Archbishop Abba Petros v Beru & Anor [2007] VSCA 226

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

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

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

5 Petros arrived in Australia in July 2006 and in Melbourne in early September 2006. Petros and his supporters sought to attend at the Church premises but the Church and the gates were locked following a decision by Beru and the Council to close the Church property "temporarily ... to avoid any acts of violence".[1] The refusal of access led to the issue of a writ on 15 September 2006 and an application for interlocutory injunctions to require the unlocking of the premises and the provision to Petros of the keys to the parish church, together with orders restraining Beru from acting in contravention of the Church's "canons, regulations, directives, orders and decisions".

6 The injunction application was refused. Petros appealed from that decision. Having heard argument, the Court announced that the appeal would be dismissed. What follows are our reasons for that decision.**

**7 In dismissing the application, the learned Judge expressed the view that there were serious questions to be tried on the basis of the plaintiffs' claims but that the balance of convenience clearly favoured the maintenance of the status quo, which entailed the dismissal of the injunction application. Argument on the appeal was largely confined to the balance of convenience question, but before addressing this issue it is necessary first to say something about the causes of action on which the plaintiffs rely.

8 When the injunction application came on, the plaintiffs' claims were indorsed on the writ. The plaintiffs claimed that the defendants had -

(a) interfered with "the private rights and the property" belonging to Petros or EOTCV;

(b) converted the property of the Church and of EOTCV; and

9 The plaintiffs subsequently filed a statement of claim, and then an amended statement of claim, in which these claims were more fully developed. By that pleading, the plaintiffs seek damages for conversion and detinue of the parish church and of certain chattels and religious icons. They also seek declarations that Beru is not entitled to lead the Church in Melbourne, to hold the keys to the Church or to be a member of the Council, and that the plaintiffs are entitled to occupy the Church. The statement of claim alleges multiple breaches of the rules of EOTCV, both doctrinal and procedural, by Beru.

10 It is common ground that all of the property of the Church in Melbourne, real and personal, is vested in EOTCV. It follows, as the defendants pointed out in their defence, that the plaintiffs have no standing to bring proceedings for conversion or detinue of that property. Only a person who is in actual possession, or is entitled to immediate possession, can sue for conversion or detinue. Moreover, those actions lie only in respect of interference with chattels.[2]

11 On the hearing of the appeal, senior counsel for Petros readily conceded that these causes of action could not be maintained. She indicated to the Court that her client was content to characterise the wrongful refusal of access to Church property as a breach of the rules of EOTCV. We turn to consider briefly the legal status of the rules.**

Status of the rules of an incorporated association

**12 In the case of an unincorporated association, each member agrees with each of the others to associate together on the terms and conditions set out in the rules. Any contract thereby created is a contract between the members. In the case of an incorporated association, by contrast, the rules of the association constitute a contract between the association and its members for the time being: Associations Incorporation Act 1981 s 14A(1) ("the Act"). The members stand in a contractual relation with the association as a legal entity, not with each other.[3] Each member has a contractual right, as against the association, to have the affairs of the association conducted in accordance with the rules.

13 On this analysis, the rules of EOTCV constitute a contract between EOTCV and the members of the association. But a contract so characterised would not appear to confer on a member a private right of action against any other member alleging non-compliance with the rules. Less still would a non-member (as Petros is) have standing to seek any such relief. Although the matter was not fully argued, and need not be finally decided, it is far from clear that the plaintiffs could seek as against these individual defendants coercive relief of the kind sought in the amended statement of claim, that is, an order for delivery up to Petros of the parish church and the icons, or an injunction restraining the defendants from remaining in occupation of the parish church.

14 Attention was drawn on the hearing of the appeal to s 14A(2) of the Act, which provides:**

"The Magistrates' Court may, on the application of an incorporated association, or a member of an incorporated association, make an order -

(a) giving directions for the performance and observance of the rules of the incorporated association by any person who is under an obligation to perform or observe those rules; or

(b) declaring and enforcing the rights or obligations of members of the incorporated association between themselves or the rights or obligations of the incorporated association and any member between themselves."

**15 Until its amendment in 1997, the jurisdiction which this provision confers was conferred on the Supreme Court.[4] It is unnecessary to consider whether the coercive relief sought by the plaintiffs could be obtained on application to the Magistrates' Court under s 14A(2). Clearly enough, such application could only be made by the second plaintiff, membership of the association being the statutory requirement for standing to bring such an application.

16 The other relief sought by the plaintiffs is declaratory. As against Beru, they seek declarations that he is not entitled to assist the Melbourne Church with religious matters, lead the congregation in its services, be the keeper of the keys to the parish church or be a member of the Council. As against the second defendant, they seek declarations that he is not entitled to be a member of the congregation or be a member or the secretary of the Council. On ordinary principles, the second plaintiff (at least) would have standing to seek declaratory relief of this kind, given that questions of interpretation of the rules are involved. Such relief can, it seems, be obtained even though the association itself is not a party.[5]**

**17 The learned Judge approached the question of balance of convenience in the orthodox manner, by comparing the two possible outcomes of the application - the first being the grant of injunctive relief, the second the refusal of such relief. Consistently with what was said by this Court in Bradto Pty Ltd v State of Victoria,[6] his Honour considered the relative risks of injustice, in order to decide whether the grant, or the refusal, of injunctive relief would involve a higher risk of injustice should the decision turn out - following a full trial - to have been wrong.[7]

"49. When I consider the risks of injustice, they are remarkably similar, regardless of which option the Court chooses. One risk, and it is a substantial risk, is that the church will be split and that the cohesion and unity of the church may be irreparably damaged. Another risk is that persons, lawfully entitled to manage the affairs of the Melbourne church, will be denied that right during the holding period. I suppose there is a third risk: that is, that assets of the church will be dissipated; however, on the evidence, I would regard this as a low risk in either case.

1. So let me go back to the two main risks that I see. The first of which is that if I make a decision that ultimately turns out to be the 'wrong' decision, in the sense that it is not vindicated at trial, the church would be split and the cohesion and unity of the church will be irreparably damaged. I think this risk is less likely if the status quo is maintained. This is because those members of the church supporting the authority of Archbishop Petros are more likely to feel comfortable with the status quo than those opposing his authority would feel if there was a change in the status quo. It is important to stress that the church in Melbourne was operating in a harmonious manner until recent months. When it comes to the grant of interlocutory relief it is often wise to maintain the status quo pending a final hearing. In this case, the status quo is that Arch Priest Beru and the existing Administrative Committee are responsible for the governance of the church in Melbourne and, more particularly, responsible for the church building in Melbourne, including who may enter and under what terms.
2. The second risk that I mentioned is the risk that persons lawfully entitled to manage the affairs of the Melbourne church will be denied that right. Again, this is difficult to assess at this stage, but I also regard this prospect as being lower if the status quo is maintained. The assertion of authority by Archbishop Petros involves the displacement of a management committee that has been elected by the members of the church. That election was unsuccessfully challenged before the Magistrates' Court. Australian law holds that democratic authority is important, and this applies where the entity is a company, a trade union or an incorporated association, just as much as it applies to the governance of a nation or a State or a local area. The fact that the Administrative Council has been recently elected - and that that election has been upheld by the Magistrates' Court - is an important factor in identifying the appropriate balance pending the final determination of the proceeding. Even if Archbishop Petros has the power to displace the management committee under the rules of the association, that would be a substantial step, even a radical step, and ought follow a full trial rather than being imposed as part of some holding order.
3. So, in my view, the risks associated with granting the relief sought by the plaintiffs are significantly greater than the risks associated with refusing such relief. Hence, the appropriate course is that the plaintiffs' summons be dismissed. This will maintain the status quo, or at least what was the status quo before the matter was subject of intervention in this court, until any final hearing of this proceeding."[8]

**19 The principal submission on behalf of the appellant was that, contrary to his Honour's assessment, the refusal of injunctive relief did not maintain the status quo. Moreover, it was argued, the dismissal of the application had caused substantial injustice to Petros and to "a substantial number of members of the congregation".

20 The appellant's primary submission was that there was, in truth, no status quo. It was said that it was only when affidavits were filed in opposition to the injunction application that Beru and his followers disclosed for the first time that their allegiance was to the exiled patriarch, Merkorios, and not to Patriarch Paulos. According to the submission, the disclosure signified that Beru and his followers -**

"followed an alternate Church and religion. This was not the religion practised in the Church prior to 26 September 2006 and there is no 'status quo'. Accordingly, the Church should be opened to all until the end of the trial."

21 Alternatively, it was said, the "status quo" should allow Petros to enter the Church. In the past, it was said, the congregation had attended the Church together for many years -

"because religious leaders from priests to archbishops, who followed Patriarch Paulos in Ethiopia, were allowed to attend the church and celebrate their religion and faith with the congregation."

Now, for the first time, a follower of Patriarch Paulos had been refused the right to attend the Church and celebrate Mass. Further, it was argued, a large number of the congregation were effectively prohibited from exercising their faith in the parish church because of the ban on Petros entering. There is, it should be pointed out, no bar to any member of the congregation entering the church or attending services. Followers of Petros, however, feel unable to do so, so long as the services are being conducted by Beru and not by Petros.

22 We are not persuaded that the Judge made any appellable error in his assessment of the balance of convenience. On the contrary, his Honour's careful reasons show that he addressed all of the relevant matters and fully appreciated the nature of the dispute within the Church. The conclusions arrived at were clearly open on the material. It was, we think, a point of very considerable significance that the decision to exclude Petros had been taken by the Council, the validity of whose election to office had been upheld following a challenge in the Magistrates' Court. As his Honour said, it would have involved a very significant change to the status quo for the Court to have, in effect, suspended the operation of that decision and, with it, the authority of the Council.

**23 At the conclusion of argument, the Court raised with counsel whether there might not be utility in the matter being referred to mediation. The issues at the heart of the dispute are both religious and political, and therefore peculiarly unsuitable for judicial determination, apart altogether from the cost and distress inevitably associated with prolonged litigation. Senior counsel for the appellant indicated that her client would be willing to participate in a mediation; senior counsel for the respondents, on the other hand, informed the Court that his clients considered that there was no meaningful possibility of a resolution at mediation. In the result, the Court made no order in that regard.

24 For the reasons just mentioned, however, we would urge the parties following the disposal of this appeal to give anxious consideration to the possibility of mediation. Experience suggests that a negotiated settlement can be achieved, with the assistance of a skilled mediator, even in the case of a seemingly intractable dispute such as the present.**

[2] See, generally, J G Fleming, The Law of Torts (9th ed, 1998) Ch 4.

[3] Nurses Memorial Centre of South Australia Incorporated v Beaumont (1987) 44 SASR 454, 466 (Von Doussa J).

[4] See, for example, Andricciola v Italian Community of Keilor Association Incorporated [1996] VicRp 29; [1996] 1 VR 421.

[5] See, for example, Popovic v Tanasijevic [2001] SASC 289.

[6] [2006] VSCA 89; (2006) 15 VR 65.

[8] Petros v Beru [2006] VSC 383, [49] - [52] (emphasis added).