Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic - [2017] NSWCA 28 - NSWCA 2016 case summary — Zoe

[3]

The evidence and submissions of the parties concerning the proposed amendments to the notice of appeal

The appellants essentially made no meaningful submissions in support of the proposed amendments, save that they reflected the argument that the appellants wished to advance on appeal and that the essential points raised in the proposed amendments could be divined from the original notice of appeal. Written submissions in reply by the appellants handed up as part of the oral address on the second day of the appeal went so far as to describe the debate over the proposed amendments as "arid", although they correctly accepted that the notice of appeal "organised the whole of the challenge to the primary judge's cy-près findings in his first judgment under the heading 'spirit of the trust'". No evidence was filed in support of the amendments.
The respondents objected to the amendments. Mr Glacken QC, who appeared with Mr Herzfeld on behalf of the first and second respondents, submitted that the amended notice of appeal raised, conservatively, 44 issues that had not been agitated before the primary judge and therefore would give rise to unfairness of the kind described in Coulton v Holcombe (1986) 162 CLR 1.
It was submitted that the appellants were attempting to recast the asserted "ecclesiological principle" it was advancing as part of an argument about the original purposes of the trust on appeal, rather than an aspect of the spirit of the trust which was how the argument was advanced below.
The first and second respondents argued that this created Coulton v Holcombe unfairness, as they had not led evidence on this issue as would have been the case if such a case had been advanced below. In particular, the first and second respondents submitted that they could have asked the witnesses direct questions about the religious principles of hierarchical or congregational structures, as applied to the Free ANZ Diocese, if this was cast as a "purpose of the trust" issue at trial.
Counsel for the Attorney General tendered a bundle of correspondence between the parties prior to the hearing that concerned the grounds of appeal and submissions relied upon by the appellants. This became Exhibit A on the appeal. That evidence demonstrated: 1. on 12 April 2016, almost five months prior to the date fixed for the hearing of the appeal, at the time of filing their written submissions in chief, the appellants noted that they would seek to file an amended notice of appeal which better reflected the issues the appellants still pressed. The reference to an amended notice of appeal, in context, was plainly intended to be understood as referring to the abandonment of grounds 8-13 of the notice of appeal; 2. on 14 June 2016, the Attorney General's written submissions expressly noted that the submissions of the appellants departed in important respects from the grounds in the notice of appeal; 3. on 21 July 2016, approximately six weeks before the dates fixed for the hearing of the appeal, the solicitors for the appellants wrote to the respondents, enclosing a proposed amended notice of appeal apparently in the form of the document now proffered, enquiring whether the respondents would consent to the amendments. On 1 August and 2 August 2016 respectively, the Attorney General and the first and second respondents declined to consent to the proposed amendments, each noting a number of concerns arising from the document; 4. the Attorney General pointed out that it was entirely unclear the extent to which the proposed amended notice of appeal raised issues outside the existing notice and written submissions. The Attorney General stated that the issue of leave to file the amended notice of appeal could not be left to the hearing and pointed out that an appropriate notice of motion and supporting affidavit in support of any application to amend the notice of appeal should be filed forthwith; 5. the first and second respondents made clear that the draft amended notice of appeal sought to raise matters which were not raised before the primary judge and had they been raised evidence would have been led on the issues; in particular grounds 1 and 2 (dealing with the original purposes of the trust), grounds 3(b) (dealing with an aspect of the spirit of the trust), 4(c) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act), 4(e) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act) and 4(g) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act); 6. the first and second respondents also pointed out that the proposed amended notice of appeal contained, including sub-grounds, approximately 120 separate contentions. This was not in accordance with UCPR r 51.18(1)(e) which requires the notice of appeal to state briefly but specifically the grounds relied upon in support of the appeal; 7. the appellants did not reply to either of these letters; 8. on 15 August 2016, the Attorney General again wrote to the appellants noting that it would be completely inappropriate in the present case for the issue of the content of the notice of appeal to be left in the state it was in to be dealt with at the hearing of the appeal; and 9. on 30 August 2016, the appellants wrote to the respondents confirming that they would proceed at the hearing only on grounds 1-7 of the existing notice of appeal and that they no longer intended to seek leave to amend their notice of appeal.
On the basis of that correspondence, it was submitted that: The appellants have had a lengthy period of time in which to reflect upon the points they wished to agitate and if new points are to be raised, then to amend the appeal in order to give proper opportunity to all respondents to reply to that appeal.
Counsel for the Attorney General submitted that this correspondence demonstrated that the possibility of an amended notice of appeal was raised by the appellants on 21 July 2016, five weeks after each of the respondents had filed written submissions. It was submitted that the Attorney General would be prejudiced if the amendments were allowed.

[4]

Consideration of application to amend the notice of appeal

The application for leave to amend the notice of appeal arises under s 64 of the Civil Procedure Act 2005 (NSW) and under UCPR r 51.23 which applies the general rules of amendment in Part 19 of the UCPR to the notice of appeal. Section 64 provides, relevantly: (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
The principles relevant to the grant of leave to permit an amendment were explained in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 in the context of a late application for leave to amend pleadings made under the ACT's Court Procedure Rules. Writing about the court's discretion to allow an amendment, French CJ explained, at [5] and [30] - [31]: [5] In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried. [30] …Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. [31] …The requirement to make amendments for the purpose of deciding "the real issues in the proceeding" does not impose some unqualified duty to permit the late addition of any new claim. The real issues in the proceeding were to be determined in this case by reference to the limited way in which ANU had deliberately chosen to frame its original claim against Aon, and its persistence in that limited approach up to the trial date itself.
Specifically addressing the question of the importance of the explanation for any delay in seeking the amendment, the plurality stated, at [102] - [103]: [102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill‑effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. [103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings [174]. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
Delay, especially where there has been a material (and inadequately explained) failure to comply with directions or procedures in the court, may justify the refusal of leave to amend: Aon at [4], [51]-[54], [106].
In the present case it is also relevant to consider the principles which bind this Court in a case where an issue is sought to be agitated on appeal which was not raised before the primary judge. In Coulton v Holcombe Gibbs CJ, Wilson, Brennan and Dawson JJ explained, at 7‑8: To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219.
When "all the facts have been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied": Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12 at 497; Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 at [16].
In my view, the application to amend the notice of appeal should be refused with costs for the following reasons.
First, this case involves an egregious delay in seeking leave to amend the notice of appeal for which no satisfactory explanation was provided. The appellants had a lengthy period of time in which to reflect upon the points they wished to agitate. If new points were sought to be raised, outside the existing notice of appeal, there was sufficient time before the appeal to do so. They should have applied for leave to amend the notice of appeal long before the date fixed for hearing the matter. That would have given the respondents a proper opportunity to address the matters raised by the proposed amended notice of appeal. The appellants made a deliberate forensic choice not to deploy the proposed amended notice of appeal at a time when the Court could have addressed the issue and made directions for its further conduct consistent with fairness to the respondents. Leave to amend should be refused on that basis alone: Aon at [4], [51]-[54], [106].
Secondly, it is clear that the principal arguments sought to be advanced via the amended notice of appeal raise issues which were not agitated before the primary judge, in particular the grounds attacking his Honour's conclusion about the original purposes of the trust. The first and second respondents submitted that there is a "certain irony" between how the case about the nature of the church (hierarchical or not) was put below compared with how it was put on appeal. It was submitted that the notion that ultimate authority in the Free ANZ Diocese be exercised by an assembly was not explored in the evidence below. The first and second respondents, in making good this proposition, relied on the following: 1. Bishop Irinej's evidence was that he did not accept the premise that the Free ANZ Diocese was anything but hierarchical; 2. Bishop Irinej's evidence was that he did not accept that Free ANZ Diocese was congregational. The passage relied upon related to who had power to dismiss the Bishop and whether there were any constitutional limits on his power; Bishop Irinej argued that he had the powers of a Bishop when holding the title Administrator; 3. Bishop Irinej, Bishop Ambrose and Archbishop Chrysostomos were not asked whether the nature of the Diocese (being hierarchical or congregational) was a fundamental ecclesiological principle of the Free ANZ Diocese.
To this may be added references to the appellants' written submissions below which are in direct opposition to the submissions now sought to be advanced. Those submissions provided, relevantly: 9. It is common ground that the Disputed Land was acquired by the Free ANZ Diocese upon a charitable trust in 1980 and transferred to the Property Trust Company in 1981. The difference between the parties is as to the scope of the charitable purposes. 10. The contention by the Plaintiffs that the Disputed Land was acquired to advance the religious purposes of the Free ANZ Diocese rests upon an erroneous application of the relevant principles. These principles will be applicable where there is no sufficient evidence of the purposes for which property is acquired by an unincorporated association or by a religious institution, or where the purpose is limited to the building and operation of a church building. However, if there is evidence as to the founders' intention, that prevails. If there is insufficient evidence, then the court can act on evidence of long practice in the relevant religious body and from that deduce what the founders' intention was. No particular length of time is necessary to establish usage. 11. The Court should find that the founders' intention is sufficiently evidenced by the events prior to the acquisition of the Disputed Land, the most important being the establishment of the Monastery Fund for specified projects (for the building and operation of the Monastery of the Free ANZ Diocese, a Diocesan Centre of the Free ANZ Diocese, a Youth Hostel and a Home for the Aged) and the use of the funds in the Monastery Fund to purchase the Disputed Land. The projected use of land to be acquired for a monastery for spiritual and welfare purposes stated by Bishop Peter (Bankerovic) in his letter dated 2 January 1979 to the Churches of the Free ANZ Diocese is consistent with stated purposes of the Monastery Fund. 12. If, contrary to these submissions, the Court finds that there is insufficient evidence of the intentions of the Free ANZ Diocese in acquiring the Disputed Land in these events prior to its acquisition, then the Court should find that subsequent usage does not support an inference that the purposes of the trust were the religious purposes of the Free ANZ Diocese. The only relevant usage of the Disputed Land was as the residence of the Bishop, a monastery, the conduct of religious services at the Monastery of St Sava New Kalenich, a cemetery and a Diocesan centre including for children's camps. The religious purposes of the Free ANZ Diocese were far wider than this usage and extended to educational, religious and philanthropic activities conducive to achieving its main purpose of the advancement of religion.
In effect, the appellants are seeking on the appeal to conduct a diametrically opposed case to that advanced immediately above in circumstances where, on the topic of the original purposes of the trust in the context of s 9 of the Charitable Trusts Act, they struck through all written submissions, and made limited oral submissions. The appellants made no submissions directed to this asserted ecclesiological difference as part of the original purposes of the trust.
It is clear that the proposed amended notice of appeal raises many issues which were not raised before the primary judge. In addition to those already identified, the following grounds of the proposed amendment were not raised below: 1. Ground 3(b) - dealing with an aspect of the spirit of the trust; 2. Ground 4(c) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act; 3. Ground 4(e) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act; and 4. Ground 4(g) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act.
I accept that had those issues been raised before the primary judge, the first and second respondents would have approached the issues differently. They lost the opportunity to consider leading additional evidence. They certainly would have conducted cross-examination differently. In particular, no witness squarely addressed the question of whether the terms of the 1976 Constitution which provided a congregational or presbyterian structure represented a fundamental ecclesiological principle of the Free ANZ Diocese. Certainly the appellants led no such evidence and the references to the evidence of Archbishop Chrysostomos given by the appellants, extracted below, do not support that claim. At its highest that evidence provided: 5.5.21 In more recent times, this canonical imperative has been placed in the wider context of ecclesiology, that is, the Orthodox doctrine of the Church, which conceiees of the Eastern Orthodox Church as possessing both a hierarchical and, at the very same time, a congregational aspect: "It is not from his flock that the bishop receives full power to teach, but from Christ through the Apostolic Succession. But full power has been given to him to bear witness to the catholic experience of the body of the church. He is limited by this experience, and therefore in questions of faith the people must judge concerning his teaching. The duty of obedience ceases when the bishop deviates from the catholic norm, and the people have the right to accuse and even to depose him. 6.13 In the historical context of its struggle with the SOC, I read Article 4 more as an effort to provide the FSOC-ANZ with protection from the SOC - from which it was "walled off," in accordance with Canon XV of the First‑Second Synod, Apostolic Canon XXXI, and the historical witness of the Church, which, as I have shown, commends its faithful to separate from their bishop in certain crises - in this case, on account of the SOC's doctrinal innovations, communist infiltration, and administrative injustices - that is, for the sake of "faith and righteousness".
Further, in circumstances where the unchallenged findings of the primary judge are that the congregational or presbyterian structure was ignored by the Free ANZ Diocese in the appointment of bishops on many occasions, it is obvious that the respondents lost an opportunity to lead evidence and cross-examine witnesses. Leave to amend should also be refused on that basis.
Thirdly, the complaints now sought to be made about the original purposes of the trust were outside the appellants' pleaded case before the primary judge. The only aspects of the pleading said to support this case were paragraphs 9(d) and (e) of the appellants' defence below. Each addressed a different case, namely whether it was a fundamental tenet of the Free ANZ Diocese that it be forever independent of the Serbian Orthodox Church. 9 In answer to paragraph 9 of the Statement of Claim the First to Fifth Defendants: (d) say that the Free Serbian Orthodox Church is a separate religious association from the Serbian Orthodox Church Particulars The Free Serbian Orthodox Church has the same doctrines as, substantially the same liturgy as, and governance that is independent of, the Serbian Orthodox Church; (e) say that it was a fundamental or an essential tenet of the founders' intentions that the Free Serbian Orthodox Church be independent of the Serbian Orthodox Church. Particulars The founders' intentions are to be inferred from the circumstances in which the Free Serbian Orthodox Church was established and from the provisions of the constitution of the Free ANZ Diocese which was adopted on 31 October 1964 (1964 Free ANZ Diocese Constitution). Article 3 of the 1964 Free ANZ Diocese Constitution provided that the Free ANZ Diocese enjoyed full administrative freedom, and could administer and organise its affairs and those of churches, schools and all other organs of the Free ANZ Diocese, as well as all of the funds and goods, independently.
Grounds 1 and 2 of the proposed amendment dealing with the original purposes of the trust were simply not the subject of the notice of appeal. None of those grounds, which the appellants correctly accept are "organised … under the heading 'spirit of the trust'", suggest that the primary judge erred in failing to adopt a "touchstone" about which original trust purposes were fundamental. Nowhere do they suggest that the primary judge erred in failing to make the findings they now advance about the fundamental or essential doctrines of the Free ANZ Diocese as being part of the original trust purposes. Leave should not be granted to rely on any of these grounds: Coulton v Holcombe.
Fourthly, the form of the proposed amendment made it near impossible to discern which issues were truly in contest. How those issues arose before the primary judge was not explained. What, if any, errors the primary judge was asserted to have made were not identified. It is unsatisfactory for an appellant, on the first day of an appeal which had been fixed for some months, to attempt to fundamentally re-cast the grounds of appeal. The Court should not be required to wade through a proposed amendment in circumstances where the changes are not meaningfully marked up and, upon analysis, virtually the entire document comprises new material. The proposed amended notice of appeal was not prepared in accordance with UCPR r 51.18(1)(e) which requires the notice of appeal to state briefly but specifically the grounds relied upon in support of the appeal. Whilst such failure, of itself, would usually be an insufficient reason to refuse leave to amend the notice of appeal, in the circumstances here, taken together with the other matters to which I have referred, it provides an additional reason to refuse leave to rely upon the proposed amended notice of appeal.
For these reasons, I would refuse leave to the appellants to rely upon the proposed amended notice of appeal. As will be seen, this conclusion has significant effects on a number of arguments sought to be raised by the appellants on this appeal.

[5]

ISSUES ON THE APPEAL

In order to identify the issues on the appeal it will be necessary first to set out the grounds pressed and attempt to link those grounds to the submissions made. This was not an easy task. The appellants did not in their written or oral submissions identify particular errors other than at an unhelpful level of generality.
The grounds pressed in the notice of appeal were as follows: Spirit of trust 1 His Honour erred in: (a) finding, for the purposes of s 9 of the Charitable Trusts Act 1993 (NSW), that the size of a religious association was a relevant consideration to ascertaining whether the circumstances in which the original purposes of a charitable trust for purposes including the advancement of religion have since they were laid down ceased to provide a suitable and effective method of using the trust property, being the land at 453 Wallaroo Rd, Wallaroo, NSW (Folio Identifier 1/238210) (Monastery Property); (b) finding that the changes to the character of the Free Serbian Orthodox Church - Diocese for Australia and New Zealand (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 Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church (SOC-ANZ Metropolitanate) meant that the existing trust purposes had ceased to provide a suitable and effective method for using the Monastery Property having regard to the spirit of the trust within the meaning of s 9 of the Charitable Trusts Act 1993 (NSW); (c) finding that the use of the Monastery Property for the purposes of the Serbian Orthodox Church (SOC) and/or the SOC-ANZ Metropolitanate would be closer to the original trust purposes of the trust upon which the Monastery Property was held, having regard to the spirit of the trust, than would its continued application for the purposes of the Free ANZ Diocese. 2 His Honour erred in: (a) finding that to apply the Monastery Property in the circumstances where a minority of the original church-school congregations comprised the Free ANZ Diocese would be contrary to the spirit of the trust that the Monastery Property was a trust for the benefit of all of the church-school congregations and associated organisations who formed the Free ANZ Diocese; (b) failing to find that, even if a majority of the original church-school congregations comprising the Free ANZ Diocese had left the Free ANZ Diocese, to apply the Monastery Property for the benefit of those church-school congregations which remained part of the Free ANZ Diocese would still involve promoting the property for the benefit of all the church-school congregations and associated organisations which formed the Free ANZ Diocese; (c) finding that the character of the Free ANZ Diocese has changed markedly in circumstances where the majority of those church-school congregations, or parts of them, formerly part of the Free ANZ Diocese, have left the Free ANZ Diocese and have joined the SOC-ANZ Metropolitanate; (d) failing to find that a change in the size and number of adherents of the Free ANZ Diocese was not a relevant change in the character of the Free ANZ Diocese. 3 His Honour erred in: (a) finding that the spirit of the trust was that the Monastery Property be held for the purposes of a church that was Serbian, in nationality and ethnicity; (b) finding that the Free ANZ Diocese had affiliated itself with the Old Calendar Church of Greece Holy Synod in Resistance (OCOCG-HSIR); (c) finding that the Free ANZ Diocese has departed from the spirit of the trust upon which the Monastery Property as held by affiliating itself with the OCOCG-HSIR and appointing an Englishman, Bishop Ambrose who is a bishop of that church as the Diocesan Bishop of the Free ANZ Diocese. 4 His Honour erred in: (a) finding that it was part of the original spirit of the trust that the Free ANZ Diocese would in time be reunited with the SOC; (b) finding that the purpose that the Free ANZ Diocese would in time be reunited with the SOC is likely to be frustrated whilst the Free ANZ Diocese remains associated with the OCOCG-HSIR. 5 His Honour erred in: (a) finding that the original division of the SOC and the Free ANZ Diocese (and other dioceses which came to be part of Free Serbian Orthodox Church (FSOC) was not a division on a point of religious principle, but on a matter of church politics; (b) failing to find that the original division of the SOC and the Free ANZ Diocese and/or FSOC was on a point of religious (or ecclesiological) principle, namely that ultimate governance authority should be exercised by an assembly of clergy and lay persons rather than by an assembly of bishops; (c) finding that for the Monastery Property to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with any religious principle of the Free ANZ Diocese; (d) failing to find that for the Monastery Property to be applied for the purposes of the SOC-ANZ Metropolitanate would be inconsistent with the religious (or ecclesiological) principle of the Free ANZ Diocese that ultimate authority should be exercised by an assembly of clergy and lay persons rather than by a hierarchy of clergy. 6 His Honour erred in ascertaining the spirit of the trust upon which the Monastery Property was held in failing to consider the terms of the 1976 Constitution of the Free ANZ Diocese in the light of the circumstances at the time of the acquisition of the Monastery Property. 7 His Honour erred in: (a) failing to find that the spirit of the trust upon which the Monastery Property was held included that the Free ANZ Diocese was an independent religious association for the advancement of the Orthodox faith in which ultimate governance authority should be exercised by an assembly of clergy and lay persons; (b) finding that the spirit of the trust upon which the Monastery Property was held was consistent with its use by the SOC and/or the SOC ANZ Metropolitanate, being a religious association for the advancement of the Orthodox faith in which ultimate governance authority is exercised by a hierarchy of clergy; (c) failing to find that applying the Monastery Property for the purposes of the Free ANZ Diocese in its current form (or, alternatively, its current form as modified by any administrative scheme necessary to enable execution of the trusts) was a suitable and effective method of using the Monastery Property, having regard to the spirit of the trust.
The appellants did not address their submissions to any particular ground of appeal. Indeed, having regard to the proposed amendment, they impliedly accepted the criticism of the respondents advanced long before the appeal that their written submissions bore little, if any, relationship to the issues advanced on appeal.
The oral submissions of the appellants also addressed topics without reference to the grounds of appeal. In effect, the appellants sought to re-litigate all the issues, and more, which were before the primary judge about s 9 of the Charitable Trusts Act. A suggested "roadmap", described as a provisional aide memoire to argument which was handed up by the appellants at the outset of oral submissions could not readily be used to cross reference grounds, the primary judge's findings and the appellants' submissions.
For example, the assertion of error was made in that document that the primary judge failed to find that the original purposes of the trust included "the ecclesiological principle that ultimate authority was to be exercised by an assembly of clergy and laity, rather than a hierarchy of clergy". References were given to appeal grounds 5, 6 and 7(a) set out above. A number of things need be said. First, as I have found when dealing with the proposed amended notice of appeal no such finding about the original purposes of the trust was sought before the primary judge. It is unsurprising that the "judgment reference" for this issue in the "roadmap" is blank. It was not an issue at the trial. Secondly, the references to the appeal grounds do not reflect this submission. Each of the grounds referred to appears under a heading "spirit of the trust". Further: 1. Ground 5 - under the heading "spirit of the trust" apparently attacks findings made by the primary judge (although it will be recalled that the "judgment reference" for this issue in the "roadmap" is blank). Nowhere in ground 5 is it suggested that these matters comprised original purposes of the trust. 2. Ground 6 commences in terms: His Honour erred in ascertaining the spirit of the trust … 1. Ground 7(a) commences in terms: His Honour erred in: (a) failing to find that the spirit of the trust upon which the Monastery Property was held included …
There was a further problem with the presentation of the appellants' case in that, so far as findings of fact made by the primary judge were concerned, the appellants failed to comply with UCPR r 51.18(2) which provides: (2) Without limiting subrule (1), the appellant must also specify in the notice of appeal any material facts that the appellant contends that the court below should, or should not, have found.
The note handed up after lunch on the first day by the appellants purportedly in conformity with UCPR r 51.18(2) was of limited assistance. The fact which was challenged numbered "1", which had five sub-clauses, was a complaint about conclusions of mixed fact and law concerning the original purposes of the trust in the amended notice of appeal (but not the notice of appeal) as follows: 1. The primary judge erred in failing to find that the original purposes of the Monastery Trust included all the terms of the Constitution of the Free ANZ Diocese (and Holy Tradition), including the following matters: a. the ecclesiological principle that ultimate authority was to be exercised by an assembly of clergy and laity, rather than a hierarchy of clergy; b. eligibility for election to the office of Bishop of the Free ANZ , Diocese, was not limited to persons of Serbian ethnicity and nationality; c. the number of adherents to (and church-school congregations comprising) the Free ANZ Diocese church is irrelevant to its integrity and continuity as a functioning Orthodox church; d. the members of the Free ANZ Diocese (and the Free ANZ Diocese itself) had independence/freedom of religious association, including to affiliate with, or disaffiliate from, or enter into communion with, such other Orthodox churches, as it saw fit; e. the Free ANZ Diocese had freedom to independently manage its affairs.
At the risk of repetition, none of these matters of "fact" was addressed in evidence below, at least in the legal context of the original purposes of the Monastery Trust. None of these matters of "fact" was suggested to the primary judge as a finding he should make about the original purposes of the trust. These matters were outside the appellants' notice of appeal.
The fact which was challenged, numbered "2", which had three numbered sub-clauses but a large number of internal qualifications, simply sought to repeat the conclusions asserted by the appellants about the spirit of the trust: 2. The primary judge erred in: a. finding that the spirit of the Monastery Trust included that the Free ANZ Diocese would one day reunite with the SOC (without qualification), and failing to find that the spirit of the Monastery Trust, finding that the substance of the spirit of the Monastery Trust was that the Monastery Property be used for the purpose of nurturing the spiritual life of the members of the Free ANZ Diocese (until such time as the Free ANZ Diocese, acting in accordance with the doctrine and principle that ultimate authority was to be exercised by an assembly of clergy and lay persons rather than a hierarchy of clergy, decided whether and if so, when and on what terms, to affiliate or to reconcile with the SOC); b. finding that the spirit of the Monastery Trust included that the intention of the donors was to provide for the acquisition and constitution of a church that had a Serbian character, without also finding that that did not exclude or prevent the Free ANZ Diocese electing a person who was non-Serbian as the Diocesan Bishop, or the Free ANZ Diocese affiliating with another Orthodox church, that was not ethnically or nationally Serbian; c. finding that the spirit of the Monastery Trust included that the Monastery Property be available to the whole of the Free ANZ Diocese (if that finding is taken to mean all of the persons and organisations which were part of the Free ANZ Diocese as it subsisted at the time the Monastery Trust was established [sic], and failing instead to find that the spirit of the Monastery Trust included that the Monastery Property be available to all the persons and organisations who, or which, are part of the Free ANZ Diocese from time to time, regardless of their size or number.
The appellants failed to comply with UCPR r 51.18(2). This was not a case where there was separate identification in the written submissions of the substantial challenges made to primary facts found by the primary judge: cf Hamod v State of New South Wales [2011] NSWCA 375 at [774].
As Basten JA explained in Sullivan v Stefanidi [2009] NSWCA 313 at [16]: The page limit prescribed by the rule is likely to be well beyond that which is required in most cases, but it serves to underline the need for a degree of particularity in specifying the matters identified in the rule. The rule has many purposes, including ensuring that the respondent has proper notice of what findings of fact are challenged, providing information which will allow the parties and the Registrar to identify the time likely to be required for the hearing of the appeal and giving proper notice to the Court as to the material which should be reviewed in preparing for the hearing of the appeal. Late amendments to raise such issues will not necessarily be allowed; the attempt to raise such matters without seeking leave to amend is less likely to receive a favourable response from the Court.
The appellants should not be permitted, under the guise of a late filed schedule of facts which are challenged, in effect to re-write their notice of appeal. If the purported schedule of facts had been filed well before the hearing of the appeal, as it should have been, the respondents and the Court would have been appraised of the fundamental shift in the approach of the appellants and steps taken then to ensure that the appeal was properly prepared and conducted only on the issues identified in the notice of appeal.
I would refuse leave to the appellants to rely upon the document handed up during the appeal purportedly in compliance with UCPR r 51.18(2).

[6]

The issues on the appeal as emerged after the respondents' submissions

Effectively, by reason of their concentration upon the amended documents which I would refuse leave to rely upon, the appellants vacated the field and left it to the respondents, and in particular the Attorney General, to attempt to explain what the real issues in dispute were and how those issues might arise on particular grounds addressed by the appellants' notice of appeal.
The issues on the appeal were, correctly in my view, identified by the Attorney General as being:
First, the spirit of the trust question: (a) ground 3(a) (whether the spirit of the trust involved a church that was Serbian in character) (b) ground 4(a) (whether the spirit of the trust was that the Free ANZ Diocese would in time be reunited with the SOC) (c) grounds 6 and 7(a) (whether the spirit of the trust was that the Free ANZ Diocese would forever remain an independent religious association governed by an assembly of lay and clergy, which appears to depend on the terms of the 1976 Constitution)
Secondly, as to whether 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: (a) grounds 1(a), 1(b), 2(c) and 2(d) (whether not suitable and effective due to a change in character of the Free ANZ Diocese brought about by a reduction in size) (b) grounds 3(b) and 3(c) (whether not suitable and effective due to affiliations with OCOCG-HSIR) (c) ground 7(c) (general contention that should have found Free ANZ Diocese suitable and effective)
Thirdly, as to whether an order under s 9 of the Charitable Trusts Act should be made the issues were: (a) ground 1(c) (general contention of error) (b) grounds 2(a) and 2(b) (whether contrary to spirit of trust to apply property to Free ANZ Diocese where reduction in size) (c) ground 4(b) (whether contrary to spirit of trust to apply property to Free ANZ Diocese as reunification unlikely while affiliated with OCOCG-HSIR) (d) grounds 5(a)-(d) and 7(b) (collectively going to whether it was contrary to the spirit of the trust to apply property to the SOC-ANZ Metropolitanate due to governance of Metropolitanate by clergy)

[7]

RELEVANT LEGAL PRINCIPLES - SECTION 9 OF THE CHARITABLE TRUSTS ACT

It will be recalled that s 9 of the Charitable Trusts Act 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 près 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.
The appellants suggested that the issues raised by s 9 of the Charitable Trusts Act identified four separate but related questions: 1. What is the purpose of the trust? 2. What is the spirit of the trust, which refers to the basic intention underlying the gift? 3. Have the original trust purposes, wholly or in part, 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? 4. If so, what application of the trust property is cy-près, that is, most nearly approximates the intentions of the founders having regard to the spirit of the trust?
Despite the appellants' tendency to break up the components of s 9 into four separate parts, s 9 must be read as a whole in the statutory context in which it appears and by reference to the objects that the legislation is intended to secure. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].
In addressing the way the appellants put their arguments, segmented into the various component parts of s 9, it should not be thought that this exercise of construction is to be set aside or left behind.
Ultimately, the question posed by s 9 must be considered as a whole, and not examined artificially by reference to each of its separate components.

[9]

Context

Originally, the general law jurisdiction to apply charitable trust property cy-près was restricted to circumstances where the original purposes of the trust had become impossible or impractical to carry out: see Varsani v Jesani [1999] Ch 219 at 229 and the authorities cited in Attorney General for NSW v Fulham [2002] NSWSC 629 at [12] - [15] per Bryson J.
In Taylor v Princess Margaret Hospital for Children Foundation Inc (2012) 42 WAR 259; [2012] WASC 83 Edelman J said of the cy-près doctrine: [51] In Attorney General v Andrew (1798) 3 Ves Jun 633, 649; [1798] Eng R 110; (1798) 30 ER 1194, 1202, the Lord Chancellor referred to older cases which had suggested that the doctrine 'ought never again to be mentioned in this court'. But the doctrine of cyprès had deep roots and could not be abolished. [52] As the Lord Chief Justice noted in Attorney General v Lady Downing, quoting the great Roman jurist Modestinus, something similar existed in Roman law. Cyprès is also discussed in the works by Littleton and Fitzherbert. It was too deeply established even by the 18th century to be judicially abolished. [53] With this history, it is unsurprising that it has been observed by commentators that courts have struggled with the operation and limits of this doctrine for at least 350 years: R Mulheron, The Modern Cyprès Doctrine (2006). In the Report of the Committee on the Law and Practice relating to Charitable Trusts (1952) (the Nathan Report), Lord Nathan described the law of charitable trusts as an 'impenetrable jungle'.
In 1952, the English Committee on the Law and Practice relating to Charitable Trusts, chaired by Lord Nathan, (referred to by Edelman J above) reported to the government of Sir Winston Churchill on the need and near unanimous desire to relax the cy-près doctrine. The Nathan Report recommended that the cy-près doctrine be "so relaxed as to admit of trust instruments being altered, even though the carrying out of their objects has not become impracticable": at [699]. The authors drew upon long established Scottish law in proposing that the formulation of any cy-près scheme should have "special regard to the spirit of the intention of the founders": at [700].
The leader in legislative amendments in this area was New Zealand. The Charitable Trusts Act 1957 (NZ) was enacted on 4 October 1957 and came into force on 1 January 1958.
The Nathan Committee Recommendations were implemented by s 13 of the Charities Act 1960 (UK), which provided: (1) Subject to subsection (2) below, the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy-pres shall be as follows: - (a) where the original purposes, in whole or in part, - (i) have been as far as may be fulfilled; or (ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or (b) where the original purposes provide a use for part only of the property available by virtue of the gift; or (c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or (d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or (e) where the original purposes, in whole or in part, have, since they were laid down, - (i) been adequately provided for by other means; or (ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or (iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift. (2) Subsection (1) above shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-pres, except in so far as those conditions require a failure of the original purposes. … (5) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-pres, to secure its effective use for charity by taking steps to enable it to be so applied.
These provisions were re-enacted in the Charities Act 1993 (UK).
In 2006, references to the "spirit of the gift" in s 13(1)(c), (d) and (e) of the Charities Act 1993 (UK) were replaced by the expression "appropriate considerations" which was defined to include the spirit of the gift on one hand, and the social and economic circumstances at the time of altering the original purposes on the other hand. This section now appears as s 62 of the Charities Act 2011 (UK).
In 1962, a subcommittee of the Victorian Chief Justice's Law Reform Committee was appointed to consider possible reforms to Australian charitable trust law. In 1965, the Report on Charitable Trusts was published. It considered the meaning and effect of s 13 of the Charities Act (1960) (UK) and noted that "possibility or practicability is no longer the test [for invoking the cy-pres jurisdiction], but that it is sufficient that the original purpose is no longer suitable and effective": at 22.
The Report also observed at 23 that: The limitation imposed by the words "regard being had to the spirit of the gift" should be sufficient to prevent the gift being devoted to new purposes simply because the new use is thought to be more beneficial to the public than the original purpose.
Between 1962 and 1993, each Australian state enacted legislation in similar terms to s 13 of the Charities Act 1960 (UK), including, relevantly, s 9 of the Charitable Trusts Act.
The Explanatory Notes to the enacting bill, the Charitable Trusts Bill 1993 (NSW), explained that s 9: extends the circumstances in which the original purposes of a charitable trust fail and the trust property can be applied cypres i.e. for a similar purpose. The circumstances are to extend to trusts whose original purposes have ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust. A similar extension has been made in other States.
The second reading speech for the bill also acknowledges that the bill expands the test for when a charitable trust fails.

[10]

The legal test to be applied to the issues on this appeal

The four stages proposed by the appellants are appropriate as a shorthand way of analysing the requirements of s 9, however, they do not replace the statutory task of considering s 9 as a whole and in its statutory context.
The appellants' task on this appeal is not to persuade this Court that different findings would be preferable; instead the appellants must demonstrate an error in the primary judge's findings in the sense described in House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ. The notice of appeal, on its face, does not suggest any form of House v The King error.
While it may be accepted that the questions of the original purposes of the trust and the spirit of the trust are capable of being analysed as objective facts, in review of such decisions on appeal the principles of restraint governing appellate review of discretionary decisions apply for the same reasons as explained by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 211-12: Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing. This conclusion may have consequences in terms of what an appellant needs to demonstrate on appeal, an issue that will be considered shortly. ... Kirby P, by contrast, has held that the principles that govern appellate review of discretionary decisions should apply ((18) Hunter v. Hunter (1987) 8 NSWLR at 576; Golosky v. Golosky, unreported, New South Wales Court of Appeal, 5 October 1993 at 15; Singer v. Berghouse, unreported, New South Wales Court of Appeal, 24 July 1992 at 12-13. See also White v. Barron (1980) 144 CLR at 435 per Barwick CJ). In our view, this is the correct approach. In this respect we should express our agreement with the following comments of his Honour in Golosky v. Golosky ((19) Unreported, New South Wales Court of Appeal, 5 October 1993 at 13-14.): "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."
The application of these principles of appellate review in the present statutory context is underlined by two matters.
First, each of the questions arising on the application of s 9 of the Charitable Trusts Act involves, at least in part, the making of value judgments. Determining what elements of the founders' intentions are "basic", whether the trust purposes have ceased to provide a "suitable and effective method" of using the trust property, and what application of the trust property "most nearly approximates" the founders' intention, involves an evaluative judgment.
Secondly, the questions posed by s 9, while conceptually distinct, are interrelated. In particular, identification of the spirit of the trust is relevant to whether the trust purposes have ceased to provide a "suitable and effective method" of using the trust property. For example, the appellants contended that the primary judge was in error in finding that the spirit of the trust included that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church. The appellants also contended that there was error in finding that this element of the spirit of the trust was likely to be frustrated while the Free ANZ Diocese remained associated with the OCOCG-HSIR. Whether there has been error in relation to the first issue will inform whether there has been error in relation to the second.
In the present case there was no written trust document. Regard must be had to a wide range of both documentary and oral evidence as to intentions at the time. A value judgment is required to ascertain the basic intention underlining the trust. The threshold required to establish that the original purposes have ceased to provide a suitable and effective method of using the trust property is well short of the threshold required to establish impossibility: Attorney General for NSW v Fulham at [17] per Bryson J.
As I have said, the spirit of the trust will necessarily comprise a broader conception than the original purposes of the trust. When determining the spirit of the trust it is appropriate and necessary to have regard to "the trust's history and the social context of the time at which it was established": RSL Veterans' Retirement Villages Ltd v NSW Minister for Lands [2006] NSWSC 1161 at [57].
In Varsani v Jesani, the English Court of Appeal was asked to determine whether it had jurisdiction to apply trust property cy-près, following a split in a Hindu religious sect. Both factions contended that they were the true proponent of the faith and therefore entitled to worship in the temple to the exclusion of the other faction. Morritt LJ described the concept of the spirit of the gift as "the basic intention underlying the gift or the substance of the gift rather than the form of the words used to express it or conditions imposed to effect it." It was noted that the legislative provision only refers to the "spirit of the gift" when the court is being asked to make a value judgment: at 234.
This was echoed by Chadwick LJ, who explained, at 238, that: The need to have regard to the spirit of the gift requires the court to look beyond the original purposes as defined by the objects specified in the declaration of trust and to seek to identify the spirit in which the donors gave property upon trust for those purposes.

[12]

The appellants' submissions

The appellants submitted that there was error in the way the original purposes of the trust were found at trial because: 1. In the absence of a "touchstone", the Court is not able to determine the fundamental or essential doctrines of the Free ANZ Diocese. The appellants submitted that anything which constitutes a fundamental principle of the Free ANZ Diocese is an original purpose of the trust. As a result, the Constitution itself, the doctrinal principles by which the Diocese is governed on the basis of the Holy Tradition and canons are all part of the original purpose of the trust; or, alternatively, 1. If the Court is able to determine the fundamental or essential doctrines of the Free ANZ Diocese in the absence of a touchstone, the primary judge did not undertake the task of so determining the essential doctrines.
The appellants accepted that the primary judge was not asked to determine the "fundamental doctrines" of the Free ANZ Diocese, but submitted that this issue was indirectly put to him, as he rejected their principal submission that the entire Constitution was part of the purposes of the trust. The appellants submitted that his Honour did not find what the original purposes of the trust were.
The appellants submitted that his Honour should have made the following findings in respect of the original purposes of the trust: 1. A purpose of the trust was freedom of religious association and that a person is free to stay or leave, as he or she chooses, based on Article 91 of the Constitution. 2. It was not a fundamental principle that the Bishop be Serbian; this is not found in the Constitution and is in fact inconsistent with the expert evidence on the canons. 3. The size of the church was not a fundamental element of the Free ANZ Diocese's doctrine and therefore not part of the original purposes of the trust.
A fundamental problem with these submissions is that the appellants did not ask the primary judge to make these findings about the original purposes of the trust.
In the detailed schedule handed up at the hearing (which I have described above as a "roadmap"), the appellants submitted that the original purposes the primary judge should have found were: a. the ecclesiological principle that ultimate authority was to be exercised by an assembly of clergy and laity, rather than a hierarchy of clergy; b. eligibility for election to the office of Bishop of the Free ANZ Diocese was not limited to persons of Serbian ethnicity and nationality; c. the number of adherents to (and church-school congregations comprising) the Free ANZ Diocese church is irrelevant to its integrity and continuity as a functioning Orthodox church; d. the members of the Free ANZ Diocese (and the Free ANZ Diocese itself) had independence / freedom of religious association, including to affiliate with, or disaffiliate from, or enter into communion with, such other Orthodox churches, as it saw fit (whether or not they were ethically Serbian, and whether or not they had differing beliefs or dogmas); e. independence/freedom as a self-governing Orthodox church to manage its own affairs (in accordance with (a) above, and with the rights in (d) above, including when and on what terms to reunify with the SOC).

[13]

Consideration of the primary judge's findings about the original purposes of the trust

The primary judge's conclusions on this topic were set out at [81]-[82] and [129]- [130] which I have quoted above at paragraphs [105] and [106].
There was no error shown in his Honour's conclusions. The complaints made by the appellants about the primary judge's findings concerning the original purpose of the trust should be rejected.
First, there was no ground of appeal identifying an error in the primary judge's conclusions regarding the original trust purposes. Notwithstanding this omission, this complaint became a central feature of the appellants' case.
Secondly, as I have found at paragraphs [161], [167] and [171] above, the respondents would be prejudiced by permitting the complaints about the original purposes of the trust to be advanced for the first time on appeal.
Thirdly, the appellants did not ask the primary judge to address at the trial any of the matters about which they now complain in respect of the findings about the original purposes of the trust. Even if the notice of appeal had identified these issues the appellants' complaints must be rejected for that additional reason.
There was no challenge to the determination of the original trust purposes by the primary judge and the appellants' pleaded trust purposes did not include the asserted purposes now advanced. Having regard to the failure of the appellants to raise this issue in their notice of appeal it does not arise on this appeal.
Fourthly, the original purposes of the trust must be determined at the time of creation of the trust. The primary judge was entitled to have regard to later events, however, as it is appropriate to look to the usage of trust property where there is no trust instrument: Radmanovich v Nedljkovic at [151]‑[153]. In my view the primary judge was correct to regard the church Constitution as capable of being changed through practice, as it represented a consensual compact: see generally Justice McPherson "The Church as Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159 at 167-169. The appellants did not challenge the finding that the church Constitution was capable of being changed through practice, yet, on appeal attempted to argue that selected parts of the Constitution represented purposes of the trust. The appellants sought to insert their own "touchstone" as to what was properly to be judged as "essential". The appellants were, in effect, attempting to rank the importance of the different constitutional provisions, an exercise that the primary judge was not asked to undertake. They should not be permitted to advance such a case on appeal.
Fifthly, to the extent that the terms of the consensual compact may provide evidence of the purpose for which a religious charitable trust exists, not every rule will be a term of the trust; it is necessary to ascertain what is fundamental or essential. Hence, in Attorney-General v Grant, the distinction was made between, on the one hand, matters of fundamental or essential doctrine (the basis of union) and, on the other hand, the organisation of the church - its government (the articles of agreement). As Young CJ in Eq explained in Radmanovich v Nedljkovic at 668 [158]: When one thinks about it, this must be so. It is absurd to think that every word spoken in every sermon in one of the mainstream churches in Australia could be analysed to see whether it involved a breach of trust by perverting part of the doctrine or rules of the church.
The primary judge concluded, correctly in my view, that the Constitution of the Free ANZ Diocese (1964, 1976, or 1976 as amended in 1988) was not to be treated as a written prescription of the trust. To the extent it evidenced the fundamental or essential principles of the Diocese, it was evidence of the purposes of the trust in the same way as other evidence of the founders' intention. His Honour held that its terms relating to matters of governance for the appointment of a bishop, altered by long standing contrary practice, did not involve matters of fundamental doctrine. This meant that Bishop Irinej (and his predecessors) appointed by the Holy Assembly in Belgrade had the authority of a Bishop of the Free ANZ Diocese, and that the Property Trust Company and its directors acted in breach of trust in rejecting that authority. This is significant in circumstances where the appellants have abandoned any challenge to those findings. Those findings, which were not challenged, were fundamentally inconsistent with the submission that the original purposes of the trust included congregational or presbyterian governance principles based on certain articles of the 1976 Constitution. It was an irony that the present appellants' case was based on the congregational or presbyterian aspects of the 1976 Constitution being essential purposes of the trust as representing fundamental doctrine of the Free ANZ Diocese in circumstances where the same formal aspects of the 1976 Constitution were not followed by the Free ANZ Diocese (and the appellants) in this case.
Sixthly, the thesis of a canonical walling off by the Free ANZ Diocese propounded by the appellants' expert witness Archbishop Chrysostomos, put forward to support the defence that independence was a fundamental or essential tenet of the Free ANZ Diocese, was rejected by the primary judge. That meant, on that evidence and the pleaded defence, that there was no difference in fundamental or essential doctrine involved; as the defence pleaded (at 9-(e)), the Free Serbian Orthodox Church and the Serbian Orthodox Church otherwise had the same doctrines and liturgy as the Free ANZ Diocese. Thus, the appellants' case about fundamental principle, even if available, fails at that point.
Seventhly, the appellants contended that the primary judge should have found certain additional principles or doctrines of the Free ANZ Diocese to be essential or fundamental. Leaving aside the fact that the appellants did not ask the primary judge to make any such findings below, the submission did not identify any House v The King error (in the sense described by Mason CJ, Deane and McHugh JJ in Singer v Berghouse) in the determination of what was "essential" or "fundamental". The primary judge's findings as to these matters were open to him and no House v The King error has been shown.

[14]

THE SPIRIT OF THE TRUST

The primary judge's findings as to the spirit of the trust at [500]-[502] were: [500] 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. [501] 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. [502] 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.
The primary judge's summary of his earlier findings about the spirit of the trust was contained in [521(l)]. The appellants' criticism of his Honour's summary findings, made without reference to the findings elsewhere in the body of the reasons, was unfair. In [521] the primary judge summarised his earlier findings thus: (a) 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; (b) as submitted by the first to fifth defendants, only limited amendments were made to the 1976 constitution in 1988; (c) 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; (d) 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; (e) 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; (f) those breaches of trust should not be excused; (g) 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: (i) 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 (ii) 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; (h) 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; (i) the monastery is not presently held on trust for the purposes of the SOC-ANZ Metropolitanate; (j) 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; (k) 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; (l) the spirit of the trust included that: (i) 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; (ii) 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; (iii) 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; (iv) 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 (v) the monastery would be used by members of the Free ANZ Diocese that was led by a bishop having apostolic succession. (m) 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; (n) 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; (o) 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; (p) 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; (q) because: (i) 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; (ii) use of the monastery for the purposes of the ANZ Metropolitanate would be consistent with the spirit of the trust; (iii) 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; (r) 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; (s) 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; (t) 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; (u) the plaintiffs and the Attorney-General will be directed to prepare a scheme to give effect to the cy-près purpose so declared

[17]

Paragraph [521(l)(i)], that the monastery would be available for use of all the members of the Free Diocese as it then existed and their successors

The appellants submitted that the primary judge erred in incorporating "former members" into this element of the spirit of the trust, for the following reasons:

Bishop Petar's letter of 2 January 1979 regarding the need for building a "Free Serbian Monastery" does not contemplate "former members" - the use of the word "we" throughout the letter suggests that he was referring to people who are and continue to be members of the diocese.
An original purpose of the trust (as submitted by the appellants) was that people were free to leave the church at will, as evident in Article 91 of the Constitution. The appellants submitted that it is contrary to this purpose to include former members in the spirit of the trust, and it does not make sense for the purpose and spirit of a trust to contradict one another.
The inclusion of "former members" in the spirit of the trust is contrary to the general law freedom of religious association - see Attorney General v Grant.

The appellants' submission based on the primary judgment at [521(l)(i)] is not a fair characterisation of his Honour's reasons at [500], which is the finding that [521(l)(i)] is summarising. Paragraphs [500] and [504] provided: [500] 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… [504] 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.
Although I will return to the topic below when addressing the proper application of s 9 and grounds 1(a), 1(b), 2(c) and 2(d) of the notice of appeal, this submission proceeds on a false premise. The correct reading of [500] is that the primary judge concluded that the spirit of the trust was that it was a trust for the benefit of all the church-school congregations who comprised the Free ANZ Diocese. His Honour's conclusion was simply that the character of that organisation had changed markedly since the settling of the trust. His Honour did not conclude that the spirit of the trust was that it was directed to "former members" of the Free ANZ Diocese.
First, the primary judge concluded that the character of the Free ANZ Diocese had changed markedly since the creation of the trust. That conclusion was unremarkable and undoubtedly correct. Initially 14 church-school congregations and later up to 16 congregations were affiliated with the Free ANZ Diocese. It was a key part of his Honour's reasoning (addressed at [270] below) that the monastery was intended to be a little piece of Serbia in Australia and that there was no difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church but rather a split based on politics. The majority of Serbian Orthodox adherents in Australia were associated with the Free ANZ Diocese at the time the spirit of the trust was to be determined. Only four church-school congregations remained under the jurisdiction of the Patriarchate at that time. At the time of the trial before the primary judge only three church-school congregations remained affiliated with the Free ANZ Diocese, which church-school congregations comprised only a rump of the adherents to Serbian Orthodoxy in Australia. The primary judge's finding was that the character of the Free ANZ Diocese now, as compared to the time of settling of the trust, was thus different.
Secondly, it will be recalled that the primary judge decided that he could not make a cy-près order at general law as he had been asked to do below because the achievement of the original purposes of the trust were not impossible. In the course of making that finding the primary judge said at [456]: 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.
His Honour made a clear finding that the monastery could not be applied under a cy-près scheme at general law for the purposes of congregations who had joined the SOC-ANZ Metropolitanate, citing Attorney-General (NSW) v Grant (1976) 135 CLR 587; 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].
Thirdly, the appellants' submission also ignores an important and unchallenged part of his Honour's conclusion at [500], namely that to apply the monastery property now to the purposes of the appellants would be contrary to the spirit of the trust as the leaders of the Free ANZ Diocese (the appellants) had acted contrary to the terms of the Free ANZ Diocese Constitution and in breach of trust. That conclusion tells heavily against the appellants' submission. It is part of the central conclusion concerning the change in character of the Free ANZ Diocese that the trustees of the trust had not complied with the 1976 Constitution and had acted in breach of trust in numerous respects regarding the management of the monastery property.

[20]

Paragraph [521(l)(iv)] - 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

The appellants suggested that reunification with the Serbian Orthodox Church should not be considered part of the spirit of the trust because:

First, his Honour had regard to matters after the property was acquired. Even if this submission was wrong, however, the appellants argued there is still error because the letters concerning the appeal for funds for building the monastery do not refer to the hope of reunification, only the hope that Serbia is freed from communism;
Secondly, there was no evidence about the intention of the hundreds of donors. There was evidence, however, that the 1976 Constitution removed all references to the Serbian Orthodox Church which had appeared in the earlier Constitution. The other relevant piece of evidence is the vote in 1991 for spiritual communion between the Free Serbian Orthodox Church and the Serbian Orthodox Church. The appellants submitted that the primary judge could not infer from this that the hundreds of donors were motivated by hopes of reunification;
Thirdly, the hope of reunification must be considered in the context that any decision to reunify with the Serbian Orthodox Church would be made by the Church National Assembly, as required under Article 23 of the Constitution.

The appellants submitted that the material evidence for ascertaining the spirit of the trust was Bishop Petar's letter of 2 January 1979 and the appeal letter sent on 23 November 1979. It was submitted that the substance of those letters was that "the monastery property would be for the purpose of nurturing the spiritual life of the members of the diocese from time to time."
The primary judge's error, it was submitted, was in failing to recognise that the spirit of the trust, in supporting the spiritual life of its members, was for a lay assembly to exercise ultimate authority, including when and on what terms to affiliate or reconcile with the Serbian Orthodox Church. The primary judge also erred, it was submitted, in finding that the monastery had to be "exclusively" Serbian.

[21]

Consideration of the primary judge's findings about the spirit of the trust

It will be recalled that the issues raised by the appellants about the spirit of the trust should properly be categorised as follows: (a) ground 3(a) (whether spirit of the trust was that it provide a church that was Serbian) (b) ground 4(a) (whether spirit of the trust was that the Free ANZ Diocese would in time be reunited with the SOC) (c) grounds 6 and 7(a) (whether spirit of the trust was that the Free ANZ Diocese was an independent religious association governed by an assembly of lay and clergy, which appears to depend on the terms of the 1976 Constitution).
The inquiry required by the statute is whether 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".
The original trust purposes - identified by the primary judge at [82] - involved building and conducting a monastery, a monastery church, and related facilities for the purposes of the Free ANZ Diocese, not for the purposes of the Diocese generally, but for conducting church services. The Diocese was initially comprised of 14 church-school communities (congregations) of the Serbian Orthodox Church, and later up to 16 congregations belonged to the Free ANZ Diocese. The majority of those church-school communities joined the SOC-ANZ Metropolitanate in September 2010.
Relevantly for present purposes, the conclusions of the primary judge were: (1) it was not part of the spirit of the trust that the Free ANZ Diocese should always be a church independent of the Serbian Orthodox Church; (2) it was not part of the spirit of the trust that the Diocese took any particular view on the issue of ecumenism.
I will return to the significance of these findings below. For present purposes it should be noted that these claims were at the heart of the case presented by the appellants to the primary judge on this issue.

[23]

Ground 3(a) of the notice of appeal - whether the spirit of the trust was a monastery that was Serbian

As I have explained, the appellants contended that the primary judge should not have "focus[ed] on the language of the letter dated 2 January 1979 of Bishop Petar" but should instead have found that the substance of that letter was that the Wallaroo property would be for the purpose of nurturing the spiritual life of the members of the Free ANZ Diocese. This submission should be rejected.
The primary judge's finding that the basic intention underlying the gift was the creation of a monastery that was Serbian was not only open to him on the evidence, but obvious and clear.
The intention was expressed not only in the letter of 2 January 1979 but also in the appeal of 23 November 1979, the relevant terms of which are: Dear Serbian brothers and sisters, … We hereby announce to all of our free Serbs in Australia and New Zealand that after much waiting and research we HAVE FOUND A PLACE WHICH WOULD BE SUITABLE TO HAVE A SERBIAN OTHERODOX MONASTERY built on it. In the event that this property is not purchased, all your donations will be used to purchase some other suitable site. As you are aware, in accordance with a resolution passed by the Diocesan Council on 2 January 1979, in February this year in Blacktown, the purpose of which was revamp the MONASTERY FUND and to ask the parishes to assign diligent and capable members the task of collecting donations for the following projects: BUILDING OF THE MONASTERY, DIOCESAN CENTRE, YOUTH HOSTEL AND HOME FOR THE AGED. Naturally this would depend on availability of resources. Now let us ask ourselves the question - is it possible to put the above ideas into practise? This is an enormous task and it requires an equally enormous amount of money. BUT YOU ARE GREAT IN SPIRIT, THE SONS AND DAUGHTERS OF THE GREAT SERBIAN NATION! A SERB IS CAPABLE OF DOING ANYTHING WHEN HE PUTS HIS MIND TO IT. Our forefathers built monastery churches adorned by frescoes of invaluable artistic quality and this they did for the salvation of their souls and good health in this world by GLORIFYING THE LORD CHRIST, THE MOST HOLY MOTHER OF GOD AND GOD'S CHOSEN ONES. Can we do this today as well? Will our children marvel at the deeds of their fathers and grandfathers, as we do today the deeds of our fathers and grandfathers. With our arrival in Australia we brought with us a DEEP FAITH IN THE LORD GOD, THE WAY OF ST SAVA AND THE SERBIAN NATIONAL ETHIC but above all, OUR LOVE FOR OUR SERBIAN HOMELAND which we had to leave because of Communist oppression. With those virtues both spiritual and nationalistic, we started to build from nothing - our churches, nationalist centres and church halls. According to the feelings and wishes of the Serbian people in Australia and New Zealand, the day had come when with God's help and the blessing of St Sava we must commence with the building of a SERBIAN MONASTERY. God willing, we should start with the fund raising. Therefore, brothers and sisters, let us contribute as we have done in the past as much as we can and our means permit us… May this monastery land, even after our homeland is liberation from [sic] communism, remain a DEAR PIECE OF SERBIAN SOIL in Australia…. (emphasis in original)
The intention is manifest in the constitutional documents. The Diocese was a religious community of Orthodox Serbs joined in Serbian Orthodox church-school congregations, who professed the Orthodox faith (1976 Constitution Articles 1 (amended 1988), 5 and 83), primary judgment at [23] (1964 resolution), [65] (1979 appeal for funding), [96], [340] (1985 resolution), [102]-[105] (1988 resolution) and [163] (1991 resolution) which provided as follows: Art 1 of 1976 Constitution after 1988 amendment 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. Article 5 of 1976 Constitution after 1988 amendment The Free Serbian Orthodox Church - Diocese for Australia and New Zealand is comprised of Free Serbian Orthodox Church-School Congregations, Parishes, Churches, Monasteries, Protopresbyterates, established within the territory of the abovementioned countries, which in their spiritual, executive, ecclesiastical-judicial and supervisory control pertain to the Diocesan organs: To the Bishop in charge and the Diocesan council. Therefore, every Free Serbian Orthodox Church-School Congregation, Church, Monastery, Protopresbyterate already existing or which shall be established in the abovementioned territories must be in ecclesiastical-canonical bond with this Diocese and recognise its authority and power. Article 83 of 1976 Constitution after 1988 amendment A Serbian Orthodox Church-School Congregation is a community of Faithfuls who profess the orthodox Faith and live in one or more localities which are bound together and which comprise geographic and administrative unity according to the laws of Australia and of New Zealand. 1964 resolution … 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. 1979 Appeal for funding 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. 1988 Resolution 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. 1991 resolution … 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
The Serbian character of the Free ANZ Diocese is also clear from the following evidence:

The 1964 Constitution: Arts 67,68 and 70 Art 67 A Serbian Orthodox Church-School Congregation is a community of Serbs who profess the Orthodox faith and live in one or more localities which are bound together and which comprise geographic and administrative unity according to the laws of this land [Australia] and New Zealand. 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 the Constitution, church canons and other regulations, rules and orders of the Diocesan authorities headed by the Diocesan Bishop. Art 70 Members of the congregation are only those Serbs who have voluntarily assumed upon themselves the duties and burdens prescribed by the church-school by-laws and have thereby achieved the right to actively participate in the work of the Church-School Congregation.
The 1976 Constitution: Art 6 ; Art 11 and Art 83 Art 6 The official language is Serbian with Serbian alphabet in Cirilic (Cirilica) but, as far as relations with Australia and New Zealand are concerned, likewise, with any other country in the Free World, the official language will be English. Art 11 As an auxiliary organ of the Diocese there will be THE FEDERATION OF THE SERBIAN SISTERS' CIRCLE with its Circles at various Church-School Congregations. As such, the Federation shall conduct and maintain children's summer camps, homes for Serbian orphans and the aged and other activities entrusted to it by the Diocesan Council. It shall assist the Diocesan Council in its efforts to erect and manage buildings for this purpose. Circles of the Serbian Sisters at the Church-School Congregations shall render their full co-operation to the Church School Committees, their respective priests, and with the Federation of the Serbian Sisters' Circle and their respective School Committees. Art 83 A Serbian Orthodox Church-school Congregation is a community of Serbs who profess the Orthodox Faith and live in one or more localities which are bound together and which comprise geographic and administrative unity according to the laws of this country and of New Zealand.

The evidence of the Serbian character of the spirit of the trust, from Serbs in Australia Volume 2 (Fr T Kazich, ed., 1992, Monastery Press), relied upon by all parties, is clear. When addressing the call for funds to build the monastery that book states: From the moment of Bishop Peter's arrival in Australia he expressed his heart's desire to build a monastery and the need for it. Living in Cabramatta in the Diocesan home on Boundary Lane, he had time to think and pray and to resolve to dedicate himself wholly to this aim. In his letter to the churches of 2nd January 1979, his faith in this project is evidence: 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 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 help-less. 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 the 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. LOOKING FOR A PROPERTY On 3 February 1979, a meeting of the Diocesan Council and representatives of the Church School Congregations and National Organisations was held in Blacktown. Altogether there were 35 delegates plus 6 clergy. This meeting was important for it was the first time that such a large body, outside of the Sabor, discussed the all vital issue of building a Monastery. There was not one negative or pessimistic view. A new spriti in Diocesan work was born. Hopes, visions and goals permeated the discussions. Approval was given to go ahead with collecting funds through the St Sava Monastery (Missionary) Fund which would try to locate a property. During the year, with Bishop Peter, several sites were inspected which included Camden (255 acres); Bringelly (116 acres); and Campbelltown (30 acres). But none was found suitable. During the early part of 1979 several important Diocesan events occurred. The Rt. Rev. Bishop Basil was consecrated Bishop for the Diocese of Western Europe, and in May Bishop Dionisije on the 15th and Bishop Dimitrije on the 25th fell asleep in the Lord, and were buried at the Monastery of St. Sava, Libertyville. Finally on 23 November 1979, 5000 copies of the following historical appeal with receipt books was sent out: Reverend Fathers, Distinguished presidents and committee members of the Free Serbian Orthodox Church-School Congregations Distinguished representatives of Serbian nationalist, cultural and humane organisations, Distinguished Representatives of Circles of Serbian Sisters, Dear Serbian brothers and sisters, "THIS IS THE DAY WHICH THE LORD HATH MADE; WE WILL REJOICE AND BE GLAD IN IT!" (PSALM 118:24) With this prayerful words of the psalmist which we Orthodox sing at Easter we can draw a parallel with our Serbian hymn to St Sava "Let us sing with long to Saint Sava, Serbian churches and schools glorify him…" And behold the spiritual children of St Sava in unity and with pride wish to build the first Free Serbian Monastery in Free Australia. We hereby announce to all of our free Serbs in Australia and New Zealand that after much waiting and research we HAVE FOUND A PLACE WHICH WOULD BE SUITABLE TO HAVE A SERBIAN ORTHODOX MONASTERY build on it. In the event that this property is not purchased, all your donations will be used to purchase some other suitable site. As you are aware, in accordance with a resolution passed by the Diocesan Council on 2 January 1979, in February this year in Blacktown, the purpose of which was revamped the MONASTERY FUND and to ask the parishes to assign diligent and capable members the task of collecting donations for the following projects: BUILDING OF THE MONASTREY, DIOCESAN CENTRE, YOUTH HOSTEL AND HOME FOR THE AGES. Naturally this would depend on availability of resources. Now let us ask ourselves the question - is it possible to put the above ideas into practise? This is an enormous task and it requires an equally enormous amount of money. BUT YOU ARE GREAT IN SPIRIT, THE SONS AND DAUGHTERS OF THE GREAT SERBIAN NATION! A SERB IS CAPABLE OF DOING ANYTHING WHEN HE PUTS HIS MIND TO IT. Out forefathers built monastery churches adorned by frescoes of invaluable artistic quality and this they did for the salvation of their souls and good health in this world by GLORIFYING THE LORD CHRIST, THE MOST HOLY MOTHER OF GOD AND GOD'S CHOSEN ONES. Can we do this today as well? Will our children marvel at the deeds of their father and grandfathers as we do today the deeds of our fathers and grandfathers. With our arrival in Australia we brought with us a DEEP FAITH IN THE LORD GOD, THE WAY OF ST. SAVA AND THE SERBIAN NATIONAL ETHIC but above all, OUR LOVE FOR OUR SERBIAN HOMELAND which we had to leave because of Communist oppression. With those virtues both spiritual and nationalistic, we started to build from nothing - our churches, nationalist centres and church halls. According to the feelings and wishes of the Serbian people in Australia and New Zealand, the day had come when with God's help and the blessing of St Sava we must commence with the building of a SERBIAN MONASTERY. God willing, we should start with the fund raising. Therefore, brothers and sisters, let us contribute as we have done in the past as much as we can and our means permit us. So that we may as soon as possible purchase the land, have it blessed and then build ALL THE FACILITIES WE MENTIONED BEFORE WHICH ARE ESSENTIAL FOR THE FUTURE DEVELOPMENT (SPIRITUAL AND NATIONAL) OF OUR DIOCESE. May this monastery land, even after our homeland is liberated from communism, remain a DEAR PIECE OF SERBIAN SOIL in Australia. May the future monastery and our free churches radiate warmth as that when we feel our mother's caress, dear as our sister's embrace, proud as Prince Lazar's determination, strong as thirteen centuries of SERBIAN HISTORY. In accordance with tradition, the purchase of monastery or church land with voluntary contributions of parishioners require the designation of categories for contributors: GREAT BENEFACTORS, BENEFACTORS, and HELPERS… The treasurer of the MONASTERY FUND will issue a proper receipt for any donation made via a parish. In conclusion of this appeal may we end with a Serbian saying: HE WHO GIVES MUCH BUT CAN GIVES MUCH MORE, WILL HAVE LITTLE TO HIS CREDIT. HE WHO GIVES LITTLE BUT CANNOT ANYMORE WILL HAVE MUCH TO HIS CREDIT! With blessings, On behalf of the Monastery Committee Bishop Peter Bishop-Administrator Free Serbian Orthodox Diocese for Australia and New Zealand.

[24]

Ground 4(a) of the notice of appeal - whether the spirit of the trust was that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church

The appellants' submission that there was "no evidence" that the hope of reunification between the Free ANZ Diocese and the Serbian Orthodox Church animated the members who contributed funds to the acquisition of the monastery property should be rejected.
The terms of the appeal for funds sent out on 23 November 1979 refer in terms to the prospect of Serbia being liberated from communism: Dear Serbian brothers and sisters, … We hereby announce to all of our free Serbs in Australia and New Zealand that after much waiting and research we HAVE FOUND A PLACE WHICH WOULD BE SUITABLE TO HAVE A SERBIAN OTHERODOX MONASTERY built on it. In the even that this property is not purchased, all your donations will be used to purchase some other suitable site. As you are aware, in accordance with a resolution passed by the Diocesan Council on 2 January 1979, in February this year in Blacktown, the purpose of which was revamp the MONASTERY FUND and to ask the parishes to assign diligent and capable members the task of collecting donations for the following projects: BUILDING OF THE MONASTERY, DIOCESAN CENTRE, YOUTH HOSTEL AND HOME FOR THE AGED. Naturally this would depend on availability of resources. Now let us ask ourselves the question - is it possible to put the above ideas into practise? This is an enormous task and it requires an equally enormous amount of money. BUT YOU ARE GREAT IN SPIRIT, THE SONS AND DAUGHTERS OF THE GREAT SERBIAN NATION! A SERB IS CAPABLE OF DOING ANYTHING WHEN HE PUTS HIS MIND TO IT. Our forefathers built monastery churches adorned by frescoes of invaluable artistic quality and this they did for the salvation of their souls and good health in this world by GLORIFYING THE LORD CHRIST, THE MOST HOLY MOTHER OF GOD AND GOD'S CHOSEN ONES. Can we do this today as well? Will our children marvel at the deeds of their fathers and grandfathers, as we do today the deeds of our fathers and grandfathers. With our arrival in Australia we brought with us a DEEP FAITH IN THE LORD GOD, THE WAY OF ST SAVA AND THE SERBIAN NATIONAL ETHIC but above all, OUR LOVE FOR OUR SERBIAN HOMELAND which we had to leave because of Communist oppression. With those virtues both spiritual and nationalistic, we started to build from nothing - our churches, nationalist centres and church halls. According to the feelings and wishes of the Serbian people in Australia and New Zealand, the day had come when with God's help and the blessing of St Sava we must commence with the building of a SERBIAN MONASTERY. God willing, we should start with the fund raising. Therefore, brothers and sisters, let us contribute as we have done in the past as much as we can and our means permit us… May this monastery land, even after our homeland is liberation from [sic] communism, remain a DEAR PIECE OF SERBIAN SOIL in Australia…. (emphasis in original)
In context, this key document obviously refers to the widespread desire within the Free ANZ Diocese to reunify with the Serbian Orthodox Church when communism fell. The fervent desire for the fall of communism in Serbia is an obvious corollary with a desire to return to the Serbian Orthodox Church, in the way it was between 1918 and 1943, whilst Serbia was independent and not ruled by a communist dictatorship.
While it is true, as the appellants submitted, that Articles 1, 3 and 4 of the 1964 Constitution of the Free ANZ Diocese which provided, inter alia, that the Free ANZ Diocese was part of the Serbian Orthodox Church "of the Kingdom of Yugoslavia [1918 to 1943]", had been removed in the 1976 Constitution, this was plainly explicable by reason of the decision of the US Supreme Court immediately prior to that time.
The 1976 Constitution emphasised the administrative independence of the Free ANZ Diocese. It did not, however, contain any statement that would suggest that the spiritual affinity with the Serbian Orthodox Church previously central to the Free ANZ Diocese, including the desire to reunify expressed at the 1964 Church National Assembly referred to above, was no longer a continuing desire.
Other evidence makes clear that the desire amongst contributors to the trust to reunify with the Serbian Orthodox Church when communism fell remained widespread at the time of the monastery appeal in 1979-80. Mr Nesic, one of the appellants, said: Q. [Sharp] Mr Nesic, could I ask you to look on the first column to the heading End of the Split and then read what appears in that column to yourself? A. Mm-hm. Yes, I've got it. Q. Now it's correct to the best of your understanding that the Free Serbian Church has never viewed the tragic split in the Serbian church in the diaspora as an irreversible or final event? A. That's correct. Q. And that was certainly your view from the time you joined the Free Church at least until 1980? A. Well, even today I think. Q. Thank you. And certainly it was correct that the Free Church was ready and willing to negotiate to end the split? A. That's right. Q. And that was your view too in the period from which you joined the Free Church until at least 1980? A. Yes, yes. … Q. If I could take you back, certainly immediately prior to 1980 your view as a member of the Free Serbian Orthodox Church was that relations with the Serbian Orthodox Church would become normal again once the communist regime was replaced? A That's right. … Q. And may be take it that to the best of your knowledge the Free Serbian Orthodox Church always desired the restoration of spiritual unity with the Serbian Orthodox Church following the collapse of communism in the former Yugoslavia? A. That's right, yes.
Mr Veselinovic, another donor to the collection said: The Property Trust would hold church properties for the Serbian Orthodox Church and its people, and protect them from the Serbian Orthodox Church in Belgrade taking title to these properties whilst the communist regime was in place… [He also understood that] when communism fell, that the Property Trust would cease to exist.
Further, the 1979 Church National Assembly of the Free ANZ Diocese was attended by Prince Andrej of the former Kingdom of Yugoslavia, thus indicating that the affinity with the "Kingdom of Yugoslavia [1918 to 1943]" was still current despite the change in wording in the 1976 Constitution.
Accordingly it was open to the primary judge to find, as he did, that reunification with the Serbian Orthodox Church remained the intention of at least most of the members of the Free ANZ Diocese following the adoption of the 1976 Constitution, and that it was part of the spirit of the trust. That conclusion was, on the evidence before the primary judge, compelling.
Ground 4(a) of the notice of appeal should be rejected.

[28]

The appellants' complaints that the primary judge did not consider issues raised below

It is convenient to address together and at this stage the appellants' second complaint, that the primary judge failed to consider certain issues raised below.
The appellants contended that the primary judge did not consider five of the submissions they made below in the context of answering the question "whether the charitable trust should be varied cy-près for the religious purposes of the ANZ Metropolitanate".
That submission should be rejected. It is not enough simply to assert that a submission is not expressly referred to in the primary judge's reasons. What is required is that an appellant show how the failure to address a submission (assuming that to be the case) constituted a material error. The appellants in this case did not do this. On analysis, the appellants did not even establish that any of the matters about which there was complaint was not addressed by the primary judge.
The first three submissions said not to have been considered relate to the impact of the Free ANZ Diocese's communion with the OCOCG-HSIR. Those submissions were as follows (1) There is an illogicality in the Attorney-General's contention that the Free ANZ Diocese does not have the same characteristics that existed in 1980 by reason of the rejection of spiritual unity with the SOC in February 1992 and its alignment with a group that is not in communion with the SOC and the autocephalous Orthodox churches in general for reasons that do not relate to communism. The Free ANZ Diocese was not in communion with the SOC and the autocephalous Orthodox churches in 1980 apart from the Ecumenical Patriarchate of Alexandria. Its character was an independent Orthodox Church. While the perceived influence of the communist Government of Yugoslavia was a factor which precipitated the formation of the Free ANZ Diocese in 1964, its status as an independent religious association and its ability to enter into a relationship with communion of other churches was not limited to "reasons that relate to communism". It is relevant that the OCOCG prior to 1980 was in a relationship of communion with the Free ANZ Diocese. The Free ANZ Diocese had no intention only to be out of communion with the SOC until such time as the communist rulers of the former Yugoslavia had been deposed. (2) Further, it is unclear how the position of Bishop Ambrose substantially differs from the position of the Diocesan Bishop of the Free ANZ Diocese in 1980 when the FSOC ANZ Diocese was not in communion with the autocephalous churches comprising the Orthodox Church other than the Ecumenical Patriarchate of Alexandria. (3) The Court should find that the Free ANZ Diocese was established in 1964 and had carried on its religious activities since 1964 in circumstances where neither the Diocese nor the Diocesan Bishop was in communion with any of the autocephalous churches comprising the Orthodox Church other than the Ecumenical Patriarchate of Alexandria from 22 August 1975. From 1976 while Article 4 of the Free ANZ Diocese Constitution permitted the establishment of a relationship of communion with those autocephalous churches, it did not require any such relationship to be established.
The appellants' complaints with regards to these three submissions should be rejected for the following reasons: 1. First, the primary judge plainly had regard to the fact that the Free ANZ Diocese's association with a non-autocephalous church was not unique to the Free ANZ Diocese's current association with the OCOCG-HSIR. His Honour noted, at [436]: 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. 1. Secondly, the primary judge did not conclude that the Free ANZ Diocese's relationship with "a non-autocephalous church" changed its character. His Honour acknowledged that this had previously occurred in the Free ANZ Diocese at [483]: 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. 1. Thirdly, his Honour did in fact consider that the Diocese was independent, as he found at [321] that the concelebration of the liturgy did not disturb the Free ANZ Diocese's status as an "independent and autonomous church". 2. Fourthly, his Honour dealt with the relationship between the OCOCG-HSIR and the Free ANZ Diocese in detail at [493], noting the "closeness of the relationship between the two churches".
The fourth submission said not to have been considered related to the relevance of the 1984 Constitution of the Free Serbian Orthodox Church: Given that it was created in 1984, after the trusts of the Disputed Land had already been created, and had the features described above, and did not (in 1984 or 1985) result in any validly made amendment to the 1976 Free ANZ Diocese Constitution (before the four amendments in 1988), the Court should find that the Free Church Constitution had no effect whatsoever upon the trusts upon which the Disputed Land was held at that time, or is held now. To the extent that the Free Church Constitution had any significance, as a matter of practice or honour or otherwise, for the Free ANZ Diocese, it ceased to have any such significance after it fell into desuetude following the Reconciliation and the fact that its organs, such as the Hierarchical Synod, the High Ecclesiastical Court ceased to function. Even if it could have had any effect on the trusts, it no longer has such an effect. [Black 1670]
This submission should be rejected for the following reasons: 1. First, the appellants have not identified any particular findings of the primary judge that they assert are incorrect because they are based on articles in the 1984 Constitution. It is therefore unclear, assuming the primary judge not to have addressed the submission, what significance for the primary judge's reasons this alleged failure had. 2. Secondly, the primary judge did make a finding, favourable to the appellants' case below, that only limited amendments were made in consequence to the 1984 Free Serbian Orthodox Constitution, stating that "[r]elevantly 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": at [123]. 3. Thirdly, the only reference to the 1984 Constitution as evidence underpinning a conclusion of the primary judge is in relation to the issue of a hoped for unification with the Serbian Orthodox Church in the future, at [340]: 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." 1. Fourthly, the buildings on the monastery property were being constructed throughout the 1980s, including 1984. While the trust may have been established prior to this, as his Honour pointed out in [341], the resolutions of the 8th Sabor show there was no departure from the hope that the Diocese would one day reunite with the Serbian Orthodox Church.
The appellants next submitted that "important evidence" was not referred to by the primary judge: The evidence of Archibishop Chrysostomous is that the size of a church is irrelevant to its validity as a functioning Orthodox Church. Fr Rentel agreed with this opinion of Archbishop Chysostomos.
While it is true that the primary judge did not expressly refer to this evidence in his reasons, the appellants' complaint is misconceived. The primary judge did not find that there was an impediment based on the size of the church to concluding that the Free ANZ Diocese was "validity functioning as an Orthodox Church". As I have said, in addressing the claim for cy-près relief at general law the primary judge expressly rejected the submission (made by the present first and second respondents below) that the Free ANZ Diocese had ceased to exist. That finding is incompatible with the submission that, in the same judgment, his Honour had concluded that the Free ANZ Diocese had no "validity as a functioning Orthodox Church". The appellants' complaint that his Honour did not have regard to their submission about the evidence concerning the "validity" of the Free ANZ Diocese should be rejected.
The appellants also submitted that the primary judge failed to refer to the division of opinion within the Orthodox Church about ecumenism. The appellants relied on Fr Rentel's evidence that within the Orthodox Church there are differing views about ecumenism. The alleged error was that the primary judge found that the Free ANZ Diocese's association with the OCOCG-HSIR (which holds an anti-ecumenical view) was a reason why the original purposes no longer provided a suitable method. The appellants submitted that the doctrines of the Orthodox Church do not prohibit a church from holding an anti-ecumenical view.
This submission should be rejected. The primary judge made detailed findings about ecumenism and rejected the factual sub-stratum of the appellants' present complaint in terms. He found that there was no evidence of opposition to ecumenism being part of the doctrines or beliefs of the members of the Free ANZ Diocese at the time the trust was established: [465] 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. [466] 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. … [471] 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. [472] 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 [473] 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]).

[29]

The specific reasons attributed by the appellants to the primary judge

Turning to the submission concerning the specific reasons attributed by the primary judge, looking first at [521(q)(i)], that the membership of the Free ANZ Diocese is much smaller than when the trust was formed, the appellants submitted that the primary judge erred in finding this was relevant to the question of suitable and effective method because his Honour:

applied a quantitative test, when in fact, the relevant question is the character of the church by reference to the Holy Tradition (which says size is irrelevant);
failed to take into account the freedom of religious association, relying on General Assembly of Free Scotland v Lord Overtoun [1904] AC 515 to show that just because the majority of members leave a religious body does not mean its character changes; and
took into account the actions of past leaders of the Free ANZ Diocese who acted contrary to the Constitution; the appellants submitted that the relevant time period to look at is the present, at which point Bishop Irinej is not the authority for the Free ANZ Diocese.

The appellants submitted that the primary judge's conclusion in [521(q)(ii)], that use of the monastery for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust, was a mistake for the following reasons:

it was irrelevant whether different purposes of the trust would be consistent with the spirit of the trust: this cannot constitute evidence of the original purposes no longer being suitable and effective; and
even if the primary judge could have regard to altered purposes, the appellants submitted that the primary judge was wrong in concluding that there was no religious difference between the Free ANZ Diocese and the SOC-ANZ Metropolitante. This is because there was no evidence to support this finding, it is contrary to the US Supreme Court decision of Milojovic and the Free ANZ Diocese, despite the purpose of its origin, has existed as an independent presbyterian church ever since.

Lastly, looking at [521(q)(iii)], that 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 appellants submitted that the primary judge erred in considering that these two elements were inconsistent with the Serbian character of the trust and future reconciliation. The appellants made the following points in relation to the Serbian character of the trust:

the primary judge did not make clear how the OCOCG-HSIR's origin could compromise the Serbian character of the church;
his Honour did not explain why the OCOCG-HSIR's association with the Free ANZ Diocese would affect its Serbian character, since the Free ANZ Diocese was not under the spiritual jurisdiction of the OCOCG-HSIR;
his Honour ignored the evidence of Bishop Ambrose that he attempted to ensure the Diocese functioned in accordance with the 1976 Constitution, that he sought to ensure the Free ANZ Diocese maintained the best traditions of Orthodoxy and that the Bishop had accepted the position until such time as a bishop of Serbian ethnic background was found;
it cannot be said that one person, albeit an important person, could comprise the spirit of the church; and
his Honour gave no reasons why Bishop Ambrose's appointment could compromise the Serbian character of the church, given that he found that Bishop Ambrose does not answer to the hierarch of any other church (including the OCOCG-HSIR).

The appellants made the following submissions about the future reconciliation component of [521(q)(iii)]:

The Free ANZ Diocese's association with the OCOCG-HSIR is not inconsistent with the reconciliation because the Free ANZ Diocese is not under its spiritual jurisdiction and there was no evidence that the association caused the Free ANZ Diocese to adopt a doctrinal stance against ecumenism.
The primary judge found that both the Free ANZ Diocese and the OCOCG-HSIR used the old Julian Calendar. However, he also found that the affiliation is likely to be counterproductive to reunification until the issue of the use of the new calendar is resolved by a Greater Orthodox Council in the future. The appellants submitted that this reasoning is illogical.
The primary judge ignored Bishop Ambrose's evidence that if he formed the view that the clergy and laity of the Free ANZ Diocese did not share his views as an Old calendarist he believed he should relinquish his office.
The primary judge did not explain how the Bishop, who did not answer to a hierarch, could frustrate reconciliation or that Bishop Ambrose caused the Free ANZ Diocese to adopt an anti-ecumenical view.

The concluding submissions of the appellants on the application of s 9 were that: 1. There was no basis for finding that reunification with the Serbian Orthodox Church had to occur within a specific time frame; 2. The primary judge should not have imposed a "reasonable" time limit on reunification: just because reunification was unlikely to occur in a "reasonable time" did not mean the original purposes have ceased to provide a suitable and effective means of applying the trust; and 3. The Free ANZ Diocese's current stance against ecumenism was within the Holy Tradition; it cannot be that holding this stance is contrary to the original purposes. The appellants submitted that the primary judge was impermissibly adjudicating on the reasonableness of religious doctrine, by finding that it was unreasonable to adopt an anti-ecumenical view in light of the spirit of the trust.

[30]

Consideration of primary judge's decision about whether 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

It will be recalled that the notice of appeal made the following complaints about the suitable and effective method question: (a) grounds 1(a), 1(b), 2(c) and 2(d) - (whether not suitable and effective due to a change in character of the Free ANZ Diocese brought about by a reduction in size) (b) grounds 3(b) and 3(c) (whether not suitable and effective due to affiliations with OCOCG-HSIR) (c) ground 7(c) (general contention that should have found Free ANZ Diocese suitable and effective)
The appellants accepted that they must show House v The King error in respect to this aspect of the s 9 test, which they described as the "third element" of that test. As I have explained above I do not regard it appropriate to parse and analyse the various components of s 9 in this way but for present purposes it is unnecessary to say more.
The two issues raised by the grounds of appeal as to whether the primary judge was correct to conclude that the original trust purposes had ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, may be described as a change in character of the Free ANZ Diocese which the appellants describe as based on "size" and whether or not the original trust purposes remain suitable and effective having regard to the spirit of the trust and affiliations with the OCOCG-HSIR, which itself raised a number of sub-issues.
Before dealing with these issues, it is appropriate to address two more general submissions. First, the appellants contended that the primary judge erred in his approach to the application of s 9 of the Charitable Trusts Act, because it is said that he regarded a departure from the spirit of the trust as "determinative" of the question, when s 9 of the Charitable Trusts Act merely provides that regard is to be had to the spirit of the trust.
There is no substance to this submission. The appellants seize upon the word "gauged" at [508] to suggest that the primary judge applied a test that diverged from the statutory test. The primary judge there was rejecting a submission made by the appellants below that the approach followed in Varsani v Jesani and White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 elevated the spirit of the trust above the original trust purposes. His Honour was simply observing, correctly, that the text of s 9 required regard to be had to the spirit of the trust in assessing whether the original trust purposes had ceased to provide a suitable and effective method of using the trust property.
Secondly, the appellants contended that the primary judge erred in finding that because use of the monastery property for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust, it followed that the original trust purposes had ceased to provide a suitable and effective method of its use. The primary judge made no such finding; that is, it was not because use of the monastery property for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust that, it followed that the original trust purposes had ceased to provide a suitable and effective method of its use.
It is correct that s 9 does not enable a court simply to select an alternative purpose that it thinks is a more beneficial one, if the original purposes continue to provide a suitable and effective use of the trust property. However, the primary judge did not adopt any such approach. There was a passing reference at [503] to the fact that use by the SOC-ANZ Metropolitanate would not be inconsistent with the spirit of the trust. His Honour there addressing (and rejecting) an argument put below by the appellants about the alleged spirit of the trust being that the Free ANZ Diocese should forever (until a proper decision by the National Assembly to the contrary was made) remain independent of the Serbian Orthodox Church.
This finding, correctly rejecting part of the appellants' case about the spirit of the trust, was not determinative in the primary judge's consideration of whether the trust purposes had ceased to be a suitable and effective method of using the trust property.
Further, the appellants' complaint that the primary judge erred in finding that under s 9 property must be applied for purposes that are as near as possible to the original purposes, having regard to the spirit of the trust, should be rejected. This is because s 9 expands the grounds on which property may be applied "cy-près". The legislature, in its decision to use the language of "cy-près", specifically provided that s 9 would apply in additional, and expanded, circumstances to those at general law. The use of the term "cy-près" indicates the continued relationship between the statutory jurisdiction and the general law concept. Section 9 does not remove the requirement that, where the jurisdiction is engaged, the property be applied as near to the original purposes of the trust as would be effective and suitable, having regard to the spirit of the trust.

[31]

Grounds 1(a), 1(b), 2(c) and 2(d) - whether 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 a change in character of the Free ANZ Diocese

I have already dealt with the appellants' submission that the primary judge applied a "size" test in the determination of the question posed by s 9 of the Charitable Trusts Act at [299] above. His Honour's conclusion was not the application of a size test. Rather, at [500] his Honour found that the character of that organisation had changed markedly since the settling of the trust. His Honour did not conclude that the spirit of the trust was that it was directed to "former members" of the Free ANZ Diocese.
Rather, as I have explained, the finding of the primary judge was that the character of the Free ANZ Diocese had changed markedly since the creation of the trust. That conclusion was unremarkable and based on his related findings that the monastery was intended to be a little piece of Serbia in Australia and that there was no difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church but rather a split based on politics.
Once those related matters are taken into account the findings about character become clearer. The vast majority of Serbian Orthodox adherents in Australia who associated with the Free ANZ Diocese at the time the spirit of the trust was to be determined are now associated with the SOC-ANZ Metropolitanate. At the time of the trial before the primary judge only three church-school congregations remained affiliated with the Free ANZ Diocese, which church-school congregations comprised only a small proportion of the adherents to Serbian Orthodoxy in Australia. The primary judge's finding was that the character of the Free ANZ Diocese now, as compared to the time of settling of the trust, was thus different. The vast majority of Serbian Orthodox adherents in Australia could enjoy the monastery at the time of creation of the trust. Now, given the divisions which his Honour found were matters of church politics and not faith, only a small minority of Serbian Orthodox adherents in Australia could enjoy the monastery.
This finding was not a simple application of a "size" test by the primary judge. What his Honour did was to contrast the character of the trust, being a body which had provided access to a monastery which was "a little piece of Serbia" to the vast majority of Serbian Orthodox adherents in Australia, with the body now which provided access to only a small minority of Serbian Orthodox adherents in Australia.
His Honour made a clear finding when addressing the general law cy-près doctrine that the change in character he identified was irrelevant. He found in favour of the appellants that the monastery could not be held on trust for the purposes of congregations who had joined the SOC-ANZ Metropolitanate, citing Grant. That is, the fact that only a rump of Serbian Orthodox adherents now had access to the monastery did not make it impossible or impracticable to carry out the original purposes of the trust. The appellants, in effect, seek to elevate this question as determinative of the s 9 question his Honour was asked to address.
That was not the task which was set by s 9 of the Charitable Trusts Act. In addressing that question it was relevant for his Honour to consider the changed character of the trust having regard to the spirit of the trust.
The appellants' submissions on the character issue assumed that as two churches were involved the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante were necessarily matters of faith. I agree that if the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante had been matters of faith, his Honour should have taken those differences in faith into account for the purposes of s 9: General Assembly of Free Scotland v Lord Overtoun. However the primary judge concluded, correctly in my view, that the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante were not matters of faith. The detailed history of the organisations recited by his Honour which I have summarised in these reasons makes clear that the split in the Serbian Orthodox Church was one based on perception of control of the Serbian Orthodox Church by the (then) communist authorities in Belgrade and not on matters of faith. The submission that there was "no evidence" to support this conclusion is not possible to maintain. The appellants' reliance on an alleged inconsistency with the decision of the US Supreme Court in Milivojevich is both legally irrelevant and factually incorrect.
As I have found, the alleged difference in faith, which was that the Free ANZ Diocese was an "independent presbyterian church", was correctly rejected by the primary judge. The claim that the Free ANZ Diocese was forever to be independent of the Serbian Orthodox Church was at the forefront of the appellants' case before the primary judge and rejected by him. The alleged presbyterian character of the Free ANZ Diocese as a central tenet of faith was at the forefront of this appeal. As I have found, however, the primary judge correctly rejected the submission that the presbyterian aspects of the 1976 Constitution were matters of faith.
In relation to the primary judge's findings about the changed character of the trust this is important. His Honour's conclusion at [500], was that to apply the monastery property now to the purposes of the appellants would be contrary to the spirit of the trust as the leaders of the Free ANZ Diocese (and the appellants in relation to the trust) had acted contrary to the terms of the Free ANZ Diocese's Constitution and in breach of trust. Those breaches of trust included failing to heed the directions of Bishop Irinej, who was entitled to give those directions by reason of his appointment which was in accordance with the changed consensual compact. It is part of the central conclusion of the primary judge concerning the change in character of the Free ANZ Diocese that its leaders did not adhere to the 1976 Constitution and had acted in breach of trust in numerous respects regarding the management of the monastery property.
The appellants' submission that the primary judge erred in taking this matter into account as it involved only "the actions of past leaders of the Free ANZ Diocese who acted contrary to the constitution" should be rejected. Factually, the breaches of trust were committed by some people who remained involved with the trust at the time of the trial before the primary judge. More fundamentally, so far as the character issue is concerned, the breaches of trust were relevant in that the directions of the properly appointed Bishop, with the constitutional authority to give those directions, were not followed. This was a significant change in the character of the trust, relevant to determining the question posed by s 9.
It is no answer that the Property Trust Company purportedly appointed Bishop Ambrose to the role he now plays. As the primary judge found, the Property Trust Company had no power to do so under the 1976 Constitution. Whatever else may be said about the appointment of Bishop Ambrose, the steps taken by the appellants to effect that appointment are a cogent demonstration that the presbyterian aspects of the 1976 Constitution were not matters of faith for the Free ANZ Diocese. If they were, the fact that the 1976 Constitution was completely ignored by the appellants in the appointment of Bishop Ambrose was inexplicable.
There was no error, let alone a House v The King error, demonstrated in the primary judge's conclusion on this issue. The appellants' submissions on the character issue are, in essence, that because the monastery "remained available to nurture the spiritual life of the members of the Free ANZ Diocese", the original trust purposes must therefore have remained a suitable and effective method of using the trust property. The proposition elevates the test in s 9 to the general law test of impossibility or impracticability. The appellants' submission is inconsistent with the intention of the legislature that s 9 provide a more expansive operation of the cy-près doctrine.
Grounds 1(a), 1(b), 2(c) and 2(d) of the notice of appeal should be rejected.

[32]

Grounds 3(b) and 3(c) - 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 Free ANZ Dioceses' affiliation with the OCOCG-HSIR

The appellants' submissions were to the effect that because the original trust purposes included "the principles of freedom of religious association of the Free ANZ Diocese and that a diocese would not be administered by a bishop of a particular ethnicity", the continued use of the trust property by the Free ANZ Diocese with Bishop Ambrose as its bishop necessarily continued effectively to serve those purposes. There are two principal difficulties with this submission.
First, as I have found, the appellants' complaints about the primary judge's findings about the original trust purposes are outside the grounds of appeal and were not raised in the proceedings below.
Secondly, the appellants have not addressed the statutory test. The appellants' submission amounts to the proposition that affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the ethnicity of Bishop Ambrose do not demonstrate the "inappropriateness" of the original trust purposes. The appellants' submission ignores the critical elements of the primary judge's findings about the spirit of the trust, namely that the Free ANZ Diocese had a Serbian character and its members shared the fervent hope that the church would reunify once communism fell.
I have set out those findings at [117] above. On the evidence before the primary judge, which I have summarised at [273]‑[280], those conclusions were compelling. There was no error, let alone a House v The King error demonstrated in the primary judge's findings that the Free ANZ Diocese's affiliations with the OCOCG-HSIR were completely inconsistent with critical elements of the spirit of the trust, namely that the Free ANZ Diocese have a Serbian character and it was fervently hoped that the church would reunify once communism fell. The primary judge found that affiliation with the OCOCG-HSIR was inconsistent with the former and made the latter much less likely. No error has been shown in those findings nor in his Honour taking them into account in making the broad evaluative assessment that s 9 of the Charitable Trusts Act requires.
The appellants' remaining submissions on this issue seek to approbate and reprobate about the role of Bishop Ambrose in relation to the Free ANZ Diocese. It will be recalled that the Property Trust Company (outside any powers granted to it) engaged Bishop Ambrose to lead the Free ANZ Diocese at least in part to better defend the proceedings before the primary judge. In many respects the appellants succeeded before the primary judge on issues which are not the subject of this appeal. In that endeavour they were no doubt assisted by the fact that the Free ANZ Diocese had a bishop who enjoyed apostolic succession (as the primary judge found Bishop Ambrose had).
The primary judge found, and there was no appeal from this finding, that the OCOCG-HSIR rejects, and treats as heresy, the fundamental basis upon which members of the Free ANZ Diocese associated, which is, belief in the "One Holy, Ecumenical and Apostolic Church", which is drawn from article 1 of the 1976 Constitution.
In circumstances where Bishop Ambrose had been appointed to lead the Free ANZ Diocese the appellants' complaint that the Free ANZ Diocese was allegedly "not under the spiritual jurisdiction of the OCOCG" is of little moment. The primary judge was entitled to conclude that the appointment by the Property Trust Company of a bishop to lead the Free ANZ Diocese who viewed the fundamental basis upon which that church associated as heresy as making reunification with the broader Serbian Orthodox Church much more difficult and thus inconsistent in material respects with the spirit of the trust.
The appellants' complaints about the primary judge's findings concerning the old Julian Calendar should be rejected. There was nothing illogical in a finding that the affiliation with the OCOCG-HSIR was likely to be counterproductive to reunification in the Serbian Orthodox Church until the issue of the use of the new calendar was resolved by a Greater Orthodox Council in the future.
So far as the appellants' complaints about the primary judge's findings about ecumenism were concerned, they should be rejected. It will be recalled that the primary judge found that opposition to ecumenism was not part of the spirit of the trust at the time of its creation, nor a principle of the Free ANZ Diocese at that time.
No error was shown in these findings. Nor was any error, let alone a House v The King error established in relation to the broad evaluative judgment his Honour made under s 9 taking account of these matters.
As a fall back submission the appellants submitted that the Free ANZ Diocese's alignment with the OCOCG-HSIR and Bishop Ambrose was nonetheless in accord with the spirit of the trust. This is said to be based on the propositions that: (a) the Free ANZ Diocese is nonetheless of Serbian character; and (b) the OCOCG-HSIR and Bishop Ambrose could not frustrate any decision by the Free ANZ Diocese Church National Assembly to seek reunification with the SOC.
These submissions should be rejected. Contrary to the appellants' submission, there was evidence that since the alignment of the Free ANZ Diocese with the OCOCG-HSIR and Bishop Ambrose, the character of the Free ANZ Diocese as Serbian has been significantly compromised. The primary judge made findings about the relationship between the Free ANZ Diocese and the OCOCG-HSIR. Those findings were unchallenged. The effect of those findings was that this association was not in accordance with the spirit of the trust, as the OCOCG-HSIR did not have a distinctly ethnic and nationalist Serbian focus. No error has been shown in that conclusion.
The mere fact that the OCOCG-HSIR and Bishop Ambrose "could not frustrate" a decision of the Free ANZ Diocese Church National Assembly to reunify with the Serbian Orthodox Church is not to the point. The evidence clearly demonstrated that any reconciliation was highly unlikely to occur while the close association of the Free ANZ Diocese with the OCOCG-HSIR and Bishop Ambrose continued. So much was stated by the Free ANZ Diocese in the resolutions passed at the Church National Assembly on 29 November 2012 (dealt with at [132] above).
Grounds 3(b) and 3(c) of the notice of appeal should be rejected.

[34]

The appellants' submissions

The appellants submitted that even if they failed at stage 3, it did not automatically follow that the purposes of the trust should be altered in favour of the SOC-ANZ Metropolitanate.
The appellants submitted that the primary judge erred in two ways in how he determined to apply the trust property cy-près.
First, it was submitted the primary judge failed to adopt the correct approach. The approach he adopted is found in [509] of the judgment: 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 appellants submitted that the introductory clause of s 9 showed that the section was intended to extend the grounds upon which the Court's jurisdiction to apply property cy-près is engaged. There is nothing in the text which says that it applies to how the original purposes are to be altered - i.e., there is nothing in the text that requires that property the subject of a cy-près scheme be applied as near as possible to the original purposes.
The appellants submitted that this is also reflected in the history of the equivalent sections in other jurisdictions. Both the UK provision found in the Charities Act (UK) and the South Australian provision in the Trustee Act (SA) made specific amendments to require that a court take into account the spirit of the trust when determining how to apply the property cy-près. It is telling, the appellants submit, that no such provision exists in the NSW legislation.
Secondly, the appellants submitted that the primary judge's discretionary or evaluative judgment miscarried. This submission was based on the primary judge's finding that there was no relevant difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church. His Honour found at [510]: 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.
The appellants submitted that the evidence supported a finding that there was a difference in faith as the primary judge ignored evidence that: 1. the governance of the church was an ecclesiological principle, and relevant to faith. The appellants referred to the evidence of Bishop Irinej at [Black1 411]; 2. differing views about ecumenism existed between orthodox churches.
The appellants ultimately submitted that: [H]is Honour should have found that the appropriate evaluative judgment was to apply [the property] for the purposes of the Free Diocese with appropriate changes to an administrative scheme, to give effect to whatever parts of the spirit were not in conflict with the purposes.

[36]

Consideration of the primary judge's determination to apply to trust property cy-près

The appellants' submissions on the cy-près question focus on the proposition that where there has been a split in a religious organisation, the court's task is to determine who are the "true adherents" to the organisation's foundational principles and apply the property for the purposes of that group.
This submission required the appellants, in turn, to submit that the primary judge erred in his findings that there was no difference in faith between the Free ANZ Diocese and the SOC-ANZ Metropolitanate, and similarly that the original division between the Serbian Orthodox Church and the Free ANZ Diocese was simply a matter of church politics.
There is a fundamental difficulty with this submission. Merely because, as is undoubtedly correct at a level of generality, a difference between a congregational and a hierarchical structure could be a matter of ecclesiology or theology does not address the issue in this case. The evidence in this case did not establish that a difference between the congregational structure adopted in the 1976 Constitution and the hierarchical structure of the Serbian Orthodox Church was considered a matter of ecclesiology or theology by the Free ANZ Diocese.
There was no error in the primary judge's findings that the original split between the Serbian Orthodox Church and the Free ANZ Diocese, in this case, was a division on a "matter of church politics".
The primary judge made detailed findings about the origin of the split. It is not suggested that any of those findings were made in error. Those findings amply support the primary judge's ultimate conclusion. As a consequence of that division, the Free ANZ Diocese in 1964 (and again in 1976) adopted a structure which involved administrative independence from the Serbian Orthodox Church. It did so, on the primary judge's findings, in response to events which had consequences for control of Church assets in America, not because of any religious opposition to the concept of a hierarchical church.
If, as the appellants submitted, this congregational or presbyterian structure of the Free ANZ Diocese was a fundamental matter of ecclesiology or theology, it is inconceivable that this structure would have been routinely ignored by the Free ANZ Diocese in the appointment and supervision of bishops, as the unchallenged findings of the primary judge demonstrate it was. The primary judge made detailed, unchallenged, findings on this topic. Ironically, given his central role in this case, the appointment of Bishop Ambrose was also effected by the Property Trust Company ignoring completely the congregational or presbyterian terms of the 1976 Constitution. The primary judge was entitled to conclude on the evidence that the division was on a "matter of church politics". No error has been shown.
This being so, the primary judge was correct to conclude that for the monastery to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with the spirit of the trust.
As I have found at paragraph [315] above, the primary judge did not err in concluding that the property the subject of a s 9 cy-près scheme be applied as near as possible to the original trust purposes. The appellants' complaint to the contrary should be rejected.
Finally, the appellants' submissions that the orders of the primary judge amounted to a "misuse of the power" conferred by s 9 of the Charitable Trusts Act should be rejected. There is no unfairness in concluding that the changes in character of the Free ANZ Diocese have resulted in the original trust purposes ceasing to provide a suitable and effective use of the trust property, having regard to the spirit of the trust. That is so because the changes in character are primarily a result of the Free ANZ Diocese and those who control it rejecting key elements of the spirit of the trust - the Serbian character of the Free ANZ Diocese and the desire to reunify with the Serbian Orthodox Church when communism fell.
The fact that certain members of the Free ANZ Diocese became members of the SOC-ANZ Metropolitanate does not mean that it is not appropriate to apply the property for the purposes of the SOC-ANZ Metropolitanate. Section 9 does not require impossibility.
None of the matters raised by the appellants was a fair criticism of the primary judge's reasons. The primary judge found that applying the monastery property for the purposes of the SOC-ANZ Metrolpolitanate was the most suitable and effective application of the property, having regard to the spirit of the trust. No error has been demonstrated in his Honour's approach.
The primary judge's findings reflect the distinctly Serbian character of the trust, the fervent desire of the Free ANZ Diocese at the time of settling the trust to reunify with the Serbian Orthodox Church when communism fell and the fact that there was no fundamental or doctrinal dispute between the Free ANZ Diocese and the SOC-ANZ Metropolitanate.

Parties

Applicant/Plaintiff:

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust

Respondent/Defendant:

Bishop Irinej Dobrijevic

Legislation Cited (4)

(NZ) Charitable Trusts Act 1993(NSW)s 9

Charitable Trusts Act 1993(NSW)

Civil Procedure Act 2005(NSW)s 64

Uniform Civil Procedure Rules 2005(NSW)r 51.18(2), leading

Cases Cited (37)

Macqueen v Frackelton (1909) 8 CLR 673 Metwally v University of Wollongong (1985) 60 ALR 68 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 Norbis v Norbis (1986) 161 CLR 513 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641; [2001] NSWSC 492 Re Lepton's Charity [1972] Ch 276 RSL Veterans' Retirement Villages Ltd v NSW Minister for Lands [2006] NSWSC 1161 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Sullivan v Stefanidi [2009] NSWCA 313 Taylor v Princess Margaret Hospital for Children Foundation Inc (2012) 42 WAR 259; [2012] WASC 83 The Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 (1976). Varsani v Jesani [1999] Ch 219 Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12 Watson v Jones 80 US 679 (1871) Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 Texts Cited: Church and State in Yugoslavia since 1945 (S Alexander, 1979, Cambridge University Press) Justice McPherson "The Church as Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159 Report of the Committee on the Law and Practice relating to Charitable Trusts (1952) (the Nathan Report) (UK) Report on Charitable Trusts 1965 (Vic) Serbs in Australia Volume 1 (Fr T Kazich, ed., 1989, Monastery Press) Serbs in Australia Volume 2 (Fr T Kazich, ed., 1992, Monastery Press) Category: Principal judgment Parties: Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust (First Appellant) Branko Rupar (Second Appellant) Ratomir Nesic (Third Appellant) Ilija Cubrilo (Fourth Appellant) Petar Mandic (Fifth Appellant)

Solicitors: Hunt & Hunt (Appellants) Nicholas G Pappas & Company (First and Second Respondents) Crown Solicitor's Office (Third Respondent) File Number(s): 2016/14472 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2015] NSWSC 637; [2015] NSWSC 1976 Date of Decision: 29 May 2015 Before: White J File Number(s): 2011/247393

headnote [This headnote should not be read as part of the judgment] The Free Serbian Orthodox Church for Australia and New Zealand ("the Free ANZ Diocese") was formed in 1964 after a split with the Serbian Orthodox Church. In the 1980s, the Free ANZ Diocese established a charitable trust without a trust instrument for the purposes of constructing and operating a monastery property in Wallaroo, NSW. In 2010, most of the members of the Free ANZ Diocese reconciled with the Serbian Orthodox Church, forming the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church ("the SOC-ANZ Metropolitanate"). The remaining members of the Free ANZ Diocese have since appointed a bishop of the Old Calendar Orthodox Church of Greece - Holy Synod in Resistance ("OCOCG-HSIR") as the bishop of the Free ANZ Diocese. Disputes arose about the control and operation of the monastery property. In 2011, the head of the SOC-ANZ Metropolitanate, Bishop Irinej Dobrijevic, commenced proceedings in the Supreme Court against members of the Free ANZ Diocese and the registered proprietor of the monastery property. These proceedings raised issues relating to the continuing existence of the Free ANZ Diocese, the permissibility of certain actions taken by the directors of the Property Trust Company, and the future control and use of the monastery property. The Attorney General, as protector of charitable trusts, played an active role in the proceedings both before the primary judge and on appeal. The primary judge found that the Free ANZ Diocese continued to exist as a functioning Orthodox church. His Honour also found that the directors of the Property Trust Company had acted in breach of trust in excluding Bishop Irinej from the governance of the trust. These issues were not the subject of the appeal. The appeal was concerned with whether the primary judge had properly applied s 9 of the Charitable Trusts Act 1993 (NSW). Relevantly, the primary judge found that under s 9 the original purposes of the trust had ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust. The primary judge also adopted (with some modifications) a s 9 scheme jointly proposed by Bishop Irinej and the Attorney General, applying the property for the purposes of the SOC-ANZ Metropolitanate. The critical starting point of the appellants' case was that the primary judge had failed properly to identify the original purposes of the trust. This, however, was not a ground of appeal and was not an issue litigated before the primary judge. The issues raised on the appellants' notice of appeal were

whether the primary judge erred in determining the spirit of the trust;
whether the primary judge erred in finding that original purposes of the trust, wholly or in part, have since they were laid down, ceased to provide a suitable and effective method of using the trust property; and

Judgment

WARD JA: I agree, for the reasons given by Payne JA, that leave to file the proposed amended notice of appeal should be refused and that the appeal should be dismissed. I also agree with the observations made by Gleeson JA. The orders proposed by Payne JA should be made.
GLEESON JA: I have had the advantage of reading the detailed and comprehensive reasons for judgment of Payne JA. I agree that leave to file an amended notice of appeal should be refused for the reasons given by his Honour. On that issue, I would add the following brief observations.
The hearing below occupied well over five weeks. Having failed, relevantly, on the questions of whether an order should be made for a cy-près scheme under s 9 of the Charitable Trusts Act 1993 (NSW) and as to the terms of the proposed scheme to be ordered by the Court, the appellants sought to recast their case on appeal ignoring the way in which they had conducted their case at trial.
Unsurprisingly, the respondents took objection to the new case which was first raised in the appellants' written submissions dated 12 April 2016. In a footnote, the appellants foreshadowed that leave to amend the notice of appeal would be sought "so as to better reflect the issues which the appellants still press" being a reference to grounds 1-7 only. However, the appellants took no step in this regard until after the respondents had served their submissions dated 20 May 2016 and 14 June 2016 respectively. Over a month later, on 21 July 2016, the appellants served a proposed amended notice of appeal which purported to "better reflect the issues which the appellants will still press". The respondents promptly objected to the amended notice of appeal. The appellants took no steps to obtain leave to file such document in advance of the hearing of the appeal which was fixed for two days commencing 1 September 2016. Indeed, the appellants indicated on 30 August 2016 that they intended to proceed on the existing notice of appeal (grounds 1-7 only).
Notwithstanding that history, the appellants belatedly sought leave to file an amended notice of appeal during the course of the first day of the hearing of the appeal.
The appellants' delay in seeking leave to file an amended notice of appeal was left wholly unexplained. That the respondents would be prejudiced if the very late amendment was permitted is not in doubt and the prejudice is not of a type that could be cured by a costs order, even if case management considerations were put aside.
Nor was it suggested by the appellants that the new points could not possibly have been met by further evidence at the trial. As the High Court remarked in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [51]: Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination.

The original purposes of the trust

As there was no trust instrument for the monastery property trust, the identification of the trust purpose depended on what the intentions were of those who contributed to the acquisition of the land and construction of the monastery and related facilities. The primary judge found: [81] 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) 52 NSWLR 641; [2001] NSWSC 492 at [149]-[151]). [82] 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.
The primary judge returned to this topic at [129]‑[131] and [140]: [129] 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. [130] 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). [131] 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.

Whether a s 9 cy-près order should be made

The primary judge concluded at [71]-[76] and [511] as follows: 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. … 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.

[1994] HCA 40

[2012] WASC 83

(1986) 162 CLR 1

(1989) 37 NSWLR 293

(2009) 239 CLR 27

(2009) 239 CLR 175

(1976) 135 CLR 587

(2012) 248 CLR 500

(2012) 250 CLR 503

(1936) 55 CLR 499

(1909) 8 CLR 673

(1985) 60 ALR 68

(1986) 161 CLR 513

(2001) 52 NSWLR 641

(1994) 181 CLR 201

(2012) 42 WAR 259

(1998) 180 CLR 491

(2003) 77 ALJR 1598

(2009) 239 CLR 446

(1948) 78 CLR 224

(1950) 81 CLR 418

(1975) 49 ALJR 219

Cited By (13)

Allen Ralph Robinson as Trustee for the Trust Fund of the Fairfax Fellowships at Balliol College v Attorney General of New South Wales

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic

Green v Attorney General of the State of New South Wales

Harmony - The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales

Health Care Complaints Commission v Wong

King v Attorney General for New South Wales

The primary judge found that the monastery property would be a place of worship for Serbians living in Australia and seeking to uphold the Serbian Orthodox Church traditions. There was an abundance of evidence that it was intended that 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. No error has been shown in the primary judge's finding that: [458] 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. [459] 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. [460] 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. [461] 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.

Leave to file an amended notice of appeal should be refused. The amended notice of appeal would give rise to unfairness to the respondents: at [1] (per Ward JA; [14] (per Gleeson JA) and at [167] - [168] (per Payne JA) AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 applied. Coulton v Holcombe (1986) 162 CLR 1 applied. Held (per Payne JA, Ward and Gleeson JJA agreeing): Section 9 of the Charitable Trust Act
Section 9 of the Charitable Trusts Act must be read as a whole in the statutory context in which it appears and by reference to the objects that the legislation is intended to secure: at [193]. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 applied.
The requirements of s 9 involve a threshold lower than the general law cy-près requirement of impossibility or impracticality. The test is whether the original purposes of the trust have ceased to provide a suitable and effective method of using the property, in whole or in part, having regard to the "spirit of the trust". The spirit of the trust is a broader conception than the original purposes of the trust: at [197]. Original purposes of the trust
The primary judge adopted the submissions of the appellant below about the original purposes of the trust. No ground of appeal was addressed to that finding: at [102], [220].
Where there is no written trust document, regard must be had to a wide range of documentary and oral evidence as to intentions at the time. A value judgment is required to ascertain the basic intention underlining the trust: at [216].
The original purposes of the trust must be determined at the time of creation of the trust. The primary judge was entitled to have regard to later events, however, as it is appropriate to look to the usage of trust property where there is no trust instrument: at [232]. Radmanovich v Nedeljkovic (2001) 52 NSWLR 641; [2001] NSWSC 492 applied.
The Constitution of the Free ANZ Diocese was not to be treated as a written prescription of the trust. To the extent it evidenced the fundamental or essential principles of the Diocese, it was evidence of the purposes of the trust in the same way as other evidence of the founders' intention: at [234]. Spirit of the trust
There was an abundance of evidence that it was intended that 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. No error has been shown in the primary judge's finding: at [270].
There was compelling evidence supporting the primary judge's conclusion that reunification with the Serbian Orthodox Church was part of the spirit of the trust: at [280].
The evidence in this case did not establish that a difference between the congregational or presbyterian structure adopted by the Free ANZ Diocese and the hierarchical structure of the Serbian Orthodox Church was considered a matter of ecclesiology or theology by the Free ANZ Diocese. The church Constitution was capable of being changed through practice, as it represented a consensual compact. It had been so changed in the appointment of bishops to the Free ANZ Diocese: at [117], [232], [284], [359]. Justice McPherson "The Church as Consensual Compact, Trust and Corporation" (2000) 74 ALJ 159 at 167-169 considered. Whether 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
Section 9 does not remove the requirement that, where the jurisdiction is engaged, the property be applied as near to the original purposes of the trust as would be effective and suitable, having regard to the spirit of the trust: at [315].
The primary judge found that the character of the Free ANZ Diocese now, as compared to the time of settling of the trust, was different. The vast majority of Serbian Orthodox adherents in Australia could enjoy the monastery at the time of creation of the trust. Now, given the divisions which his Honour found were matters of church politics and not faith, only a small minority of Serbian Orthodox adherents in Australia could enjoy the monastery: at [318].
The original trust purposes did not remain a suitable and effective method of using the trust property simply because it was possible for the monastery to be used by the remaining members of the Free ANZ Diocese. The test in s 9 is not the same as the general law test of impossibility or impracticability: at [327].
No error has been shown in the primary judge's finding that that the Free ANZ Diocese's affiliation with the OCOCG-HSIR was inconsistent with the Serbian character of the church and made the likelihood of reconciliation with the Serbian Orthodox Church much less likely, contrary to the spirit of the trust: at [332]. Application of the trust property cy-près
There was no error in the primary judge's findings that the original split between the Serbian Orthodox Church and the Free ANZ Diocese, in this case, was a division on a "matter of church politics" and not a matter of faith: [360]
The primary judge did not err in concluding that the property the subject of a s 9 cy-près scheme be applied as near as possible to the original trust purposes: at [364].

His Honour made clear findings about the limits of the consensual compact between the members of the unincorporated associations in the context of the leading cases about church property and trusts: [138] 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 [139] 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. [140] 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.

At a glance

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Cases Cited (37)

Cited By (13)