(2) the association's constitution did not contain a power to dissolve or merge the association
(3) all members of the association must be present to constitute a quorum, there being no rule and no evidence of practice or usage permitting a quorum by less than full attendance
(4) the association was not validly dissolved or merged by any purported resolutions or by practice or usage
Source
Original judgment source is linked above.
Catchwords
(2) the association's constitution did not contain a power to dissolve or merge the association(3) all members of the association must be present to constitute a quorum, there being no rule and no evidence of practice or usage permitting a quorum by less than full attendance(4) the association was not validly dissolved or merged by any purported resolutions or by practice or usage
Judgment (41 paragraphs)
[1]
Introduction
HIS HONOUR: This case concerns the control of the monastery of St Sava, New Kalenic in Wallaroo Road, Wallaroo near Canberra. The monastery was built between 1983 and 1990 from funds raised by the religious organisation then called the Free Serbian Orthodox Church - Diocese for Australia and New Zealand ("the FSOC-ANZ Diocese" or "the Free ANZ Diocese" or, between 1991 and 2010, "the NGM-ANZ Diocese"). The Free Serbian Orthodox Church was formed in about 1964 because of a split within the Serbian Orthodox Church.
The first plaintiff, Bishop Irinej (Dobrijevic), is a bishop of the Serbian Orthodox Church and head of the Metropolitanate of Australia and New Zealand of that church ("the SOC-ANZ Metropolitanate"). The second plaintiff is a company that was established in 2008 to hold newly acquired property for the Serbian Orthodox Church in Australia.
The first defendant ("the Property Trust Company") is the registered proprietor of the land on which the monastery stands. The second to fifth defendants are directors of the Property Trust Company. The Attorney-General is the sixth defendant.
It is common ground that the Property Trust Company holds the monastery on a charitable trust. The plaintiffs submit that the monastery was held on a charitable trust for the purposes of the FSOC-ANZ Diocese. The first to fifth defendants say that there is a more particular trust, namely that it be used for the purposes of a monastery, diocesan centre and aged care home for the FSOC-ANZ Diocese. The Attorney-General submits that the property is held on trust for the purpose of propagating the Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church through the Free Serbian Orthodox Church ANZ Diocese.
The plaintiffs submit that in the events that have happened the Property Trust Company now holds the monastery on trust for the purposes of the SOC-ANZ Metropolitanate. They submit that this is the result of events that occurred from the early 1990s and which culminated on 4 September 2010 and 23 May 2011 with the adoption of a new constitution for a unified church which is the SOC-ANZ Metropolitanate. They submit that the Property Trust Company and its directors have breached the terms of the charitable trust on which the monastery is held by refusing Bishop Irinej and clergy of the Serbian Orthodox Church access to the property, by preventing them from conducting church services on the property, and by preventing use of the property for the public worship of the Orthodox faith through the Serbian Orthodox Church. Other breaches of trust alleged are that the Property Trust Company engaged a former priest of the Serbian Orthodox Church, a Father Dragan Saracevic, who the plaintiffs say had been stripped of his clerical rank, to conduct non-canonical church services on the property, and allowed the monastery to be used for non-canonical church services by clerics of a group styled as the Old Calendar Orthodox Church of Greece Holy Synod in Resistance ("OCOCG-HSIR") that is not in communion with the Serbian Orthodox Church.
Alternatively, the plaintiffs submit that the original purposes of the trust have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, and the purpose of the trust should be altered to allow the property to be applied cy-près towards the maintenance and propagation of the Orthodox Christian faith through the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church.
The Attorney-General submits that the trusts on which the property were held required it to be applied for the purposes of the FSOC-ANZ Diocese and did not permit the property to be applied for the purposes of a different church (the Serbian Orthodox Church) that recognised a different hierarch than one to be appointed in accordance with the constitution of the FSOC-ANZ Diocese. The Attorney-General submits that if the plaintiffs are correct in contending that there had been a merger of the churches with the effect that the FSOC-ANZ Diocese no longer existed, then both at general law and under s 9 of the Charitable Trusts Act 1993 (NSW), it is impossible to perform the objects of the original trust and the property ought to be applied cy-près in the manner for which the plaintiffs contend. The Attorney-General also submits that even if the FSOC-ANZ Diocese has not ceased to exist, there has been a fundamental change in the nature of that church such that the trust should be varied cy-près so that the property is held for the purposes of the SOC-ANZ Metropolitanate.
The first to fifth defendants submit that the monastery property can only be used in a way which is consistent with the fundamental or essential doctrines and principles of the Free ANZ Diocese.
They submit that it is a fundamental tenet of the Free ANZ Diocese that it be independent of the Serbian Orthodox Church in respect of its governance and that it retain the right independently to determine if, when, and how it might affiliate with the Serbian Orthodox Church. They submit that there has been no valid decision by the Free ANZ Diocese to unite administratively with the Serbian Orthodox Church, that there are people conducting religious activities as a continuance of the Free ANZ Diocese, and that the original purpose of the trust continues to provide a suitable and effective method of using the trust property. They contend that the FSOC-ANZ Diocese was and continues to be an independent Orthodox church. They accept that the Free ANZ Diocese has brought itself within the spiritual jurisdiction of the Old Calendar Church of Greece Holy Synod in Resistance and that is a church which is not in communion with the Serbian Orthodox Church or with the other recognised autocephalous Orthodox churches. But when the trust was established, the Free ANZ Diocese was not in communion with the Serbian Orthodox Church and had been in communion with only one of the recognised autocephalous churches of the Orthodox church. Accordingly the first to fifth defendants submit that there has been no departure, or no substantial departure, from the original trust purposes by the Free ANZ Diocese having brought itself within the spiritual jurisdiction of the OCOCG-HSIR.
The first to fifth defendants submit that the resolution purportedly passed by persons claiming to be representatives of church-school congregations of the Free ANZ Diocese on 4 September 2010 was not validly passed. The validity of the resolution purportedly passed on 4 September 2010 is attacked on a number of grounds including that the purported Church National Assembly of the Free ANZ Diocese could only be convened by a bishop of the Free ANZ Diocese and that Bishop Irinej, who had been purportedly appointed by the Holy Assembly of Bishops of the Serbian Orthodox Church in Belgrade as Bishop Administrator of the Free ANZ Diocese, was not validly so appointed; that even if he were, as Administrator, he did not have power to effect such a fundamental change as convening a meeting which would see the extinction of the Free ANZ Diocese as a separate entity; that persons purportedly attending the meeting as representatives of community organisations and Church-school Congregations of the Free ANZ Diocese did not represent those bodies; and that there were other procedural flaws in relation to the meeting.
The first to fifth defendants also submit that the plaintiffs are disentitled to equitable relief because Bishop Irinej is said to have repudiated the charitable trust on which the monastery was held by disregarding the terms of the Free ANZ Diocese's constitution, by participating in a purported decision of the Ecclesiastical Court of the Free ANZ Diocese on 20 December 2007 excommunicating one of the directors of the Property Trust Company (the third defendant, Mr Nesic), by participating in purported decisions of the Diocesan Council of the Free ANZ Diocese in December 2007 and January 2008 purporting to deprive persons who attended a meeting held at the monastery on 29 December 2007 of financial and spiritual rights, and also by purporting to declare four church-school communities as schismatic without a valid ecclesiastical disciplinary process of the Free ANZ Diocese.
To come to grips with these contentions some background as to the Serbian Orthodox Church, an explanation of some tenets of Orthodoxy, and a summary of the events that led to this litigation are required.
[2]
Orthodox churches are hierarchical
The Serbian Orthodox Church was established in 1219 as one of the recognised autocephalous (that is, autonomous or self-governing) Orthodox churches. In that year the Patriarch of Constantinople consecrated Rastko Nemanja, who had received the name Sava when he entered monastic orders in 1175, as Archbishop of all Serbian and Sea Coast Lands and presented him with a staff which proclaimed the elevation of the Serbian Church into an archdiocese. The Patriarch of Constantinople granted Sava's requests that his country be granted Church autonomy, that is, autocephaly, and that an archbishop be appointed as its head. Sava was later canonized. The monastery bears his name.
The Serbian Orthodox Church, as with other Orthodox churches and the Orthodox Tradition, is a hierarchical church in which authority for the regulation and administration of the affairs of a diocese rests with the bishop. Bishops are appointed by the Holy Assembly of Bishops who also elect the Patriarch who is the supreme head of the church. The Holy Assembly of Bishops is composed of all diocesan bishops under the presidency of the Patriarch. The Holy Assembly, as the highest hierarchical body, has legislative authority in matters of faith, worship, church order (discipline) and internal organisation and is the highest church juridical authority. It can exercise control over the Holy Synod of Bishops which is composed of the patriarch and four diocesan bishops and which exercises executive and some juridical functions. The Holy Synod of Bishops supervises the work of Bishops. Bishops are elected by the Holy Assembly. Article 102 of the 1947 Constitution of the Serbian Orthodox Church provides that a Diocesan Bishop in his archpastoral calling, in accordance with the Orthodox teaching and the church canons, has full hierarchical authority in matters of faith and morals, worship, and archpastoral care in his Diocese. Article 107 provides that all ecclesiastical offices and organs in the Diocese are subject to the Diocesan Bishop.
This is in accordance with the Orthodox Church's view of Holy Tradition. In his book "The Orthodox Church", Timothy Ware, Metropolitan Kallistos of Diokleia (Penguin Books New Edition 1997) says:
"The Orthodox Church is a hierarchical Church. An essential element in its structure is the Apostolic Succession of bishops. 'The dignity of the bishop is so necessary in the Church,' wrote Dositheus, 'that without him neither the Church nor the name Christian could exist or be spoken of at all … He is a living image of God upon earth … and a fountain of all the sacraments of the Catholic Church, through which we obtain salvation.' (Confession, Decree x) 'If any are not with the bishop,' said Cyprian, 'they are not in the Church.' (Letter lxvi, 8)
At his election and consecration an Orthodox bishop is endowed with the threefold power of (1) ruling, (2) teaching, and (3) celebrating the sacraments.
(1) A bishop is appointed by God to guide and to rule the flock committed to his charge; he is a 'monarch' in his own diocese.
(2) At his consecration a bishop receives a special gift or charisma from the Holy Spirit, in virtue of which he acts as a teacher of the faith. This ministry of teaching the bishop performs above all at the Eucharist, when he preaches the sermon to the people; when other members of the Church - priests or laypeople - preach sermons, strictly speaking they act as the bishop's delegates. But although the bishop has a special charisma, it is always possible that he may fall into error and give false teaching: here as elsewhere the principle of synergy applies, and the divine element does not expel the human. The bishop remains a man, and as such he may make mistakes. The Church is infallible, but there is no such thing as personal infallibility.
(3) The bishop, as Dositheus put it, is 'the fountain of all the sacraments'. In the primitive Church the celebrant at the Eucharist was normally the bishop, and even today a priest, when he celebrates the Divine Liturgy, is really acting as the bishop's deputy."
Archbishop Chrisostomous of the OCOCG-HSIR, who gave evidence for the first to fifth defendants, said:
"5.2.2.1. Administrative unity within a diocese has theological significance. Administrative unity at supra-diocesan levels (that is, within archdioceses, metropolitanates, national Churches, and patriarchates) is a desired good and, according to many canonical formulations, is even considered necessary to the welfare of the Church. But, unlike diocesan unity, it is not considered essential to the very existence of the Church.
5.2.2.2. Since the first centuries, a hierarchical administrative rule has been considered an absolute necessity for each diocese, wherein the ruling bishop, presiding harmoniously and authoritatively over his clergy and laity, is considered an iconic representation of Christ and the Apostles, ministering to the faithful.
5.2.2.3. The historical enlargement of the sphere of hierarchical administrative rule, with its extension to the administrative structures of archdioceses, metropolitanates, national Churches, and patriarchates, is understood to be an acceptable accommodation to the cooperative relationship that, since the fourth century, developed between Church and State. Though these supra-diocesan offices and structures often establish rules of order that seem to imply higher levels of authority than that of the local bishop, such organizational rules are, at their core, accommodations to principles of harmony. Fundamentally, the Orthodox Church sees all bishops (i.e., hierarchs) as equal; there is no higher office.
5.2.2.3.1. 'The system of Patriarchs and Metropolitans is a matter of ecclesiastical organization. But if we look at the Church from the viewpoint not of ecclesiastical order but of divine right, then we must say that all bishops are essentially equal, however humble or exalted the city over which each presides. All bishops share equally in the apostolic succession, all have the same sacramental powers, all are divinely appointed teachers of the faith. If a dispute about doctrine arises, it is not enough for the Patriarchs to express their opinion: every diocesan bishop has the right to attend a General Council, to speak, and to cast his vote. The system of the Pentarchy [the five ancient patriarchates] does not impair the essential equality of all bishops, nor does it deprive each local community of the importance which [St.] Ignatius [of Antioch] assigned to it.' (Timothy Ware (Bishop Kallistos of Diokleia), The Orthodox Church, rev. ed. (Harmondsworth, England: Penguin Books, 1997), p. 27 (emphases original). …"
In recognition of the Bishop's authority and the fact that in conducting the liturgy, the priest is acting as the Bishop's delegate, a priest will elevate the name of his Bishop in the course of the liturgy. As referred to below, after a reconciliation between the Serbian Orthodox Church and the Free Serbian Orthodox Church in the 1990s the Holy Assembly of Bishops in Belgrade appointed Bishops to the Free ANZ Diocese. The priests of the Free ANZ Diocese elevated the name of the Bishop so appointed, even though, as seen below, the appointments were not made in accordance with the constitution of the Free ANZ Diocese.
[3]
Division in the Serbian Orthodox Church in 1964
A significant number of Serbs adhering to the Orthodox faith emigrated to Australia after World War II. At that time there was no organised diocese for them and they came under the jurisdiction of the American-Canadian Diocese of the Serbian Orthodox Church. In 1952 the Holy Assembly of Bishops decided to recall under its jurisdiction all Serbs living in the diaspora in countries where there was no organised diocese. Church-school communities in Australia were brought under the jurisdiction of the Patriarchate in Belgrade.
In 1963 the Holy Assembly of Bishops divided the American-Canadian Diocese into three dioceses and appointed the incumbent bishop, Bishop Dionisije, as a bishop of only one of them. Bishop Dionisije refused to recognise the actions of the Holy Assembly of Bishops and charged that Assembly as being communistic and under the dictates of the communist government of Yugoslavia. The Holy Assembly suspended and later removed Bishop Dionisije as bishop and appointed an administrator to the American-Canadian Diocese. In November 1963 the American-Canadian Diocesan National Assembly declared the diocese autonomous and purportedly amended its constitution to provide for the election of the bishop by the diocese itself and resolved that the constitution of the diocese could be amended without the approval of the Holy Assembly in Belgrade.
On 5 March 1964 the Holy Assembly divested Bishop Dionisije of his episcopal and monastic ranks following his refusal to recognise the competence of the court of the Holy Synod to try him on charges of defying decisions of higher church authorities. Bishop Dionisije denounced the Holy Assembly and Holy Synod as schismatic and pro-communist and asserted that they were acting in violation of the church's constitution. (These events are recited in the judgment of the US Supreme Court in Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 at 703-705 (1976).)
Most of the Serbian Orthodox School Communities in Australia aligned themselves with Bishop Dionisije although some continued to accept the authority of the Patriarchate in Belgrade. In October 1964 Bishop Dionisije visited Australia and attended what became known as the First Assembly (also called Sabor) of the Free Serbian Orthodox Church Diocese for Australia and New Zealand held in Melbourne on 31 October 1964.
In 1989 a record of those proceedings was published in a book called "Serbs in Australia, History and Development of Free Serbian Orthodox Church Diocese for Australia and New Zealand". It records that Bishop Dionisije called on delegates to form a Diocesan Council for Australia. Delegates resolved to establish a diocese and decided on the composition of a Diocesan Council. Bishop Dionisije announced that he had decided to divide Australia administratively into two regions and had decided to promote two priests to the rank of archpriest to administer the separate regions. He said he would visit parishes in Australia to ordain a number of young priests so that positions of parish priests could be filled in some parishes. Delegates to the Assembly proposed that Archimandrite Dimitrije (Balak) be elected as Bishop. Bishop Dionisije asked the Diocesan Council formally to apply to him in writing and this was done. Bishop Dionisije advised that Father Dimitrije would have to return to America where he would be consecrated as Bishop and that the American Sabor would have to give its support to the application. The Bishop advised that the people and clergy would jointly have to decide on and elect a bishop. He advised that the American Sabor had resolved in 1959 and 1960 that the Holy Assembly of Bishops in Belgrade be asked that after his death subsequent bishops be elected that way, but those proposals had been rejected by the Holy Assembly in Belgrade. Bishop Dionisije stated that until a new bishop was ordained and returned to Australia, he would be the administrator of the newly formed diocese for Australia and New Zealand.
A Diocesan Council was elected and a draft constitution was considered and adopted. Resolutions passed by the Assembly included the following:
"2. We condemn the indoctrination of Communist principles and practice and we call on all Serbs to do everything in their power to defend the Holy Orthodox Faith, freedom, justice and democracy.
3. We do not recognise the imposed Communist dictatorship in enslaved Yugoslavia particularly that inflicted on the Serbian people and we reject any cooperation or contact with representatives of Communist Yugoslavia abroad.
4. We confirm and maintain that in the Communist world including our old enslaved homeland there is no personal, economic, political nor religious freedom. We therefore condemn the enslavement and oppression of our Serbian Orthodox Church in Yugoslavia inflicted by the dictatorial criminal communist regime instituted by Tito.
5. We acknowledge and accept the decision brought down by the Tenth Sabor of the Serbian Orthodox Diocese of A-C held in August and November of 1963 in the Serbian Orthodox Monastery of St. Sava, Libertyville, Illinois. We also recognise their Head, His Grace Bishop Dionisije as a legitimate bishop. The charges laid against him we believe to be false and tendentious whilst the verdict and subsequent dismissal we find illegal and unfounded bearing in mind that it was instigated by the Titoist regime contrary to Church canons and against the interests of unity in the Serbian Orthodox Church and its holy mission with the Serbian people.
6. Our church life in Australia we are organising within the framework of the Free Serbian Orthodox Church-Diocese for Australia and New Zealand which is in unity with the Serbian Orthodox A-C Diocese having the one constitution, however passing our own decisions within our respective dioceses. With the formation of the Diocese in Australia in light of the constitution adopted at the Tenth Sabor in America, we are not separating spiritually or nationally from our Holy Serbian Orthodox Church and our Serbian people. We still remain in dogmatic, spiritual and national unity with her and only chose not to accept her decrees and decisions as they are dictated by the godless Communist authorities. Even today we partake in her tribulations praying to God that she does not succumb and that she finds salvation. When the Serbian Orthodox Church frees itself of Communist dictatorship we will again fall under its administrative rule."
As the plaintiffs submit, this last resolution indicates that it was not the intention of the founders of the Free ANZ Diocese that its independence from the Serbian Orthodox Church should be permanent and immutable. Rather, the Church was formed to deal with what was hoped to be only a temporary situation, namely the Serbian Orthodox Church's being (allegedly) subject to the dictates of the Communist Government in Yugoslavia.
By the beginning of 1964, 14 church-school communities in Queensland, New South Wales, the ACT, Victoria and South Australia had asked the Diocesan Council of the American-Canadian Diocese and Bishop Dionisije to take them under their jurisdiction. Later up to 16 church-school congregations belonged to the Free ANZ Diocese. Four church-school congregations remained under the jurisdiction of the Patriarchate.
[4]
1964 Constitution of the FSOC-ANZ Diocese
The constitution for the Free ANZ Diocese adopted on 31 October 1964 stated that the Assembly on that day had adopted the constitution of the Serbian Orthodox Church of the United States of America and Canada as its own constitution with minimal changes or additions. Article 1 stated that:
"Art.1
The Free Serbian Orthodox Church Diocese for Australia and New Zealand shall be deemed in spiritual terms as an organic part of the Serbian Orthodox Patriarchate of the Kingdom of Yugoslavia [1918 to 1943] and enjoys all benefits stemming therefrom."
This article reflected the founders' determination that the FSOC-ANZ Diocese should be part of the Serbian Orthodox Church before its having become subject to communist rule in Yugoslavia. Articles 3 and 4 provided:
"Art. 3
The jurisdiction of the Free Serbian Orthodox Diocese for Australia and New Zealand, with its Seat in Sydney in the State of New South Wales shall enhance the whole political territory of Australia and New Zealand and as such in geographic terms it enjoys full administrative freedom. Therefore, it can administer and organise its affairs and those of churches, schools and all other organs of the diocese, as well as all of the funds and goods organise and administer independently with the assistance of its organs in accordance of its constitution and laws of Australia and New Zealand.
The said jurisdiction shall expand so it will enhance parts of Australia and New Zealand where Serbian people have resettled and organised their Serbian Orthodox Parishes who are seeking refuge and connection with the aim of preserving, defending and rejecting all activities that are contrary to the Serbian Orthodoxy and Holy Mother Church in the Kingdom of Yugoslavia [1918 to 1943].
Art. 4
The Free Serbian Orthodox Diocese for Australia and New Zealand is comprised of Free Serbian Orthodox Church-School Congregations, parishes, churches, monasteries, proto-presbyterates, established within the territories of the above mentioned states who shall voluntarily seek sanctuary and affiliates with said diocese to preserve the Holy Mother Church, and which shall thereby fall under the spiritual, executive, ecclesiastical-judicial and controlling authority of the diocesan organs (Bishop and Diocesan Council). Therefore, every Free Serbian Orthodox Church-School Congregation, church, monastery, and protopresbyterate already existing or which shall be established in the above mentioned territories must be in ecclesiastical-canonical bond with this Diocese and reorganise its authority and power."
These articles stressed the administrative independence of the FSOC-ANZ Diocese and the spiritual affiliation of the FSOC-ANZ Diocese with the Serbian Orthodox Church as it was before 1943, being the year in which the Democratic Federal Yugoslavia was proclaimed and recognised by the Allied powers.
Article 5 listed the different legislative and administrative organs of the Diocese, being the Diocesan Church National Assembly, its executive and administrative organ, being the Diocesan Council, the Diocesan Ecclesiastical Court, and lower authorities and organs, including Free Serbian Orthodox Church-school Congregations.
Article 9 provided for the appointment of the Diocesan Bishop. It relevantly provided:
"Art. 9
The Bishop of the Free Serbian Orthodox Diocese for Australia and New Zealand shall be nominated the [sic] Diocesan Council and the Diocesan Ecclesiastical Court, elected by a secret ballot of the Diocesan Church National Assembly, and consecrated by Orthodox Bishops having apostolic succession.
Candidates for Bishops must fulfil canonical and legal requirements provided for the position of Bishop in the Orthodox Church. They must have the required theological education; Theological Academy, Theological Faculty or university education with prior theological education. They must show by their diligent church work, faithfulness to church and people and by their exemplary life, as well as by their ability to merit position of Bishop.
In case of vacancy or widowhood of the Diocese, the Diocesan Council shall convoke within six months at the most a Church National Assembly in extraordinary session. The Diocesan Council shall within three weeks before the Assembly propose to the Church National Assembly two or three candidates for Bishop who fulfil the necessary requirements as set forth in the previous subsection of this article."
Article 10 specified matters that were to come within the "jurisdiction of activity" of the bishop. These included the preservation and defence of "One Holy Ecumenical and Apostolic church" and the repelling of "all activities contrary to Orthodoxy", seeing that divine worship in church was conducted in accordance with church law and the constitution, the establishment, erection and repair of churches and the provision of sacred relics, church books, crosses and similar requirements, the consecration of new churches, the visitation of churches, the ordaining of priests and the appointment of priests to parishes and the execution of "all canonical laws of the One, Holy, Ecumenical and Apostolic Church and the Assembly of Bishops of the Free Serbian Orthodox Church".
Article 12 provided:
"Art. 12
The Diocesan Bishop of the Free Serbian Orthodox Church for Australia and New Zealand is obliged to recognise spiritual and liturgical unity of the Serbian Orthodox Diocese in America and Canada and Mother Church in the Kingdom of Yugoslavia [1918 to 1943].
The Diocesan Bishop is responsible to the Diocesan Council for his work and the governing of the affairs of the Diocese and its institutions. In case of disagreement between Diocesan Council and the Bishop, the final decision remains with the Diocesan Church National Assembly but for his spiritual work and spiritual administration of the Diocese he shall be responsible to the Assembly of Bishops of the Free Serbian Orthodox Church."
Article 14 provided that the Bishop was the supreme head of a monastery when a monastery was built and would appoint the Abbott and conduct the canonical supervision and higher executive authority over the monastery.
Article 15 provided that the National Assembly was the main legislative and controlling body in the Diocese and represented the entire Free Orthodox Serbs in Australia and New Zealand. The Diocesan Assembly consisted of delegates elected by individual church-school congregations, including two laymen in addition to the president of the church-school congregations, all the Serbian Orthodoxy clergy of both orders (that is, monastic and parochial), all bishops, all members of the Diocesan Plenum together with representatives of all "Serbian colonies" who were without a church and priest, but who had a regular school operating under diocesan jurisdiction. Thus the National Assembly would be predominantly comprised of laymen or women, although the bishop and clergy would be represented. Each church-school congregation was entitled to one vote.
The president of the Assembly was to be the Bishop. There were to be two vice-presidents, one of whom was a priest and one a layman. The functions of the Diocesan Assembly included approving the program of work of the Diocesan Council for the ensuing three years and deciding on all matters which the Diocesan Council submitted for its consideration and electing the Diocesan Council for a three-year term. The Diocesan Assembly was to control the assets of the Diocese and to decide on changes and amendments to the constitution (Article 23).
The Diocesan Council was the main executive and "controlling board" of the Diocese for external church religious education and educational matters (Article 24). The Diocesan Council was to consist of the Bishop plus 12 other regular members to be elected by the Diocesan Assembly. Seven of those members were to be laity and five clergy. Hence the majority of the members of the Diocesan Council were to be laity.
Article 42 provided for the establishment of a Diocesan Ecclesiastical Court to be comprised of the Bishop as president and four regular, and three alternate members appointed by the Bishop and who could be relieved of duty by the Bishop. The Diocesan Ecclesiastical Court was not authorised to meet without the knowledge of the Bishop or his appointed substitute (Article 48). The function of the Diocesan Ecclesiastical Court included the making of all decisions pertaining to the unfrocking of priests. This jurisdiction included seeing that the teaching of the faith was preserved intact and that church rituals were maintained and that priests and presbyter-monastics perform their duties. The Court had the jurisdiction to judge in all disciplinary matters relating to church discipline and order and in relation to matters concerning the performance of the holy sacraments, as well as decisions in relation to matters of divorce and annulments.
Article 56 provided that if the bishop should disagree with a decision of the Diocesan Ecclesiastical Court or with the decision of some diocesan committee or diocesan council, then the matter in question will be sent to the Diocesan Plenum, apparently being the Council, Ecclesiastical Court and "Controlling/Auditing Board".
Article 68 provided:
"Art. 68
Each Church-School Congregation is considered an integral part of the Free Serbian Orthodox Church - Diocese for Australia and New Zealand and as such is subject to all the statutes of this Constitution, church canons and other regulations, rules and orders of the Diocesan authorities headed by the Diocesan Bishop."
Article 155 provided that the diocesan funds were to be supervised by the Diocesan Council. However, Article 156 provided that:
"Art. 156
All real estate and personal property of Serbian Monasteries, if they are founded, are supervised by the monastery's administration under the direct control of the Diocesan Bishop."
Hence from its inception the model for the governance of the FSOC-ANZ Diocese laid down in its constitution departed from the principles on which Orthodox churches are established. The constitution did not provide for the Bishop to be a 'monarch' in his own diocese. He was responsible to the Diocesan Council and in the event of disagreement with the Diocesan Council the dispute would be resolved by the Church National Assembly. The laity had majority representation on the Diocesan Council and the National Assembly. A bishop was to be elected by the National Assembly from a list of candidates proposed by the Diocesan Council. Over the following decades the governance of the FSOC-ANZ Diocese, particularly on the critical question of appointment of the Bishop or an administrator, departed in practice from the requirements of the constitution. The significance of that departure is addressed later in these reasons.
The election of Archimandrite Dimitrije (Balak) by the first national assembly of the FSOC-ANZ Diocese was ratified by the American-Canadian diocese two years later. Archimandrite Dimitrije was consecrated as a bishop by bishops of the American-Canadian Diocese of the Free Serbian Orthodox Church, being Bishops Dionisije and Irinej. (Bishop, later Metropolitan, Irinej of the Free Serbian Orthodox Church is not to be confused with, the present plaintiff. A priest of the Orthodox Church, on entering a monastic order, takes a saint's name. Bishops are appointed from the monastic orders.)
At the Fifth Sabor of the FSOC-ANZ Diocese held in December 1976, at the request of Bishop Dimitrije, the Sabor elected Archimandrite Petar (Bankerovic) as his assistant. The Sabor was attended by Bishop Irinej from the Free Church in America. Bishop Irinej told the Sabor that the Free Church had been recognised by the Patriarchate in Alexandria. On 5 November 1977 Archimandrite Petar was consecrated as a Bishop in the Free Serbian Orthodox Church in Chicago by Bishop Irinej and Bishop Dimitrije. Also present was the Metropolitan of the Ukrainian Church. Bishop Petar arrived in Australia two weeks after his consecration as assistant to Bishop Dimitrije.
Meanwhile, the Holy Assembly of Bishops of the Serbian Orthodox Church established a Serbian Orthodox Diocese of Western Europe and Australia on 12 March 1969. The See of the Diocese was in London. On 4 June 1973 the Holy Assembly of Bishops formally established the Serbian Orthodox Diocese in Australia and New Zealand. From that time parishes, church-school congregations, deaneries and other institutions of the Serbian Orthodox Church in Australia and New Zealand came under the authority of the local diocesan bishop elected by the Holy Assembly.
Thus after 1964 there was in Australia both a Free Serbian Orthodox Church that did not recognise the authority of the Holy Assembly of Bishops in Belgrade but which nonetheless regarded itself in spiritual terms as an organic part of the Serbian Orthodox Church as it was before 1943, and a Serbian Orthodox Church that remained under the authority of the Holy Assembly of Bishops in Belgrade. From 1973 two bishops headed the Serbian Orthodox faithful in Australia and New Zealand: one administering the FSOC-ANZ Diocese, and one administering the ANZ Diocese of the Serbian Orthodox Church. The first plaintiff, Bishop Irinej, deposed that a central tenet of the Serbian Orthodox Church is the supremacy of the bishop in the territory of his diocese and that according to canon law there can be only one diocese for any given territory overseen by one bishop.
In 1968, four years after the split, the Holy Synod of Bishops of the Serbian Orthodox Church published a decree that those who had left the Serbian Orthodox Church had excluded themselves from the community of the Serbian Church and from the Holy Orthodoxy and had no rights in the Serbian Orthodox Church or in the general Orthodox Church community worldwide. Sacraments administered by the Free Church were not recognised. Those who had left the Serbian Orthodox Church to join the Free Church could not be buried in consecrated ground of the Serbian Orthodox Church. They were treated as schismatics. Priests who took part in the schism were defrocked and it was said that their names would be forever deleted from the list of clergy of the Serbian Orthodox Church. An example of the effect of this was that parents, one of whom was a member of the Serbian Orthodox Church and the other of the Free Serbian Orthodox Church would have their children baptised in both Churches. This position continued until the 1990s when steps for reconciliation were implemented.
There was litigation in the United States following the split in the Serbian Orthodox Church there. In 1963 Bishop Dionisije had been suspended and in 1964 he was defrocked by the Holy Assembly in Belgrade. In 1963 Bishop Dionisije brought proceedings in Illinois seeking to enjoin the administrator appointed by the Serbian Orthodox Church from interfering with the assets of the Diocese. After years of litigation the Supreme Court of Illinois ultimately held that Bishop Dionisije's removal and defrockment was invalid as contrary to the Court's interpretation of the Church's constitution and penal code. It held that the Diocesan reorganisation was invalid and in substance reinstated Bishop Dionisije as Diocesan Bishop. On 21 June 1976 the US Supreme Court reversed this decision (Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 (1976)). The US Supreme Court held that by reason of the First and Fourteenth Amendments, the Illinois courts had no jurisdiction to enquire into the exercise of disciplinary functions by a hierarchical church's governing body under religious law. The Diocesan Bishop controlled the monastery of St Sava in Illinois and was the principal officer of the companies that held diocesan property. Resolution of the religious dispute over Bishop Dionisije's defrockment determined control of the property. By reason of the First and Fourteenth Amendments to the US Constitution civil courts could not become entangled in an essentially religious controversy.
The result of this decision was that control of the diocesan property in the United States reverted to the administrator appointed by the Holy Assembly in Belgrade.
[5]
FSOC- ANZ Diocese's 1976 Constitution
It was against this background that the constitution of the Free ANZ Diocese was amended at the Fifth Assembly held in Sydney on 30 December 1976. Articles 1 to 4 of the new constitution provided as follows:
"Art. 1
The Free Serbian Orthodox Church - Diocese for Australia and New Zealand maintains her sister's relations with the Free Serbian Orthodox Church - Diocese for America and Canada as well as with the Free Serbian Orthodox Church - Diocese for Europe and their Bishops in charge, respectively.
Art. 2
This Free Serbian Orthodox Diocese is governed on the basis of:
(1) The Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church
(2) Canons of the Ecumenical Councils and by them recognised Canons of the Apostles, Regional Councils and Holy Fathers.
(3) Ordinances, by-laws and general rulings of the competent Church authorities as stipulated by this Constitution.
Art. 3
The jurisdiction of the Free Serbian Orthodox Church - Diocese for Australia and New Zealand with Bishop's Headquarters and Seat in Sydney N.S.W., includes the entire geopolitical territories of Australia and New Zealand, which, as such, by its geographic location, enjoys in full the administrative freedom in managing independently through its own organs its: Church affairs, Schools and other Diocesian establishments, as well as all funds and real estates in accordance with this Constitution and Australian and New Zealand's Laws and By-laws.
Art. 4
This Free Orthodox Diocese is not subject to, or under the authority or patronage of any higher ecclesiastical or hierarchical authority. This Diocese is free to independently regulate its own spiritual and secular affairs as well as to affiliate or disaffiliate with any group or hierarchical entity, in accordance with the resolution by its own Diocesian Church National Assembly."
Counsel for the first to fifth defendants place particular emphasis on Article 4 of the 1976 constitution as establishing what they submitted was a fundamental tenet and principle of the Free ANZ Diocese, namely its independence to regulate its own spiritual and secular affairs as well as a power to affiliate or disaffiliate. This, counsel submit, does not extend to a power to vote itself into extinction by becoming reabsorbed into the Serbian Orthodox Church as compared with affiliating itself with the Serbian Orthodox Church.
The 1976 constitution in substance maintained the provisions of the 1964 constitution in relation to the relations between the Bishop, the Diocesan Council and the Diocesan Church National Assembly. Article 20 provided that the Bishop was responsible to the Diocesan Council for his work and the governing of the affairs of the Diocese and its institutions. In case of disagreement between the Diocesan Council and the Bishop the final decision was to lie with the Diocesan Church National Assembly. Articles 32 and 33 dealing with the Diocesan Council provided:
"Art. 32
The Diocesan Council is the main executive and controlling organ in the Diocese for external church-religious and church-educational matters.
Art. 33
The Diocesan Council, in addition to the Bishop, is composed [of] twelve regular members elected by the Diocesan Assembly for a period of three years, seven of whom are of the laity; five are the clergy (if this is possible), and six alternates; four of whom are of the laity and two of the clergy."
Hence the laity was to have majority representation on the Diocesan Council. Articles 23 and 24 dealing with the Diocesan Church National Assembly provided:
"Art. 23
The Church-National Assembly is the Supreme Legislative and Supervisory Body within the Diocese and represents the whole Free Serbians in Australia and New Zealand
Art. 24
The Diocesan Church-National Assembly is constituted of:
1. Delegates of the Church-school Congregations - two laymen with the president of the same Church-school Congregation, who is delegate ex officio. In case of his inability to attend, he shall be replaced by the vice-president of the Church-school Congregation.
2. All Serbian Orthodox clergymen of this Diocese; both orders.
3. The Diocesan Bishop.
4. All Serbian colonies who are without a church and priests but who have regular school operating under Diocesan jurisdiction have the right to two delegates, one of whom is obligatory the school teacher. The Federation of the Serbian Sisters' Circle have the right to two delegates.
5. All members of the Diocesan Plenum from Article 10 of this Constitution,
6. Representatives of the people at large and distinguished educators and friends of Orthodoxy and of our people's welfare are privileged to attend all Diocesan Assembly meetings, but without the right to vote."
Article 10 provided:
"Art. 10
The DIOCESIAN PLENUM is constituted of: Diocesian Council, Ecclesisastical Court, Supervisory Board, Diocesian Dispute Committee (Sud Casti), President and Secretary of the Federation of the Serbian Sisters Circles and the Editor of the 'Herald' (Eparhijski Vesnik). The PLENUM shall meet at the request of the Diocesian Council when there may be need for such a meeting, and on occasions when there are questions to be resolved by Plenum exclusively stipulated by this Constitution."
Article 50 provided that the Diocesan Ecclesiastical Court was comprised of the Bishop as its president and two regular members. They were to be appointed by the Bishop and could be relieved of duty by the Bishop. Article 51 provided that members of the Ecclesiastical Court could be clergy of both orders (that is, both monastic and parochial), but could not be related amongst themselves or with the Bishop. Article 61 provided that in certain matters, including the defrocking of priests, decisions were to be forwarded to what was called the "higher Church authority", namely the Ecclesiastical Court of the Diocese for America and Canada. Article 64 provided that if the Bishop disagreed with a decision of the Ecclesiastical Court as well as with decisions of some of the Diocesan committees or Diocesan Council, the matter in question should be forwarded to the Diocesan Plenum. It is not clear how this article would operate in tandem with Article 20 that provided in case of disagreement between the Bishop and the Diocesan Council the final decision would remain with the Church National Assembly. But the significant point is the departure of the Free ANZ Diocese from the principles of a hierarchical church in accordance with Orthodox Holy Tradition in relation to the position and authority of the Bishop.
Article 16 provided that in the case of "vacancy of [sic] widowhood of the Diocese" the Diocesan Council and the Ecclesiastical Court should manage the Diocese until the newly elected Bishop took over. A Church National Assembly was to be convened within six months to elect a new Bishop.
As with the 1964 constitution the Bishop was to be elected by the Church National Assembly from two or three candidates nominated by the Diocesan Council (Articles 16 and 17). The elected Bishop was to be ordained by two Orthodox Canonical Bishops having Apostolic succession.
Members of the Diocesan Council were to be elected by the Diocesan Assembly for a period of three years (Article 33).
As with Article 156 of the 1964 constitution Article 176 of the 1976 constitution provided that all real estate and personal property of monasteries, when they are provided, should be managed by the monastery's board under the direct supervision of the Diocesan Bishop. Article 22 provided:
"Art. 22
…
The Diocesan Bishop is at the same time the supreme supervisor of the Monastery when this is provided and erected. The Bishop appoints Abbots and carries canonic supervision as well as having the higher spiritual managing power over Monastery."
The 1976 constitution contained provisions for Church-school Congregations, who could or could not be members of Church-school Congregations and how the affairs of Church-school Congregations were to be managed. Article 103 provided that disagreements between the committee of a Church-school Congregation and the priest were to be submitted for consideration to the Diocesan Council (not the Bishop). The "Diocesan authorities" were empowered to annul decisions of a general meeting of a Church-school Congregation that overstepped the boundaries of its jurisdiction and intentionally prevented the execution of the directives of the Diocesan authorities (Article 110).
Article 134 provided that a parish priest was appointed by the Diocesan Bishop or could be selected by a Church-school Congregation if the appointment was confirmed by the Ecclesiastical Court. Article 138 provided that a Church-school Congregation had no right to dismiss a priest or to bring in another one without the knowledge and approval of the Diocesan Bishop. Article 139 provided that the priest could not resign his parochial duties without the consent of the Bishop and the knowledge of the Church-school Congregation. Article 143 provided that in the case of a dispute between the Church-school Congregation on the one hand and the priest on the other, or between the Church-school Congregation and a teacher or teachers, the subject of the dispute should be "submitted to the Diocesan Bishop, namely, the Diocesan Council, whose decision shall be considered as final." Similarly, Article 154 provided that disagreements between the priest and a teacher which could not be resolved between them were to be submitted to "the Diocesan Bishop, i.e. to the Diocesan Council for consideration and decision." The meaning of these articles seems to be that the dispute should be submitted to the Diocesan Bishop who in turn was to submit it to the Diocesan Council for decision.
The 1976 constitution provided that the constitution could be amended at the request of two-thirds of the Assembly.
Counsel for the first to fifth defendants submitted that the FSOC-ANZ Diocese could be characterised as a congregational, rather than a hierarchical, church. I think it would be more accurate to describe its governance as a form of presbyterianism where ultimate authority is vested in a council made up substantially of representatives of the congregations. But notwithstanding Article 2, the governance of the Free ANZ Diocese was not in accordance with Holy Tradition or holy canons according to the teaching of the Orthodox Church. This disconformity was later to play a significant role in disputes that emerged from at least 2007 when the first plaintiff, Bishop Irinej, attempted to bring the affairs of the Free ANZ Diocese wholly within his authority. It poses a particular problem in identifying what doctrines or principles of the Free ANZ Diocese should be regarded as fundamental. Was independence from the Serbian Orthodox Church and the ability to affiliate with and disaffiliate from other churches fundamental? Was the model of governance whereby the Bishop was subjected to the authority of the Diocesan Council and the Church National Assembly fundamental, or was adherence to the Holy Tradition as applied in Orthodox churches more important? Was it any part of the principles of the Free ANZ Diocese that it seek to become united with the Serbian Orthodox Church when the political climate changed?
[6]
Appeal for the Monastery Fund
In June 1972 suggestions were sought as to how the FSOC-ANZ diocese might buy a parcel of land and build on it a monastery, a home for the aged and a home for abandoned children.
On 9 December 1978 the Diocesan Council of the Free ANZ Diocese resolved to draft an appeal for the building of a monastery in Australia.
On 2 January 1979 Bishop Petar wrote to the church-school congregations urging the need for building a "Free Serbian Monastery". Bishop Petar wrote:
"The history of the Serbian people teaches us what Serbian monasteries did over the centuries in preserving the holy heritage of our forefathers. They were places of spiritual and nationalist activity for freedom-loving Serbs. They were the defenders of Orthodoxy, St. Savaism and holy Serbian traditions. They were the seats of Bishops, monks who became consecrated saints, educators, teachers, schools, spiritual and nationalist literature as well as homes for the aged and helpless. All nationalist, spiritual and welfare work was in the hands of the Serbian people through its holy church which centred around these monasteries. The idea of building a free Serbian monastery in this country is not outdated even in this 20th century of spiritual aimlessness. On the contrary, this idea is our nationalist and spiritual necessity, moreover it is the historical calling of our hearts and souls. Finding ourselves in this free and democratic country of Australia through no fault of our own which we have accepted, we have built our churches and halls and this is where we are raising our children. In this time of historical development of our Diocese, it has become imperative to have a Serbian monastery … We hope that the Serbian spirit of church-building, the spirit of our forefathers once again shines upon us and so leave a monument in this fine and friendly country, Australia … We will have a place where we can come, rest and quench our spiritual thirst. We will be happy on this small piece of 'Serbian soil' which we have through our own efforts and love secured."
On 3 February 1979 a meeting of the Diocesan Council of the FSOC-ANZ diocese and representatives of church-school congregations and national organisations discussed what was called the "all vital issue" of building a monastery. Approval was given for the collection of funds through the "St Sava Monastery (Missionary) Fund which would try to locate a property.
On 23 November 1979 Bishop Petar (described as Bishop-Administrator of the Free Serbian Orthodox Diocese for Australia and New Zealand) published an appeal for the raising of funds for the construction of a monastery. Five thousand copies of the appeal were sent out. He asked the parishes to assign diligent and capable members the task of collecting donations for the building of the monastery, diocesan centre, youth hostel and home for the aged. He stated that a place had been found which would be suitable to have a Serbian Orthodox monastery built on it.
In May 1979 Bishops Dionisije and Dimitrije both died. At the Sixth Sabor of the Free Serbian Orthodox Church ANZ Diocese held in Sydney in December 1979 Bishop Irinej from the American Diocese put to the Sabor a motion that Bishop Petar be installed as the official bishop for the diocese. The Sabor ratified that decision and Bishop Petar became the second bishop for the diocese for Australia and New Zealand. This was not the mode of election provided for by the 1976 constitution whereby the Church National Assembly (Sabor) was to elect a bishop from two or three candidates proposed by the Diocesan Council, but the appointment was nonetheless made by the Sabor.
The property at Wallaroo Road was purchased on 24 November 1980. The purchaser was "THE FREE SERBIAN ORTHODOX CHURCH DIOCESE FOR AUSTRALIA AND NEW ZEALAND, a body incorporated in the State of New South Wales". The FSOC-ANZ Diocese was not an incorporated body. But there is no question but that the property was acquired for the purposes of the FSOC-ANZ diocese. On 30 December 1981 the property was transferred to the Property Trust Company for nominal consideration.
The book called "Serbs in Australia" (which was admitted without objection as evidence of the facts referred to in it) stated that by 11 October 1980 almost $140,000 had been collected in donations. A bank loan for the balance of the moneys required to purchase the property was taken out.
In January 1981 the site of the monastery at Wallaroo Road, Wallaroo was blessed and dedicated to St Sava by Bishop Petar in the presence of, amongst others, Bishop Irinej from the Free Serbian Orthodox Church America-Canadian Diocese. A banquet was attended by over 5,000 people.
Mr Ilija Veselinovic was a member of the Diocesan Council of the FSOC-ANZ diocese. He deposed that although the Diocesan Council had some funds from donations raised over the previous years, those funds were not enough to purchase the land. The Diocesan Council resolved to raise further funds from the congregations to acquire the land. Mr Veselinovic received donations from many of the faithful from all around Australia to assist with the purchase of the land and the construction of the monastery. The FSOC-ANZ Diocese owned a house in Cabramatta which was used as the Bishop's residence. The diocese sold that house and put the moneys towards the purchase of the monastery property. (The property acquired included a residence that could be used as a residence for the Bishop as well as other facilities.) Mr Veselinovic deposed that by the end of 1981, after receiving many donations and after the sale of the Bishop's residence in Cabramatta, over $250,000 had been raised. There were additional donations of materials and labour.
Donations of money, labour and materials continued after the acquisition of the land and the commencement of construction of the monastery building. The donations continued to be received during the 1980s.
When the monastery property was purchased there were several buildings in existence, including a residence that was used as the bishop's residence, an incomplete hall and incomplete units for residents. Construction of the monastery church commenced in about 1984. The buildings constructed on the site (or which were already there), were the monastery church, a bishop's residence, a hall, some units, a dormitory, a dining-room/kitchen and another brick building whose use was not identified. There are extensive grounds which include tennis courts and a football field. Although the initial appeal in November 1979 sought donations for the projects of building the monastery, a diocesan centre, a youth hostel and a home for the aged, it does not appear that the land was used for the construction of a youth hostel or a home for the aged. The primary focus of the various appeals that were made to the faithful was for the provision of funds for the construction of a monastery and the discharge of debts which were incurred in connection with its acquisition and construction.
The buildings that were on the site on its acquisition were described as the monastery even before the construction of the monastery church. Thus, in "Serbs in Australia" it was reported that the Seventh Sabor for the diocese was held for the first time in the new monastery at the end of 1982. At that time voluntary workers were "putting up the roof of the monastery flats". In his report to the Sabor Bishop Petar stated:
"For two years now we have our Free Monastery … it requires much work and sacrifice in order that that which is not completed be completed. We need to build the monastery church which will be the pride and joy of all Serbs in the free world, particularly those in Australia … so let each one of us do his work, let us be good Orthodox Serbs who respect God's laws as they are unchangeable and eternal."
The cornerstone was blessed on 18 November 1984. In attendance was Prince Andrej and Princess Eva-Marie and Metropolitan Irinej and Bishops Basil and Petar, as well as nine priests. Metropolitan Irinej referred to the Serbian tradition of building churches and monasteries that were spiritual fortresses and a witness to future generations of the faith of those who built them.
Part of the funds used to acquire the land and construct the buildings and associated facilities that comprised the monastery came from existing diocesan funds, part from funds raised by church-school congregations, and part from individual donations from many people. Part of the contributions to the monastery were in the form of voluntary labour and part in the form of the provision of materials.
After the monastery church was built it was consecrated in January 1990. According to the work "Serbs in Australia" a further $400,000 was donated over the Consecration weekend, but there was still a debt of some $800,000 which included many items incurred for the consecration itself. In 1990 Archimandrite Sava issued a circular advising that there was still $350,000 of bank debt owed. The loan was paid off by the end of 1991.
The book "Serbs in Australia" records that during 1986 the monastery community increased in size with new residents, both men and women. The monastery was a community of some of the faithful as well as a church and related facilities. It is not clear how many of the community were monks or nuns. Bishop Irinej deposed that at first the monastery property was used as a monastery for monks and then for nuns. He said that in the Serbian Orthodox Church monasteries are not cloistered but are all-purposes places which people from outside the monastery can visit. Monks and nuns were re-installed in the monastery from around mid-2007, but there were none there by February 2013.
Thus, moneys were raised from 1980 to 1991 for the purposes of the acquisition of the land on which the monastery stands, for the construction of the monastery, and to repay debt which was incurred in connection with the monastery. Those donations were made for the purposes of the monastery of the FSOC-ANZ Diocese and facilities associated with it, as the FSOC-ANZ Diocese was constituted from time to time. That period spanned events described below, in particular, the formation of the Free Serbian Orthodox Church, 1985 resolutions of the Eighth Sabor, amendments to the 1976 constitution effected in 1988, and resolutions of the extraordinary Sabor on 22-23 June 1991 accepting the Reconciliation Proposal.
There being no trust instrument, the identification of the trust purpose depends on what the intentions were of those who contributed to the acquisition of the land and construction of the monastery and related facilities. Regard may also be had to the use to which the property was put from which the contributors' intentions can be deduced (Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641 at [149]-[151]).
In my view, the property was acquired by the Free ANZ Diocese and is now held by the Property Trust Company upon a trust for the purpose of building and conducting a monastery, a monastery church, and related facilities for the purposes of the Free ANZ Diocese. It was not acquired for the purposes of the Free ANZ Diocese generally, but for the more specific purpose of building the monastery buildings, including the church, conducting a monastery on the site and conducting church services in the church that was to be built. The monastery as a whole, including the church, was to be used for the purposes of the Free ANZ Diocese. It would be a breach of trust if the monastery were sold in order that the proceeds could be used for the purposes of the Diocese, but there is no suggestion that that is contemplated.
[7]
Changes in the Free Serbian Orthodox Church
During this period (1979 to 1991) there was a change to the structure of the wider Free Serbian Orthodox Church. By 1984 there were three dioceses calling themselves the Free Serbian Orthodox Church: one in America and Canada, one in Australia and New Zealand, and one for Western Europe including Britain. On 14 August 1984 an extraordinary Sabor was held in Illinois attended by delegates from each of the dioceses, including Australia. The delegation from Australia was headed by Bishop Petar in the company of a priest and three members of the Diocesan Plenum of the FSOC ANZ Diocese. The bishops and the delegates of the three dioceses unanimously proclaimed the formation of the Free Serbian Orthodox Church and accepted a constitution for that church. That constitution provided for the church to have a more hierarchical structure with less lay involvement.
Article 1 of the constitution provided:
"ARTICLE 1.
The Free Serbian Orthodox Church is unitary, indivisible and autonomous. It was established to preserve Serbian Orthodoxy in the Diaspora as it was confessed through the centuries by the autocephalous Serbian Orthodox Church in the Serbian Fatherland which presently is oppressed by a militantly atheistic communist regime. It publicly confesses its religious teachings, publicly performs its religious services, and independently controls and regulates its ecclesiastical-religious affairs and temporal affairs."
Article 5 provided:
"ARTICLE 5.
The structure of the Free Serbian Orthodox Church is: ecclesiastical-hierarchical and ecclesiastical-administrative."
Articles 7 and 18 provided in substance that the primate of the Free Serbian Orthodox Church was the Metropolitan who was to be selected by an Hierarchical Synod. The Synod was to be made up of the Bishops of the Free Diocese outside the Homeland. Article 19 provided:
"ARTICLE 19.
…
The Hierarchical Synod is the supreme administrative, supervisory, judicial and executive authority of the Church-national sabor of the F.S.O.C."
Article 22 provided that the duties of the Hierarchical Synod included:
"ARTICLE 22.
…
5. [maintaining] an official list of candidates for the rank of bishop and [concerning] itself with the education and preparation of these candidates and [taking] care of the selection of bishops;
6. [assisting] the diocesan hierarchs in the performance of their duties;
7. [maintaining] supervision over dioceses without a bishop and [appointing] administrators.
…
10. [maintaining] supervision over the work of the diocesan bishop.
…
23. In the second and last level of jurisdiction:
a. [mitigating] the judgments of the High Ecclesiastical Court on the proposal of the authoritative bishop prior to their being carried out: in cases of lifetime prohibition against priestly-action, and deprivation of priestly rank with and without exclusion from the church community and disciplinary punishments of teaching personnel in seminaries."
Article 23 provided for the establishment of a High Ecclesiastical Court of the Free Serbian Orthodox Church. The High Ecclesiastical Court was to be composed of two diocesan bishops, four members and a "referent". The members and the referent were to be selected by the Hierarchical Synod. They were to be chosen from persons with higher theological training who had spent a minimum of 10 years in church service. The High Ecclesiastical Court could examine, approve, change or annul decisions and verdicts of Diocesan church courts of stipulated kinds including the annulment of marriage and the deprivation of priestly rank or the final expulsion of lay people from the church community.
Articles 15, 16 and 17 provided for the establishment of a joint Church-National Sabor that was described as being the "supreme ecclesiastical-legislative authority". The Sabor was to be composed of:
"1. Diocesan hierarchs of the free dioceses.
2. Ten (10) delegates from each diocese of which five (5) are priests and five (5) are lay people who are selected by the Church-national sabor of the respective diocese from its midst."
The functions and duties of the Church-National Sabor did not include the supervision of the work of Diocesan Bishops or resolving any dispute that a bishop might have with the Hierarchical Synod. The duties of the Church-National Sabor were described in Article 17 as follows:
"ARTICLE 17.
The Church-national sabor of the Free Serbian Orthodox Church has the following duties, to:
1. Defend the church order of the F.S.O.C.;
2. Guard and advance the Orthodox faith, Serbian tradition and customs;
3. Establish institutions and schools for the production of church paintings, church adornments and religious books;
4. Establish church museums or depositories for the preservation of relics and commemorative issues, as well as church libraries;
5. Make decisions regarding the maintenance of the F.S.O.C.; and
6. Perform all remaining business which pertains to its authority according to this Constitution."
Article 33 provided:
"ARTICLE 33.
This Constitution was adopted at the Church-national sabor of the Free Serbian Orthodox Church on August 10, 1984, and becomes effective when it is accepted by the Church-national sabors of all three dioceses."
If implemented at diocesan level the constitution of the Free Serbian Orthodox Church would have effected important changes to the governance of the Free ANZ Diocese. Instead of being responsible to the Diocesan Council and the Diocesan Church National Assembly the Bishop would be subject to the supervision of the Hierarchical Synod consisting of bishops of the other dioceses. The Hierarchical Synod would be responsible for maintaining a list of candidates for the rank of bishop and would "take care of" the selection of the bishop. Under the 1964 and 1976 constitutions of the Free ANZ Diocese the nomination and election of the bishop was the responsibility of the Diocesan Council and the Church National Assembly. The "joint Church-National Sabor" of the Free Serbian Orthodox Church would have a majority of clerical, rather than lay, representation. The Hierarchical Synod would maintain supervision over dioceses without a bishop and could appoint administrators. Under the 1976 constitution, there was no power to appoint an administrator and the affairs of the diocese were to be administered by the Diocesan Council and the Ecclesiastical Court until a new bishop was elected.
The first to fifth defendants submit that the Free Serbian Orthodox Church was a new religious association consisting of the three existing dioceses, but its establishment did not alter the continuing constitution of the Free ANZ Diocese or change the nature or the fundamental tenets of the Free ANZ Diocese. They submitted that the Free Church did not absorb the Free ANZ Diocese into an hierarchical church such that the congregational (or presbyterian) elements of the Free ANZ Diocese were to be ignored.
The correctness of this submission depends upon whether and how the Free ANZ Diocese submitted itself to the 1984 constitution of the Free Serbian Orthodox Church.
The Eighth General Assembly of the Free ANZ Diocese was held between 28 and 30 December 1985. The journal of the church, the Diocesan Messenger, reported that:
"The Eighth General Assembly … has unanimously accepted the constitution of the Free Serbian Orthodox Church, and ratified the Metropolitanate.
Over one hundred delegates from among the clergy and laity of the church-school congregations and members of national organisations and the Diocesan Plenum, met on 28, 29 and 30 December 1985, for this extremely important General Assembly.
…
The first major issue placed before the Assembly was the constitution of the Free Serbian Orthodox Church. His Eminence Metropolitan Iriney explained in great depth, the background, essence and meaning of the Metropolitanate. Without hesitancy or debate, the Assembly unanimously ratified the constitution of the Free Serbian Orthodox Church and the Metropolitanate. The delegates were especially pleased with the formation of the Holy Synod of Bishops and the Supreme Ecclesiastical Court.
…"
The resolutions passed at that Assembly included:
"3. that: the Constitution of our Free Serbian Orthodox Diocese of Australia and New Zealand remains unchanged.
4. that: the Free Serbian Orthodox Diocese of Australia and New Zealand is an integral part of the Free Serbian Orthodox Church and through its Diocesan bodies and elected delegates partakes in the work of that Church.
5. that: our relationship with the Serbian Orthodox Church in the enslaved homeland, will be normalized at such time as the communist regime is replaced by a free and democratic system that will not aim to destroy the Serbian Orthodox Faith.
…
7. We salute the establishment of the Supreme Ecclesiastical Court and the Holy Synod.
…"
It is curious to say the least that the Eighth Assembly both accepted the constitution of the Free Serbian Orthodox Church and the institutions provided for in it and resolved not to change the constitution of the FSOC-ANZ. The two were incompatible.
I do not consider that the unanimous resolution of the Eighth National Assembly held on 28, 28 and 30 December 1985 to "ratify" the constitution of the Free Serbian Orthodox Church and the Metropolitanate effected an amendment to the terms of the 1976 constitution, or an implied repeal of those provisions of the 1976 constitution that were inconsistent with the 1984 constitution of the Free Serbian Orthodox Church. The additional resolution that the constitution of the Free ANZ Diocese remained unchanged would be inconsistent with that conclusion. The two resolutions were incompatible, but I accept the submission for the first to fifth defendants that by its resolution to ratify the constitution of the Free Serbian Orthodox Church and the Metropolitanate, the Free ANZ Diocese affiliated with the Free Dioceses of the United States and Canada and of Western Europe, but that the extent to which the terms of the constitution of the Free Church had effect in the governance of the Free ANZ Diocese depended on the goodwill of its members.
Nonetheless, in practice the institutions provided for by the 1984 constitution of the Free Serbian Orthodox Church and their authority over the affairs of the Free ANZ Diocese were accepted notwithstanding the resolution that the constitution not be changed.
[8]
1988 Constitution
The Ninth Church National Assembly of the FSOC-ANZ Diocese was held at the monastery in December 1988. Bishop Petar (or Peter) had died on 10 November 1988. The Diocese had become a "spiritual widow". Metropolitan Irinej became its administrator. According to "Serbs in Australia", he took that role on himself . He appointed as his deputy Archimandrite Sava, Abbott of St Mark's Monastery, USA. This was not in accordance with the 1976 constitution, but was consistent with the powers conferred on the Hierarchical Synod under the 1984 constitution of the FSOC. There was no opposition to Metropolitan Irinej's assumption of such powers.
The Ninth General Assembly resolved to make certain amendments to the constitution of the Free ANZ Diocese. The extent of those amendments is a matter of dispute. The first to fifth defendants say that the amendments to the 1976 constitution passed by the Church National Assembly of the Free ANZ Diocese on 28 December 1988 were limited to Articles 1, 4, 6 and 8. The plaintiffs and the Attorney-General submit that the amendments went far wider and were made to accommodate the terms of the constitution of the Free Serbian Orthodox Church and the resolution passed in 1985 by the Eighth Assembly to ratify that constitution and for the Free ANZ Diocese to be an integral part of the Free Serbian Orthodox Church.
The minutes of the Assembly include the following:
"The resolution of the Ninth (9th) Church National Assembly was moved by Rev. Fr. Dragomir Sipovac. This was accepted unanimously.
CHANGES AND AMENDMENTS TO THE CONSTITUTION: Fr. Dragan Saracevic explained that changes and amendments to the Constitution are firstly and exclusively intended for the spiritual-practical reasons. Therefore, changes in the FIRST and FOURTH Article refer to the creation of the Free Serbian Orthodox Church and the relationship of our Diocese within it.
Article 8 refers to the question of our Coat of Arms, which should be as is in America. CARRIED.
Also, it was envisaged that each Church-School congregation should elect their delegates to attend the Assembly meetings. CARRIED.
That the Constitution of this Diocese be amended so that the Diocesan Council of this Assembly should choose delegates to represent our diocese at joint meetings of all three of our dioceses. CARRIED.
Question of the language: so far the languages used in this diocese were English and Serbian. Now we need to add that the church language be Old Church Slavonic be added to Serbian and English. CARRIED.
Mr Nesic asked should Church-School congregations change their By-laws? The Metropolitan responded by stating that we should only make the necessary amendments and lodge the changes with the local state departments.
Slobodan Jankovic moved that the suggested changes and amendments to the Constitution be adopted, seconded by Ilija Drakulic. CARRIED."
Article 1, after the amendments made on 28 December 1988, provided:
"Art. 1
The Free Serbian Orthodox Church - Diocese for Australia and New Zealand is a religious community of Orthodox Serbs joined in Serbian Orthodox Church-school Congregations.
She is an integral part of THE FREE SERBIAN ORTHODOX CHURCH and enjoys all the ensuing benefits.
She professes her religious creed and delivers her Divine worship publicly and independently governs and regulates religious and church affairs.
Members of the Free Serbian Orthodox Church - Diocese for Australia and New Zealand believe in One Holy, Ecumenical and Apostolic Church and worship Holy Orthodoxy handed down to them from St Sava and their ancestors."
A document was prepared that purports to have been published by the Free ANZ Diocese and describes itself as a constitution adopted on 31 October 1964 as amended on 30 December 1976 and 28 December 1988. Bishop Irinej, deposed that this version of the constitution was kept in the records of the FSOC-ANZ Diocese. In oral evidence Bishop Irinej said that he had been given a copy of that document by the son of Father Sipovac who told him that he had extracted the constitution from the archives of his late father who had been the secretary to the 1988 Assembly. However, Bishop Irinej said that when he was in Belgrade before coming to Australia he was given a copy of the 1976 constitution and was informed that it was that constitution which governed the church in Australia and New Zealand.
The differences between the 1976 constitution and what is claimed to be the 1988 constitution are significant. The former Article 4 was not included. Instead a new Article 4 provided:
"Art. 4
This Free Orthodox Diocese for Australia and New Zealand independently governs freely manages Diocesan assets, church funds and endowments within this Constitution and within the state laws. The Diocese controls independently her income and expenditures and her assets serve exclusively the goals of the church and cannot be used for other purposes."
Article 9 of what is called the 1988 constitution provides that:
"Art. 9
Church spiritual, ecclesiastical-disciplinary and ecclesiastical-juridical authority of the Free Serbian Orthodox Church in Australia and New Zealand belong exclusively to the hierarchy which exercises that authority through its church hierarchical representatives and organs.
Second tier authority belongs to the High Ecclesiastical Court and The Holy Synod of Bishops of the Free Serbian Orthodox Church.
In the Free Serbian Orthodox Diocese for Australia and New Zealand the church hierarchical authorities and organs are as follows:
(1) Diocesan Bishop
(2) Diocesan Ecclesiastical Court
(3) Bishop's Deputy
(4) Bishop's Vicar, Parish priests, Monastery Superior and the Brotherhood or the Sisterhood of the Monasteries".
Article 12 provides:
"Art. 12
Every organ and church committee in the Diocese is subordinated in all executive matters directly to the higher executive organs of the Diocese."
Article 15 provides:
"Art. 15
The Diocesan bishop has full hierarchical authority in matters of faith, morals, clerical officiation and archpastoral work in his Diocese. Together with the clergy and the faithful he administers and guides the entire internal and external life of the Diocese."
Article 17 provides:
"Art. 17
The Bishop of the Free Serbian Orthodox Church for Australia and New Zealand is elected by the Church National Assembly from the list of the Holy Synod of Bishops of the Free Serbian Orthodox Church and ordained by at least two canonical Orthodox Bishops."
Article 18 provides:
"Art. 18
Candidates for Bishop must
fulfil canonical-legal requirements provided for the position of Bishop in the Orthodox Church.
have the required theological education and be of Serbian descent;
show by their diligent church work, and by their exemplary life and work, that they have earned the respect and demonstrated the ability to merit the position of Bishop"
Article 18 is of particular significance because Bishop Ambrose of the OCOCG-HSIR, whom the first to fifth defendants contend has been appointed Bishop of the Free ANZ Diocese, is not of Serbian descent.
Article 23 provides that the Church National Assembly is the supreme legislative and supervisory body within the diocese. Article 14 provides that:
"Art. 14
The Church National assembly will decide, in agreement with the Holy Synod of Bishops, on all matters of the organization of the Diocese and its organs and bodies. The Diocesan church authorities will decide on all matters which pertain to their jurisdiction. Against their decision there can be no protection and intervention cannot be sought of the civil authorities, except if same are contrary to the Australian and New Zealand Laws and By-laws or transcend the official jurisdiction stipulated by this Constitution."
Article 31 provides that the Diocesan Assembly would perform the function of amongst other things, electing the Diocesan bishop from a list submitted by the Holy Synod of Bishops of the Free Serbian Orthodox Church, not from a list provided by the Diocesan Council as provided for in the 1976 constitution. The 1988 constitution does not provide for the bishop to be responsible to the Diocesan Council. Nor does it provide for the Church National Assembly to resolve disputes that might arise between the bishop and the Diocesan Council. The role of the Diocesan Council was described as being the main executive and controlling organ in the Diocese for external church-religious and church-educational matters (Article 32). Its role was to include seeing that the church-school congregations, monasteries and "all its organs" perform their duties correctly and conscientiously and to present to the Church National Assembly the list of candidates received from the Holy Synod of Bishops of the Free Serbian Orthodox Church for the election of bishop. All decisions pertaining to the unfrocking of priests or matters of marriage divorce were to be forwarded to the Ecclesiastical Court of the Free Serbian Orthodox Church (Article 61).
To what extent was this document adopted as a new constitution by the Ninth Church National Assembly?
In 2004 there was litigation between Father Saracevic and members of the church-school congregation of St. Nicholas, Blacktown. Father Saracevic challenged a purported resolution of the Church-school Congregation to remove him as priest of the Blacktown parish. In those proceedings Father Saracevic deposed that the Ninth National Assembly had decided to ratify the decision made by the Diocesan Council representatives in Chicago in 1984 to form the one worldwide Free Serbian Orthodox Church under the ultimate control of Metropolitan Irinej. He deposed that amendments were made to the constitution of the FSOC-ANZ Diocese to reflect the decision of the Eighth National Assembly that the Diocese become part of the Free Serbian Orthodox Church. He exhibited to his affidavit sworn in the 2004 proceedings a copy of what he said was the amended constitution (in Serbian) that had been adopted at the Ninth National Assembly. The constitution so exhibited was the document described as the 1988 constitution.
Confusingly, in an earlier affidavit in the 2004 proceedings, Father Saracevic had exhibited the 1976 constitution which he described as the constitution of the Free Serbian Orthodox Church, that is, the FSOC-ANZ Diocese. In his later affidavit sworn in those proceedings he deposed, wrongly, that other than for some minor changes, the constitution as amended, was identical to the constitution that was exhibited to his first affidavit.
In these proceedings Father Saracevic deposed that he had been appointed as chairman of a constitutional committee for the 1988 Sabor. He deposed that Metropolitan Irinej brought with him from America a proposed constitution. This was the document that Father Saracevic had exhibited to his affidavit of 8 October 2004 which he previously said had been adopted at the Ninth National Assembly. In his affidavit in these proceedings Father Saracevic deposed that he made a copy of the document and provided the copy to a Mr Gavrilo Bulic (since deceased) who was a senior member of the Diocesan Council and president of the National Serbian Defence Council. According to Father Saracevic Mr Bulic told him that there were fundamental objections to the proposed changes to clause 4 of the constitution. He deposed that at a later meeting with Metropolitan Irinej and other prominent members of the church it was agreed that the only amendments that would be put forward to the Assembly would be to Article 1, the deletion of the first sentence of Article 4 of the 1976 constitution (which would be covered by the new Article 1) and Article 8. He deposed that the proposed constitution that Metropolitan Irinej had brought was not otherwise distributed and at the Sabor he proposed that Article 1 be changed and the new Article 1 as set out above be adopted, and that the first sentence of the existing Article 4 be deleted because the new Article 1 provided an explanation about the new organisation. He also proposed an amendment to Article 8 for a change to the coat of arms. According to Father Saracevic these were the only amendments debated and voted on at the general assembly. If this evidence is accepted then I would conclude that only the first sentence of Article 4 of the 1976 constitution was deleted.
Mr Nesic attended that Sabor. He recalled that on the first day a constitutional committee was established that included Father Saracevic and on the second day Father Saracevic told the Sabor that there were a few things that needed to be changed only for spiritual reasons and went through those proposed changes. Mr Nesic understood that the changes were because the three dioceses of the Free Serbian Orthodox Church had agreed to combine spiritually into the Free Serbian Orthodox Church and needed to make provision for the election of delegates to any combined Church National Assembly. He did not receive any notice for the changing of the constitution and it was not on the agenda. No text of proposed changes was provided.
Bishop Sava deposed that:
"I … was presented by Metropolitanate Irinej as his deputy and Administrator of the FSO Diocese in Australia and New Zealand at the Church National Assembly for the FSO Diocese on 28 and 29 December 1988 where I was formally accepted in this position by the Church National Assembly. … At the same Church National Assembly meeting, the Church National Assembly resolved to amend the FSO Dioceses constitution, which is reflected in the minutes of meeting … . The 1988 version of the FSO Constitution, found at Tab 6 of the Plaintiff's Bundle of Documents is the Constitution that I used to administer the Diocese … whilst I was the Bishop's Deputy and whilst I was Bishop of the FSO Diocese."
The constitution to which Bishop Sava referred was the 1988 constitution. In answer to questions from counsel for the Attorney-General Bishop Sava said that he was aware when he administered the Diocese that two articles of that document formed part of the constitution by which he administered the Diocese. Those were Articles 17 and 18 that provided for the Bishop to be elected by the Church National Assembly from a list provided by the Holy Synod of Bishops of the Free Serbian Orthodox Church and that the Bishop not only have required theological education but be of Serbian descent. But in oral evidence Bishop Sava also said that those articles were not passed at the Ninth National Assembly.
In cross-examination by counsel for the first to fifth defendants Bishop Sava readily accepted that the only amendments made to the 1976 constitution were to articles 1, 4, 6 and 8 (the amendment to article 6 was to add old church Slavonic to Serbian and English as church languages). He also said that although he believed that he administered the diocese in accordance with the 1988 constitution, he did not compare the version of the 1988 constitution that was tendered in these proceedings with the 1976 constitution and the 1988 constitution to which he referred was a document provided to him in the course of preparing his affidavit. He said that the only differences of which he was aware were "these few amendments that were changed dealing with the new name of the coat of arms and so on and so forth." He was not aware that other articles may have been changed.
The Attorney-General submitted that little weight could be placed on the concessions made by Bishop Sava in cross-examination on this question and that he was not taken to the whole of the text of the minutes recording amendments when he conceded the limited scope of the amendments. Counsel submitted that it was not possible to place a great deal of weight on Bishop Sava's oral evidence on this issue either way as to the extent of the amendments. The Attorney-General submitted that the 1988 amendments were proposed in order to give effect to the 1984 constitution of the Free Serbian Orthodox Church. The amendments recorded in the version of the purported 1988 constitution were entirely consistent with this being the purpose of the amendments. The amendments were needed to bring the Free ANZ Diocese within the Free Serbian Orthodox Church hierarchy in a way that was consistent with the 1984 constitution of the Free Serbian Orthodox Church, or at least less inconsistent than the 1976 constitution.
Whilst I accept that the amendments contained in the document described as the 1988 constitution were required to make the constitution of the FSOC-ANZ Diocese less inconsistent with the 1984 constitution of the Free Serbian Orthodox Church, I do not accept that the wider amendments were made. The minutes record the proposed changes and amendments to the constitution as being the 22nd item of business. It does not appear to have played any prominent part in the debates and resolutions on the second day of the assembly. The relevant resolution as recorded in the minutes was that the "suggested changes and amendments to the constitution be adopted." The only suggested changes and amendments referred to in the minutes were to the first and fourth articles of the constitution, to the articles relating to the coat of arms, to an amendment to provide for the Diocesan Council to choose delegates to represent the Diocese at an assembly of the three dioceses of the Free Serbian Orthodox Church, the adoption of an additional church language, and the election by each church-school congregation of their delegates to attend the assembly meetings. It is inconceivable that if the far-reaching changes in governance that were contained in the document called a 1988 constitution were proposed that the amendments would not have been the subject of vigorous debate. I also accept Mr Nesic's evidence, which is consistent with Fr Saracevic's evidence, that the proposed text of the 1988 constitution was not distributed to delegates. Relevantly to the present case, the amendments to the 1976 constitution were to Article 1 and the deletion of the first sentence of Article 4 of the 1976 constitution.
Whilst this conclusion is inconsistent with the evidence given by Father Saracevic in his affidavit in the 2004 proceedings, it appears from that affidavit that the suggested changes between the 1976 and 1988 constitutions that are significant in the present case may not have been significant in the 2004 proceedings. In any event, Father Saracevic gave a different account in the present case which is consistent with the objective probabilities.
Counsel for the Attorney-General also submitted that subsequent events suggested that there had been further amendments to the 1976 constitution and that the constitution as set out in the document called the 1988 constitution had been adopted by the Ninth General Assembly in December 1988. The FSOC-ANZ Diocese was in fact administered as if it were subject to the hierarchy of the Free Serbian Orthodox Church. Metropolitan Irinej, acting through his deputy Archimandrite Sava for the most part, acted as administrator of the Diocese as provided for in Article 22(7) of the 1984 constitution of the Free Serbian Orthodox Church, whereas article 16 of the 1976 constitution provided for diocesan affairs to be managed by the Diocesan Council and the Ecclesiastical Court until a newly elected bishop took over. A new bishop was to be elected within six months.
It was three years before a new bishop was appointed to the FSOC-ANZ Diocese. Archimandrite Sava administered the diocese as deputy to Metropolitan Irinej. The monastery building was completed in January 1990 and consecrated by Metropolitan Irinej who was assisted by Bishop Vasilje of the Western European Diocese of the Free Serbian Orthodox Church. At the consecration Metropolitan Irinej referred to the possibility of forthcoming reconciliation talks and said that any agreement reached would require approval by the diocesan assemblies.
On 23 March 1991 the Holy Synod of Bishops of the Free Serbian Orthodox Church meeting in Illinois elected Bishop Vasilje (formerly Bishop of the Western European Diocese) to be the new bishop for the Free ANZ Diocese. Metropolitan Irinej, Bishop Vasilje and Bishop Damaskin (the new bishop for Western Europe) announced the decision of the Holy Synod and the enthronement of Bishop Vasilje stating that the decision "must be executed in due course". That appointment was not made in accordance with the 1976 constitution. Nor would it have been in accordance with the 1988 constitution if that constitution had been adopted.
I do not conclude from these events that the 1976 constitution was amended in 1988 more widely than indicated above. It is a mistake to assume that what was done was done in accordance with the constitution and to reason that it is therefore probable that the constitution was amended. As later events are to show the affairs of the Free ANZ Diocese were conducted in many respects without regard to the terms of the constitution, for the most part without complaint.
[9]
Trust Purpose and Consensual Compact
At para [82] above I have held that the monastery is held on trust for the purpose of building the monastery buildings, including the church, conducting a monastery on the site and conducting church services in the church that was to be built. The monastery and church were to be used for the purposes of the Free ANZ Diocese.
This means that the monastery property, and in particular the church constructed on it, must be used only in a way which is consistent with the fundamental or essential doctrines and principles of the Free ANZ Diocese. (Craigdallie v Aikman (1813) 1 Dow 1 at 15-17; 3 ER 601 at 606; Craigdallie v Aikman (No. 2) (1820) 2 Bli 529 at 541-544; 4 ER 435 at 439-441; Attorney-General v Pearson (1817) 3 Mer 353 at 400-402; 36 ER 135 at 150; Milligan v Mitchell (1837) 3 My & Cr 72 at 83; 40 ER 852 at 856; Attorney-General v Gould (1860) 28 Beav 485 at 495, 501; 54 ER 452 at 456, 458-459; General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515; Wylde v Attorney-General (NSW); ex rel Ashelford (1948) 78 CLR 224 at 275, 294-5, 309; Radmanovich v Nedeljkovic at [155]-[164]; Mr Justice McPherson "The Church as Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159 at 167-169).
The plaintiffs submitted that while the Diocesan Constitution, in any of its versions, was a foundation document recording the basis upon which the members of the diocese had associated, it was not a trust instrument prescribing the terms of the trust. Counsel for the plaintiffs submitted that the constitution afforded evidence of the purposes of the trust to be afforded by the founders' intentions, but was not to be treated as though it were a written prescription of the trust and to the extent to which the document governed use of the trust property not every provision would be binding, it being necessary to distinguish between what is essential and what is not essential. Counsel for the defendants submitted that church constitutions and rules ordinarily form terms of the trusts upon which the church's property is held, citing Daugars v Rivaz (1860) 28 Beav 233 at 250; 54 ER 355 at 362. Nothing in Daugars v Rivaz, either in the page cited or otherwise, bears on this question. I accept the plaintiffs' submissions that the terms of the constitution of the Free ANZ Diocese is not to be treated as a "written prescription of the trust". However, to the extent the constitution evidences the essential or fundamental principles or doctrines of the Free ANZ Diocese, it is evidence of the purposes of the trust in the same way as other evidence of the founders' intentions.
The constitution is also relevant for another purpose. For at least the early years of the Free ANZ Diocese it contains the terms of the "consensual compact" between the members of the unincorporated association known as the FSOC-ANZ Diocese (Macqueen v Frackelton (1909) 8 CLR 673 at 679 per Griffith CJ, 696-697 per O'Connor J, 704-705 per Isaacs J; Long v Bishop of Cape Town (1863) 1 Moo PC (NS) 411 at 461; 15 ER 756 at 774). The members of the church must be taken to have assented to the terms of the constitution adopted in 1964 and 1976 and modified in 1988. This is subject to the qualification suggested by counsel for the Attorney-General. The Attorney-General accepted that the constitution has the force at law of a contract or consensual compact between the members of the unincorporated association, and may usually only be amended according to the provisions in the constitution regarding amendment or otherwise by agreement of all members of the Diocese (Harington v Sendall [1903] 1 Ch 921; Radmanovich v Nedeljkovic at [204]). But counsel also submitted that:
"Where an unincorporated association adopts practices which are inconsistent with the provisions of their rules or constitution, especially where those practices are adopted over an extended period, those practices may become part of the terms and conditions of the rules governing the association."
I accept this submission.
In Lewis v Heffer [1978] 1 WLR 1061 Lord Dening MR said (at 1072) speaking of a branch of a political party that:
"In a body like this, rules are constantly being added to, or supplemented by, practice or usage: and, once accepted, become as effective as if actually written."
Ormrod LJ said (at 1076) that:
"Where there is an established and well-known and unquestioned practice in use in the association it is some evidence, and indeed it may be strong evidence, that this practice too is part of the terms and conditions which are accepted by persons joining the association. … it must require an extraordinarily strong and clear case to justify the court in holding a well-established practice like this to be unconstitutional or ultra vires, more particularly where the organisation concerned is a voluntary, unincorporated and essentially informal body."
In Burton v Murphy [1983] 2 Qd R 321 the Full Court of the Supreme Court of Queensland dealt with a dispute between the National Executive of the Australian Labor Party and its Queensland branch. Both organisations were unincorporated associations, or the members of the Queensland body were also members of the larger unincorporated association known as the Australian Labor Party. The Court held that decisions taken at the national level of the Australian Labor Party were binding on the Queensland branch even though the national rules had not been adopted by the Queensland branch. W B Campbell J held (at 340, 349-350) that a person, upon becoming a member of the Queensland branch, agreed to be subject not only to the rules made by that body but also the rules made by the national body because for approximately 50 years the members and officers of the Queensland body had accepted that the national rules regulated the affairs of the Queensland body. There was no need for the national rules to be formally adopted by the Queensland body before they governed the affairs of the members of the Queensland body.
In Macqueen v Frackelton Isaacs J said (at 705) that a contract between members of an unincorporated association may take various forms and that there may, with the express written word of a constitution, be incorporated usages or unwritten practices.
There are limits on the extent to which amendments to the contract or consensual compact that bound the members of the unincorporated association that formed the Free ANZ Diocese could affect the trusts on which church property is held. Once the purposes of a charitable trust are laid down (whether by express declaration or by evidence of the founders' purposes) the trust property must be applied for those purposes unless a power to vary the purposes is inherent in the statement of purposes, either expressly or by implication. In Radmanovich v Nedeljkovic Young CJ in Eq said (at [152]):
"However, unless there is provision in the trusts as laid down by the founders' intention for development in the sense of development within a living church or amendment or change by resolution of a particular majority or a unanimous resolution, then it is not open to the members for the time being even over a long period of time to change the trusts. Accordingly, if one finds that the founders' intention was to have a church which was completely free from any control by the Pope, yet otherwise accepted the doctrine and tenets of the Church of Rome, there might well be a valid charitable trust to that end but even if there had been evidence of 30 to 50 years recent practice whereby the hierarchy in Rome in fact appointed priests and otherwise controlled the Church that would not be enough to displace the original trust. These principles are deduced from cases such as Craigdallie v Aikman (1813) 1 Dow 1, 16; 3 ER 601, 606 (subsequent proceedings (1820) 2 Bligh 529; 4 ER 435); Foley v Wontner (1820) 2 Jac & W 245; 37 ER 621."
In General Assembly of Free Church of Scotland v Lord Overtoun the House of Lords held that where property was held on trust for the maintenance and support of the Free Church of Scotland, it could not be applied for the purposes of a new church arising out of a union between the Free Church of Scotland and the United Presbyterian Church where the union involved a departure from essential or fundamental doctrines of the Free Church at the time the trusts arose. In Attorney-General (NSW) v Grant (1976) 135 CLR 587 Gibbs J (with whom Mason, Stephen and Jacobs JJ agreed) observed (at 602) that in General Assembly of Free Church of Scotland v Lord Overtoun, Lord Davey had accepted that there could be a qualification to that principle if the doctrines of the church included a power to vary even fundamental doctrines or principles. In deciding that the Presbyterian Church of Australia in New South Wales had power to enter into a union with the Methodist Church of Australasia and the Congregational Union of Australia that would mean that the property of the Presbyterian Church would be held for the purposes of the new Uniting Church, Gibbs J said (at 603):
"It is clear in the light of the decision in General Assembly of Free Church of Scotland v Lord Overtoun that if the basis on which the members of the Presbyterian Church of Australia are associated contains a power to enter into union with other churches, and for that purpose to alter or modify the doctrines of the church, including fundamental doctrines, and the Presbyterian Church of Australia in pursuance of that power does alter or modify its doctrines and enter into a union, existing trusts in favour of the Presbyterian Church of Australia will enure in favour of the new united church. On the other hand, a mere power to enter into union will not in itself give power to effect an alteration of fundamental doctrine."
It follows in my view that even if the contract or consensual compact between members of the unincorporated association that was the Free ANZ Diocese were varied from the terms expressed in its constitution by the adoption of practices that were inconsistent with the constitution over a number of years without formal amendment, nonetheless, such a variation would not affect the trusts on which the monastery property is held if the variation were of a fundamental or essential doctrine or principle. I have found that the trust purpose was that the monastery be used for the purposes of the Free ANZ Diocese as it was constituted from time to time (at para [80]). But even a formal variation of the constitution, or its abrogation, that departs from a fundamental or essential aspect of doctrine or principle will be ineffective to vary the terms of the trust, unless the basis of association of the members of the voluntary association that made up the Free ANZ Diocese included such a power. The 1976 constitution contained no such power.
[10]
Reconciliation Proposal
In December 1990 Patriarch Pavle was elected Patriarch of the Serbian Orthodox Church and announced his goal of achieving reconciliation in the diaspora. He invited the Free Church to name a delegation for talks in Belgrade.
In April 1991 Metropolitan Irinej with the bishops and other clergy of the Free Church, including Archimandrite Sava, met with the Serbian Patriarchate in Belgrade where a Reconciliation Proposal was agreed upon.
The Reconciliation Proposal included a Preamble that stated that a division in the Serbian Orthodox Church outside Yugoslavia had existed since 1963, and that one part of the Church outside Yugoslavia had remained under the jurisdiction of the Holy Hierarchical Assembly of the Serbian Orthodox Church in Belgrade and the other part of the Church outside Yugoslavia organised the Free Serbian Orthodox Church having three dioceses. This Preamble was a statement that the Free Serbian Orthodox Church was a part of the Serbian Orthodox Church, although divided from it.
Article I of the Reconciliation Proposal provided that the Free Serbian Orthodox Church agreed to accept the jurisdiction of the Serbian Orthodox Patriarchate. Article I stated that the Proposal defined the canonical, juridical and administrative status of the Free Serbian Orthodox Church within the structure of the Serbian Orthodox Patriarchate and fully defined the extent and manifestation of the Serbian Orthodox Patriarchate's jurisdiction.
By Section 2 of Article I the Free Serbian Orthodox Church agreed to change its name to the Serbian Orthodox Metropolitanate of New Gracanica (the "New Gracanica Metropolitanate" or "NGM").
Article II provided that the Serbian Orthodox Patriarchate acknowledged the validity of the Episcopal consecrations of Bishops Dimitrije and Petar and of Bishops Vasilje and Damaskin. They were counted amongst the hierarchs of the Serbian Orthodox Patriarchate. Article II also provided that the Serbian Orthodox Patriarchate acknowledged the validity of the "sacerdotal officiation" since 10 May 1963 of Bishop Dionisije, Metropolitan Irinej, Bishop Dimitrije, Bishop Petar, Bishop Vasilje and Bishop Damaskin.
Section 3 of Article II provided that the Serbian Orthodox Patriarchate agreed that the New Gracanica Metropolitanate could maintain its present hierarchichal organisation with certain exceptions. The exceptions included that the hierarchs of the New Gracanica Metropolitanate should recognise the Patriarch as the first hierarch of the Serbian Orthodox Church, should elevate the name of the Patriarch during services and that new diocesan bishops of the New Gracanica Metropolitanate should be elected by the Holy Hierarchical Assembly of the Serbian Orthodox Patriarchate from amongst the candidates submitted by the Hierarchical Council (formerly called the Holy Synod) of the New Gracanica Metropolitanate. Newly elected bishops were to be consecrated by the Serbian Patriarch. Hierarchs of the New Gracanica Metropolitanate would be members of the Holy Hierarchical Assembly of the Serbian Orthodox Patriarchate and all disputes amongst or complaints against the hierarchs of the New Gracanica Metropolitanate would be heard in the first instance by the Hierarchical Council of the New Gracanica Metropolitanate and could thereafter be referred to organs of the Patriarchate. Article II also provided that administrators of vacant dioceses would be appointed by the Holy Hierarchical Synod of the Serbian Orthodox Patriarchate upon the recommendation of the Episcopal Council of the New Gracanica Metropolitanate.
Article III provided that the Serbian Orthodox Patriarchate agreed that the New Gracanica Metropolitanate could retain its present administrative organisation, but the names of the three existing dioceses would be changed. In the case of the FSOC-ANZ Diocese its name would be changed to the Serbian Orthodox Metropolitanate of New Gracanica - Diocese of Australia and New Zealand. Its See would be at the monastery of New Kalenich Canberra, that is, the monastery of St Sava.
Section 2 of Article III provided that the Serbian Orthodox Patriarchate agreed not to reorganise, abolish or in any way alter the administrative structure of the New Gracanica Metropolitanate or its three dioceses without the agreement of the Hierarchical Council of the New Gracanica Metropolitanate, the hierarchs of the affected dioceses, and the Church-Peoples Assemblies of the affected dioceses.
Section 3 of Article III provided that church-school communities and parishes under the jurisdiction of the dioceses of the New Gracanica Metropolitanate were to remain under the direct jurisdiction of the hierarchical and administrative authorities of the New Gracanica Metropolitanate.
Article IV made provision for the maintenance of diocesan ecclesiastical courts in the New Gracanica Metropolitanate with the addition of the Holy Hierarchical Synod of the Serbian Orthodox Patriarchate as a final court of appeal.
Article V provided that by acknowledging the validity of the episcopal consecrations and sacerdotal officiation of the hierarchs of the New Gracanica Metropolitanate, the Serbian Orthodox Patriarchate acknowledged the validity of the orders and the sacerdotal officiation of the clerics of the New Gracanica Metropolitanate and counted them amongst the clerics of the Serbian Orthodox Patriarchate. For the same reasons the laity of the New Gracanica Metropolitanate were accepted to have been and to be among the faithful of the Holy Serbian Orthodox Church.
The implementation of this article effected a vital change. No longer were the members of the Free ANZ Diocese (or NGM-ANZ Diocese as it was now known) considered to be schismatics. The problems described at [46] above were overcome.
Article VI of the Reconciliation Proposal provided that the New Gracanica Metropolitanate, its dioceses, Church-School Communities and Parishes should retain complete control and ownership over their respective properties as set forth in their respective constitutions and governing documents. The Serbian Orthodox Patriarchate agreed that neither it nor any of its dependencies or administrative units outside Yugoslavia would assert any right over any of the real or personal property of the New Gracanica Metropolitanate, its dioceses, church-school communities, monasteries, parishes or affiliated institutions.
Article VII provided that the present constitutions of the Free Serbian Orthodox Church, and, amongst others, the Free Serbian Orthodox Diocese of Australia and New Zealand "shall be amended" to reflect the terms of the Proposal and that:
"Subsequently, The Regulations and By-Laws of the Church-School Communities, Parishes and other affiliated institutions of the New Gracanica Metropolitanate shall also be amended to reflect the terms of the Proposal."
Section 2 of Article VII provided that:
"Section 2: Future Amendments
The New Gracanica Metropolitanate and its Dioceses retain the exclusive right to amend their Constitutions provided that such amendments do not contradict any of the terms of this Proposal and are consistent with this Proposal."
Article VIII provided that the proposal had been submitted by the delegation of the New Gracanica Metropolitanate and had been jointly reviewed, revised and accepted by the Holy Hierarchical Synod of the Serbian Orthodox Church. Article VIII also provided that the proposal would be submitted to the Holy Hierarchical Assembly (the Holy Assembly of Bishops) for review and decision.
Article IX provided that the New Gracanica Metropolitanate agreed that in conjunction with the Episcopal Council of the Serbian Orthodox Church in USA and Canada and with the dioceses in Western Europe and Australia, it would work towards reorganising the entire Serbian Orthodox Church outside Yugoslavia so that not just liturgical, but complete administrative unity and brotherly togetherness was achieved in the spirit of the gospels and in conjunction with the canonical traditions of the Orthodox Church and the centuries-old order of the Church of St Sava.
The Reconciliation Proposal was considered at a meeting of the Holy Assembly of Bishops in Belgrade on 24 May 1991. In a report from one of the Free Church's delegation to an extraordinary session of the Church National Assembly of the Free ANZ Diocese held on 22 and 23 June 1991, Archpriest Todorovic reported that:
"… the Holy Assembly of Bishops made a decision in relation to the division which in general states:
Joint celebration (concelebration) of the Holy Liturgy will validate clerics and all rites performed in the Free Serbian Orthodox Church, now New Gracanica, from 1963 to date.
the Holy Synod of the Serbian Patriarchate will form a Joint Commission of the episcopal Council of the Serbian Orthodox Church and the Episcopal Council of our New Gracanica Metropolitanate, that will prepare a submission in relation to future administrative relations."
On 24 May 1991 the Holy Assembly of Bishops provided a report to the Holy Synod of Bishops in Belgrade of its resolutions referred to above. It stated that the Serbian Patriarchate never had any pretensions, nor did it now have pretensions to overtake or control the property of church entities outside of Yugoslavia. Rather, the Holy Assembly sought that the property of all church entities be managed on the basis of the rules and regulations of the hierarchical church organisation and the "positive legislature" of the countries in question. It also stated that the existence of parallel dioceses in the USA, Canada and Australia was to be deemed a temporary status, "in the spirit of church economy".
It does not appear that the Holy Assembly of Bishops otherwise approved the terms of the Reconciliation Proposal.
At a meeting on 24 May 1991 the Holy Synod of Bishops in Belgrade resolved that to achieve full administrative unity the Holy Synod of Bishops in collaboration with the Episcopal Council of the Serbian Orthodox Church in the USA and Canada and the Episcopal Council of the New Gracanica Metropolitanate would establish a joint committee to study practical issues concerning the organisation of the churches and to submit recommendations to the Church-National Assemblies of all of the dioceses outside of Yugoslavia for their consideration, after which the conclusions of the Church-National Assemblies would be submitted to the Holy Assembly of Bishops for its consideration and final decision.
An extraordinary Sabor for the FSOC ANZ Diocese was held at St Sava Monastery on 22-23 June 1991 in the presence of Metropolitan Irinej, Bishop Vasilje and Bishop Damaskin. Also present was Archimandrite Sava. Metropolitan Irinej reported on the reception of the delegation of the Free Church in Belgrade and discussed the Reconciliation Proposal. There was discussion about the change of the name from Free Serbian Orthodox Church to the Serbian Orthodox Metropolitanate of New Gracanica. The minutes record that Metropolitan Irinej, commenting on the change of name, stated that it was not possible to have two churches within one church. He said that the word "Free" had been taken out so that no question could be brought up regarding the acceptance of the joint proposal. A resolution was proposed that the Sabor accept the "joint proposal". The resolutions passed included the following:
"2. The Assembly salutes the decisions of the Holy Assembly of Bishops of the Serbian Patriarchate that with concelebration of joint Liturgy the apostolic succession of our Metropolitanate and all rites performed from the beginning of the division in 1963 to date shall be confirmed. The Assembly salutes liturgical unity with the Serbian Orthodox Patriarchate and our divied [sic] brothers outside Yugoslavia, as only with joint communion can be achieved Holy Unity. The Assembly leaves metropolitan Irinej and his brother Hierarchs to allocate a time and place for this concelebration.
3. The Assembly regrets that the Holy Assembly of Bishops did not accept the Joint Proposal in whole. The Assembly agrees with all directions of the Joint Proposal and believes that it provides the best solution for all current problems. If the sister Dioceses of our Metropolitanate similarly agree with the directions of the Joint Proposal and if the Holy Assembly of Bishops would revisit and accept the Joint Proposal as submitted, this Diocese will be bound by the Joint Proposal without the need to re-convene an Assembly.
4. To show goodwill at this difficult time of reconciliation, this Assembly agrees that our Metropolitanate participates in the Joint Commission to be appointed by the Holy Assembly of Bishops. This Assembly directs that our Episcopal Council and members of our current delegation sit as members of the Joint Commission. In the event of resignation or need to expand delegation, the Episcopal Council will nominate new members. Any decision of the Joint Commission must be confirmed by this Assembly.
5. Also to show goodwill the Assembly agrees with the changes of the names of our diocesan and administrative bodies:
The name Free Serbian Orthodox Church will in future be called 'Serbian Orthodox New Gracanica Metropolitanate'.
The name of Free Serbian Orthodox Diocese for America and Canada will be in future the 'Serbian Orthodox New Gracanica Metropolitanate - Diocese for America and Canada'.
The name of Free Serbian Orthodox Diocese for Australia and New Zealand will in future be the 'Serbian Orthodox New Gracanica Metropolitanate - Diocese for Australia and New Zealand'.
The name of Free Serbian Orthodox Diocese for Western Europe will in future be the 'Serbian Orthodox New Gracanica Metropolitanate - Diocese for Western Europe'.
The name of the Holy Synod of Bishops of the Free Serbian Orthodox Church will in future be the 'Episcopal Council of the Serbian Orthodox New Gracanica Metropolitanate.'
The name of the Ecclesiastical Court of the Free Serbian Orthodox Church will in future be the 'Metropolitanate Ecclesiastical Court of the New Gracanica Metropolitanate'.
This Assembly salutes in prayer the enthronement of our new bishop, His Grace Bishop Vasilije and gives him our wholehearted support in his future pastoral work."
In July 1991 the Western European and American-Canadian Dioceses of the New Gracanica Metropolitanate passed resolutions to the same effect as those passed by the ANZ Diocese.
[11]
Transitional Regulations
The Joint Commission was convened on 30 September 1991 in Illinois and approved a document called Transitional Regulations.
In December 1991 the Diocesan Councils of the three Dioceses forming the New Gracanica Metropolitanate approved the Transitional Regulations promulgated by the Joint Commission. The Transitional Regulations were also accepted by the Holy Assembly of Bishops subject to an amendment to provide a timeframe for the adoption of a new common constitution, which amendment was in turn accepted by the Bishops Council of the New Gracanica Metropolitanate. The Transitional Regulations were signed by Metropolitanate Irinej and by the Metropolitan of Mid-Western America as president of the Episcopal Council and Church Laity Assembly of the Serbian Orthodox Church of the USA and Canada on or about 13 February 1992.
The Transitional Regulations are described as Regulations to govern the relations between the Serbian Orthodox Church in the USA and Canada and the New Gracanica Metropolitanate. Article 4 of the Transitional Regulations provided that by the end of 1994 a Joint Legislative Committee was to prepare a draft constitution to govern a unified Serbian Orthodox Church in the USA and Canada. Article 5 provided that until the adoption of a common constitution (by May 1995) if a vacancy in a diocese of the New Gracanica Metropolitanate occurred, new diocesan bishops for the New Gracanica Metropolitanate should be elected by the Holy Assembly of Bishops of the Serbian Orthodox Church from candidates nominated by the Episcopal Council of the New Gracanica Metropolitanate. Newly elected candidates would be consecrated by the Serbian Patriarch.
Article 6 provided that until the adoption of a common constitution, administrators of vacant dioceses of the New Gracanica Metropolitanate would be appointed by the Holy Synod of Bishops of the Serbian Orthodox Church from among candidates nominated by the Episcopal Council of the New Gracanica Metropolitanate.
It appears from Articles 1 and 2 that the Transitional Regulations were to apply for a period not to exceed three years.
Resolution numbered four of the Sabor of the NGM-ANZ Diocese held on 22 and 23 July 1991 provided that any decision of the Joint Commission would have to be confirmed by the Assembly of the NGM-ANZ Diocese. Article 16 of the Transitional Regulations also so provided. Article 16 provided that the Transitional Regulations became effective upon adoption by, amongst other bodies, the "Church-Laity assemblies (Sabors) of the New Gracanica Metropolitanate and approval of the Holy Assembly of Bishops of the Serbian Orthodox Church."
The Transitional Regulations were not submitted to a Church-National Assembly of the NGM-ANZ Diocese.
As the Holy Assembly of Bishops did not revisit and wholly accept the "Joint Proposal" (i.e. the Reconciliation Proposal) and as the Transitional Regulations were not submitted to the Church National Assembly of the NGM-ANZ Diocese, the resolution of the Assembly of 22 and 23 June 1991 did not amount to a formal acceptance of the Reconciliation Proposal that might impliedly have effected an amendment to the 1976 constitution.
Nonetheless at least substantial parts of the reconciliation were implemented.
[12]
Concelebration of the Liturgy
On 15 February 1992 Patriarch Pavle, Metropolitan Irinej, Bishop Vasilje and nine bishops of the Serbian Orthodox Church concelebrated a liturgy of reconciliation in the Cathedral at Belgrade. Patriarch Pavle presented Metropolitan Irinej and Bishop Vasilje with pastoral staves as signs of their episcopal authority within the Serbian Orthodox Church. The Apostolic Succession and validity of the Holy Orders within the New Gracanica Metropolitanate were confirmed. Patriarch Pavle welcomed Metropolitan Irinej and Bishop Vasilje, and through them the entire New Gracanica Metropolitanate, into the fold of the "now one Serbian Orthodox Church". In his homily Metropolitan Irinej said that "our people" have entrusted Patriarch Pavle as the head of the unified Serbian Church. A joint publication of the Diocesan Observer (published by the NGM Diocese of America and Canada) and The Path of Orthodoxy (an official publication of the Serbian Orthodox Church in the United States and Canada) called "The Liturgy of Reconciliation", which was published with the blessings of their respective hierarchs, stated that through the concelebration the division in the Serbian Orthodox Church had ceased to exist.
[13]
Reception of Reconciliation in Australia
The Reconciliation Proposal contained an acknowledgment that the administrative structure of the NGM Diocese would not be altered without the approval of, amongst others, the hierarchs of the affected dioceses and the church peoples assemblies of the affected dioceses. The Transitional Regulations provided for the formulation of new constitutions. Because the Free ANZ Diocese had not bound itself legally to the terms of the constitution of the Free Serbian Orthodox Church it had not bound itself to accept the decisions purportedly made for it by Metropolitan Irinej and the other hierarchs of the Free Serbian Orthodox Church. The conditions to the third resolution of the extraordinary Assembly held on 22 and 23 June 1991 were not met. Nonetheless, although not without some complaint, the reconciliation was substantially implemented in Australia. The first to fifth defendants accept that as a result of the reconciliation the NGM-ANZ Diocese became spiritually in communion with the Serbian Orthodox Church. As seen below, the implementation of the reconciliation went further than that.
Bishop Vasilje took up his duties as bishop from 14 September 1991. He presided at the Tenth Church National Assembly of the NGM-ANZ Diocese held on 29 and 30 December 1991. In his report to that Assembly he reported on preparations for the joint liturgy which would represent the "crowning of long-awaited unity". There was some dissension at the Tenth Assembly. A Mr Novakovich queried why the word "Free" no longer appeared in the agenda.
Bishop Vasilje responded by saying that this was decided during the extraordinary assembly of bishops and there was no need to have "Free" in the titles of documents. Mr Novakovich who had been elected to the committee to verify the minutes refused to sign the minutes stating that Bishop Vasilje through his actions during the Tenth Assembly had rejected the constitution of the Free Serbian Orthodox Church for Australia and New Zealand Diocese illegally.
The Diocesan Assembly of the NGM USA and Canada diocese accepted the Transitional Regulations at some time prior to 21 October 1992. Bishop Vasilje called a meeting of the Diocesan Council of the NGM-ANZ Diocese to be held jointly with members of the SOC ANZ Diocese in August 1992. The purpose of the meeting was to discuss the unification of the two dioceses. Mr Nesic, a member of the Diocesan Council, said that such a decision would require a decision of the Sabor of the Free Serbian Orthodox Church Diocese of Australia and New Zealand. The minutes of this meeting were not in evidence, but it appears that no progress towards unification was made.
Bishop Vasilje convened a meeting of the Diocesan Plenum of the NGM-ANZ Diocese that was held on 2 January 1993. The agenda for that meeting contained only one point, namely the question of Transitional Phase Regulations for the administration of the NGM-ANZ Diocese and the Serbian Orthodox Church. Mr Nesic (the vice-president of the Plenum) moved that the agenda be amended to provide for the reading of complaints from church-school communities and other members of the diocese against the Bishop. Bishop Vasilje rejected that proposal. There was tumult. According to the minutes, the meeting decided to leave the question of Transitional Phase Regulations to a Church National Assembly. Bishop Vasilje and his clergy left the meeting, following which the meeting passed a vote of no confidence in the Bishop and other resolutions, including that the Bishop surrender the keys to all diocesan properties, failing which some individuals were purportedly authorised to change the locks to the monastery properties.
Complaints had been made by some individuals before this meeting about Bishop Vasilje. He was accused of not following the constitution of the Free ANZ Diocese. He was accused of reunifying church parishes in Victoria behind the backs of the Diocesan Advisory Committee, the Plenum or the Church National Assembly. He was accused of lawless behaviour for participating in an advisory committee of bishops for both dioceses in Australia pursuant to a resolution of the Holy Assembly of Bishops in Belgrade, without the approval of the Church-National Assembly or the Plenum. This criticism by members of the NGM ANZ Diocese overlooked the fact that since the death of Bishop Petar in November 1988 the diocese had not been administered in accordance with its constitution.
Mr Nesic attempted to call an extraordinary Church-National Assembly to take place on 16 and 17 October 1993 at the St Sava Monastery. It appears that by then Bishop Vasilje had fallen out with most of the laity on the Diocesan Plenum. Mr Nesic called for an extraordinary Church-National Assembly to discuss problems that existed between Bishop Vasilje and the Diocesan Plenum. On 18 September 1993 Metropolitan Irinej supported that call, but said that the constitution for the ANZ Diocese did not authorise the vice-president of the Diocesan Plenum to call an extraordinary assembly. Nor could this be done by either the Diocesan Plenum or the Diocesan Council. Metropolitan Irinej, with the agreement of Bishop Damaskin, making the majority of the Diocesan Council of the New Gracanica Metropolitanate, called an Extraordinary Church-National Assembly meeting to take place on 16 and 17 October 1993. They did so using the powers conferred by the 1984 constitution of the Free Serbian Orthodox Church (by then the New Gracanica Metropolitanate) including articles that the Metropolitanate was an hierarchical church and that the Diocesan Council was the executive body having the highest administrative overseeing and ecclesiastical court authority, including helping diocesan arch-hierarchs in performing their duties, taking care of widowed dioceses and overseeing the performance of diocesan bishops. This exercise of authority, which was not authorised by the 1976 constitution, was not disputed. Metropolitan Irinej and Patriarch Pavle urged Bishop Vasilje to attend the assembly. He did not. He informed the Holy Synod of Bishops in Belgrade that he wished to withdraw from the New Gracanica Metropolitanate and transfer to a jurisdiction in the Serbian Orthodox Church.
The assembly was attended by Metropolitan Irinej and Bishop Damaskin who was then the Bishop of Western Europe. It appears that the assembly purportedly resolved that Bishop Vasilje's appointment be terminated and that Bishop Damaskin be appointed as Bishop in his place. On 19 October 1993 Metropolitan Irinej and Bishop Damaskin as the Holy Synod of the New Gracanica Metropolitanate of the Serbian Orthodox Church resolved to support that decision. They recommended to the Holy Synod of Bishops in Belgrade that Bishop Damaskin be appointed to the diocese of Australia and New Zealand of the New Gracanica Metropolitanate and that Metropolitan Irinej be appointed as administrating bishop of the Western European diocese.
On 29 November 1993 Mr Nesic, signing as first vice-president of the Diocesan Council, wrote a letter to the clergy, the "Management Board", church-school parishes and other associations in the NGM ANZ Diocese referring to those events. He said that the Holy Synod of Bishops of the Serbian Orthodox Church had accepted the advice from the Diocesan Council (of the NGM-ANZ Diocese) and confirmed its request to transfer Bishop Vasilje into another diocese. Mr Nesic said that the execution of that resolution was soon deferred and then cancelled. It appears from Mr Nesic's letter that at a meeting of the Holy Assembly of Bishops, that body had postponed making any decision about the appointment of a bishop to the diocese and had stated that the decision of the Church National Assembly to terminate Bishop Vasilje's appointment was invalid because the bishop did not participate. Mr Nesic contended that the decision of the Diocesan Council of the Metropolitanate to replace Bishop Vasilje should be executed immediately. He also said that the Diocesan Council would be preparing a case against Bishop Vasilje for consideration by the Holy Assembly at its next regular assembly due in May 1994. Mr Nesic also wrote to what he called the Advisory Committee of Bishops of the New Gracanica Metropolitanate asking it to execute the decision of the "Advisory Committee of Bishops" that had been confirmed by an extraordinary Church-National Assembly in regard to the enthronement of Bishop Damaskin for the diocese.
This correspondence reveals an acceptance of the authority of the Holy Assembly and also of the hierarchs of the New Gracanica Metropolitanate, but a complaint as to how that authority was being exercised.
On 20 May 1994 the Holy Assembly of Bishops in Belgrade appointed Archimandrite Sava (Juric) as bishop of what was called the vacant diocese for Australia and New Zealand of the New Gracanica Metropolitanate. It does not appear whether this was done pursuant to any formal resolution of the Synod of Bishops of the New Gracanica Metropolitanate in accordance with the Transitional Regulations. However, Metropolitanate Irinej supported the decision. He wrote to all clergy, church and school communities, Serbian national organisations and the Diocesan Council of the NGM-ANZ Diocese on 9 June 1994 informing them that the Holy Synod (sic) of Bishops of the Serbian Orthodox Church had elected Archimandrite Sava as the new bishop for the diocese. He advised that Bishop Sava would be ordained on 17 June by Patriarch Pavle in the New Gracanica monastery in Illinois. He asked that the decision of the Holy Synod of Bishops be accepted in the diocese. He said:
"We want you to understand that this was our wish too so please refrain from any activities which may be contrary to the decision of the Holy Synod of Bishops, and against the interests of our Diocese in its [entirety]; against clerical brothers, and against people who are loyal to this Diocese and whoever invested so much work and effort to make it as it is today."
The decision of the Holy Assembly of Bishops to appoint Bishop Sava to the NGM-ANZ Diocese and the letter of Metropolitan Irinej of 9 June 1994 were considered by the Diocesan Plenum held on 11 and 12 June 1994. Most of the delegates expressed concern that the constitution that required a bishop to be elected by the Church-National Assembly had not been followed, and that the decision of the Church-National Assembly of October 1993 had been annulled. Mr Nesic stated the dilemma that the delegates faced, namely, that if they accepted the decision of the Holy Assembly of Bishops and of Metropolitan Irinej to promote Archimandrite Sava to the position of new bishop, this would mean that the Diocesan Plenum had gone against the decision of the Assembly in October 1993, and according to the constitution that Assembly was the supreme body in the Diocese. After a lengthy discussion there was a break in the meeting and Mr Nesic telephoned Metropolitan Irinej and Archimandrite Sava in America. The minutes of the meeting of the Diocesan Plenum record that upon his return Mr Nesic conveyed reassurances that he had obtained from Metropolitan Irinej and Archimandrite Sava. He advised the meeting that Archimandrite Sava had said, "I do not know about any other constitution but ours", and had stated that he would administer the Diocese by adhering to its constitution.
One delegate (Mr Cubrilo) suggested that the best solution for the time being was to accept the decision from Belgrade because the decision had been made together with Metropolitan Irinej. Mr Nesic supported that opinion which was generally accepted.
In his homily on being ordained as bishop, Bishop Sava urged the faithful to respect his authority as Bishop and not be misled by those who would take the faithful away from the Serbian Orthodox Church.
Shortly after Bishop Sava's return to Australia after being enthroned as bishop, he convened a meeting of the Church National Assembly at which one of the members said that they were unhappy that they did not have a say in who would be their bishop. Mr Nesic said that although they did not have a problem with Bishop Sava personally, they had a problem with the way in which he was elected and that there should be a choice of candidates submitted to the assembly and their choice should then be submitted to another church. Bishop Sava told the Assembly that he knew that his appointment was not in accordance with the Diocesan Constitution, but said that his appointment was valid. He asked why they did not welcome him as they knew him and his integrity was not in question. Mr Nesic asked the Assembly to accept Bishop Sava as their bishop unanimously, despite the irregularity of his appointment, and this was done.
The NGM Diocese of Western Europe was abolished by the Holy Assembly of Bishops in May 1994. A new Western European Diocese of the Serbian Orthodox Church (the mother church) was created and Bishop Damaskin was appointed its bishop (he had been the bishop of the Western European NGM Diocese).
The Eleventh Sabor of what was then the NGM ANZ Diocese should have been held in December 1994. No minutes of that Sabor are in evidence. It appears that the authority of Bishop Sava was accepted by all elements of the diocese.
A meeting of the Diocesan Plenum of the NGM ANZ Diocese was held on 28 and 29 April 1995 at the St Sava Monastery. The Diocesan Plenum extended its support to Patriarch Pavle of the mother church and referred to the mother church as having received into her fold a new flock "so to speak" after the church reconciliation. The Plenum announced that it had concluded that it was futile to "call upon and refer to" the Transitional Regulations regarding the governance of the Serbian Church and the diaspora after the church reconciliation. The Plenum said that the Transitional Regulations had not been approved by all three dioceses in the New Gracanica Metropolitanate which was the condition for their becoming law. It recited that the Australia and New Zealand Diocese had not accepted the regulations and it confirmed its resolution to maintain the protection of its existing constitution until a new constitution might be drawn up.
In his report of 17 May 1996 to the Holy Assembly of Bishops in Belgrade Bishop Sava reported that the NGM ANZ Diocese was "sailing in calm waters" and that "unrest and distrustful spirits are calming, scepticism is diminishing, while trust is growing." He recorded that the diocese had 15 parishes with 14 active priests. He also recorded that the Church National Assembly held in 1995 had rejected the Transitional Regulations which had not been submitted from the diocesan authorities for consideration. He reported that people were worried that the diocese of Western Europe had been abolished without following procedures according to the Transitional Regulations.
Bishop Sava also reported on his co-operation with Bishop Luka of the sister diocese (i.e. the ANZ Diocese of the Serbian Orthodox Church). In his report to the Holy Assembly of Bishops on 9 May 1998 Bishop Sava expressed the view that the Metropolitanate of New Gracanica practically did not exist. He said that if the current situation continued it would be necessary for the title of the bishop of the Australian diocese to be changed to exclude the words New Gracanica Metropolitanate. I infer this was because the abolition of the Western European diocese, and perhaps changes made in the USA and Canadian diocese, meant there was no longer something that would be called a Metropolitanate.
Bishop Luka and Bishop Sava co-operated with each other in serving the needs of the faithful of both dioceses. They served liturgies together and in each other's churches. On 2 October 1997 with the support of the clergy of both dioceses, Bishop Luka and Bishop Sava jointly petitioned the Holy Assembly of Bishops for the unification of the dioceses and the elevation of the newly formed diocese to the rank of a Metropolitanate to be headed by a new hierarch. Bishop Luka and Bishop Sava said that they were convinced that such a decision would be upheld by the faithful of both dioceses. They proposed a new constitution for a newly formed Metropolitanate. The proposal was forwarded to the Holy Assembly of Bishops.
On 14 May 1999 the Holy Assembly of Bishops partially implemented the proposal. Bishop Sava and Bishop Luka were transferred to dioceses in Slovonia in Croatia and Paris respectively. Bishop Nikanor (Bogunovic) was appointed by the Holy Assembly of Bishops as Bishop of what was described as the vacant diocese of the NGM ANZ Diocese seated at the New Kalenich Monastery at Canberra and simultaneously was appointed as administrator of the SOC-ANZ Diocese. Bishop Sava and Bishop Irinej gave evidence that under canon law a bishop could be elected as bishop only to one diocese and if he were appointed to undertake duties to another diocese he assumed the title of administrator or bishop-administrator.
It does not appear that the Holy Assembly appointed Bishop Nikanor on the recommendation of the Synod of Bishops of the New Gracanica Metropolitanate. Indeed, it is unclear whether by 1999 that Synod still existed. Bishop Sava had said in his report of 1998 that the New Gracanica Metropolitanate had practically ceased to exist. In May 1999 Metropolitanate Irinej was frail and very ill. Bishop Nikanor was not appointed in accordance with the provisions of the constitution of the NGM ANZ Diocese.
Mr Nesic was a member of the legislative committee and president of the church-school parish of St Nicholas at Wacol in Queensland. On 15 June 1999 he wrote to Bishop Sava concerning the announcement of the appointment of Bishop Nikanor. Mr Nesic observed that Bishop Nikanor had enjoyed a good reputation as a bishop and that nobody would be against his promotion to head the NGM ANZ Diocese. Mr Nesic said that since the diocese was ruled by its constitution that prescribes that the Church National Assembly accept a new bishop, he recommended that Bishop Sava call a Church National Assembly as soon as possible so that the Church National Assembly could accept the bishop. On 6 July 1999 Father Dragomir Sipovac replied to Mr Nesic's letter, presumably on the bishop's behalf. He said that:
"It is true that our constitution contains information that election of bishop is done by church-national assembly. That was so on paper only. You have never had more candidates than one to elect one of them. Only one offer was always made from 'above', the offer that we accepted."
Father Dragomir Sipovac then referred to the Reconciliation Agreement that new bishops should be elected by the Holy Assembly from candidates whose names had been included in the list of bishops suggested by the Synod of Bishops of the New Gracanica Metropolitanate. He said that the Church National Assembly no longer had any part in the election of the bishop. He suggested that a meeting of the Diocesan Plenum be called to welcome the new bishop when he arrived. This is what happened.
At a meeting of the Diocesan Plenum of the NGM ANZ Diocese held on 4 December 1999 members of the Diocesan Plenum together with the presidents of all of the church-school communities of the diocese sent greetings to Patriarch Pavle and thanked him for the appointment of Bishop Nikanor. They said, "All of us gathered here today accept the decision made at the Holy Archpriests meeting of the Serbian Orthodox Church and wholeheartedly welcome our new Bishop, in accordance with our Constitution". They expressed their loyalty to Patriarch Pavle as the head of the Serbian Orthodox Church. In fact Bishop Nikanor was not appointed pursuant to the constitution of the NGM-ANZ Diocese, but the members of the Diocesan Plenum nonetheless accepted his appointment.
Bishop Nikanor organised the start of work on a draft of a new constitution and appointed a constitutional committee for each diocese.
Bishop Nikanor remained bishop of the NGM ANZ Diocese until 2003. On 23 May 2003 the Holy Assembly of Bishops elected Bishop Milutin as Bishop of the NGM-ANZ Diocese and as Bishop-Administrator of the SOC-ANZ Diocese. He took up his position in 2004. There was no opposition expressed at the meeting of the Church National Assembly in December 2004, or the meeting of the Diocesan Plenum, that preceded it to his appointment.
Work on the adoption of a new constitution continued in 1999, 2001, 2002 and 2003. A draft constitution was prepared that was agreed to by the joint legislative committee established by Bishop Nikanor in 2002 and sent to the parishes in the NGM Diocese and the ANZ Diocese. Bishop Nikanor left Australia in 2004 and was replaced by Bishop Milutin. It does not appear that any substantial progress was achieved on a new constitution during Bishop Milutin's tenure as Bishop of the NGM-ANZ Diocese and Bishop Administrator of the SOC-ANZ Diocese.
[14]
Divisions in the NGM-ANZ Diocese
Father Saracevic gave evidence that as a result of the reconciliation he understood that there was now one worldwide Orthodox Church for the Serbian people, and that spiritual, but not administrative, unity had been achieved. In 2004 the church-school congregation of Blacktown purported to expel him as their parish priest and rejected the authority of Bishop Milutin. Charges were laid against both Father Saracevic and the committee of the Blacktown parish before the Ecclesiastical Court of the NGM-ANZ Diocese. The Ecclesiastical Court determined that members of the committee had contravened articles of the Penal Code of the Serbian Orthodox Church and the constitution of the Free Serbian Orthodox Church and imposed penalties pursuant to Penal Regulations of the Serbian Orthodox Church. This accorded with a statement made by Father Saracevic in 2004 that at that time the FSOC-ANZ diocese was operating in accordance with both the constitution of the Free ANZ Diocese and the constitution of the Serbian Orthodox Church.
The 14th Church National Assembly was held at the monastery on 25 December 2004. A meeting of the Diocesan Plenum was held on the day before, but was discontinued by order of Bishop Milutin on the ground that some former members of the Diocesan Plenum, Messrs Nesic and Jovan Banjanin were present but were not accepted as members of the Plenum and refused to withdraw. The minutes of the meeting of the Church National Assembly held on 25 December (described in the English translation as "a Synod meeting" but clearly a meeting of the National Assembly) state that the meeting was held peacefully. The minutes recorded progress on the work of the legislative committee of both Serbian dioceses and the fact that the draft joint constitution had been submitted to church-school congregations, some of whom had accepted it, some of whom had suggested amendments, and some of whom had not accepted the draft of a new joint constitution. A new Diocesan Council was elected. Its members included Messrs Kaladjurdjevic and Mandic. Neither Mr Nesic nor Father Saracevic was elected to the Diocesan Council.
At the Annual General Meeting of the Property Trust Company held in September 2005 there was a dispute as to who should chair the meeting. Although there are different accounts of what transpired, the substance of the dispute was whether the meeting should be chaired by Bishop Milutin who was accustomed to chair all meetings of organs of the Diocese, or whether it should be chaired by someone else. According to one account Mr Nesic put himself forward to be president of the Property Trust Company saying that he did not want a bishop to chair the Property Trust Company and that there should be a vote as to who should be president. According to Mr Nesic, Bishop Milutin said that the Bishop was automatically the president of all Diocesan bodies and he nominated himself to chair the meeting, but somebody from the floor nominated Mr Nesic to chair the meeting and he was elected by a vote on the raising of hands to do so. No attention appears to have been paid to the Articles of Association of the Property Trust Company that provided that the chairman of the "trustees", that is, the directors, was to preside at all general meetings and it was only in the absence of the chairman of trustees (directors) that the meeting was to elect its own chairman. The votes were in favour of Mr Nesic's chairing the meeting. After the vote Bishop Milutin left the meeting. Prior to the meeting there had been tension between the Property Trust Company and the Diocese in that the Property Trust Company made a claim for rent and expenses for the Bishop's residing on the monastery property.
In 2006 Bishop Irinej (Dobrijevic) (the first plaintiff) was elected by the Holy Assembly of Bishops as the Bishop of the SOC-ANZ Diocese and as Bishop-Administrator of the NGM-ANZ Diocese. He replaced Bishop Milutin. Again, the appointment of Bishop Irinej by the Holy Assembly of Bishops as administrator of the NGM-ANZ Diocese was accepted at the time of his appointment, even though it was not in accordance with the 1976 constitution. He attempted to complete the work of unification of the two dioceses but was resisted by prominent members of the laity of the NGM-ANZ Diocese.
One trigger for conflict was that Bishop Irinej took steps to implement a decision that had been made by Bishop Milutin in May 2004 to move the administrative centre for the NGM-ANZ Diocese from the St Sava monastery to Sydney. Bishop Milutin had advised the Holy Assembly of that proposal. The reasons for it, as explained by Bishop Milutin to the Holy Assembly, were the remoteness of the monastery from Sydney and the need for frequent travel, the fact that having the administrative centre of the diocese in Sydney would bring it closer to the majority of parishes and the faithful, and that representatives of other Orthodox churches as well as many government bodies and authorities resided in Sydney. There was also concern as to the security of the monastery in the ACT. The Holy Assembly adopted that proposal on 10 June 2004. However, steps were not taken to implement it until after Bishop Irinej's appointment.
By December 2006 Bishop Irinej advised all parish administrations and others that the seat of the NGM-ANZ Diocese had been moved from the St Sava Monastery to Sydney. Bishop Irinej said this was in accordance with the decision of the Holy Synod in 2004 to adopt a proposal made by Bishop Milutin in 2004 to move the diocese's administrative centre to Sydney.
In about late 2006 a paper was published on the internet that had been prepared by Mr Nesic and a Mr Toma Banjanin. It was critical of Bishop Irinej. It asserted that Bishop Nikanor had tried to push a joint draft constitution "through the back door", but had been opposed in this endeavour. It asserted that Bishop Irinej had made three radical proposals to the priesthood that had not been communicated to the laity, but which should have been. These were that services be conducted in the English language, that the Diocese would join membership of the World Council of Churches, and that a new draft constitution be adopted as soon as possible. The authors asserted that participation in the World Council of Churches would be heretical, being contrary to the creed that, "we believe in the 'one and only holy apostolic church'". The paper asserted that if the proposed draft constitution were adopted, the church leaders "will be allowed to take us wherever they want, because they will not have to consult people about anything."
Bishop Irinej wrote to Mr Nesic and to Mr Banjanin purportedly ordering them to withdraw the text from all public media and to apologise. Bishop Irinej said that by accusing their Bishop of heresy they had excommunicated themselves and rendered themselves subject to disciplinary punishment. Mr Nesic did not respond.
On 4 May 2007 Bishop Irinej sent a letter on the letterhead of the Diocesan Council of the NGM-ANZ Diocese to all Church-school Congregations in that diocese advising in substance that at its meeting on 26 January 2007 the Diocesan Council had resolved that members of Church-school Congregations who had been excommunicated could not attend meetings of the Diocesan Council or Plenum or Church-school Congregations, nor attend a meeting of the Property Trust Company.
On 27 August 2007 Bishop Irinej advised the Property Trust Company that it should not be using official letterhead to "enlist" church-school congregations. The Bishop advised he would be suspending communications with the Property Trust Company due to alleged false statements and disinformation (which were not particularised) spread by Mr Nesic.
Mr Nesic is one of the directors of the Property Trust Company. The others are Mr Branko Rupar, Mr Ilija Cubrilo, and Mr Petar Mandic. On 15 September 2007 the members of the Property Trust Company passed a special resolution to amend its constitution. The amendments included the deletion of a provision that six of 12 directors (called "trustees") should be "ministers". The Bishop was to be the "honorary president", but the directors ("trustees") should consist of 12 persons from among the members of the trust that did not include the Bishop. The Bishop was no longer entitled to appoint two persons as members of the company. "Trust property" meant property acquired by the company (called "the Trust") which could include property acquired by the company in its own right. A new Article 67 provided that:
"Arrangements to use Trust property will require a 'scheme of co-operation' meaning a scheme entered into by the Trust with the Free Serbian Orthodox Church - Diocese for Australia and New Zealand or any other church or any other congregation or activity of such a church or any other activity of another approved body concerning the use of Trust property."
This Article, if applicable to the monastery, would not be consistent with Article 176 of the 1976 constitution that provides all real estate and personal properties of monasteries is to be managed by the monastery's board under the supervision of the bishop. The first to fifth defendants say that the amendments made to the Memorandum and Articles on 15 September 2007 have no application in relation to the monastery property. Clearly they cannot affect the trusts on which the monastery is held. Although that is the present position of the first to fifth defendants, I infer that the amendments were made to seek to strengthen the hand of the directors in a looming confrontation with the bishop. It is also noteworthy that the new Article 67 contemplated that property of the company might be applied for the purposes of a church or congregation separate from the Free ANZ Diocese. It will be observed that the members of the Property Trust Company that proposed the resolution had reverted to using the name "Free Serbian Orthodox Church - Diocese for Australia and New Zealand" rather than the NGM-ANZ Diocese.
Father Saracevic had been without a parish since 2005. He was not in sympathy with Bishop Irinej. In late 2007 he was offered a position by the Old Calendar Orthodox Church of Greece (Holy Synod in Resistance) and decided to take it.
On 30 November 2007 Bishop Irinej as Bishop-Administrator of the NGM-ANZ Diocese published a statement that Father Saracevic was defrocked as a priest and was banned from approaching and taking part in the sacramental life of the local diocese in Australia and New Zealand. Bishop Irinej deposed that he rendered a "declaratory decision", being a principle applicable to monastics who leave their monastery or clergy who are in schism, to defrock Father Saracevic because he had left the Serbian Orthodox Church (sic) and joined a group (the OCOCG-HSIR) that was not in communion with it. Father Saracevic was not given prior notice of the charges contained in the letter of 30 November 2007. The penalty was not imposed by the Ecclesiastical Court. There was no hearing.
Father Saracevic says that the services he has conducted since he joined the OCOCG are exactly the same as those he had previously conducted when part of the Free ANZ Diocese except that he elevates the name of the OCOCG bishop who is his hierarch instead of the FSOC-ANZ bishop who was his hierarch. But, as Bishop Irinej says, the elevation of the bishop's name is a fundamental part of the service. The priest serves as the bishop's delegate.
On 11 October 2007 Bishop Irinej convened the Fifteenth Church National Assembly for the NGM-ANZ Diocese to be held on 28 December 2007 at Alexandria in Sydney. This decision met with protests. Mr Mandic and Mr Kaladjurdjevic, members of the Diocesan Council, asserted in a letter dated 3 November 2007 that no decision had been made by the Diocesan Council to hold the Church National Assembly at any place other than the monastery. In a further letter dated 10 November 2007 Messrs Mandic and Kaladjurdjevic, who said they were writing with the support of four church-school congregations, wrote to the Bishop complaining that the Bishop's decision was contrary to the reconciliation proposal of 22 and 23 June 1991 whereby the Serbian Orthodox Church agreed not to reorganise or make changes to the administrative organisation of the three dioceses of the New Gracanica Metropolitanate without prior agreement of the Diocesan Council, clergy or Church National Assemblies of the relevant dioceses. They repeated their complaint that there had been no debate at the previous meeting of the Diocesan Council about the proposal to change the place for the holding of the Church National Assembly.
Bishop Irinej took issue with their feeling at liberty to deliberate on his decision. He said that the decision of the Diocesan Council was that National Assembly would be convened by him at a convenient time and that he would also determine the venue. He referred to the resolution of the Holy Assembly of Bishops made on 10 June 2004 to adopt the suggestion of Bishop Milutin to relocate the Diocesan administrative centre from the monastery to Sydney. He asked for an apology, in the absence of which he threatened to dismiss the Church Council of the Church-school Congregation of St Peter and Paul in Wodonga and forbid parish priests to serve in that parish.
The complaint made by Messrs Mandic and Kaladjurdjevic was said to be supported by the Church-school Congregations of Greensborough, Geelong and Carrum Downs, as well as Wodonga.
On 20 November 2007 Bishop Irinej wrote to members of the Diocesan Council in relation to the letter written by Messrs Mandic and Kaladjurdjevic on 3 November 2007 protesting about the place for holding the Assembly. The Bishop accused Messrs Mandic and Kaladjurdjevic of attempting to revive the schism that had been healed 16 years previously and called for their resignations from the Diocesan Council.
On 26 November 2007 Bishop Irinej sent a circular to all clergy and monks, the representatives of church-school congregations and members of the Diocesan Council warning that they were required to take part in the Church National Assembly convened for 29 December 2007 and that the Bishop's notice of 11 October 2007 convening the Assembly to be held in Sydney was not a matter for discussion or debate, but was required to be followed.
On 1 December 2007 Messrs Mandic, Kaladjurdjevic, Cubrilo, and three others, said to be writing with the support of 10 church-school congregations and four Serbian organisations, sent an invitation addressed to "legally elected delegates" for the Fifteenth Church National Assembly, members of the Plenum and "faithful people" of the NGM-ANZ Diocese to attend a Church National Assembly not in Sydney, but at the monastery. They complained that Bishop Irinej was turning his back on the monastery and made other accusations about the Bishop's conduct.
On or about 10 December 2007 Bishop Irinej caused a warning to be published that at a meeting of the Ecclesiastical Court held on 10 December 2007 regarding the "illegal call" for assembly of a so-called Extended Plenum planned for 29 December 2007 at St Sava Monastery, it had been decided that any delegate who ignored the call by the Bishop, and instead of attending the Church National Assembly in the Seat of the Bishop in Sydney took part in the "schismatic gathering", should be referred to the Ecclesiastical Court. That notice stated that Messrs Mandic and Kaladjurdjevic had been excluded from financial membership in any church-school parish of the Serbian Orthodox Church.
A meeting of the Diocesan Council was held on 10 December 2007. Messrs Mandic and Kaladjurdjevic had not resigned as members of the Diocesan Council, but were not invited to the Diocesan Council's meeting on 10 December 2007. This was at the initiative of Bishop Irinej. Bishop Irinej said that in causing them not to be invited to the meeting of the Diocesan Council he was exercising authority provided by clauses 47 and 49 of the constitution which he said were applicable to the procedures for the Ecclesiastical Court. Bishop Irinej was referring to Articles 47 and 49 of the Rules and Procedures for the Ecclesiastical Courts of the Serbian Orthodox Church. Article 47 provides in substance that anyone who denies obedience to his hierarchical church authority shall be punished by disciplinary measures, and in a severe case, by the free discretion of the Court. Article 49 prescribes a punishment of final excommunication for speaking or undertaking anything against Church order. Neither article covered the bishop's actions, even if the rules were applicable to the NGM-ANZ Diocese; which they were not. There is nothing in the 1976 constitution of the NGM-ANZ Diocese that justified the Bishop's decision not to invite Messrs Mandic and Kaladjurdjevic to the meeting of the Diocesan Council and he had no power under that constitution to demand their resignations. Members of the Diocesan Council were elected by the Diocesan Assembly for a three-year period (Article 33). Even if the Rules and Procedures for the Ecclesiastical Courts of the Serbian Orthodox Church applied, they would not have justified the decision. Bishop Irinej also said that he was acting in accordance with the traditions of the Church which was interwoven throughout the administration of the Church. Whatever the extent of the Bishop's authority in the Serbian Orthodox Church, it did not extend to such actions in the NGM-ANZ Diocese.
At its meeting on 10 December 2007 the Diocesan Council resolved to suspend Messrs Mandic and Kaladjurdjevic from the Diocesan Council and to exclude them from membership of their local churches without the right to become members of any other church-school congregation. The 1976 constitution conferred no such power on the Diocesan Council.
Bishop Irinej said that at this time the 1976 constitution was not the only document which governed the NGM-ANZ Diocese because the reconciliation had been initiated. As with other actions referred to below, the plaintiffs contend that as a result of the implementation of the reconciliation proposal the NGM-ANZ Diocese had become subject to governance by the Bishop appointed by the Serbian Orthodox Church who could exercise the same authority in respect of the NGM-ANZ Diocese as could be exercised by a bishop of the Serbian Orthodox Church. For the reasons below, I do not accept that contention.
The minutes of the meeting of the Diocesan Council of 10 December 2007 also referred to the Bishop's having suspended a Mr Medojevic of the Church-school Congregation of St Stevan Decanski, Frankston (in Melbourne) from the position of church board president in Frankston. Bishop Irinej said that in doing so he was rendering a "presidial decision", exercising authority as Bishop based on circumstances where no meeting could be immediately called of the relevant authority that would be asked to confirm the decision. Bishop Irinej was asked whether he would accept he had no authority to suspend a president of a church-school congregation if he were to assume that the provisions of the constitution of the Serbian Orthodox Church were not applicable to the NGM-ANZ Diocese. He did not agree with the assumption "because reconciliation was already initiated and non-hierarchical clauses were not permitted and hierarchical clauses were admitted in order to oversee the Diocese".
The Diocesan Council purportedly confirmed Bishop Irinej's decision to suspend Mr Medojevic as president of the Church-school Congregation of St Stevan Decanski, Frankston, but the 1976 constitution contains no provision authorising the Diocesan Council to suspend a president of a church-school congregation.
These were examples of steps taken by Bishop Irinej as administrator of the NGM-ANZ Diocese on the assumption that he could exercise in respect of that Diocese the powers of a bishop of the Orthodox Church.
On 20 December 2007 Bishop Irinej issued a notice to all clergy, monastics, representatives of church-school communities and the members of the Diocesan Council that if anyone were to reject the Church National Assembly he had called and attended what he called the "unlawful Extended Plenum", the person would be stripped of his or her rights of financial membership in any church-school community and would be referred to the Ecclesiastical Court to be disciplined with the suspension of rights to any sacraments.
On the same day the Ecclesiastical Court published an announcement that any of the delegates for the Church National Assembly who took part in what was called a dissenting or schismatic gathering at the monastery for the purposes of a so-called Extended Plenum, instead of obeying the Bishop's call to attend the Church National Assembly in Sydney would be handed to the Ecclesiastical Court, excluded from the sacraments and stripped of rights of financial membership in any church-school community of the Serbian Orthodox Church.
Also on 20 December 2007, Mr Nesic, writing for the directors of the Property Trust Company, sent a letter to all Property Trust Company members, church-school congregations and others and launched an attack on Bishop Irinej, calling for as massive as possible a gathering at the monastery on 29 December.
Also on 20 December 2007 the Ecclesiastical Court of the NGM-ANZ Diocese decided that Mr Nesic should be excommunicated from the Orthodox Church. The decision of the Ecclesiastical Court stated that it had been made because of the public accusations in the article referred to at para [210] above for which Mr Nesic, unlike Mr Banjanin, had failed to apologise. The Ecclesiastical Court also stated that Mr Nesic had sown disturbances in the Diocese by continuing to bear false witness against the Bishop and had sought to bestow on himself authority in relation to the Property Trust that was exclusive of the Bishop, had otherwise misconducted himself, including by deploying the title "Free Serbian Orthodox Church" which had not existed for the last 16 years, and by making new accusations against his Bishop. The Ecclesiastical Court stated that Mr Nesic would be stripped of all rights to all sacraments and church rights as long as he declined publicly to repent, apologise and ask for forgiveness. Mr Nesic did not receive prior notice that proceedings had been brought against him in the Ecclesiastical Court. He did not have the opportunity to defend the charges before the Ecclesiastical Court pronounced its decision.
[15]
Meeting of 29 December 2007 at Monastery
A meeting that described itself as an Extended Plenum took place at the monastery on 29 December 2007, notwithstanding the Bishop's warnings. Mr Nesic was elected to chair the meeting. He deposed that there were approximately 75 people in attendance, including representatives from numerous church-school congregations and national organisations. The extent to which individuals attending were acting as duly elected representatives of church-school congregations or national organisations is not a matter that can or need be determined in these proceedings. By way of example, a Mr Petar Rajkovic deposed that he attended the meeting, but was later expelled and excluded from membership of the Cabramatta Church-school Congregation for having done so. He did not attend as an authorised representative of the Cabramatta parish which was loyal to the Serbian Orthodox Church and the Bishop. The meeting was not a meeting of the Church National Assembly.
Those attending the meeting on 29 December 2007 issued a media release that conveyed greetings to Patriarch Pavle, but also advised that the meeting had passed a vote of no confidence in the administrator, Bishop Irinej. The meeting stated that those present did not recognise the validity of a "so-called meeting" held on the same day in Sydney instead of at the monastery and would not acknowledge decisions that might come forth from that meeting. Various complaints were made against Bishop Irinej to the effect that he was acting in a dictatorial way that was leading to division in the NGM-ANZ Diocese. The media release also accused Bishop Irinej of leading the Diocese into sects and heresies by ordering it to become a member of the World Council of Churches described as the "heresy above all heresies".
Archbishop Chrysostomos of the OCOCG-HSIR asserted that the meeting that passed the vote of no confidence in Bishop Irinej was a meeting of the Church National Assembly and that the vote signalled a definitive break in communion of the FSOC-ANZ Diocese with Bishop Irinej. I do not accept that opinion. The meeting was not a Church National Assembly. The vote represented only the views of the individuals who attended. The vote was significant in its being an appeal to Patriarch Pavle. That appeal acknowledged the authority of the Serbian Orthodox Church whilst protesting against the conduct of the Bishop.
On 6 February 2008 Bishop Irinej wrote a letter to all parish administrations and committees of church-school communities of the NGM-ANZ Diocese condemning what he called the illegal and graceless meeting. He said that no such meeting could be held without the Bishop's authority and that those who had called the meeting had placed themselves outside the protection of the Church. The Bishop stated that various individuals either had been stripped of their rights to financial membership or would be stripped of those rights if they did not repent and apologise. The Bishop also stated that all who partook in the "Wider Plenum", unless they repented and apologised, were stripped of their rights to financial membership of any church-school community of the Serbian Orthodox Church, and all such "partakers" of the Wider Plenum were forbidden from receiving the sacraments with the exception of the sacrament of confession. No prior hearing was offered before the imposition of such punishments.
[16]
Disputes over the Monastery
In 2008 these divisions in the NGM-ANZ Diocese spilled over to the monastery. Prior to March 2008 the Bishop and clergy and the individual members of the Diocese generally had unfettered access to the monastery property. On 22 March 2008 the directors of the Property Trust Company resolved to change the locks and keys to buildings on the monastery grounds and further resolved that all access to the property would be a matter for the directors of the Property Trust Company. On or shortly after 22 March 2008 the locks were changed. This was done without the directors consulting Bishop Irinej.
On 27 March 2008 Bishop Irinej issued a notice addressed "To Whom it May Concern" stating that the monastery fell under the direct jurisdiction of the Bishop. He referred to Article 22 of the 1976 constitution quoted at [58] above.
In his notice of 27 March 2008 Bishop Irinej stated that the Abbot at the monastery was the very Reverend Father Danilo (Jokic) and that, in his absence, the Reverend Father Seraphim (Stevanovic), a brother of the Monastic Brotherhood, had full responsibility for the supervision of the monastery. He was to be assisted by Mr Veselinovic, a member of the Diocesan Council. Bishop Irinej stated that no changes were to be made to any of the buildings on the monastery in the absence of the Abbot without the express written permission of the Bishop, including the changing of locks and keys. Bishop Irinej published a decree that any and all locks and keys that had been changed or altered must be immediately changed back so that the Abbot and the Monastic Brotherhood would have sole custody of all keys.
Following the issue of Bishop Irinej's decree of 27 March 2008, members of the Diocese, acting with the Bishop's approval, changed the locks again. In April 2008 Mr Nesic (the chairman of directors of the Property Trust Company) called the police when he found that the monastery church had been locked and that members of the Property Trust Company could not enter. On a number of occasions in 2008 and up to 2010, the locks were changed by one group and then changed again by another.
On 2 May 2008 Mr Nesic wrote to Mr Veselinovic, who resided on the monastery property with Father Seraphim, and was authorised by Bishop Irinej to assist Father Seraphim in supervising the monastery. Mr Nesic stated that neither Mr Veselinovic nor Father Seraphim had approval to make decisions as to the use of the trust property. Mr Nesic stated that the express consent of the board was required for the holding of any event on the property, whether public or private.
Although the Property Trust Company was the legal owner of the property and the board controlled the exercise of its rights as legal owner, it held the property on a trust for the purposes of the NGM-ANZ Diocese and under the constitution of the NGM-ANZ Diocese the Bishop was entitled to supervise the "monastery board". The 1976 constitution of the NGM-ANZ Diocese said that the Bishop would be the supreme supervisor of the monastery. At this time no issue had been raised that Bishop Irinej had not been lawfully appointed as Bishop Administrator of the NGM-ANZ Diocese. If he were entitled to exercise the authority of a bishop under the constitution of the NGM-ANZ Diocese the actions of the board of the Property Trust Company in disregarding and acting contrary to his wishes was a breach of trust.
Counsel for the first to fifth defendants submitted that the bishop's authority under the 1976 constitution was only as to property of a monastery, not to property of the Property Trust Company on which the monastery stood. I do not accept that submission. There is nothing to indicate that a monastery when established would have separate legal personality. Articles 22 and 176 establish that the Bishop was to be the supervisor and have ultimate authority over a monastery when established, subject only to his responsibility to the Diocesan Council. The trust on which the Property Trust Company held the monastery required it and its directors to accept that authority.
Conflict over the use of the monastery property continued in 2008, 2009 and 2010. In April and May 2008 Father Saracevic was allowed by the Property Trust Company to conduct services at the monastery (and also at the church in Forrest, ACT). On 19 July 2008 members of the Forrest church-school congregation loyal to Bishop Irinej arranged for the locks on the monastery property to be changed so that Bishop Irinej could conduct a memorial service at the monastery, which he did. After the service, members of the congregation and clergy and Bishop Irinej gathered in the dining hall for lunches and speeches. There was a confrontation with a group of about 12 people who were members of the Property Trust Company. That evening Mr Nesic and Mr Banjanin purportedly ordered a Mrs Dusanka Timotic, a member of the Federation of the Circle of Serbian Sisters ("FCSS"), which customarily used and maintained the dining hall, and which was using the dining hall for the feast for a deceased whose memorial service had been held, to leave the hall within half an hour.
In September 2008 Mrs Timotic with other members of the FCSS and other members of the Diocese were again using the dining hall and were ordered to leave by Mr Nesic. The police were called. The FCSS's living quarters were ransacked and a photograph of Bishop Irinej was thrown in the garbage.
On 5 January 2009 Bishop Irinej wrote to the Property Trust Company reiterating his directive of 30 November 2007 that Father Saracevic (described as Mr Saracevic by the Bishop), as a defrocked priest, was prohibited from purporting to celebrate a service in any church or monastery.
The division in the Church affected a number of church-school congregations, including that of Forrest in the ACT. On 18 February 2009 the Property Trust Company wrote to Mrs Ivancevic of the Forrest church stating that she did not have the board's approval to conduct any business in the name of the St George Parish - Forrest or otherwise on the monastery. The Property Trust Company stated that "all public and private gatherings in the name of 'St George Parish - Forrest' are expressly prohibited." Mr Nesic who signed the letter for the Property Trust Company asserted that Bishop Irinej did not have the authority to "assume any interest in Trust Property; moreover, he has no authority to appoint Father Seraphim (Stefanovic), Mr Ilija Veselinovic nor any other persons to any position of responsibility over Trust Property without the express consent of our Board". If Bishop Irinej had the authority of a bishop of the NGM-ANZ Diocese this was a repetition of previous breaches of trust.
Bishop Irinej responded by writing to Mrs Ivancevic directing her that she should wholly ignore the letter sent by Mr Nesic and advising that she could proceed to hold the annual general meeting of the FCSS at the monastery. He stated that as Mr Nesic was excommunicated, he could not hold any office in the Serbian Orthodox Church (sic). He said that the Property Trust was an organic part of the Serbian Orthodox Church and its use on its letterhead of the coat of arms of the Serbian Orthodox Church and the name "Free" Serbian Orthodox Church on its letterhead was illegal. The Bishop also said that the maintenance and supervision of the monastery was under the direct control of the Bishop.
The evidence does not disclose whether the annual general meeting of the FCSS did take place at the monastery in February 2009. Mrs Ivancevic deposed that on other occasions in 2009, including for the celebration of feast days, the locks to the dining hall had been changed or damaged and either a locksmith had to be called or access obtained through a window.
On 11 April 2009, at its annual general meeting, the Property Trust Company resolved to ban Bishop Irinej from entering the monastery property. The members of the Property Trust Company purported to condemn the actions of Bishop Irinej. They accused him of annulling the Reconciliation Proposal by summoning the Church National Assembly for the NGM-ANZ Diocese on 29 December 2007 to be held in Sydney instead of at the monastery. They condemned him for unlawfully purporting to excommunicate members of the Diocese and extinguish membership of church-school communities. They accused the Bishop of not recognising the Property Trust in breach of Section 1 of Article 6 of the Reconciliation Proposal. Other accusations were made to which it is not necessary to refer.
On 8 September 2009 Mr Nesic, writing as chairman of directors of the Property Trust Company, again informed Bishop Irinej that the Board forbad him access to the Trust Property. Mr Nesic said that the Board was concerned that on the following weekend the Bishop intended to trespass over the trust property and forbad it. The Board reiterated that "any decree issued by you has no validity over Trust Property".
Despite this letter Bishop Irinej conducted a service at the monastery. After the service he joined the congregation for lunch on the monastery property. Again, the police were called. According to Mr Nesic the members of the Property Trust Company agreed to allow the Bishop to hold a service in the monastery church but not to go past the road next to the Bishop's residence. Apparently that was accepted and there was no confrontation.
On 30 October 2009 the Property Trust Company issued a notice evidently intended for the Bishop's attention threatening criminal prosecution of anyone who used the property without the authority of the manager of the Property Trust Company.
It is admitted on the pleadings that since 22 January 2010 Father Saracevic has conducted religious services at the monastery. The St Sava festival was scheduled for Saturday and Sunday 23 and 24 January. As a result of Father Saracevic's having conducted a liturgy in the monastery, those who regarded him as having been defrocked considered that the monastery church could no longer be used. Those who were loyal to Bishop Irinej sought to remove from the monastery church religious artefacts, including the antimension, an altar cloth that is a symbol of the Bishop's authority.
Members of the NGM-ANZ Diocese who are loyal to Bishop Irinej consider that they cannot attend any services inside the church at the monastery without the Bishop's blessing and that the monastery has been defiled by services conducted in it by those professing to be clergymen who do not have the Bishop's authority.
Father Saracevic disputes that he was validly defrocked as a priest of the FSOC-ANZ Diocese. He contends that his purported defrockment was not in accordance either with the terms of the FSOC-ANZ Diocese's constitution or canon law. He was not afforded a hearing. The question of whether Father Saracevic's purported defrockment as a priest of the Free Serbian Orthodox Church was valid should only be decided if necessary to determine a property right (Scandrett v Dowling (1992) 27 NSWLR 483 at 512-513, 554, 564 per Priestley JA). Whether or not Father Saracevic had been validly defrocked, there was no question but that the Bishop had forbad his being allowed to conduct services at the monastery. If Bishop Irinej were entitled to exercise the authority of Bishop of the NGM-ANZ Diocese, by allowing Father Saracevic to conduct services at the monastery, the directors of the Property Trust Company were causing a breach of the trust that required the monastery to be held for the purposes of the NGM-ANZ Diocese, which purposes included that the monastery board was subject to the supervision of the Bishop.
Archbishop Chrysostomos of the OCOCG-HSIR gave expert evidence for the first to fifth defendants. He accepted that there would have been a violation of the canon law of the Orthodox Church by the monastery church being used for the conduct of religious services by Father Saracevic and the Old Calendar Orthodox Church of Greece if Bishop Irinej were the legitimate bishop of the FSOC-ANZ Diocese. Archbishop Chrysostomos considered that there was no such violation because by the time Father Saracevic began conducting services at the monastery the FSOC-ANZ Diocese had already ceased to recognise Bishop Irinej as its bishop because of the vote of no confidence passed on 29 December 2007. I do not accept that that was the effect of the vote of no confidence by those who attended the meeting at the monastery on 29 December 2007. Nor were the resolutions passed resolutions of the NGM-ANZ Diocese. The resolutions voted on by the individuals who attended the meeting were not resolutions of the Church National Assembly, but only of the individuals who attended.
Archbishop Chrysostomos argued that the vote of 29 December 2007 represented a "walling-off" of the FSOC-ANZ Diocese from Bishop Irinej that was justified according to the Holy Canons and Holy Tradition because it touched on matters of both doctrinal innovation (ecumenism) and administrative injustice. He supported that opinion by reference to historical controversies in the Orthodox Church where individuals or groups severed liturgical and administrative unity with those in error. He cited the monothelitism controversy of the seventh century and the case of St Maximos the Confessor who rejected the belief, then being promulgated by the leaders of the Orthodox churches, that Christ, although having two natures, had only one will (a divine and not human will). Monothelitism was later condemned after the death of St Maximos the Confessor by the sixth ecumenical council in 680-681. Archbishop Chrysostomos cited Canon XV of the first-second synod held in Constantinople in 861 and the opinion of a 19th century Serbian Orthodox scholar that excuse and praise those who wall themselves off from a bishop who is preaching heresy.
If Bishop Irinej were entitled to exercise the authority of Bishop of the NGM-ANZ Diocese, I do not accept that the first to fifth defendants were justified in flouting his authority over the monastery on the ground that they were walling themselves off from the Bishop. They did not reject his authority over the monastery on the grounds of differences of faith or doctrine. The division was about church politics. I do not accept that there was any justification for rejection of Bishop Irinej's authority by reason of matters of administrative injustice. In many respects Bishop Irinej exceeded the authority that he had as Bishop-Administrator of the NGM-ANZ Diocese and failed to provide procedural fairness to individuals who were purportedly excommunicated or deprived of rights as members church-school congregations. But none of the examples cited by Archbishop Chrysostomos would support the view that claims of administrative injustice were matters of "faith and righteousness" that "… could reasonably constitute grounds - according to the letter of the canons and the spirit of the Church's super-canonical historical witness - for a walling-off from the SOC in terms consistent with the 1976 constitution". None of the examples provided by Archbishop Chrysostomos could support a "walling-off" on the basis of administrative injustices as distinct from matters of faith or doctrine.
By Article 20 of the 1976 constitution the bishop was responsible to the Diocesan Council for his work. Grievances by the Property Trust Company and by church-school congregations as to the Bishop's governance of the affairs of the Diocese could have been taken to the Diocesan Council.
[17]
Divisions in Church-School Congregations
From 2007 Bishop Irinej was in dispute with representatives of a number of church-school communities. These disputes are relevant in the present proceedings only to the extent to which they are relevant to the validity of the resolutions purportedly passed by the NGM-ANZ Diocese on 4 September 2010 to adopt the proposed text of a constitution for the Metropolitanate of Australia and New Zealand Serbian Orthodox Church, and to the first to fifth defendants' contention that the plaintiffs should be denied equitable relief because of Biship Irinej's purportedly declaring schismatic the church-school communities of St George, Manuka/Forrest, King Stefan of Dechani, Carrum Downs and St Nicholas, South Brisbane.
[18]
St Nicholas, South Brisbane
In 2005 Bishop Milutin appointed Father Stefanov as priest for the parish of St Nicholas, South Brisbane.
Some time prior to April 2007 the committee of the South Brisbane Church-school Congregation required Father Stefanov to sign a contract for him to serve as parish priest, which purported to give detailed directions as to how he was to perform that function. On 26 April 2007 Bishop Irinej wrote to Father Stefanov about a number of matters that were of concern to the Bishop in relation to the affairs of the church-school community. Bishop Irinej said he was flabbergasted at the "so-called contract" offered to Father Stefanov by the President (or, according to Bishop Irinej, the former President) Mr Vlastimir Cvetkovic. In colourful terms Bishop Irinej said that the making of a "priest employment contract" was uncanonical as the priest was not hired by the church-school congregation, but appointed by and answerable to the Bishop. Bishop Irinej reprimanded Mr Cvetkovic for this conduct. However, Article 159 of the 1976 constitution provides that a priest is to enter into a contract with a church-school congregation, which is to determine his wages.
In the same letter Bishop Irinej objected that the church-school congregation had described itself as the "Free Serbian Orthodox Church - School Community of St Nicholas of South Brisbane". Bishop Irinej said this was unauthorised because of the resolution passed by the Church National Assembly on 22 and 23 June 1991. He ordered that the prescribed name of the church be used in the church-school community.
Bishop Irinej also said that the Diocesan Council had resolved on 21 January 2005 that before calling an annual general meeting all church-school communities were required to seek a blessing from the Archbishop for the holding of such a meeting and that as the Church-school Community of St Nicholas of South Brisbane had failed to do so, the meeting held on 25 February 2007 was rescinded.
The 1976 constitution conferred no power on the Diocesan Council to stipulate such a condition to the holding of an annual general meeting. It did empower the "Diocesan authorities" to "annul immediately" a decision of a general meeting of a church-school congregation if the meeting were to "overstep the boundaries of its jurisdiction and intentionally prevent the execution of the directives of the Diocesan authorities". I see no reason to doubt that the Bishop would be a Diocesan authority for the purposes of this Article. But I do not consider Bishop Irinej had authority to annul the results of the previous annual general meeting which had not overstepped the boundaries of its jurisdiction. The Bishop purportedly authorised three named individuals to carry out the duties of the committee until a legitimate annual general meeting could be held.
A chaotic annual general meeting was held on 30 March 2008. At the meeting a new committee was elected. Messrs Avramovic, Cvetkovic, Jovanovic and Goren were elected, or purportedly elected, as President, Vice-President, Secretary and Treasurer respectively. According to Mr Petrovic, a member of the congregation whose evidence I accept, only Mr Avramovic was elected, and he chose the rest of the committee whose members were not elected.
Father Stefanov told the meeting that the Bishop must approve of the committee once it was elected. After speaking to Bishop Irinej, Father Stefanov refused to swear in the new committee.
Article 100 of the 1976 constitution provided that following the election of a new Managing Committee the President of the General Committee was to call upon the priest to officiate and administer the oath to the newly elected officers. Administration of the oath of office by the priest was not a prerequisite to the valid election of a member. Article 101 provided that if the priest were not present, then the President of the General Meeting was to administer the oath. A member who was elected but not present could take the oath at the first committee meeting.
From about 28 April 2008, at the invitation of the committee, liturgy was served at the South Brisbane church by a Father Fomin of the True Russian Orthodox Church. The True Russian Orthodox Church is not the Russian Orthodox Church. It is not in communion with the Serbian Orthodox Church. Essentially, Father Stefanov and members of the congregation loyal to him and Bishop Irinej were forced out of the church. Bishop Irinej has commenced proceedings in Queensland against the trustees of the land on which the church stands for its recovery. Father Stefanov deposed that he could not give services in the church after the True Russian Orthodox Church started giving services there. Under the 1976 constitution of the Free ANZ Diocese a church-school congregations had no authority to remove the priest or bring in another one without the approval of the bishop (Article 138).
With the approval of Bishop Irinej members of the South Brisbane congregation who were upset at the outcome of the meeting on 30 March 2008 convened, or purportedly convened, an extraordinary general meeting to be held on 10 August 2008 for the purposes of forming a new committee. Mr Avramovic said they had no right to be there. Mr Petrovic observed a group of about 30-35 people speaking a foreign language which he assumed was Russian who did not appear to be members of the St Nicholas Church.
The purported extraordinary general meeting was held outside the church hall attended by about 36 people. That meeting purportedly elected Mr Petrovic as President of the St Nicholas Church Community. His purported election was approved of by Bishop Irinej. On 24 August 2008 the management committee which had assumed office on 30 March 2008 purportedly excommunicated (that is, excluded) Mr Petrovic from the Parish School Community for illegally arranging the meeting.
Following the Church's being used by a priest who was not in communion with the Serbian Orthodox Church (or the NGM-ANZ Diocese for that matter), Bishop Irinej appointed Father Stefanov to act as administrator for the members of the congregation who were loyal to him. I infer that he and they considered that the church could not be used by Father Stefanov until it had been re-blessed because of its use by a person purporting to be a cleric of a church not in communion with the Serbian Orthodox Church. In any event, Father Stefanov had been excluded by the committee that had assumed office on 30 March 2008. The result was a division of the church-school congregation.
Neither side of the argument complied with the terms of the 1976 constitution. The Bishop had no right to exercise a power of veto over who were elected as members of the committee of the church-school congregation. But only the president was elected. He purportedly nominated the other office holders. The constitution required all of the officeholders to be elected by the general meeting. The priest had no right not to administer the oath to newly elected officer holders. The committee had no right to remove the priest or to appoint a new priest to the congregation; let alone a priest not of the Serbian Orthodox Church or the NGM-ANZ Diocese, but of a church not in communion with either of them.
At some time between August 2008 and 21 February 2010 a Mr Branislav Lujić assumed the role of president of the church-school community. The evidence does not disclose how he purportedly assumed that office. A meeting described as an annual general meeting of the community was held on 21 February 2010. Father Fomin attended. Thirty-five members attended. The minutes recorded that there were 22 full members absent and four proxies, suggesting that in total the church-school community (which would not include those who had separated or been excluded) totalled about 60 persons. Mr Nesic was one of the members attending. The minutes record that Mr Lujić was the only candidate nominated for the new management committee and he was unanimously elected and thereafter selected his committee. (This corroborates Mr Petrovic's evidence that similar steps were taken at the annual general meeting in March 2008.) This was irregular if the church-school community were still bound by the terms of the 1976 constitution, which it would be if it was a church-school congregation that was still part of the NGM-ANZ Diocese. Neither the minutes, nor any other evidence, establishes that the executive committee was validly elected (assuming the church-school congregation remained part of the NGM-ANZ Diocese).
Father Stefanov and Mr Petrovic were invited by Bishop Irinej as delegates of the St Nicholas Church-school Congregation to the assembly held on 3 and 4 September 2010. Under Article 113 of the 1976 constitution the priest for a church-school congregation is an ex officio member of the executive committee. As Father Stefanov had not been removed as priest, he held that position, even though he was not recognised by those who had assumed physical control of the church building and held themselves out as members of the executive committee. However, under Article 24 he was not a delegate of the church-school congregation. Under Article 24 delegates were to consist of two laymen, the president of the church-school congregation being a delegate ex officio, and the other delegate being elected.
Bishop Irinej purportedly appointed trustees to the church-school community from those members of the community who had been excluded by the church and were loyal to him.
The 1976 constitution conferred no such power on the Bishop. Article 142 provided that all questions in dispute by a church-school congregation or individuals of it against the parish priest must be submitted to the diocesan bishop who could resolve the matter in his own discretion, or submit it to the Ecclesiastical Court or to the Diocesan Council, depending on the particular characteristics of the accusations. That Article was not invoked.
Conflicting expert evidence was given as to whether, consistently with the Holy Canons and Orthodox Tradition, the powers of an Orthodox Bishop extended to refusing to invite representatives of a church-school congregation to a diocesan assembly on the ground that it was in schism. Archbishop Chrysostomos expressed the view that it was only bishops synodally gathered who could make a determination of schism and only then after following "due process" and the proper examination of the issues in each individual case. In the absence of a decision of a synod, the authority of a bishop was restricted to reproving, rebuking or exhorting his flock. Archbishop Chrysostomos was also of the view that once a schism has been identified and censured at the synodal level, the hierarch's powers were limited to deposing a clergyman in schism and excommunicating individual schismatic laymen. In support of his opinion that only a synod of bishops could make a determination of schism, Archbishop Chrysostomos cited the opinion of Bishop Nikodim (Mialas), a Serbian Canonist. Father Rentel, who gave expert evidence for the plaintiffs, disagreed. Consistently with Antioch canon nine, a bishop had the authority within his diocese to "manage it with piety … and settle everything with judgment". In Father Rentel's opinion this authority extended to not inviting to a diocesan assembly a church-school congregation that the bishop determined was in schism.
For the reasons below, at least prior to the resolutions passed, or purportedly passed, on 4 September 2010, the NGM-ANZ Diocese had not been absorbed into the Serbian Orthodox Church. Under the 1976 constitution, being the relevant constitution as amended in only minor respects in 1988, the Bishop did not have the same authority as an Orthodox bishop in the wider church. The 1976 constitution contained detailed provisions dealing with disputes within church-school congregations. Article 142 provided that all questions in dispute by church-school congregations and individuals against the parish priest were to be submitted to the Bishop who was to review the matter. He had the right, but not the obligation, to refer it to the Ecclesiastical Court or the Diocesan Council. The Bishop was entitled to resolve the dispute "within his own discretion and his designed rights". If the disagreement was between the priest and teachers on one side, and a committee of the church-school congregation on the other, it was to be submitted to the Diocesan Council (Article 103).
The work of the Diocesan Council included seeing that church-school congregations performed their duties correctly (Article 44). It has power under Article 110 to annul the decision of a general meeting of the church-school congregation if the general meeting overstepped the boundaries of its jurisdiction and intentionally prevented the execution of the directives of the Diocesan Authorities, but in that event the affairs of the church-school congregation were to be entrusted to the retiring committee until a new general meeting was called.
The constitution did not empower either the Bishop or the Diocesan Council to appoint trustees in place of a church-school congregation committee. Nor did it permit the Bishop or the Diocesan Council to invite as a delegate someone of a church-school congregation to a Church National Assembly someone who was not the president of the church-school congregation or an elected representative for that purpose.
Having regard to the particular terms of the 1976 constitution, I do not think that there is any scope for the plaintiffs to invoke any wider powers a bishop of an Orthodox church may have in accordance with the canons or holy tradition. Whatever the extent of those powers they were inapplicable to a bishop of the NGM-ANZ Diocese acting under the 1976 constitution.
Bishop Irinej said that provisions of the 1976 constitution could no longer be applicable once the NGM-ANZ Diocese fell within a hierarchical structure. He said that although there was nothing in the 1976 constitution that gave the Bishop the power to appoint a trusteeship over church-school congregations, Article 206 of the constitution of the Serbian Orthodox Church empowered the Diocesan Executive Board to dissolve a church-school congregational council and the executive committee and appoint a special temporary trusteeship. He considered that a similar power needed to be implied in the case of the NGM-ANZ Diocese to deal with what he called gaps in the constitution that needed to be supplemented as the NGM-ANZ Diocese had come within a hierarchical structure. Bishop Irinej's assumption was that the NGM-ANZ Diocese had come within the hierarchical structure of the Serbian Orthodox Church. For the reasons below that was incorrect.
[19]
St George, Manuka/Forrest
On 25 January 2008 the Diocesan Council purportedly resolved to dismiss the Church Board of the St George Manuka/Forrest Church-school Congregation and to appoint a "trusteeship" to the church-school congregation on the recommendation of the local priest. Notice of the decision was conveyed in a letter dated 31 January 2008 to the local priest, Father Nikola Bilic, described as "administrator" of the church-school community. The letter gave as the reason for removing the Church Board that its president, vice-president, treasurer, secretary, and four others had attended the "illegal and graceless so-called 'Extended Plenum' held on 29 December 2007" at the monastery. The individuals concerned were also purportedly stripped of financial membership of any church-school congregation and banned from receiving Holy Communion or other religious rites unless they repented and apologised. Two other reasons were given for the decision. First, that the secretary of the Church Board had sent an official letter to a court in Canberra stating that a Mr Dragan Dimitrovic and Mr Steva Ilic were the official and legitimate representatives of the church-school congregation of St George in Canberra, and secondly that the Diocesan Council had given permission for the holding of the annual general meeting on 2 March 2008, but the committee had changed the date of the meeting to 17 February. The Diocesan Council stated that the meeting would be held on 2 March and would be led by emissaries of the Diocesan Council, being Father Jokic acting as the Bishop's chancellor, and Mr George Bubalo, a member of the Diocesan Council. The "trustees" who were appointed by the Diocesan Council in place of the Church Board included Mrs Ivancevic as president.
A publication of the decision dated 7 February 2008 stated that the Diocesan Council was acting under Articles 44.1, 117 and 119 of the constitution.
Under Article 32 of the 1976 constitution the Diocesan Council was the main and "controlling" organ in the Diocese for external church-religious matters. Under Article 44 its functions included seeing that church-school congregations performed their duties correctly and conscientiously. Under Article 44(5) its functions included hearing and resolving any grievances about elections of delegates for the Assembly. Article 84 provided that church-school congregations were subject to the rules and orders of the Diocesan Authorities headed by the Diocesan Bishop. This included both the Diocesan Council and the Diocesan Ecclesiastical Court. As noted above under Article 103 disagreements between priests and teachers on the one side, and the committee of the church-school congregation on the other were to be submitted for consideration to the Diocesan Council. Article 110 conferred power on the "Diocesan Authorities" to annul decisions of a general meeting that overstepped the boundaries of its jurisdiction. That Article would not have been applicable to the purported appointment of trustees because of the refusal of members of the committee to obey the directions of the Bishop that had been confirmed by the Diocesan Council. The executive committee of the church-school congregation was required by Article 117 to uphold strictly directives of the Diocesan Authorities. However, under Article 118 the executive committee (and not the Diocesan Council) had authority to decide a date and place for the calling of a general meeting of a church-school congregation. Article 119 deals with the role of president of a church-school congregation and is not relevant to the powers of the Diocesan Council.
In my view the members of the committee of the Forrest church-school congregation who defied the Bishop and the Diocesan Council by attending the meeting at the monastery on 20 December 2007 were in breach of Article 117 of the constitution that required the committee to uphold strictly all of the directives of the Diocesan Authorities. However, the constitution did not empower the Diocesan Council, just as it did not empower the Bishop, to replace the members of the committee with trustees.
The committee of the Forrest church-school congregation evicted the parish priest, Father Bilic. It had no authority to do so. Mrs Ivancevic deposed that Father Saracevic commenced liturgies at the Forrest church in about May 2008. That was with the consent, and I infer at the invitation, of the committee. Father Saracevic gave evidence that in 2008 the committee applied to the Synod of the Bishops of the OCOCG-HSIR seeking that the Forrest church come within its jurisdiction. On 29 April 2009 the Synod of the OCOCG-HSIR purportedly appointed Father Saracevic as parish priest to the Forrest parish.
The committee of the Forrest church-school congregation had no authority under the 1976 constitution to subject itself to the spiritual jurisdiction of another church or to appoint a priest contrary to the wishes of the Bishop.
[20]
Saint Stefan of Dechani, Carrum Downs
Father Nedeljko Milanovic was appointed as priest of the St Stefan of Dechani church in Carrum Downs (near Frankston) in Victoria by Bishop Sava in 1996. On 4 July 2008 the executive board of the Carrum Downs church-school congregation purported to dismiss Father Milanovic and requested that he vacate the parish residence. The church-school congregation did not have that power. Bishop Irinej told Father Milanovic that his dismissal was canonically invalid and ordered that he remain in his position. On 29 July 2008 Bishop Irinej wrote to Messrs Medojevic and Vujatov of the executive committee in relation to the purported notice of termination of Father Milanovic's service as parish priest and in relation to a notice to members of the church-school congregation of a proposal to change its name to the "Free Serbian Orthodox Church and school congregation St King Stefan Decanski Inc." Bishop Irinej said that on three separate occasions the Diocesan Council had relieved all participants in the Assembly of 29 December 2007 at the monastery of all their financial and spiritual rights in any and all diocesan and congregational bodies. He said that Mr Medojevic had been personally relieved of his position as congregational president and had been replaced by a Mr Milutin Kostic by the Diocesan Council on 20 December 2007. Bishop Irinej said that the decisions reached at a purported annual general meeting of the church-school congregation on 22 June 2008 and at a special assembly on 25 July 2008, including a decision to relieve the parish priest, were illegal and ineffective. He noted that only the Diocesan Bishop had power to appoint or to relieve a parish priest of his duties.
Bishop Irinej also asserted that the Free Serbian Orthodox Church had ceased to exist with the decision of the Church National Assembly held on 22 and 23 June 1991 when the church was "officially changed" to the New Gracanica Metropolitanate and became an organic part of the Serbian Orthodox Church.
The committee rejected Bishop Irinej's position. On 7 September 2008 it denounced all his jurisdiction over the church and advised that his presence on the property was not welcome.
On 8 September 2008 the committee wrote to Father Milanovic stating that he had been given three months' notice commencing from 1 July 2008. The committee purportedly suspended Father Milanovic from his duties as parish priest and ordered him to vacate his residence by no later than 30 September 2008. On 9 September 2008 Bishop Irinej directed Father Milanovic to prevent any outside clergy from entering the parish church. In that letter Bishop Irinej noted that the locks on the church had been changed and that Father Milanovic had not been given keys. The Bishop authorised Father Milanovic to change the locks if he could not obtain a set of keys.
The upshot of this confrontation was that Father Milanovic and those members of the church-school congregation loyal to Bishop Irinej were excluded from the church premises. On 10 June 2010 Bishop Ambrose as a bishop of the OCOCG-HSIR, at the request of Father Saracevic, accepted Father Zvonimir Jovic under the jurisdiction of the OCOCG-HSIR. Father Jovic had been a priest in the NGM-ANZ Diocese, but he had been without a parish since 1996. Bishop Ambrose purportedly appointed Father Jovic as parish priest of the "Serbian Orthodox [sic] Parish of St Stefan Dechanski Melbourne". If the church-school congregation of Carrum Downs remained part of the NGM-ANZ Diocese, Bishop Ambrose had no jurisdiction in June 2010 to appoint a priest to the church-school congregation. The church-school congregation had no authority to remove Father Milanovic. Because Father Milanovic was excluded from the church, and services were conducted by a person not serving as a priest sanctioned by the Bishop, Father Milanovic could not use the church, even if he had been given access to it, until the church was reblessed by the Bishop.
The congregation that was loyal to Bishop Irinej and Father Milanovic formed a committee called the St Basil Committee. New land was purchased and a church built now known as the Parish of St Basil of Ostrog Mission in Langwarrin.
[21]
Saints Peter and Paul, Wodonga
Bishop Irinej did not invite any representative of the church-school congregation of Wodonga that had been part of the NGM-ANZ Diocese to the meeting of 3 and 4 September 2010. Since 2008 a group of persons from the church known as St Peter and Paul Church of Wodonga have rejected the authority of Bishop Irinej. On 5 January 2009 Bishop Irinej advised the executive board of the Wodonga church-school congregation that the financial membership of five individuals had been suspended by reason of their participation in the "Extended Plenum" of 29 December 2007 at the monastery. It appears that on 2 January 2010 a meeting was held between members of the church-school congregation of St Peter and Paul, Wodonga and the members of a church in the SOC-ANZ Diocese in Wodonga at which a resolution was passed to effect a merger of the two churches. On 4 June 2012 Sifris J of the Supreme Court of Victoria held that the resolution was invalid (Tomasevic v Jovetic [2012] VSC 223 at [51]-[56]).
On 29 April 2010 the president and deputy secretary of the "Free Serbian Orthodox Church-school Congregation 'Saints Apostles Peter and Paul' Incorporated" wrote to the Synod of the Old Calendar Orthodox Church of Greece advising that "our financial members" had unanimously decided on 29 April 2010 to ask that they be placed under the jurisdiction of the Old Calendar Orthodox Church of Greece. They advised that they had addressed their requests for assistance and understood that Father Saracevic had told the OCOCG-HSIR of the problems with the community. Father Saracevic gave evidence that the Old Calendar Church agreed to provide spiritual jurisdiction to Wodonga. This was before the meeting of 3 and 4 September 2010. Again, if, as was subsequently held, the resolution at the meeting on 2 January 2010 for the merger of the two churches was invalid, then the church-school congregation of Wodonga in the Free ANZ Diocese remained bound by the 1976 constitution and had no authority to seek to place the congregation under the spiritual jurisdiction of another church or to have another priest appointed to it. In 2010 Father Jovic who had been serving as a priest of the OCOCG-HSIR at Carrum Downs moved to Wodonga.
[22]
Meetings of 3 and 4 September 2010
Work on a new constitution had resumed after the appointment of Bishop Irinej. In late 2007 a joint legislative committee consisting of representatives of both the NGM-ANZ Diocese and the SOC-ANZ Diocese had prepared a draft of a new constitution for a unified diocese and given it to Bishop Irinej. Messrs Nesic, Banjanin and others complained that the draft did not represent the views of the members of the NGM-ANZ Diocese.
On 15 June 2010 Bishop Irinej gave notice convening assemblies of the NGM-ANZ Diocese and the SOC-ANZ Diocese to be held on 3 and 4 September 2010 to consider the proposal for the adoption of a unified constitution. The proposed constitution provided for the elevation of the joint dioceses to a Metropolitanate. In essence it provided for the Metropolitanate to be an integral part of the Serbian Orthodox Church. It provided that the head of the Metropolitanate was to be the Diocesan Hierarch, who would be the supreme authority on all church life and order in the Metropolitanate. He was to govern with the assistance of "church-hierarchical and church-administrative governing authorities as identified in this Constitution". The presbyterian (or congregational) aspects of the 1976 constitution of the FSOC-ANZ Diocese were not replicated in the proposed constitution.
The Property Trust Company threatened to injunct the Bishop from proceeding with the adoption of a unified constitution. On 13 August 2010 Messrs Hunt & Hunt writing on behalf of the Property Trust Company and purporting to act on behalf of various unidentified church-school congregations asserted that the creation of the proposed Metropolitanate would be inconsistent with a number of terms of the Proposal of Reconciliation of April 1991 because the New Gracanica Metropolitanate would be abolished and church-school congregations and the Free ANZ Diocese would lose control and ownership of their property. Messrs Hunt & Hunt contended that the proposed new constitution was inconsistent with the constitution of the Free ANZ Diocese. They also contended that Bishop Irinej as a "former" administrator of the Free ANZ Diocese had no capacity to implement the proposed changes.
In the event, no proceedings were brought to restrain the holding of the proposed meetings.
On 26 August 2010 Hunt & Hunt wrote a letter addressed to the President and Committee of each of the 16 church-school congregations referring to the notice of meeting, discussing the consequences for the church-school congregations if the resolution to adopt the proposed new constitution were passed, and asserting that Bishop Irinej had no power to implement the proposed change.
On 4 September 2010 parallel assemblies of the NGM-ANZ Diocese and the SOC ANZ Diocese were held at the St Sava Church-school Community in Greensborough, Melbourne. The two assemblies were held in the same room. As the proposed articles of the new constitution were debated, resolutions were passed by delegates to both assemblies in each other's presence.
Resolutions were passed (or purportedly passed) by both assemblies to accept the Metropolitanate constitution. That resolution was approved by the Holy Assembly of Bishops in Belgrade on 23 May 2011.
The first to fifth defendants contend that the resolutions were ineffective on a number of grounds. First, they submit that the Church National Assembly of the Free ANZ Diocese (or NGM-ANZ Diocese) could only meet where there was a diocesan bishop and Bishop Irinej was not the diocesan bishop of that Diocese.
Secondly, they submit that as Bishop Irinej was appointed as Bishop Administrator of NGM-ANZ Diocese, he only had the powers given by the constitution of the Serbian Orthodox Church to the administrator of a diocese and that did not include the making of fundamental changes.
Thirdly, they submit that the Church National Assembly in any event lacked power to enter into a union with the Serbian Orthodox Church or alternatively, to depart from a fundamental or essential tenet of the Free ANZ Diocese, namely the independence of its governance.
Fourthly, they submit that organisations connected with the Free ANZ Diocese, being the Serbian National Defence Council of Australia Inc., the Serbian Association Dragoljub Draza Mihailovic Inc. and the Central Committee Serbian Chetniks and also the members of the Property Trust Company were not entitled to attend the Assembly, but were not invited.
Fifthly, they submit that in any event Bishop Irinej did not invite all the delegates who were entitled to attend a Church National Assembly of the Free ANZ Diocese. In particular, they contend that the proper delegates from the Church-school Communities of St George, Manuka/Forrest ACT, King Stefan of Dechani, Carrum Downs Victoria, and St Nicholas South Brisbane, and Saints Peter and Paul Wodonga, were not invited. In the case of the first three Church-school Communities Bishop Irinej's evidence was that they were in schism and he had appointed trustees of the communities who were the persons invited to represent them. The first to fifth defendants say that the trustees who so attended did not represent the Church-school Communities and that Bishop Irinej did not have the power to appoint interim boards or trusteeships to those communities. In the case of Wodonga, the Bishop did not invite any representative of the Free ANZ Diocese acting on the basis that it had merged with the Serbian Orthodox Church ANZ Diocese Church-school Community at Wodonga. The first to fifth defendants say that it was later held by the Supreme Court of Victoria that resolutions purportedly passed at a meeting to achieve such a merger were invalid (Tomasevic v Jovetic [2012] VSC 405).
Sixthly, they submit that the resolutions purportedly passed were invalid because the meetings were not properly conducted and that it was not permissible for two meetings of the two church assemblies to be held in parallel.
In some cases there is a dispute as to the authority of delegates of particular church-school congregations to act for them. These were the church-school congregations that were divided. Even if those church-school congregations are taken not to have voted in favour of the new constitution, the majority of church-school congregations of the NGM-ANZ Diocese did so. Bishop Irinej deposed that as individual issues were discussed they were resolved by majority vote. There was a final vote on the new constitution. The result was that except for one abstention, all delegates voted in favour.
Before dealing with the validity of the resolution passed on 4 September 2010, it is convenient to deal with the plaintiffs' argument that the NGM-ANZ Diocese had already become part of the Serbian Orthodox Church.
[23]
Had the Free ANZ Diocese merged with the Serbian Orthodox Church before September 2010?
In their opening submissions counsel for the plaintiffs sought to reduce the issues arising on the plaintiffs' principal claim to two, namely, whether the FSOC-ANZ diocese accepted the reconciliation which provided, inter alia, for the election of a diocesan bishop by the Holy Assembly of the Serbian Orthodox Church, and whether the use of the monastery in accordance with the reconciliation was consistent with the trust purposes. In opening, Mr Glacken QC who appeared with Ms Taylor for the plaintiffs, submitted that two fundamental tenets of the Eastern Orthodox Church of which the Serbian Orthodox Church is a member, informed the core of the case and what really is in issue. Counsel submitted that the first tenet is that:
"What holds the Orthodox Church together is the act of communion of the sacraments. The Orthodox theology is a theology of communion and this operates at two levels … first, across each local church that makes up the wider Orthodox Church, the bishops of each local church are in communion with one another; secondly, within each local church the faithful are in communion with their bishop."
The second and related tenet is that an essential element of the Orthodox Church is the apostolic succession of bishops with the threefold power of ruling, teaching and celebrating the sacraments. It is said that if anyone is not with the bishop, they are not in the church.
The legal significance of these propositions to the issues in the case is unclear. I understand the plaintiffs' position to be that the most significant aspect of the trust purpose that the land be used for the purposes of the FSOC-ANZ diocese is the spiritual aspect of that purpose. The core tenet was that the FSOC-ANZ diocese regarded itself as part of the Orthodox Church and held to the tenets of Orthodoxy. In his book "The Orthodox Church" Timothy Ware, Metropolitan Kallistos of Diokleia, wrote (at pp 245-246):
"'The Church is one. Its unity follows of necessity from the unity of God'. So wrote Khomiakov in the opening words of his famous essay. If we take seriously the bond between God and His Church, then we must inevitably think of the Church as one, even as God is one: there is only one Christ, and so there can be only one Body of Christ. Nor is this unity merely ideal and invisible; Orthodox theology refuses to separate the 'invisible' and the 'visible Church', and therefore it refuses to say that the Church is invisibly one but visibly divided. No: the Church is one, in the sense that here on earth there is a single, visible community which alone can claim to be the one true Church. … Unity is one of the essential characteristics of the Church. … There can be schisms from the Church but no schisms within the Church. …
… But if we ask how this visible unity is maintained, Rome and the east give somewhat different answers. For Rome the unifying principle in the Church is the Pope whose jurisdiction extends over the whole body, whereas Orthodox do not believe any bishop to be endowed with universal jurisdiction. What then holds the Church together? Orthodox answer, the act of communion in the sacraments. The Orthodox theology of the Church is above all else a theology of communion. Each local Church is constituted, as Ignatius saw, by the congregation of the faithful, gathered round their bishop and celebrating the Eucharist; the Church universal is constituted by the communion of the heads of the local Churches, the bishops, with one another. Unity is not maintained from without by the authority of a Supreme Pontiff, but created from within by the celebration of the Eucharist. The Church is not monarchical in structure, centred round a single hierarch; it is collegial, formed by the communion of many hierarchs with one another, and of each hierarch with the members of his flock. The act of communion therefore forms the criterion for membership of the Church. An individual ceases to be a member of the Church if she or he severs communion with her or his bishop; a bishop ceases to be a member of the Church if he severs communion with his fellow bishops." (Emphasis in original.)
When the Serbian Orthodox Church and the Free Serbian Orthodox Church achieved spiritual communion as a result of the Reconciliation Proposal and the concelebration of the liturgy, then, according to the plaintiffs, whether formal steps were taken in accordance with the constitution of the FSOC-ANZ Diocese to achieve administrative unity, or whether the provisions of that constitution were adhered to in respect of the appointment of a bishop to administer the FSOC-ANZ Diocese, was not to the point. On the plaintiffs' submission union with the Serbian Orthodox Church was achieved with the reconciliation and concelebration of the liturgy so that the monastery was to be held for the purposes of the diocese as administered by the bishop whether other legalities were satisfied or not.
The first to fifth defendants submitted that the FSOC-ANZ Diocese was a separate church with its own doctrines, ordinances and tribunals. It was a separate and distinct Orthodox Church in Australia. They submitted that separation from the Serbian Orthodox Church was a core tenet of the Free Serbian Orthodox Diocese and went to the core of the trust. They submitted that the "theology of communion" in the sense in which that phrase is understood in the Eastern Orthodox Church did not apply to the Free Serbian Orthodox Church Diocese at the time of its establishment because it was then not part of the Eastern Orthodox Church, but was an independent Orthodox Church. At the time of its establishment it was not in communion with any of the other 14 (or 15) autocephalous churches. Prior to the reconciliation, it was recognised (for a time) by only one of those churches, namely the Patriarchate of Alexandria. It had an independent status and was an autonomous church. The reconciliation and concelebration of the liturgy brought it into spiritual communion with the Serbian Orthodox Church, but spiritual communion did not connote a surrender of its status as an independent and autonomous church.
I do not accept the plaintiffs' submission that the Free ANZ Diocese had become part of the Serbian Orthodox Church whether or not the resolution to adopt a new constitution to establish the SOC-ANZ Metropolitanate on 4 September 2010 was validly passed. It is true that Bishop Irinej frequently acted as if the NGM-ANZ Diocese were part of the Serbian Orthodox Church. The same assumption was made in parts of the plaintiffs' case. Hence the plaintiffs pleaded that the Property Trust Company acted in breach of trust by engaging "Mr Dragan Saracevic, a former priest of the Serbian Orthodox Church stripped of his clerical rank" to conduct non-canonical church services at the monastery. Father Saracevic was not a priest of the Serbian Orthodox Church. He was a priest of the Free Serbian Orthodox Church. Similarly, Father Rentel who gave expert evidence for the plaintiffs expressed the opinion that the Free Serbian Orthodox Church had been reintegrated into the Serbian Orthodox Church beginning in 1991 when the two groups that had been separated became fully in communion. Father Rentel conceded that liturgical concelebration did not necessarily mean administrative union, reincorporation or reintegration, but said that those were the matters that were intended by the concelebration of divine liturgy on 15 February 1992 and subsequent liturgies. It was his position that the concelebration of the liturgy on 15 February 1992 and the subsequent further and regular concelebrations of the liturgy by the bishops and priests of both organisations brought about a union.
But it is clear that both churches understood that the recognition by the Serbian Orthodox Church of the validity of the appointment and actions of the bishops and priests of the Free Serbian Orthodox Church including the validity of the sacraments administered by them, the recognition by the clergy and laity of the NGM-ANZ Diocese of the patriarch in Belgrade as primate, the acceptance by the NGM-ANZ Diocese of bishops appointed from Belgrade, the concelebration of liturgies, and the close relations between NGM-ANZ Diocese and the SOC-ANZ Diocese did not connote that the two churches had become one. The facts that separate appointments were made of bishops and bishop-administrators to the SOC-ANZ Diocese and the NGM-ANZ Diocese, that a committee was charged with the task of drawing up a new constitution, and that the new constitution was submitted to the vote of members of both the SOC-ANZ Diocese and the NGM-ANZ Diocese, show that both churches recognised their continued existence as separate churches until the vote was taken on 4 September 2010. The Reconciliation Proposal recognised that the two churches would exist as separate churches until full administrative unity was achieved by resolution of the Church National Assemblies. In any event, for the reasons earlier given, the delegates from the Free Serbian Orthodox Church who agreed to the Reconciliation Proposal did not have authority from the Free ANZ Diocese that would permit them to agree to changes that would result in the Free ANZ Diocese merging with the Serbian Orthodox Church without a resolution of the Church National Assembly. For the reasons given earlier, the Church National Assembly of the Free ANZ Diocese gave only conditional acceptance to the reconciliation proposal and the condition was not satisfied. Instead, Bishop Sava and Bishop Luka and their successors took steps to bring about a union between the two churches. That union (if it could lawfully be achieved at all), could only be achieved if the Church National Assembly of the NGM-ANZ Diocese decided to merge with the SOC-ANZ Diocese.
I turn then to the grounds on which the resolution of 4 September 2010 to adopt the new constitution for a Metropolitanate is challenged.
[24]
Authority of Bishop Irinej over the Free ANZ Diocese
The first ground on which the first to fifth defendants deny the validity of the resolution for the adoption of the new constitution at the meeting on 4 September 2010 is that Bishop Irinej had no authority to convene the Church National Assembly. That contention was put on two grounds, first, that Bishop Irinej was not validly appointed to a position of authority in the NGM-ANZ Diocese, and secondly, that even if he were, the authority of an administrator did not extend so far as to cause the NGM-ANZ Diocese to merge with the SOC-ANZ Diocese.
There is no question that Bishop Irinej was not appointed to a position of authority in the NGM-ANZ Diocese in accordance with the 1976 constitution. There is no question but that the bishops appointed before him by the Holy Assembly in Belgrade were also not appointed in accordance with the 1976 constitution. Moreover, for the reasons given earlier, the 1991 appointment of Bishop Vasilje as Bishop of the Free ANZ Diocese was not made in accordance with the constitution. Nor was the assumption by Metropolitan Irinej of the position of administrator of the Diocese following the death of Bishop Petar in accordance with the constitution. Nor was the appointment of then Archimandrite Sava as Metropolitan Irinej's assistant to administer the Diocese consistent with the constitution. Over many years the Free ANZ Diocese had adopted practices for the appointment of its hierarch that were not consistent with its constitution.
The method of appointment of bishops and the governance of the diocese in the absence of a bishop were not matters of fundamental doctrine or principle that could not be altered. The practices, whereby the members of the Free ANZ Diocese accepted the appointments of hierarchs, either as bishops or administrators, became part of the terms and conditions of the consensual compact of the members of the Free ANZ Diocese and were as effective as if they had been made in accordance with the terms of the constitution (see paras [132]-[137] above).
In assuming the role of Bishop-Administrator of the NGM-ANZ Diocese Bishop Irinej did not have the authority of either a bishop or a bishop-administrator of the Serbian Orthodox Church. He had the authority given to a bishop of the NGM-ANZ Diocese in accordance with its 1976 constitution. To the extent that that constitution expressly allowed for the augmentation of powers by reference to the church's being governed by Holy Tradition and the Holy Canons, then Bishop Irinej had those powers. But he was limited in his powers by the limitation on the powers imposed by the 1976 constitution, including the limitation necessarily implied by the powers conferred on other diocesan organs, in particular the Diocesan Council and the Church National Assembly.
In cross-examination Bishop Irinej was asked to accept that as he was appointed by the Holy Assembly of Bishops as administrator of the NGM-ANZ Diocese, his authority was subject to limitations contained in Article 112 of the constitution of the Serbian Orthodox Church which provides in substance that where an administrator is appointed to a vacant diocese, there can be no change to diocesan organisation or any important changes in matters that were initiated during the administration of the former diocesan bishop. The same point was taken by Hunt & Hunt in their letter challenging the validity of the meeting called to be held on 3 and 4 September 2010. This was not a ground that was pleaded for impugning the validity of the resolution of 4 September 2010, but nonetheless the first to fifth defendants submitted that Article 112 was a limitation on Bishop Irinej's powers. I do not agree.
It is true that Bishop Irinej asserted that the NGM-ANZ Diocese was part of the Serbian Orthodox Church prior to the resolution of 4 September 2010 and the resolution of the Holy Assembly of Bishops accepting the Metropolitanate on 23 May 2011, and thus could be administered in accordance with the constitution of the Serbian Orthodox Church. But that was not the position. Although he was appointed as Bishop-Administrator by the Holy Assembly of Bishops the constitution of the NGM-ANZ Diocese knew no such office. The first to fifth defendants accepted that under canon law, by the doctrine known as the Doctrine of Economy or Oeconomia a church could appoint an administrator where there was a vacancy in the office of bishop, but they submitted that such an appointment could not be imposed by a different church. I doubt that that canonical principle could have any role to play, given that the 1976 constitution made express provision for the management of the affairs of the diocese by the Diocesan Council and the Ecclesiastical Court following the death of the Bishop. But this is really by the way. The terms on which the members of the Free ANZ Diocese associated were modified by the adoption of a long-standing practice of the acceptance of the authority of a hierarch, whether called bishop or administrator, by Illinois and later Belgrade, having the powers of bishop as provided for in the 1976 constitution.
The conclusion that Bishop Irinej had the powers of a bishop of the Free ANZ Diocese as provided for in the 1976 constitution has at least two consequences. The first is that the second to fifth defendants acted in breach of the trust on which the monastery was held by rejecting the Bishop's authority in respect of the monastery (see paras [245], [250], [259], [260] and [263] above). Secondly, Bishop Irinej had authority to convene the Assembly held on 3 and 4 September 2010.
[25]
Could the NGM-ANZ Diocese Vote Itself out of Existence as an Independent Church?
Article 31.7 of the 1976 constitution provided:
"31. The Diocesan Assembly upon being duly constituted, performs the following:
…
7. Should it be necessary and at the request of two-thirds of the Assembly, decides on changes and amendments of the Constitution."
The 1976 constitution contains no provision dealing with a proposed dissolution or amalgamation of the unincorporated association that is (or was) the Free ANZ Diocese.
In the absence of a provision permitting alteration to the rules of a voluntary association, a variation requires the unanimous consent of members. A general rule permitting alteration will usually not be construed as authorising an alteration to the fundamental objects of the association or otherwise in a fundamental respect to which it should be inferred that the power of alteration by majority should not apply (Thellusson v Viscount Valentia [1907] 2 Ch 1 at 7; Hole v Garnsey [1930] AC 472 at 496, 500; Doyle v White City Stadium Limited [1935] 1 KB 110 at 120-121; Solicitor-General v Wylde (1945) 46 SR (NSW) 83 at 96 per Jordan CJ; Popovic v Tanasijevic [2001] SASC 289 at [38]). In Popovic v Tanasijevic, Williams J, with whom Doyle CJ and Martin J agreed, said (at [38]) that:
"A general power to alter the rules of an association is prima facie valid but it must be exercised in good faith; in general terms the alteration must not go to the foundation of the association and must not be incompatible with the fundamental objects of the association."
There is no doubt that the resolution of 4 September 2010 went to the foundation of the NGM-ANZ Diocese. If the resolution were valid, then upon its acceptance by the Holy Assembly of Bishops on 23 May 2011 the NGM-ANZ Diocese ceased to exist. In my view, the resolution to adopt the new constitution that extinguished the NGM-ANZ Diocese as a distinct association was beyond the scope of the power conferred by Article 31.7.
In Master Grocers' Association of Victoria v Northern District Grocers Co-operative Ltd [1983] 1 VR 195 Brooking J said it was not clear on the authorities whether an unincorporated association could be dissolved by the majority decision of the whole number of its members in the absence of any rule providing for its mode of dissolution, or whether the unanimous agreement of all members is required. His Honour's analysis of the authorities suggests that the predominant view, where the relations between members is contractual, is that the agreement of all members is required (at 201-202). Brooking J held that where the rules of the association made no provision for dissolution or amalgamation, but provided a mechanism for their own amendment by a resolution of two-thirds of the number of members present at a general meeting of the association and voting, such rules excluded the possibility that members by a simple majority of those present and voting at a meeting could resolve for the association to be dissolved or amalgamated with another, unless the rules were first amended so to provide (at 203). His Honour held that a simple two-thirds vote for amalgamation would be ineffective. It was not correct to say that what could be done in two stages, the first being the amendment of the rules to provide for amalgamation with a similar body, and the second being the resolution to amalgamate, could be done by a single step voting for amalgamation (at 204).
There may be a conflict between Brooking J's view as to the width of a power to alter the rules of a voluntary association to provide for dissolution or amalgamation and the view of the Full Court of the Supreme Court of South Australia in Popovic v Tanasijevic quoted at para [334]. But on either view, in the absence of an alteration to the constitution of the NGM-ANZ Diocese to provide for its entering a union with another church so that it would cease to exist as a separate church, a resolution to that effect would not be valid unless it were a unanimous resolution of all the members that formed the unincorporated association that was the NGM-ANZ Diocese.
The first to fifth defendants submitted that the Free ANZ Diocese's constitution did not contain a power to enter into a union with another church. I agree with that submission. At least unless the constitution were first amended to provide for a power to enter into a union with another church, the resolution to do so would be ineffective, unless it were a unanimous resolution of all members of the association that was the NGM-ANZ Diocese.
This is a distinct question from whether the union between the NGM-ANZ Diocese and the SOC-ANZ Diocese involved a departure from an essential or fundamental doctrine of the Free ANZ Diocese at the time the trust of the monastery arose. The plaintiffs submitted that the question whether the NGM-ANZ Diocese had power to enter into a union with the Serbian Orthodox Church depended upon whether this involved a change in fundamental doctrine. I do not agree. The questions are related in that if the union did involve a change to fundamental doctrine, then a mere power to amalgamate would be insufficient, unless the power extended to an amalgamation that included a change to fundamental doctrine (Attorney-General (NSW) v Grant at 603). Whether union involves a change to fundamental doctrine or not, there must be power to enter the union. There was not.
I agree with the submission of the plaintiffs that the intention of the founders of the Free ANZ Diocese was not that the Free ANZ Diocese would forever remain a separate church. I do not accept the first to fifth defendants' submission that it was a fundamental or essential tenet of the Free ANZ Diocese that it forever be an integral part of the Free Serbian Orthodox Church and that it could not enter into a union with the Serbian Orthodox Church. Whilst it lacked power under its constitution to enter into such a union unless and until its constitution were amended, such an amendment would not have been contrary to a fundamental tenet on which the members of the Free ANZ Diocese associated. As noted at paras [23] and [24], when the Free ANZ Diocese was formed, it was not the founders' intention that its independence from the Serbian Orthodox Church should be permanent and immutable. It was hoped that in time, when the Serbian Orthodox Church was no longer (allegedly) under communist dictatorship, the Free ANZ Diocese would again join with the Serbian Orthodox Church. That was reflected in the terms of the 1964 constitution that described the Free ANZ Diocese as being in spiritual terms as an organic part of the Serbian Orthodox Patriarchate as it existed from 1918 to 1943 (para [26]). It is true that that Article was removed when the 1976 constitution was adopted. But that remained the intention of at least most of the members of the Free ANZ Diocese. Article 1 of the 1984 constitution of the Free Serbian Orthodox Church stated that it was established to preserve Serbian Orthodoxy in the diaspora as it had been confessed through the centuries by the Serbian Orthodox Church "which presently is oppressed by militantly atheistic communist régime" (my emphasis). This evinced a clear hope that when the Serbian Orthodox Church was no longer subject to a communist regime, the Free Serbian Orthodox Church could be brought within it. In 1985 the Eighth General Assembly of the Free ANZ Diocese unanimously endorsed the constitution of the Free Serbian Orthodox Church, notwithstanding that it also, inconsistently, resolved not to change its own constitution. But in December 1985 the Eighth General Assembly resolved that:
"Our relationship with the Serbian Orthodox Church in the enslaved homeland will be normalised at such time as the communist régime is replaced by a free and democratic system that will not aim to destroy the Serbian Orthodox Faith."
This resolution was passed during the period buildings on the monastery were being constructed and funds for the monastery were being raised. It shows that there had been no departure from the original hope and intention that the establishment of the Free ANZ Diocese would not mean that there would be a permanent separation from the Serbian Orthodox Church.
The acceptance of the Reconciliation Proposal on 23 June 1991, the recognition by the Free ANZ Diocese of Patriarch Pavle as primate, the conduct of liturgies by the bishops of the SOC-ANZ Diocese and the NGM-ANZ Diocese in each other's churches, and the work towards the preparation of a joint constitution, demonstrate that it remained the hope and intention of at least most of the members comprising the NGM-ANZ Diocese that its separation from the Serbian Orthodox Church would be overcome.
Whilst I accept that Article 4 of the 1976 constitution would need to be amended before a union could be effected, it does not follow that Article 4 represented a fundamental or essential tenet of the NGM-ANZ Diocese such that it could not be amended. Nor does it mean that it was a fundamental aspect of the trust on which the monastery was held that the NGM-ANZ Diocese remain forever separate from the Serbian Orthodox Church.
But to adapt the words of Gibbs J in Attorney-General (NSW) v Grant quoted at para [139] above the existing trust of the monastery in favour of the Free ANZ Diocese will enure in favour of the new united Metropolitanate only if the basis on which the members of the Free ANZ Diocese were associated contained a power to enter into a union with the Serbian Orthodox Church. At least without prior amendment to its constitution, I do not consider that there was such a power, except by unanimous assent of all its members.
The plaintiffs did not put a case on the basis of unanimous assent. In any event, for the reasons below it could not succeed.
In case I am wrong in this conclusion, I will deal with the other bases of challenge to the resolution of 4 September 2010.
[26]
Justiciability
The plaintiffs took an initial objection to the first to fifth defendants' challenge that the resolution of 4 September 2010 was invalid on the ground that not all institutions that were entitled to send delegates to the Church National Assembly were given notice of the meeting and invited to do so, and that the meeting was not properly conducted. The plaintiffs' initial response was to say that these matters were not justiciable because the court should not concern itself with alleged irregularities in the internal management of the association (Popovic v Tanasijevic at [37] and [50]; Green v Page [1957] Tas SR 66 at 77).
I do not agree. As Burbury CJ explained in Green v Page the basis upon which a court will refuse to interfere at the instance of individual members of an unincorporated association who complain about irregularities in procedure laid down by its rules for convening and conducting meetings is the application of the principle in Foss v Harbottle (1843) 2 Hare 461; 67 ER 189. The rationale of that principle as explained by Romer J in Cotter v National Union of Seamen [1929] 2 Ch 58 (at 68) (in the passage quoted in Green v Page at 77) is that:
"In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes."
The present is not a case in which the first to fifth defendants attacked the validity of a resolution in circumstances in which if the attack is successful the matter would be dealt with by reconvening a meeting of the NGM-ANZ Diocese so that the matter could be submitted to majority vote. Rather, the plaintiffs rely upon the validity of the resolution of 4 September 2010 to justify their contention that the trust on which the monastery is held presently requires the Property Trust Company to apply it for the purposes of the Metropolitanate. On the plaintiffs' contention the NGM-ANZ Diocese has ceased to exist and there would be no possibility of a majority of members of that association now ratifying the decision taken.
This is also an answer to the plaintiffs' further argument that in order to determine that an association's procedures have been conducted invalidly it is necessary that the association be joined. As the association is unincorporated, appropriate representation orders would be required (citing Popovic v Tanasijevic at [34] and [50]).
In the present case it is the plaintiffs who assert that the resolution of 4 September 2010 was valid in order to establish their claim to the benefit of the trust upon which the property is held. They contend that the Metropolitanate is the successor of the NGM-ANZ Diocese. In my view the first to fifth defendants were entitled to challenge that assertion by way of a collateral attack on the validity of the resolution without the necessity of making a representative order. There is an analogy with public law. It is often open to a party to challenge the validity of an act of a public authority in collateral proceedings without its being necessary to join the decision maker (e.g. Ousley v The Queen (1997) 192 CLR 69 at 79-80, 86-87, 100; Director of Public Prosecutions v Head [1959] AC 83). Although there are limits as to when a challenge to a decision of a public authority can be collaterally challenged (Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568 at [93]), the limits would not be exceeded in this case.
For the meeting to be valid, notice was required to be given to all those entitled to attend (Young v Ladies' Imperial Club Limited [1920] 2 KB 523 at 526-528, 534-535). In that case a challenge to the justiciability of a resolution for expulsion of a member of a club was rejected on the ground that to do so would allow those in charge a discretion as to whom notice should be given (at 533).
The 1976 constitution did not specify a quorum. The plaintiffs did not dispute that as the rules did not specify a quorum, at common law, all members would have to be present unless the association had a sufficiently long-standing custom allowing a lesser number to transact business validly (Ball v Pearsall (1987) 10 NSWLR 700 at 703; Green v The Queen (1891) 17 VLR 329 at 333; Municipality of St Leonards v Williams [1966] Tas SR 166 at 170, 173). A different principle applied in the case of corporations, but the NGM-ANZ Diocese was not a corporation. The decision of Young J (as his Honour then was) in Ball v Pearsall that a majority of members of the church association in that case was sufficient to constitute a quorum appears to have been based upon usage of the association by which the members had moved away from the position that only a meeting at which everybody was present was effective to act (at 703-704).
There was no evidence of a usage by which fewer than all members entitled to attend the Church National Assembly could constitute a quorum.
[27]
Notice to and Attendance of Associated Organisations
As noted at para [312] the first to fifth defendants submitted that the resolution of 4 September 2010 was invalid because associations connected with the Free ANZ Diocese were not invited to attend.
Under Article 24 the Church National Assembly was to be constituted of, amongst others, all members of the Diocesan Plenum under Article 10. None of the Serbian National Defence Council of Australia Inc, the Serbian Association Dragoljub Draza Mihailovic Inc, the Central Committee Serbian Chetniks or the members of the Property Trust Company was named as a member of the Diocesan Plenum. Nor were they otherwise referred to in Article 24 which identified those who were to constitute the Church National Assembly.
There was evidence that delegates from the Serbian National Defence Council of Australia Inc had always been invited to the Sabors of the FSOC-ANZ Diocese (including after the change of name to NGM-ANZ Diocese). There was evidence that the Central Committee Serbian Chetniks had always been invited and sent delegates to the Church National Assemblies and that their delegates had participated in voting. There was also evidence that from at least 2003 the Serbian Association Dragoljub Draza Mihailovic Inc had also sent delegates to the Church National Assemblies.
Except in the case of Central Committee Serbian Chetniks it does not appear whether the participation of those organisations was as voting delegates or only pursuant to Article 24.6 that provided that "representatives of the people at large … and friends of Orthodoxy and of our people's welfare" were privileged to attend but not vote at such assemblies.
The fact that the organisations are not named in the constitution does not determine the question whether they were entitled to attend and therefore that their attendance was necessary to constitute a quorum. This is another example of the terms of the consensual compact being identified by practice and usage and not just by the terms of the written constitution. It does not appear that the Serbian Association Dragoljub Draza Mihailovic Inc was invited, but I do not think that the evidence establishes a sufficiently long usage or practice to show that it was entitled to attend and vote.
The Serbian National Defence Council of Australia Inc was not invited, partly because it had not paid its annual levies and partly because it had associated itself with the group calling itself the Free Serbian Orthodox Church referred to at paras[410]-[412] below. There is no evidence that practice or usage entitled the Serbian National Defence Council of Australia Inc to attend a Church National Assembly if it was unfinancial. There is also no evidence of a practice or usage that entitled it to vote.
Bishop Irinej deposed that invitations for the assembly on 3 and 4 September 2010 were sent to the persons or organisations listed in the constitution. He distinguished between Serbian national bodies that were still affiliated with the NGM-ANZ Diocese and those which were not. He said that the Serbian Chetniks Organisation "Ravnagora" and the "St Saba Cultural Club" were invited. Their relation with the Central Committee Serbian Chetniks is unclear.
As to the Central Committee Serbian Chetniks, the first to fifth defendants have not established that the persons involved with the Serbian Chetniks Organisation described by Bishop Irinej as the "Serbian Chetniks Organisation 'Ravnagora'" were not the same as, or successors to, the body that was known as Central Committee Serbian Chetniks that was accustomed to attend the Sabors. The first to fifth defendants read an affidavit of a Mr Vujicic. He said that before and after 1980 there were sub-branches of Central Committee Serbian Chetniks known as Serbian Chetniks "Ravnagora" NSW, Serbian Chetniks "Ravnagora" Victoria, and similarly for ACT, Queensland and Western Australia. It appeared from his affidavit that there was a split within that organisation. Two companies have been incorporated: one called Serbian Chetniks Ravnagora Limited and the other Central Committee Serbian Chetniks Ravnagora Australia Inc. I am not able to say that those who did attend the national assembly on 3 and 4 September 2010 representing Serbian Chetniks "Ravnagora" were not the successors to the organisation that customarily attended the Sabors and voted.
For these reasons I do not think that the resolutions passed at the meeting were invalid on account of the non-attendance of the three Serbian organisations identified by the first to fifth defendants.
[28]
Notice to and Attendance of Church-School Congregations
Nonetheless, the first to fifth defendants have established that some church-school congregations did not participate in the national assembly on 4 September 2010 through duly appointed delegates.
Bishop Irinej did not invite delegates from the church-school congregation of Saints Peter and Paul, Wodonga because he took the view that that church-school congregation had ceased to exist as a separate entity, having been merged with the SOC-ANZ church-school congregation in Wodonga at a meeting held on 2 January 2010. However, that meeting was later held to be invalid (para [300] above).
In the case of the church-school congregation of St Nicholas, South Brisbane, Bishop Irinej invited Father Stefanov as administrator and Mr Petrovic as president of the "church-school community trustees" to the meeting of 3 and 4 September 2010. Article 24 of the 1976 constitution required that delegates of church-school congregations be laymen and one of them be the president, or in his absence, the vice-president. Priests were entitled to attend in their own right. The first to fifth defendants did not challenge the validity of the 4 September 2010 resolution on the ground that other church-school congregations were not represented only by lay delegates. But that does not mean that I can conclude that Father Stefanov, because he had not validly been removed as priest, was entitled to represent the church-school congregation of St Nicholas, South Brisbane. Father Stefanov could not be a delegate of the church-school congregation.
For the reasons at paras [280]-[285], Bishop Irinej did not have authority under the 1976 constitution to appoint trustees to the church-school congregation. Mr Petrovic did not have authority in that capacity to be a delegate of the St Nicholas, South Brisbane church-school congregation. It is not possible to say that he was validly appointed as president of the St Nicholas church-school congregation on 10 August 2008. It is simply not possible to decide who was validly appointed to any office in the St Nicholas, South Brisbane church-school congregation. That church-school congregation's affairs were in a state of chaos. But it was not represented by two validly appointed delegates in accordance with Article 24 of the 1976 constitution.
Bishop Irinej invited Father Jovic as administrator and Mrs Ivancevic as president of the church-school community trustees as delegates to represent the St George, Forrest church. For the reasons previously given, the Diocesan Council had no authority to appoint trustees to that church. Father Jovic was not authorised under Article 24 of the constitution to be a delegate for the church-school congregation. Mrs Ivancevic had not been appointed as president of the church-school congregation, except purportedly, but ineffectively, by the Diocesan Council.
Nor were delegates invited from the church-school congregation of St Stefan of Dechani, Carrum Downs, who had rejected the Bishop's authority, purportedly appointed their own priest and excluded Father Milanovic and part of the congregation loyal to him and to Bishop Irinej.
The Attorney-General and the plaintiffs submitted that the church-school congregations that were not invited to the National Assembly on 3 and 4 September 2010 were not entitled to attend because they had left the NGM-ANZ Diocese. That faction of the church-school congregation of St Nicholas, South Brisbane that had purportedly removed Father Stefanov as parish priest and whose representatives might have constituted the committee of the church-school congregation had at least arguably separated itself from the NGM-ANZ Diocese by purportedly removing Father Stefanov as parish priest (when it had no authority to do so under the constitution of the NGM-ANZ Diocese) and inviting a priest of a different church, that was not in communion with the NGM-ANZ Diocese, that is, the True Russian Orthodox Church. Arguably, it simply left the NGM-ANZ Diocese. The same could be said of the church-school congregation of Wodonga. The question whether the church-school congregation of Wodonga had separated itself from the NGM-ANZ Diocese by bringing itself within the spiritual jurisdiction of the OCOCG-HSIR was not an issue in Tomasevic v Jovetic. Whilst the decision in that case establishes that the Wodonga church-school congregation of the NGM-ANZ Diocese had not ceased to exist by the purported but invalid resolution that it merge with the SOC-ANZ church-school congregation in Wodonga, Sifris J did not have to consider, and did not consider, whether it had left the NGM-ANZ Diocese by placing itself under the spiritual jurisdiction of the OCOCG-HSIR. The same issue was said to arise with respect to the church-school congregations of St George, Manuka/Forrest and St Stefan of Dechani, Carrum Downs.
In support of that submission counsel for the Attorney-General referred to evidence adduced in cross-examination of Father Rentel and Archbishop Chrysostomos. Father Rentel said that it was not possible for a church-school congregation to be part of two separate Orthodox churches at the same time, so that if a church-school congregation left its bishop, it left the church. Archbishop Chrysostomos accepted that once a congregation placed itself under the spiritual jurisdiction of the Old Calendar Church it ceased to be part of its old or former church "unless its old church is right living, follow(s) the Old Calendar and [is] opposed to the ecumenical movement, in which case I can't imagine why they would choose to affiliate with another church and I can't imagine why we would take them." The first to fifth defendants do not say that the NGM-ANZ Diocese in 2010 was right living, followed the Old Calendar and was opposed to the ecumenical movement. Thus, counsel for the Attorney-General submitted that as a matter of canon law the church-school congregations had left the NGM-ANZ Diocese before the meetings of 3 and 4 September 2010 were convened and were not entitled to attend.
The first to fifth defendants submitted that it was not open to the plaintiffs or the Attorney-General to submit that the church-school congregations that brought themselves under the spiritual jurisdiction of the True Russian Orthodox Church or the OCOCG-HSIR had abandoned the NGM-ANZ Diocese. This submission was made on the basis that there were aspects of the claim for cy-près relief were outside the pleaded case. In particular, it was submitted that it was no part of the pleaded cy-près claim that church-school congregations had broken away from or left the NGM-ANZ Diocese.
The question is somewhat complicated. The present issue arises on the first to fifth defendants' claim that the four church-school congregations were entitled to participate in the meetings of 3 and 4 September 2010 but were not invited and did not participate. The plaintiffs did not plead in reply to the first to fifth defendants' allegation of invalidity that the four church-school congregations were not entitled to notice of the meeting and were not entitled to attend because they had separated themselves from the NGM-ANZ Diocese before 4 September 2010. However, the issue was addressed in the evidence. In his second report Archbishop Chrysostomos responded to the following questions asked by Hunt & Hunt, the solicitors for the first to fifth defendants, namely:
"1. We note that Bishop Irinej (Dobrijevic) stated in his affidavit that he did not invite some of the church-school communities to the Church National Assembly which was held on 3-4 September 2010 because he regarded them as 'schismatic' (paras 38-45 of his affidavit). Could you please comment on the validity of this action from a canonical perspective.
2. What are the powers of a bishop with respect to a schismatic church-school community?
3. What is the test for determining who is a schismatic church-school community?
4. Should a notice have been served to the church/school community even if the bishop considered the church/school community was schismatic?"
In his affidavit of 12 December 2013 Bishop Irinej had said that the "following former churches of the Serbian Orthodox Church [sic]" were in schism, namely the churches of King Stefan of Dechani, Carrum Downs, St George, Forrest, and St Nicholas, South Brisbane. Bishop Irinej said that he had invited to the meeting of 3 and 4 September other representatives of those churches who were not in schism.
Archbishop Chrysostomos ventured an exposition of the sin of schism and said that it denoted a serious disagreement not over doctrinal matters, but rather over administrative or disciplinary issues leading to mutual estrangement by factions within the church. A different view explained by Father Rentel and supported by the passage from the book "The Orthodox Church" by Metropolitan Kallistos quoted at [319] is that there is no schism within the church, but those who are in schism have broken from the church. Father Rentel expressed the opinion that Bishop Irinej was entitled not to issue invitations to those who were in schism essentially because they had broken away from the church, although both Bishop Irinej and Father Rentel spoke of the individuals in question as having broken from the Serbian Orthodox Church rather than the Free Serbian Orthodox Church. Nonetheless, the issue of whether or not the actions of those factions within the four church-school communities who rejected Bishop Irinej's authority justified their not being invited to the meetings on 3 and 4 September 2010 was an issue that was addressed in the reports of Archbishop Chrysostomos and Father Rentel.
The first to fifth defendants also themselves raised as an issue on the cy-près claim that there are seven remaining constituent church-school communities of the Free ANZ Diocese, including the four church-school communities in question who were not invited to the meetings held on 3 and 4 September 2010. Had matters rested there and issue simply been joined on the first to fifth defendants' pleading, then the question of whether the four church-school congregations in question had remained a part of the NGM-ANZ Diocese would have been an issue. But matters did not remain there. In their statement of claim the plaintiffs pleaded the following as an alternative to their primary claim:
"47 Alternatively, by virtue of the steps taken in effecting the Reconciliation, if the original purposes of the charitable trust do not permit application of the property in that manner, the original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, and the original purposes should be altered to allow the property to be applied cy-près towards the maintenance and propagation of the orthodox Christian faith through the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church."
This did not include an assertion that the church-school congregations in question had ceased to be part of the NGM-ANZ Diocese by having removed the priests assigned to them by the bishop of the NGM-ANZ Diocese and placing themselves under the spiritual jurisdiction of the OCOCG-HSIR, or, in the case of South Brisbane, the True Russian Orthodox Church. In the plaintiffs' further amended reply they pleaded:
"5. … if, as alleged:
(1) the events pleaded at paragraph 14 and [42] occurred and had the effect of frustrating the Reconciliation and Transitional Regulations;
(2) the appointment of a Bishop to the Diocese did not become governed by the Reconciliation in place of articles 17 to 19 of the Diocesan Constitution;
(3) the resolution of the Diocese to adopt the Constitution of the Metropolitanate in September 2010 was somehow procedurally defective;
(4) some Church School Communities of the Diocese now dispute the Reconciliation and its implementation, when the rest of the Diocese, including most of the Church School Communities of the Diocese, together with the Serbian Orthodox Diocese, have accepted the Reconciliation and its implementation;
(5) some Church School Communities of the Diocese have purported to install as their own Bishop a cleric who is not in communion with the Serbian Orthodox Church or the wider Orthodox Church, and have allowed the property to be used by that cleric and other clerics who are not in communion with the Serbian Orthodox Church or the wider Orthodox Church.
then cy-près relief to the effect of that set out at [2] of the Relief Claimed in the Statement of Claim is needed."
By this pleading the plaintiffs appear to accept that the church-school communities (or parts of them) that had rejected the authority of Bishop Irinej and had brought themselves under the spiritual jurisdiction of the OCOCG-HSIR, or, in the case of South Brisbane, had used the services of a priest of the True Russian Orthodox Church, had not thereby ceased to be part of the NGM-ANZ Diocese.
Nor was this part of the particulars provided by the Attorney-General in support of the Attorney-General's contention that cy-près relief was necessary because the FSOC-ANZ Diocese had ceased to exist or was different from the FSOC-ANZ Diocese that had existed when the gifts were made.
Counsel for the first to fifth defendants submitted that if this contention had been particularised, evidence might have been available to be called to meet it. I accept that that might have been so. There might have been further evidence available from the members of the church-school congregations relevant to whether their actions did amount to leaving the Diocese. There might have been further expert evidence called as to whether or not the conduct of the church-school congregations in question amounted to a definitive break with the church so that they could no longer be said to have been part of the Diocese.
During the course of the hearing I rejected a number of affidavits that the first to fifth defendants sought to read on the basis that their late service was likely to cause prejudice to the plaintiffs. In reaching that conclusion I doubted that the additional detail contained in the affidavits concerning the functioning of certain church-school congregations had substantial additional probative value having regard to evidence that had already been adduced as to the functioning of the diocese and the church-school congregations. In assessing the question of the probative value of the material I took into account what I understood to be the issues identified by the plaintiffs and the Attorney-General. Those issues did not include the question whether the church-school congregations had ceased to be part of the NGM-ANZ Diocese. No such issue was identified in the course of submissions as to whether the affidavits that had been served late should be admitted. Much of the evidence sought to be adduced was rejected. It is possible that a different conclusion might have been reached had the issue then been identified.
For these reasons I accept the first to fifth defendants' submissions that it is not open to the plaintiffs or to the Attorney-General to argue that the four church-school congregations had ceased to be part of the NGM-ANZ Diocese at the time of the meeting of 4 September 2010. It follows that the resolution passed at the meeting was also invalid on the ground that notices were not given to all members of the unincorporated association that was the NGM-ANZ Diocese that were entitled to attend the National Assembly held on 4 September 2010 and to vote.
[29]
Parallel Assemblies
The final ground of challenge to the resolution of 4 September 2010 concerned the procedures adopted for the holding of parallel assemblies.
Mrs Belosovic attended the meeting as a delegate of the church-school congregation of Hindmarsh, South Australia. She deposed that when the meeting started on 3 September 2010 the proposed constitution was gone through point by point with representatives from various churches making points about various clauses. That is not in contention. She deposed that Bishop Irinej told the meeting that:
"This was only a draft constitution and there will be many more meetings like this one until the final copy would be stamped. We have four years to do it in so the drafts will go back and forward to each church community to make sure it was a constitution that was agreed on by all and served the whole of the Serbian Community in Australia and New Zealand."
Mrs Belosovic said that similar observations were made by others.
I do not accept that evidence. It is not supported by other witnesses. It is inconsistent with the charter she and other delegates signed on 4 September 2010. Mrs Belosovic gave implausible evidence that when she signed the charter that was the new constitution she was not aware of what she was signing.
Mr Jovan Radovanovic gave evidence to similar effect. He said that he did not expect that the meeting on 4 September 2010 would be considering whether to adopt a new constitution. But he accepted that at the time the final vote was taken he understood that the vote was to be taken on the question of whether the text of the proposed constitution that had been debated the previous day would be adopted. For that reason he abstained when the resolution to adopt the constitution was put to the vote. He deposed that it seemed to him that the new constitution was being "railroaded through". But the drafting of a new constitution had been a matter in progress for some years. He said that Bishop Irinej asked the representatives to sign a "commemorative book". I do not accept the evidence of either Mrs Belosovic or Mr Radovanovic. The delegates signed the new constitution.
Bishop Irinej, whose evidence in this respect I accept, described the procedure followed on 3 and 4 September 2010 broadly as follows. Prior to the meetings of 3 and 4 September 2010 the proposed joint constitution had been circulated to all of the parishes. Suggestions had been received from 33 parishes and individuals. Bishop Irinej considered all of the suggestions and those which he considered raised any issue of substance were dealt with at a final meeting of the joint legislative committee held on Friday, 3 September 2010. The proposed suggested amendments were debated between the members of the joint legislative committee. Some amendments were agreed to. The decisions of the legislative committee were arrived at by consensus. On the evening of Friday, 3 September 2010 members of the Diocesan Council of the SOC-ANZ Diocese and members of the Church National Assembly of the NGM-ANZ Diocese came together to commence parallel extraordinary meetings. The meetings were preceded by vespers. The business of the meetings took place on Saturday, 4 September 2010. The meeting held on 4 September 2010 (after divine liturgy) took place in the church hall. Members of the NGM-ANZ Diocese's Church National Assembly sat on Bishop Irinej's left, and members of the SOC-ANZ Diocese sat on his right. Two large screens projected the text of the proposed constitution in both English and Serbian. Some members of the Legislative Committee offered explanations of the changes that had been resolved upon the previous day. Each delegate was given a coloured card to signify either acceptance (red) or rejection (blue) for each change made. Where issues were simple the decisions were made by consensus where one deacon would look at the coloured cards on one half of the room and another would look at the coloured cards on the other half of the room. Where the issues were more complex one deacon would count the coloured cards on one half of the room whilst another would count the coloured cards held up by the other half of the room. The votes on each side of the room were tallied. At the conclusion of the meeting the new constitution (called "the Charter") was projected onto the screen only in Serbian. There was a final vote on that constitution. All votes were in favour with one abstention. The Charter was then signed by Bishop Irinej and the delegates.
Father Milanovic gave evidence that there was not a strict guide as to whether people should sit particularly on one side of the room or the other, and he agreed that some delegates from the SOC-ANZ Diocese were sitting on the Bishop's left-hand side. The first to fifth defendants submitted that on the basis of Father Milanovic's evidence it could not be concluded that on the balance of the probabilities the votes at the meeting were properly taken and recorded.
Where the evidence of Bishop Irinej and Father Milanovic conflict as to how the meeting on 3 and 4 September 2010 was conducted, I prefer the evidence of Bishop Irinej. If as Father Milanovic suggested there was some movement in the room, I am not satisfied that any such movement in any way affected the validity of the votes that were taken. In any event, the critical vote was the last vote to adopt the text of the final version of the constitution. That resolution was passed with no negative vote from any delegate.
The first to fifth defendants submitted that the holding of parallel meetings of the kind described invalidated the resolution passed. They relied upon the judgment of Sifris J in Tomasevic v Jovetic concerning the resolution purportedly passed on 2 January 2010 for the dissolution of two separate churches in Wodonga and the creation of a merged Wodonga church. His Honour said (at [37]) that at that meeting "the members of both churches met as one group and purported to, together, dissolve the two separate churches and create a merged church" (at [37]). His Honour said (at [52] and [53]):
"[52] The second issue relates to the conduct of the Meeting. Mr Upjohn submitted that separate meetings of each church was required. Each church, it was submitted, was required to deal with the matter of dissolution and merger as part of its own agenda or business before any joint meeting was to be held.
[53] As pointed out, a meeting convened under Article 105 or Article 14(a) of the 1981 Constitution is required to deal with, and only with, the specific matter identified in the relevant notice. The notice or invitation was to members of the First Church and as such only members of that Church were called upon to discuss and deliberate on the identified matter. Leaving aside the fact that no specific matter was identified as required, it was not permissible for others to influence or participate in the debate or discussions or indeed, and more importantly, affect any vote. Thus, the Meeting itself was not properly conducted and I do not consider it to be a valid meeting."
The reference in para [53] to "the First Church" was to the Free Serbian Orthodox church-school congregation of Saints Peter and Paul, Wodonga.
Article 24 of the 1976 constitution does not confine the persons who can attend a Church National Assembly to those who are entitled to vote. To the contrary, Article 24.6 contemplates that persons who can attend a Church National Assembly of the NGM-ANZ Diocese include "friends of Orthodoxy and of our people's welfare". There is nothing to suggest that such persons must remain silent.
The holding of parallel meetings with a view to settling the text of a new constitution that was hoped to be approved by both churches was a practical course to adopt. Any other course could have required the holding of successive meetings whilst amendments proposed by one assembly were considered by another and further amendments were proposed by the other to be resubmitted to the first, and so on. It does not appear that either body was prepared to leave the task of the drafting of a final version to the joint legislative committee.
In J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd [2005] NSWSC 238 Austin J upheld the validity of a single resolution passed at 14 concurrent meetings of creditors of a group of companies, all of which were under administration. Austin J said that observations made by Finkelstein J in Re Korda in the matter of Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424 at [13]ff about the irregularity of the concurrent running of 84 meetings were observations directed specifically to the facts of that case (at [127]). In that case also there was a single resolution passed at 84 concurrent meetings of creditors. Finkelstein J referred to the difficulty of establishing whether a majority of actual creditors of each company voted in favour of the resolution. He did not say that the holding of concurrent meetings was itself irregular.
The appeal from Austin J's decision was dismissed (J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd & Ors [2006] NSWCA 46; (2006) 57 ACSR 149). Nothing was said in the Court of Appeal to raise any query as to the validity of holding 14 separate meetings of creditors of 14 companies in the group concurrently.
In Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485; (2006) 200 FCR 243 Barrett J said (at [19]):
"[19] There has been, in some of the decided cases, an emphasis upon the need to keep meetings separate. As McLelland CJ in Eq pointed out in Re Australian Consolidated Press Ltd (1994) 117 FLR 451 at p 452, the court's jurisdiction to approve a scheme of arrangement depends upon a meeting having been held as contemplated by s 411 itself (see also Re Montana Frocks Pty Ltd [1967] 2 NSWR 584; Re Hastings Deering Ltd (1985) 9 ACLR 755). And as Young J observed in Cullen v Galloway Cattle Society of Australia Inc (1998) 27 ACSR 648 at p 653, the presence of and participation by strangers at a meeting may invalidate its proceedings, at least where it appears that their influence has played a part in the result. I would venture to repeat here what I said in Re Hills Motorway Ltd (2002) 43 ACSR 101 (at p 107):
There is a need dictated by statute and by good sense for an appropriate degree of separation to be maintained. There must be separate deliberation within each forum on the matters that are the concern of that forum. There must also be independent expression of a decision on each matter for deliberation so that it can be separately recorded and reported to the court. At the same time, because each meeting will, in a commercial sense, cover the same ground because it will deal with one or more of the components of the overall proposal (with each component being essentially meaningless except in combination with all the others), there is merit in avoiding unnecessary repetition and overlap where to do so will not compromise the opportunities for separate deliberation at separate meetings."
I do not accept that the mere holding of concurrent meetings, which is the same as holding meetings "in parallel", necessarily invalidates resolutions passed at the meeting. The question is whether, having regard to the way in which each meeting was conducted, the will of the members of each meeting was determined separately, and was arrived at without the imposition of untoward influence by those who would not be entitled to attend or speak at a meeting of the body if held separately.
I see no reason to doubt that the will of the delegates to the Church National Assembly of the NGM-ANZ Diocese on 4 September 2010 was properly determined and that the delegates voted (but for one abstention) in favour of the new constitution.
For these reasons I conclude that the challenge to the validity of the resolution of 4 September 2010 succeeds on the grounds that:
(a) the constitution of the NGM-ANZ Diocese did not permit its dissolution or amalgamation with the SOC-ANZ Diocese into the ANZ Metropolitanate; and
(b) the church-school congregations of St George, Manuka/Forrest, King Stefan of Dechani, Carrum Downs, St Nicholas, South Brisbane, and Saints Peter and Paul, Wodonga were not invited to and did not attend the meetings of 3 and 4 September 2010 by duly appointed delegates, and it is not open to the plaintiffs and the Attorney-General to contend that they were not entitled to attend because they had already left the NGM-ANZ Diocese.
The other grounds of challenge fail. However, it follows that the SOC-ANZ Metropolitanate is not the successor of the NGM-ANZ Diocese and that, unless a cy-près order is made, the monastery is not held on trust for its purposes.
[30]
Breach of Trust
As I have concluded that Bishop Irinej was entitled to exercise the authority of Bishop of the NGM-ANZ Diocese, and in that capacity had authority to supervise the monastery, the Property Trust Company acted in breach of trust. It did so by changing the locks to deny entry to the Bishop and to those authorised by him to use the monastery. It did so by denying the right of Mr Veselinovic and Father Seraphim to use the monastery. It breached the trust by allowing Father Saracevic to conduct services on the monastery without Bishop Irinej's authority and contrary to his wishes and instructions. It did so by purportedly prohibiting the use of the monastery by gatherings in the name of "St George Parish - Forrest". It also breached the trust by resolving on 11 April 2009 to ban Bishop Irinej from entering the monastery and repeating that purported ban on 8 September 2009. Its publication of a notice on 30 October 2009 threatening criminal prosecution was a further breach of trust.
No equitable compensation or damages are sought in respect of the alleged breaches of trust. The first to fifth defendants submitted that orders should be made under s 85 of the Trustee Act 1925 (NSW) excusing the first defendant's breach of trust. The directors are volunteers. Counsel submitted that they did not have any detailed knowledge of the law of trusts. They caused the Property Trust Company to do what it did motivated by their perception of the need to protect the monastery from the perceived incursions by the bishop of a different religious association, namely the Serbian Orthodox Church.
I do not accept that the directors of the Property Trust Company acted to protect the monastery from the incursions of a different religious organisation. The resolutions of the Extended Plenum of 29 December 2007 rejected the authority of Bishop Irinej, not because he was not validly appointed as a bishop of the NGM-ANZ Diocese, but because of alleged misconduct on his part in that capacity.
I think that the breaches of trust in connection with the monastery were the result of a fight over church politics. There was some provocation by Bishop Irinej in his asserting rights as if he were a bishop of the Serbian Orthodox Church rather than of the NGM-ANZ Diocese, and also by his failing to afford procedural fairness before purportedly exercising powers to excommunicate individuals, or to suspend the rights of individuals of church-school congregations, or to replace committees of church-school congregations with trustees. Nonetheless I do not consider that the breaches of trust were justified by the provocation. I do not think that the first defendant should be excused from its breach of trust. But I consider this question to be academic, save possibly on any question of costs. I would not remove the Property Trust Company as trustee of the trusts on which the monastery is held unless I were to find that the monastery is held on trust for purposes of the SOC-ANZ Metropolitanate, or that the trusts should be altered for that purpose. I have not found the monastery is held for purposes of the SOC-ANZ Metropolitanate. For the reasons below I consider that the trust purposes should be altered to provide, in substance, for the monastery to be held for the purposes of the SOC-ANZ Metropolitanate. Once that conclusion is reached then it is clear that the Property Trust Company would not be a suitable trustee to administer the trust whose purposes are so altered. That would be so whether or not the Property Trust Company had breached the trusts on which the monastery was held.
[31]
Involvement of the OCOCG-HSIR and Incorporation of New Company
On 15 November 2010 the Property Trust Company wrote to Bishop Ambrose granting him approval as Bishop of the Old Calendar Orthodox Church of Greece, Diocese for Australia, to conduct divine liturgy in the church of the monastery and to hold the first Annual General Meeting of the Australian Diocese of the Old Calendar Orthodox Church of Greece on the premises of the monastery. On 19 November 2010 the Old Calendar Orthodox Church of Greece conducted a service at the monastery. This, of course, was without the approval of Bishop Irinej. However Bishop Irinej considered and acted on the basis that the NGM-ANZ diocese had ceased to exist.
On 22 March 2011 Mr Nesic as chairman of directors of the Property Trust Company wrote to Bishop Ambrose. He advised that the board of the Property Trust Company recognised and acknowledged his Grace as administrator of the Old Calendar Greek Orthodox Diocese for Australia and had resolved to request his Grace to consider receiving the congregation, Free Serbian Orthodox Church Monastery St Sava New Kalenic, under his direct spiritual jurisdiction and the spiritual jurisdiction of the Holy Synod of the Old Calendar Orthodox Church of Greece until such time as the Property Trust Company deemed otherwise. The resolution of the Property Trust Company, as advised to Bishop Ambrose, included that the Property Trust Company would not be bound by any decisions of the Old Calendar Greek Orthodox Diocese for Australia or the Holy Synod of the Old Calendar Orthodox Church of Greece, apart from those spiritual decisions with which it consented. The resolution also included the appointment of Father Saracevic as rector and spiritual overseer of the monastery.
Bishop Ambrose replied on 28 March 2011 and advised that the Holy Synod of the Old Calendar Orthodox Church of Greece had unanimously accepted the request and had decided that:
"… Until the Property Trust shall deem otherwise, the monastery of St Sava, New Kalenic shall be regarded as spiritually dependent on the Old Calendar Greek Orthodox Diocese of Australia, and is recognised as a constituent part of the said Diocese, and further that the Property Trust shall not be obliged to accept any decisions of the said Diocese or the Holy Synod of the Old Calendar Orthodox Church of Greece with which it is not in agreement. The very reverend Prota Dragun Saracevic is appointed Rector and spiritual overseer ad interim of the said Monastery and its congregation."
Bishop Ambrose did not give evidence to explain how this term by which the Property Trust Company could decide not to accept decisions of the bishop of the Old Calendar Orthodox Diocese of Australia with which it disagreed was consistent with principles of Orthodoxy. Nor did the Property Trust Company, as distinct from the NGM-ANZ Diocese, have the right that the NGM-ANZ Diocese had under clause 4 of the 1976 constitution, to affiliate with another religious group.
In his letter advising of the decision of the Holy Synod, Bishop Ambrose stated that Father Saracevic would continue serving in the monastery as needed.
On 23 May 2011 the Holy Assembly of Bishops of the Serbian Orthodox Church approved the establishment of the Metropolitanate of Australia and New Zealand Serbian Orthodox Church and the Constitution of the Metropolitanate.
On 11 July 2011, a new company was incorporated as a company limited by guarantee that was called "Free Serbian Orthodox Church - Diocese for Australia and New Zealand". Its directors were Messrs Nesic, Cubrilo and Vucicevic and Father Saracevic. Mr Nesic gave implausible evidence to the effect that the incorporation of a new company with a similar name was done through the Property Trust Company's auditors and he was not familiar with it.
Mr Nesic also said that the second company was "tied up with" the restarting of the Free Serbian Orthodox Diocese and was done on the advice of the Property Trust Company's lawyers. The new company adopted the same letterhead and coat of arms as was used by the Property Trust Company.
On 30 September 2012 Mr Nesic, writing as the chairman of directors of the "Free Serbian Orthodox Church Diocese for Australia and New Zealand" (that is, the newly incorporated company) wrote to Bishop Ambrose purportedly confirming that the "Free ANZ Diocese" confirmed its affiliation with and accepted the refuge provided by the Old Calendar Orthodox Church of Greece, Holy Synod in Resistance. Thus the directors of the new company took it on themselves to be entitled to represent the Free ANZ Diocese. They were numerically a small part of that religious association, as it had formerly been constituted.
Mr Nesic stated in his letter of 30 September 2012 that the affiliation with the OCOCG-HSIR did not require the "Free ANZ Diocese" to transfer any of its church property to the HSIR, nor to change its liturgy or the way in which it practised its faith. He wrote that:
"The Free ANZ Diocese wishes to remain an independent Orthodox denomination recognising and acknowledging his Grace Right Reverend Bishop Ambrose, Bishop of Methoni as administrator of the Free ANZ Diocese for the time being."
The 1976 constitution of the NGM-ANZ Diocese did not make provision for the appointment of an administrator, a point the second to fifth defendants make against the plaintiff who was purportedly appointed as administrator of the Diocese by the Holy Assembly of Bishops. Nonetheless, Bishop Ambrose was purportedly appointed as administrator of the "Free ANZ Diocese" by the directors of the new company. Mr Nesic also advised that:
"… the Free ANZ Diocese separated itself from, and formally rejected the authority of Bishop Irinej Dobrijevic on 29 December 2007 and now seeks the assistance of the HSIR to locate a suitable candidate for Bishop of the Free ANZ Diocese whom [sic] can be presented to and accepted by the Free ANZ Diocese Church National Assembly.
The installation of a Bishop will be integral to the future of the Free ANZ Diocese and will particularly assist the Property Trust in defending proceedings No. 2011/247393 commenced in the Equity Division of the Supreme Court of New South Wales against the Property Trust and its directors on 1 August 2011 by Bishop Irinej Dobrijevic and the Serbian Orthodox Church in Australia and New Zealand Properties Limited."
In fact, the Free ANZ Diocese did not separate itself from and reject the authority of Bishop Irinej on 29 December 2007. The individuals who rejected the Bishop's authority did not represent the Free ANZ Diocese. Nor did the directors of the newly formed company that held itself out as the Free ANZ Diocese have authority to represent what had formerly been the NGM-ANZ Diocese, assuming it not to have been dissolved by the decision of the Holy Assembly of Bishops of 23 May 2011.
Mr Nesic accepted that the decision to seek Bishop Ambrose's assistance for the installation of a Bishop was driven by a concern held by him and his fellow directors that there was a difficulty in maintaining their defence in the proceedings if the Free ANZ Diocese did not have a bishop as its head. Bishops of Serbian descent were approached to take up the appointment, but the approaches were unsuccessful.
Nonetheless, on 5 November 2012 Father Saracevic, purportedly acting on behalf of the Diocesan Council, convened a joint meeting of the Diocesan Council and the Ecclesiastical Court of the Free ANZ Diocese to be held on 17 November 2012 to consider these proceedings. The notice was apparently sent by Father Saracevic to 11 individuals. There is no evidence that they were members of the Diocesan Council or Ecclesiastical Court. The first to fifth defendants accepted that in 2012 there were no continuing members of the Diocesan Council or the Ecclesiastical Court.
On 20 November 2012 Mr Nesic and Father Saracevic issued a public announcement that on 17 November a joint extraordinary meeting had been held of the Diocesan Council and the Ecclesiastical Court of the FSOC-ANZ Diocese with the blessing of Bishop Ambrose. The announcement recited that according to the constitution of the FSOC-ANZ Diocese until election of a new bishop, the Diocesan Council and the Ecclesiastical Court administered the affairs of the widowed diocese. The announcement stated that the Diocesan Council and the Ecclesiastical Court had adopted a recommendation made by the Holy Synod of Bishops of the Old Calendar Greek Church by which Bishop Ambrose was nominated as a candidate for the position of bishop for the FSOC-ANZ Diocese. They announced that a Church National Assembly of the FSOC-ANZ Diocese would be held on 29 December 2012.
The plaintiffs say that even if the adoption of the constitution for the ANZ Metropolitanate that abolished the FSOC-ANZ Diocese were ineffective for that purpose, nonetheless the individuals who purportedly acted as the Diocesan Council and Ecclesiastical Court of the FSOC-ANZ Diocese had no authority to do so. This is true, but not fatal to the first to fifth defendants' case.
A meeting described as an extraordinary Church National Assembly of the FSOC-ANZ Diocese was held at the monastery on 29 December 2012. Notices of the meeting were sent to all of the church-school congregations that had formerly been in the NGM-ANZ Diocese. A media release published on that day stated that the decisions made at the assembly included the election of Bishop Ambrose as Bishop of the Free ANZ Diocese. Other resolutions reported to have been adopted included that:
"…
4) The Free ANZ Diocese rejects and continues to reject the doctrines of ecumenism, a doctrine that questions the historical primacy of the Eastern Orthodox Church.
…
8) The Free ANZ Diocese will implement the canonical mandate to 'wall off' and disaffiliate from those who deviate from established Christian Eastern Orthodoxy, refraining from any administrative union with them until the Free ANZ Diocese is satisfied they conform to established Eastern Orthodoxy.
9) The Eastern Orthodox Church provides the Free ANZ Diocese rights for a canonical process of resistance to innovations; in particular within the Serbian Orthodox Church ('SOC') in relation to the reform of the Church Calendar and/or the movement calling into question the historical and theological primacy of Orthodoxy in the Eastern Orthodox Church.
10) The Free ANZ Diocese cannot see how accommodation with the SOC in the foreseeable future is possible. The Free ANZ Diocese wishes to remain an independent Orthodox denomination.
…
13) The Free ANZ Diocese seeks the SOC accept and/or acknowledge the following:
…
q) As the SOC has abandoned and not respected the agreed 'Proposal for Reconciliation', the Free ANZ Diocese seeks the SOC formally abandon any pretension to the legality of their unilateral decision to unite the 'two dioceses' in Australia; an action taken without the consent of the Free ANZ Diocese.
…
s) The Free ANZ Diocese wishes to be left in peace by the SOC so that it can continue its work of pastoral care of Orthodox people without interference, threats and prosecution.
t) Notwithstanding, if the integrity and the continued existence of the Free ANZ Diocese can be assured, the Free ANZ Diocese is willing [to] extend hospitality to all clergymen and monks of the SOC, being allowed to serve at any scheduled religious service held at the St Sava Monastery - New Kalenic provided always access is sought in writing in a timely manner from such clergymen and monks of the SOC, and written approval granted by (i) His Grace, Rt Rev Bishop Ambrose, or (ii) the Diocesan Council of the Free ANZ Diocese, or (iii) the Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust.
(u) The Free ANZ Diocese wishes to remain loyal to the founders of Free ANZ Diocese, by whose fidelity to Christian Eastern Orthodox belief and Holy Tradition such local ethnic churches were established and defined."
The media release was signed by Mr Nesic and Father Saracevic.
The Old Calendar Church of Greece - Holy Synod in Resistance considers that it is acting in accordance with the holy canons and true Orthodox faith in walling itself off from other Orthodox churches, including the 14 recognised autocephalous churches which, in its view, have departed from the true principles of Orthodoxy, in particular, by maintaining, in the name of ecumenism, relationships with other churches and by engaging in common prayer with representatives of other churches contrary to the holy canons.
The plaintiffs deny that the resolutions passed at the purported Church National Assembly were passed in accordance with the constitution of the FSOC-ANZ Diocese even if it continued in existence. That position is supported by the Attorney-General. The Attorney-General submits that there were no existing members of the Diocesan Council or Ecclesiastical Court who purportedly convened a Church National Assembly meeting because under the 1976 or 1988 constitutions, persons were elected to the Diocesan Council or Ecclesiastical Court only for a three-year period. The Ecclesiastical Court is comprised of the Bishop and two regular members who are appointed and relieved of duty by the Bishop, and if there was no Bishop, there could be no Ecclesiastical Court. There was no evidence that the persons purporting to act as members of the Diocesan Council and the Ecclesiastical Court held that position. Both the plaintiff and the Attorney-General characterised the persons who have purported to act as the FSOC-ANZ Diocese as a breakaway group, supported by some representatives of Church-school Communities that are themselves divided.
Mr Nesic accepted that there were only representatives of four Church-school Communities at the meeting described as a Church National Assembly for the FSOC-ANZ Diocese held on 29 December 2012. They were the church-school communities known as St Nicholas Brisbane, King Stefan of Dechani, Carrum Downs, St George, Manuka/Forrest, and St Sava, Hindmarsh in Adelaide. Each of those church-school communities is divided with some members supporting Bishop Irinej and some members opposed to him. Previously, there had been 16 church-school congregations in the FSOC-ANZ Diocese. The majority have joined the ANZ Metropolitanate as part of the Serbian Orthodox Church. Those who attended the meeting on 29 December 2012 as purportedly representing their church-school congregations were the representatives of the groups opposed to Bishop Irinej, just as, in some cases, representatives purportedly from church-school congregations who voted on the adoption of the new constitution in September 2010 were representatives of groups that supported the Bishop.
Moreover, prior to 29 December 2012 representatives of those church-school communities opposed to the Bishop had aligned themselves with other churches.
I deal with the significance of these matters below when addressing the issue of whether the trust purposes must be altered cy-près because the Free ANZ Diocese has ceased to exist.
[32]
Cy-près scheme
At general law, if execution of the purposes of a charitable trust has become impossible or impractical, the Court has authority to direct a scheme for the promotion of objects that as nearly as possible (cy-près) give effect to the original trust purpose, having regard to the spirit of the trust. But as Romilly MR said in Attorney-General v Sherborne Grammar School (1854) 18 Beav 256 at 280-281; 52 ER 101 at 110-111:
"This court has a further power and authority when the objects contemplated by the founder cannot be carried into effect, to direct the application of the revenues of the charity to promote objects in accordance with the spirit of the original foundation, the actual compliance with which has become impossible. But it has no authority to vary the original foundation, and to apply the charity estates in a manner which it conceives to be more beneficial to the public, or even such as the Court may surmise that the founder would himself have contemplated, could he have foreseen the changes which had taken place by the lapse of time."
(See also Phillips v Roberts [1975] 2 NSWLR 207 at 211-212 per Hutley JA.)
If the Free ANZ Diocese has ceased to exist, then the execution of the purpose of the trust would be impossible. There would be power at general law to alter the terms of the trust.
Section 9 of the Charitable Trusts Act widens the scope for altering the purposes of a charitable trust. Section 9 provides:
"9 Extension of the occasions for applying trust property cy pres
(1) The circumstances in which the original purposes of a charitable trust can be altered to allow the trust property or any part of it to be applied cy pres include circumstances in which the original purposes, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust.
(2) References in this section to the original purposes of a charitable trust are to be construed, if the application of the trust property or any part of it has been altered or regulated by a scheme or otherwise, as references to the purposes for which the trust property are for the time being applicable."
In Attorney-General (NSW) v Fred Fulham [2002] NSWSC 629 Bryson J said (at [16] and [17]):
"[16] … s9 of the Charitable Trusts Act 1993 has widened the grounds on which the Court may act, in that it is no longer necessary that actual compliance with the original terms should be impossible. …
[17] The Court may alter the purposes of a charitable trust where the original purposes have ceased to provide a suitable and effective method of using the trust property; this is well short of a test requiring impossibility. Subs9(1) greatly widens the circumstances in which the Court may act and the influence which it may allow considerations of practicality to have."
Nonetheless where the statutory power exists, that is, where the original trust purposes have ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust, the power conferred by s 9 is to allow property to be applied "cy-près", that is, as nearly as possible to the trust purpose having regard to the spirit of the trust.
The "spirit of the trust" refers to "the basic intention underlying the gift …" (Re Lepton's Charity [1972] Ch 276 at 285).
The Attorney-General took an active part in the proceedings. The parties acquiesced in his not filing a defence.
In their opening submissions counsel for the Attorney-General submitted that the constitution of the FSOC-ANZ Diocese (either the 1976 or 1998 version) did not permit the property to be applied for the purposes of a new church which recognised a different hierarch. The Attorney-General submitted that if the plaintiffs were correct in contending that there had been a merger of the SOC-ANZ and FSOC-ANZ Dioceses, with the effect that the FSOC-ANZ diocese no longer existed, then both at general law and under s 9 of the Charitable Trusts Act it was impossible to perform the objects of the original trust and the property ought to be applied cy près in the manner for which the plaintiffs contended.
The Attorney-General also submitted that over time the FSOC-ANZ Diocese accepted that it no longer had the power to appoint its own bishop, but that the bishop was appointed through the Serbian Orthodox Church and, having regard to the hierarchical nature of Orthodox Churches, this worked a fundamental change in the FSOC-ANZ Diocese. There was difficulty in seeing how the FSOC-ANZ Diocese could have acted without a bishop when on the first to fifth defendants' case there had been no bishop validly appointed to it since at least 1999 and probably before that. The Attorney-General submitted that the trust should be varied cy-près so that the property was held for the purposes of the ANZ Metropolitanate. I have rejected the premises for this submission.
In oral opening counsel for the Attorney-General advanced additional grounds for the ordering of a cy-près scheme. After the oral opening by counsel for the Attorney-General, the Attorney-General was required to provide particulars of the grounds upon which he submitted that a cy-près scheme should be ordered. After argument, I allowed the Attorney-General to rely on the following particulars that I directed were to stand as pleadings:
"Spirit of the Trust
1. It presently appears to the Attorney-General that the spirit of the charitable trust brought into existence in 1980 included the notion that the FSOC had an affinity with the SOC in the sense that it intended only to be out of communion with the SOC until such time as the communist rulers of the former Yugoslavia had been deposed.
The FSOC ANZ Diocese as at 1980
2. The FSOC ANZ Diocese in 1980 had a spiritual affinity with the SOC in the sense that it intended only to be out of communion with the SOC until such time as the communist rulers of the former Yugoslavia had been deposed.
The FSOC ANZ Diocese has ceased to exist
3. If the adoption of the ANZ Metropolitanate Constitution in September 2010 was legally effective within the 1976 Constitution, or alternatively, the 1988 Constitution, then upon acceptance of the ANZ Metropolitanate Constitution by the SOC Holy Assembly of Bishops in 2011, the NGM ANZ Diocese (formerly the FSOC ANZ Diocese) was abolished.
4. In the alternative to particular 3, the FSOC ANZ Diocese may have ceased to exist in fact as a result of the following:
(a) The FSOC ANZ Diocese changed its name to the NGM ANZ Diocese in June 1991.
(b) The NGM ANZ Diocese entered into communion with the SOC in February 1992.
(c) Bishops and clergy of the NGM ANZ Diocese elevated the SOC Patriarch's name in religious services.
(d) In October 1997 Bishop Sava of the NGM ANZ Diocese wrote jointly with Bishop Luca of the SOC ANZ Diocese to the Holy Assembly of Bishops requesting that the two parallel Dioceses be merged and only one Bishop be appointed.
(e) The NGM ANZ Diocese acquiesced in the appointment of Bishops by the SOC Holy Assembly of Bishops, being:
the appointment of Bishop Sava in 1994;
the appointment of Bishop Nikanor in 1999;
the appointment of Bishop Milutin in 2003; and
the appointment of Bishop Irinej (as Bishop Administrator) in 2006 until at least 29 December 2007.
(f) If is correct that the FSOC ANZ Diocese separated from the NGM ANZ Diocese or the SOC in December 2007, then it did not appoint any Bishop in the period from 29 December 2007 until 29 December 2012, in contravention of art. 16 of its 1976 Constitution, or alternatively art. 19 of the 1988 Constitution. There was no Bishop to constitute Diocese organs, bless churches, ordain priests).
(h) If (as the First to Fifth Defendants assert) there is no power under the 1976 Constitution, or alternatively the 1988 Constitution, to appoint an Administrator of the FSOC ANZ Diocese, then the purported appointment by the FSOC ANZ Diocese of Bishop Ambrose as Administrator on or about 12 November 2012 was invalid.
It may also be that the purported appointment of Bishop Ambrose as Bishop of the FSOC ANZ Diocese in December 2012 was invalid since:
it is not apparent on the evidence that Bishop Ambrose was ordained by at least two Orthodox bishops having apostolic succession (art.17 of the 1976 Constitution or art. 19 of the 1988 Constitution; see also Ware, pages 248-249, 290-291).
if the 1988 Constitution is applicable then Bishop Ambrose was not elected from a list of the Holy Synod of Bishops of the Free Serbian Orthodox Church (art. 17) and Bishop Ambrose is not of Serbian descent (art. 18(b)).
Any existing FSOC ANZ Diocese is different from the FSOC ANZ Diocese that existed in 1980
5. If the court finds that an organisation called the 'FSOC ANZ Diocese' continues to exist then since 29 December 2007, it broke away from and broke communion with those administering the Diocese then called the NGM ANZ Diocese.
6. Alternatively to particular (5) above, if the Court finds that an organisation called the 'FSOC ANZ Diocese' continues to exist then the following matters suggest that it does not have the same character as the FSOC ANZ Diocese that existed in 1980:
The FSOC ANZ Diocese as it exists today has rejected the restoration of spiritual unity with the SOC in February 1992 and has aligned itself with a group that is not in communion with the SOC and the Orthodox Church in general for reasons that do not relate to communism (see Ware 301-303).
The FSOC ANZ Diocese is now constituted by a minority of Church-School Congregations in Australia and New Zealand which formerly comprised the FSOC ANZ Diocese, the remainder having joined the ANZ Metropolitanate.
It may also be that the purported appointment of Bishop Ambrose as Bishop of the FSOC ANZ Diocese in December 2012 was invalid since:
it is not apparent on the evidence that Bishop Ambrose was ordained by at least two Orthodox bishops having apostolic succession (art. 17 of the 1976 Constitution or art. 19 of the 1988 Constitution; see also Ware, pages 248-249, 290-291).
if the 1988 Constitution is applicable then Bishop Ambrose was not elected from a list of the Holy Synod of Bishops of the Free Serbian Orthodox Church (art. 17) and Bishop Ambrose is not of Serbian descent (art. 18(b)).
Article 2 of the 1976 Constitution, or alternatively, the 1988 Constitution provided that the FSOC ANZ Diocese is to be governed by the 'Holy Scripture and Holy Tradition according to the teaching of the Holy Orthodox Church', but the FSOC ANZ Diocesan Bishop is not in communion with the Orthodox Church;
Article 18(a) of the 1976 Constitution specifies the duties of the Bishop as including 'to preserve, defend and sustain among the people, one, Holy, Ecumenical and Apostolic Church and repel all activities contrary to Orthodoxy', and alternatively, art. 16(2) of the 1988 Constitution specifies the duties of the Bishop as including 'to preserve, defend and sustain the Orthodox Faith, Serbian customs and traditions among the people', and there is a question about whether the FSOC ANZ Diocesan Bishop, who is not in communion with the Orthodox Church, can fulfil this duty."
The first to fifth defendants submitted that the "spirit of the trust" included as a fundamental tenet that the Free ANZ Diocese would be independent of the Serbian Orthodox Church in respect of its governance, and would retain the right independently to determine if, when and how it might affiliate with the Serbian Orthodox Church. They submitted that in the absence of a valid decision by the Free ANZ Diocese to administratively unite with the Serbian Orthodox Church, as there were people conducting religious activities in the belief that they are part of the Free ANZ Diocese, the original purpose of the trust continues to provide a suitable and effective method of using the trust property. To apply the property cy-près for the purposes of the SOC-ANZ Metropolitanate would, in the first to fifth defendants' submission, depart from the fundamental tenet of independence from the Serbian Orthodox Church. The first to fifth defendants also contend that such independence is compatible with the FSOC-ANZ Diocese's being considered as an Orthodox Church. Moreover, its having brought itself within the spiritual jurisdiction of the Old Calendarist's church is also consistent with the spirit of the trust. The fact that the Old Calendarists are not in communion with the 14 (or 15) autocephalous churches is of no moment. The FSOC-ANZ diocese was in communion with only one of those churches and was not in communion with the Serbian Orthodox Church at the time the trust was established.
The "Extended Plenum" of 29 December 2007 accused Bishop Irinej of heresy. Those parts of the church-school congregations that rejected the Bishop's authority did not do so because he was an alleged heretic but because they rejected his claims of authority. Those claims were excessive. Bishop Irinej asserted powers as a bishop of an Orthodox church which, whether or not they were consistent with principles of Orthodoxy, he did not have as bishop of the NGM-ANZ Diocese. The divisions were matters of politics, not of faith.
[33]
No Jurisdiction at General Law to make a Cy-près Order
The first question is whether the ANZ Diocese has ceased to exist for the reasons enunciated in the particulars provided by the Attorney-General. I have rejected the contention of the plaintiffs that the Free ANZ Diocese ceased to exist by reason of the adoption of the ANZ Metropolitanate's constitution on 4 September 2010 and its acceptance by the Holy Assembly of Bishops on 23 May 2011. For the reasons previously given, I do not accept that the Free ANZ Diocese ceased to exist because it changed its name to the NGM-ANZ Diocese in June 1991, nor because it entered into communion with the Serbian Orthodox Church by at least February 1992, nor because bishops and clergy of the NGM-ANZ Diocese elevated the name of the Patriarch of the Serbian Orthodox Church in religious services, nor because Bishop Sava and Bishop Luka wrote to the Holy Assembly of Bishops requesting that the two parallel dioceses be merged and only one bishop be appointed, nor because the priests of one diocese conducted liturgies in the churches of the other, nor because the NGM-ANZ Diocese acquiesced in the appointment of bishops by the Holy Assembly of Bishops.
Those were the grounds raised in para 4(a)-(e) of the Attorney-General's particulars (para [435] above).
Particular 4(f) raises the issue whether the FSOC-ANZ Diocese separated from the NGM-ANZ Diocese or the Serbian Orthodox Church in December 2007. There was no difference between the Free ANZ Diocese and the NGM-ANZ Diocese. There was only a change of name. Hence one could not separate from the other. I have also found that the Free ANZ Diocese did not reject Bishop Irinej as its bishop on 29 December 2007. It did not separate from the Serbian Orthodox Church in December 2007. It was not part of the Serbian Orthodox Church at that time. The steps towards reconciliation had not made the Free ANZ Diocese part of the Serbian Orthodox Church from which it might then be said to have separated. There was no union between the two churches at that time. Accordingly the premise of particular 4(f) does not arise.
However, that particular has a wider connotation in that it suggests that the absence of any bishop for an extended period might mean that the Free ANZ Diocese had then ceased to exist. For the reasons I have given Bishop Irinej had the powers and functions of a bishop of the Free ANZ Diocese until 4 September 2010 or 23 May 2011. (Nothing turns on those dates.) However, it is clear that from at least 24 May 2011 Bishop Irinej did not regard himself as a bishop of a separate church, being the Free ANZ Diocese. He and the church-school congregations that had approved the ANZ Metropolitanate constitution, left the Free ANZ Diocese. The question raised by the particular 4(f) is whether the FSOC-ANZ Diocese ceased to exist because there was no bishop between 4 September 2010 (or 23 May 2011) and the purported appointment of Bishop Ambrose on 29 December 2012.
I accept the opinion of Archbishop Chrysostomos that the vacancy of a position of bishop for such a period does not mean that the diocese ceases to exist. His opinion is supported by numerous examples of a diocese being vacant for extended periods but still continuing in existence. Thus the See of Constantinople was vacant from 582 to 585, from 980 to 984, from 1321 to 1323, and from 1918 to 1921. The See of Alexandria was vacant from 579 to 581, from 690 to 726, from 903 to 907, from 960 to 963, from 1567 to 1569, and from 1967 to 1968. The examples can be (and were) multiplied.
By particular 4(h) the Attorney-General contends that the Free ANZ Diocese may have ceased to exist if there were no power to appoint an administrator; then the purported appointment of Bishop Ambrose as administrator on 12 November 2012 was invalid.
For the reasons previously given, I consider that whilst the constitution of the Free ANZ Diocese contained no power for the appointment of an administrator, the practices adopted by the Free ANZ Diocese recognised such an appointment. Questions as to the validity of Bishop Ambrose's appointment as administrator on 12 November 2012 do not depend on whether the Free ANZ Diocese had the power to make such an appointment, but whether there was a practice or usage that gave authority to those who purportedly appointed Bishop Ambrose to that position to do so. In the absence of some scheme for administration of the Free ANZ Diocese, I consider that those who purportedly exercised an authority to appoint Bishop Ambrose had no power to do so. But that does not mean that the Free ANZ Diocese ceased to exist.
The last particular of the Attorney-General's contention that the Free ANZ Diocese might have ceased to exist was that Bishop Ambrose's appointment in December 2012 was invalid because he did not have apostolic succession, or because he was not of Serbian descent. For the reasons previously given, I do not accept that it was a term of the constitution of the Free ANZ Diocese that its bishop be of Serbian descent. (That is a different question from whether his English ethnicity is contrary to the spirit on which donations for the monastery were given.) I deal with the question whether Bishop Ambrose has apostolic succession below when addressing the spirit of the trust. For the reasons below, I accept that Bishop Ambrose does have apostolic succession.
As previously noted, it was not part of the Attorney-General's case, nor that of the plaintiffs, that the Free ANZ Diocese had ceased to exist because its substratum had been removed because those church-school congregations that continued to adhere to it, or those parts of the church-school congregations that professed adherence to the Free ANZ Diocese, had left the Free ANZ Diocese and joined another church or churches (the OCOCG-HSIR and the True Russian Orthodox Church).
Although I do not conclude that the Free ANZ Diocese ceased to exist, there is a question as to how any of its organs could have appointed Bishop Ambrose as its bishop. As noted at para [417] Mr Nesic and Father Saracevic announced that Bishop Ambrose had been appointed as administrator of the Diocese on 17 November 2012 at a joint extraordinary meeting of the Diocesan Council and the Ecclesiastical Court. But it is admitted that at that time there were no members of the Diocesan Council and the Ecclesiastical Court who could have so appointed Bishop Ambrose. The so-called Church National Assembly held on 29 December 2012 was not validly convened. There were no individuals who could have validly convened such a meeting. Rather, those church-school congregations and associated organisations that had rejected Bishop Irinej purportedly convened a meeting of what they called a Church National Assembly to resolve on the appointment of Bishop Ambrose as bishop of the Free ANZ Diocese. The first to fifth defendants submitted that the lack of authority for the convening of such a meeting could be dealt with by an administrative scheme to enable the execution of the trusts of the Free ANZ Diocese that would not require the alteration of its purposes. I accept that that is so. Adherence to the procedures prescribed in the constitution for the appointment of the bishop was not a fundamental tenet of the Free ANZ Diocese, nor purpose of the trust. The lack of authority for the appointment of Bishop Ambrose as bishop of the Free ANZ Diocese could be remedied by an appropriate administrative scheme.
The first to fifth defendants adduced evidence as to how the monastery is being applied for the purposes of the church that is again known as the Free ANZ Diocese. The first to fifth defendants accept that the majority of the original church-school congregations has separated from the Free ANZ Diocese. Nonetheless, there are many persons who regard themselves as belonging to the Free ANZ Diocese. Since Bishop Irinej and those associated with him have been excluded from the monastery, the monastery has been used by persons who regard themselves as part of the Free ANZ Diocese. Liturgies are regularly conducted at the monastery. The Free ANZ Diocese publishes a paper called the "Diocesan Messenger" which is mailed to about 1,000 subscribers and is sold at local church-school congregations. A calendar is published by the Free ANZ Diocese showing the churches at Forrest, South Brisbane, Carrum Downs, Wodonga and Hindmarsh, as aligned to the Free ANZ Diocese. The calendar has photographs of church buildings, being the monastery, and churches at Forrest, South Brisbane, Carrum Downs and St Nicholas of Zica of Dulwich Hill. Father Saracevic said that the church-school congregation of Dulwich Hill was received into the Free ANZ Diocese with Bishop Ambrose's approval at a meeting of the Diocesan Council of the Free ANZ Diocese held on 14 December 2013. It worships at Dulwich Hill and there are about 30-40 people who regularly attend at services and up to 60 on special occasions.
Twenty to 30 people regularly attend services at the church-school congregation at Carrum Downs and that number can swell to more than 200 people at Christmas and Easter. There is a church-school congregation at Hindmarsh in Adelaide that aligns itself with the Free ANZ Diocese, notwithstanding that its delegates did not oppose the resolution of 4 September 2010. There is presently litigation between the opposing factions of the Hindmarsh congregation in the Supreme Court of South Australia. Ms Marjanovic gave evidence that more than 141 people regularly attend services at the Hindmarsh church which is said to be aligned to the Free ANZ Diocese. Up to 30 persons are said to attend the regular church services at Forrest, with over 100 attendees on major days such as the commemoration of General Dragoljub Draza Mihailovic. The annual St Sava Festival was held on the monastery in 2013 and 2014. Father Saracevic said that between 1,500-2000 people attended in 2013 and about 300-400 people in 2014. According to Bishop Ambrose there were 1,500-2,000 people attending in 2014. That discrepancy raises questions about the reliability of their recollections. But whether those attending numbered 300-400 or up to 2,000, the numbers are significant.
In 2011 there were 20 church services held in the monastery, including services held in connection with a children's camp held over three days between 24-26 January 2011. In 2012 there were 18 such services. There were 16 such services up to November 2013 and daily matins and vespers were held between 18 November and 22 December 2013, and between 26-31 December 2013. Regular services were held in 2014 up to the hearing.
The first to fifth defendants submitted that those who left the Free ANZ Diocese were not entitled to the property of that church, citing Craigdallie v Aikman (No. 2) (1820) 2 Bli 529, 4 ER 435; Craigie v Marshall (1850) 12 D 523; and Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) (2011) SLT 1213; [2011] CSIH 52 at [54]-[64], [78], [79] and [122]-[130]. In Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601, the House of Lords had directed an inquiry to determine which part of a divided congregation more closely adhered to the opinions and principles upon which the congregation had originally united, on the basis that the church property would be held for the purposes of that group which more closely adhered to the original principles of the congregation when the trust was established (at 16-17; 606). On that inquiry the Court of Session in Scotland held that so far as they were capable of understanding the opinions professed by both factions, there appeared to be no difference between them. In the House of Lords (Craigdallie v Aikman (No 2)) Lord Eldon confessed to a like difficulty:
"… I have had the mortification, I know not how many times over, to endeavour myself to understand what these principles were, and whether they have, or have not, deviated from them; and I have made the attempt to understand it, till I find it, at least, on my part to be quite hopeless." (at 543, 440)
Not without considerable hesitation the House of Lords affirmed the decision of the Court of Session that those who had separated themselves from the congregation had forfeited their right to the property as having voluntarily separated themselves from the congregation without cause (at 544-545, 440-441).
In Craigie v Marshall Lord Justice-Clerk Hope of the Court of Session distinguished between a trust of property held by trustees for the purposes of the general governing body or "ecclesiastical judicatory" of a sect, and a trust of property held for the individual congregation and its members. (The same issue arose in Radmanovich v Nedeljkovic). Of the former case, exemplified where the property has been acquired from funds of parties other than members of the congregation, Lord Justice-Clerk Hope said (at 530-531):
"… The members of the congregation will have no patrimonial interest in the property - at least if they separate from the ecclesiastical judicatory: their opinions are of no importance: to them no heritable right or jus crediti belongs: If they separate, even the whole congregation, from the governing body that in no degree can affect the property which belongs to the trustees for the aggregate body, and so no question can arise, except this, - Does the governing body still exist in name? They may have wholly changed their opinions; they may have become, from Presbyterians holding the Westminster Confession of Faith, decided Unitarians; yet to them, and not to the congregation, the property belongs."
By contrast where funds are contributed by the individuals comprising the congregation and the property is held on trust for the congregation or its purposes, adherence to the original purposes of the trust is the paramount consideration, and if the congregation divides the property will be held for those who most closely adhere to the original principles (at 530-531). It is unnecessary to decide to what extent the passage quoted represents the law in this country.
In Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) Lord Osborne of the Court of Session, Inner House, Extra Division, concluded that in that case the trust of church property was a trust for the benefit of the congregation which was subject to the governing body of the church, and the property could not be applied for the benefit of part of a former congregation that had renounced its relation with the "relevant ecclesiastical judicatory" and was no longer in subjection to it (at [64]). (A similar conclusion was reached in Radmanovich v Nedeljkovic.) It was held that the congregation that split from the Free Church of Scotland forfeited any benefit under the trust.
None of these cases concerned a provision similar in effect to s 9 of the Charitable Trusts Act. Given the conclusion that the Free ANZ Diocese continues to exist, I accept that the monastery continues to be held for the purposes of the Free ANZ Diocese and there would be no jurisdiction at general law to alter the terms of the trust. I would also accept that those church-school congregations, or parts of them, formerly part of the Free ANZ Diocese who have joined the ANZ Metropolitanate, have left the Free ANZ Diocese, and the monastery would not be held on trusts that could be applied for their purposes. It follows that this is not a case where a cy-près scheme would be ordered at general law because it is no longer possible to fulfil the purposes of the trust.
But that does not necessarily mean that such a use of the trust property would be a suitable and effective use of the trust property having regard to the spirit of the trust.
[34]
Section 9 of the Charitable Trusts Act: the Spirit of the Trust
The basic intention underlying the gifts that led to the acquisition and construction of the monastery and the discharge of the debt on the monastery included an intention that the monastery be Serbian and that the church that would use it would be Serbian. The appeal for funds for the building of the monastery expressly appealed to the nationalist ethic of freedom-loving Serbs. The monastery was to be a piece of Serbian soil in Australia. The appeal was also to the history of the Serbian people who built monasteries over centuries to preserve their holy heritage. The living expression of that heritage, at least prior to 1943, was the Serbian Orthodox Church.
The OCOCG-HSIR is not Serbian. Bishop Ambrose of Methoni is an Englishman. Whilst I have not found that it was a requirement of the constitution of the Free ANZ Diocese that the bishop be of Serbian descent, nonetheless, I infer that a basic intention of the donors whose funds, labour and materials were provided for the acquisition and construction of the monastery, including the monastery church, was that it be used by a church that had a Serbian character.
This is so notwithstanding that the doctrines of Orthodoxy do not readily accommodate division of churches on nationalist or ethnic, as distinct from geographical, lines. Archbishop Chrysostomos denied that only an ethnically Serbian bishop could exercise authority over an ethnically Serbian parish. This notion had been formally rejected at the Synod of Constantinople in 1872. The error was condemned by the Patriarch of Constantinople in 1872 as phyletism. In his book "The Orthodox Church", Timothy Ware, (Metropolitan Kallistos) said (at pp 174-175):
"Unfortunately, however, in the religious life of the diaspora, national loyalties, in themselves legitimate, have been allowed to prevail at the expense of Orthodox Catholicity, and this has led to a grievous fragmentation of ecclesiastical structures. Instead of a single diocese in each place, under one bishop, almost everywhere in the west there has grown up a multiplicity of parallel jurisdictions, with several Orthodox bishops side by side in every major city. Whatever the historical causes of this, it is certainly contrary to the Orthodox understanding of the Church; the Ecumenical Patriarch Dimitrios, visiting the USA in 1990, was right to speak of the ethnic divisions in American Orthodoxy as 'truly a scandal'. Today many of us would like to see, in each western country, a single local Church embracing all the Orthodox in a unified organization; individual parishes could retain their ethnic character, if they so desired, but all would acknowledge the same local hierarch, and all the hierarchs in each country would sit together in a single synod. Regrettably this is as yet no more than a distant hope. Ethnic divisions are proving hard to transcend."
Archbishop Chrysostomos noted that in Australia there are no fewer than five Orthodox churches, all of whom share the same faith and are in full communion with each other, and in some cases are present in the same city. He referred to the churches of Constantinople, Antioch, Russia, Serbia and Romania, to which might be added Greece. Nonetheless, Archbishop Chrysostomos said that it is uncanonical to require that a diocese of an Orthodox church be administered by a bishop of a particular ethnicity. I accept that opinion. But although the idea of an ethnic Serbian church is uncanonical, it is clear that the members of the Free ANZ Diocese who contributed money, labour and materials did so for the purposes of advancing the interests of a church of a distinctly Serbian character.
For the reasons previously given I do not accept that it was part of the spirit of the trust that the Free ANZ Diocese should always be a church independent of the Serbian Orthodox Church. Contrary to the first to fifth defendants' submissions, I consider that a basic intention of the donors was that the monastery would be used for the purposes of a church that it was hoped would one day re-unite with the Serbian Orthodox Church when the reason for division, being the alleged subjection of that church to the dictates of a communist government, was removed.
The spirit of the trust was also that the monastery would be available to the whole of the Free ANZ Diocese, that is, to all the individuals who comprised the church-school congregations and the organisations associated with the Free ANZ Diocese.
The spirit of the trust also includes the basic intention of the donors that the Free ANZ Diocese be led by a bishop having apostolic succession. This is a fundamental tenet of Orthodoxy. There is a question as to whether Bishop Ambrose does have apostolic succession. For the reasons below I accept that he does.
[35]
Free ANZ Diocese and Ecumenism
The fundamental tenets of the faith of the FSOC-ANZ Diocese at the time the trust was established are also relevant. Either they are part of the "spirit of the trust" or, if not, it might not be appropriate to apply the property cy-près for the purposes of the ANZ Metropolitanate if the doctrines or practices of the ANZ Metropolitanate were contrary in an important way to the faith of the members of the Free ANZ Diocese who contributed to the establishment of the monastery. If ecumenism, demonstrated by the participation of Bishop Irinej in the World Council of Churches, were contrary to the doctrines or beliefs of the members of the Free ANZ Diocese at the time the trust was established, that could be a reason for not making a cy-près order that would give the SOC-ANZ Metropolitanate control of the monastery.
The resolution of the "Extended Plenum" of 29 December 2007 accused Bishop Irinej of causing the NGM-ANZ Diocese to join the World Council of Churches. There is no evidence of that. The Serbian Orthodox Church itself had been a member of the World Council of Churches since 1965, that is, shortly after the division between the Serbian Orthodox Church and the Free Serbian Orthodox Church. There is no evidence that Bishop Irinej caused the NGM-ANZ Diocese to join the World Council of Churches. As he regarded the NGM-ANZ Diocese as already part of the Serbian Orthodox Church, there is no reason for him to have done so. Archbishop Chrysostomos said that in 2007 Bishop Irinej had been admitted to what he called the "managing committee" of the World Council of Churches. This was not denied. I infer that it was Bishop Irinej's participation on that committee that drew the criticism of the Extended Plenum of 29 December 2007.
The split between the Serbian Orthodox Church and the Free Serbian Orthodox Church in 1963 and 1964 was not related to any dissension regarding the participation by the Serbian Orthodox Church in the World Council of Churches. Archbishop Chrysostomos cited works of Archimandrite Justin Popovic, who was persecuted by the communist government of Yugoslavia and walled himself off from then Patriarch German of the Serbian Orthodox Church on account of ecumenism and what he saw as the infiltration of the church by communists. He died in 1979 and was later canonised. Archbishop Chrysostomos cited a paper written by Saint Justin published in 1990 entitled "The Truth About the Serbian Orthodox Church in Communist Yugoslavia". He also cited a book published in 1981 by the American Diocese of the Free Serbian Orthodox Church called "A Time to Choose", in which the authors quoted correspondence written by Father Justin to the Holy Assembly of Bishops about the schism with America. Saint Justin was critical of the hierarchy of the Serbian Orthodox Church, but it does not appear that he attributed the schism to the American church's rejection of the ecumenical tendencies of the Serbian Orthodox Church.
The book, "A Time to Choose" was appropriately characterised by counsel for the plaintiffs as a polemical work. It included an attack on the Serbian Orthodox Church, and on Patriarch German in particular, for having joined the World Council of Churches. The book condemned the ecumenical movement as one that:
"seeks to unite all churches, all faiths, all peoples, no matter what they believe … [where] truth and falsehood enjoy equal standing. One group believes in the divinity of Christ, and another denies it. One group accepts the authority of Holy Scripture, another does not. All of the denominations belonging to it contradict the teachings of the Orthodox Faith on some fundamental doctrine. Not one accepts the Orthodox teaching on the Holy Trinity."
It asserted that:
"… we, the faithful of the Free Serbian Orthodox Churches across the world 'have defied, not hierarchs, but false hierarchs and false teachers' …".
Mr Nesic gave evidence to the effect that the FSOC-ANZ Diocese had always opposed any assimilation towards ecumenism. That may have been the view of some individuals, but I do not accept that the Free ANZ Diocese as a whole considered that the ecumenical movement was a significant matter of faith. It professed the same faith as the Serbian Orthodox Church.
Whether or not the participation by Orthodox churches in the ecumenical movement and the World Council of Churches is contrary to Holy Scripture, Holy Tradition or the Holy Canons is not an issue for decision.
The historical accounts of the split in 1964 and the contemporaneous records of the Free ANZ Diocese make no mention of the involvement of the Serbian Orthodox Church in the World Council of Churches as a reason for the split in the 1960s. The Serbian Orthodox Church did not become a member of the World Council of Churches until 1965, but it had had dealings with the World Council of Churches quite a few years before that. Its participation in the World Council of Churches was not an obstacle to reconciliation with the Free Serbian Orthodox Church in 1991.
There was no evidence that the 1988 amendment to Article 1 of the constitution was an expression of opposition to ecumenism. Article 1, after amendment, included the statement that:
"Members of the Free Serbian Orthodox Church - Diocese for Australia and New Zealand believe in One Holy, Ecumenical and Apostolic Church and worship Holy Orthodoxy handed down to them from St Sava and their ancestors."
The first part of this sentence restates part of the Nicene Creed and would be accepted by all Orthodox churches (and by other churches, given that in this context "ecumenical" means "universal" or "Catholic", that is, representing the whole Christian world). Mr Nesic, whose evidence on the question of the 1988 amendments I have accepted, said that he understood the changes were made because the three dioceses of the Free Serbian Orthodox Church had agreed to combine spiritually into the Free Serbian Orthodox Church (see para [117]). The constitution of the Free Serbian Orthodox Church described the reason for its separation from the Serbian Orthodox Church as being that the latter was then being oppressed by a militantly atheistic communist regime. As appears below, there had been controversy on the issue of whether the Orthodox churches should seek common ground with other Christian churches since 1920. If this were an issue on which the Free ANZ Diocese had a position it can be expected to have been ventilated well before Mr Nesic's and Mr Toma Banjanin's paper of late 2006 (see para [210]).
[36]
The Old Calendarists and Bishop Ambrose's Apostolic Succession
It was a fundamental tenet of the Free ANZ Diocese that its bishop have apostolic succession. That is a fundamental tenet of all Orthodox churches. Bishop Ambrose was consecrated as bishop of the Old Calendar Orthodox Church of Greece in 1993 by Metropolitan Cyprian of Phyle and Bishop Chrysostomos of Christianoupolis. They traced their apostolic succession to the consecration of Bishop Akakios (Pappas) as Bishop of Talantion (of the Old Calendar Orthodox Church of Greece), by Archbishop Seraphim (Ivanov) of Chicago of the Russian Orthodox Church Abroad and Bishop Teofil (Ionescu) of Detroit of the same church. The apostolic succession of Bishop Ambrose also depended upon the performance of "Cheirothesia" on Metropolitan Kallistos of Corinth of the Old Calendar Orthodox Church of Greece by bishops of the Russian Orthodox Church Abroad. Archbishop Chrysostomos said that the rite known as "Cheirothesia" involves the laying on of hands and the reading of corrective prayers where the strict letter of the canon that requires a bishop to be consecrated by at least two or three other bishops has not been fulfilled, that is, when only one bishop consecrates another. According to Archbishop Chrysostomos where the rite of Cheirothesia is performed the apostolic succession conferred by the first bishop acting singlehandedly is regularised. I accept that evidence.
It is convenient to consider the question of Bishop Ambrose's apostolic succession in conjunction with the question whether the connection of the Free ANZ Diocese, as it now exists, with the OCOCG-HSIR, is contrary to the spirit of the trust. The section which follows is primarily drawn from (and plagiarises) a chapter written by Timothy Ware (Metropolitan Kallistos) called "Old Calendarists" published in "Minorities in Greece: Aspects of a Plural Society" Hurst & Company London 2002. Archbishop Chrysostomos accepted the main points made by Metropolitan Kallistos in explaining the background of the Old Calendarists and the link perceived by them between abandonment of the Old (Julian) Calendar and the ecumenical movement.
The First Ecumenical Council assembled at Nicaea in 325 fixed the date of Easter as being the first Sunday after the Jewish Passover and following the first full moon of Spring, that is, after the vernal equinox. They placed the vernal equinox on 21 March and in doing so relied on the Julian Calendar, that is, the calendar introduced by Julius Caesar in 45 BC. The Julian Calendar presupposed a year of 365 and a quarter days which is slightly more than 11 minutes too long. This results in an error of approximately one whole day every 128 years. By the late 16th Century the Julian Calendar was in error by a full 10 days. The true astronomical equinox then fell not on 21 March, but, according to the Julian reckoning, on 11 March. Nonetheless, in accordance with the resolution of the Council of Nicaea and 1300 years of tradition, the first Sunday after the vernal equinox was taken to be the first Sunday after 21 March.
In 1582 Pope Gregory XIII introduced a new calendar which eliminated 10 days from the month of October. He also decreed that century years would only be leap years when they were divisible by 400 (for example, 1600 and 2000 and 2400). Today the Julian Calendar differs from the Gregorian Calendar by 13 days.
Synods held at Constantinople in 1583, 1587 and 1593 rejected the Gregorian Calendar. One reason for the rejection was that under the Gregorian Calendar, Easter sometimes preceded the Jewish Passover. Another was resistance to the perceived attempt by Pope Gregory to impose his will on the Eastern Church. Another was that introduction of a New Calendar would break the continuity of Holy Tradition.
The Gregorian Calendar was gradually adopted throughout Western Europe, but Greece along with other Orthodox countries continued to follow the Julian Calendar not only in church worship, but in civil affairs. That changed following the First World War. The civil authorities in countries where most of the Orthodox lived, such as Greece, Russia, Bulgaria, Romania and Serbia changed to the use of the Gregorian Calendar.
In 1920 the Ecumenical Patriarch of Constantinople issued an encyclical proposing 11 ways in which Christians of different communions could co-operate together. The first of these was the acceptance of a uniform calendar for the celebration of the great Christian feasts at the same time by all the churches.
Old Calendarist writers draw attention to the connection between the 1920 encyclical proposing the change to the calendar and the pursuit of ecumenism. Clause 3 of a statement of constitutional principles of the OCOCG-HSIR states:
"3. The purpose of this canonical synodal body was not to found another Church, but rather to form a union between resisters in the Orthodox Church who have lawfully and canonically walled themselves off from the ecumenists, who sundered the unity of the Church in 1924 through the introduction of the New Calendar, as envisaged by the reprehensible Encyclical issued by the Patriarchate of Constantinople in 1920, the first-fruits and basis of the heresy of ecumenism in the Christian East."
In 1923 delegates to what was called a Panorthodox Conference at Constantinople voted that for fixed feasts, such as Christmas and the Annunciation, and for the Paschalion, that is, the tables determining the date of Easter, the Orthodox Church should follow a "revised Julian Calendar" (or New Calendar), which for practical purposes would be identical with the Gregorian Calendar as the two would exactly coincide until the year 2800. However, the 1923 conference was not "Panorthodox". It was attended by delegates from no more than five Orthodox churches.
In the event, only some of the Orthodox Churches introduced the New Calendar. In 1924 the New Calendar was adopted by the churches of Constantinople, Greece, Cyprus and Romania. The Patriarchate of Alexandria adopted the New Calendar in 1928. This, it will be recalled, was the only recognised autocephalous church that (for a time) recognised the FSOC-ANZ Diocese. The FSOC-ANZ Diocese had no difficulty in being in communion with a New Calendar church.
Antioch also adopted the New Calendar in 1928. Bulgaria adopted it in 1968. The New Calendar is also followed by Albania, Finland and the Orthodox Church in America (except in Alaska).
The Serbian Orthodox Church continues to use the Julian Calendar, as do the Patriarchate of Jerusalem and the churches of Russia, Georgia and Sinai. The Orthodox Church of Poland officially follows the Julian Calendar, but some parishes use the New Calendar. In the Orthodox Church of the Czech Republic and Slovakia both calendars are followed. Timothy Ware (Metropolitan Kallistos) wrote that:
"… it will be helpful to make a terminological distinction between 'Orthodox Churches following the Old Calendar' and the 'Old Calendarists'. By 'Orthodox Churches following the Old Calendar' are meant churches such as Jerusalem, Russia and Serbia. These, although adhering to the Julian reckoning, remain in full communion with the Patriarchate of Constantinople, the Church of Greece, and the other New Style Orthodox Churches. By 'Old Calendarists' are meant those Orthodox Christians, in Greece and elsewhere, who have broken off all communion, not only with the New Calendar Orthodox Churches, but also with the Orthodox Churches following the Old Calendar, such as Jerusalem, Russia and Serbia, which continue in communion with the New Calendarists. Thus the Orthodox Churches following the Old Calendar form, along with the New Calendar Orthodox Churches, a world-wide Orthodox communion that is single and undivided, whereas the Old Calendarists constitute a distinct and separate movement."
When, in the autumn of 1923, it became clear that the change of calendar would not be adopted simultaneously by the member churches throughout the Orthodox world, Archbishop Chrysostomos of Athens proposed a compromise which was accepted by the Holy Synod of the Church of Greece and by the Ecumenical Patriarchate of Constantinople. The compromise was that the New Style would be introduced solely for fixed feasts such as 25 December (Christmas) and 25 March (Annunciation, which is also the Greek national day). On the other hand the Paschalion determining the date of Easter should, for the time being, be left unchanged, with the vernal equinox of 21 March still being reckoned according to the Old Calendar. This intermediate arrangement - New Style, for fixed feasts, and Old Style for the Paschalion - continued to be followed by all the New Calendar Orthodox Churches except for Finland and a few Orthodox parishes in the western world which keep Easter on the same date as the west.
Archbishop Chrysostomos and Bishop Ambrose explained that the fixing of the dates of Easter was dependent not only on the Julian Calendar, but also the lunar calendar and the Jewish calendar, and was to be the first full moon after the Jewish Passover. The timing of the seasons of the church was not only dependent on the lunar calendar. The regularity of the seasons of the church is an essential part of Holy Tradition and is disrupted by departure from the Old Calendar. The attempts of Pope Gregory to impose the New Calendar were rejected by synods of the Orthodox Church. Archbishop Chrysostomos said the Old Calendarists use the calendar as a banner against changes that have taken place in the faith involving what they see as compromises in Orthodoxy because of the ecumenical movement.
By 1933 the New Calendarist hierarchy in the Greek Church was facing serious opposition from the Old Calendarists. But the Old Calendarist movement split into rival factions. In 1937 Metropolitan Chrysostomos of Florina stated that the New Calendarist Church of Greece (that is, the established Church) was not altogether deprived of divine grace and its sacraments were not altogether invalid. He and his followers were "walling themselves off" from error, but were still fellow members of a single all-embracing Church of Greece. By contrast, Bishop Matthaios (Karpadakis) of Vresthena considered that the New Calendarist Church of Greece was fully schismatic, was without the grace of the Holy Spirit and its sacraments were null and void. The Old Calendarists were thus split into two rival factions, the more moderate being the Florinites and the more extreme, the Matthewites. Timothy Ware (Metropolitan Kallistos) wrote that between 1963 and 1994 the Old Calendarist movement had been split into at least eight subdivisions with each group headed by its own synod of bishops and with each synod excommunicating all the others. The OCOCG-HSIR is a group which continues directly the tradition of Metropolitan Chrysostomos of Florina. Archbishop Chrysostomos of the OCOCG-HSIR said that dialogues were underway to achieve some sort of unity between the various Old Calendarist groups, which would bring about a union of several hundred thousand Old Calendarists in Greece, constituting at least 90 per cent of the Old Calendarists in that country.
Timothy Ware (Metropolitan Kallistos) wrote that Metropolitan Chrysostomos of Florina died in 1955 without consecrating any bishop to succeed him. The Florinites were left without an episcopate because all four of the bishops who had been consecrated in June 1935 had either died or returned to the State Church. In December 1960 the Florinites sent one of their number, Archimandrite Akakios (Pappas) to America seeking episcopal consecration from the synod of the Russian Orthodox Church Outside Russia. The Russian synod rejected the request. Notwithstanding the rejection, two bishops belonging to that church, Archbishop Seraphim of Chicago and the Romanian Bishop Teofil (Ionescu), proceeded to consecrate Akakios Pappas under conditions of strict secrecy. Bishop Teofil was himself a follower of the New Calendar. It was not until almost a decade later that the Russian Orthodox Church Outside Russia gave its official approval to the consecration of Akakios. In May 1962 Akakios consecrated three further bishops with the assistance of another member of the Russian Orthodox Church Outside Russia, Archbishop Leonty of Chile and Peru. The New York synod of that church later severely reprimanded Archbishop Leonty for his actions. Hence, Metropolitan Kallistos observed "In this way the 'Florinites' recovered the episcopate, albeit in a manner that was distinctly questionable."
The basis for such questioning appears to have been that the episcopal consecration was without the approval of the synod of the Russian Orthodox Church Outside Russia. Neither the plaintiffs nor the Attorney-General pointed to any material that might demonstrate that such approval was necessary for the validity of the act of episcopal consecration, and it appears in any event that the synod did ultimately ratify what was done. It has not been shown that Bishop Ambrose does not have apostolic succession. I accept that he does.
Bishop Ambrose said that some bishops of the Eastern Orthodox Church, that is, of the 14 or 15 autocephalous churches, would, and some would not, accept that he is a bishop with apostolic succession. But this would not be because of any formal defect in the laying on of hands, but because apostolic succession is a continuation of a tradition within the Orthodox faith. Because some would regard the Old Calendarists as being schismatic, they could regard his apostolic succession as being outside that tradition.
The fact that some would reject Bishop Ambrose's claim to apostolic succession on the ground he is schismatic does not indicate that it would be contrary to the spirit of the trust for the property to be applied for the purposes of a church of which Bishop Ambrose is the head. The same doubts, arising from the charge of schism, arose in the case of the Free Serbian Orthodox Church.
[37]
Relationship between the Free ANZ Diocese and the OCOCG-HSIR
The question is what is the current relationship between the OCOCG-HSIR and the Free ANZ Diocese? The first to fifth defendants submitted that the relation between the Free ANZ Diocese and the OCOCG-HSIR is that there is an affiliation between the two churches, but the Free ANZ Diocese is not under the spiritual jurisdiction of the OCOCG-HSIR. Rather, the two churches are in communion. The OCOCG-HSIR does not provide ecclesiastical oversight of the Free ANZ Diocese. Bishop Ambrose is the hierarch of the Free ANZ Diocese and there is no hierarch above him. Bishop Ambrose gave evidence to that effect. He said that in his administration of the Free ANZ Diocese he does not answer to any hierarch of any other church, including the OCOCG-HSIR. He deposed that his role as a hierarch of the OCOCG-HSIR was entirely separate from his role as bishop of the Free ANZ Diocese. I accept that evidence. Bishop Ambrose also said he did not regard the Free ANZ Diocese as part of the OCOCG-HSIR. I do not doubt the sincerity of that evidence, but it cannot mask the closeness of the relationship of the two churches.
The role of Bishop Ambrose as bishop of the OCOCG-HSIR answerable to the synod of that church and at the same time Bishop of the Free ANZ Diocese not responsible to that synod is dubious. Archbishop Chrysostomos, who is also a member of the synod of the OCOCG-HSIR described the situation as very irregular. Archbishop Chrysostomos said that as a matter of canon law it was not prohibited for a person to be a bishop at the same time in two different Orthodox churches, but it was irregular.
The affiliation of the Free ANZ Diocese with the OCOCG-HSIR was carried out to an extent that it became very closely associated with the OCOCG-HSIR. Thus Bishop Ambrose received Father Saracevic as a priest of the OCOCG-HSIR in late 2007. Bishop Ambrose received Father Jovic into the OCOCG-HSIR in 2010. On 27 June 2012 he ordained Father Vlajic as a priest of the OCOCG-HSIR. Prior to his ordination Father Vlajic was a deacon in the Serbian Orthodox Church. He had been suspended from that position and was then being punished for having allegedly stolen money, a charge he denied. He answered an advertisement on the internet for a position of priest in Australia. He left without a canonical release. Father Vlajic served at the church of King Stefan of Dechani, Carrum Downs since mid-2012. Bishop Ambrose appointed Father Hristifor as abbot of the St Sava Monastery and also as a priest serving the church-school congregation at St Nicholas, South Brisbane in November 2013. Father Hristifor had been ordained a deacon in the Serbian Orthodox Church in October 2008. He left the Serbian Orthodox Church without a canonical release. He knew that was contrary to canon law. He left the Serbian Orthodox Church for what he called "personal reasons".
At no time prior to the hearing were any of the priests who had been received or ordained into the OCOCG-HSIR appointed by Bishop Ambrose as priests of the Free Serbian Orthodox Church. Bishop Ambrose said that this was an administrative oversight on his part. It was corrected after he gave evidence. Until then, the priests administering the churches that described themselves as being part of the Free ANZ Diocese were serving as priests of the OCOCG-HSIR.
The website of the OCOCG-HSIR included in its list of parishes and churches the church of St Stefan Dechani, Carrum Downs and St George, Forrest. It also included the monastery as part of its diocese.
[38]
Conclusions on the Spirit of the Trust
The close association of the Free ANZ Diocese with the OCOCG-HSIR is not in accordance with the original spirit of the trust. It was not part of the original spirit of the trust that the Free ANZ Diocese took any particular view on the issue of ecumenism. It had no occasion to take any view upon the use of the Old Calendar. Whilst ethnicity is not part of the Orthodox Church tradition, the spirit of the trust was for the use of the monastery by a church with a distinctly ethnic and nationalist Serbian focus. The OCOCG-HSIR does not have that focus. Its roots lie in a dispute concerning the adoption of the Old Calendar by the church of Greece; something with which the Free Serbian Orthodox Church had nothing to do. Bishop Ambrose is an Englishman. Whilst Bishop Ambrose, as Bishop of the Free ANZ Diocese, acts separately from his position as a bishop of the OCOCG-HSIR, there is nonetheless a close association between the two churches of a kind that is not in accordance with the original spirit of the trust on which the monastery was established.
I also accept the submissions of the plaintiffs and the Attorney-General that the association of the Free ANZ Diocese with the OCOCG-HSIR is contrary to the spirit of the trust upon which the monastery was founded in that that association is inimical to any future reconciliation between the Free ANZ Diocese and the Serbian Orthodox Church. It was part of the original spirit of the trust that such a reconciliation was something devoutly to be wished. But whilst Bishop Ambrose is bishop of the Free ANZ Diocese, or the association of the Free ANZ Diocese with the OCOCG-HSIR continues, such a reconciliation could only be achieved if the issue of the use of the New Calendar and issues concerning ecumenism were resolved by a Greater Orthodox Synod (that is, a council of all or substantially all Orthodox churches) to be held at some time in the future. As no such Greater Synod has been convened during the 90 years over which these issues have festered, there is no reason to think that it might happen in a reasonable time in the future. The Free ANZ Diocese's association with the OCOCG-HSIR is likely to be counterproductive to any future reconciliation of the remaining members of that diocese with the Serbian Orthodox Church. This obstacle to reconciliation is not in accordance with the spirit of the trust.
To apply the monastery in the circumstances that now exist would be contrary to the spirit of the trust in the following respects. First, the original spirit of the trust was that it was a trust for the benefit of all of the church-school congregations and associated organisations who formed the Free ANZ Diocese. The character of that organisation has changed markedly. Only a rump of that organisation now remains. Many of those who do remain, or at least their leaders, were persons who acted contrary to the terms of the constitution of the Free ANZ Diocese by acting contrary to the directions of the diocesan authorities, namely Bishop Irinej and the Diocesan Council, albeit under provocation.
Secondly, the spirit of the trust was that the monastery be held for the purposes of a church that was Serbian, in nationality and ethnicity. The monastery was to be a continuation of a tradition of the Serbian Orthodox Church. The Free ANZ Diocese has departed from that spirit by affiliating itself with the OCOCG-HSIR and appointing an Englishman, Bishop Ambrose who is a bishop of that church. His position as bishop of two churches both professing the Orthodox faith is irregular.
Thirdly, it was part of the original spirit of the trust that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church. That purpose is likely to be frustrated whilst the Free ANZ Diocese remains associated with the OCOCG-HSIR.
I have found that the original division of the Serbian Orthodox Church and the Free Serbian Orthodox Church was not a division on a point of religious principle, but on a matter of church politics. For the monastery to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with any religious principle of the Free ANZ Diocese.
However, it would be inconsistent with part of the original spirit of the trust if the monastery were not available for the purposes of all of what were the constituent elements of the Free ANZ Diocese and their successors. To deprive those who adhere to the Free ANZ Diocese of the benefits of the use of the monastery is not in accordance with the spirit of the trust. But this has to be weighed against the facts favouring the making of an order to alter the original trust purposes.
In Varsani v Jesani [1999] Ch 219 the Court of Appeal in England held that a cy-près scheme could be ordered pursuant to s 13(1)(e)(iii) of the Charities Act 1993 (UK), which is in relevantly similar terms to s 9 of the Charitable Trusts Act, because schism within a Hindu sect meant that the original purposes of the trust had ceased to provide a suitable and effective vehicle for using the trust property having regard to the spirit of the gift at the time the two groups were in harmony. The Court of Appeal held that the spirit in which donors gave property upon trust for the promotion of a Hindu religion was that it provide facilities for a small but united community of followers. Because of a division of that group, with each faction believing that it alone continued to profess the true faith, the original purposes of the trust had ceased to provide a suitable and effective method of using the trust property. The Court of Appeal held that a scheme for settlement of the trust property could be directed without an inquiry as to which of the two sides of the schism more closely adhered to the original religious purposes of the sect.
Following the decision of the Court of Appeal, Patten J subsequently directed that the larger of the two sides of the schism should be entitled to use the temple. Other trust property was sold for the purposes of providing a property which could be used by the smaller side. Patten J, as he was bound to do, said that it would be contrary to the decision of the Court of Appeal for the Court to make a "qualitative distinction between the two groups in terms of their status as adherents to this branch of the Swaminarayam faith." He divided the property of the charity on the basis of what each group would require in order to continue the practice of their faith in a way which would cause least offence to each group, would respect the dignity and integrity of each group, and would minimise the risk of future conflict (Varsani v Jesani [2002] 1 P & CR DG 11 at [11]).
In White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 Briggs J said (at [19]):
"19. While it is necessary to be cautious when seeking to extract principles from cases decided on particular (and different) facts, I consider that the Varsani's case provides the following useful guidance relevant to the question whether the court's cy-près jurisdiction is engaged in the circumstances of this case. First, the court is ill-equipped to determine by reference to issues of belief or ecclesiastical order which of two or more groups emerging from a schism represent the true faith. Secondly, it will usually be unnecessary to do so in the context of a cy-près application under section 13(1)(e)(iii) of the 1993 Act. This is because, in relation to property donated to a religious charity prior to the relevant schism, the spirit of the gift is to be ascertained as at the time when the gift was made, and the schism will, of itself, commonly lead to the results (i) that the appropriation of the whole of the property to the use and control of one of the emerging factions will be contrary to the spirit of the gift, and (ii) that the use of the donated property for the advancement of the religion of one of those factions, to the exclusion of any others, will no longer be a suitable and effective method of using that property. This will (as on the particular facts of Varsani's case) almost inevitably be the consequence where the schism has the effect of dividing a previously united worshipping congregation into incompatible factions which can no longer worship together. …"
Mr Blake SC and Mr Edwards who appeared for the first to fifth defendants submitted that this approach elevated the spirit of the trust above the original purposes of the trust and could not be supported as a matter of statutory construction. I do not accept this criticism. Whether the original trust purpose is providing a suitable and effective method of using the trust property must be gauged against the spirit of the trust.
A difficulty I have with the approach taken in Varsani v Jesani is that where the condition for the exercise of the statutory power is satisfied, the order that can be made is for the application of the trust property "cy-près", that is, as nearly as possible to the original trust purpose, but in a way which provides a suitable and effective method for using the trust property. That is to say, a cy-près scheme should provide a suitable and effective method for using the trust property having regard to the spirit of the trust, but, subject to that requirement, it should adhere as closely as possible to the particular manner in which the settlors of the trust sought to achieve their general charitable intention.
The particular difficulty which arose in Varsani v Jesani does not arise in the present case. In this case there is no relevant difference in faith of the two groups. It is true that the Extended Plenum held on 29 December 2007 and the Church National Assembly held on 29 December 2012 rejected the doctrine of ecumenism and this is a point of difference in religion between the current two competing groups. But it was not an issue of religious principle for the Free ANZ Diocese when the trust was established. No question arises as to which group is more closely aligned to the opinion of the Free ANZ Diocese on the issue of ecumenism at the time the trust was established because it does not appear that this was an issue that troubled the Free ANZ Diocese at that time.
I have concluded that the changes to the character of the Free ANZ Diocese since the trust was established and the migration of the majority of the church-school congregations that were formerly part of the Free ANZ Diocese to the SOC-ANZ Metropolitanate mean that not only has the existing trust purpose ceased to provide a suitable and effective method for using the monastery having regard to the spirit of the trust, but that the use of the monastery for the purposes of the SOC-ANZ Metropolitanate would be closer to the original trust purpose, having regard to the spirit of the trust, than would its continued application for the purposes of the Free ANZ Diocese.
Neither the plaintiffs nor the Attorney-General submitted any details of a cy-près scheme. In their statement of claim the plaintiffs sought an order that the original purposes of the charitable trust be altered to allow the property to be applied cy-près towards the maintenance and propagation of the Orthodox Christian faith through the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church. No other details of a cy-près scheme were identified.
I accept that an order should be made to allow the monastery to be applied substantially in the way proposed by the plaintiffs. But to the extent practicable, the monastery should also be available to those individual members and organisations associated with the current Free ANZ Diocese, provided that their use of the monastery property is not inimical to its use by the ANZ Metropolitanate of the Serbian Orthodox Church. The monastery consists of more than the monastery church. I accept that it would be impracticable for the monastery church to be used by priests of the Free ANZ Diocese or the OCOCG-HSIR who are not in communion with the Serbian Orthodox Church. The evidence is that if that were to happen the church would have to be re-blessed before it could be used again by the Serbian Orthodox Church, although the reasons for that were not clearly explained. But there is no reason that individual members of the Free ANZ Diocese could not attend church services of the Serbian Orthodox Church in the monastery, or use the monastery church for private prayer. The OCOCG-HSIR and, I assume, Bishop Ambrose in both his capacities, do not consider that the Serbian Orthodox Church is without grace. There is no reason that I can see that other parts of the monastery, including its sporting or recreational facilities, could not be used by individuals or organisations associated with the Free ANZ Diocese. No evidence was presented that would suggest that this was impracticable. It may be that relations between the different factions have reached such a point that any attempt to accommodate the interests of both would be productive of more friction. But if not, the original purposes of the trust would be more closely followed if arrangements were in place that would permit the use of the monastery by adherents to the Free ANZ Diocese as well as to the Serbian Orthodox Church.
[39]
Should the Plaintiffs be Refused Equitable Relief?
The first to fifth defendants submitted that the plaintiffs should be refused equitable relief because Bishop Irinej had repudiated the charitable trusts on which the monastery was held. I accept the evidence of Archbishop Chrysostomos that under both Scripture and canon law, the imposition of ecclesiastical discipline presupposes a right of procedural fairness or due process (e.g. John 7:51 and see also Acts 25:14-26:32). Archbishop Chrysostomos quoted St Theophylact of Ohrid, commenting on the passage from the gospel of St John, that "the law commanded that no-one condemn a man without first judging [i.e., trying] him. By doing just that, the Pharisees obviously transgressed the law." I accept Archbishop Chrysostomos' opinion that the canons, in accord with Scripture, presuppose the principle of due process in the ultimate resolution of any case. He said that in the exercise of a bishop's discretionary power to protect the vulnerable, the public, and the institution of the church itself in difficult situations, the canons permit a bishop to exercise his discretionary authority through initial ecclesiastical discipline, but the exercise of preliminary disciplinary actions is only provisional. They anticipate a properly constituted court of second instance wherein due process would come into play. I accept that opinion. No such process was offered to Mr Nesic or to various other individuals.
However, it does not follow that the plaintiffs should be denied equitable relief. Bishop Irinej is not seeking to assert any personal rights. The question whether the trust purposes should be altered cy-près is one that affects the interests of the members of both churches and not just the Bishop personally. More fundamentally, it involves giving effect to the discerned intentions of those who contributed to the establishment of the monastery. I do not consider that criticism of the Bishop's actions should provide a basis for withholding cy-près relief if the grant of that relief is otherwise appropriate.
The first to fifth defendants relied on observations of Young CJ in Eq in Radmanovich v Nedeljkovic at [207]-[210]. That case concerned the trust of church buildings for a Serbian Orthodox church-school community at Elanora Heights known as the Warriewood Community of St Sava. The plaintiffs sought a declaration that the property was held on trust for the church-school community as an autonomous body with respect to the management of its real and personal property. The defendants sought declarations that the property was held on trust for the religious and charitable purposes of the SOC-ANZ Diocese, being part of the Serbian Orthodox Church. The defendants sought the removal of two of the trustees and their replacement with two individuals sympathetic to the defendants. They sought orders in relation to the management of the church-school community. Young CJ in Eq held that the land was held on trust for the purposes of a Serbian Orthodox Church and subject to relevant parts of the constitution of the SOC-ANZ Diocese and the rights of members of the unincorporated association known as the First Serbian Orthodox Community of St Sava in Warriewood to participate in the affairs of that association in accordance with rules adopted in 1950. His Honour recorded (at [62]-[66]) that in 1998 rival meetings had been held of members of the church-school community. A majority of members attended one meeting that purported to adopt a new set of rules. A smaller meeting was called by the Bishop and it purported to remove the committee and elect a rival committee. The plaintiffs (being trustees of the land) were charged before a church court with disobeying the Bishop and were sentenced to be excommunicated. There were some attempts at reconciliation. The sentences of excommunication were modified to suspension, but, after a flare-up, the sentences of excommunication were reimposed, either by the Bishop or the ecclesiastical court. Young CJ in Eq said of these matters:
"(b) The Excommunications
[207] Although little significance was put on the fact of the excommunications in 1998, I considered that they had great significance. Whilst, if the defendants' arguments were correct, the excommunications might be seen as a necessary step to preserve essential discipline in the church, if the plaintiffs are correct, the excommunications present very considerable practical problems in carrying out the trusts.
[208] Whilst the Court will not usually enquire into an excommunication from a church based on theological grounds, the present excommunications, if the plaintiffs are correct, flowed from their attempts to administer the trusts laid on them in a proper and legal manner. Those trusts involved using the buildings inter alia so that the people could worship in the style of the Serbian Orthodox Church. However, by their actions, the hierarchy may have made that impossible and have repudiated the trusts.
[209] There have unfortunately been many court cases involving the Orthodox Churches in Australia. In almost all of them part of the problem has been that the European idea of banishing all opponents by excommunication has come up against the Australian ethos of unity in diversity, tolerance and democracy. Experience has shown that if the hierarchy excommunicate the lay leaders of an Australian parish, the whole Church's mission will be detrimentally affected, not the least by the passing of hundreds of thousands of dollars from the Church's funds into the pockets of lawyers.
[210] The great problem for the defendants is that under the 1950 Rules it requires a unanimous vote of all the members of the Church School Community to change the rules. It would not seem, though the point has not been argued, that the fact of excommunication prevents the plaintiffs from exercising their rights as members. Further, the fact of the excommunication and its status being maintained during the hearing of the suit and the absence of any offer by the defendants to do equity may mean that no meaningful relief can be given on the defendants' cross-claim."
It is unfortunate that what Young CJ in Eq said in para [209] was not heeded in this case. However, with respect, it is not clear how Young CJ in Eq contemplated that the fact of excommunications might have affected the defendants (cross-claimants) in Radmanovich v Nedeljkovic. Young CJ in Eq did not need to take the matter further. It does not appear that his observations were based on any doctrine of unclean hands. It is not clear what offer to do equity the defendants might have been required to make which was precluded by their insistence on the excommunications being effective.
I do not consider that the criticisms of the Bishop's conduct in the present case, although substantially justified, provide any basis for not making a cy-près order, nor for refusing an order for the removal of the Property Trust Company as trustee. The latter order is inevitable once it is determined that a cy-près order should be made to provide substantially for the monastery to be held for the purposes of the ANZ Metropolitanate.
Although it is not relevant to the legal issues to be determined, nonetheless, in fairness to him, I should say that Bishop Irinej's actions were taken in good faith for the purpose of fully implementing what he considered to be the assimilation of the NGM-ANZ Diocese into the Serbian Orthodox Church. Bishop Irinej's conduct, although itself provocative, was also the result of provocation by a disaffected minority.
I will direct that the plaintiffs and the Attorney-General prepare a draft cy-près scheme for the use of the monastery for the purposes of the SOC-ANZ Metropolitanate and that so far as practicable the scheme include provisions that would permit individual members or organisations associated with the Free ANZ Diocese access to the monastery. The plaintiffs and the Attorney-General should seek consultation with Bishop Ambrose, if he is prepared to co-operate, or persons nominated by him for that purpose, as to the details of such a scheme.
[40]
Conclusions and orders
For these reasons I have reached the following principal conclusions:
1. the monastery was and is held by the Property Trust Company upon a trust for the purposes of building and conducting a monastery, a monastery church and related facilities for the purposes of the Free ANZ Diocese as constituted from time to time;
2. as submitted by the first to fifth defendants, only limited amendments were made to the 1976 constitution in 1988;
3. neither the Reconciliation Proposal, nor the Transitional Regulations, nor the change of name, nor the acceptance by the NGM-ANZ Diocese of the appointment by the Holy Assembly of Bishops in Belgrade of bishops or a bishop-administrator to the NGM-ANZ Diocese, nor the concelebration of the liturgies by clerics of the SOC-ANZ Diocese and the NGM-ANZ Diocese, nor any other events prior to the holding of the meetings on 3 and 4 September 2010 resulted in the NGM-ANZ Diocese's having merged with the SOC-ANZ Diocese;
4. Bishop Irinej was entitled to exercise the authority of Bishop of the NGM-ANZ Diocese as provided for in the 1976 constitution. This included authority to supervise the monastery;
5. the rejection by the Property Trust Company of Bishop Irinej's authority to supervise the monastery, the exclusion of Bishop Irinej and of persons authorised by him to attend the monastery and to conduct services in the monastery church, and the allowing of Father Saracevic to conduct services in the monastery church between 2008 and 2010, were breaches of the trust on which the monastery was held;
6. those breaches of trust should not be excused;
7. the resolution of the Church National Assembly of the NGM-ANZ Diocese on 4 September 2010 to adopt a new constitution whereby the NGM-ANZ Diocese purportedly ceased to exist as a separate association was invalid on the grounds that:
1. the constitution of the NGM-ANZ Diocese did not permit its dissolution or its amalgamation with the SOC-ANZ Diocese into the ANZ Metropolitanate; and
2. four church-school congregations were not invited to and did not attend the meetings of 3 and 4 September 2010 by duly appointed delegates, and it is not open to the plaintiffs, nor to the Attorney-General, to contend that those church-school congregations were not entitled to attend because they had already left the NGM-ANZ Diocese;
1. the other grounds on which the first to fifth defendants challenged the validity of the resolution of 4 September 2010, including the ground that entering into a union with the Serbian Orthodox Church was contrary to a fundamental purpose of the trust, have been rejected;
2. the monastery is not presently held on trust for the purposes of the SOC-ANZ Metropolitanate;
3. having regard to the matters put in issue it cannot be concluded that the NGM-ANZ Diocese (now again called the Free ANZ Diocese) has ceased to exist. But its character is very different from the character of the Free ANZ Diocese when the trust was established;
4. because the Free ANZ Diocese has not ceased to exist and continues to function, including through the use of the monastery, it remains possible to execute the trust and there would be no ground at general law for making a cy-près order to alter the purposes of the trust;
5. the spirit of the trust included that:
1. the monastery would be available for the use of all of the members of the Free ANZ Diocese as it then existed and their successors;
2. the monastery would be a piece of Serbian soil in Australia, that is, the monastery and the church that used it, would be a Serbian church;
3. the establishment of the monastery would be a continuation of a centuries-old tradition of the followers of the Serbian Orthodox Church who had built monasteries to preserve their holy heritage;
4. the monastery would be used for the purposes of a church that it was hoped would one day reunite with the Serbian Orthodox Church when the reason for the division that prevailed when the monastery was established was removed; and
5. the monastery would be used by members of the Free ANZ Diocese that was led by a bishop having apostolic succession.
1. as a corollary of (l)(iv), the permanent independence of the Free ANZ Diocese from the Serbian Orthodox Church was not part of the spirit of the trust;
2. opposition to ecumenism was not part of the spirit of the trust, nor a principle of the Free ANZ Diocese. The division within the Free ANZ Diocese from 2007 was occasioned by matters of church politics, not faith. Use of the monastery by the ANZ Metropolitanate would not be inconsistent with any religious principle of the founders of the monastery;
3. Bishop Ambrose has apostolic succession, but his position as Bishop of the Free ANZ Diocese and also a Bishop of the OCOCG-HSIR is irregular;
4. the affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the appointment of Bishop Ambrose as Bishop of the Free ANZ Diocese is not consistent with the spirit of the trust;
5. because:
1. those persons now forming the Free ANZ Diocese are only a small minority of the successors to the members of the Free ANZ Diocese at the time the trust was established;
2. use of the monastery for the purposes of the ANZ Metropolitanate would be consistent with the spirit of the trust;
3. the affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the appointment of Bishop Ambrose as Bishop is inconsistent with the spirit of the trust,
the original trust purpose has ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust;
1. the trust purpose should be altered pursuant to s 9 of the Charitable Trusts Act to allow for the monastery to be used for the purposes of the SOC-ANZ Metropolitanate;
2. for the trust purpose to be altered cy-près, consistently with the spirit of the trust, the monastery should be held and used not only for the purposes of the SOC-ANZ Metropolitanate, but to the extent it is not inconsistent with that purpose and is practicable having regard to the need to avoid conflict, it should be available for use also by those individuals and organisations that form or are part of the Free ANZ Diocese. Whilst this does not mean that the monastery church could be used by priests or the Bishop of the Free ANZ Church, or by the priests of other churches that are not in communion with the Serbian Orthodox Church (this being inconsistent with the use of the church for the purposes of the SOC-ANZ Metropolitanate), to the extent it is possible to do so without provoking conflict, other facilities of the monastery should be available to the individuals and organisations forming or being part of the Free ANZ Diocese, provided workable arrangements can be made for that to be done. Individual members of the Free ANZ Diocese should not be denied access to the church for the purposes of private prayer;
3. the Property Trust Company should be removed as trustee of the trust and the second plaintiff appointed as trustee in its place. A vesting order will be made and the Property Trust Company will be required to transfer title of the land to the second plaintiff;
4. the plaintiffs and the Attorney-General will be directed to prepare a scheme to give effect to the cy-près purpose so declared.
For these reasons I propose to make the following declarations and orders, subject to any submissions counsel for any of the parties may have as to their form or sufficiency:
Declare that the land at 453 Wallaroo Road, Wallaroo, NSW, being the land described in Folio Identifier 1/248210 and the buildings thereon ("the monastery") is held by the first defendant upon a charitable trust for the purpose of conducting a monastery, a monastery church and related facilities for the purposes of the unincorporated association known as the Free Serbian Orthodox Church - Diocese of Australia and New Zealand ("the Free ANZ Diocese").
Declare that the trust purpose on which the first defendant holds the monastery has ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust.
Order that the first defendant be removed as trustee of the trust and that the second plaintiff be appointed as trustee in its place.
Order that the monastery vest in the second plaintiff.
Order that the first to fifth defendants forthwith do all that is required on their part to transfer title to the monastery to the second plaintiff.
Order pursuant to s 9 of the Charitable Trusts Act 1993 that the terms of the trust on which the monastery is held by the first defendant, and is to be held by the second plaintiff, be altered to provide that the trustee hold and use the monastery for charitable purposes of the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church provided that:
a) to the extent that to do so is not inconsistent with the said purpose; and
b) to the extent that to do so is practicable having regard to the need to avoid conflict,
the monastery be available for use not only for the purposes of the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church, but also be available for use by those individuals and organisations that comprise or form part of the Free ANZ Diocese.
Direct that the plaintiffs and the Attorney-General, after consultation with Bishop Ambrose, if he is willing to participate, or any persons nominated by him for that purpose, prepare a scheme, in accordance with the reasons for judgment published on 29 May 2015, to give effect to the trust purpose as so altered.
Order that within seven days the second defendant withdraw caveat no. U58320C.
Order that the plaintiffs' claim for relief, save as to costs, be otherwise dismissed.
I will stand the proceedings over to a convenient date to hear any argument on the declarations and orders to be made to give effect to these reasons, including as to whether an order should be made appointing the first to fifth defendants as representatives of the interests of the individuals comprising the Free ANZ Diocese. I will then deal with any issue as to costs.
[41]
Amendments
02 June 2015 - sub-paragraph lettering added to paragraph 521
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 June 2015
Parties
Applicant/Plaintiff:
Bishop Irinej Dobrijevic & Anor
Respondent/Defendant:
Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors
EQUITY - equitable defences - unclean hands - first plaintiff is a bishop of an unincorporated religious association - bishop sought declaratory relief and an order for a cy-près scheme on behalf of the association, and did not assert personal rights - bishop had purported to excommunicate members of the association or deprive them of rights without due process - whether bishop's conduct should preclude orders being made for a cy-près scheme to vary the terms of a charitable trust in favour of the association - held that the bishop's conduct did not preclude the granting of relief
Legislation Cited: Charitable Trusts Act 1993 (NSW)
Charities Act 1993 (UK)
Trustee Act 1925 (NSW)
Cases Cited: Attorney-General (NSW) v Grant (1976) 135 CLR 587
Attorney-General (NSW) v Fred Fulham [2002] NSWSC 629
Attorney-General v Gould (1860) 28 Beav 485; 54 ER 452
Attorney-General v Pearson (1817) 3 Mer 353; 36 ER 135
Attorney-General v Sherborne Grammar School (1854) 18 Beav 256; 52 ER 101
Ball v Pearsall (1987) 10 NSWLR 700
Burton v Murphy [1983] 2 Qd R 321
Cotter v National Union of Seamen [1929] 2 Ch 58
Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601
Craigdallie v Aikman (No. 2) (1820) 2 Bli 529; 4 ER 435
Craigie v Marshall (1850) 12 D 523
Daugars v Rivaz (1860) 28 Beav 233; 54 ER 355
Director of Public Prosecutions v Head [1959] AC 83
Doyle v White City Stadium Limited [1935] 1 KB 110
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515
Green v Page [1957] Tas SR 66
Green v The Queen (1891) 17 VLR 329
Harington v Sendall [1903] 1 Ch 921
Hole v Garnsey [1930] AC 472
J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd & Ors [2006] NSWCA 46; (2006) 57 ACSR 149
J Aron Corporation and The Goldman Sachs Group Inc v Newmont Yandal Operations Pty Ltd [2005] NSWSC 238
Jacobs v Onesteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568
Lewis v Heffer [1978] 1 WLR 1061
Long v Bishop of Cape Town (1863) 1 Moo PC (NS) 411; 15 ER 756
Macqueen v Frackelton (1909) 8 CLR 673
Master Grocers' Association of Victoria v Northern District Grocers Co-operative Ltd [1983] 1 VR 195
Milligan v Mitchell (1837) 3 My & Cr 72; 40 ER 852
Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) (2011) SLT 1213; [2011] CSIH 52
Municipality of St Leonards v Williams [1966] Tas SR 166
Ousley v The Queen (1997) 192 CLR 69
Phillips v Roberts [1975] 2 NSWLR 207
Popovic v Tanasijevic [2001] SASC 289
Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641
Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485; (2006) 200 FCR 243
Re Korda in the matter of Stockford Ltd [2004] FCA 1682; (2004) 140 FCR 424
Re Lepton's Charity [1972] Ch 276
Scandrett v Dowling (1992) 27 NSWLR 483
Click here to enter text.Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 at 703-705 (1976)
Solicitor-General v Wylde (1945) 46 SR (NSW) 83
Thellusson v Viscount Valentia [1907] 2 Ch 1
Tomasevic v Jovetic [2012] VSC 223
Tomasevic v Jovetic [2012] VSC 405
Varsani v Jesani [1999] Ch 219
Varsani v Jesani [2002] 1 P & CR DG 11
White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575
Wylde v Attorney-General (NSW); ex rel Ashelford (1948) 78 CLR 224 at 275
Young v Ladies' Imperial Club Limited [1920] 2 KB 523
Texts Cited: "The Orthodox Church", Timothy Ware, Metropolitan Kallistos of Diokleia (Penguin Books New Edition 1997)
Mr Justice McPherson "The Church as Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159
Category: Principal judgment
Parties: Bishop Irinej Dobrijevic (1st Plaintiff)
Serbian Orthodox Church in Australia and New Zealand Properties Ltd (2nd Plaintiff)
Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (1st Defendant)
Branko Rupar (2nd Defendant)
Ratomir Nesic (3rd Defendant)
Ilija Cubrilo (4th Defendant)
Petar Mandic (5th Defendant)
Attorney-General of New South Wales (6th Defendant)
Representation: Counsel:
S A Glacken QC with J K Taylor (Plaintiffs)
G O Blake SC with W A D Edwards (1st - 5th Defendants)
N L Sharp with A Hochroth (6th Defendant)