Metropolitan Petar v Mitreski [2009] NSWSC 106 (4 March 2009)

Last Updated: 5 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Metropolitan Petar v Mitreski [2009] NSWSC 106


JURISDICTION:
Equity Division

FILE NUMBER(S):
3369/97

HEARING DATE(S):
24-28/11/2008; 1/12/2008; 9/12/2008; 16/12/2008; 18/12/2008; 9/2/2009

JUDGMENT DATE:
4 March 2009

PARTIES:
His Eminence Metropolitan Petar, The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1)
The Very Reverend Father Mitko Mitrev (P2)
Lambe Mitreski (D1)
Pero Damcevski (D2)
Boris Minovski (D3)
Eftim Eftimov (D4)
Mile Marcevski (D5)
Macedonian Orthodox Community Church St Petka Incorporated (D6)
Naum Despotoski (D8)
Attorney General for the State of New South Wales (D9)

JUDGMENT OF:
Young CJ in Eq

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
T G R Parker SC and R E Steele (P)
G O Blake SC and N Angelov (D1-6 & 8)
R P Lancaster and M A Izzo (D9)

SOLICITORS:
Sachs Gerace Lawyers (P)
McConnell Jaffray Lawyers (D1-6 & 8)
Crown Solicitor's Office (D9)


CATCHWORDS:
CHURCHES AND RELIGIOUS ASSOCIATIONS [32]- Church property- Orthodox Church- Relationship between diocese and parish- Scope of authority of Bishop. EQUITY [185]- Trusts- Church trust- Orthodox Church- Parish trustees- Objection to Bishop's activities- Whether breach.

LEGISLATION CITED:
Real Property Act 1900
Associations Incorporation Act 1984


CASES CITED:
In addition to references to previous decisions in this matter, the following cases are cited:
Attorney-General v Gould (1860) 28 Beav 485
Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293
Australian Broadcasting Tribunal v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 60 ALR 756
Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188
Jenkins v Robertson (1867) LR 1 Sc & Div 117
McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835
Natal (Bishop) v Gladstone (1866) LR 3 Eq 1
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641
Scandrett v Dowling (1992) 27 NSWLR 483
Strinic v Singh [2009] NSWCA 15
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wylde v AG (1948) 78 CLR 224

TEXTS CITED:


DECISION:
Question answered in favour of plaintiffs that defendants, by denying Bishop's authority, have breached their trust.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


YOUNG CJ in EQ


Wednesday 4 March 2009


3369/97 – METROPOLITAN PETAR v MITRESKI

JUDGMENT

1 HIS HONOUR: This case has been in the lists for far too long. It was fixed for final hearing, but because of a series of delays, it became impossible to hold the final hearing on the dates appointed and the only way that some of that time could be utilised was to answer a set of vital questions as preliminary questions.

2 Accordingly, on 13 October 2008, I ordered that the following separate question be set down for hearing ahead of all other remaining issues in the proceedings.

3 The question is,

What are the terms of the Declared Trust or the Church Trust in so far as material for the following alleged breaches of trust:-

(a) preventing the Diocesan Bishop from conducting services in the Church Building;

(b) preventing a priest appointed by the Diocesan Bishop as parish priest of the St Petka Parish from conducting religious services in the Church Building;

(c) preventing a priest licensed by the Diocesan Bishop to conduct religious services in the Church Building from doing so;

(d) excluding the priest appointed by the Diocesan Bishop as parish priest of the St Petka Parish from the executive committee of the body responsible for the administration of the St Petka Parish;

(e) employing a priest not appointed by the Diocesan Bishop to act as the parish priest of the St Petka Parish;

(f) employing a priest under valid ecclesiastical discipline in accordance with Church Law to act as the parish priest of St Petka Parish;

(g) requiring or permitting a priest to conduct religious services upon the Church Land when:

(i) that priest has not been authorised by the Diocesan Bishop to do so; or

(ii) that priest is under valid ecclesiastical discipline in accordance with Church Law.
(h) any or all of:

(i) closing the Church Building;

(ii) removing the Holy Objects from the Church Building;

(iii) installing Holy Objects;

(iv) reinstalling Holy Objects;

(v) carrying out of building works in and upon the Church Building without the authority and blessing of the Diocesan Bishop.

(i) refusing or failing to accept applications for membership from believers in the doctrines of the Macedonian Orthodox Church who have satisfied the criteria for eligibility specified in the Constitution, the Diocesan Statute and the By-Laws;

(j) failing to remit to the Diocesan Bishop the contribution from the income of the parish as specified in the Diocesan Statute.
(k) are any such terms fundamental terms?

4 The order noted that, “The Church Trust for this purpose is the trust for using 65 Railway Street, Rockdale as a site of a church of the Macedonian Orthodox Religion and for other purposes concerned with or ancillary to the encouragement practice and promotion of that Religion.”

5 The term “Declared Trust” refers to the terms of the Trust declared by Hamilton J in an earlier set of preliminary questions to which reference will be made hereafter.

6 The “Diocesan Statute” means the constitution adopted at a meeting in Geelong in 1996 and thereafter purportedly ratified by the central church authority in Macedonia.

7 It is important to note that I am not asked to consider whether the actions taken by the defendants or any of them in fact were a breach of trust. However, this exercise is not an academic one. There are allegations as to what has in fact occurred and it would be a waste of time and resources if the answers to the questions delved into matters outside that ambit. Accordingly, it is necessary in these reasons to consider some aspects of the underlying facts.

8 The separate question came on for hearing before me on 24 November 2008 and continued through until 1 December 2008. Mr TGR Parker SC and Mr RE Steele appeared for the plaintiffs, Mr GO Blake SC and Mr N Angelov appeared for the 1st to 6th and 8th defendants and Mr RP Lancaster and Mr MA Izzo appeared for the 9th defendant. There is not in fact at present any 7th defendant.

9 Unfortunately, at the end of the oral hearing further evidence came to light and as a result the matter was mentioned on some subsequent dates up to 9 February, 2009 and further evidence and submissions were received.

INDEX
10 It is useful at this point to set out the headings used in this judgment. In this Index and throughout the judgment “MOC” stands for the Macedonian Orthodox Church.

1-10 Preliminary
11-21 Overview
22-46 History of the MOC—Worldwide
47-113 History of the Parish of St Petka

114-118 The Evidence
119-139 A Conciliar Church ?
140-159 Church Law
160-170 Doctrine of Economy
171-184 Role of the Bishop
185-186 General Considerations
187-189 The Trust
190-196 Duties of the Trustees
197-349 Validity of the Diocesan Statute
350-358 Surplice Fees
359-362 Visa Problems
363-380 Alleged breach (a)
381-387 Alleged breach (b)
388- 395 Alleged breach (c)

396-397 Alleged breach (d)
398-422 Alleged breach (e)
423-431 Alleged breach (f)
432 Alleged breaches (g)
433-444 Alleged breaches (h)
445-455 Alleged breach (i)
456-474 Alleged breach (j)
475-497 Sub-Question (k)
498-500 Answer to the Question
501-502 Costs etc

Overview
11 It is necessary to commence these reasons with a brief overview of the proceedings to date. In these reasons I will refer to all defendants other than the 9th as “the defendants” and I will refer to the 9th defendant as “the Attorney-General”.

12 The proceedings were commenced on 28 July, 1997 when Simos J granted leave to file a summons returnable on short notice. The first version of the statement of claim was filed on 24 November, 1997. It has been amended from time to time. The latest version is known as Version 9.

13 The current version of the defence of the first to sixth and eighth defendants runs to 204 pages.

14 The key substantial issues that will need to be decided in the suit may be

briefly summarised as follows:

1. What are the trusts on which the property associated with the parish church of St Petka is held?

2. Are any of those trusts charitable?

3. Have the defendants or any of them breached any of the trusts?

4. f the answer to 3 is “Yes”, what remedy should be given?

15 As I have said, there was a substantial hearing of preliminary questions in these proceedings before Hamilton J. This took place before Hamilton J between August and November 2002 and his Honour gave judgment on 4 April 2003, coded [2003] NSWSC 262. I will refer to this as “Hamilton J’s judgment”.

16 Both sides have sought to appeal Hamilton J’s decision. However, the Court of Appeal has made it clear that it will not give leave to appeal until there has been a final order or at least deep consideration of the major issues in the case.

17 I should note that there has been a considerable amount of evidence including documentary evidence in this case. In addition, facts have been found in earlier judgments which, at this time are binding on the parties and I have applied them.

18 I am conscious of the remarks made by the Court of Appeal in Strinic v Singh [2009] NSWCA 15 that judges who hear a number of cases involving particular issues may delude themselves into thinking that they can substitute their experience for evidence. That decision, of course, is not directly applicable to this Court which is recognised as a specialist Court in matters of conveyancing, see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 435 per Deane J and probably in trust and corporation and church matters as well together with matters in the Commercial and Technology Lists.

19 I have taken care to see that, apart from having recourse to judicial knowledge of commonly known matters, I have not strayed in this respect.

20 I certainly have referred to some material from my reading in church law generally. I believe that I have in every case mentioned this material to counsel during addresses so that there has been an opportunity to gainsay it. It may just be that an occasional peripheral matter of fact has slipped through not in evidence. I rely on counsel to point any such fact out to me before the judgment that must follow these reasons is entered.

21 Before dealing with the separate question, I need to give an overview of the history and background of the practice of the Macedonian Orthodox Church (MOC).

History of Macedonian Orthodox Church—Worldwide

22 Hamilton J’s judgment finds a number of basic historical facts. As these bind the parties, unless there is a successful appeal, I will adopt what His Honour found and set out in the following paragraphs such of the background facts as are relevant to the present question.

23 A consideration of the history of the MOC involves a consideration of its worldwide history and then the history of the Rockdale Parish. The worldwide history as set out in Hamilton J’s judgment was substantially that given by the first plaintiff in an affidavit and was not disputed.

24 Christianity in Macedonia is said to have had its origins from the time of the Apostles. From very early times Christianity developed institutions and an organisational structure to carry on its mission. That structure was hierarchical: that is, believers were organised into parishes, each under the leadership of a priest; and parishes into dioceses, each governed by a bishop. Such a hierarchical organisation existed in what is now Macedonia just as it existed elsewhere in the early Church. The attendance of bishops and other representatives of the Church from what is now Macedonia is recorded at early ecumenical councils of the Church in the time of the Roman Empire.

25 What is now the Republic of Macedonia formed part of the Roman (later Byzantine) Empire. Under the Emperor Justinian I an Archbishopric was established centred on the city of Justiniana Prima in what is now Macedonia. This occurred in 535AD. Subsequently, the structure of the Church in what is now Macedonia and the Archbishopric of Justiniana Prima were disrupted by Slavic invasions. The Archbishopric was re- established by St Clement the Wonderworker (d 916) in Ohrid (sometimes called “Ochrid”) at about the end of the 9th Century AD. Thereafter the Archbishopric was known as the Archbishopric of Ohrid, although it was referred to by its old name of Justiniana Prima as well.

26 The Archbishopric of Ohrid endured until 1767, when the Ottoman Sultan abolished it. From that time forward, control over the Church in what is now Macedonia was ultimately exercised by the Patriarch of Constantinople.

27 In 1879, at the Congress of Berlin, what is now Serbia became an independent country. An independent Serbian Orthodox Church was established, under a Patriarch whose seat was (and is) at Belgrade.

28 At that time, what is now Macedonia was still part of the Ottoman Empire. In 1912 and 1913, there were two wars between the Ottoman Empire, Greece, Bulgaria and Serbia. Following those wars, most of what is now Macedonia was annexed to Serbia.

29 Following the First World War, the borders were again adjusted and Macedonia became a province of the Kingdom of Yugoslavia. At that time, jurisdiction over the Church in Macedonia was transferred from the Patriarch of Constantinople to the Serbian Orthodox Patriarch at Belgrade. Thereafter, the Church in Macedonia came under the jurisdiction of the Serbian Orthodox Church.

30 In 1941, Yugoslavia was invaded by the Axis powers, defeated and occupied. Jurisdiction over the Church in Macedonia was then split between the Archbishop of Albania and the Patriarch of Bulgaria. Most of what is now Macedonia was under the jurisdiction of the Bulgarian Patriarch and the western part of the country was under the jurisdiction of the Archbishop of Albania. These arrangements lasted until 1943 when the defeat of the Axis powers was followed by the withdrawal from Macedonia of the Bulgarian hierarchy.

31 This left no bishops with recognized jurisdiction over the Church in Macedonia.

32 At a conference of priests held in 1943, and again at a Church assembly of the laity held in 1945, it was resolved that the Archbishopric of Ohrid should be re-established. However, this did not occur until 1958.

33 Following the Second World War, Yugoslavia was reorganised under the Communist Government led by Tito. The country was structured as a series of Federal Republics, one of which was Macedonia. The Republic of Macedonia had its own flag and its own official language (Macedonian). It had its own constitution and parliament and its own organs of government, although, for practical purposes, the Communist Party hierarchy in Belgrade controlled them.

34 In 1958, there was a general assembly of delegates representing members of the Church in Macedonia. At that time, Dositej, who was a native Macedonian, was serving as the Vicar Bishop of the Serbian Orthodox Church. He was elected by the assembly as the first Archbishop of the re-established Archbishopric of Ohrid. At the same time, two other bishops were elected. A written constitution was adopted and a church government established, which provided both for canonical and executive government of the affairs of the Church. This government included a Church Court and a Church Legislative Council. These events marked the beginning of the independent autocephalous MOC.

35 The MOC continues to have a hierarchical structure in common with other episcopal Christian Churches. The spiritual head of the MOC is the Archbishop, who is styled the “Archbishop of Ohrid and Macedonia” and whose seat is in Skopje. There are ten dioceses, each administered by a bishop.

36 In Macedonia itself, the MOC has seven dioceses and approximately 2,000 churches and 250 monasteries. The MOC has 24 parishes in Australia and New Zealand. There is a Diocese of the United States of America and Canada. This is governed directly by the Archbishop. There is a Diocese of Europe with its own designated Bishop.

37 The Diocese of Australia was established as a separate Diocese in 1974, although it was under the auspices of the Bishop of America and Canada. The Diocese of Australia had its own ruling committee and other administrative organs. The Diocese was expanded to include New Zealand in 1996.

38 The MOC has a liturgy, which is generally similar to that of other Orthodox Churches, but which has certain distinctive features.

39 To the above, I should add the following. The evidence of Father Erickson of the USA, the expert in canon law called by the defendants, was that the MOC proclaimed itself autocephalous in 1967. The Serbian Orthodox Church from which it separated declared the MOC to be schismatic and broke relations with its hierarchy.

40 Despite the split, the MOC is treated by all parties to these proceedings as being a legitimate Orthodox Church governed by the basic rules and structures of Orthodox Churches generally.

41 The worldwide MOC is regulated by its Constitution as adopted in November 1994. I refer to this as “the 1994 Constitution”.

42 The 1994 Constitution provided for the adoption of a Diocesan Statute.

43 The procedure for adoption of such a statute was set out in the 1994 Constitution, namely that there should be a document agreed to at local level by the Diocesan Assembly and ratified by the Archbishop’s Assembly.

44 The Australian diocese purportedly adopted a Diocesan Statute in 1996.

45 However, there is dispute between the parties as to whether the Diocesan Statute was validly adopted so as to be binding on the parish of St Petka and, if it was, whether certain provisions in it are ultra vires the 1994 Constitution.

46 A draft of the proposed Diocesan Statute was prepared and submitted to a meeting of the Diocesan Assembly. This Assembly consisted of delegates of the parishes, including the parish of St Petka at a meeting in Geelong held on 14-16 February 1996 over which Metropolitan Petar presided. What occurred at that meeting was the subject of contest and this is dealt with later in these reasons.

History of Parish of St Petka, Rockdale

47 I now pass to consider the history of the Church of St Petka at Rockdale.

48 In 1975 there was at least one church of the MOC in Sydney, being the Church of St Kiril and Metodij in Rosebery. This church was fast becoming inadequate for the growing number of Macedonians in Sydney. There also appears to have been disagreement among many members of the Macedonian community as to the manner in which that church was being conducted.

49 A meeting was held in October 1975 at the Chuck Vagan Restaurant in Rockdale at which there was discussion as to what ought be done. Other meetings followed and, in early 1976, there was negotiation to buy an existing church building on Wollongong Road, Arncliffe. However, at the eleventh hour that church was withdrawn from sale. Thereafter the search was continued and premises were found which were deemed suitable for conversion to a church at 65 Railway Street, Rockdale (“the first property”).

50 The inquiries were being conducted by what was described as “the Initiative Committee for Purchase of a Church in the Area of St George – Rockdale”.

51 On 9 November 1976 Pasko Grbevski wrote a letter as president of the Initiative Committee to the Holy Synod of the MOC, Skopje. That letter contained the following:

“First of all, allow us with this short letter to inform you of our recent activities in line with the opening of our new church in Rockdale – Australia and at the same [sic] to ask you to satisfy our request to start with.

.....

The activists of the wider region of Saint [sic] George which encompasses a couple of regions settled with about 12,000 – Macedonians, considering that all the wishes have been ignored by the existent church community, in the last several months have undertaken on their own accord to open a new church, regardless of the reaction by the leadership of the old church in Roseberry [sic].

.....

At the last nights’ [sic] meeting of the initiative council in accordance with the conversation with the bishop His Grace Kiril, the following conclusions have been passed:

1 That our church is to be managed only in accordance with the directions i.e. the Constitution of our Macedonian Orthodox Church with a seat in Skopje, R. Macedonia.

2 Several names were proposed as follows: ‘Saint Petka’, ‘Holy Mother’, ‘Saint George’, ‘Saint Nikola’ and ‘Saint Arhangel [sic] Mihail’ from which you, your Grace will choose one and you will bless and name our future Holy Macedonian church in Rockdale.

3 Having in mind that the church will be in our hands until 15th of December this year, our authorities should have in mind our telegram and should sent [sic] a [sic] an eminent and sensible priest immediately who will gather together our people within our future church.

We obediently beg that our initiative to open a new Macedonian church in the region of Rockdale not be taken as a sin of ours. Your blessing will be a priceless remedy for the wounded Macedonian souls of ours, who have waited for so long to have the [sic] God’s temple in this area.

Sending this letter, convinced that all our wholehearted wishes will be accepted, most cordially and most warmly we salute you.”

52 A further meeting was called for 20 November 1976 and there are in evidence two versions of a report prepared on behalf of the Initiative Committee. It is unclear whether this was presented in writing or formed the basis of a speech made at the meeting, but Hamilton J found that its substance was conveyed to that meeting.

53 That report contained the following concerning the management and structure of the proposed church:

“MANAGEMENT AND STRUCTURE OF THE NEW MACEDONIAN CHURCH

The new Church will accept the Church Statute of the Macedonian Orthodox Church in Skopje and will apply it in its integrity because this Statute is accepted and implemented by all Macedonian churches in Macedonia and overseas, with exception of some churches in Australia which do not want to accept it. The Church will be managed by a Committee elected in a democratic way, on a general assembly by all the Macedonians from Sydney present at the assembly.

Every Macedonian has the right to vote. Every Macedonian has the right to elect and to be elected. There will not be such a thing as the so called ‘Foundation Members’ like it is the case with some other Churches, and who elect themselves over and over in order to command the Church and the Macedonian believers. We will not tolerate a situation where it is always the same group making decisions in the name of all of us, without consulting the majority, similarly to what is done in the racist country Rhodesia, where the white minority decides on the destiny of the black majority. Through a fair, reasonable and controlled management of the Church and in consultation with our compatriots, through a regular supervision of the financial operation, with a sincere, educated and just attitude towards every person, this Church should restore the confidence of our people in the Macedonian Church, to consolidate all the honest Macedonians and to lead them in further religious, cultural and intellectual development. In the future, when the Church attains a certain degree of financial ability, it will support morally and financially and on a fair basis all the legally funded Macedonian cultural, educational and sports organisations. It will become a mainstream body of the Macedonians in Sydney.

Now we should ask for an honest, educated and family oriented priest to be sent to us by the Macedonian Orthodox Church and the Holy Synod from Skopje, a priest who will work hard for the benefit of our people here, who will live with our Community sharing the good and the bad with our people.”

54 At the meeting of 20 November 1976, it was decided to proceed with the purchase of the first property and a set of by-laws was adopted (“the by-laws”). Two translations of the by-laws were tendered, one by the plaintiffs and the other by the defendants. Neither was a translation of all the articles. Neither was agreed to be correct.

55 One difference is that the plaintiffs’ translation is of the by-laws as adopted on 20 November 1976. The defendants’ is of the by-laws as subsequently approved by the Holy Synod in Skopje. There are some differences between the two sets of by-laws in the original Macedonian. Some are apparent from the English translations, but it is not clear what all of them are.

56 Taking the plaintiffs’ translation of the by-laws, articles 3 and 4 were as follows:

“Article 3

All property of the Church ‘St Petka’, both real-estate property and movable assets, are vested in the Church and cannot be transferred to a person or group of people, company or any other institution.

Article 4

The Macedonian Orthodox Church ‘St Petka’ is an integral part of the Macedonian Orthodox Church in Macedonia, and it is under its Canonical Jurisdiction and it is governed by the Holy Bishops Synod of the Macedonian Orthodox Church and the Metropolitan, respectively.”

57 The defendants’ translation makes it plain that “Church” is used in article 3 in the sense of the local church community, not in the sense of the institutional MOC (see also the defendants’ article 4). The aims and goals of the new church were to ”instruct its members in the spirit of the Orthodoxy” and to preserve the glorious traditions of the MOC: article 6a and b.

58 By article 12 membership was open to “honest persons of the Orthodox faith whose parents are Orthodox Christians”, with certain exceptions: see article 9.

59 Article 17 provided that the organs of the unincorporated association (in addition to the priest) were the Church Managing Committee and the Assembly. The Managing Committee (of “13 to 35 members”) was to be elected periodically by a vote of the members in the Assembly (articles 19 and 25).

60 Article 59 provided that the by-laws should become effective upon approval by the Holy Synod of the MOC in Skopje. Article 60 provided for amendment of the by-laws by a simple majority of votes in the Assembly.

61 Article 63 provided:

“Article 63

These By-laws are passed at a membership Assembly and should be approved by the Holy Synod of the Macedonian Orthodox Church in Macedonia and should be verified by the relevant authorities in Australia.”
62 Hamilton J considered that the defendants’ Article 66 was a better translation than the plaintiff’s 64. The text is:

“Article 66

Each article of these By-laws shall be changed or annulled if it is contrary to the common law of Australia, that is contrary to the civil – provincial and the federal law of Australia.”
63 It should be added that there was no evidence of any ratification by the Assembly (or, indeed, anyone) of the changes made in Skopje, nor that the by-laws were “verified by the relevant authorities in Australia”, whatever that may mean.

64 On 20 December 1976 Mr Grbevski wrote “To The Macedonian Diocese for Australia, Melbourne, Victoria” a letter commencing in the following fashion:

“Our letter might surprise you and make you ponder because it comes from the other side – unknown to you until this moment. However, we take the liberty to confess in front of you as our pastor and representative of the Holy Macedonian Archbishopric, to ask for the necessary advice, directions and certainly sincere help.”

65 Among the points made in the letter was the following:

“9 Although our Committee has not familiarised itself with the new By-Laws, which is [sic] being reviewed by the Church Management Committees, at the first Foundation General Meeting which took place on 20th November 1977 [sic] the new By-Laws were put to vote. The attendees had to decide which By-Laws we would use. All the attendees, around 250 countrymen, declared that they are in favour to work as set in the Constitution of our Archbishopric in Socialist Republic of Macedonia, except for several attendees – representative of Roseberry [sic] Church, led by their Secretary Mito Marinovski. ...”

66 On 23 December 1976 contracts were exchanged for the purchase of the first property for the price of $40,000.

67 On 15 February 1977 Mr Grbevski and Jone Belcheff, the then secretary of the committee addressed a letter “To Metropolitan for Canada, America and Australia The Most Reverend Kiril” which contained the following:

“At the General Meeting of the Macedonians held on 20th November 1976 an Initiative Committee was elected and authorised to find as soon as possible an appropriate place for a Macedonian Church. With the knowledge of the people that Committee bought the building on 65 Railway Street, Rockdale. All the preparations for the adaptation of the building in a church ambience have been completed. It was voted for the By-Laws complying with the Constitution of the Macedonian Orthodox Church and the Statute of the Macedonian Diocese for Australia, in Melbourne, Victoria, and it (By-Laws) was approved.

Therefore, Your Lordship, the Initiative Committee, in the name of the Macedonians in Rockdale and its vicinity would like to ask you to give a blessing to the elected Initiative Church Committee. We also would like to ask you to approve our By-Laws so that we could register at the appropriate Authorities as ‘Saint Petka’ Macedonian Church Community, Rockdale, which would work according to the Constitution of the Macedonian Orthodox Church, the Diocese Statute and these By-Laws which you would approve.”

The letter enclosed a copy of the by-laws.

68 It was in this context that the deed of trust, which is the central document in this case, was executed on 8 March 1977 and subsequently registered No 550 Book 3271 (“the deed of trust”).

69 The deed of trust was expressed to be between Mr Grbevski, Mr Belcheff and three other gentlemen named as “the appointors” and John Sergius Peetz, who was by now acting as the solicitor for the group and who was described as “the Trustee”.

70 The deed of trust contained the following recitals:

“A The appointors are the founder members of a religious group to be organised and known as ‘The Macedonian Orthodox Church St Petka Rockdale NSW Australia’ (hereinafter called ‘the proposed beneficiary’).

B It is intended that certain real estate premises and property more particularly described in the schedule below (hereinafter called ‘the trust property’) be purchased for use by the proposed beneficiary.

C Certain delays are anticipated in the organisation of the proposed beneficiary.

D The appointors have requested the trustee to acquire the trust property on behalf of the proposed beneficiary.”

71 The operative portion of the deed of trust contained the following provisions:

“1 The trustee shall acquire the trust property and stand possessed of the trust property upon trust to permit the trust property to be used by the proposed beneficiary as a site for a Church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.

.....

8 The parties hereto agree and acknowledge that this Deed is binding on their executors, administrators and assigns.

......

12 The trustee may, with the approval of the management committee of the proposed beneficiary or other governing body of the proposed beneficiary, by deed executed by the trustee or trustees wholly or partially revoke, alter or vary or add to any of the provisions of this Deed.

13 Upon the formation of the proposed beneficiary the management committee or other governing body of the proposed beneficiary shall:

(a) by resolution appoint at least 2 and up to 4 further trustees and in default of such appointment, the original trustee, JOHN SERGIUS PEETZ, shall have power to appoint such further trustee or trustees by a document in writing signed by him;

(b) have the power at any time by resolution to remove any trustee or trustees or appoint new trustees up to a total of 5 trustees.”

72 On 28 March 1977 the vendor’s solicitor served a notice to complete specifying 11 April 1977 as the day for completion and completion of the purchase of the first property did duly take place on or before that day, probably on 5 April 1977.

73 Immediately after completion of the purchase demolition work and then construction was carried out on the first property. Its progress is recorded in loving detail in a Souvenir Booklet, to which reference will shortly be made.

74 On 7 April 1977 Mr Peetz wrote to the Secretary, Macedonian Orthodox Church St Petka, Rockdale, to report on the settlement of the purchase. He stated in that letter that the “Constitution has been drawn as well as the Trust Deed and we note you hold copies of both documents”. He stated that both documents should be put to a meeting for adoption as soon as possible. He confirmed that he was proceeding with the application to register the organisation under the Charitable Collections Act 1934 (“the Charitable Collections Act”), but concluded with a note of very recent telephone instructions to hold back that registration pending possible further amendments to the Constitution.

75 Hamilton J said “Whilst there is no positive identification of the document referred to as the ‘Constitution’ in this letter, the inference I draw is that it was the Constitution as adopted on 28 October 1977, with or without some amendment as foreshadowed; that Constitution was in existence in some form on 7 April 1977.” I will adopt that conclusion.

76 On 9 May 1977 Messrs Grbevski and Belcheff wrote again to his Grace Metropolitan Kiril in Skopje asking for approval of the by-laws. The request was probably unnecessary because the by-laws were approved by a decision of the Holy Synod of the MOC at a meeting on 10 May 1977, which made the following decision:

”The newly formed Macedonian Church Community ‘St Petka’ – Rockdale – Sydney, to be accepted under the spiritual jurisdiction of the Holy Macedonian Orthodox Church – The Macedonian Archdiocese in Skopje.

We approve of the committee of Rockdale as a managing committee of the Church ‘St Petka’ who will deal and follow the By-laws of the Church constructed in accordance with the spirit of the Constitution of the Macedonian Orthodox Church, its legal and Canonical norms and regulations and being accepted as such by the Holy Sinod [sic].”

77 A number of the people who were present at the inception of the new church and who, indeed, worked physically on the construction of the building gave evidence before Hamilton J. To a large degree the evidence has gone to the question of the intent with which the trust was initially created, however it also went to the history of events at the time.

78 Hamilton J said that, in general terms, he preferred the evidence of contemporaneous or near contemporaneous documents where a witness’s account conflicts with those documents. He said that the reason for this is that the events occurred some 25 years ago. Memories are fallible. The issues in this case quite naturally raise strong emotions and those emotions tend to have their effect on the quality of recollection.

79 His Honour then noted that, fortunately, a number of significant documents are available from those times, more, indeed, as will appear below, than have been put into evidence surrounding later events, such as the incorporation of the incorporated association which is the sixth defendant.

80 One document which Hamilton J said helped to fill in gaps is a document which was prepared for the first anniversary of the new church, which was celebrated on 20 November 1977. It was a long historical document (“the Souvenir Booklet”) prepared by Mr Grbevski and Mr Belcheff, who became the first president and secretary of the church committee.

81 Hamilton J noted that both of those gentlemen gave evidence before him, so were available for cross examination concerning any material in the Souvenir Booklet, although it was prepared so long ago. The events recounted in the document were no more than a year or two old when the Souvenir Booklet was written. Both gentlemen were intimately involved in the various events recounted in the Souvenir Booklet. His Honour regarded the account of events in the Souvenir Booklet as more accurate than any that can now be given by the participants.

82 The main motivation for the establishment of the new church is set out as follows in the Souvenir Booklet:

“EVEN THOUGH WITH THE EXISTENCE OF THE MOC SAINT KIRIL AND METODI, ROSEBERY, SYDNEY, A GROUP OF ACTIVIST [sic] FROM THE AREA OF ERSKINVILLE [sic], NEWTOWN, ST.PETERS [sic], SYDNEHAM [sic], TEMPE, ARNCLIFFE, BANKSIA, ROCKDALE, KOGARAH, BEXLEY, CARLTON, HURSTVILLE, AND OTHER CLOSE REGIONS WORKED AND STRIVE [sic] SO THAT A MOC BE OPENED IN THESE PARTS WHICH WILL BE A SECOND MOC AND WITHIN REACH OF THE PARISHIONERS IN SOME CASES WITHOUT THE USE OF TRANSPORT. IT IS BECAUSE THESE REGIONS ARE POPULATED BY MOST MACEDONIANS WHERE AS [sic] THE REGION OF ROSEBERY IS FAIRLY FAR AWAY FROM THE MACEDONIAN POPULATION, AND IT IS NOT WITHIN ANY OF THE TRANSPORT ROUTES. IT CAN EASILY BE SAID THAT THE REASON FOR THE OPPOSITION TO OPEN A NEW CHURCH IN THESE PARTS IS THE COMMUNITY COUNCIL OF THE MOC ‘SAINT KIRIL AND METODI’ IN ROSEBERY”

83 The Souvenir Booklet then recounts a disagreement among the parishioners of the Church of St Kiril and Metodij which occurred at a meeting on 7 June 1975 and continues:

“NEXT WEEK 14TH JUNE 1975 IN THE HOUSE OF PETRE KIKIREKOV, THE FIRST MEETING OF THE ACTIVISTS WAS HELD, AFTER A WIDE DISCUSSION OF ALL THOSE PRESENT, AN [sic] ‘BOARD OF INITIATIVE’ WAS FORMED WITH THE TASK OF OPENING A NEW MACEDONIAN CHURCH. THE ‘BOARD OF INITIATIVE’ COMPRISED OF: BORIS LUSIPOSKI, ILIJA IVANOVSKI, PETRE KIKIREKOV, MISKO GEORGIEVSKI, JOVAN KOKALOVSKI, PASKO GRBEVSKI, JONE BELCHEV, ACO STANKOSKI AND TODE BASEVSKI.”

84 The Souvenir Booklet sets out an “act of remembrance” which was deposited in the foundations of the new church while concrete was being poured on 29 April 1977. That act of remembrance recorded concerning the meeting of 20 November 1976:

“AT THE MEETING THE CONSTITUTION OF THE MACEDONIAN ORTHODOX CHURCH FROM THE SOCIALIST REPUBLIC OF MACEDONIAN [sic] WAS ACCEPTED AND DECIDED THAT THE COMMUNITY COUNCIL WORK IN ACCORDANCE WITH IT AND THERE SHOULD BE NO DIVERTING FROM IT.”

85 The Souvenir Booklet also records the new church’s negotiations with the hierarchy in Macedonia to obtain the services of a priest.

86 The first service was held in the church on 7 August 1977. By dint, it would seem, of almost Herculean efforts, the building was completed by that time. However, no new priest had yet arrived and there were difficulties in obtaining a priest to celebrate services in the church in the meantime. The new priest finally arrived on 20 November 1977, coincidentally the date of the anniversary.

87 On 21 October 1977 application was made on behalf of the “Macedonian Orthodox Church St Petka Rockdale NSW Australia” for registration under the Charitable Collections Act. That application stated that it was accompanied by “a certified copy of the rules governing the conduct of the affairs of the charity”. There is little doubt, and His Honour found, that what was forwarded with that application to the then Chief Secretary’s Department was a copy of the Constitution which was adopted on 28 October 1977.

88 On 28 October 1977 there was a meeting of the “board” of the unincorporated association which, in the words of the Souvenir Booklet, decided as follows:

“IN ACCORDANCE WITH THE DECISION OF THE BOARD, HANDED DOWN AT ITS MEETING ON 28.10.1977, THE PROPOSED ANNUAL GENERAL MEETING FOR THE ELECTION OF A NEW BOARD IS POSTPONED TO NEXT YEAR. THE DECISION WAS BROUGHT DOWN BEARING IN MIND THAT THE CHURCH HAS NOT FULLY BECOME OPERATIONAL, THERE IS NO PRIEST, AND IN ORDER TO FINALISE SOME WORK, AS WELL AS TO ASCERTAIN THAT THE LOANS TOWARDS OUR MEMBERS ARE PAID OFF.”

89 His Honour also found the inference established that it was also at that meeting that the following occurred, again as recorded in the Souvenir Booklet:

“OUR BOARD, ACCORDING TO THE LAWS OF AUSTRALIA, HAS ELECTED FROM THE MIDST OF THE BOARD, TEN TRUSTWORTHY MEMBERS, OR AS THEY ARE CALLED HERE IN AUSTRALIA ‘TRUSTEES’, WHO WILL CARE ABOUT ENFORCING THE ELECTED [sic] CONSTITUTION, AND THOSE SAME TRUSTEES CAN BE CHANGED AS IS NOT THE CASE WITH FOUNDATION MEMBERS ... THOSE ARE THE PRINCIPLES OF THE BOARD OF ROCKDALE EQUALITY AND DEMOCRACY.”

90 There are no minutes of that meeting in evidence, but its business is recorded in a declaration of trust made by Mr Peetz thereafter:

“A By Deed of Conveyance dated 5th April, 1977 I became seised in the land described hereinafter in the Schedule of Land for an estate in fee simple.

B By Deed of Trust 8th March, 1977 I acquired the said land on trust for the Macedonian Orthodox Church St. Petka Rockdale N.S.W. Australia.

C At a properly convened and duly appointed meeting of the said Church held on 29th October, 1977 I resigned as Trustee and PETER GRBEVSKI of Arncliffe, Real Estate Agent JOHN BELCHEFF of Rockdale, Real Estate Agent, YONCE KOKALEVSKI of Arncliffe, Process Worker, TANAS RISTEVSKI of Arncliffe, Labourer, TANAS LOZANOVSKI or Rockdale PMG Employee, GEORGE SIMONOVSKI or Rockdale, Electrician, ILO VELGANOVSKI of Kogarah, Press Operator, ILO IVANOVSKI of Mascot, Storeman, MITRE DUPESOVSKI of Rockdale, PMG Employee and TODE BASEVSKI of Bexley, Machinist were properly appointed the new Trustees.

D At the said meeting a proper resolution was passed to effect the appropriate steps to have the new Trustees noted on the security documentation relating to the church property.”

91 Despite the recording in this document of the date of the meeting as 29 rather than 28 October, Hamilton J found on the probabilities that there was only one meeting and that it took place on 28 October 1977.

92 Mr Grbevski also that day certified as the original Constitution of “the Macedonian Church of St Petka Rockdale NSW Australia” a document which was subsequently registered in the general register of deeds (“the Constitution”). Whether this had undergone any amendment since it was referred to in Mr Peetz’ letter of 7 April 1977 is not clear.

93 The Constitution contained the following relevant provisions. Clause 3 contained objects including:

“A Generally, to encourage, practice and promote the Macedonian Christian Orthodox Religion and the activities concerned with or ancillary to the said Religion, and more particularly to

B Remain an integral part of the Macedonian Orthodox Church of Macedonia in Yugoslavia and wherever reasonably possible abide with the Canons of that Church.

C To educate members of the Church in the spirit of Orthodox Christianity.

D To maintain the glorious tradition of the Macedonian Orthodox Church in Macedonia Yugoslavia.”

Clause 8 provided that members should “be Macedonians or persons born of Macedonian parents or having a Macedonian mother or father or direct descendants of such persons who are adherents to the teachings of the Christian Orthodox Denomination”. Clause 12 provided for one member one vote at general meetings. General meetings were to elect the Council (of five members only), which was to have the management and control of the Church (see clauses 13, 15 and 16). By clause 27 the Constitution could be amended by a two thirds majority at a general meeting. It should be noted that the provision for the disposal of property on dissolution (clause 26) differed from that of the by-laws, at least the defendants’ version (article 4).

94 Mr Peetz subsequently transferred to the trustees as tenants in common his registered interest under the Real Property Act 1900 (“the RPA”) in the first property.

95 Subsequently to the purchase of 65 Railway Street, Rockdale five more pieces of what popularly would be called “realty” have been acquired for the Church of St Petka Rockdale. They are: 7 – 10 Firth Street, Arncliffe (“the Arncliffe property”); 66 Railway Street, Rockdale (“the second Rockdale property”); 2/64 Railway Street, Rockdale (“the first unit”); 1/64 Railway Street, Rockdale (“the second unit”); and 5/64 Railway Street, Rockdale (“the third unit”).

96 The interest which is held in the three home units is not in law real property, the units being in a block of units which is the subject of company title. The holding in those cases is the holding of shares in Gloucester Home Units Pty Limited (“the unit company”).

97 Details of the time of acquisition of those properties and the manner in which they were held after acquisition is set out in a document which was put into evidence and reproduced in a schedule (“Schedule A”) to the judgment as has subsequently been referred to as “The Schedule A property”.

98 In the case of all three titles under the RPA the property was registered in the individual names of trustees. In the case of the first unit the share certificate was in the name of “The Trustees for the Macedonian Church St Petka”; in the case of the second unit and the third unit the share certificates were issued in the name of “Macedonian Orthodox Church St Petka, Rockdale”.

99 In respect of only one of the properties acquired subsequent to the first property is there in evidence any separate declaration of trust. That is in respect of the property secondly acquired, namely, the Arncliffe property.

100 That was a declaration dated 15 August 1978 (“the Arncliffe declaration of trust”) by which John Belcheff and Tode Basevski, therein described as the trustees, recited that “The trustees of the Macedonian Orthodox Church St Petka Rockdale NSW Australia (hereafter called the ‘Church Trust’) have decided to purchase” the Arncliffe property and declared:

“1 That the funds provided for the purchase of the property at [sic] all been provided by the Church Trust.

2 That they will hold the property in absolute trust for the Church Trust.

3 That upon request by the Church Trust they will transfer the legal estate to the Church Trust in accordance with its constitution and will co-operate and sign all documents necessary to effect such transfer or other legitimate authorised and approved dealing with the property.

4 That in the meantime they will act in accordance with the Constitution of the Macedonian Orthodox Church St Petka Rockdale NSW Australia, its rules and regulations.”

101 Other than the acquisition of the further properties, between late 1977 and 1992 there does not appear to be evidence of any event material to the present proceedings. There is no substantial evidence to indicate whether during that time the unincorporated association operated under the original by-laws or the by-laws approved in Macedonia or the Constitution adopted on 28 October 1977.

102 Unlike the situation in 1976 and 1977 where, as can be seen, there is considerable documentation of the events and meetings which took place, there is only the barest evidence of how the constitutional change came about in 1992 that led to and arose from the incorporation of the sixth defendant (“the incorporated association”) under the Associations Incorporation Act 1984 (“the Incorporation Act”).

103 Indeed, the only documents relating to that incorporation are a copy of the resolutions for incorporation and a partial copy of the application for incorporation (lacking the constitution and the list of property said to have been annexed to it).

104 The resolutions are certified to have been passed at an extraordinary meeting of the unincorporated association held on 2 March 1992 and are as follows:

“1 That the Executive Council is authorised and directed to seek registration of the Macedonian Orthodox Church, St Petka, under the Associations Incorporation Act as an incorporated association to be known as

‘Macedonian Orthodox Community

Church St. Petka’

2 To accept and adopt a new constitution being the Constitution displayed prior to this Extraordinary General Meeting at the Community Church Hall and identified by the signatures of the members of the Executive Council.

3 That the trustees are hereby authorised and directed upon the proper registration of the new constitution and upon proper registration as an incorporated association to sign all such documents to transfer the assets and real estate held in their name on behalf of the Macedonian Orthodox Church St Petka Rockdale to the Macedonian Orthodox Community Church St Petka as an incorporated association.

4 The operations, funtions [sic] and assets as well as liabilities incurred on behalf of the Macedonian Orthodox Church St Petka Rockdale Community, shall upon the registration as an incorporated association known as Macedonian Orthodox Community Church St Petka be transferred to or accepted by the new association.”
105 In the absence of the annexures referred to, the application does not contain a great deal of useful information. It does state that the objects of the proposed incorporated association are “A, E, G, & H AS SET OUT IN MORE DETAIL IN THE CONSTITUTION FOR THE CHURCH ANNEXED HERETO”. There is adjacent to that reference to the constitution a handwritten note “(20 PAGES)”. The Constitution of 28 October 1977 does contain objects A, E, G and H and is of 20 pages, but one could not safely infer that the initial constitution of the incorporated association was identical with the Constitution. The application contained a statement that the “proposed incorporated association will not be the trustee of any trusts”.

106 The other document that is in evidence concerning the constitution of the incorporated association is a notice of alteration of rules registered with the Department of Consumer Affairs on 11 December 1992. It attaches a 23 page constitution said to have been adopted by special resolution at a general meeting of the incorporated association held on 28 September 1992. There is no dispute that this is the current constitution of the incorporated association. It repeats the objects in the Constitution, including those set out above. Its provisions as to membership, voting at general meetings and the Council substantially repeat those of the Constitution (see clauses 8, 18 and 21), as do its provisions as to amendment and disposal of assets on dissolution (see clauses 32 and 31).

107 Thereafter the incorporated association took steps to have itself recorded as the holder of all the real property in this case. In respect of the first property (with which the second Rockdale property was by then consolidated), it lodged an application in the prescribed form dated 29 May 1992 for it to be recorded on the title as the registered proprietor. That was supported by a certificate of public officer as to vesting of property which certified that the first property:

“... was held by YONE BELCHEFF, GEORGE SIMONOVSKI, PETAR GRBEVSKI, ILJA VELJANOVSKI, ILJA IVANOVSKI, DIMITAR DUPESHOVSKI, ATANAS RISTOVSKI AND METODI BASEVSKI as joint tenants of c/- 65 Railway Street, Rockdale. [sic] in trust or otherwise, for or on behalf of MACEDONIAN ORTHODOX CHURCH ST PETKA (which was a former association of MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA Incorporated) or for its objects.”

108 There was a similar application and certificate in respect of the Arncliffe property (although in that case there seems to have been some confusion as to whether two of the original trustees remained as trustees). There is an ASIC search of the shareholding of the unit company which shows the holder of the relevant shares in that company to be the incorporated association. Although there are not documents showing the mechanism of the change in respect of the registered shareholding, in the case of the first unit, from the trustees of the unincorporated association and, in the case of the other two, from the unincorporated association itself to the incorporated association, there is no reason to doubt that this was effected at about the same time by application to those maintaining the share register of the unit company.

109 In 1997 disputes broke out between the Diocesan Bishop and the governing body of the incorporated association. The separate question concerns the issues that arose. They included issues about the appointment of the parish priest and the control of property and money.

110 Unfortunately the circumstances of this case are not unique. The background to the dispute is the same as in other cases involving orthodox congregations. Basically, a group of sincerely religious citizens give money to build and establish a church. They devote a lot of time and money to this project. Then, after a few years, they find that their particular vision for their church runs contrary to that of the hierarchy.

111 Being now members of a democratic society, there is a deep feeling that it is amoral that their money and energy should now be controlled by another. However, that consequence often follows because of the hierarchial nature of the Orthodox Church.

112 What has happened in this church over the past 12 years is indeed tragic. Apart from the breaking of relationships, vast sums of money have been spent on this case which could have been used for church purposes.

113 Further, the Bishop, Father Mitrev and their supporters have been excluded from the parish church by the defendants for 12 years. The Bishop and Father Mitrev have instead had to use an otherwise disused former Methodist church in the vicinity to conduct services for the Church members who have remained faithful to them.

The evidence tendered on the separate question

114 A large number of affidavits were read before me and eleven witnesses were cross-examined. Most of the evidence was directed to the issue of whether the 1994 constitution was validly adopted.

115 One piece of expert evidence was tendered. Father John Erickson of the American Orthodox Church gave written evidence as to the law of the Orthodox Church. He was cross-examined from Boston, USA by videolink on the second day of hearing. He was acknowledged to be an expert in the law and customs of the Orthodox Church.

116 Although one needs to adjust Father Erickson’s evidence because he was working within the American Orthodox Church which appears to be a merger of all the Orthodox Churches in the USA whilst, in Australia, the various national churches of orthodoxy are autocephalous, in general all parties accepted his expert evidence as reliable. I will refer to it extensively during the course of these reasons.

117 Unless I note otherwise, I have accepted what Professor Erickson has said. However, as noted below one must be careful to realize that what he says are “principles of ecclesiology” are, in reality, no more than how modern clergy are taught leads to best results. It does not form part of church law in any real sense.

118 I will shortly examine each of the alleged breaches of trust set out in sub-questions (a)-(j). However, first, it is necessary (a) to examine the structure of the MOC; (b) to look generally at what is meant by “Church Law”; and (c) to examine the role of the bishop in that church.

A Conciliar Church?

119 It has often been said, see for example my comments in Radmanovich v Nedeljkovic (2001) 52 NSWLR 641, 669, that in hearing church disputes it is essential to classify the church, the usual categories being: (a) Hierarchal; (b) Presbyterian; or (c) Congregational. Broadly speaking, in category (a) the decisions are made by the chief clergy, in category (b) by an elected board and in category (c), democratically.

120 It is also worth noting that Hamilton J described the Macedonian Orthodox Church as “hierarchical” in his judgment: Macedonian Orthodox Church [19].

121 Mr Blake has said that the MOC is a “Conciliar Church”. His submissions show that what he meant by this was not a church run by the authority of ancient council decisions, nor a presbyterian church, but a church which might be said to be run by a sort of constitutional hierarchy, that is, the hierarchy might make the ultimate decision but they were limited by the constitutions of the various bodies of the church only to adopt what the various local bodies would accept.

122 Professor Erickson says in his Expert Report that, whilst it is meaningful for many purposes to classify churches as ”hierarchial” or “congregational”, that classification is less appropriate if viewed from an ecclesiological perspective.

123 However, Professor Erickson agrees that the classification of the church as hierarchial is a correct statement of basic ecclesiastical principle (Transcript: p 81).

124 I had problems in getting my mind around the concept of “ecclesiological perspective.” My understanding of Professor Erickson’s evidence is that he means the perspective of church administration when he employs this term.

125 I also had difficulty with the term “conciliar”. My first thoughts conjured up a church governed by the decrees of the ecumenical councils or a church ruled by a council such as a presbyterian church.

126 However, neither of these concepts were meant. Although the text referred to in the next paragraph is not part of the evidence, it assisted me in coming to grips with Mr Blake’s submissions.

127 Lewis J Patsavos, Spiritual Dimensions of the Holy Canons (Holy Cross Press, Brookline Mass 2003) pp 36-9 defines the concept that I believe the defendants were presenting thus,

The concept of conciliarity...is not confined solely to convening various types of synods, but also includes every expression of ecclesiastical life and pastoral ministry.

....

At all levels the Church functions as synod, ie as a community of persons freely gathered in Christ and by him, so that each may offer his gift for the building up of the body in love. Within orthodoxy the person is neither absorbed nor identified with the masses.

....

Within the concept of true communion is understood cooperation, mutual respect and recognition of the God-given worth and gifts which each member, and especially each pastor of the Church is endowed.

128 Professor Erickson says that in modern ecclesiology, there is greater emphasis on co-responsibility of the faithful, clergy and laity, for the life of the church.

129 I have no difficulty with this sort of analysis. Indeed my judgment in Radmanovich v Nedeljkovic proceeds along very similar lines. However, I do not consider that the analysis leads anywhere.

130 The clue is that this conciliarity is a matter of ecclesiology, not of church law and order. That is, the Orthodox Church has a policy and expects bishops and other leaders to exploit the gifts of all members of the church to strengthen the church. However, there is no compulsion for any leader to put conciliarity in place. Indeed Patsavos at pp 39-40 points out that some bishops still are too authoritarian and their conduct weakens the church, but they are not behaving unlawfully.

131 Mr Blake submitted that the fundamental ecclesiastical principle which ought to be considered is that of “conciliatory” (Transcript: p 316). The defendants submitted that the Macedonian Orthodox Church involves the co-responsibility of clergy and laity, including bishops (Transcript: p 316).

132 While this may be so, as I said in Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 at 315, a church with bishops will ordinarily fall into the category of “hierarchical”, even notwithstanding that some governmental powers are given to clergy of inferior rank or to laity.

133 Here, church practices such as the canonical norm of the Bishop having “full and exclusive authority” in the appointment and removal of clergy (Father John’s affidavit, [14.7]) suggest that while certain organs of the church apart from the bishop may have some say in what goes on, ultimate authority is with the bishop.

134 However, those organs can only be those nominated in the constitutional documents or trust deed. There is no authority given to the founders of a church or to a Parish Council to act as judge in its own cause and overrule the bishop.

135 However, an alternative way of looking at the matter is that the persons who have founded a parish have agreed that the hierarchy shall “rule” the church subject to the provisions of the constitutional documents.

136 In the ultimate it matters not whether one adopts a ”top down” or “bottom up” rationalization.

137 However, the fact that for ecclesiological purposes the Church acknowledges that conciliarity is the way forward, does not mean that the legal status of the church or the authority of a bishop is degraded except as is stated in constitutional documents.

138 Indeed, even Mr Parker accepts that the church may be conciliar in the above sense, but truly says that this does not affect the principles governing the authority of a bishop on which he relies.

139 Even if I accept that the church is “conciliar”, that does not justify the Parish Council of St Petka from assuming powers that are not granted to them by the constitutional documents and by laws of the church.

“Church Law”
140 One must be careful when using the expression “Church law” to make it clear what one is really considering.

141 In countries such as England, where there is an established church, a great part of the law governing the church is the statute and common law of the country. However, where there is no established church, the “law” of the church is a collection of traditions, contracts, consensus and trusts which may or may not be enforceable in a court of law or equity.

142 Indeed, the term church “law” to a degree denotes something more akin to the rules of a club than to the binding rules of a sovereign State. The primary sources of church law relied upon in these proceedings have been ecclesiological principles and positive law.

143 Rev Mr Lacey in his well respected “Handbook of Church Law” (Grant Richards, London, 1903) says at p 32 of the early rules and canons of the church, “If it be asked by what authority these heterogeneous materials were imposed as law upon the Church, it can only be replied that they were in fact received as such. They expressed the general sense of the Church; the expression might be local, particular, accidental; the sense was universal.”

144 Apart from the commands in Scripture itself, which do not feature at all in the present case, the law of the church is that which can be found as a fact to have been recognised as law over a period of time by a particular branch of the church. It is not always necessary to trace the alleged law back to the authority of an authoritative law maker.

145 However, again as Rev Mr Lacey points out at p 11 of his book, it is a dominant feature of church law that, apart from authoritative legislation, the law is not enforced by penalties or constraint. Much of church “law” is directed to what is expected to occur so that things are done decently and in order by the people best suited to the task.

146 Again there are laws of the church which have nothing to do with right conduct. From early times in the church, sections of the church had definite rules fixing the date of Easter. These were not uniform throughout Christendom. However, historically such rules were considered to be some of the most basic law of the church.

147 Thus, often the task of the fact finder as to what is the law of a particular church is to examine what principles have been accepted for many years as being the law of the church in that area or denomination rather than search for authoritative origins.

148 Outside of Scripture, the opinions of the Church Fathers, where they agree, often constitute good evidence as to what is recognised by a church as principles of its law. This is so even though those fathers had no legislative authority.

149 The Christian Church has been in existence since the Resurrection. In its early days its members met informally, but by about 100 AD it was already having to formulate rules of order. The Didache is an early collection of some of those rules.

150 By the time the Christian Church became officially recognized in the fourth century, there was already a body of rules recognised as being part of the law of the church.

151 Shortly after the Emperor Constantine embraced Christianity, the Roman emperors, particularly the Eastern Emperor, convened Councils of the Church to decide on matters of great dissention within the church. Pre-eminent amongst these were the Seven great Ecumenical Councils, viz: (1) Nicaea I, (325), (2) Constantinople I (351), (3) Ephesus (431), (4) Chalcedon (451), (5) Constantinople II (553), (6) Constantinople III (680-1), (7) Nicaea II (787).

152 Although each of these Councils was convened to deal with a particular perceived heresy, their decisions usually went beyond the heresy to state basic doctrine on wider matters and has been accepted by Orthodox, Catholic and most protestant churches as setting out the doctrine of the church.

153 The Apostolic Constitutions, according to the well regarded Oxford Dictionary of the Church, is a collection of ecclesiastical law dating from the latter half of the fourth century almost certainly of Syrian provenance. It has 8 books. Volume 1 incorporated part of the Didache: Volume VIII 28-46 consists of canons while VIII 47 consists of 85 canons attributed to the Apostles known as the Apostolic Canons.

154 Father Erickson says that it is clear that all Orthodox churches accept in addition to the Scriptures and the creed, “the dogmatic decrees of the Ecumenical Councils and a common liturgical and patristic tradition”.

155 The commonly accepted material includes the Apostolic Canons, the Canons of the seven Ecumenical Councils, as well as canons of various local councils and certain patristic writings.

156 Indeed Article 6 of the 1994 Constitution spells it out that the MOC “administers itself on the basis:

(a) of the Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church;

(b) the Apostolic Constitutions, Constitutions of the Ecumenical Councils, Local Councils and Holy Fathers;

(c) the Acts of the Local Councils and Patriarchial Synods, if the MOC adopted it;

(d) regulations, rules, statutes, decisions and other constitutional acts of the competent church authorities, which are bring forth (sic) on the basis of the Constitution.”

157 The most comprehensive collection of the authoritative writings on the law of the Orthodox Church is a collection known as “The Rudder”. However, none of the various translations of The Rudder into English is entirely satisfactory.

158 Thus it is clear that there is a body of rules which all parties accept as being part of church law. However, indeed as Father Erickson acknowledges, there are other rules which also are part of the law of the MOC in Australia.

159 In paragraph 9 of his affidavit, Father Erickson says that the canons taken by themselves do not provide detailed regulation of all aspects of church life. In modern times these have been supplemented by positive ecclesiastical law which seeks to adapt the principles of the orthodox canonical tradition to particular circumstances.

The doctrine of economy

160 An important part of the submissions in this case focussed on the doctrine of economy.

161 There is no doubt that the doctrine of economy applies to the MOC. This is accepted by all. However, there is issue as to the extent of the doctrine.

162 It is almost impossible to find a good modern definition of the doctrine. Part of the reason for this is that in the Western Church there is rarely any

need for its application, except in time of war.

163 Essentially the doctrine is that if it is not possible to comply with the law of the church, then it is lawful to do the best one can in the circumstances.

164 I briefly discussed this doctrine in the Ancient Church of the East Case (AG ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293, 297-8).

165 I there cited the words of S Cyril (Patriarch of Alexandria d 444) that “where it is not possible to keep everything, surrender some in order that we might not lose all”. However, it is to be noted that Sparrow Simpson on Dispensations (SPCK London 1935) p2 says that these words were uttered in connection with the dispensing power rather than the doctrine of economy and, on reflection, this is probably correct.

166 The classic example of the operation of the doctrine of economy is, if people are captured by rebels and are held in a camp without a priest, or are shipwrecked on an island without a priest, the doctrine of economy will allow them to select a layperson to celebrate the Eucharist and that will be a valid Eucharist despite any rule requiring the celebrant to be in bishop’s or priest’s orders.

167 The debate between the plaintiffs and the defendants has centred on what degree of necessity has to be present before the principle can operate.

168 In this connection it should be noted that the Council of Nicea I stated that prior to that council there had been overmuch reliance on the doctrine of economy and that, in future, the appropriate procedure where emergency action was required was to apply to the bishop for dispensation.

169 As is pointed out in Sparrow Simpson on Dispensations at p 1:

“The necessity of regulating Dispensations engaged the attention of the Bishops as early as the Council of Nicaea, AD 325. The second Canon of this first Ecumenical Council complained that many things had been done by men, either from necessity or from some other pressing cause, contrary to the Canons of the Church. The Council decreed in reference to certain such cases that “nothing of the sort shall be done for the future.”

170 This development makes me tend to the plaintiffs’ view that the doctrine of economy is only applied in cases of absolute necessity where because of lack of time or resources, no other course is open. I will however, return to the submissions made on the point in due course.

The role of the bishop

171 A considerable amount of time was spent in this case on the “law” of the church as to the role of the bishop.

172 It was accepted on all sides and by Father Erickson that the bishop has considerable powers within all orthodox churches. However, the limitations on a bishop’s authority was a matter of dispute.

173 It is undisputed that, from early times in the Orthodox Church, a bishop’s leadership position has been endorsed by the leading churchmen of the day.

174 St Ignatius the God-bearer, Bishop of Antioch, wrote in his Epistle to the Church at Smyrna 8:2, written about AD 105, “Do ye all follow your Bishop”.

175 St Ignatius also wrote in his Epistle to the Romans that the best safeguard of the unity of the Christian faith is the bishop, who is pre-eminent because he is “as the Lord” and without whose authority neither the Eucharist nor marriage may be celebrated.

176 St Cyprian, Bishop of Carthage wrote in 251AD his Letter lxvi, 8. This states that “The bishop is in the church and the church in the bishop, and if anyone be not with the bishop, he is not in the church”.

177 The defendants do not accept that St Ignatius the God bearer’s writings nor that St Cyprian’s letters constitute part of the authoritative canon law of the Eastern Orthodox Church in Australia. As to the former they say that the text is merely a highly respected statement of a holy father, and not part of the authoritative canon law. I will return to this.

178 Apostolic Canon XXXVIII says “Let the Bishop have the care of all ecclesiastical matters and let him manage them, on the understanding that God is overseeing and supervising ...” The interpretation of this is that a “bishop should be given care of all things belonging to the Church”. Apostolic Canon XXXIX directs “Let Presbyters and Deacons do nothing without the consent of the Bishop...”. The interpretation of this is that “presbyters and deacons cannot perform any sacerdotal or priestly function or office without the consent and permission of their bishop”.

179 Father John Erickson agreed with a qualified version of this rule (at p. 87 of transcript) – he thought it important to note that while the Bishop has the upper hand, he does not have “the only hand” (p 87 of transcript). However, this qualification does not seem to alter the meaning of the rule.

180 Article 71 of the 1994 Constitution provides (Father Erickson’s translation):

“As its spiritual leader, the Diocesan Bishop heads the Diocese. The Diocesan Bishop represents the Diocese and directs the whole of its ecclesiastical and spiritual life as well as order within the Diocese. In dogmatic, theological and liturgical questions, he carries out his governing responsibilities independently, in cooperation with the clergy and the monks who are in clerical orders; but in administration and management of material and financial affairs he works together with the priests, monks and people of the Diocese who are represented in Diocesan bodies and agencies.”

181 Article 12 of the 1996 Diocesan Statute follows the same pattern save that it says that in temporal matters the bishop works “together with the Diocesan Administrative Council and other bodies and agencies of the Diocese.”

182 The whole of the material before the Court goes in one direction and that is that possibly subject to some limited exceptions, in the Orthodox Church the bishop has the care of all things pertaining to the church in his diocese.

183 Those exceptions are all in the field where a constitutionally valid provision of the church recognises that the bishop shares his authority or permits a body of clerics or laypersons to perform certain functions.

184 Accordingly, generally speaking, unless I am satisfied that some valid “law” of the church excludes the bishop from doing what he considers appropriate, his view should prevail.

General Considerations

185 I gave three judgments during 2008 which should be noted. All are entitled “Metropolitan Petar v Mitreski”. [2008] NSWSC 243 dated 22 February 2008 considered whether undertakings should be varied. [2008] NSWSC 293 of 27 March 2008 considered various procedural matters. [2008] NSWSC 1021 of 30 September 2008 considered substantive matters when I struck out various parts of the defence. I will refer to this last mentioned judgment as “My judgment 1021.”

186 Considerable time was spent on certain alleged basic principles which covered more than one of the individual sub-questions. Chief among these were: (a) the terms of the trust on which the Church Building is held; (b) the ambit of the duties of the trustee; (c) the validity of the Diocesan Constitution; (d) who is entitled to retain surplice fees. I should deal with these before turning to the sub-questions.

The Trust

187 This matter was canvassed at some length in both Hamilton J’s judgment and also in my 1021 judgment.

188 In the latter, I said at [29] and [30] that it was axiomatic that once trusts have been laid down by the founding members of a church or charity, unless power to amend has been reserved in the declaration of those trusts.

189 Thus the Trusts are those that were in existence on 8 March 1977 (if not November 1976). The Trusts were not varied by anything that happened in the parish after 8 March 1977.

Duties of the Trustees

190 At the conclusion of the oral submissions last year, by consent (said to be given reluctantly), I dissolved undertakings that prevented the bishop from celebrating the rites of the church in the Church Building.

191 Senior Counsel for the defendants told me that the defendants feared that if the undertakings were released there might be violence towards the bishop and his entourage if they entered the Church Building. My riposte was that the trustee had an obligation to maintain order.

192 However, immediately before Eastern Christmas, the trustee briefed new counsel to approach the Vacation Judge and put to him that the trustee conscientiously and reasonably believed that it could not prevent violence if the bishop attended and sought judicial advice that, in those circumstances it was entitled to prevent the bishop attending.

193 The judicial advice application was heard ex parte apparently without notice to any other party and the judge was persuaded to give the trustee the advice it desired.

194 I do not know what the vacation judge was told, particularly whether he was informed of my ruling referred to above.

195 The judicial advice was never served on the plaintiffs so to be binding on them. If the advice was obtained without full disclosure to the judge, it will be of no protection to the trustee. However, it had the practical effect of keeping the bishop out of the church of St Petka at Eastern Christmas.

196 It would now be unwise, even if it were ever wise to rely on that advice. Indeed, it is to be noted that the learned Vacation Judge made it clear his advice was given subject to final determination of the parties’ rights.

The validity of the Diocesan Constitution

197 A considerable amount of evidence was tendered on this issue.

198 As I have indicated, a draft of the constitution was presented to the Diocesan Assembly at its meeting in Geelong in 1996.

199 The defendants say that: (a) Metropolitan Petar did not put each and every clause of the draft to the vote and in respect of some clauses, he did not accept amendments; (b) the Statute was not duly ratified by the Archbishop’s Assembly and; (c) even if I find against the defendants on sub-issues (a) and (b), parts of it are ultra vires the 1994 Constitution.

200 A vital preliminary question arises and that is whether it matters one way or the other whether the diocesan constitution is valid or not. That is, is the validity of the Diocesan Statute a false issue?

Whether the validity or invalidity of part of the Diocesan statute affects the answers to the sub-questions

201 We have here a situation where there is an hierarchial church, though probably an hierarchial church with a conciliar flavour. That is, a church where the hierarchy are constrained by valid constitutional provisions limiting their authority.

202 If a constitutional instrument is valid then that might validly limit a bishop’s authority.

203 However, no invalid instrument can affect the bishop’s authority.

204 Thus, generally, if the Diocesan Constitution is invalid in whole or in part, it does not affect the bishop’s authority. The only consequence is that if the Diocesan Statute purports to limit that authority by empowering others or requiring the consensus of others, those provisions will be inoperative.

205 Accordingly, although I will make rulings on the submissions as to the validity of the Diocesan Statute in case the matter goes further, I do not consider that those rulings affect the ultimate decision on the question posed.

206 I will now deal with the factual issues that arise with respect to the diocesan constitution. I will deal with the matter under three sub-heads: (a) The Geelong meeting; (b) The ratification in Macedonia; and (c) whether in any event parts of the diocesan constitution are contrary to the 1994 constitution.

(a) The Geelong meeting

207 A large amount of evidence was received on this issue. Various people who were present at the meeting gave evidence and there were vast differences in their recollection.

208 During the proceedings, I heard a good deal of conflicting evidence on whether or not the Diocesan Statute passed at a Meeting of the Diocesan Assembly held at Geelong on 15 and 16 of February 1996 (“the Geelong meeting”). The plaintiffs say it did. The defendants say it did not. I will outline the evidence below, before making factual findings on whether the Statute passed. (Assuming it is of consequence). Although I eventually received transcriptions of tapes of the meeting, the evidence of these witnesses is still of import, as it deals with the surrounding circumstances of the meeting, such as the signing of minutes and the preparation of a text to be sent to the Holy Synod.

209 Before considering the oral evidence I must note that during the proceedings, I expressed concern that there were situations where the independence of interpreters were in question. In particular, at one stage, the interpreter had been sitting with the plaintiffs (Transcript: p 238).

210 The Court insists that interpreters are for the court’s assistance. They are to be and to be seen to be completely neutral. In most cases, the court prefers that the interpreter used in court is not even a person who assisted a party in the preparation of its case.

211 Circumstances often mean that the pure rule cannot be kept. Given the scarcity of accredited Macedonian interpreters, it would seem that little could be done about this problem in the instant case, but its existence must be mentioned.

212 The first witness to give evidence on this issue was Father Dvojakovski, who was a priest of St Petka from June 1987 to June 1996. He swore an affidavit on 12 November 2008 and appeared before me as a witness on 25 November 2008.

213 The witness attended the Geelong meeting in his capacity as priest of the St Petka Church. He said he was given the responsibility of making a record of the decisions there made. He said he did not receive a copy of the document he prepared subsequently, and has not seen it since.

214 Father Dvojakovski said that “two or three” people were appointed to take minutes, and he recalled them as being Valentin Spasevski and Father Talevski. During cross-examination, it was put to the witness – and he was suddenly able to recall – that Father Ristevski was the third person appointed to take minutes, and that Father Djrovski and Mr Jazevski were appointed to verify the minutes.

215 At first the witness said that he did not make a written record of the meeting at the time of the meeting (p 101 of Transcript), but he later corrected himself and said that he made “conclusions of the decisions made and to hand that over to the presiding committee”. He said he produced a document which set out the conclusions of the meeting as he understood them, dealing with the terms of the Diocesan Statute. As Mr Parker pointed out during cross-examination, the witness did not refer to having prepared the document in his affidavit.

216 The witness admitted that when preparing his affidavit he could only rely on his memory, as he had no written record of the meeting. Mr Parker pointed out that it was only in the weeks leading up to the proceedings that the witness had to cast his mind back to February 1996.

217 The witness agreed that during discussions of the Statute at the Geelong meeting, the Statute was introduced, and then each article discussed one by one. In his affidavit, he said that before this process occurred various people (whom he listed) said that they lacked the authority to agree to the Statute, but during cross-examination he agreed that it was possible that two of the men he named had not even been at the Geelong meeting.

218 The witness later agreed that the people he had listed in the affidavit were people he had already thought prior to the meeting would object to certain parts of the Statute – that is, in his affidavit the people he had listed were people he thought would find the Statute controversial, and so had attributed a statement made at the meeting to them, even though some of these people did not even attend the meeting (at p 106 of the Transcript). He agreed that he had assumed these people had attended and assumed based on what he thought their attitudes would be to the Statute what they would have said about the Statute.

219 The witness said that when the attendees of the Geelong meeting voted on the Statute, there were some objections to the articles which related to property and trustees. He said that there was “no clear conclusion” (Transcript: p 109) on “what was carried and what was not carried”. He said that all articles were looked at and passed, but the article on property and trusts was not passed – something which he did not note in his affidavit.

220 During cross-examination Mr Parker broke the process of voting on the Statute into three stages for the witnesses. The first stage was an objection that people did not have the authority to pass the Statute. During the first stage, the witness said that the Bishop told the meeting that the Statute had to pass at that meeting.

221 The second stage was going through each of the articles in the Statute in turn. The Bishop read each article out and invited comments or amendments. The witness said that during this second stage, some amendments were suggested and voted on. Some articles were agreed upon and some were not. Some articles passed unamended, some passed amended. The witness said that none of the articles were rejected (Transcript: p 111), but then said that the article relating to property and trusts did not pass (Transcript: p 111). This confusion was later resolved, with the witness saying the Statute did not pass (Transcript: p 112) because the article on property and trusts did not pass.

222 The third stage of the process involved the bishop standing up and saying something. The witness disagreed with the suggestion that the bishop spoke of giving thanks for the approval of the Statute. The witness also disagreed with the suggestion that people applauded. He agreed that the priests sang a church hymn entitled “for many years”, but disagreed that the hymn is usually sung when something good has happened, rather, he said it was sung for general happiness and success in the future.

223 During re-examination, the witness said that after the Geelong meeting he gave his record of conclusions to the chairperson and “those responsible for” the meeting and he has not seen it since. He later identified the chairperson as being Bishop Petar.

224 I formed the view that the cross-examination was effective in justifying a tribunal of fact in accepting this witness’s evidence only with a great degree of caution.

225 The second witness was Valentin Spasevski, who swore an affidavit on 13 November 2008. When he appeared before me, he had a notebook containing notes to refresh his memory, which was removed. The witness refused to answer questions directly, and instead made irrelevant speeches in response to many of the questions. His evidence was often contradictory and confusing.

226 The witness said that during the Geelong meeting, he prepared a handwritten note. After the meeting, he said he went outside for a cigarette, and returned to find audio tapes and notes he took missing. He said that he asked a “delegate whose name I do not recall” who took these belongings, and the unknown delegate told him “that Father Mile Talevski took them” (Transcript: p 118).

227 The witness said he was one of the people asked to prepare the minutes of the meeting, and he understood that he would have to sign the minutes as being correct. Father Ristevski and Father Talevski were also appointed to take the minutes. The witness said he did not sit near either of these men at the meeting.

228 The witness said that the 25 November 2008 was the first time he had seen the minutes and he does not know who prepared them. He said he did not participate in the official recording or preparation of the minutes. He agreed that the minutes had his signature on them, but said that he did not sign the document. He said he did not know how the signature came to be on the document.

229 The witness said that the Statute was somewhere in the middle of the agenda of the Geelong meeting. He said that on some articles there was no discussion (Transcript: p 125). He said that the chairperson told the minute-keepers when he said an article had passed that they were to record it as having passed. The witness then said that all articles were accepted (Transcript: p 126) because some were not put to a vote, but the chairperson just said “accepted” (Transcript: p 127). Mr Parker put it to the witness that he assumed an article which the witness proposed amendment to was accepted because there was no further discussion about it (Transcript: p 130) and the witness did not deny this.

230 The witness acknowledged that at the end of the process, the bishop said how pleased he was the Statute had passed and that a prayer was held at the end of the meeting.

231 There was evidence from other witnesses that, at the end of the meeting the priests and laity present sang a hymn, ““For many years” which was only sung at time of celebration of a successful assembly. This witness denied that that hymn was sung (Transcript: p 133).

232 During re-examination, the witness said that Metropolitan Petar initially told the Geelong meeting that they would be able to go back to their committees and report what was discussed at the meeting before they would have to vote on the Statute (Transcript: p 134). He said that this was the reason not every article was read before Metropolitan Petar declared them to be “approved” (Transcript: p 135).

233 In view of the comments I have made in the course of discussing this witness’ evidence, it is clear that I do not accept him as a reliable witness.

234 The third witness was Donce Jazevski. He swore an affidavit on 13 November 2008 and appeared before me as a witness on 26 November 2008.

235 The witness agreed that at the beginning of the Geelong meeting there was a procedure or protocol adopted for how it was to be conducted. It was decided three people would take minutes and two others would verify them. The witness said he was one of the two people to verify the minutes. The witness said he understood that the three people taking minutes would later prepare the minutes and then they would be verified. He said he went to the Bishop’s office and signed a piece of paper without being able to read it, because he trusted the Bishop. The witness was shown the official minutes and agreed that the signatures of those who were supposed to take the minutes, and those who were supposed to verify them, appeared to be on the document.

236 The witness’s memory of the circumstances in which his signature came to be on the document was that he was taken to the Bishop’s office after midnight to sign it and at the time there were no other signatures on the document (Transcript: p 140). He accepted that he signed the document (Transcript: p 141) but said he did not see it again until he took the witness stand.

237 The witness remembered that the meeting concluded at two or three in the morning, but could not remember whether it was light or dark when he was taken home (Transcript: p 142). He said he signed the document straight after the meeting. He did not remember clearly, but thought he may have signed a blank document (Transcript: p 143).

238 The witness said that when people complained at the Geelong meeting that they did not have the power to pass the Statute, the Bishop said they had deal with the issue then (Transcript: p 145). He agrees that the Bishop did not say the Statute would be treated as a draft for the time being (Transcript: p 146). This contradicts what the witness said in his affidavit.

239 The witness said he is “quite sure” that at the completion of the meeting there was no singing of the hymn “For many years” (Transcript: p 147).

240 Again the witness’s evidence is at variance with documentation and his explanation about this was hard to justify.

241 The fourth witness who appeared before me was Father Mile Tileski, who had sworn an affidavit on 24 November 2008. In 1996, Father Tileski had the St Nicholas Parish in Preston.

242 Father Tileski’s affidavit contained a list of all of the church jurisdictions in Australia under the Holy Synod. During his oral evidence, he said he could not remember whether these churches were all represented at the Diocesan Assembly (Transcript: p 148).

243 Father Tileski agreed that he participated in drafting the Statute in 1995. He also took minutes at the Geelong meeting. The meeting went from mid-morning to 2 or 3 am the following day (Transcript: p 151). The witness agreed that the minutes show that Bob Stefanovski had noted that the church community in Canberra had not been part of the process of preparing draft Statute, but the witness did not agree that this note was in the nature of a complaint (Transcript: p 151).

244 Father Simonovska responded to this comment by saying the reason for the lack of church community involvement was that the commissions had been set up in the Holy Synod in that way (Transcript: p 151). The witness, in his affidavit, recalled that a representative of St John at Geelong, Father Nikolovski, said that his committee had not been given the authority to vote upon the Statute (Transcript: p 152). He did not remember any other members so complaining, but thinks that no other members complained.

245 The witness remembered that the Bishop gave general information before each article of the Statute was read in turn (Transcript: p 152). He said that some amendments were proposed, which the Bishop identified as not according with the Constitution of the Macedonian Orthodox Church, and those amendments were not put to a vote. The witness said that no articles were accepted without a vote (Transcript: p 153). He did not record any amendments from Article 22 to Article 132 (Transcript: p 155), even though the official minutes show there were amendments to Articles 29, 95, 96 and 103 (Transcript: p 155).

246 The witness agreed he and Father Ristevski were responsible for preparing the official minutes after the meeting (Transcript: pp 156; 160). He had access to the notes of Mr Spasevski, which say that Article 29 was “accepted by over half the majority” (Transcript: p 156) indicating that an amendment was accepted, something which was not recorded in the official minutes. The witness said he did not recall whether Articles 41, 81 and 86 contained amendments which were accepted (Transcript: p 158). The witness said he did not remember whether an amendment was proposed in respect of the article concerning ownership of church properties (Transcript: p 159).

247 The witness said he was not involved in preparing the Statute that was sent to Macedonia (Transcript: p 159). He said that he and Father Ristevski typed up the official minutes (Transcript: p 160).

248 Father Simonovski swore an affidavit on 24 November 2008 and appeared before me on 26 November 2008. He is the Deputy Bishop of the Diocese of Australia and New Zealand in the Macedonian Orthodox Church. He became the Deputy Bishop in December of 1994 (Transcript: p 161).

249 The witness was shown a letter from Archbishop Mihail to the witness which contained instructions on the preparation of the draft Statute. It instructed that the drafters take into account that the text “must be acceptable to all church communities in Australia” (Transcript: p 162). The witness agreed that two committees were set up to draft the Statute, one in Melbourne and one in Sydney (Transcript: p 162). The churches not located in Sydney or Melbourne did not participate in the drafting of the Statute, but the witness said they were invited to (Transcript: p 162).

250 The witness said that a complete draft was presented to those committees not represented at earlier meetings for their consideration prior to the Geelong meeting (Transcript: p 163). The witness said that the communities’ opinions were taken into account through the committee process (Transcript: p 166).

251 The witness said that he did not take notes at the Geelong meeting, but he saw Father Ristovksi take notes (Transcript: p 166). The witness did not clearly state whether the Bishop told people they could vote at the Geelong meeting and discuss the Statute with their communities later (Transcript: p 168) – he did say that he could not remember the Bishop’s words. The witness said that all articles were voted on (Transcript: p 168).

252 The witness said that there are corrections in his and Bishop Petar’s handwritings on the final text of the Statute, which was sent to the Holy Synod (Transcript: p 170). He said that they used the official minutes, the Constitution of the Macedonian Orthodox Church, and the notes of Fathers Talevski and Spasevski and Stojce Ristovski to prepare the text to be sent to the Holy Synod (Transcript: p 170). The witness later could not remember whether Stojce Ristovski’s notes had been used. He said that only typing and grammatical errors were corrected (Transcript: p 170).

253 The witness said he has been unable to locate the notes of Father Ristovski recently (Transcript: p 171). He said they were not used in preparing the document to go to the Holy Synod (Transcript: p 172). This seems to be his final word on this.

254 These last two witnesses gave their evidence impressively.

255 Mr Robert Spasenoski swore an affidavit on 13 November 2008 and appeared before me on 26 November 2008. He was elected President of St Ohrid Church in Canberra in 1986. This church was opened on 18 December 1988. At the Geelong meeting he was elected Vice-President of the Diocesan Assembly.

256 The witness was difficult at times and prone to making irrelevant speeches.

257 The witness said that the articles on church property in the draft Statute were actually rejected by a majority of the people present at the Geelong meeting (Transcript: p 175). He said that they were not accepted “in any form” (Transcript: p 175). He said that the draft Statute had not been completely approved because certain articles were not accepted (Transcript: p 176). He said that no priests voted against any proposals put by the Bishop (Transcript: p 178). He said that there was less voting and discussion as the meeting progressed (Transcript: p 182).

258 Mr Parker showed the witness a letter he (the witness) had written to the Bishop on 18 February 1996. The witness admitted that he sent the letter (Transcript: p 179), which congratulated the Bishop and said “I feel proud ... for all our future work” (Transcript: p 179). The witness attempted to explain this by saying said the Statute did not pass, the letter was to congratulate the Bishop on “the fact that he took it upon himself to declare it as being passed” (Transcript: p 180).

259 As regards the article concerning church property, the witness said there was an objection to the properties being owned or controlled by the mother church through the Bishop (Transcript: p 186) and that certain people said they could not accept the article without consulting a general meeting of their members (Transcript: p 186). The witness said that the Bishop explained that a church must accept the canonical jurisdiction of the Macedonian Orthodox Church in order to call itself part of the Macedonian Orthodox Church (Transcript: p 187).

260 Throughout cross-examination, the witness continued to deny that the article concerning church property had passed, however he repeatedly said “It would not have passed” (see, for example, p 188 of the Transcript) rather than “It did not pass”.

261 The witness’s demeanour on which I have already remarked and his contemporaneous letter shows that this witness’s evidence cannot be accepted except with considerable reserve.

262 Father Despotoski swore an affidavit on 12 November 2008 and appeared before me as a witness on 26 November 2008.

263 The witness said that at the Geelong meeting representatives from Wollongong and Rosebery said they would need time to discuss the proposals with their church committees (Transcript: p 204). He said that the Bishop told the delegates they had already had adequate time to discuss the matter (Transcript: p 205). He agreed that the Bishop had probably told them that a decision had to be made that day (Transcript: p 205).

264 In his affidavit he had sworn that the Bishop said “You’ve had enough time to discuss the matter. We need to make a decision here”. When pressed about the difference between his oral evidence and his affidavit, the witness said he could not remember properly and was not sure which was correct (Transcript: p 206).

265 Bishop Petar swore three affidavits for the purpose of the present proceedings: one on 7 October 1997 and two on 8 August 2002. He appeared before me as a witness on 27 November 2008.

266 The witness said he was President of the constitutional panel or committee formed to present the Constitution to the Archbishop’s Assembly which adopted it.

267 The Bishop said he had been trying (unsuccessfully) to contact the Archdeacon for a copy of the minutes of the meeting of the Archbishops Assembly on 24 February 1996 (Transcript: p 233).

268 On 24 February 1996 there was a meeting of the Archbishops Management Committee. The Bishop said he did not attend this meeting (Transcript: p 235). The witness said that the composition of such a meeting is usually determined by who can arrive the fastest, due to the urgency of the matter (Transcript: p 235). The Bishop said he was not invited to attend that meeting because he was in Australia (Transcript: p 236).

269 The Bishop agreed that prior to his election as the Bishop of the Diocese of Australia in November 1995 the Holy Bishop Synod was taking responsibility for the affairs of the Diocese (Transcript: p 239). He agreed that in August 1995, and also earlier, the Holy Bishop’s Synod decided that a Statute for the diocese of Australia should be prepared (Transcript: p 240). The witness said that the Holy Synod decided that the text should be drafted by two committees, one in Sydney and one in Melbourne, and agreed that the Holy Synod decided that the text was to be acceptable to all church communities in Australia (Transcript: p 240).

270 The witness agreed he was the chairman of the Geelong meeting. The witness agreed there were a few complaints about a perceived lack of time to consider the draft Statute at the meeting (Transcript: p 241). He did not agree that he told the representatives not to worry and that they would be given time after the vote to discuss the Statute with their members (Transcript).

271 The witness agreed that he went through the articles one by one (Transcript: p 241). He said all of the Statute was accepted unanimously, except for one article, which one member objected to (Transcript: p 242). He said that at the end of the process there was a vote to accept the Statute overall (Transcript: p 242).

272 The witness agreed that the version of the Statute prepared after the meeting contained his handwriting (Transcript: p 242). He said the only edits he made were to appropriate language (Transcript: p 242), for example, where it said “church community” he added “parochial”, meaning “it’s to do with the same thing” (Transcript: p 242).

273 The witness did not remember adding anything to Article 88, or directing that anything be added (Transcript: p 243).

274 The witness said that the Holy Synod made some additions to the text (Transcript: p 244). The witness agreed that the Holy Synod had changed the number of representatives in one article from five to three, and thought this was probably to ensure compliance with the Constitution (Transcript: p 245). The witness said he only became aware of the differences between the text sent to the Holy Synod and the one returned from the Holy Synod “in the last few days” (Transcript: p 246).

275 I should make the following general observations:

(a) The events in question occurred over twelve years ago. Accordingly, it is understandable that there exist some conflicting versions of precisely what occurred.

(b) All of the witnesses who were asked agreed that the Bishop went through the content of the articles one by one – at least in the beginning of the process.

(c) There is more inconsistency among the versions of events told by the defendants’ witnesses than there is for the plaintiffs’. For example, the defendants’ witnesses have different ideas about how their signatures came to be on the minutes: Valentin Spasevski said he did not know at all how his signature came to be on the document; where Donce Jazevski said he signed a piece of paper – possibly a blank one – without reading it because he trusted the Bishop. This is to be contrasted with the plaintiffs’ witnesses general agreement of the events which occurred.

(d) The defendants’ witnesses evidence did not completely tally with the contemporaneous documentation including some documentation which was signed by some of those witnesses about the time of the Geelong meeting.

(e) Some of the evidence as to time and place given by some of the defendant’s witnesses is unlikely to be correct and probably is an unskilful reconstruction.

(f) I consider that a large amount of the defendant’s evidence is impure recollection which has been supplemented by reconstruction so that the witness now believes that what he thought should have happened, did happen.

276 It is generally agreed – including by the Bishop – that there was at least one objection made before the process of voting occurred that delegates did not have the authority to vote on the Statute.

277 There were some notable examples of unjustified internal inconsistencies in the evidence of certain witnesses. For example, Mr Spasenoski’s explanation on the difference between his oral evidence that the Statute did not pass and a letter written by him to the Bishop congratulating him on the passing of the Statute was not terribly convincing. Another example of this is Father Dvojakovski’s evidence that particular people made objections at the Geelong meeting, only to agree in cross-examination that those people did not even attend the meeting.

278 Virtually all witnesses had a tendency to attribute comments which they assumed would have been spoken by certain people to those people.

279 Belatedly, tapes of the Geelong meeting were tendered. The tapes were in the Macedonian language. Thus, I need to rely on the translations in evidence.

280 The affidavit of Kataarina Cipuseva of 18 December, 2008 disclosed the following position, although she does say that she could not understand all that the bishop said at the meeting.

281 Ms Cipuseva’s affidavit says that on Tape 4 the Bishop explained the process of voting at the meeting before the vote commenced. First there were to be discussions of the Statute where attendees could propose amendments: the Bishop said he would ask for amendments and attendees could propose changes from their seats (p 4).

282 The Bishop rejected general discussion before the reading of the articles, saying that general discussion could be conducted at the end (p. 5). Mitko seemed to be proposing the church communities be told before the Statute be finally passed (p 5). Mitko also stated (in spite of the Bishop’s requests that he advance these arguments later) that attendees did not have the authority to vote (p 6). Mitko also cautioned that the process should not be rushed (p 6), and the Bishop responded that this has not been a rushed process: there had been commissions tasked to review it and to submit it to the Holy Synod (p 6). The Bishop then read out a letter from a Brisbane community saying that they accepted the proposed Statute, subject to minimal amendments (p 7).

283 The Bishop then commenced the reading of articles one by one (p 8). He read the content of Article 1, then asked “Is Article 1 of the Statute accepted? Anyone against? No one” (p. 8). The Geelong delegate (possibly Mitko again) interrupted and said he did not have the authority to agree to the article passing (pp 8-9). The Bishop responded, “You do not have to vote, that is your right, you do not have to vote... ” (p 9). There seemed to be a conclusion that those who abstained from voting would be counted as “no” votes (“They will remain as those against”; “There are no undecided, they are either for or against”).

284 The Bishop said he would not tolerate people calling out during the reading of the articles (p 9) and suggested that people submit written proposals for amendments (p 9). He urged the meeting to hurry because of time constraints (p 9). He said that amendments with “more than half the majority of votes” would be accepted (p 9).

285 Upon the reading of Article 2 there was another interruption (again, probably by Mitko) and the Bishop again said he did not have to vote (p 10).

286 Tape 5 begins with an interruption by Ilija Niceski that 21 days notice is required to invite members to a general meeting (p 1). There is some discussion about whether Australian law has been complied with (p 2), the Bishop assures the meeting it has.

287 An amendment to Article 1 is proposed by Valentin Spaseski (pp 2-3). The amendment is put to a vote (p 3) but the tape only records indistinct voices. Spaseski is given the opportunity to state why he has proposed the amendment (p 4). Then, the Bishop asks for hands to be raised in a vote (p 5). Indistinct voices are heard before the Bishop says “The Article, as is, to be accepted” (p 5), but then asks if the word “Republic” should be deleted (p 6). A count is held (p 6), before the Bishop asks if anyone is against the amendment and says “Nobody’s against. That means Article One is adopted with the amendment “in Macedonia, with its seat in Skopje.” And under its canonical and spiritual jurisdiction. ” (p 7). The Bishop appears to be proposing on the spot changes.

288 Article 2 is then put forward for discussion (p 7). As it references Articles 10 and 11 of the Constitution, these articles are read out (pp 7-8). A vote takes place, and after no objections, the Bishop declares “Article two is accepted” (p 8).

289 The same process occurs for Articles 3 -9 (pp 8-16). Some amendments are proposed and discussions held. Eventually, all articles are declared to have passed, some with changes. Then the Bishop requests that Revered Simonovski help with the reading, for “My mouth will catch sour-cream” (p 15).

290 Reverend Simonovski and Bishop Petar jointly read the articles and continue the process (from p 16). It seems as though all of the articles are being read and voted on, though it is difficult to properly tell due to incomprehensible interventions etc (pp 17-24). However, Article 12 is not confirmed to have been accepted (p 16). Article 14 is read, then Article 15, without saying whether Article 14 was accepted or not (p 24).

291 At page 20 the Bishop appears to be saying that Article 40 has already been passed.

292 At times, the Bishop urges the meeting to keep moving – for example, “we go on” at page 15.

293 The Bishop notes there is one person against Article 17 (p 30) and accepts it.

294 Side B of Tape 5 begins with a speech by the Bishop, possibly in the context of a request for elaboration on an article made on Side A.

295 From here, the Articles are discussed in turn, sometimes with acceptance being declared but sometimes not, and occasionally with a vote, but more often not. Often, the Bishop will say an article is a “Constitutional norm”, seeming to suggest that it does not need to be voted upon.

296 Article 18: discussed but acceptance/voting not mentioned (on page 30 the Bishop says it is a constitutional norm).

297 Thereafter the meeting discussed the following articles with the following results:

· Article 19: accepted and declared.
· Article 20: declared accepted without discussion.
· Article 21: not mentioned.
· Article 22: no amendment, not declared accepted.
· Article 23: no discussion, Simonovski quickly says its accepted.
· Article 24: read out, no discussion or vote.
· Article 25: read out – in less than a second Simonovski says it is accepted.
· Article 26: read, put for vote, Simonovski immediately says yes. Stefanovski comments on this, but what he says is incomprehensible (p 36). Later, at p. 37 the affidavit says that Article 26 is probably corrected.
· Article 27: read, an amendment is suggested, the Bishop says the article is a constitutional norm.
· Article 28: read, call for amendments, there are none.
· Article 29: read, discussed, Bishop submits an amendment.
· Article 30: read, no discussion or vote.
· Article 31: read, no amendment.
· Article 32: read, no vote or acceptance declared.
· Article 33: read, no vote or acceptance declared.
· Article 34: read.
· Article 35: read, asks if accepted, Bishop declares it must be.
· Article 36: read, Spasenoski says it is accepted.
· Article 37: read, accepted.
· Article 38: declared accepted, read.
· Article 39: read, no vote or declared acceptance.
· Article 40: read (so is an article it refers to), no acceptance mentioned.
· Article 41: read, Bishop proposes an amendment, accepted. However, later (p 46), Metodij has a complaint about this article, which the Bishop dismisses by saying it is not in the form of an amendment.
· Article 42: read, accepted.
· Article 43: read, declared a constitutional norm.
· Article 44: read.
· Article 45: read, accepted (the Bishop asks if it is accepted and Simonovski says yes immediately).
· Article 46: read, not voted or accepted.
· Article 47: read, not voted or accepted.
· Article 48: read, no pause before the next Article.
· Article 49: read.
· Article 50: read.
· Article 52: Read, asks whether there are any amendments.
· Article 53: read.
· Article 54: Read, accepted (says Simonovski).
· Article 55: Read, Bishop declares accepted.
· Article 56: read.
· Article 57: read.
· Article 58: read.

298 It should be noted that at pp 45-47 there is a discussion/argument over an article relating to power in the church.

299 Tape 6 continues with discussion of later articles.

300 Mr Parker says that it is clear that there is a gap between successive tapes where, presumably, the monitor has not noticed that the tape has finished. He also says that there are cases where no-one wanted to move any amendment to a draft clause and the bishop assumed that, accordingly, it was agreed to. However, there is nothing in the tapes to support the view put by some of the defendants’ witnesses that the bishop refused to accept amendments that were capable of being accepted.

301 Both sides submit that the tapes support their side’s oral evidence. In particular, Mr Blake says that the tapes substantiate the fact that the bishop did not put to the meeting various clauses.

302 My view is that whilst there are gaps in the tapes, there does not appear to be a situation where a bulk of proposed articles are put through without opportunity for debate.

303 Mr Parker also relies heavily on the fact that minutes were produced which were authenticated by the secretaries of the Assembly.

304 Although there is not the statutory presumption with respect to minutes that applies to minutes in the official minute books of corporations, I agree with Mr Parker that the authorities such as the High Court’s decision in McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 are of the view that even in the absence of a statute, courts are entitled to give considerable weight to the fact that a meeting solemnly produced an official minute of its proceedings and to the content of those minutes.

305 The minutes bear out the plaintiffs’ version of what occurred at the Geelong meeting.

306 In light of the minutes, my comments on the oral evidence and having perused the transcripts of the meeting, I accept Mr Parker’s submissions that the bishop did put to the meeting the various clauses and the document was accepted by the meeting.

307 However, it is also clear that, after the meeting, the secretaries of the assembly under the bishop’s guidance did make some adjustments to the text of the document that had been approved at the meeting.

308 Mr Parker also referred to the fact that in proceedings in the Supreme Court of Victoria before Byrne J in a case brought by the Parish of St Nikola in Preston Victoria, the argument was put and rejected by his Honour that the Diocesan Statute was invalid.

309 Although the parties to the Victorian proceedings were not the same as in the present case, Mr Parker put that when a superior court makes a declaration after full hearing on a matter affecting a large section of the public, the public interest mandates that the same matter should not be permitted to be freely reagitated.

310 Mr Parker referred to Spencer Bower & Handley, Res Judicata para 234 where the term “judicial decision in rem” is defined as one which determines the status of a person or thing towards the world generally. Mr Parker says that Byrne J’s decision is in that category.

311 Mr Parker cites Jenkins v Robertson (1867) LR 1 Sc & Div 117 where the House of Lords held that a Scottish declarator of the existence of a right of way was conclusive against the world.

312 Modern cases on declaratory orders have distinguished between two classes of declaratory action, class A where purely private rights are involved where consent declarations may perhaps be made and class B actions involving public rights, such as town planning laws, when consent orders will not be made. This seems to take the same line as the Jenkins case.

313 In Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 60 ALR 756 the Full Federal Court appears to have taken the view that a decision of the Federal Court in finding the meaning of a particular provision in the relevant legislation in a case involving other parties had more than precedent value and was presumptively binding in subsequent litigation.

314 It may be that this line of cases leads to the proposition that when a court construes a document which is of constitutional significance to a large organisation, it is against the public interest that the same question should be reagitated in subsequent litigation.

315 It is unnecessary to decide whether that principle, assuming it exists, applies to the present case as I have decided on the facts that the Diocesan Assembly passed the document. However, I will need to revert to it when considering the approval process in Macedonia.

(b) Ratification by the Archbishop’s Council

316 Article 190 of the Constitution of the MOC provides that the diocesan organs of the MOC are to be regulated by a specific statute “that according to this Constitution is approved by the Diocesan Assembly after a previous consultation with the Holy Synod and an approval of the ACCP”. “ACCP” means the Archbishopical Council of the Church and People” established by Article 38 of the Constitution.

317 Mr Parker says, I believe correctly, that there is a two-fold question of construction for the court to undertake. The first is, has there been a failure to comply with the procedural provisions in the Constitution for the adoption of a diocesan constitution? The second is, what consequences follow? Mr Parker says that the two questions are distinct and must be kept distinct.

318 I will now consider the first of these questions.

319 I should note here that the case was hampered by the fact that almost all the available translations of the constitution appeared to be imperfect.

320 There are some relatively insignificant areas where this is noticeable such as the fact that some translations refer to the Archbishop’s Council and others to the Archbishop’s Assembly. This interchange of terminology has probably also infected these reasons.

321 Of greater consequence is the fact that there is dispute as to whether the word which appears as “previous” in the above quote of Article 190 governed both “consultation” as well as approval by the ACCP. There was further debate as to whether the word translated “approval” meant permission to proceed or endorsement of something that had already occurred.

322 As to this, Mr Parker put that the court had to be very careful when considering a document which had been written in a foreign language not to assume that the same grammatical rules applied as would apply to a document prepared in English.

323 Mr Parker referred me to Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188, 197 where Rich J made the point that English is a positional language. That is, the position of the words in a sentence may give a good guide as to which noun adjectives relate or to which verbs adverbs relate.

324 However, Mr Parker put, the evidence in the instant case shows that Macedonian is not a positional language and one cannot construe a document prepared in Macedonian in the same way.

325 Mr Blake submits that the proper grammatical construction of Article 190 is that the Holy Synod with the approval of the ACCP formulates a draft Diocesan statute which is then put to the Diocesan Assembly.

326 Mr Parker submitted that that was the wrong way around. He put that it was almost inconceivable that the drafter of the Constitution would consider that the lowest body in the system, the Diocesan Assembly would have the last say on the document.

327 Further, if the aim was, as it appears to be, that the controlling bodies in Macedonia were concerned that local dioceses should operate within the worldwide constitution and the worldwide basic principles of order in the orthodox Churches, it was logical that the Macedonian authorities have the last say.

328 The language of Article 190 is ambiguous. I consider that Mr Parker’s submissions on its meaning should be accepted. Thus the Diocesan Assembly first passes the Statute and then it goes to Macedonia for approval.

329 This then leads to a consideration of the second question and the approval process in Macedonia.

330 Mr Parker submits that I must put out of my mind seemingly analogous situations such as the passage of a Bill through the Houses of Parliament in a bicameral legislature. He puts that “approval” in Article 190 extends to a process where the approving body may approve of the document passed by a lower body with amendments.

331 It will be remembered that, in the present case, not only were amendments made to the document that passed the Diocesan Assembly by the bishop and his officials in Melbourne, but further minor alterations were made in Macedonia. No vital provisions directly affecting the present dispute was involved in any alteration.

332 Mr Parker asks that the Court remember that, under the constitution, the Archbishop’s Council and the Holy Synod are the Supreme legislative bodies for the MOC. Thus, one should construe the layers of documents with the thought in mind that it is more likely than not that it was intended that the ultimate say on all matters would lie with the Macedonian authorities.

333 I accept Mr Parker’s submissions. In particular I accept that ‘approval’ includes the case where the approving body approves the general thrust of a document even though it makes some amendments.

334 The ACCP under the 1994 Constitution is to be constituted by certain ex officio members and certain elected members in accordance with articles 38-49 of the Constitution. By Article 46, one half of the members constitutes a quorum.

335 It is none too clear just what body did consider the diocesan constitution when it was submitted to Macedonia. What is clear is that certain alterations were made because the body handling the matter thought they were needed to comply with the constitution, but that is as far as it goes.

336 Mr Blake, more than once during the oral hearing called for the Minutes of the meeting of the ACCP which dealt with the matter. This call was reinforced with a notice to produce. These minutes were never produced.

337 Mr Parker said that he had and was producing all the relevant material in his clients’ possession on the issue, but it was beyond their authority to compel the Macedonian authorities to release material and, despite requests, they had not done so.

338 There is material to suggest that the Australian diocesan constitution was not considered by the full ACCP, but rather the consideration was by some presidential committee.

339 However, even if this were the case, it would not necessarily mean that the ACCP had not effectively done the deed. There are many situations where a sub committee has validly delegated to it all the powers of the full committee.

340 Again, as Mr Parker points out, one must not assume that just because the approval process may not have been followed to the letter that the purported approval is operative. The question is whether the constitution properly construed means that the defective process causes the approval to be void. An imperfect analogy is the old distinction between directory and mandatory requirements.

341 Mr Blake submits that in the circumstances there was no valid ratification and that all that has happened is that a sub-committee of the Council has decided to refer the matter of rectification to the full assembly.

342 Mr Blake urges the view that the diocesan constitution has never taken effect even if it were validly passed by the Diocesan Assembly because of the failure in procedure in Macedonia.

343 My view is that I should not hold that the approval process has failed. I say this for a number of reasons. The approval process appears to have been conducted in the ordinary way with no suggestion that Australia is being given any special treatment. Secondly, it would seem that the Macedonian authorities gave due consideration to the documents: they made reasoned amendments. Thirdly, the presumption of regularity should apply. Fourthly, one needs to be careful in holding a transaction bad on the basis of the poor translations of the vital documents and lack of full evidence. Finally, it is significant that Byrne J held the diocesan constitution to be valid.

344 Because I have reached this view, I do not have to consider the proposition that, if the Diocesan Statute were invalid, the previous By-Laws or other laws are still in force and what effect those laws might have on the case.

(c) Whether Diocesan Statute ultra vires
345 Mr Blake submits that Articles 26(1), 27 and 124 of the diocesan statute are ultra vires the 1994 Constitution and that parts of Article 48 do not come within the proper function of a Diocesan church court specified in Article 153 of the 1994 Constitution.

346 In my view, it is of no value to adjudicate on this matter as the result can have no bearing on the decision on the question I have been posed: it is a complete red herring for the reasons already stated. Briefly these are that as it is acknowledged that the bishop has full authority unless there is a constitutional limitation, if the diocesan constitution affirms the bishop’s power, that cannot assist the defendants. On the other hand, if the constitution is invalid, it cannot take away any of the bishop’s powers.

347 In any event it cannot be assumed that if the Diocesan Statute is invalid, previous rules affecting the diocese such as the By-Laws of 1977 or 2001 would provide similar rules. This question was not investigated.

348 Assuming that that proposition could be applied generally, I would disagree with the reference to “customary practice”. The terms of the Trust exclude such reference.

349 I now turn to other issues.

Surplice Fees
350 “Surplice fees” a term used in churches to refer to fees that people are accustomed to pay a member of the clergy for performing baptisms, funerals etc.

351 In the Established Church of England, members of the congregation were not asked to put money in the plate by way of freewill offertory to defray the expenses of the parish. The parish priest was allotted glebe lands and may have the right to receive tithes of produce and so was able to be sustained financially. He was entitled to keep any surplice fees. Indeed, except for the money which the Book of Common Prayer directed be provided for the poor of the parish, there were no parish accounts.

352 In modern Anglican and Protestant Churches, who receives the surplice fees is usually settled by agreement and the stipend is fixed accordingly. There is no presumption that the parish is entitled to the surplice fees.

353 There is no evidence as to what was or is the practice of the Orthodox Churches as to surplice fees.

354 However, Apostolic Canon XLI states: “For the law of God has ordained, that they who wait at the altar should be nourished by the altar. Neither does any soldier bear arms against an enemy at his own cost”.

355 As to this, Professor Erickson said that the general principle being set forth here is that “the clergy are entitled to compensation for their services out of church funds” (Affidavit, [23.1]).

356 In the absence of any evidence of a rule as to whom the surplice fees belong in the Macedonian Orthodox Church, I should not presume that they belong to the Parish. Indeed, if any assumption is to be made particularly in view of Apostolic Canon XLI it would be that the fees belong to the person to whom they were handed.

357 The defendants say that the Bishop and his appointed priest “stole” the surplice fees they received in that they did not account for them to the parish. As the parish has not demonstrated any right to receive these fees, the allegation cannot be sustained.

358 From my reading of the pleadings, the only allegation concerning the abstraction of monies relates to surplice fees.

Visa problems
359 Another difficulty raised by the defendants is that there were visa problems with the priests appointed by the bishop.

360 However, the facts on this matter need to be considered in some depth before making a conclusion on this allegation.

361 It would appear that Father Mitrev was granted a visa to enter Australia because he was needed as the parish priest of S Petka. When the present dispute erupted, the Department of Immigration was informed that the priest had been removed from office. There was at least an implied invitation that his visa should be revoked.

362 In my view, any visa problems were brought about by the defendants’ own conduct and can in no way be held to be the fault of the bishop.

Particular alleged breach of trust (a): Preventing the Diocesan Bishop from conducting services in the Church building

363 The plaintiffs submit that it is a rule of church law that all religious services conducted within the Diocese must be conducted by the Diocesan Bishop if he chooses to do so, or by a priest so appointed and authorised by the Diocesan Bishop (plaintiffs’ statement of claim [22.7]).

364 In support of this asserted rule, the plaintiffs rely on: St Ignatius the God-bearer’s Epistle to the Church at Smyrna 8:2; Cyprian, Letter lxvi, 8; Apostolic Canons XXXVIII and XXXIX to which I have already referred, as well as the Diocesan Statute Articles 11, 12, 74, 113, 116 and 118; and what they describe as the “Episcopal and hierarchical nature” of the Macedonian Orthodox Church. Mr Parker submitted for the plaintiffs that in light of the oral evidence of the expert witness Father Erickson it is common ground that this asserted rule is a “fundamental principle and a fundamental term of the trust” (Transcript: p 286) which the defendants have breached.

365 The defendants deny this (defence [22.7.1]). Their fundamental argument lies in a rejection of each of the texts the plaintiffs assert is authority for the rule. They submit that the Epistle to the Church at Smyrna is not part of the authoritative canon law of the Eastern Orthodox Church and it does not apply to religious services within the Diocese; that the Canons do not apply here; and that the Statute either did not come into force or does not apply to the affairs of the Association or to religious services within the Diocese. They submit in the alternative that even if this provision of Church law does apply to the Association, it is not a fundamental rule of the Church (defence [22.7.7]).

366 They also submit that the text, on its proper construction, has no application to the conduct of religious services within the Diocese. Father Erickson’s affidavit is largely reflective of the defendants’ position on this point. Father Erickson says that the text does not form part of the Orthodox canonical corpus (16.1) and that he does not believe this text supports the proposition the plaintiffs contend (16.1.1). While he agrees that the plaintiffs’ statement of claim reflects the meaning of the text, he posits that it does not properly take into account context.

367 He says that in writing this letter, St Ignatius was warning against having anything to do with a group of heretics, the docetists, whose false teachings were undermining the structural unity and the purity of faith of the Smyrnean church (at 16.1.1). As there is no allegation in the statement of claim that heresies are a problem at St Petka, Father John believes that the passage cannot apply here.

368 With due respect to Father John, I cannot accept this view. There are many examples both within the Epistles of St Paul as well as within the decisions of Ecumenical Councils where a particular heresy is addressed, but the consideration of the problem has brought to light a basic principle which has application beyond the heresy.

369 The same sort of comments are made by Father John with respect to St Cyprian’s letters.

370 As to the Apostolic Canons, the defendants submit that, when taken in its proper context and on its proper construction, has no application to the conduct of religious services within the Diocese.

371 In Father Erickson’s affidavit he says that Canon XXVIII is reflective of the church’s “concern for financial integrity” (14.2), and integrity in the administration of the church’s goods. He believes this rule to be indicative of canons mandating exceptions to general rules. He submits that this “canon does not support the provision of Church Law” set out in the statement of claim (16.2).

372 Father Erickson further says that Canon XXVIX does not support the alleged provision of Church law “but in very broad and general terms” (16.3).

373 The plaintiffs also relied on the Diocesan Statute, particularly Article 12 which I have already set out and also Articles 11, 74, 113, 116 and 118.

374 I do not believe that consideration of the Diocesan Statute adds or detracts at all from the consideration of this sub-question, even assuming that it is wholly valid. I note too that Professor Erickson does not consider those Articles to be relevant or particularly supportive of the plaintiffs’ contention (16.4).

375 I must say that after considering the defendants’ submissions, the position they seem to be taking in the ultimate is that they acknowledge that it is part of the law of the Macedonian Orthodox Church that, as a matter of general principal, one must not prevent the Diocesan Bishop from conducting services in the Church Building.

376 As noted above, the expert witness accepted the rule to be a fundamental one of ecclesiastical principle (Transcript: p 81). The defendants cavil that an ecclesiastical principle is not the same as a binding fundamental rule. This cavil is considered in sub-question (k).

377 Whilst the defendants accept the general rule, they say that the rule is not absolute and, in particular, there is an exception where a bishop breaches the law of the church he forfeits his rights.

378 There are some basal problems with this view.

379 The first is that the 1994 Constitution and other rules of the church provide procedures for considering charges against bishops who are in breach of the laws of the church. No charge has been made against the bishop.

380 The defendants focus on the abstraction of the surplice fees by the priest appointed by the bishop and the matter of the visa to which I have already referred. As is apparent from what I have already said, neither of these matters, even if it were appropriate for the defendants to be judges in their own cause has been made out.

Alleged breach (b): preventing a priest appointed by the Diocesan Bishop as parish priest of the St Petka Parish from conducting religious services in the Church Building

381 The plaintiffs submit that it is a fundamental rule of church law that the parish priest has the right and duty to act as spiritual leader of the Parish. This requires access to the church and other buildings that stand on the church land for the purpose of conducting religious services, as well as other purposes: statement of claim [22.5]. They say that this rule can be found in: the hierarchical nature of the church; Articles 113 and 119 of the 1994 Constitution; Article 75 of the Statute; and Article 10 of the 2001 By-Laws: statement of claim [22.5(a)-(d)].

382 There is little doubt that it is a basic law of the church that a diocesan bishop has the exclusive right to appoint and remove a parish priest of a parish within his diocese.

383 Professor Erickson (see para 14.1) acknowledges this general rule. However, he says that there are some exceptions to this general rule.

384 Professor Erickson gives as an example the case where a patron founds a church and the bishop agrees that the patron may nominate the priest. This is the Eastern equivalent to the English advowson. However, even in this case it would appear that the bishop makes the appointment even though he might be bound in conscience to accept the nominee of a third party.

385 Whether or not there are exceptions to the bishop’s powers, the vital question is whether any such exception is relevant in the instant case.

386 Again, the defendants seem to be saying that because of some fault of the bishop, he has forfeited his rights and that under the doctrine of economy, the defendants are forced to act to ensure that the church has a priest.

387 For the reasons set out earlier, I cannot find that this situation comes within the doctrine of economy. There is no other basis for the defendants to appoint a priest. If they have appointed a priest without the bishop’s consent, then there would be a breach.

Alleged breach (c) preventing a priest licensed by the Diocesan Bishop to conduct religious services in the Church Building from doing so

388 This really covers the same ground as allegation (b).

389 It seems clear from the general provisions of the law of the church in evidence that a bishop has overall control of church buildings within his diocese. There may be requirements to involve or consult others with respect to certain aspects of the control of the buildings, but the core obligation and accompanying rights are in the bishop.

390 The statement of claim does not seem to plead any more authority than that to which I have just referred.

391 The defendants seem to recognise that general authority, but say that there is an exception when the bishop has departed from his proper role and has stolen money and not recognised that the people of the parish have a role to play. In such a situation, the bishop “forfeits” his rights.

392 I have not seen any piece of evidence that would justify that view.

393 If a bishop is in error in a manner which church law makes him amenable to the tribunals of the church, it is to the tribunals that complaints must go. The local parish cannot judge its own accusation. The constitution of the church deals with the case by empowering the Archbishop and the tribunals to deal with the problem. There is no church law which enables the parish council or other local body to exercise the bishop’s powers.

394 Again, as has been noted earlier, the concept of conciliarity is only a principle of ecclesiology, what is recommended in church administration. It does not give rise to legally enforceable rights (cf Scandrett v Dowling (1992) 27 NSWLR 483) let alone make a bishop forfeit his rights.

395 The only possible route to such a solution would be by the application of the doctrine of economy which, for reasons set out above, cannot support it.

Alleged breach (d): excluding the priest appointed by the Diocesan Bishop as parish priest of the St Petka Parish from the executive committee of the body responsible for the administration of the St Petka Parish

396 The plaintiffs submit that the parish council of St Petka Parish is to consist of the parish priest, and councillors elected by a parish assembly. For this rule, the plaintiffs rely upon Articles 106 and 107 of the 1994 Constitution, and Articles 65, 66, 67, 68, 69 and 78 of the Diocesan Statute: see statement of claim [22.12]. They did not further elaborate upon these references to church law in their oral argument, except to add Article 90 of the 1996 statute to their list: [32]-[34] of p 289 of Transcript.

397 Most of the provisions of church law advanced here do not assist on the issue. However, Article 90, the provision advanced in oral argument, deals with the composition of the Church Committee. It states the members who comprise the Committee, including (at (a)), the parish priest. In the case of a larger parish, this includes “all parish priests”. This Article does confer a right on the priest to membership of the committee, which has been breached by excluding the priest from the executive committee.

Alleged breach (e): employing a priest not appointed by the Diocesan Bishop to act as the parish priest of the St Petka Parish

398 This again raises the same matters as were considered under (b). However, in his oral submissions Mr Parker, while acknowledging this similarity, said that it has been put “more specifically” in [22.4] of the statement of claim. There, the plaintiffs say the Diocesan Bishop has the exclusive right to appoint and remove the parish priest of the St Petka Church.

399 The plaintiffs submit that this is supported in the episcopal and hierarchical nature of the Church and refer to Apostles Canons II, XXXV and XXXIX; Nicea I Canons XV, XVI, LXXII; Laodicea Canon XIII; Article 77(6) of the 1994 Constitution; Articles 13 and 74 of the Statute; and Article 8 of the 2001 By-Laws.

400 As I have already examined the nature of the church, these particular canons and Article 74 of the Statute in relation to the breach above, I shall deal immediately with those provisions which have not yet been examined.

401 Article 77(6) of the 1994 Constitution provides that the rights and obligations of the Diocesan Archierarch include, to ordain “dignified individuals with theological diploma into deacons, priests and priestly-monastic rank, gives them direction into their duty and gives them Gramota for that”.

402 Article 13 of the Statute sets out the rights and obligations of the Diocesan Bishop. It is a rather lengthy provision, the relevant parts of which are set out below:

1. To protect and guide/educate the clergy, monastic orders and parishioners of the Diocese with words, deeds and pastoral ministrations.
2. To direct and authorise the clergy, monastic orders and parishioners under his jurisdiction to establish and organise welfare, religious educational, charitable and like institutions for the furtherance of faith and morality.
3. –
4. –
5. –
6. –
7. Awards worthy persons with the necessary seminary preparation the title/position as deacons, priests, and monastic ranks, directs them in their duties and provides them with certificates for their positions.
8. Gives them canonic reception and dismiss from service and appoints and dismisses the same.
9. Appoints and/or dismisses his own Deputy Bishop from the clergy or both orders and notifies the Holy Episcopal Synod of appointments or dismissals.
10. Appoints Sunday school teachers, orators, confessors for the clergy and monastic orders of the Diocese.
11. Upon the nomination of the Abbots or Abbesses or of his own initiative ordinates worthy persons into monastic orders.
12. Appoints and dismisses Abbots and Abbesses.
13. –
14. Gives leave of absence to officials and clergy of Diocese.
15. –
16. –
17. Nominates replacements for absent clergy and officials in his Diocese,
18. Conducts overall supervision of the clergy and officials.
19. –
20. –
21. Confirms and authorises elected members of church administrations and church community councils and committees in the Diocese.
22. In cases of neglect or violations of the canons by a greater than fifty (50) percent of majority of members, has the right to dismiss church administrators and to call for an electoral church community meetings, and under his supervision or the supervision of deputy, to have elected a new church administration or church community council.
23. –
24. Adjudicates over summary offences committed by the clergy of both orders and imposes sentences for disciplinary offences by oral and written warnings, fines, suspension upto (sic) fifteen (15) days, prohibition from clerical duties for a month. More serious disciplinary offences are referred to the Diocesan Church Court; he adjudicates and pronounces sentence for the temporary denial of some rights and honours. All decisions are executory.
25. Removes from clerical duties clergy of both orders found guilty by the Diocesan Church Court and appoints replacements.
26. In cases of serious and demonstrable liability within his Diocese he may suspend from function any church personnel from any order, even prior to the commencement of an inquiry which inquiry must commence no later than thirty (30) days from the date of suspension.
27. –
28. As to the constitutionality and regularity of his own work, he is answerable to the Holy Synod.
29. –
30. He rewards and honours clergy, those in monastic orders for honours of the highest rank in accordance with the holy canons and the constitution of the Macedonian Orthodox Church
31. –
403 The above makes clear that the Bishop has quite extensive rights and powers in relation to both clergy and those involved in church administration. These powers include extensive rights in relation to appointment and dismissal.

404 Article 8 of the 2001 By-Laws concerns the “Priest Elder of the Church Community and the Parish”. It provides that the “Parish Priest is the Elder within the Church Community and the Parish and in the administrative sphere is the head of the Parish administration and the executive organ of the Church Council (the Administrative Committee)”. It further provides that “The Parish Priest is temporary and he is appointed and discharged by the Diocesan Bishop. He is responsible for all activities within the Church to the Diocesan Bishop, the Diocesan Administrative Committee and the Church-Community General Meeting”. Article 8 says that the Bishop can transfer the Parish Priest “by the necessity of the service/duty” by:
i. Upon a request of the Church-Community General Meeting and the Church Administrative Committee, when more (sic) ¾ (three quarters) majority are in favour;
ii. Upon the opinion of the Bishop;
iii. Upon a request of the Parish Priest.

405 The defendants had much to say about this submission. First, they submitted that the relevant Canons either have no application to the appointment and removal of a priest by a Bishop or, in the case of Canon XLXXII of the First Council of Nicea, it is not an authentic canon and has no authority in the Eastern Orthodox Church (Defence [22.4.6]-[22.4.10]). They say that Canon XIII of the Synod of Laodicea on its proper construction does not exclude the involvement of lay persons in the appointment of a priest by a diocesan bishop (defence [22.4.11]).

406 On Article 77(6) of the Constitution, the defendants say that it either has no application to the appointment and removal of a priest by a diocesan bishop or it has no application to the appointment and removal of a priest to a church community outside of Macedonia (defence, [22.4.13]).

407 In relation to the Statute, the defendants submit that it never came into force, or it has never applied to the affairs of the Association. In the alternative, they say that if it did come into force, Articles 13 and 74 (except for the last sentence of Article 74) on their proper construction either have no application to the appointment and removal of a priest by the diocesan bishop, or in the alternative, have no application to the appointment and removal of a priest to a church community outside of Macedonia.

408 The defendants say that the 2001 By-Laws never came into force, or if they did, then Article 8, so far as it provides that the Diocesan Bishop has the exclusive right to appoint and remove the priest of a church community, is contrary to the 1994 Constitution and is invalid. In support of this argument, they rely upon Articles 193 and 195 of the 1994 Constitution.

409 The defendants also have arguments for if any of the provisions cited by the plaintiffs are found to apply here. First, they say that if these provisions give the Diocesan Bishop the right to appoint and remove a priest to the Association, then this right is subject to the applicable laws of Australia, such as the Migration Act, and also subject to the rights of the Association under the Association Constitution or alternatively as the successor of the Unincorporated Association Constitution to appoint and remove that priest.

410 For this proposition, the defendants rely upon clause 29 of the Association Constitution, or in the alternative, upon clause 24 of the Unincorporated Association Constitution. Secondly, and in the alternative to the first argument, the defendants say any right the Bishop may have to appoint and remove a priest is subject to the concurrence of each of the Holy Synod and the Association. For this they rely upon Article 195 of the Constitution.

411 The final argument of the defendants in relation to this point is that if this is a rule of church law which applies to the Constitution, then it is not a fundamental rule of church law (defence, [22.4.22]).

412 In Professor Erickson’s affidavit, he says that the rule asserted by the plaintiffs, that the Diocesan Bishop has the exclusive right to appoint and remove the Parish Priest of a parish within his diocese, is “consonant with a basic ecclesiological principle” (Affidavit, [14.1]). The general rule is “that a diocesan bishop has full and exclusive authority within his own diocese”. However, Professor Erickson asserts that the canons themselves “allow or even mandate” some exceptions to the general rule.

413 One example of such an exception is the concern for transparency and accountability. The ancient canons presuppose the full and exclusive authority of the bishop within his own diocese, but also recognise possibilities for mismanagement and financial abuse. Accordingly, the Fourth Ecumenical Council required each diocese to have an oikonomos (treasurer or steward) so that church administration would contain checks and balances.

414 Professor Erickson says that the diocesan bishop’s rights in the appointment and removal or clergy may also be limited by the 1994 Constitution. Article 113 provides for two kinds of parish priest, permanent and temporary. The temporary priest can be transferred by the bishop as need requires, while the permanent priest can be transferred “only at his request or with his agreement or after a judgment by the authorized Church Court” (defendants’ translation) or “only by his own request or his consent, or by the verdict of the authorized ecclesiastical court” (plaintiffs’ translation).

415 Professor Erickson also examines each provision of church law advanced by the plaintiffs. He says that only Laodicea Canon XIII actually relates to the subject under consideration. He says that Apostolic Canon II deals with the ordination of priests and deacons, not with their parochial appointment and removal. Apostolic Canon XXXV too deals with ordinations and not appointment. Apostolic Canon XXXIX deals with the need for financial transparency and accountability, not with the appointment or removal of clergy. I Nicea Canon XV asserts a basic rule that a cleric of whatever rank is assigned and bound to a specific place of service, normally that for which he was originally ordained unless he has been legitimately transferred elsewhere.

416 Father Erickson says there is no such canon as I Nicea Canon LXXII, this is additional material incorrectly labelled a canon, and accordingly, not an authoritative source for the Eastern Orthodox churches.

417 Lacodicea Canon XIII, the canon which Professor Erickson agrees does relate to the subject at hand, says “The election of those who are to be appointed to the priesthood is not to be committed to the multitude”. He says that “multitude” here means “mob”: it does not exclude participation of properly constituted lay bodies in the selection of clergy ordination “but by extension also appointment/assignment”.

418 Professor Erickson says that Article 77(6) of the 1994 Constitution deals with the ordination of qualified persons and not with their appointment or removal. He says that Article 13 of the 1996 Statute too deals with ordination rather than appointment or removal.

419 Professor Erickson says that Article 74 of the 1996 Statute neither supports nor denies the “alleged provision of Church Law asserted” here. What the provision does indicate is that the Church Council “cannot unilaterally dismiss a priest and appoint another”. He says that Article 8 of the By-Laws states that the parish priest is a “temporary” who is appointed and discharged by the Diocesan Bishop, the Diocesan Administrative Committee and the Church-Community General Meeting”, and from this he says it is “clear that the Diocesan Bishop does not have the exclusive right to appoint and remove the parish priest of the St Petka Parish”. Rather, he says, for selection and appointment of the priest, a collaborative process involving two other entities is envisioned, “though the precise role of each entity is not specified”.

420 Professor Erickson next points to other laws or rules which limit or qualify the bishop’s rights with regard to appointment or removal of St Petka’s priest. He finds that Article 195 of the Constitution of the MOC (noting he has no clear English translation) requires “agreement between the Holy Synod and the church community”. He concludes that “Clearly the appointment of a parish priest outside Macedonia is a complex process in which the diocesan bishop, and the local community, and the priest himself are involved; and throughout, in the case of St Petka, all parties are subject to the laws of Australia” (Affidavit, [14.13.4]).

421 Professor Erickson’s final point is that if the rule asserted by the plaintiffs here is a rule of church law, it “cannot be viewed as a fundamental provision of Church Law” (Affidavit [14.5]).

422 Professor Erickson accepts the general rule is of the Bishop’s full and exclusive authority. The defendants have not pointed to a convincing exception to this rule. The plaintiffs’ case that the Bishop’s authority must prevail must be upheld.

Alleged breach (f): employing a priest under valid ecclesiastical discipline in accordance with Church Law to act as the parish priest of the St Petka Parish

423 The plaintiffs submit at [22.8] of the statement of claim that any priest under suspension or ban or who has been defrocked may not conduct any religious service, perform any duty of or otherwise act in the role of parish priest. For this proposition, they rely upon: Laodicea Canons XXXII and XXXIII; African Code Canons IX and X; Question VIII of the Eleven Questions; and Apostles Canon XXVIII.

424 The defendants admit that the Canons the plaintiffs rely on are part of Church Law. However, they say that Canons XXXII and XXXIII of the Synod of Laodicea have no application to the conduct of religious services and the performance of any duty of or other act in the role of a parish priest under suspension or ban or who has been defrocked. As to the other Canons, they say that they only have application to a priest who has been validly suspended, banned or defrocked.

425 At p 323 of the Transcript, Mr Blake seems to agree that to knowingly employ a priest under valid ecclesiastical discipline would be a breach of the trust. He agrees it is a fundamental term of the trust.

426 Professor Erickson says that the two Canons from Laodicea do not address the assertion made here, rather they are about persons who join themselves with heretic or schismatics (Affidavit, [17.1]).

427 African Code Canon IX provides that if a bishop or priest/presbyter receives into communion someone who has been rightly cast out of the church by his own bishop, that bishop or presbyter shall be considered equally guilty. Professor Erickson says that these are not entirely relevant here: only the prescription of appropriate punishment for a rebellious priest is relevant. Accordingly, it is his opinion that these Canons do not support the rule which the plaintiffs have asserted.

428 The Eleven Questions were addressed to Patriarch Nicholas III of Constantinople by a monastic community on certain matters of a largely liturgical nature. Question VIII of the Eleven Questions asks about a priest who has voluntarily resigned from the priesthood because of his own inner awareness of being guilty of a canonical offence: may such a person offer the liturgical exclamations that begin the daily monastic offices or cense or receive communion within the alter? The patriarch answers that he may not. Professor Erickson says that this text has no bearing on the matter at hand and does not support the rule which the plaintiffs allege.

429 Professor Erickson posits that it is the last Canon relied upon by the plaintiffs, Apostolic Canon XXVIII, which is of most relevance here. It says that “If any bishop, presbyter, or deacon, having been justly deposed upon open accusations, shall dare to meddle with any of the divine offices which had been entrusted to him, let him be altogether cut off from the Church”. Professor Erickson says that this Canon “certainly” supports the rule the plaintiffs have advances (Affidavit, [17.4]).

430 The next question, according to Professor Erickson, is whether the suspensions, bans and defrockings have been validly imposed (Affidavit, [17.5]). The “priest has to have been validly deposed”. Professor Erickson’s evidence on this point is that rules relating to suspension and deposition vary somewhat from one (autocephalus) church to another. In his opinion, the MOC Constitution and the Statute do not address a multitude of procedural questions, and so he presumes these questions are addressed in a separate and more detailed code of disciplinary procedures.

431 Professor Erickson’s conclusion is that here “investigation is needed in order to determine whether the Church’s rules in this complicated area have been observed” (Affidavit, [17.5]). He says that if a priest has been legitimately suspended, banned, or deposed, then the plaintiffs’ rule would stand – but news of an action by the bishop with regard to a priest (on suspension, ban or deposition) would have to be communicated officially to a wider public (for example, the parish) for it to have any binding consequences on them (Affidavit, [17.6]).

Alleged breach (g): requiring or permitting a priest to conduct religious services upon the Church Land when: (i) that priest has not been authorised by the Diocesan Bishop to do so; or (ii) that priest is under valid ecclesiastical discipline in accordance with Church Law

432 A fortiori for the reasons set out in (b) and (f) these would be breaches of trust.

Alleged breaches (h): any of the following without the authority and blessing of the Diocesan Bishop: (i) closing the Church building; (ii) removing the Holy Objects from the Church Building; (iii) installing Holy Objects; (iv) reinstalling Holy Objects; or (v) carrying out of building works in and upon the Church Building.

433 These allegations are matters for the dispensation or faculty powers of the bishop.

434 The plaintiffs rely upon Articles 71 and 77 of the 1994 Constitution and Articles 13(3), (5), (6) and (19) of the Statute as authority for this rule.

435 The basal rule follows from the Bishop’s authority over a church building that he controls what may be put inside the building. In the Western Church this is the faculty jurisdiction. The Eastern church with its greater emphasis on icons and holy objects requires a guardian of the true faith and this, under the constitution is the bishop.

436 Even though there may be some situations where the Bishop’s authority may be shared with others, there is no evidence that those in charge of a parish can exercise the Bishop’s authority even though they may consider the Bishop to be in bad standing.

437 The defendants say that the Association Constitution when read with the 1994 Constitution provides that the Association has the right to erect, maintain, improve, alter or demolish any buildings acquired for the Association for the purposes of the Association and its members and to move the furniture and fittings of any such building during the maintenance, improvement, alteration or demolition of the building without the authority and blessing of the Diocesan Bishop (defence, [22.9.2]). They say that clause 3K of the Association Constitution and Article 195 of the 1994 Constitution support them here.

438 As regards the provisions put forward by the plaintiffs, the defendants say that Articles 71 and 77(5) of the 1994 Constitution on their proper construction either have no application to any requirement of the authority and blessing of the diocesan bishop for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building within a diocese; or in the alternative, that these Articles have no application to any requirement of the authority and blessing of the diocesan bishop for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building, to a church community in a diocese outside of Macedonia.

439 In the alternative to their submissions on Article 71 and 77(5) of the 1994 Constitution, the defendants submit that if these Articles do provide that the authority and blessing of the Diocesan Bishop is required for the removal of holy objects from, the installation or reinstallation of holy objects in, and any building works in and upon, a church building within the Diocese, then they are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the erection, maintenance, improvement, and alteration of the church building a church community outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and applicable laws of Australia, and have not applied to the Association.

440 On the issue of the Statute, the defendants again say that the Statute never came into force, or has never applied to the affairs of the Association. In the alternative to this submission, the defendants say that if the Statute did come into force, then Articles 13(3), (5), (6) and (19) of the Statute are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the erection, maintenance, improvement, and alteration of the church building a church community outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia, and have not applied to the Association. In the further alternative, the defendants submit that if the Statute has come into force and has applied to the Association, Articles 13(3), (3), (6) and (19) of the Statute are not fundamental rules of the Church.

441 Professor Erickson says that the rule the plaintiffs allege here is “significantly more sweeping than the particulars that are advanced in its support” (Affidavit, [18.1]). He says that Article 71 of the 1994 Constitution speaks in “very general terms” about the Bishop’s authority as spiritual leader of the diocese.

442 Article 77 gives a long list of the rights and obligations of the Diocesan Bishop. Professor Erickson says that only two points in this Article have any bearing on the subjects here under consideration. These are 77(3), which says “Gives blessing for construction of churches, monasteries, chapels and cemeteries wherever it is necessary” (this is the plaintiffs’ translation, the defendants’ translation adds “and looks after their upkeep”), and Article 77(5), which says “Consecrates temples” (this is the plaintiffs’ translation, the defendants’ adds “’Antiminsi’ and other”, which Professor Erickson says presumably means other sacred objects). Professor Erickson says that neither of these texts addresses the question of whether the bishop’s authority and blessing is required for all the activities which the statement of claim sets out at [22.9].

443 Professor Erickson says that Articles 13(3) and 13(5) of the Statute simply repeat the provisions of Articles 77(3) and 77(5) of the Constitution. However, he believes Article 13(6) is more to the point. It “Authorizes all building works in church communities and the Diocese, ensures buildings are constructed in a Macedonian Orthodox styles and that the churches and the faithful are provided with orthodox icons with Macedonian script”. Professor Erickson says that the overriding concern is with “ensuring that building style and iconography” are “appropriate from a Macedonian perspective”. He does not comment further on this provision.

444 Article 13(9) provides that “In cases of temporary closure of a church (the bishop) determines the place for the storing of its holy relics and objects”. Professor Erickson says this is to “ensure that these sacred objects are given proper care and respect”. While he gives his interpretation of the rationale for each provision, he does not, with respect, really indicate the relevance of the provisions to the alleged breach at hand. He does warn us with Article 13(9) to keep in mind the principle of economy. He concludes that no fundamental provision of church law is at stake here (but does not explain whether he means to restrict this comment to Article 13(9) or all of Article 13).

Alleged breach (i): refusing or failing to accept applications for membership from believers in the doctrines of the Macedonian Orthodox Church who have satisfied the criteria for eligibility specified in the Constitution, the Diocesan Statute and By-Laws

445 The plaintiffs say that all believers who live within the St Petka Parish and who satisfy the eligibility criteria specified by or under the Church Constitution are entitled to participate in the parish assembly of the St Petka Parish: statement of claim [22.11]. For this rule, the plaintiffs rely upon Articles 106 and 107 of the 1994 Constitution, and Articles 65, 66, 67, 68, 69 and 78 of the Statute. Mr Parker’s oral submissions confirmed that the plaintiffs rely on these provisions of positive church law, as well as “basic ecclesiology” (Transcript: p 295).

446 In his oral argument, Mr Parker also referred to the 1977 By-Laws – Articles 9 and 10.

447 The defendants deny the plaintiffs’ allegations as regards this claimed breach. They say that the Association Constitution when read with the 1994 Constitution provides that the right to participate in the governance of the Association is limited to the members of the Association. They rely upon clauses 8 to 17 of the Association Constitution and Article 193 of the 1994 Constitution in support of this submission.

448 The defendants further submit that Articles 106 and 107 of the 1994 Constitution on their proper construction have no application to the eligibility and criteria for eligibility of persons who have the right to attend and vote at the parish assembly as referred to in the 1994 Constitution. In the alternative, they submit that Articles 106 and 107 of the 1994 Constitution on their proper construction have no application to the eligibility and the criteria for eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia.

449 In the alternative to the submissions set out above, the defendants argue that if Articles 106 and 107 of the 1994 Constitution on their proper construction provide that “all believers who live within St Petka Parish” and who satisfy the eligibility criteria specified or under the Church Constitution are entitled to participate in “the parish assembly of the St Petka Parish”, then they are: (a) inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with the provisions of the Association Constitution and applicable laws of Australia and have not applied to the Constitution; or (b) they are not fundamental rules of the Church; or (c) the Statute never came into force or has never applied to the affairs of the Constitution.

450 Another view is (d), if the Statute did come into force, then Articles 65, 66, 67, 68, 69 and 78 of the Statute are inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the eligibility and the criteria for eligibility of persons who have the right to attend and vote at a general meeting of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia and have not applied to the Constitution; again alternative view (e) is that if the Statute came into force and has applied to the Association, then Articles 65, 66, 67, 68, 69 and 78 of the Statute are not fundamental rules of the Church.

451 In his affidavit, Professor Erickson points out that Articles 106 and 107 of the 1994 Constitution apply to parishes within the territory of the Republic of Macedonia. He goes on to recount the content of Article 193, which says that parishes and communities outside the Republic of Macedonia are “regulated with specific Statutes, passed in accordance with the church canons and the MOC’s Constitution and the Statute of the Diocese, coordinated by the Diocesan Archierarch, and proposed by the church councils of the general assemblies of the church communities. The Statutes of the Macedonian Orthodox church municipalities abroad are approved by the ACCP, after a thorough inspection of the Holy Synod”.

452 Professor Erickson says that Articles 65-69 and 78 of the Diocesan Statute indicate who may be regarded as a member of the community and participate in the parish assembly. He identified as the most important Article 67 which says “Each church community has a Church Community Elected Assembly which is comprised of all adult Orthodox Christian Macedonians who are of Macedonian descent and are under the jurisdiction of the parish church (the parish) who meet the spiritual, moral and material obligations of the church and its institutions”.

453 Professor Erickson believes the “spiritual, moral and material obligations of the church” to be those set out in the Constitution of the Macedonian Orthodox Community Church St Petka Articles 8, 9, 10 and 11. He believes that if the Diocesan Statute is applicable, it does not conflict with these obligations (Affidavit, [20.3]).

454 Professor Erickson agrees that this claimed breach is one of church law, but agrees with the defendants that it is not a “fundamental provision of Church Law” (Affidavit, [20.4]). He posits that the criteria for participation in parish assemblies given in the documents “are strictly a matter of positive ecclesiastical law” (Affidavit, [20.5]). A nationality criterion is “quite contrary to basic ecclesiological principles of the Orthodox Church – contrary to Paul’s teaching in Galatians 3:28, contrary to what has been condemned more recently as the ‘heresy of phyletism’ “.

455 However, all this really means is that what Professor Erickson considers to be good administrative principles for the Church in the 21st Century, especially the Orthodox Church of America may be out of kilter with the basic law of the Church. This view is irrelevant to the decision in this case.

Alleged breach (j): failing to remit to the Diocesan the contribution and the income of the Parish as specified in the Diocesan Statute

456 The 1996 Diocesan Statute provides at Article 26.11 that the Authority of the Diocesan Assembly “determines the level of parish contributions to the Diocese”.

457 The plaintiffs contend in the statement of claim at 22.13 that a parish within the Diocese may be required by the Diocesan Assembly to contribute funds for the benefit of the Diocese and for the purposes of the Church. They rely upon Article 26.11 of the Statute in support of this proposition, but do not go on to demonstrate that here the Diocesan Assembly has in fact required the Diocese to contribute funds for the benefit of the Diocese and for the purposes of the Church.

458 The defendants deny the plaintiffs’ claim. Their submission is that the Statute never came into force or has never applied to the affairs of the Association. In the alternative they submit that if the Statute did come into force, Article 26.11 is inconsistent with the Association Constitution and the fundamental rules of the Church applicable to the financial affairs of a church community in a diocese outside of Macedonia to the extent that those rules have been incorporated into, and are consistent with, the provisions of the Association Constitution and the applicable laws of Australia and has not applied to the Constitution.

459 In the further alternative, the defendants submit that if the Statute came into force and has applied to the Association, Article 26.11 of the Statute is not a fundamental rule of the Church.

460 The provisions which the defendants argue in the first alternative submission that Article 26.11 are inconsistent with are: Clause 21A of the Association Constitution and Article 190 (in some versions 193) of the 1994 Constitution which are in similar terms. Article 190 of the 1994 Constitution provides that: “The organization and the work of the church municipalities that are out of the territory of the Republic of Macedonia are regulated with specific Statutes, passed in accordance with the church canons and the MOC’s Constitution and the Statute of the Diocese, coordinated by the Diocesan Archierarch, and proposed by the church councils of the general assemblies of the church communities. The Statutes of the Macedonian orthodox church municipalities abroad are approved by the ACCP, after a thorough inspection of the Holy Synod.”

461 In his affidavit, Professor Erickson notes that if neither the Statute nor the 2001 By-Laws are valid or applicable here, determination of any financial contributions from the St Petka Parish to the Diocese, if any, would depend upon “what the foundational documents of St Petka Parish had authorized and/or what customary practice had sanctioned”.

462 As mentioned in [347], if the Diocesan Statute were inoperative with respect to parish contributions to the diocese one would have to revert to the previous law or the intention of the donors of any specific gift.

463 Professor Erickson also says in his affidavit that he believes the rule set out in the statement of claim, that is, “a parish within the Diocese may be required by the Diocesan Assembly to contribute funds for the benefit of the Diocese and for the purposes of the church” is a provision of church law, but that it is “not a fundamental provision” of church law. He gives no reason.

464 It is difficult to support this proposition. Support of the Parish by the Diocese and the Diocese by a parish is one of the core relationships in any Church.

465 The plaintiffs submit (statement of claim [22.14]) that the parish priest of the St Petka Parish is entitled to be paid a stipend out of the monies of the St Petka Parish. They rely upon both Canon XVI of the Apostolical Canons and the practice of the Church up to the establishment of the Church Trust as reflected, in particular, in the letter dated 1977 on the letterhead of the Macedonian Orthodox Church St Petka to Metropolitan Kiril.

466 Mr Parker’s oral argument did not further this argument in any real way: he simply stated that the rule which the plaintiffs rely upon is “supported ecclesiologically” “at a very, very general level” by the canons which refer to the right of support from the altar “and the like”: Transcript: p 295.

467 The defendants say, first, that the entitlement of a priest of the Church who enters Australia to be the priest of the Association pursuant to a visa issued under the Migration Act to a salary, stipend or other remuneration is subject to the contract of employment entered into between the priest and the Executive Council and continues only so long as his employment by the Association continues. They claim that this argument is supported by the requirement that the Association enter into a contract of employment with the priest as part of the requirements under the Migration Act for the issue of a visa. Secondly, the defendants submit that Canon XLI of the Canons of the Holy Apostles on its proper construction does not provide that a priest is to be paid out of the monies of a parish. Thirdly and in the alternative, the defendants submit that if Canon XLI does on its proper construction provide that a priest is to be paid out of the monies of the parish, it only applies so long as the employment of the priest by the Association continues.

468 In his affidavit, Professor Erickson considered Apostolic Canon XLI in relation to claimed breach (j), and noted that the last sentences of the canon were probably what the plaintiffs had in mind: “For the law of God has ordained, that they who wait at the altar should be nourished by the altar. Neither does any soldier bear arms against an enemy at his own cost”.

469 For these sentences, Professor Erickson relied upon the translation Nicene and Post-Nicene Fathers Volume 14. He said that the general principle being set forth here is that “the clergy are entitled to compensation for their services out of church funds” (Affidavit, [23.1]). He noted that the Association Constitution acknowledges this principle when it makes provision for a salary for the priest “whilestever his position in the Church remains” (29.B).

470 Professor Erickson also examined the opening sections of Apostolic Canon LXI: “We ordain that the bishop have authority over the goods of the Church; for if he is to be entrusted with the precious souls of men, much more are temporal possessions to be entrusted to him. He is therefore to administer them all of his own authority, and supply those who need, through presbyters and deacons, in the fear of God and with all reverence”.

471 The witness posited that the text “envisions a small church community more closely corresponding in scope and structure to a modern parish than to a modern diocese”. Accordingly, Professor Erickson concludes that while the canon indicates that a priest is to be supported for his ministry, it does not indicate how or by whom he is to be supported. In practice, this has “varied considerably over the centuries”. In some countries priests are paid by the government, while in others priests are paid by the parish. He believes that the consequence of this is that the rule contended by the plaintiffs here cannot be regarded as a fundamental provision of church law.

472 It should be noted that Father Erickson relied upon St Nikodemos the Haghiorite’s interpretation of the canon to support his own. St Nikodemos wrote that Canon LXI, like XXXVIII “gives the bishop all authority over ecclesiastical property”. St Nikodemos goes on to say that the bishop must be well provided for, and he must “keep himself from giving offence to anyone, and must be irreproachable in everything”.

473 Professor Erickson says the point being made here is that church monies need to be properly accounted for. This does not alter the analysis here, as it is not entirely relevant. Professor Erickson did not further address this issue orally.

474 So far as surplice fees are concerned, the defendants have not shown any right which the bishop or priest has violated. As far as contributions from the parish to the diocese are concerned, it would seem that any failure to deal with the parish monies properly in this respect must be placed at the defendants’ feet.

Sub Question (k) which of the alleged breaches is fundamental to the trust ?

475 The defendants say that the court would only interfere if it held that there were fundamental breaches of trust. Assuming, for the moment, that this is so, the question must be asked, what is meant by “fundamental” in this context?

476 During the proceedings there was some confusion as to the precise meaning of “fundamental”.

477 The word was used in the statement of claim. The plaintiffs submitted that all of the provisions of church law which had they relied upon are “fundamental provisions of Church Law” that apply to the St Petka Parish. They say they took this wording from my decision in Radmanovich v Nedeljkovic (2001) 52 NSWLR 641, where I held that in such cases it is necessary to determine the fundamental principles of the trust, breach of which would give rise to an action in that the trust property would be affected, and distinguish these from non-fundamental practices and prohibitions laid down by the rules of the church.

478 The confusion became obvious during Professor Erickson’s oral evidence that he was not entirely sure of the meaning of “fundamental” in the statement of claim, but he took it to mean “unchangeable”; “basic ecclesiological principles” (Transcript: p 66).

479 His evidence was given based on this church law meaning of “fundamental”, rather than the meaning of “fundamental” in the Australian law of charitable trusts of what was so fundamental to the founders’ intentions that it is incorporated into the trust as a core provision.

480 In light of these different meanings, Mr Parker has requested that I give some definition to the word.

481 While I acquiesce to this request, it ought to be noted that as Professor Erickson thought he was being asked whether particular church law provisions pleaded were fundamental to church law, and as this is why his expertise was needed, the confusions which arose do not cause any great problems to this analysis.

482 The first consideration is whether there is indeed a difference between matters which are fundamental to the faith of the MOC and those which are fundamental to the trust.

483 Whilst there might be some exceptional situations, in my view it is a fair assumption is that what is fundamental to church law must have been fundamental to the founders’ intentions when creating the trust unless specific contrary provision was made.

484 It is a general rule of ecclesiastical law that when one sets up a church which is clearly allied and associated with a well recognized church, that the rules and liturgy of that other church are applicable; see eg Natal (Bishop) v Gladstone (1866) LR 3 Eq 1, 35-6.

485 In Radmanovich, I noted that in a religious trust not every provision of the rules or every matter of doctrine will necessarily be a term of the trust, breach of which will give rise to an action: Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 at 668.

486 A principle has developed in the case law that a church trust embodies only those parts of ecclesiastical doctrine which are “fundamental” or “essential”. It should be noted that a rule being a fundamental principle of church law will not automatically make it a term of the trust: for example, it must affect property.

487 There is no hard and fast rule for determining which church rules are fundamental ones, or which will be incorporated into a church trust. It is too difficult to answer precisely where the line is to be drawn in every case. However, the cases do provide us with some guidance.

488 In Attorney-General v Gould (1860) 28 Beav 485 at 495, Lord Romilly said that the question was whether the use of the building for the purpose of open communication was “such a perversion of the objects and trusts for which it was established, that is, whether it is a violation of those trusts which this Court will interfere to prevent”.

489 His lordship found the practice of strict or free communion to be “no part of what was essential for the maintenance of a congregation of particular Baptists” and consequently not to form a part of the foundation trusts on which the Church was held.

490 The High Court also examined this issue in Wylde v Attorney-General (the Red Book Case) (1948) 78 CLR 224. There, Latham CJ and Williams J found that uniformity of worship in the Anglican Church of Australia as it existed in 1948 was a fundamental principle of the Church, and that breach of that uniformity constituted a breach of trust.

491 Another example is the case of Scandrett v Dowling where the Court of Appeal found that breaching a church rule that priests must be male would not constitute a breach of trust: (1992) 27 NSWLR 483.

492 In Radmanovich, I found that what must be decided is whether each particular rule is so fundamental that it is a term of the trust, or whether it is merely an “incidental matter of regulation” which does not go to the core of the trust: 669.

493 My conclusion is that it is too difficult and of little use to find where the line is to be drawn in every case, however excluding the Bishop from the church is certainly a breach of a “fundamental” rule of church law which goes to the heart of the trust.

494 This is because it goes to the heart of an hierarchial church, even one which has provided for involvement of the laity to a significant degree that the basis leadership of the bishop is excluded.

495 The doctrine of Apostolic Succession as accepted by the MOC heavily relies on the tradition from one set of bishops to the next of the faith of the Apostles. The direction of the church by a person whose orthodoxy is pure and accepted is vital to the framework of the whole church.

496 Thus I have no difficulty in finding that the alleged breaches (a), (b) and (h) and their associated breaches are fundamental.

497 There may be some doubt as to alleged breaches set out in (d)(i) and (j) are fundamental, but this is of little moment as these matters will be subsumed in the more serious matters.

Answer to the Question

498 The question is:

What are the terms of the Declared Trust or the Church Trust in so far as material for the following alleged breaches of trust?

499 The question should be answered by saying that the terms of the relevant trust do not justify the exclusion of the bishop from the parish Church of St Petka nor the employment of any priest not authorised by the bishop nor the closing, alteration, addition to the Church building or its ornaments without the Bishop’s approval.

500 I do not consider that it is useful to address each sub-question, I will direct the plaintiffs to bring in short minutes of orders. It may be that I will be persuaded that it would be helpful to provide some answers to the sub-questions.

Costs

501 As the defendants have really failed on all aspects of the separate question, I can see no reason why they should not pay the costs of the exercise.

Orders for further conduct of the proceedings

502 The proceedings should stand over to 6 March 2009 at 10.00am for short minutes to be brought in. The short minutes should, in addition to stating orders that are appropriate because of these reasons, also contain directions for the ongoing conduct of the proceedings.

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LAST UPDATED:
4 March 2009