at a meeting, called Synod, was proclaimed the unification of the UOC with the Ukrainian Autocephalic Orthodox Church. There were serious reasons for that. The nation and the state require unity. The process of unification is unavoidable.
The trouble is that, from the very beginning, the act of unification was false - they acted without the knowledge of the Patriarch, in the name of the Patriarch, and masked it with the holy word Synod. It is not possible to deceive without ruining the Church and the souls of the faithful. It is a deceit for which the responsible persons have to be punished who, in addition, prior to this were stripped of moral authority. Such persons must not stand at the head of the Church. Political justifications here are not to be taken into consideration. The Church requires moral justifications and they do not exist.
The Ukrainian Orthodox Church should strengthen morally on the basis of the autocephaly, and oppose coarse political pressure of foreign religious centres. To-day the opponents are helped most by the discrowned name of the defrocked Metropolitan Filaret and the bad reputation of Metropolitan Anthony.
In the interest of the Ukrainian Orthodox Church and for their own good as Christians Metropolitan Filaret and Metropolitan Anthony should withdrawn from the leadership of the Church. Discredited hierarchs must not represent Ukraine. They will not be accepted in the Synod of equals. And with them our nation will not be accepted.”
On 29 October 1993 the Consistory of the Australian and New Zealand Diocese issued circular no 4A under the hand of Mr Buschtedt informing Parishes that the clergy had agreed not to “take sides” in the dispute which was evident within Ukraine following the election of Rev Yarema [later called Dymytriy] as “Patriarch of Kyiv and all Ukraine” at a Synod in Kyiv on 7 September 1993 under the auspices of UAOC. (This group was described in evidence as “breaking away” from the unified Church). The circular recites a letter from Archbishop Anthony (of Washington) as governing Bishop of the Diocese in the following terms:
“You are advised by this letter and requested to convey to the reverend fathers of the Diocese, that all the Bishops in diaspora, that is Metropolitan Constantine, UO Church in USA, Archbishop of Paris Anatolij, Archbishop of New York and Washington DC and performing the duties of Governing Bishop of the Australian and New Zealand Diocese, Antony, Bishop Emeritus of South America Paisij, The Bishop of London Ioan and the Bishop of Kuritiba Jeremiah, agreed not to take sides concerning the conflict which exists in the Ukrainian Orthodox Church in Ukraine.
As can be seen from our appeals and letters to both, we remain of a firm resolve, that Ukrainian Orthodox Church in Ukraine must be ONE and UNITED, and ONLY THEN IT SHOULD TAKE STEPS TO ELEC (sic) THE SUCCESSOR TO THE PATRIARCH OF KYIV AND ALL UKRAINE.
Until such time, as with the grace of God, the above condition is realised, the clergy of each Diocese should commemorate only its own Governing Bishop, or the bishop performing the duties of the Governing Bishop. The clergy of the Australian and New Zealand Diocese of the UAO Church should commemorate, as the senior hierarch of the UAO Church, the Archbishop Anatolij of Paris and myself, as one performing the duties of the Governing Bishop.”
By letter dated 26 February 1994 Mr Buschtedt informed Mrs Kowalski of St Michaels (and secretary to the Diocese Council) of a proposed Synod to be held in Belgium in April 1994. The letter recites that:
“…With the death of His Beatitude Patriarch Mstyslav, Archbishop Anatolii has taken over the leadership our Church until the election of the new Primate of UAOC in diaspora.
In keeping with the constitution of UAOC p 13, His Grace Archbishop Anatolii, with agreement of the Council of the Metropolitanate, has designated a convocation of the Synod of UAOC in diaspora for 7-10 April of this year (1994) in Belgium”
Exhibit P10 sets out the identity of all the delegates who attended the Synod. There is an issue as to the status of this meeting which allowed voting rights to those who were not members of UAOC. However the Synod resolved to grant status to representatives of the Church in USA upon the footing:
“…that by allowing the right of voting to those who are not members of UAOC, we would by this act involve (engage) them in our decisions. We expect that they will accept this status of delegates and will resolve with us all of our problems.”
The Clergy included Protopresbyer Mykola Serdiuk. The Lay Delegates included Volodymyr Buschtedet. Both were Australian delegates and they each gave evidence before me on behalf of the plaintiffs.

The dispute centres around a passage in the Divine Liturgy as it appears at p 91 of the English version of the Orthodox Prayer Book (1960):
“Priest: We pray for our Holy Ukrainian Orthodox Church, for our Most Reverend Metropolitan, N., Most Reverend Archbishop (or Right Rev Bishop), N., and for all our brethren in Christ.
Furthermore we pray for our most gracious Sovereign Queen Elizabeth, and the Royal House; for the armed forces and for the authorities of our country, and for all our devout people;…”
This prayer is to be treated as providing an acknowledgement by the officiating priest of his adherence to the nominated Primate and his Bishop. The parties are in dispute as to the identity of the persons whose name should currently be recited in this prayer.
When the dispute is reduced to this simple form it is important not to overlook the implications and extent of the difference. Adherence to a prescribed form of liturgy and uniformity in worship appear to be a feature of this Church. In this case the irregularity (if it exists) lies not merely in a departure in a ceremony from that which is required. The naming of the Metropolitan is effectively an acknowledgement of allegiance or adherence. If the Church building (which in terms of the Parish constitution is under the control of the Parish Council) is used for the conduct of services otherwise than in accordance with the prescribed ritual then it may be arguable that those entitled to the use and enjoyment of the property may have a remedy.
It is on this point that the High Court evenly divided in Wylde v Attorney General (NSW) (At the relation of Ashelford) (1948) 78 CLR 224 where the adoption of the “Red Book” as a form of service for the Anglican Eucharist was in issue. That case (based upon the decision of a statutory majority of High Court Judges evenly divided) establishes the principle that where there is a fundamental rule of a Church that liturgy be celebrated in a particular way and property is held for the purposes of the Church any substantial departure from the standard liturgy in a church service conducted on that property may amount to a breach of a charitable trust.
However in the present case the Attorney General has not been given the opportunity to be heard and the procedure provided in Part 4 of the Trustee Act 1936 has not been followed. Instead the plaintiffs’ case has been based upon an allegation of oppression under the Associations Incorporation Act 1985. Basically the plaintiffs’ complaint concerns spiritual beliefs although this flows over into a mundane question (which is itself justiciable) as to the conduct of Parish meetings and the steps thus authorised.. The preliminary question is therefore whether the real dispute as so identified is justiciable. Without seeking at this point to make any decision myself it is convenient to consider what might be involved in resolving the dispute. That exercise I consider to be helpful in assessing whether (and if so to what extent) the dispute is justiciable.
12 Resolution of the dispute
The rift between parishioners concerns the way in which St Michaels (and the Diocese more generally) should be brought under the Kyivan Patriarchate. The resolutions of the Parish meeting on 3 May 1998 appear to reflect the common aspirations of the Parishioners. The division arises because one group (including the plaintiffs) accept the decisions flowing down from the hierarchy through the Diocese that recognition of the Church in Ukraine should be postponed whereas the other group (including the defendants) is not prepared for its aspirations to be indefinitely frustrated; some members of that group are therefore prepared to challenge the wisdom and legality of those decisions.
The underlying dispute which deserves to be resolved appears to involve the application of canon law although the plaintiffs’ complaint has been presented as one of oppression of a minority. In my opinion the question cannot be satisfactorily resolved without expert evidence as to the operation of canon law. It does not appear to me to be useful to provide relief even of a declaratory nature based on the present state of the evidence in an action constituted as between only the Parish and the parishioners.
If it be applicable to the Orthodox Church in Ukraine the canonical principle of “economy” (as known both in the east and the west) would appear to provide a solution (although it may be better applied in an atmosphere of conciliation than in civil litigation). It is explained by Young J in AG ex rel Elisha & Ors v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1995) 37 NSWLR 293 at 297-298:
“So far as economy is concerned, St Cyril said: “Economies, sometimes demand that a little be lost in order that more may be gained. Just as sailors in a storm, when their ship is in danger, throw overboard some of their cargo in order to save the rest, so we in matters where it is not possible to keep everything surrender some in order that we may not lose all.” Thus, in the first few centuries of Christianity even though there were very strict rules prohibiting those who had fallen away under persecution from being re-admitted to the Church and that normally some years of penance were required before re-admission could be considered, the Church has from time to time considered that it is far better for the Church as a whole to wipe the slate clean and invite the former heretics back into the fold. Again, the Canons such as those forbidding translations of bishops from one See to another might, according to the doctrine of economy, be put aside where that was necessary and profitable of the Church as a whole.”
The parties may wish to consider whether (and if so how far) the doctrine of economy may be called in aid to validate acts which prima facie may not be supported by the Canons.
Elisha (at 297) shows how the Canons may be applied to resolve a dispute such as the present but that case also demonstrates the need for an understanding of certain underlying principles before attempting to apply the canons. That case was argued (like Wylde’s case) as one affecting the trusts attaching to Church property. The present dispute is based upon a claim of oppression of a minority within an incorporated association. The Court’s intervention in a dispute requiring the enforcement of trusts is not necessarily based upon the same principles as would be applied in the case of oppression. I am told by counsel that during the interlocutory stages of this action the plaintiffs made it clear that this case was not to be conducted as one based on breach of trust; counsel for the defence informs me that the defence has been shaped accordingly.
The method of government of Christian churches (as now relevant) may be divided into three categories - the Hierarchical, the Presbyterian and the Congregational. In Elisha Young J at 315 describes the differences:
“[Hierarchical means] a church which has superior clergy and in which the government of the church is committed to those superior clergy. Ordinarily a church which has bishops will fall into this class and this will be so notwithstanding that some governmental powers are given to clergy of inferior rank or to laity. The Presbyterian model is where there is a succession of committees at national, regional and local level, so that the decision of the local congregation may, in appropriate cases, be overturned by that of a general assembly. With a congregational model, the local congregation is the body which makes or unmakes the rules….”
More recently Young J developed his views in Radmanovich v Nedeljkovic [2001] NSWSC 492 where His Honour notes (par 139) that there have been a number of cases decided in Australian courts involving disputes in the Eastern Churches. In that case an Assembly of Bishops of the Serbian Orthodox Church in Belgrade decided that ecclesiastical jurisdiction and responsibility for members of the Church including the Serbian Diaspora (in Australia) be assumed by the Serbian Patriarch. The plaintiffs argued that this absorption had no effect on the trusts governing the Parish property. The following comments by Young J are of interest:
“90The 19^th century ecclesiastical law cases produced two complementary principles that govern the characterisation of trusts affecting property held for religious purposes. First, the Church of Scotland cases commencing with Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601 and ending in Free Church of Scotland v Overton [1904] AC 515, show that in the absence of any contrary intention, the courts will presume the trust is for the religious purposes of the founders of the trust. However, where members of a local religious community proclaim they are members of an established church, the trust will be construed as one for the religious purposes of that church and subject to its canon law and discipline; see the cases referred to in McPherson’ JA’s article referred to above and Anastas v The Greek Orthodox Community of New South Wales (McLelland CJ in Eq, 18.11.1964) as to what is meant by the “Greek Orthodox Church” and Attorney-General v Holy Apostolic & Catholic Church of the East (1989) 37 NSWLR 293, 313 and on appeal (1989) 18 NSWLR 291.”
91“Once the trust property has been devoted to particular doctrines, then no practice and no wish of the majority of the members of the association can affect that requirement; see additionally Wylde v Attorney-General (1948) 78 CLR 224, 257. The Church School Community has embraced the Serbian Orthodox Church as the institution of which it formed part, it has subjected both itself and its property to the discipline and practices of that Church and accordingly the defendants must succeed.”
….
96“Furthermore, the contention by the plaintiffs in their later submissions that “It is possible for autonomous communities to exist within the Serbian Orthodox Church, so long as their members vigorously adhere to the Orthodox faith” is untenable both in law and in fact because:
…
(2)There is no basis for suggesting that a religious community, parish or congregation can be within or belong to an organized church but that the members are not bound by the rules and discipline of that Church;
(3)The members of the Community proclaiming themselves to be members of the Serbian Orthodox Church are members of that wider church body and are bound by the canon law and discipline of that Church.”
….
155“However, it must be remembered that in a religious trust not every provision of the rules or every matter of doctrine will necessarily be a term of the trust, breach of which will give rise to an action.
156The law was well and truly summarized by McPherson JA writing extra judicially in “The Church as Consensual Compact, Trust and Corporation” (2000) 74 ALJ 159, 168.
157Gould’s case itself is an illustration of this principle. The practice of strict or free communion was found to be no part of what was essential for the faith and maintenance of a congregation of particular Baptists and consequently not to form a part of the foundation trusts on which the Church was held (see 54 ER 452 at p 459).
158When one thinks about it, this must be so. It is absurd to think that every word spoken in every sermon in one of the mainstream churches in Australia could be analysed to see whether it involved a breach of trust by perverting part of the doctrine or rules of the Church. Moreover, just because a person in authority in the Church such as a bishop or priest preaches a sermon which, for instance, condemns communism or abortion or gambling does not (apart perhaps from 30 years long usage) make that a term of the trust.”
….
172“It should be noted that with an hierarchical church in the words of McMorrow J, delivering the decision of the Appellate Court of Illinois in Aglikin v Kovacheff 516 NE (2d) 704, 708 (1987), “a court may presume a local church has relinquished all power to an hierarchical body which may, in some instances, frustrate the actual intent or goals of the local church and deprive the local church of legal remedies that otherwise would or should be available to it.”
173In Bishop of Natal v Gladstone (1866) LR 3 Eq 1l, 37, Lord Romilly said:
“…If a class of persons in one of the dependencies of the English Crown…should found a church calling themselves member of the Church of England, they would be members of the Church of England - they would be bound by its doctrines, its ordinances, its rules and its discipline, and obedience to them would be enforced by the civil tribunals of the colony over such persons….”
174In the Holy Apostolic & Catholic Church of the East case, after quoting this passage, I said at p 316:
“It is not an unwarranted extension of that principle to say that when one finds in Australia a group of persons of ethnic origin proclaiming that they are members of a church with an identical name of an overseas church which services their people, one can assume that they are members of that overseas body or alternatively, that their canon law and the discipline of their church is mutatis mutandis identical with that of the overseas body.”
175It would be a mistake, however, to assume that all religious trusts fall into the neat categories outlined above and the United States cases show that this is not so.”
….
178“Thus, although the extracts from the Constitution of the worldwide Serbian Orthodox Church show that the church is hierarchical and Episcopal, this may not necessarily permeate all the way through to be the controlling factor in a dispute between diocese and parish over property. It should be noted that such constitutional statements do not provide the basis for deciding that there is a theological principle of the Serbian Orthodox Church that all must “Obey the Bishop”.
….
185“As I have already noted in the discussion in (f) above, not every detailed provision governing the operation of a trust is a part of the equitable obligation binding the trustee with respect to the trust property. Some provisions will be purely matters of management, others may be precatory requests of the settlor.
186Thus provisions in a trust deed dealing with the manager’s rights under a unit trust are enforceable as a contract, an example is Parkes Management Ltd v Perpetual Trustee Co Ltd (1977) 3 ACLR 303.
187At the other end of the spectrum is Scandrett v Dowling (1992) 27 NSWLR 483. It was held by the statutory majority in Wylde v AG (1948) 78 CLR 224 that a breach of a charitable trust occurred if Church Trust Property was used for a church service otherwise than the one contained in the prescribed prayer book. This was because the courts held that uniformity was a central term of the trust. However in Scandrett v Dowling, the Court of Appeal appeared to hold that the ordaining of a woman as a priest was not so central so that there was no breach of trust even if the action was contrary to the rules of the Church. There was a mere breach of the consensual compact which was non-justiciable.”
….
209“There have unfortunately been many court cases involving the Orthodox Churches in Australia. In almost all of them part of the problem has been that the European idea of banishing all opponents by excommunication has come up against the Australian ethos of unity in diversity, tolerance and democracy. Experience has shown that if the hierarchy excommunicate the lay leaders of an Australian parish, the whole Church’s mission will be detrimentally affected, not the least by the passing of hundreds of thousands of dollars from the Church’s funds into the pockets of lawyers.”
Applying these principles to the present case I make the following comments:
(1)The Parish complains about remarks made by the Priest in his sermons. Generally speaking the Court would be reluctant to interfere with the Priest’s right of free speech from the pulpit (or other privileged place) even although remarks may give offence to some.
(2)The Parish as a constituent part of the Diocese cannot ignore the discipline of the Church. This principle is not in dispute but the Parish maintains that it is properly in communion with the Mother Church in Kyiv.
(3)The fact that until 1992 the name of the Church of which the Parish and Diocese form a part carried the same name as a Church in Ukraine strongly suggests that all belong to one body which is subject to a common code of canon law and discipline.
(4)Not every provision of a set of Church rules (at least as regards matters of faith) will be enforceable as an agreement between parishioners.
(5)Not all disputes in a hierarchical organised Church permeate through upon the basis of this organisation to differences between Diocese and Parish where the Parish exercises a degree of local control.
One may conclude that the manner of resolution of a dispute (and whether the court will exercise jurisdiction) may depend upon the form in which the dispute reaches the court. If the complaint is presented as a breach of trust affecting Church property the court (if it accepts jurisdiction) may be expected to mould its order to reflect the will of the hierarchy although supported by only a minority of parishioners. On the other hand in matters of local management (particularly where the Parish has expressed its own will) the supremacy of the hierarchy may have to give way to local control as expressed in the decisions of the majority of the Parish.
In the present case it would seem that the Parish at least has control of its own funds. The ability to withhold supply is a potent weapon (as every government will be aware). If the dispute were put on this basis or on the basis of a failure properly to control business meetings of the parish then the actions of the majority of parishioners will stand to be judged in a different light than their purported exercise of power to control the form of worship as used in the Liturgy. The principles of oppression (to the extent that they are relevant) may stand to be differently applied to the different situations.
13 Are the issues justiciable?
The essence of the dispute is apparent upon the face of the documents. I consider that the minutes of Parish meetings accurately reflect the gist of the points of debate as well as the actual resolutions.
Upon the plaintiff’s case the following issues arise:
(a)That a breach of the Parish Constitution Clause 3 has occurred; that no change of jurisdiction or subordination (spiritual and ecclesiastical) can take place without the approval of the governing authorities who have not given such authority; that the governing authorities (according to the plaintiffs) are (Bishop Ioan and Metropolitan Constantine;
(b)Through the constitution of the UAOC in Diaspora and the Diocesan Constitution the Parish has been guilty of insubordination in terms of its allegiance.
The Parish has or is purporting to change “jurisdictional status” under its own Constitution and has done so without following the process under its Constitution; the Parish has purported to leave the Diocese.
(c)The Parish Council has improperly interfered with the ecclesiastical pastoral and teaching responsibilities of the Parish Priest and without any justification has withheld from him material support.
(d)That the Parish without justification expelled parishioners who were exercising their rights as parishioners.
(e)That the meeting of 16 July 2000 was conducted in an oppressive manner.
In response the defendants contend:
(a)That there is no breach of the Constitution;
(b)That there is no withdrawal of the Parish from the Diocese but rather the Diocese has failed to acknowledge its own spiritual head.
(c)That issues raised by the plaintiffs are non-justiciable because there are no property or other relevant issues raised which would allow court to intervene; the issues are purely of “spiritual” nature.
(d)That the Parish was formed on the basis of the information contained in the Consistory, circular No 3 dated 9 November 1992.
(e)That Metropolitan Constantine and Bishop Ioan were invalidly appointed in any event;
(f)That Metropolitan Constantine and Bishop Ioan are subordinate to the jurisdiction of the Ecumenical Patriarchate and this is inconsistent with the autocephalic nature of the Church.
(g)That the issues raised by the plaintiffs concerning the position of the priest do not give rise to a question involving a breach of the Parish constitution about which the plaintiffs are entitled to complain.
(h)That the issue concerning the expulsion of members of the Parish has been resolved.
(i)That as regards the complaints made with respect to the Extraordinary General Meeting held on 16 July 2000 the defendants assert that the meeting was not conducted in an oppressive manner. In particular the defendants point out:
(i)     The Plaintiffs appoint B Solowij to speak for them and he put his point of view;
(ii)    Rev Kvasniuk read to the meeting before the vote the whole of Mstyslav’s communiqué of 25 October 1992;
(iii) The plaintiffs had circulated all Parish members with their views. Exhibits P154 and D155;
(iv)   There is no evidence that anyone was misled by anything said by Mr Pradun;

This action is brought by a minority of members of the defendant association complaining about the actions of another group of parishioners; whether the defendants properly represent the views of the majority of parishioners may be a contentious issue. However the Archbishops have not been joined as parties to the proceedings nor has any representative of the Consistory. Many of the questions which the defendants agitate will require the joinder of the additional affected parties before a determination could be made.
The plaintiffs contend that having regard to the terms of the Associations Incorporation Act the court should enforce the provisions of the Constitution of the Parish by identifying a breach and declaring the conduct of those responsible for the breach to be “oppressive”. The plaintiffs also contend that the court should determine whether the Action Committee exceeded the authority given by the meeting of 5 March 2000 and whether the resolution of 16 July 2000 was capable of ratifying fundamental breaches of the Parish Constitution.
In my opinion all rules contained in the Parish Constitution are not all of equal status. In terms of temporal administration of an association the court is well placed to enforce requirements of the rules. In terms of upholding religious and ecclesiastical dictates the court may treat such matters as being intended to bind only the conscience; in this respect such last-mentioned provisions (by reason of their subject matter) will have no greater effect than the agreement in Balfour v Balfour (1919) 2 KB 571 or in Rose & Frank v Crompton & Bros Ltd (1925) AC 445.
If the rules of an incorporated organisation prescribed a toast to be offered and drunk on formal occasions I would not expect such a requirement to be treated as creating a binding obligation (see Lloyd v Loaring 31 ER 1302 at 1304-1305 per Lord Eldon where a distinction was drawn between the toast itself and control of the silver cup used in the ceremony). Likewise a departure within a church from the observance of a prescribed liturgy may not be regarded as a breach of an enforceable legal obligation (see Wylde’s case at 275). However, it may be that in some circumstances rules of this nature become attached to property so as to affect the operation of trusts (the use of a Sanctus bell) or involve proprietary rights (the entitlement to a stipend). The court may then have jurisdiction to intervene. However, in the present case I am of opinion that the issue is confined to a “spiritual and non secular matter”; the issue is one as to acknowledgement of ultimate spiritual allegiance.
The priest is not a party to this action; if he were denied his stipend then a court would be required to consider whether his failure to observe a direction of the Parish council was a breach of his contract. That is not what has happened. The priest has refused to mention only Patriarch Filaret in prayer and relies on the terms of the Parish Constitution for his stand. None of the plaintiffs have been affected in the enjoyment of a civil right as a result of this action.
I accept that the issue which has been raised in this case could give rise in another context to a justiciable issue. I consider that the approach now to be taken reflects that which was adopted in Scandrett v Dowling (1992) 27 NSWLR 483 where church rules had legislative force. I would adopt the approach taken by Mahoney JA in that case and decide:
(1)that although the rules of the association generally have statutory force the particular rule now in question does not have such force as to be enforceable in the circumstances of this case
or alternatively:
(2)the Court in its discretion would not enforce such a law in the absence of the infringement of some right enjoyed by the plaintiffs.
Although the witnesses to the action all appeared to accept that the actions taken on 8 March 2000 had the effect of changing the jurisdictional status of the Parish (within cl 3 of the Parish Constitution) I can see no good purpose in construing the rule myself if (as I consider it to be the case) my decision on that point is not binding.
In summary, therefore, there are a number of reasons (considered collectively and individually) why the Court should decline to deal with the questions raised or to provide relief:
(1)The issue is one as to spiritual allegiance and does not affect the interests of the plaintiffs as members of an incorporated association which the Court can protect.
(2)Expert evidence has not been called. Some time in the future, the issue may be translated into a property dispute or dispute as to the administration of charitable trusts. If this happens the Court may have to deal with the difficult issues which were argued before me. However although the facts (which are extensively documented) can be ascertained without much difficulty, the Court may require the evidence of experts upon the crucial theological questions if the Court is to be persuaded that declaratory relief is appropriate..
(3)The action as presently constituted comes before the Court as a dispute between Parish members. However, the Diocese and Metropolitan Constantine (and his representative Archbishop Anthony of Washington) and Patriarch Filaret are arguably necessary parties if justiciable questions can be identified. Questions going beyond Parish administration have been raised at least collaterally.
(4)The Court will exercise its jurisdiction when it is “useful” to do so. However the Action Committee has made its request to Patriarch Filaret who has responded. In view of Filaret’s claim (to a spiritual jurisdiction) and his status in the hierarchy the dispute appears to be one requiring to be settled as between himself and Metropolitan Constantine in accordance with Canon law.
(5)For reasons set out below I do not consider that a case for relief against oppression has been made out.
The Associations Incorporation Act includes the following:
“23(1)The rules of an incorporated association bind the association and all members of the association.”
Despite the terms of this rule it is my opinion that some rules of some associations are intended only to bind the conscience of members; alternatively, having regard to their nature, there may be some rules which the court would treat as inappropriate to be the subject of enforcement by way of the decision of a civil court. That is particularly so in the circumstances of the present case.
The Associations Incorporation Act also provides:
“61(1)A member or former member of an incorporated association may apply to the Supreme Court or the Magistrates Court for an order under this section on the ground that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable.
….
(4)The Court hearing a proceeding under this section may, if satisfied that the association has engaged, or proposes to engage, in conduct that is oppressive or unreasonable, make one or more of the following orders:
(a) an order for regulating the conduct of the association’s affairs in the future;
….
(e) an order for the alteration of the rules of the association;”
I have regard to the possibility of exercising power under s 61 so as to order the Association’s affairs for the future.
It may be possible to characterise the actions of an association as oppressive or unreasonable notwithstanding that the underlying issue is itself not justiciable. When a substantial minority in the exercise of conscience takes a stance (as the plaintiffs appear to have done) upon a basis which is not quixotic it behoves the majority (arguably) to respect and to make due allowance for the position in which the minority finds itself. Therefore for one side (representing the will of the majority) to exclude the other from the Association may be treated as draconian unless there were no other way to protect the association’s interests. However, the exclusion of three members of the Parish as abovementioned has been resolved and standing alone cannot now justify any relief.
The plaintiffs’ allegation of oppression in relation to a meeting of the Parish is justiciable but I consider the confirmatory meeting of 16 July 2000 was properly conducted (as were all the meetings of 3 May 1998 and 5 March 2000).
Although based on different legislation the remarks of Lord Hoffmann in O’Neill v Phillips [1999] 1 WLR 1092 are helpful. Lord Hoffmann discusses the question of the relief which might be granted to a party who is aggrieved when the legitimate expectations of that person as to the conduct of the affairs of the company of which he became a member have not been satisfied.. It seems to me that the language of s 61 of the Associations Incorporation Act is freed from technical considerations of legal right although the court does not sit under a palm tree. There is a body of evidence that the Parish of St Michael was formed in expectation that the Diocese was about to submit to the Kyiv Throne. The question at issue is one as to whom should be recognised as the rightful occupier of the Throne. Any other disputes are merely manifestations of the unfortunate split which has occurred in Ukraine. I cannot determine the issue within the action as presently constituted. I am not disposed to exercise power under s 61 in proceedings which are constituted only by the Parish and its members.
In my opinion (except with respect to the complaint as to the conduct of a Parish meeting) the question at issue is not justiciable. The action will be dismissed.

[2002] SASC 408

12 December 2002