WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd

GREEK ORTHODOX COMMUNITY OF SA INC v
SPYRIDON ERMOGENOUS
[2000] SASC 329

Full Court: Doyle CJ, Mullighan and Bleby JJ

1................ DOYLE CJ...... I have read the reasons of Bleby J. His thorough treatment of the facts and of the law enables me to state my reasons relatively briefly. I adopt with gratitude his statement of the relevant facts.

I would grant leave to Greek Orthodox Community of SA Inc (“the Community”), pursuant to s 191(1)(b) of the Industrial and Employee Relations Act 1994 to bring the appeal. That makes it unnecessary for me to express an opinion on the question of whether the appeal is based on an alleged excess or deficiency of jurisdiction. I would grant leave to the Community because the submission advanced on its behalf, that the Respondent is not capable in law of being an employee of the Community, raises an issue that warrants the grant of leave. The submission raises the issue of the correct approach to be taken by a court when a claim is made by a Minister of religion that there is a contract of employment between the Minister and a church, or some person or entity providing material benefits to the Minister to enable the Minister to exercise the Minister’s ministry. I will use the term “Minister of religion” as a convenient shorthand to refer to a variety of clerical offices in the Christian religion and non-Christian religions. The submission raises an issue of some importance and of relevance to a number of religious offices and religions. I realise that in a given case it will be necessary to pay careful attention to the nature of the particular clerical office in question, and to the practices of the church and religion in question. The issue raised by the submission for the Community has required, as the reasons of Bleby J demonstrate, careful consideration of a body of case law not previously considered by this Court, and not considered much by courts in Australia. In my opinion that circumstance warrants the grant of leave to appeal.
I would grant leave to appeal even though, in the end, and like Bleby J, I conclude that the appeal is to be decided by the application of established principles of the law of contract to the facts of the particular case.
I also adopt the statement of relevant legal principles that appears in the reasons of Bleby J. In particular, I agree with Bleby J that in the case of a Minister of religion, there is no presumption of an intention to enter into a contractual relationship in relation to the remuneration and maintenance and support. For the reasons given by Bleby J, the starting point in such a case is that usually there is no intention to enter into a contractual relationship on such matters. But, it is important to emphasise, that is no more than a starting point, and in the end it is a question of whether an intention to enter into a contractual relationship was expressed by the parties, or is to be inferred as a matter of fact from the relevant dealings between them.
The relevant principles are well established. In the nature of things, they can do no more than provide guide posts along the way. Some text books refer to presumptions that certain types of agreement will not be binding, presumptions that certain other types of agreement will be binding, and a process of rebutting such presumptions. That is not an approach that I find particularly helpful. I consider that the necessary guidance can be found in the following words of Windeyer J, written in a very different context, but nevertheless helpful. In The State of South Australia & Anor v The Commonwealth of Australia (1962-63) 108 CLR 130 at 154 he said:
“... An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law. ...”
He returned to this theme in Placer Development Ltd v The Commonwealth of Australia (1969-70) 121 CLR 353. In that case Windeyer J was in dissent in the result, but I consider that his statement of the relevant principle is correct. He said (at 367):
“... I venture to say, despite some statements in other cases, that whether there was a voluntary assumption of a legally enforceable duty in a particular case is not to be decided by asking whether or not the parties had expressed or exhibited an actual and positive intention that their agreement was to result in legal obligations. It depends rather on an inference to be drawn from the subject matter and nature of their agreement, and other circumstances to which I referred in what I wrote in South Australia v The Commonwealth (1962) 108 CLR 130, which I refrain from repeating. Social engagements and domestic arrangements are outside the realm of contract law, simply because the parties to them must be regarded as intending that their mutual promises, whether kept or broken, are not to land them in Court.”

In this context I also refer to the discussion of the relevant issues by Tadgell J in Toyota Motor Corporation Australia Ltd & Anor v Ken Morgan Motors Pty Ltd & Ors (1994) 2 VR 106 at 168-170. These are the principles that I consider should be applied.

In the present case, the Respondent had to satisfy the Industrial Relations Court that such an intention to enter into legally binding obligations was to be inferred from his dealings with the representatives of the Community.
The Magistrate’s conclusion that there was a contract of employment between the Community and the Respondent rests upon his findings about a number of discussions between representatives of the Community and the Respondent, which took place in Adelaide in March 1970, shortly after the Respondent arrived in South Australia. The Magistrate accepted the substance of the Respondent’s evidence about these meetings, but noted that there did not appear to be any significant conflict between the evidence on either side about these meetings. The dispute between the parties was as to the inferences and conclusions to be drawn from what took place at the meetings. The Magistrate’s findings were upheld on appeal by a Judge of the Industrial Relations Court and by the Full Court of the Industrial Relations Court. I am again content to adopt the summary of Bleby J of the reasons given by the Magistrate, the Judge and the Full Court of the Industrial Relations Court.
To my mind, it is important to bear in mind that the Community is not a church, in which the Respondent held a clerical office. Nor was the Respondent in any capacity an officer of the Community. The Community is a body that fosters Greek culture in South Australia in the broadest sense. The Community also fosters the practice of the Greek Orthodox faith in South Australia. The Community does not restrict involvement in its affairs to adherents to the Greek Orthodox faith. Bleby J has outlined the evidence and findings made relating to the functioning and role of the Community. The following paragraph from the Magistrate’s reasons, in which he summarised some evidence given about the role of bodies like the Community, is of particular significance:
“Among many other functions, these associations (which were more commonly referred to as ‘communities’) acquired land, built churches and recruited consecrated clergy of the Greek Orthodox Church, often from overseas, to minister to the spiritual needs of the members of the communities, and to provide the religious and spiritual dimension which was seen as an integral basic component of Hellenic and Orthodox culture. Each community was in the habit of arranging the recruitment of its own local clergy who, upon appointment, were recognised and treated as being employees of that community for the duration of their appointments, and were subject to the directions of its officers in their ministrations, subject however to the personal obligations that came with their consecration and the priestly nature of their employment. These aspects of the organisation of the orthodox churches were pointed up again and again in the evidence.”
Two significant points emerge from this passage, and from the reasons of Bleby J on this topic. The first is that the Community, like other bodies active in the Greek community in Australia, fostered the practice of the Greek Orthodox faith by, among other things, providing churches for the use of the Orthodox Church. In this and in other respects the role of the Community appears to have been to facilitate and to encourage the practice of the Orthodox faith. Appreciating this helps one understand the role of the Community in the dealings with the Respondent. On the other hand, as the Magistrate also points out, there was an established practice of such communities recruiting and employing ordained priests. This material might suggest that the role of the Community was no more than that of a substantial supporter or sponsor of the Orthodox Church. On the other hand, the history of employing ordained priests indicates that there was also a history of contractual relationships being entered into between bodies like the Community and Ministers of religion. One cannot approach the present case on the basis that a contract of employment between the Community and a Minister of religion was, as a matter of history or practice, something unknown or contrary to local practice.
Another matter of significance is the part played by the Community in encouraging the Respondent to come to Australia. As Bleby J explains, the Respondent was approached by the then President of the Community, and by the President of a similar Victorian community. That latter person was also President of an existing Federation of Greek communities. Assuming that the President of the Community was acting for the Community in entering into these arrangements with the Respondent, there is no particular reason to infer from this conduct that there was an intention that there be a contract between the Community and the Respondent. The approach made to the Respondent, that resulted in him coming to Australia, was made on behalf of and in the interests of a number of Greek communities in South Australia, Victoria and New South Wales. The involvement of the Community, through its President, was consistent with its general role in the life of the Greek community, and with its interest in fostering the cultural and religious life of the community. It is relevant that the approach to the Respondent was an invitation to come to Australia to be Archbishop of an Orthodox Church. My impression is that on the basis of the evidence one can define that Church no more precisely than to say that it is defined positively as a Church of the Orthodox faith and negatively by its rejection of the authority of the Orthodox Archbishop of the time who was based in Sydney.
The point I make is that the Community was not acting entirely on its own behalf. It was acting in the interests of a number of Greek Orthodox communities, and these communities envisaged the formation of an Autocephalic Greek Orthodox Church in Australia. As the Magistrate explains, that never came about.
In brief, to the extent that the Community was involved, it participated with and on behalf of others in bringing the Respondent to Australia to take up a position, not as an officer of the Community, and not solely for the Community. It was hoped that the Respondent would become Archbishop of a Church yet to be formed. Quite apart from that, it was envisaged that the Respondent would minister to a number of communities that are part of what I have described as a local Orthodox Church. In acting as it did the Community acted consistently with its promotion of Greek culture and of the Orthodox faith. It was not playing a part which leads to any presumption or inference that it was entering into a contract with the Respondent or that it would be the employer of the Respondent, although the fact that it employed priests could support an inference that it did intend to enter into a contract and to become an employer.
In the light of that background, the Magistrate’s findings about what took place at the meetings in Adelaide appear to me to be equivocal when considering whether or not those findings give rise to an inference of an intention to enter into contractual relations. I put it this way because there is no suggestion that, at the time, either party expressly alluded to that matter. Admittedly, as the Magistrate said (p 134):
“... The applicant gave evidence that he believed from the time he first entered into his agreement that he was engaging in a contract of employment, and further believed that, in the absence of an express agreement on any particular point, he would be accorded the same treatment and terms as were accorded by the various individual communities to the priests and bishops whom they employed. ... ”
But this is evidence given long after the event, and evidence about a belief, as far as I can tell, never expressed at the time. I do not use that in an adverse sense against the Respondent’s case. I merely make the point that the Magistrate had to draw an inference as to an unexpressed intention, the inference being drawn on the basis of what transpired at the time.
To my mind, whatever was to be the relationship between the Community and the Respondent, it was to be expected that the persons who encouraged the Respondent to come to Australia, or if not them, some representatives of the local Greek community, would ascertain the remuneration that the Respondent sought if he were to remain in Australia, would ascertain other support that he would require, and in particular would wish to clarify the relationship between the Respondent as Archbishop, the local Orthodox church and the local communities. In his reasons Bleby J explains why this is so.
In considering the inference to be drawn from the discussions in Adelaide, it is also relevant that the Respondent was not providing services to the Community, but to members of the local Greek Orthodox church. The role of the Community was to facilitate the availability of the Respondent to the local church, just as a sponsor of a community organisation might help that organisation locate, recruit and meet the costs of employing a key employee. The discussions, and the financial arrangements referred to, are consistent with the view that the Community was, in effect, offering to provide a subsidy to the local Orthodox Church to make it feasible for the Respondent to take up a position with the local Orthodox church.
The Magistrate seems, to some extent, to have based his conclusion that there was a contract of employment upon his acceptance of the Respondent’s evidence (pp 32-33). He also relied upon the fact that the discussions got down to details (p 29). But, as I have said, to my mind this feature of the discussions is equivocal. His conclusion that there was a contract of employment with the Community (pp 33-34) does not grapple with the question of why the Community would enter into a contractual relationship with the Archbishop when his arrival in Australia, and the discussions about the future, were premised upon the Respondent assuming a role as Archbishop in a yet to be established church, and in a position which would depend upon the support and agreement of other Greek communities. Nor does it allow for the fact that the occurrence of detailed discussions, and the provision of financial support, were equivocal, in the sense that they are readily explicable on other bases. A little later, referring to the later discussions in Melbourne, the Magistrate said (p 40):
“In the meantime there had to be some agreement to allow the applicant to live and work in Australia, which defined his role, functions and duties and which provided at least the minimum practical arrangements for his subsistence and support. Whatever contract or arrangement was agreed between the parties - and it is worth again stressing that they worked, and by and large amicably, under that contract and arrangement for near a quarter of a century thereafter - arose from the course of the discussions in the Adelaide meeting, not the Melbourne one. After the former meeting was over (and weeks before the Melbourne one had even convened), there was a complete and binding agreement (and leaving aside for the moment the nature of that agreement) between the applicant and the SA Community which was to subsist at least until other and more formal arrangements had been made with the other communities and agreed by the principal parties. ...”

But, once again, the Magistrate does not explain why he concludes that the initial agreement or arrangement was a contractual arrangement, as distinct from a non-contractual arrangement.

Bleby J has concluded that the Magistrate did not consider as a distinct issue whether it is to be inferred that the parties intended to enter into a legally binding arrangement.
Having read the Magistrate’s reasons with care, I have reached the same conclusion. In particular, at no stage in his reasons have I identified a consideration of the question of whether, bearing in mind the background to the discussions in Adelaide, and the basis upon which one should consider the question in relation to a Minister of religion, there are grounds for inferring that it was the intention of the Community and the Respondent to enter into a binding contractual relationship. In expressing the issue that way I do not mean to imply that there could be a contract only if each of them adverted to the issue of a contractual relationship. What I mean is that one must consider whether each of them intended a relationship that was binding in law, or, more accurately, whether it should be inferred on the basis of their conduct and what they said that they are to be taken as having so intended. To my mind, having read and re-read them, the Magistrate’s reasons are expressed as if the issue in his mind was whether there were detailed discussions about remuneration and financial support, and as if he assumed that if there were such discussions, they necessarily gave rise to a binding contract, assuming that a Minister of religion could in law be regarded as an employee. That latter issue seems to have pre-occupied the Magistrate. I find no consideration of the matters referred to by Windeyer J in the extract from his reasons set out above.
The question of whether a contract arose is to be decided by reference to discussions that took place in Adelaide, as the Magistrate found. Sometimes it is necessary to consider later conduct of the parties, and things done pursuant to the suggested contract, to enable one properly to characterise the nature of that contract: see Connelly v Wells (1994) 55 IR 73. But in the present case the basic issue is whether there was an intention to enter into contractual relationships at all. To the extent that later events are relevant to that question, I agree with the analysis of Bleby J. I mention one or two matters. The fact that payments appear to have been made by the Community to the church, rather than to the Respondent, argues against rather than for an existence of a contract between the Community and the Respondent. The fact that the Community made PAYE tax deductions does, I think, assist the Respondent, but as Bleby J points out there are other explanations for that. The fact that the Respondent ministered to a number of communities and different churches seems to me to argue against the conclusion that the Magistrate reached.

I have also considered the reasons of the single Judge of the Industrial Relations Court, and of the Full Industrial Relations Court. It seems to me, with respect, that in those reasons there is again evidence of an assumption, or unduly ready conclusion, that the making of detailed arrangements between the Community and the Respondent points towards the existence of a contractual relationship. It may be that the heavy emphasis in the submissions for the Community on the proposition that a Minister of religion cannot in law be an employee is an explanation for the approach taken below. The argument may well have been pitched on a basis that implied that if it failed, there was no real obstacle to the conclusion that there was a contract and that the Respondent was an employee.
I note that the single Judge of the Industrial Relations Court rejected the submission that “a Minister of the Church cannot in law be an employee” and said that the issue is “whether he has demonstrated that relationship existed”, but then moved almost immediately to consider whether the agreement between the Respondent and the Community was a contract of service. The question of whether there was a binding agreement at all seems to have been passed over (p 18).
In the Full Industrial Relations Court the Senior Judge carefully summarised the Magistrate’s findings, and in substance took the approach that these findings were reasonably open to him. But again, I cannot find specific consideration of the issue of contractual intent, although that issue may underlie some of the discussion in the Judge’s reasons (at pp 11-12). In particular, the Senior Judge refers to the fact that the Community was an employer of priests. The Senior Judge says that he could not find any evidence that there was to be any fundamental difference in the nature of the legal relationship between the Respondent and the Community, compared with the Community and other clergymen. I agree that that is relevant to the drawing of an inference that there was an intention to enter into a legally binding relationship. But the Senior Judge’s conclusion that the Magistrate’s decision should stand is expressed in terms that the Magistrate’s decision was based on material findings of fact, which findings were reasonably open to him, and should not be disturbed on appeal. The difficulty that I have identified is that the Magistrate does not appear to have addressed a critical issue. It is not clear to me, with respect to the Senior Judge, that he has adequately addressed this issue either.
In her reasons, Judge Parsons refers to the question of whether the relationship between them was “intended to create a contract enforceable in law”. She refers to a number of the relevant decisions. She refers to a submission advanced for the Community that the Magistrate had wrongly characterised the initial meeting in Adelaide as resulting in a binding agreement. After referring to the Magistrate’s findings as to the meeting in Adelaide, and to the evidence given before the Magistrate, she says:
“The primary findings about the Adelaide meeting, upon which the Magistrate drew certain inferences as to the existence of a legally enforceable contract between the appellant and the Respondent, were based on his assessment of the witnesses and his acceptance of the Archbishop’s evidence.”

Judge Parsons then says that those inferences were reasonably open to the Magistrate, error has not been demonstrated, and she concludes that it was permissible for the Magistrate to reason as he did, and that no error has been demonstrated. It may be, as Bleby J says in his reasons, that the Judge made inappropriate use of events that occurred in the course of the relationship, to determine whether, from the outset, the relationship was a contractual one. But quite apart from that there is the difficulty that the Magistrate’s reasons indicate that he did not address the issue of whether the arrangement between the Community and the Respondent was a legally binding one, and at best one must assume that he drew the inference to which Judge Parsons refers.

In all the circumstances I am forced to conclude that the interests of justice require that this Court consider the question of whether it should be inferred that the intention of the parties was to enter into contractual relations. I am reluctant to do so for obvious reasons. This is the third appeal. The inference is one of fact, although affected by the legal principles identified by Bleby J. The Respondent has been successful at three different stages in a specialist court. The issue is one on which I would normally give considerable weight to the views of the court below. If the only issue now raised was a challenge to an inference reached on a correct legal basis, I would be most reluctant to depart from the conclusion of the court below, for the reasons indicated. However, a careful reading of the reasons of the Magistrate, and of the Judges of the Industrial Relations Court, has led me to conclude that the critical issue of whether it is to be inferred that the parties intended to enter into legally binding arrangements has not been addressed by the Magistrate, and has not been addressed in the subsequent appeals.
For those reasons it is necessary for this Court to consider the issue afresh, regrettable as that may be.
On that aspect I have nothing to add to the reasons of Bleby J. I agree that, taking into account all of the circumstances, the proper inference to be drawn is that it was not the intention of the parties to enter into binding legal obligations. The Magistrate should have concluded that there was no contract between the Community and the Respondent. The claim should have been dismissed.
For those reasons I would extend the time within which to apply for leave to appeal to 7 March 2000; grant leave to appeal; order that the appeal be allowed; order that the decision of the Full Industrial Relations Court be set aside and in lieu thereof order that the order of the Industrial Magistrate as varied by the single Judge of the Industrial Court be set aside and that the applicant’s claim for payment in lieu of annual leave and long service leave be dismissed.

MULLIGHAN J I have had the advantage of considering the reasons for judgment of the Chief Justice and Bleby J. I find myself in disagreement with them as to the fate of this appeal. The issues of law and fact raised by this appeal are set out by Bleby J and he has mentioned the relevant factual background in considerable detail. I am able to state briefly my reasons for the conclusions which I have reached.

Jurisdiction

I refer to the observations of Perry J in York Civil Pty Ltd v Workers Compensation Tribunal & Anor (unreported) [1999] SASC 173 at pp12-14 with which the other members of the Court, Prior J and myself, agreed. These observations remain my view as to the jurisdictional question. The Courts below not only had the power to decide whether the respondent was an employee of the appellant, they had the power to decide it conclusively: see also General Assembly of Free Church of Scotland & Ors v Lord Overtoun & Ors; Macalister & Ors v Young & Ors [1904] AC 515 per Lord Lindley at p702 and Selamis v Workcover Corporation & Ors (1998) 200 LSJS 124 per Lander J.
It may be suggested that views expressed by Bray CJ in The Queen v Allan; Ex Parte Australian Mutual Provident Society (1977) 16 SASR 237 at pp240-242 and by King J at pp255-257 are to the contrary. It is unnecessary to consider whether that is so and if it is, which view should now prevail, as I am content to grant leave to the appellant to bring the appeal for the reasons given by the Chief Justice.
I agree with the Chief Justice and Bleby J that the appeal is to be decided upon the application of the law of contract and that there is no reason in law why a minister of religion, including a person holding the office which was held by the respondent, may not be a party to a contract of service and therefore an employee or former employee with the consequence that the Industrial Relations Court could make an order with respect to long service leave under s13 of the Long Service Leave Act 1987. I agree with the reasons expressed by Bleby J in that regard. I also agree that there are, in essence, two issues to be resolved: was there an intention on the part of the parties to enter into a contract of service and, if so, is the contract between the parties one of service thereby creating the relationship between them of employer and employee?
Where I differ from the other members of the Court is that I think both issues should be resolved in favour of the respondent.
Usually an intention to enter into a contractual relationship is not actually expressed by the parties to an arrangement but may readily be inferred from the circumstances.
It seems to me that the issue of whether the parties intended legal relations assumed little, if any, direct prominence in the courts below and only moderate prominence before us. The learned Magistrate, Judge McCusker and the Senior Judge do not refer to the matter directly. Judge Parsons refers to the matter only briefly. It is likely the reason for that lack of prominence is that the focus was on whether a person of the calling of the respondent could be an employee.
It is to be expected that the issue of whether the parties intended legal relations was either subsumed in the consideration of that issue at each of the three stages in the Industrial Relations Court or it was accepted that the necessary intention was present. Consequently, I do not think such a fundamental matter should decide the outcome of the case at this stage, which is a third appeal.
However, as the other members of the Court take a different view, I express my own conclusion about the matter.
Shortly I address the question of whether the nature of the arrangement between the parties was a contract of service and in doing so I mention features of the evidence before the learned Magistrate. Those features suggest that the parties intended to enter into legal relations. The nature of the arrangement was unusual, namely the provision of spiritual and pastoral services for members of the appellant and, it would appear, anyone else who wished to receive them. However, the engagement of the respondent was primarily for the benefit of the members of the appellant. The discussions which led to the completion of the arrangement covered types of matters which usually form the essence of a contract of service, namely salary, leave and the services to be provided. It also provided for a residence to be available to the respondent. It is to be expected that the parties wanted to establish binding arrangements. I think the circumstances of the discussions between the parties and the nature of their arrangement which involved the respondent committing himself to the service of the appellant, and to some extent to the communities, its members exclusively and indefinitely for financial benefits, permits the inference that they intended legal relations. I can see no reason to doubt that the respondent discharged the onus cast upon him in this regard.
Whether the parties entered into a contract of service is to be determined from all of the circumstances with due consideration to the indicia which point in favour of and against such a conclusion: The Queen v Allan; Ex Parte Australian Mutual Provident Society per Bray CJ at p248:
“It seems to me, then, that at the present time there is no magic touchstone. The Court has to look at a number of indicia and then make up its mind into which category the instant case should be put. It is a question of balancing the indicia pro and con; cf. Sykes and Glasbeek, Labour Law in Australia (1972) p.14. But the power of control over the manner of doing the work is very important, perhaps the most important of such indicia.”

This approach was expressly approved by the Privy Council in the same case on appeal: Australian Mutual Provident Society v Chaplin & Anor (1978) 52 ALJR 407 at 408.

At the forefront of consideration of this aspect of the appeal, there are two matters of significance. The first is that the Industrial Relations Court at three levels has consistently reached the same conclusion. The Court is a specialised court entrusted with the jurisdiction to decide this issue and has considerable experience in the weighing of indicia in determining whether a person is an employee. The conclusion of such a Court should not be overturned except in a clear case. The second matter is that upon considering the various indicia, it must be kept in mind that this is an unusual case. The factors which point one way or the other in determining the nature of a contractual relation regarding the provision of services in the workplace may not have the same obvious significance when considering the nature of the relationship between an Archbishop and the community which he serves. Another matter of significance is the history in this State of the appellant and its provision to the community of religious facilities. The learned Magistrate, in a passage of his reasons for judgment adopted by the Senior Judge of the Full Industrial Relations Court, after relating the history of the Greek Orthodox Church in Australia and communities, said:
“Among many other functions, these associations (which were more commonly referred to as ‘communities’) acquired land, built churches and recruited consecrated clergy of the Green Orthodox Church, often from overseas, to minister to the spiritual needs of the members of the communities, and to provide the religious and spiritual dimension which was seen as an integral basic component of Hellenic and Orthodox culture. Each community was in the habit of arranging the recruitment of its own local clergy who, upon appointment, were recognised and treated as being employees of that community for the duration of their appointments, and were subject to the directions of its officers in their ministrations, subject however to the personal obligations that came with their consecration and the priestly nature of their employment. These aspects of the organisation of the orthodox churches were pointed up again and again in the evidence.
The communities also organised the cultural, social and sporting lives of their members, and were one of the most important elements in the promotion of knowledge and understanding of that culture as Australian society grew in its size, variety and sophistication. It is significant to note that the communities were not exclusively dedicated to religious affairs or purposes, and some, at least, of the individuals who composed them did not necessarily share the full range of religious values and ecclesiastical practices of the church itself.”
The Senior Judge, correctly in my view, regarded this history as setting the scene for the issues which had to be decided and he noted:
“It seems apparent that these associations or ‘communities’, of which the appellant is one, provide a range of social and cultural services to their members and engage, where necessary, specialists so to do. One of those services is to provide for the spiritual well-being of their members and significantly it is common ground between the parties that for this purpose it employs priests of the Greek Orthodox faith.”
Also, it is necessary to have regard to the matters of history mentioned by Bleby J and, in particular, the split with the Archdiocese of Sydney, the issue of removing control from him and the desire of the various communities, including the appellant, to control their own affairs, the formation of the Federation of Greek Communities, and the appointment of the respondent. I am grateful for his summary which I need not repeat.
In my view, there are a number of indicia which establish a contract of service. The appellant, with support from the Federation, arranged for the respondent to come to Australia to serve as Archbishop. He left his living in the United States of America and accepted the role in this country. I do not think it is a matter of great significance that the approach was made by the appellant also on behalf of the other communities.
At the outset there was discussion and then agreement about salary and other benefits. According to the respondent, the evidence of whom was accepted, it was accepted at a general meeting of the Federation in Victoria that apart from salary, “they would give me other things that the people who are employed would get and if I fell sick they would take responsibility”. At the meeting of the Federation in Melbourne on 19th April 1970, and also by the appellant in committee in Adelaide, it was agreed that the respondent would be paid similarly to priests and that “I [would] be one of their employees”. At the meeting in Melbourne the offer to the respondent was that he be the spiritual leader and be paid “relative” remuneration, annual leave, long service leave “and anything else that the Australian law is in favour of”. The amount of the annual salary was fixed at $15,000 with payments received for performing sacraments and gifts to be set off against that amount if they exceeded the salary. According to the respondent, these offers were made by the Vice President of the appellant. The offer was accepted. Also, it was agreed that the appellant would provide a residence for him. The evidence establishes the appellant paid the salary until at least the middle of the 1980’s and probably thereafter although there may have then been some contribution from other communities. Income tax was deducted on a regular basis.
In his evidence, which apparently was also accepted, Mr Manos, the President of the appellant at the time, said that the respondent devoted his energies to the activities of the church for the communities both in Adelaide and interstate.
It may be seen that this is the language normally associated with a contract of service. Furthermore, the appellant paid the salary of the respondent on a weekly basis from which it deducted PAYE tax even when the respondent was in the United States of America.
I turn to the matter of control. It is not the exercise of control which is necessarily significant, but the right of an employer to exercise it: Humberstone v Northern Timber Mills (1949) 79 CLR 389 per Dixon J at p404, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
Given the unusual nature of the services provided by the respondent compared with what is usually seen in the workplace, it is to be expected that there would be little, if any, occasion for control of the respondent in the discharge of his spiritual or pastoral duties. He provided a service to the appellant which did not admit of control in the usual sense that an employer would exercise control over an employee, such as a tradesperson or office worker. His task was to provide the service to the appellant and to control and direct the religious life of the priests and the services provided by them. In a case of this nature, it is to be expected that control, in the usual sense, would not be a matter of significance.
However, there were occasions when the appellant, through an office bearer, did exercise control of the respondent in relation to his duties. According to Mr Manos, they appear to have been mainly with respect to the respondent’s disciplining of priests. According to the respondent, there were times when the appellant interfered in that activity. At one time he was prevented from disciplining priests. He said that in 1989 the appellant forced him to reinstate two bishops whom he had dismissed. On one occasion the appellant directed him to ordain a priest whom he thought was not suitable. He said that he was required to perform services at churches throughout South Australia and that the appellant decided which churches he would attend on a particular day. He said that on many occasions he preferred to be at a particular church but had been ordered by the appellant to attend another church and he complied with that direction. According to the respondent, when he was invited to perform a religious function interstate, he was obliged to seek permission from the appellant which, on occasions, was refused. On occasions he was told not to interfere with the practices of some of the priests. When the respondent wanted to return to the United States of America for a short period in 1975, he negotiated a paid leave of absence with the appellant.

Furthermore, these matters establish that if the respondent had failed to discharge his duties at all, or discharged them in a spiritually inappropriate or unseemly manner, he would have been subjected to direction by the appellant. The evidence of Mr Manos established that the appellant could give directions about matters which an archbishop may have previously regarded as matters of orthodox faith and tradition.
The learned Magistrate, having reviewed the evidence, concluded that a contract of service had been established. As I have said, the other members of the Industrial Relations Court, at various levels, saw no reason to interfere with that finding. I think it is open on the evidence. The matters I have mentioned justify such a conclusion in all the circumstances. There is no sound reason for this Court on appeal to interfere.
I would grant leave to appeal for the reason already mentioned, but I would dismiss the appeal.

BLEBY J

BACKGROUND
Until 12 December 1993 the respondent, for more than twenty years, had been the Archbishop of the Autocephalous Greek Orthodox Church in Australia. On that day he ceased to be Archbishop. He subsequently brought proceedings in the Industrial Relations Court against the appellant. His claim was twofold: for a pro rata payment in lieu of accumulated annual leave, and for a pro rata payment for accumulated long service leave, calculated in both cases to the date he ceased to be Archbishop. The principal issue before the Industrial Magistrate and on the three appeals which have followed has been whether the respondent was an employee at common law of the appellant. The Industrial Magistrate who heard the claim held that he was. A single judge of the Industrial Relations Court dismissed an appeal from that decision. The Full Court of the Industrial Relations Court dismissed an appeal from the single judge.
The appellant now appeals to this Court. It claims that it has an appeal as of right. By way of alternative, the appellant made an oral application at the hearing of the appeal for an extension of time in which to seek leave to appeal and for leave to appeal against the decision of the Full Court of the Industrial Relations Court. In any event, the appeal was fully argued before this Court.
Section 191 of the Industrial and Employee Relations Act 1994 (“the Industrial Act”) relevantly provides:
“(1). An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if -
(a)... the appeal is based on an alleged excess or deficiency of jurisdiction; or
(b) the Supreme Court grants leave to bring the appeal.
(2)... The appeal must be heard by the Full Court of the Supreme Court.
(3)On the hearing of an appeal under this section, the Full Court of the Supreme Court may -
(a)... confirm, quash or vary the judgment, order or decision appealed against; or
(b) refer the judgment, order or decision back to the Court with directions the Full Court of the Supreme Court considers appropriate.
(4)... An application for leave to appeal under this section must be made within 14 days of the date of the judgment, order or decision against which the leave to appeal is sought.”
It follows that whether the appellant has an appeal as of right depends on whether the appeal is “based on an alleged excess or deficiency of jurisdiction”.
AN APPEAL AS OF RIGHT?

2.1 Jurisdiction of the Industrial Relations Court

The claim in respect of annual leave was based on an alleged contract of employment. It was not based on any statutory claim. Although the cause of action arose before the commencement of the Industrial Act (8 August 1994), clause 8 of Schedule 1 of the Act provides that the jurisdiction of the Court under the Industrial Act extends to causes of action that arose before the commencement of the Act. Jurisdiction was conferred on the Industrial Relations Court by s 14 of the Industrial Act:
“14.. The Court has jurisdiction to hear and determine monetary claims of the following kinds -
(a)... a claim for a sum due to an employee or former employee from an employer or former employer under -
(i).... this Act, an award, enterprise agreement or contract of employment; or
(ii)the Commonwealth Act, or an award or agreement under the Commonwealth Act; or
(b)... ....”
For the purposes of the Act “employee” is relevantly defined as meaning a person employed for remuneration under a contract of employment. The question in respect of this part of the claim is whether a conclusion that the respondent was an employee goes to the jurisdiction of the Court or whether it was merely a question to be determined by the Court in the exercise of its jurisdiction.
The jurisdiction of the Court in relation to the claim under the Long Service Leave Act 1987 (the LSL Act) is expressed somewhat differently. At the time when the proceedings were commenced, s 13 of the LSL Act read:
“13. (1).... Subject to this section, where -
(a)... a worker is not granted long service leave in accordance with this Act;
or
(b)... a worker, or the personal representative of a deceased worker, does not receive a payment to which he or she is entitled under this Act,
the Industrial Court may, on application under this section, order the employer (or former employer) of the worker to grant the leave or make the payment.
......... (2) An application under subsection (1) may be made by -
(a)... the worker;
(b) if the worker is dead - the worker’s personal representative;
(c).... with the consent of the worker - a registered association of which the worker is a member;
....
(5)... The Industrial Conciliation and Arbitration Act, 1972, applies in relation to an application under this section as if the application were a claim under that Act for a sum due under a contract of service.”
At the time of commencement of these proceedings the Industrial Conciliation and Arbitration Act 1972 (subsequently renamed the Industrial Relations Act 1972) had been repealed and replaced by the Industrial Act. The former Industrial Court had been abolished. However, clause 5 of the transitional provisions of Schedule 1 of the Industrial Act ensures that thereafter the reference in the LSL Act to the Industrial Court must be read as a reference to the present Industrial Relations Court. The provisions of s 24 of the Acts Interpretation Act 1915 also ensure that the reference in the LSL Act to the Industrial Conciliation and Arbitration Act 1972 must be taken to be a reference to the Industrial Act. (It is to be noted that s 13 of the LSL Act has since been amended to confer jurisdiction on the Industrial Relations Court and to refer specifically to the Industrial Act in subsection (5): Long Service Leave (Miscellaneous) Amendment Act 1997, No 50 of 1997, which came into operation on 21 August 1997).
For the purposes of the LSL Act a “worker” is defined as meaning a person employed under a contract of service. Therefore the identical question as to whether or not the respondent was an employee arose under this part of the claim as it did in respect of the claim for a pro rata payment in lieu of annual leave.

2.2 Excess or want of jurisdiction

Whether a person is an employee at common law is a mixed question of law and fact: Rohrlach v Christianos (1980) 26 SASR 161 per King CJ at 162 ‑ 163. That question is to be resolved by determining whether the parties were in a contractual relationship and whether, if they were, the contract is properly characterised as a contract of employment. Both those issues involve questions of mixed law and fact. A wrong decision may involve an error of law in formulating the correct legal test or in failing to pose a relevant question. The decision may be wrong because the error is one of fact alone in failing to draw correct inferences of fact from proved or accepted primary facts. There may be many reasons or a combination of reasons why an incorrect conclusion as to the status of an alleged employee is reached.
Against that background one must attempt to discern what alleged errors involve excess or want of jurisdiction.
If the error in this case is said to be an error of law, the question may have to be faced as to whether it is an error of law going to jurisdiction or an error of law made within jurisdiction. In some cases it would appear that that distinction may no longer apply.
The debate on that issue since the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 seems now to have been resolved for the time being in this country by holding that whilst the distinction between errors of law going to jurisdiction and errors made within jurisdiction may not be relevant for the purposes of certiorari against most administrative tribunals, it is still a relevant distinction in considering the actions of a court of law: Craig v The State of South Australia (1995) 184 CLR 163 at 178 ‑ 180; Edwards v Guidice (1999) 169 ALR 89 per Finkelstein J at [105]‑[106]. In other words, absent a clear parliamentary intention to the contrary, an administrative tribunal may not have jurisdiction to make errors of law but a court of law usually will. The wisdom of this somewhat artificial distinction with its possible anomalous effects on the administration of justice may be questioned. However, it is a distinction which now must be applied. The Industrial Relations Court is a court of record (s 9, Industrial Act). Although it is a court of limited jurisdiction as to subject matter, it is plainly a court of law, and would appear to have jurisdiction to make errors of law. If the distinction based on Craig’s Case is correct, the same may not be true of the Industrial Relations Commission, at least in the exercise of some of its jurisdictions. Whether it has jurisdiction to decide questions of law in its reinstatement jurisdiction, in which it too may often have to decide whether a person is an employee, is a matter which it is not now necessary to decide.
However, I do not believe that this is a case where it is necessary to dwell on the distinction between error of law made within jurisdiction and an error going to jurisdiction. The court plainly had jurisdiction to find the facts necessary in order to decide whether the contract of employment existed. It had jurisdiction to draw inferences of fact, even if they were inferences which an appellate court might not draw. It had jurisdiction to decide questions of law relevant to the conclusion as to whether the relationship was one of employment. The question is whether the exercise of its jurisdiction to entertain the respective claims, if it reaches a wrong conclusion as to whether a person is an employee, amounts to an excess or deficiency of jurisdiction. The question is clearly stated in the oft quoted passage from the speech of Lord Lindley in Free Church of Scotland v Overtoun (Lord) [1904] AC 515 at 702:
“The distinction between an erroneous decision by a body having jurisdiction to deal with a particular subject‑matter, and a decision by a body having no jurisdiction over the matter decided, is familiar to all lawyers, and must be steadily borne in mind in this case.”
However, it is a distinction which is not always easy of application, as shown by the narrowness of the majority of the High Court in Public Service Association of SA v Federated Clerks’ Union of Australia, SA Branch (1991) 173 CLR 132. There appears to have been no disagreement on the principles to be applied. The difference between the majority (Brennan, Dawson and Gaudron JJ) and the minority (Deane and McHugh JJ) appears to be in the application of those principles to the circumstances of that case.
That case involved an appeal from this Court on whether certiorari was available to quash a decision of the then Industrial Commission in the light of the provisions of s 95 of the then Industrial Conciliation and Arbitration Act 1972. That section provided that no award, order or proceeding of the Commission could be challenged, appealed against, reviewed, quashed or called in question “except on the ground of excess or want of jurisdiction”. At page 142 Brennan J said:
“Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it.”
The whole Court held that “excess or want of jurisdiction” did not include wrongful failure or refusal to exercise jurisdiction. That does not affect this case, however, as if there has been an error in finding that the respondent was an employee, the subsequent action of the Industrial Relations Court constitutes an excess of jurisdiction. The real question is whether the Court had jurisdiction to act in the particular way it did.
Deane J provided, in my respectful opinion, a helpful method of applying the distinction. At 149 he said:
“In the absence of any applicable overriding constitutional provisions, identified error of law or fact on the part of the Commission will bring a case within the exception in s. 95(b) only if it leads the Commission to purport to make an award or order or to entertain a proceeding which is of a nature which it had no authority to make or entertain in the circumstances of the case. In other words, ‘jurisdiction’ is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd. v Foreign Compensation Commission. It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them.”
However, even that passage begs the question which arises in this case as to whether the determination that the respondent was an employee is an issue involved in the proceedings or whether it goes to the Court’s authority to entertain the case.
McHugh J at 164 noted that it was not uncommon for superior courts to use the phrases “want of jurisdiction” and “excess of jurisdiction” interchangeably. He continued:
“Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal.”
In other words, if the conditions which define the ambit of the powers and authority of the court can be defined, and if a breach of those conditions can be demonstrated, this Court, in this case on appeal, or on judicial review, can intervene on the ground of excess or want of jurisdiction.
The High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 AWR 490 at [28] referred to such conditions as “jurisdictional facts”:
“The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision‑maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) [of the Development Act 1993 (SA)] forbids the relevant authority granting a provisional development plan consent to a ‘non‑complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non‑complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.”
The relevant jurisdictional fact in that case dictated the procedure by which the application was to be determined and by whom. In other situations it will determine whether the court or tribunal can proceed at all.
Further clarification and assistance as to what may be regarded as being in excess or want of jurisdiction or, in other words, what may constitute jurisdictional facts, can be found in the joint judgment of the High Court in Craig v State of South Australia (supra) at 177:
“Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, whilst acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre‑condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last‑mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.” (Emphasis added)

2.3 Whether the appeal is based on alleged excess or deficiency of jurisdiction

The Industrial Relations Court undoubtedly has jurisdiction to decide whether a person is an employee or not. It has jurisdiction to embark on and to conduct the necessary inquiry for that purpose. The exercise of its power - to decide the terms of the contract concerning annual leave, whether there has been a breach of the contract, and whether the facts give rise to a statutory entitlement to long service leave - is nevertheless dependent upon its reaching a conclusion that the claimant is an employee. In that sense the jurisdiction of the court cannot properly be exercised unless such a finding is made.
That finding is not one which is committed to the discretion or opinion of the court. It is one which must be made upon admissible evidence in accordance with principles of law that are well known, if difficult to apply. It is one which, in my opinion, belongs to the “less obvious” class referred to by the High Court in Craig. It will lack authority to determine either part of this dispute if it makes a wrong decision that the claimant is an employee.

Expressed in a slightly different way, one of the conditions which defines the jurisdiction of the Industrial Relations Court under paragraph (a) of s 14 of the Industrial Act is that the claim, whether for benefits due under an award, an enterprise agreement or a contract of employment, is made by an employee. Likewise, in respect of long service leave, a defining condition of the court’s jurisdiction is that the subject of the claim is a worker, or in other words, an employee. An appropriate finding as to that matter is what the Court described in Craig’s Case as “an essential condition of the exercise of the jurisdiction”. When that requirement is not satisfied, the court has no jurisdiction to entertain the claim, even though it is the kind of matter which the court is able to decide. It is an objective element which must be satisfied before the court can proceed to deal with the other matters it is called upon to decide.
This approach accords entirely with that taken by King J in R v Allan; Ex parte AMP Society (1977) 16 SASR 237. That case involved a claim for unpaid long service leave alleged to be due under the Long Service Leave Act 1967 as amended. The relevant parts of s 12 of that Act were as follows:
“12. (1).... Subject to subsection (2) of this section, where the Industrial Court of South Australia is satisfied that a worker or a deceased worker had not been granted, or had not received payment in lieu of, the whole or any part of the long service leave to which he was entitled under this Act the court may, on the application of -
(a)... the worker;
(b)in the case of a deceased worker, the personal representative of the deceased worker;
or
(c) a registered association within the meaning of the Industrial Conciliation and Arbitration Act, 1972, of which the worker is a member,
by order direct that the leave be granted or the payment made by the employer or former employer of the worker liable under this Act to grant the leave or make the payment, as the case may be.”

Subsection (2) is not relevant for present purposes.

It can be seen that subsection (1) of s 12 of the 1967 Act, although not identical, had a remarkably similar structure to that of s 13(1) and s 13(2) of the LSL Act. The principal issue in that case was whether the claimant for long service leave in the Industrial Court was an employee of the prosecutor. One of the issues in this Court[1] was whether, having held that the claimant was an employee, the Industrial Court was acting in excess of its jurisdiction in proceeding with its claim. This Court unanimously, but for slightly different reasons, held that such a conclusion did go to the jurisdiction of the court.
[1] The prosecutor successfully appealed against the decision of this Court to the Privy Council, but the appeal did not impeach this Court’s conclusion as to whether such a finding affects the jurisdiction of the court: Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407.
King J noted that the employer‑employee relationship was made the basis of a number of heads of jurisdiction conferred by s 15 of the Industrial Conciliation and Arbitration Act 1972. That section was cast in similar style to that of s 14 of the Industrial Act to which I have referred. His Honour considered that the expression “the worker” in s 12 of the Long Service Leave Act 1967 ought also to be construed as going to the court’s jurisdiction. King J continued (at 256):
“This conclusion is strengthened by a consideration of that expression where it appears in the section for the second time. The portion of the section in which the expression appears for the second time provides that the Court may make orders on the application of ‘the worker, a personal representative of a deceased worker or a registered organization.’ Here the expression is used to describe one of the classes of person who may make the application. If the applicant does not answer the description, there is no valid application and hence as it seems to me, no jurisdiction: The King v. The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361. This consideration strengthens the argument for construing the expression where it appears in the earlier part of the section as jurisdictional also. Otherwise there would be the strange result that a decision of the Industrial Court that a person for whom leave or payment in lieu of leave is sought, is or is not a worker, would go to jurisdiction and be reviewable by this Court if that person were the applicant but not if the applicant were a personal representative or registered organization. In my opinion, the jurisdiction of the Industrial Court depends upon the person for whom leave or payment is sought being a worker.”

King J was not daunted in reaching his conclusion by the fact that s 12 of the 1967 Act referred to the Industrial Court being “satisfied” that a worker was entitled to long service leave. It will be noted that that is an expression which no longer appears in s 13 of the LSL Act.

Bray CJ, with whom Hogarth J agreed, referred to the difficulty associated with determining in such cases whether certiorari for excess or want of jurisdiction was available. He decided the issue on the basis that s 12 of the 1967 Act specified the categories of possible applicants, and that that specification “confine[d] the jurisdiction of the Industrial Court to the hearing of applications instituted by applicants falling within one of the three specified categories... I think the question whether he fell into any of those categories was a preliminary or collateral question necessary to be answered in the affirmative in order that the Court should have jurisdiction to entertain the proceedings” (at 242).
In my opinion there is nothing in any of the later cases to which I have referred which could in any way qualify the approach taken by Bray CJ and Hogarth J in The Queen v Allan. There is no material difference between the section under consideration in that case and s 13 of the LSL Act. It follows that, even based on the narrower view taken by Bray CJ and Hogarth J, if the decision of the Industrial Magistrate that the respondent was an employee is wrong, then the Court has acted in excess of its jurisdiction, at least in respect of the claim for long service leave.
The same can be said by way of a slightly more circuitous route in respect of the claim for annual leave. Section 14 of the Industrial Act does not specify who may bring the claim. It merely speaks of “a claim for a sum due to an employee....”. However, s 180 of the Industrial Act, in relation to proceedings before the Industrial Relations Court, relevantly provides:
“180. (1).. A monetary claim may be made on behalf of a claimant by an association.
(2) ....
(3)... A claim relating to money that should have been paid to or for the benefit of a person who is now dead may be made by the personal representative of the deceased person or a beneficiary of the deceased person’s estate.”
Reading the two sections together, a “claimant” can only be an employee or former employee. By parity of reasoning it follows that in this case the respondent only had standing before the Industrial Court and the Court could only entertain his claim for annual leave if he was an employee.
Even if the broader approach taken by King J in The Queen v Allan is adopted, it appears to me that there is nothing in either the PSA Case or in Craig’s Case which would require any qualification to that approach. Indeed, it would seem that an analysis of those cases suggests that they only confirm the correctness of the approach taken by King J.
Two recent decisions of this Court were called in aid by the respondent. In my opinion both are distinguishable.
York Civil Pty Ltd v Workers Compensation Tribunal [1999] SASC 173 was a decision of the Full Court on an application for judicial review against the Workers Compensation Tribunal where such proceedings could only be brought “founded on an alleged excess or want of jurisdiction” (Workers Rehabilitation and Compensation Act 1986 s 88I). The question at issue was whether the Workers Rehabilitation and Compensation Corporation, having paid a large amount of compensation to a claimant for a work injury, was entitled to recover that sum from the plaintiff, it being alleged that that company was a person “other than the employer” of the worker within the meaning of s 54(5) of the Workers Rehabilitation and Compensation Act. Section 54(5) conferred on a person who had paid compensation a right to recover the amount paid against “a person other than the employer” where a right of action exists against such a person for damages in respect of the disability suffered by the worker. This Court had no hesitation in holding that a finding by the Workers Compensation Tribunal that the appellant was not the employer of the worker was not a matter which went to the jurisdiction of the Tribunal. It was described as being the very question to be decided by the Tribunal. In that case, the jurisdiction of the Tribunal had properly been invoked by a body which had paid compensation to the worker. That the appellant was not the employer of the worker was just one of the matters which had to be established in order for the claim to succeed. The distinction between the present case and York Civil is that in York Civil the question of whether the appellant was the employer of the worker was plainly not a matter which was conditional to the exercise of the jurisdiction by the Tribunal in determining whether the claim should succeed.
The other case, also relied on by the Court in York Civil, was a decision of Lander J in Selamis v WorkCover Corporation (1998) 200 LSJS 124. That concerned an entitlement to worker’s compensation. The applicant was a truck driver employed by a company carrying on business in South Australia. He was injured in Western Australia in the course of his employment. As well as having to prove that the disability arose out of or in the course of his employment, s 6 of the Workers Rehabilitation and Compensation Act required him to prove that his “usual place of residence” was in South Australia at the relevant time. The Workers Compensation Tribunal held that it was not. His application for judicial review of that decision was struck out on the ground that in making a decision on that question the Tribunal was not acting in excess or want of jurisdiction (Workers Rehabilitation and Compensation Act s 88I).
It was plain from the exhaustive review of the Act conducted by Lander J that the jurisdiction of the Tribunal was invoked when a person “with a direct interest in a review or decision” (made in that case by the Corporation) lodged a notice of dispute. A reviewable decision included a decision on a claim for compensation (s 89A), which the plaintiff had previously made. Being a person directly affected by the decision (s 90(3)), he was a person with a direct interest in the decision. It was s 90 which determined the jurisdiction of the Tribunal. In those circumstances, Lander J was, with respect, entirely correct in holding that the matter for determination by the Tribunal was a matter for determination within the exercise of its jurisdiction, and that the application for judicial review had no prospect of success. However, that is a far cry from this case where the application could only be entertained, and the jurisdiction exercised, if the respondent was an employee.
Accordingly, in my opinion, the appellant has an appeal as of right.

2.4 Alternative application for leave to appeal

It is therefore not necessary to consider the appellant’s alternative application for leave to appeal and its application for an extension of time in which to make such application. If it became necessary, however, I would nevertheless have granted leave to appeal. Although the appellant would be seeking leave to prosecute its third appeal, the appeal does involve a significant question of some general importance as to the circumstances (if any) in which a minister of religion may be an employee. It involves questions as to whether and when an intention to enter into contractual relations should be inferred as a matter of course. As will be seen, the appellant’s argument is not without some reasonable prospect of success. Although a number of the matters raised by the appellant are complaints about findings of fact in respect of which there are concurrent findings by a single Judge and by the Full Court of the Industrial Relations Court, they are, in most cases, findings by way of inference drawn from other primary findings of fact and which are not immune from attack on subsequent appeals: Warren v Coombes (1979) 142 CLR 531. Nevertheless, those findings at three levels of judicial determination are on matters which this Court will need to consider very carefully before interfering, if it be necessary to do so. If it became necessary, I would also extend the time within which to make an application for leave to appeal. The respondent did not suggest that he would be prejudiced in any way by the extension of time. He has certainly been aware of the issues to be ventilated since this appeal was instituted.
THE FACTS
In order to understand the nature of the arrangements made when the respondent came to South Australia, it is first necessary to understand the nature and structure of the various entities referred to from time to time in the evidence.

3.1 Greek Orthodox Community of SA Inc

The appellant was but one of a number of Greek communities established throughout Australia when persons of Greek origin came to live in this country. Evidence concerning the history and development of Greek communities in Australia was given largely by Mr Manos, a witness whom the Industrial Magistrate accepted without reservation on such matters. He was President of the South Australian community from March 1969 to October 1973 and again from March 1978 to May 1985. He had practised as a lawyer and, prior to his retirement, had served approximately twenty years as a magistrate in South Australia, of which approximately ten years were as Chief Magistrate. He had taken an active part in the affairs of the Greek community for many years. The following summary from the reasons of the Industrial Magistrate is based largely on Mr Manos’ evidence:
“Since the nineteenth century there have been substantial numbers of Australians professing the Greek Orthodox Faith and following Hellenic cultural values. From an early date these people combined in purposeful associations to protect and promote these values. These associations were essentially of local initiative and were for a number of decades informally structured, the classic ‘voluntary associations’ of the common law. In the 1920’s and 30’s these local associations sought and obtained registration under the laws of the states in which they existed as incorporated associations. As such, they could hold property in their corporate name and conduct their practical affairs without the need for trustees and trust arrangements. Unlike the case of a number of religious denominations in Australia, there were no church property trusts established either by statute or trust deed in respect of those parts of their affairs that dealt with religious or ecclesiastical matters.”
Mr Manos was at pains to point out that the community itself was not a religious faith. None of the constitutions of any of the incorporated Greek communities were in evidence before the Industrial Magistrate, but they were clearly involved in a variety of community activities. Mr Manos said:
“The Greek Orthodox community constitution gives the - under its objects and so forth, it has an obligation to teach Greek to Greek children. It has social welfare obligations. It has general educative obligations to its members. It has wide obligations of assistance to newcomers and to people who are less fortunate, disadvantaged and so forth and so on. Their role included church activities, but it wasn’t exclusive church activities...”

He continued:

“A.... .... There were some communities which were in fact parishes, and they of course would consider themselves well and truly bound by the archbishop in just about everything, but a Greek community like the South Australian Greek Orthodox Community Incorporated took its role as being, yes, involved in church, but also involved in other activities in which we the lay people decide what happens.
Q.So if I could just ask you this: in the case of the Greek Orthodox Community of South Australia Incorporated, it was a body of people who among other things were involved in religious activities, but in respect of whom the religious activities were not necessarily the predominant activity.
A...... That’s right, not always.”

Mr Niarchos, a solicitor who had been President of the South Australian community since 1985 and its legal adviser for many years, said:
“The communities which have been established in Australia from about the end of last century - that’s the interstate communities of Sydney and Melbourne and later on Adelaide was - they were three biggest communities and there have been, of course, influxes of migrants, major ones after the war. Those people established community organisations when they came here and that also included setting up schools, language schools, community centres, community organisations and critical to most of them was also the establishment of a church and arranging for priests to come and serve their communities. That was done on a fairly ad hoc basis for a long period and the priests came from many areas to serve the communities. There was a good relationship with the metropolitans who were serving these communities over the years until 1959...”

Later he described the South Australian community as being involved in the provision of an aged care complex, as having twenty‑four language afternoon schools, a childcare centre, a welfare service and an aged care service.

So it was that the Industrial Magistrate was able to conclude:
“The communities also organised the cultural, social and sporting lives of their members, and were one of the most important elements in the promotion of knowledge and understanding of that culture as Australian society grew in its size, variety and sophistication. It is significant to note that the communities were not exclusively dedicated to religious affairs or purposes, and some, at least, of the individuals who composed them did not necessarily share the full range of religious values and ecclesiastical practices of the church itself. Mr Manos was himself at pains to emphasise this point, as he was obviously concerned to ensure that people be allowed to continue in their participation in Hellenic social and cultural activities whatever their personal religion, against a background where those of strict observance, including members of the clergy, were rather more inclined to attempt to bar those characterised as non‑believers from such activities.”
The growth of an incorporated Greek community was not unique to South Australia. Other States and regions had their own communities, some being of a general nature such as that in South Australia, others being confined to much smaller community groups or towns, with a more limited range of activities.

3.2 Relationship between the Greek Orthodox Church and the communities

With their establishment, the incorporated communities had a heavy involvement with the religious affairs of the Greek communities. The Orthodox Church in Greece looked to the Patriarch of Constantinople as its ultimate earthly head, and below him were various archdioceses in Greece, Sydney, America and other parts of the world. However, they all owed allegiance to the Patriarch of Constantinople. Australian conditions affected the evolution of the Greek Orthodox Church in this country. Mr Manos described it this way:
“[W]hat happened in Greece, for example, is different to what happens here. In Greece, the church and the - it was really one with the community. I mean, the church ruled quite dictatorially in Greece mainly because it led the uprising against the oppression of the Turks for 400 years. So as a result the history gave it a role that we in Australia, for example, don’t have. The Australian tradition, if I can call it that, of the Greeks in Australia was to be a little bit more independent, but the reason being the Greeks here had no church at all and no priest at all. Early on they established themselves at Port Pirie and other places. Out of their own labour, they built their own church or churches and then went looking for a priest, and they asked the leaders - and I assume they asked the patriarch or the archdiocese or whoever for a priest and couldn’t get one. With that sort of background - ‘Okay, we built our own church, we go looking for a priest and can’t find one and he won’t give us one’ and so forth and so on, they tended to become more Australianised and more independent and wanted, I suspect, more say in what happened in their church rather than in Greece where things are fairly dictatorial, and bear in mind it’s not long ago that in Greece you couldn’t get other than a church marriage. There was no such thing as a registered marriage and so forth. The church had a very strong say in Greek life, and the same no doubt was originally the case here, but with evolution and such, people here were prepared to wear it.”

It was not surprising that accommodation was found for him and that some payment to support him was made pending the Melbourne decision. The Industrial Magistrate found, and it was open to him to do so, that the question of payment was discussed in Adelaide, although no finding was made as to what the amount of that initial payment should be or was in fact. It would not be surprising if the payment were linked in some way to the payments then being made to the priests. However, it was not until the Melbourne meeting that the level of payment was finalised and the level of contributions from the various communities agreed. Such evidence as there was about payment before the Melbourne meeting was always cast in terms of what the Archbishop should be paid and what conditions should be afforded, or what he should receive. He was asked what he would want, but the evidence did not suggest any mutual bargaining. It was a unilateral decision of those who led the South Australian community.
That in itself does not require a conclusion that a contract was made. It would be normal to discuss both his immediate needs and what might be determined in Melbourne, given the key role that the South Australian officials had already played, and were to play at the Melbourne meeting. Such discussions are often held before a person decides to accept an appointment to an official position, whether or not the payments or conditions so discussed are intended to be contractually enforceable. I will return in due course to the question of leave and the discussions about that which took place in Adelaide, but the taking of leave was not an issue which presented itself or that was even relevant in those few weeks before the Melbourne meeting.
However, whatever may have been discussed about such matters, there was never any suggestion that such payments would be made and accommodation found in return for or contingent upon the performance of some religious duties. It was expected that the respondent would perform such ceremonies, as it would be expected of any visiting archbishop, and he did perform them.
It was the evidence of the discussions about remuneration, accommodation and leave, vague as that evidence was, on which the Industrial Magistrate relied in order to conclude that there was a contract. They were discussions which, in a particular context, could well lead to a conclusion that a contract was formed. What the Industrial Magistrate failed to give any or sufficient weight to was the nature of the parties to the discussions and the context in which the discussions occurred.
One party to the discussions was an archbishop with whom discussions were taking place about the spiritual leadership of a church. It was accepted by the parties to the discussions that nothing could be resolved until the Melbourne meeting. In those circumstances it is simply not possible to infer from the nature of the discussions that the parties then intended to enter into contractual relations. In the circumstances it was an intention that could not be presumed but which had to be proved. The discussions were equally consistent with the non‑contractual discussions that would be expected between a spiritual leader and representatives of his church as to the level of maintenance and material support that would be provided to him. In this case, as in most such cases, there was mutual acceptance and satisfaction with the terms discussed. It does not follow, in the case of a religious leader, that an intention to enter into contractual relations is also present.
In this case there was nothing in the discussions relied on by the Industrial Magistrate to indicate such an intention. Furthermore, at the time when the discussions took place, there could have been no intention to enter into contractual relations with the appellant in particular, because if the respondent was to take office at all, it could only be with the agreement of all the communities who supported the autocephalous church, and upon financial support coming from more than just the South Australian community.
Of course, interim arrangements were made for his support. Of course, there would be discussions about the level of support he could expect and the amount of time he would expect to devote to the affairs of the church if he were to be appointed. Of course, he would expect to perform religious functions when invited. But none of this by itself requires a conclusion that there was a legally enforceable contract between the appellant and the respondent.
It seems to have been assumed by the Industrial Magistrate that because the South Australia community had no authority to negotiate on behalf of other communities before the Melbourne meeting, there had to be a contract with the South Australian community. However, as I have already pointed out, the Industrial Magistrate did not address the question whether such a legally binding contract was intended, either at that stage or at the Melbourne meeting. It is to that issue which I must now turn.

7.3 Intention of the Parties

Both the nature and the structure of the church to which the respondent was coming and the Melbourne meeting are crucial to an understanding of whether anything was intended by way of enforceable contractual relations. The fact that the respondent was to be the spiritual head of a then unincorporated body is important. At once it raises the question as to who would be the contracting party if there was to be a contract. He was to provide spiritual ministrations not to the communities but to the church. Membership of the bodies was not coterminous. No doubt the communities had a keen interest in ensuring that the spiritual needs of the great majority of their members was satisfied, but it was not to the communities or any one of them that the respondent was to provide his services. Indeed, the communities included members who remained faithful to the Sydney Archdiocese and the Patriarch. It is to be remembered that the communities had a variety of activities and interests, not necessarily religion‑based. The South Australian community was there to support and encourage all religious, cultural, social, sporting and educational activities to the benefit of the wider Greek community. Part of its perceived obligation was to support religious observances common to many but not universal to all members of the Greek community. I have already recited Mr Manos’ evidence in that regard. The respondent was not to provide a service to the communities. The communities, as part of their activities, were there to support the church, and it was in that capacity that the communities, including the South Australian community, undertook that role.
The nature of the church as an institution and the respondent’s intended role in it were also important. He was to perform a spiritual function and to have a spiritual responsibility. About that aspect no party was ever in doubt. It was not a function which lent itself to legal relationships or to regulation by legal rules.
What took place at the Melbourne meeting is also significant. The discussions about remuneration, both as to amount and as to how the communities would contribute, took place in the absence of the respondent. It seems to have been assumed, contrary to what later occurred in fact, that the income from various fees and gifts - fees and gifts not provided by the incorporated communities - would be adequate to maintain the respondent and the archdiocese. What the communities agreed to do between themselves was not to pay for services rendered, let alone services rendered to the communities as such, but in effect to underwrite or to guarantee the respondent’s maintenance and support at a nominated level until the expected fees and gifts reached a minimum annual amount. It was not an amount negotiated between contracting parties but a stipend or allowance or form of support considered adequate by the meeting of the Federation. Once the fees were to reach the stated level, there was to be no further financial support by the communities. The fact that the respondent claimed that he never received any such fees save for one or two occasional ceremonies may be because he did not perform any. Neither his orders nor his sacraments were recognised in Greece or by the Patriarch, and his only evidence was that he did not receive any fees from weddings etc. He was not asked whether in fact he performed any. Other evidence to which I have referred indicates that he did not.
The commitment having been formulated by those present at the meeting of the Federation, the respondent’s response to the formal invitation of the President, as recorded in the minutes of the meeting, is also significant:
“The Archbishop Mr Spyridon says that Mr Elefantis’ motion is reasonable and moral and comes from a good heart. The purse of the Communities should not be overtaxed.”
He responded to the generosity and moral obligation of the communities not as if to a contractual entitlement, and expressed concern at the communities not being over‑burdened by their new undertaking.
The allowance that was to be paid was not said to be conditional upon performing any given amount of work or of working any particular hours. Mr Manos was not concerned how or when the respondent was to undertake his episcopal functions. The allowance was to be paid regardless of what service was actually performed.
Of great significance to this aspect of the case is the evidence of Mr Manos. The Industrial Magistrate did not reject any of his evidence. Indeed, he relied on it heavily for an understanding of the history of the Church, the split with the Sydney archdiocese and the early negotiations with the respondent. Because the Industrial Magistrate, for reasons already identified, did not address the question of an intention to enter into legal relations, it was not necessary for him to address some of the important evidence touching this topic given by Mr Manos. Mr Manos, it will be recalled, was one of the principal negotiators to arrange for the bringing of the respondent to Australia and was a leading light in the Federation and at the Melbourne meeting. His understanding of what the parties intended was critical.
Mr Manos at all times understood that the communities would be paying money to the Church. That in fact occurred. It was irrelevant to him whether and to what extent the respondent benefited from those payments. The money would be paid whatever the respondent did, whether he was sick, whether he went away, whether he took leave or whether he went to America to fulfil episcopal duties there. As has already been noted, Mr Manos said that he could have had annual leave for twelve months of the year. He would still have been paid. He was “in a vacuum on his own”. According to Mr Manos, the respondent had made it clear, as indeed turned out to be the fact, that there would be times when he would need to go to America. From Mr Manos’ point of view that was not a matter of concern and would not affect the payment. In Mr Manos’ eyes there was no obligation on the respondent to devote all his time to the affairs of the communities.
Although Mr Manos could not recall any discussion about annual leave or long service leave with the respondent in Adelaide, that is not surprising. It probably did occur as the Industrial Magistrate found. However, to Mr Manos and those with whom the respondent was dealing, it was a meaningless concept. The Church would be paid whether the respondent was on leave, performing duties elsewhere, relieving in a vacant church or just doing nothing. From his point of view the respondent could take whatever leave he liked. It was not the concern of the community. To the extent that it was discussed, I have no doubt it was something to which representatives of the community could readily agree simply because it was up to the respondent what duties he performed and when he performed them.
It is clear from Mr Manos’ evidence as a whole that, from his point of view, as one of the chief negotiators for the Federation, there was no intention to enter into contractual relations.
The overwhelming impression from the minutes of the Melbourne meeting and from the evidence of those who were there is that the South Australian community, along with others, would collectively underwrite the maintenance of the respondent’s material needs by, in effect, subsidising the archdiocese to a particular level, but only for so long as was necessary, and until the archdiocese, from its own activities and donations to it, could provide such maintenance through its own resources.
It seems to me that in all those circumstances the indicators point strongly to the fact that no legal obligations were intended by either “party” to the discussions. Rather, the appellant and others were merely undertaking what they regarded as a community responsibility to underwrite the support of a new Archbishop until the expected fees and gifts to the archdiocese made that no longer necessary. In my opinion the respondent failed to establish that there was ever any intention to enter into a legally binding contractual relationship.

7.4 Subsequent events

The events which unfolded over the next 23 years were entirely consistent with that position. In my opinion they confirm that no contractual intention existed at the time of the respondent’s appointment or at any time thereafter.
The respondent appears to have performed the necessary rituals and ceremonies as and when he pleased. There were undoubtedly requests addressed either to him or to the South Australian community to fill vacancies which occurred in churches in other States. There were requests from the South Australian community to fill temporary vacancies in churches in South Australia. These obviously necessitated some discussion with representatives of the community as to how best they would be filled. He was obliged to perform his episcopal duties not only in South Australia but elsewhere. There needed to be and there were discussions about how that would be fulfilled, even if only for the purpose of making travelling arrangements. He was not obliged to nor did he report his every movement to the community. He did spend extensive periods of time overseas and the appellant continued to pay his stipend. Whilst he made the final decision about who was to be ordained priest, once again there had to be cooperation in practical terms with the community to ensure that priests were not be ordained with no position to go to, and that vacancies were filled within a reasonable time.
The respondent understood and the constitution of the incorporated body provided that he held his position for life (Article 9), and that he had the right to determine his successor (Article 13). He could only be removed for just cause, however that might have to be determined. These are hardly indicative of a contract, let alone a contract of employment.
Special donations and appeals were to be made and apparently were made for the Church and for the Archdiocese by the communities as and when they deemed necessary, dependent upon the economic ability of such communities (Article 12). That is not what might be expected of a body or bodies under a contractual obligation to pay remuneration and to afford other conditions to its spiritual leader.
For most of the time payments were made by cheques drawn on the accounts of the respondent or of the supposedly defunct incorporated church body, not to the respondent personally, but in favour of the Archdiocese of the Autocephalic Church.
Whilst the remuneration continued to be paid throughout by the appellant, the appellant continued to seek and obtain reimbursement of a portion of the amounts paid from other communities according to their means. The appellant no doubt assumed the major role in the immediate provision of the stipend and allowances for the respondent. That was not surprising, as Adelaide remained one of the larger and more influential communities. It became the seat of the Federation from about June 1970 throughout the whole of the respondent’s episcopate, and the Church in South Australia probably made greater demands on his time than did that associated with any other single community.
All these and other factors which are consistent with the view I have taken of the relationship are described in more detail in Part 3.8 of these reasons.
As a result of their peculiar position in Greek society in Australia, the communities, including the appellant, had reserved the right to leave the Church if they wished. Indeed some, notably the Melbourne and Victoria community, did so shortly after the respondent’s appointment. The Church continued, and so did its Archbishop. It would be strange if what was said to be the common law contracting party (the appellant) could leave the Church and yet still remain contractually bound to the Archbishop to support him whilst he continues to provide a ministry to the Church.
The fact that throughout the period the appellant made PAYE tax deductions from the amount paid is, in my opinion, of little significance to the issue as to whether there was a contract or a contract of employment. Many office holders, both public and private, who are plainly not employees, have such deductions taken out of their remuneration.
The fact that priests who served in the several churches were regarded as employees of the communities is significant in that it shows that, in their case, there was an intention to enter into contractual relations. The fact that they were employees of the communities was conceded by the appellant at the outset. According to Mr Manos’ evidence, the Constitution of the appellant required that they be so, at least in South Australia.
No doubt because of the concession, little evidence was led as to the nature of their relationship with the respective communities, and why it was considered necessary that they should be employees, or as to the significance of that relationship to the parties.
Does the fact that they are employees lead to an inference that a similar, or at least a contractual, relationship was intended in respect of the respondent? In my opinion it does not. The bare concession is of little help or relevance without some knowledge of the surrounding circumstances. It would be inappropriate to decide this case on the basis of a concession, information about which has not been placed before the court.
I have already endeavoured to show in Part 4 of these reasons that, in the case of ministers of religion, an intention to enter into contractual relations cannot be presumed. It will have to be proved. It cannot be presumed that the relationship was intended in one case merely because, in another, at a subservient level, such an intention is acknowledged. It is necessary to have regard to all the surrounding circumstances applicable to the arrangement in question. When that is done, a picture emerges in this case which shows that the onus has not been discharged. Particularly is this so where the evidence is overwhelming that the one common party intends to enter into contractual relations with one but, through its officers at the time, expressly disavows such intention with the other.
There are reasons why this might be so. One such reason might be that the duties of priests were limited to the church to which they were appointed, and it could be said that they had a much closer association with the local community than the respondent, whose responsibilities extended more diffusely across a number of communities in several States. Another might be that priests were in any event intended to be subject to much closer control and direction than an archbishop - a person acknowledged by all in this case to have had disciplinary authority over the priests. There may be other cogent explanations which have not been explored in this case.

There remains, however, the argument that it is unlikely that a body such as the appellant would place itself in the awkward position of the archbishop being responsible for the disciplining of the priests, but ultimate control as to their appointment and provision of remuneration being in the hands of the community. This plainly creates a tension, but it is tension of a type not unknown in many organisational structures. Indeed, it is a tension not unknown in the episcopal churches which practise synodical government. In most cases it is a constructive tension which involves consultation and compromise if it is to succeed. Alternatively, on occasions, it can be quite destructive and, as in this case, result in the breakdown of the relationship. But just because that result is possible does not mean that it was intended that there should be a contract of employment or some other contract. I am not satisfied that, because the concession was made in respect of priests, it must follow that there was an intention to enter into contractual relations with the respondent.
This was the first time it had been necessary to address the relationship of a religious leader extending beyond the sphere of a single community. It was the first time the communities had had to consider the appointment, on a reasonably formal basis, of an archbishop for the autocephalous churches. It cannot be presumed that a relationship that was satisfactory for priests was also intended for an archbishop or spiritual head in the circumstances in which he was to be appointed, particularly as he was to have disciplinary authority over those priests.
The mere fact that there may have been reference to the respondent’s initial allowance and conditions being similar to that of the priests is not inconsistent with a desire not to enter into contractual relations. It is consistent with their salary being a marker for the amount to be paid to the respondent. As to other conditions enjoyed by the priests, they would appear to be of little consequence anyway, as the respondent was to be paid his salary and provided his accommodation whether he performed his duties or not. In any event, the evidence suggests that the initial relationship of the respondent’s remuneration with the salary of priest was not maintained.

7.5 Some peripheral issues

It remains to deal briefly with several issues, some of which occupied an unnecessarily large proportion of the trial and which, in many ways, helped to obscure the real issues in the case. The first two concerned the granting of annual leave and long service leave, and disputed conversations with Mr Niarchos, then President of the appellant. The first occurred in 1986 at a reception to a Father Kolindos, an Orthodox priest whom the respondent and the communities were hoping to recruit to the autocephalous church. The respondent’s evidence, accepted by the Industrial Magistrate, was that Mr Niarchos asserted to Father Kolindos in the respondent’s presence: “All our priests and clergy receive four weeks’ annual leave and long service leave, even the Archbishop.... isn’t that right, Your Grace?”. Accepting that those words were said, it was an accurate statement as to the entitlement of the priests. From the observations I have already made, it was also accurate in respect of the respondent - indeed he could have taken more if he wished. It says nothing about the intention to enter into legal relations.
The second concerned a conversation which the Magistrate held had occurred, probably in early 1990. By this time, the relationship between the respondent and the communities had deteriorated significantly. There had been at least one dispute about the ordination of some priests, and the respondent had purported to discipline two bishops in Sydney by terminating their appointments. They did not leave, and had the obvious support of the Sydney community. The appellant maintained that it was within his province as spiritual head to do what he had done. The communities took a different view. There were attempts to have the respondent revoke his disciplinary measures. A letter bearing date 20th July 1989, about which there was some dispute as to the authorship, had been sent in the name of the Federation to the respondent objecting to decisions purportedly taken by a “synod” of the Autocephalous Church to discipline the bishops concerned. This had apparently been done and notified to the Church without the prior knowledge of the administrative committee of the Federation. The letter contained a request that the respondent cease publishing documents without prior approval of the administrative committee, that he review the decisions to unfrock the bishops and in particular that he revoke the suspension of Bishop Meletios. The Industrial Magistrate found that in the course of a subsequent conversation between the respondent and Mr Niarchos, Mr Niarchos said words to the effect “if you reinstate the bishops, I will see that you get your leave”.
Again, if this was said, it can have no effect on the intention of the parties in 1970, and in the circumstances it was a meaningless undertaking. It may have related to the fact that at that time, as the respondent deposed, he wanted to return to America for some medical treatment not, as the Industrial Magistrate mistakenly found, to convene a synod of the Autocephalous Church. The Industrial Magistrate concluded that in making his offer to the respondent Mr Niarchos was promising him his aid in facilitating the holding of the synod. That was a finding which was not open to the Magistrate, and it may well have affected his finding as to whether the conversation occurred. However, whether it occurred or not is, for the reasons I have given, of little or no moment.
The other events also related to the disciplining of the bishops to which I have referred, the failure to ordain a priest at the request of one of the communities and the purported convening of a synod without the authority of the administrative committee of the Federation. All these, so it was held by the Industrial Magistrate, resulted in successful attempts to discipline the respondent and the exclusion of the respondent from discussions with representatives of the Ecumenical Patriarch, thereby indicating the extent of the control exercised in practice by the appellant over the respondent. All this was of principal relevance, of course, to the question whether the contract entered into was a contract of employment. None of it is relevant to the question of whether there was an intention to enter into legal relations. All of it happened in 1989 and 1990. Nevertheless, what appears to have escaped the Industrial Magistrate’s attention is that none of these attempts to discipline him were accepted by the respondent. He maintained on many occasions during the course of his evidence that the communities had trespassed into his exclusive domain, contrary to the clear agreement made in 1970 as to the respective areas of control. There was no evidence that he ever in fact revoked the suspension of Bishop Meletios, or that he yielded to any of the other demands of the communities being made at that time. The letter that he was sent threatened that if he refused to act in accordance with the request of the Federation, the Federation would take “other measures for the reinstatement of normality and proper relations of the Autocephalous Church with the Federation and the Greek community in general”. What those measures were was never explained. No such measures were ever taken.
There was no doubt that for the rest of his period as Archbishop the respondent was, as the Magistrate found, “in deep and fundamental disagreement” with the policies of the Federation. It was incorrect to say that he also did not have the legal or practical authority to stand against those policies. The relationship plainly became intolerable, and on 15 August 1993 the respondent gave the communities three months’ notice by announcing from the pulpit his resignation. The Industrial Magistrate found (and this is entirely consistent with the respondent’s own position as revealed by his evidence):
“In explaining the reasons for his decision he launched into an emotional and controversial review of his relations in recent years with officers of the SA Community and the Federation. He seems to have made it clear that he believed they had infringed on his own proper authority in the sphere of religious matters, and left him with no scope to give effect to his own views.”
It is also not surprising that he had been excluded from any discussions with representatives of the Ecumenical Patriarch. The relationship between the communities and the respondent had been extremely poor for several years. The problem that had given rise to the schism in the first place was one related to property and authority within the Church, which had been principally the concern of the lay communities. However, as I have said, these events really had no bearing on what should have been the principal issue in the case.
CONCLUSION
For all these reasons, in my opinion there was no contract between the respondent and the appellant or between the respondent and any of the other communities. There certainly was no contract of employment and no legal entitlement of the respondent to annual leave or long service leave.
In my opinion the appeal should be allowed, the order of the Full Court of the Industrial Relations Court should be set aside. In lieu thereof there should be an order that the order of the Industrial Magistrate as varied by the single Judge be set aside, and that the applicant’s claim for payment in lieu of annual leave and long service leave be dismissed.
It is not clear what orders (if any) were made in respect of costs on the two appeals in the Industrial Relations Court. I note that the combined effect of s 173 and s 185 of the Industrial and Employee Relations Act 1994 is to enable that court to award costs on an appeal but not at first instance. I would wish to hear the parties further on the question of costs.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

The prosecutor successfully appealed against the decision of this Court to the Privy Council, but the appeal did not impeach this Court’s conclusion as to whether such a finding affects the jurisdiction of the court: Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407.

[2000] SASC 329

5 October 2000