Counsel: MR A J BESANKO QC WITH MR A ROSSI - Solicitors: MANTZOROS & PARTNERS

Judgment No. [2000] SASC 329

On Appeal from INDUSTRIAL RELATIONS COURT OF SOUTH AUSTRALIA (FULL COURT)

[2000] SASC 329

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

2 I would grant leave to Greek Orthodox Community of SA Inc ("the Community"), pursuant to s 191(1)(b) of the Industrial and Employee Relations Act 1994 to bring the appeal. That makes it unnecessary for me to express an opinion on the question of whether the appeal is based on an alleged excess or deficiency of jurisdiction. I would grant leave to the Community because the submission advanced on its behalf, that the Respondent is not capable in law of being an employee of the Community, raises an issue that warrants the grant of leave. The submission raises the issue of the correct approach to be taken by a court when a claim is made by a Minister of religion that there is a contract of employment between the Minister and a church, or some person or entity providing material benefits to the Minister to enable the Minister to exercise the Minister's ministry. I will use the term "Minister of religion" as a convenient shorthand to refer to a variety of clerical offices in the Christian religion and non-Christian religions. The submission raises an issue of some importance and of relevance to a number of religious offices and religions. I realise that in a given case it will be necessary to pay careful attention to the nature of the particular clerical office in question, and to the practices of the church and religion in question. The issue raised by the submission for the Community has required, as the reasons of Bleby J demonstrate, careful consideration of a body of case law not previously considered by this Court, and not considered much by courts in Australia. In my opinion that circumstance warrants the grant of leave to appeal.

3 I would grant leave to appeal even though, in the end, and like Bleby J, I conclude that the appeal is to be decided by the application of established principles of the law of contract to the facts of the particular case.

4 I also adopt the statement of relevant legal principles that appears in the reasons of Bleby J. In particular, I agree with Bleby J that in the case of a Minister of religion, there is no presumption of an intention to enter into a contractual relationship in relation to the remuneration and maintenance and support. For the reasons given by Bleby J, the starting point in such a case is that usually there is no intention to enter into a contractual relationship on such matters. But, it is important to emphasise, that is no more than a starting point, and in the end it is a question of whether an intention to enter into a contractual relationship was expressed by the parties, or is to be inferred as a matter of fact from the relevant dealings between them.

5 The relevant principles are well established. In the nature of things, they can do no more than provide guide posts along the way. Some text books refer to presumptions that certain types of agreement will not be binding, presumptions that certain other types of agreement will be binding, and a process of rebutting such presumptions. That is not an approach that I find particularly helpful. I consider that the necessary guidance can be found in the following words of Windeyer J, written in a very different context, but nevertheless helpful. In The State of South Australia & Anor v The Commonwealth of Australia [1962] HCA 10; (1962-63) 108 CLR 130 at 154 he said:

"... An agreement deliberately entered into and by which both parties intend themselves to be bound may yet not be an agreement that the courts will enforce. The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law. ..."

6 He returned to this theme in Placer Development Ltd v The Commonwealth of Australia [1969] HCA 29; (1969-70) 121 CLR 353. In that case Windeyer J was in dissent in the result, but I consider that his statement of the relevant principle is correct. He said (at 367):

"... I venture to say, despite some statements in other cases, that whether there was a voluntary assumption of a legally enforceable duty in a particular case is not to be decided by asking whether or not the parties had expressed or exhibited an actual and positive intention that their agreement was to result in legal obligations. It depends rather on an inference to be drawn from the subject matter and nature of their agreement, and other circumstances to which I referred in what I wrote in South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130, which I refrain from repeating. Social engagements and domestic arrangements are outside the realm of contract law, simply because the parties to them must be regarded as intending that their mutual promises, whether kept or broken, are not to land them in Court."

In this context I also refer to the discussion of the relevant issues by Tadgell J in Toyota Motor Corporation Australia Ltd & Anor v Ken Morgan Motors Pty Ltd & Ors [1994] VicRp 55; (1994) 2 VR 106 at 168-170. These are the principles that I consider should be applied.

7 In the present case, the Respondent had to satisfy the Industrial Relations Court that such an intention to enter into legally binding obligations was to be inferred from his dealings with the representatives of the Community.

8 The Magistrate's conclusion that there was a contract of employment between the Community and the Respondent rests upon his findings about a number of discussions between representatives of the Community and the Respondent, which took place in Adelaide in March 1970, shortly after the Respondent arrived in South Australia. The Magistrate accepted the substance of the Respondent's evidence about these meetings, but noted that there did not appear to be any significant conflict between the evidence on either side about these meetings. The dispute between the parties was as to the inferences and conclusions to be drawn from what took place at the meetings. The Magistrate's findings were upheld on appeal by a Judge of the Industrial Relations Court and by the Full Court of the Industrial Relations Court. I am again content to adopt the summary of Bleby J of the reasons given by the Magistrate, the Judge and the Full Court of the Industrial Relations Court.

9 To my mind, it is important to bear in mind that the Community is not a church, in which the Respondent held a clerical office. Nor was the Respondent in any capacity an officer of the Community. The Community is a body that fosters Greek culture in South Australia in the broadest sense. The Community also fosters the practice of the Greek Orthodox faith in South Australia. The Community does not restrict involvement in its affairs to adherents to the Greek Orthodox faith. Bleby J has outlined the evidence and findings made relating to the functioning and role of the Community. The following paragraph from the Magistrate's reasons, in which he summarised some evidence given about the role of bodies like the Community, is of particular significance:

"Among many other functions, these associations (which were more commonly referred to as 'communities') acquired land, built churches and recruited consecrated clergy of the Greek Orthodox Church, often from overseas, to minister to the spiritual needs of the members of the communities, and to provide the religious and spiritual dimension which was seen as an integral basic component of Hellenic and Orthodox culture. Each community was in the habit of arranging the recruitment of its own local clergy who, upon appointment, were recognised and treated as being employees of that community for the duration of their appointments, and were subject to the directions of its officers in their ministrations, subject however to the personal obligations that came with their consecration and the priestly nature of their employment. These aspects of the organisation of the orthodox churches were pointed up again and again in the evidence."

10 Two significant points emerge from this passage, and from the reasons of Bleby J on this topic. The first is that the Community, like other bodies active in the Greek community in Australia, fostered the practice of the Greek Orthodox faith by, among other things, providing churches for the use of the Orthodox Church. In this and in other respects the role of the Community appears to have been to facilitate and to encourage the practice of the Orthodox faith. Appreciating this helps one understand the role of the Community in the dealings with the Respondent. On the other hand, as the Magistrate also points out, there was an established practice of such communities recruiting and employing ordained priests. This material might suggest that the role of the Community was no more than that of a substantial supporter or sponsor of the Orthodox Church. On the other hand, the history of employing ordained priests indicates that there was also a history of contractual relationships being entered into between bodies like the Community and Ministers of religion. One cannot approach the present case on the basis that a contract of employment between the Community and a Minister of religion was, as a matter of history or practice, something unknown or contrary to local practice.

11 Another matter of significance is the part played by the Community in encouraging the Respondent to come to Australia. As Bleby J explains, the Respondent was approached by the then President of the Community, and by the President of a similar Victorian community. That latter person was also President of an existing Federation of Greek communities. Assuming that the President of the Community was acting for the Community in entering into these arrangements with the Respondent, there is no particular reason to infer from this conduct that there was an intention that there be a contract between the Community and the Respondent. The approach made to the Respondent, that resulted in him coming to Australia, was made on behalf of and in the interests of a number of Greek communities in South Australia, Victoria and New South Wales. The involvement of the Community, through its President, was consistent with its general role in the life of the Greek community, and with its interest in fostering the cultural and religious life of the community. It is relevant that the approach to the Respondent was an invitation to come to Australia to be Archbishop of an Orthodox Church. My impression is that on the basis of the evidence one can define that Church no more precisely than to say that it is defined positively as a Church of the Orthodox faith and negatively by its rejection of the authority of the Orthodox Archbishop of the time who was based in Sydney.

12 The point I make is that the Community was not acting entirely on its own behalf. It was acting in the interests of a number of Greek Orthodox communities, and these communities envisaged the formation of an Autocephalic Greek Orthodox Church in Australia. As the Magistrate explains, that never came about.

13 In brief, to the extent that the Community was involved, it participated with and on behalf of others in bringing the Respondent to Australia to take up a position, not as an officer of the Community, and not solely for the Community. It was hoped that the Respondent would become Archbishop of a Church yet to be formed. Quite apart from that, it was envisaged that the Respondent would minister to a number of communities that are part of what I have described as a local Orthodox Church. In acting as it did the Community acted consistently with its promotion of Greek culture and of the Orthodox faith. It was not playing a part which leads to any presumption or inference that it was entering into a contract with the Respondent or that it would be the employer of the Respondent, although the fact that it employed priests could support an inference that it did intend to enter into a contract and to become an employer.

14 In the light of that background, the Magistrate's findings about what took place at the meetings in Adelaide appear to me to be equivocal when considering whether or not those findings give rise to an inference of an intention to enter into contractual relations. I put it this way because there is no suggestion that, at the time, either party expressly alluded to that matter. Admittedly, as the Magistrate said (p 134):

"... The applicant gave evidence that he believed from the time he first entered into his agreement that he was engaging in a contract of employment, and further believed that, in the absence of an express agreement on any particular point, he would be accorded the same treatment and terms as were accorded by the various individual communities to the priests and bishops whom they employed. ... "

15 But this is evidence given long after the event, and evidence about a belief, as far as I can tell, never expressed at the time. I do not use that in an adverse sense against the Respondent's case. I merely make the point that the Magistrate had to draw an inference as to an unexpressed intention, the inference being drawn on the basis of what transpired at the time.

16 To my mind, whatever was to be the relationship between the Community and the Respondent, it was to be expected that the persons who encouraged the Respondent to come to Australia, or if not them, some representatives of the local Greek community, would ascertain the remuneration that the Respondent sought if he were to remain in Australia, would ascertain other support that he would require, and in particular would wish to clarify the relationship between the Respondent as Archbishop, the local Orthodox church and the local communities. In his reasons Bleby J explains why this is so.

17 In considering the inference to be drawn from the discussions in Adelaide, it is also relevant that the Respondent was not providing services to the Community, but to members of the local Greek Orthodox church. The role of the Community was to facilitate the availability of the Respondent to the local church, just as a sponsor of a community organisation might help that organisation locate, recruit and meet the costs of employing a key employee. The discussions, and the financial arrangements referred to, are consistent with the view that the Community was, in effect, offering to provide a subsidy to the local Orthodox Church to make it feasible for the Respondent to take up a position with the local Orthodox church.

18 The Magistrate seems, to some extent, to have based his conclusion that there was a contract of employment upon his acceptance of the Respondent's evidence (pp 32-33). He also relied upon the fact that the discussions got down to details (p 29). But, as I have said, to my mind this feature of the discussions is equivocal. His conclusion that there was a contract of employment with the Community (pp 33-34) does not grapple with the question of why the Community would enter into a contractual relationship with the Archbishop when his arrival in Australia, and the discussions about the future, were premised upon the Respondent assuming a role as Archbishop in a yet to be established church, and in a position which would depend upon the support and agreement of other Greek communities. Nor does it allow for the fact that the occurrence of detailed discussions, and the provision of financial support, were equivocal, in the sense that they are readily explicable on other bases. A little later, referring to the later discussions in Melbourne, the Magistrate said (p 40):

"In the meantime there had to be some agreement to allow the applicant to live and work in Australia, which defined his role, functions and duties and which provided at least the minimum practical arrangements for his subsistence and support. Whatever contract or arrangement was agreed between the parties - and it is worth again stressing that they worked, and by and large amicably, under that contract and arrangement for near a quarter of a century thereafter - arose from the course of the discussions in the Adelaide meeting, not the Melbourne one. After the former meeting was over (and weeks before the Melbourne one had even convened), there was a complete and binding agreement (and leaving aside for the moment the nature of that agreement) between the applicant and the SA Community which was to subsist at least until other and more formal arrangements had been made with the other communities and agreed by the principal parties. ..."

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

19 Bleby J has concluded that the Magistrate did not consider as a distinct issue whether it is to be inferred that the parties intended to enter into a legally binding arrangement.

20 Having read the Magistrate's reasons with care, I have reached the same conclusion. In particular, at no stage in his reasons have I identified a consideration of the question of whether, bearing in mind the background to the discussions in Adelaide, and the basis upon which one should consider the question in relation to a Minister of religion, there are grounds for inferring that it was the intention of the Community and the Respondent to enter into a binding contractual relationship. In expressing the issue that way I do not mean to imply that there could be a contract only if each of them adverted to the issue of a contractual relationship. What I mean is that one must consider whether each of them intended a relationship that was binding in law, or, more accurately, whether it should be inferred on the basis of their conduct and what they said that they are to be taken as having so intended. To my mind, having read and re-read them, the Magistrate's reasons are expressed as if the issue in his mind was whether there were detailed discussions about remuneration and financial support, and as if he assumed that if there were such discussions, they necessarily gave rise to a binding contract, assuming that a Minister of religion could in law be regarded as an employee. That latter issue seems to have pre-occupied the Magistrate. I find no consideration of the matters referred to by Windeyer J in the extract from his reasons set out above.

21 The question of whether a contract arose is to be decided by reference to discussions that took place in Adelaide, as the Magistrate found. Sometimes it is necessary to consider later conduct of the parties, and things done pursuant to the suggested contract, to enable one properly to characterise the nature of that contract: see Connelly v Wells (1994) 55 IR 73. But in the present case the basic issue is whether there was an intention to enter into contractual relationships at all. To the extent that later events are relevant to that question, I agree with the analysis of Bleby J. I mention one or two matters. The fact that payments appear to have been made by the Community to the church, rather than to the Respondent, argues against rather than for an existence of a contract between the Community and the Respondent. The fact that the Community made PAYE tax deductions does, I think, assist the Respondent, but as Bleby J points out there are other explanations for that. The fact that the Respondent ministered to a number of communities and different churches seems to me to argue against the conclusion that the Magistrate reached.

22 I have also considered the reasons of the single Judge of the Industrial Relations Court, and of the Full Industrial Relations Court. It seems to me, with respect, that in those reasons there is again evidence of an assumption, or unduly ready conclusion, that the making of detailed arrangements between the Community and the Respondent points towards the existence of a contractual relationship. It may be that the heavy emphasis in the submissions for the Community on the proposition that a Minister of religion cannot in law be an employee is an explanation for the approach taken below. The argument may well have been pitched on a basis that implied that if it failed, there was no real obstacle to the conclusion that there was a contract and that the Respondent was an employee.

23 I note that the single Judge of the Industrial Relations Court rejected the submission that "a Minister of the Church cannot in law be an employee" and said that the issue is "whether he has demonstrated that relationship existed", but then moved almost immediately to consider whether the agreement between the Respondent and the Community was a contract of service. The question of whether there was a binding agreement at all seems to have been passed over (p 18).

24 In the Full Industrial Relations Court the Senior Judge carefully summarised the Magistrate's findings, and in substance took the approach that these findings were reasonably open to him. But again, I cannot find specific consideration of the issue of contractual intent, although that issue may underlie some of the discussion in the Judge's reasons (at pp 11-12). In particular, the Senior Judge refers to the fact that the Community was an employer of priests. The Senior Judge says that he could not find any evidence that there was to be any fundamental difference in the nature of the legal relationship between the Respondent and the Community, compared with the Community and other clergymen. I agree that that is relevant to the drawing of an inference that there was an intention to enter into a legally binding relationship. But the Senior Judge's conclusion that the Magistrate's decision should stand is expressed in terms that the Magistrate's decision was based on material findings of fact, which findings were reasonably open to him, and should not be disturbed on appeal. The difficulty that I have identified is that the Magistrate does not appear to have addressed a critical issue. It is not clear to me, with respect to the Senior Judge, that he has adequately addressed this issue either.

25 In her reasons, Judge Parsons refers to the question of whether the relationship between them was "intended to create a contract enforceable in law". She refers to a number of the relevant decisions. She refers to a submission advanced for the Community that the Magistrate had wrongly characterised the initial meeting in Adelaide as resulting in a binding agreement. After referring to the Magistrate's findings as to the meeting in Adelaide, and to the evidence given before the Magistrate, she says:

"The primary findings about the Adelaide meeting, upon which the Magistrate drew certain inferences as to the existence of a legally enforceable contract between the appellant and the Respondent, were based on his assessment of the witnesses and his acceptance of the Archbishop's evidence."

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

26 In all the circumstances I am forced to conclude that the interests of justice require that this Court consider the question of whether it should be inferred that the intention of the parties was to enter into contractual relations. I am reluctant to do so for obvious reasons. This is the third appeal. The inference is one of fact, although affected by the legal principles identified by Bleby J. The Respondent has been successful at three different stages in a specialist court. The issue is one on which I would normally give considerable weight to the views of the court below. If the only issue now raised was a challenge to an inference reached on a correct legal basis, I would be most reluctant to depart from the conclusion of the court below, for the reasons indicated. However, a careful reading of the reasons of the Magistrate, and of the Judges of the Industrial Relations Court, has led me to conclude that the critical issue of whether it is to be inferred that the parties intended to enter into legally binding arrangements has not been addressed by the Magistrate, and has not been addressed in the subsequent appeals.

27 For those reasons it is necessary for this Court to consider the issue afresh, regrettable as that may be.

28 On that aspect I have nothing to add to the reasons of Bleby J. I agree that, taking into account all of the circumstances, the proper inference to be drawn is that it was not the intention of the parties to enter into binding legal obligations. The Magistrate should have concluded that there was no contract between the Community and the Respondent. The claim should have been dismissed.

29 For those reasons I would extend the time within which to apply for leave to appeal to 7 March 2000; grant leave to appeal; order that the appeal be allowed; order that the decision of the Full Industrial Relations Court be set aside and in lieu thereof order that the order of the Industrial Magistrate as varied by the single Judge of the Industrial Court be set aside and that the applicant's claim for payment in lieu of annual leave and long service leave be dismissed.

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

31 I refer to the observations of Perry J in York Civil Pty Ltd v Workers Compensation Tribunal & Anor (unreported) [1999] SASC 173 at pp12-14 with which the other members of the Court, Prior J and myself, agreed. These observations remain my view as to the jurisdictional question. The Courts below not only had the power to decide whether the respondent was an employee of the appellant, they had the power to decide it conclusively: see also General Assembly of Free Church of Scotland & Ors v Lord Overtoun & Ors; Macalister & Ors v Young & Ors [1904] AC 515 per Lord Lindley at p702 and Selamis v Workcover Corporation & Ors (1998) 200 LSJS 124 per Lander J.

32 It may be suggested that views expressed by Bray CJ in The Queen v Allan; Ex Parte Australian Mutual Provident Society (1977) 16 SASR 237 at pp240-242 and by King J at pp255-257 are to the contrary. It is unnecessary to consider whether that is so and if it is, which view should now prevail, as I am content to grant leave to the appellant to bring the appeal for the reasons given by the Chief Justice.

33 I agree with the Chief Justice and Bleby J that the appeal is to be decided upon the application of the law of contract and that there is no reason in law why a minister of religion, including a person holding the office which was held by the respondent, may not be a party to a contract of service and therefore an employee or former employee with the consequence that the Industrial Relations Court could make an order with respect to long service leave under s13 of the Long Service Leave Act 1987. I agree with the reasons expressed by Bleby J in that regard. I also agree that there are, in essence, two issues to be resolved: was there an intention on the part of the parties to enter into a contract of service and, if so, is the contract between the parties one of service thereby creating the relationship between them of employer and employee?

34 Where I differ from the other members of the Court is that I think both issues should be resolved in favour of the respondent.

35 Usually an intention to enter into a contractual relationship is not actually expressed by the parties to an arrangement but may readily be inferred from the circumstances.

36 It seems to me that the issue of whether the parties intended legal relations assumed little, if any, direct prominence in the courts below and only moderate prominence before us. The learned Magistrate, Judge McCusker and the Senior Judge do not refer to the matter directly. Judge Parsons refers to the matter only briefly. It is likely the reason for that lack of prominence is that the focus was on whether a person of the calling of the respondent could be an employee.

37 It is to be expected that the issue of whether the parties intended legal relations was either subsumed in the consideration of that issue at each of the three stages in the Industrial Relations Court or it was accepted that the necessary intention was present. Consequently, I do not think such a fundamental matter should decide the outcome of the case at this stage, which is a third appeal.

38 However, as the other members of the Court take a different view, I express my own conclusion about the matter.

39 Shortly I address the question of whether the nature of the arrangement between the parties was a contract of service and in doing so I mention features of the evidence before the learned Magistrate. Those features suggest that the parties intended to enter into legal relations. The nature of the arrangement was unusual, namely the provision of spiritual and pastoral services for members of the appellant and, it would appear, anyone else who wished to receive them. However, the engagement of the respondent was primarily for the benefit of the members of the appellant. The discussions which led to the completion of the arrangement covered types of matters which usually form the essence of a contract of service, namely salary, leave and the services to be provided. It also provided for a residence to be available to the respondent. It is to be expected that the parties wanted to establish binding arrangements. I think the circumstances of the discussions between the parties and the nature of their arrangement which involved the respondent committing himself to the service of the appellant, and to some extent to the communities, its members exclusively and indefinitely for financial benefits, permits the inference that they intended legal relations. I can see no reason to doubt that the respondent discharged the onus cast upon him in this regard.

40 Whether the parties entered into a contract of service is to be determined from all of the circumstances with due consideration to the indicia which point in favour of and against such a conclusion: The Queen v Allan; Ex Parte Australian Mutual Provident Society per Bray CJ at p248:

"It seems to me, then, that at the present time there is no magic touchstone. The Court has to look at a number of indicia and then make up its mind into which category the instant case should be put. It is a question of balancing the indicia pro and con; cf. Sykes and Glasbeek, Labour Law in Australia (1972) p.14. But the power of control over the manner of doing the work is very important, perhaps the most important of such indicia."

This approach was expressly approved by the Privy Council in the same case on appeal: Australian Mutual Provident Society v Chaplin & Anor [1978] UKPC 7; (1978) 52 ALJR 407 at 408.

41 At the forefront of consideration of this aspect of the appeal, there are two matters of significance. The first is that the Industrial Relations Court at three levels has consistently reached the same conclusion. The Court is a specialised court entrusted with the jurisdiction to decide this issue and has considerable experience in the weighing of indicia in determining whether a person is an employee. The conclusion of such a Court should not be overturned except in a clear case. The second matter is that upon considering the various indicia, it must be kept in mind that this is an unusual case. The factors which point one way or the other in determining the nature of a contractual relation regarding the provision of services in the workplace may not have the same obvious significance when considering the nature of the relationship between an Archbishop and the community which he serves. Another matter of significance is the history in this State of the appellant and its provision to the community of religious facilities. The learned Magistrate, in a passage of his reasons for judgment adopted by the Senior Judge of the Full Industrial Relations Court, after relating the history of the Greek Orthodox Church in Australia and communities, said:

"Among many other functions, these associations (which were more commonly referred to as 'communities') acquired land, built churches and recruited consecrated clergy of the Green Orthodox Church, often from overseas, to minister to the spiritual needs of the members of the communities, and to provide the religious and spiritual dimension which was seen as an integral basic component of Hellenic and Orthodox culture. Each community was in the habit of arranging the recruitment of its own local clergy who, upon appointment, were recognised and treated as being employees of that community for the duration of their appointments, and were subject to the directions of its officers in their ministrations, subject however to the personal obligations that came with their consecration and the priestly nature of their employment. These aspects of the organisation of the orthodox churches were pointed up again and again in the evidence.

The communities also organised the cultural, social and sporting lives of their members, and were one of the most important elements in the promotion of knowledge and understanding of that culture as Australian society grew in its size, variety and sophistication. It is significant to note that the communities were not exclusively dedicated to religious affairs or purposes, and some, at least, of the individuals who composed them did not necessarily share the full range of religious values and ecclesiastical practices of the church itself."

42 The Senior Judge, correctly in my view, regarded this history as setting the scene for the issues which had to be decided and he noted:

"It seems apparent that these associations or 'communities', of which the appellant is one, provide a range of social and cultural services to their members and engage, where necessary, specialists so to do. One of those services is to provide for the spiritual well-being of their members and significantly it is common ground between the parties that for this purpose it employs priests of the Greek Orthodox faith."

43 Also, it is necessary to have regard to the matters of history mentioned by Bleby J and, in particular, the split with the Archdiocese of Sydney, the issue of removing control from him and the desire of the various communities, including the appellant, to control their own affairs, the formation of the Federation of Greek Communities, and the appointment of the respondent. I am grateful for his summary which I need not repeat.

44 In my view, there are a number of indicia which establish a contract of service. The appellant, with support from the Federation, arranged for the respondent to come to Australia to serve as Archbishop. He left his living in the United States of America and accepted the role in this country. I do not think it is a matter of great significance that the approach was made by the appellant also on behalf of the other communities.

45 At the outset there was discussion and then agreement about salary and other benefits. According to the respondent, the evidence of whom was accepted, it was accepted at a general meeting of the Federation in Victoria that apart from salary, "they would give me other things that the people who are employed would get and if I fell sick they would take responsibility". At the meeting of the Federation in Melbourne on 19th April 1970, and also by the appellant in committee in Adelaide, it was agreed that the respondent would be paid similarly to priests and that "I [would] be one of their employees". At the meeting in Melbourne the offer to the respondent was that he be the spiritual leader and be paid "relative" remuneration, annual leave, long service leave "and anything else that the Australian law is in favour of". The amount of the annual salary was fixed at $15,000 with payments received for performing sacraments and gifts to be set off against that amount if they exceeded the salary. According to the respondent, these offers were made by the Vice President of the appellant. The offer was accepted. Also, it was agreed that the appellant would provide a residence for him. The evidence establishes the appellant paid the salary until at least the middle of the 1980's and probably thereafter although there may have then been some contribution from other communities. Income tax was deducted on a regular basis.

46 In his evidence, which apparently was also accepted, Mr Manos, the President of the appellant at the time, said that the respondent devoted his energies to the activities of the church for the communities both in Adelaide and interstate.

47 It may be seen that this is the language normally associated with a contract of service. Furthermore, the appellant paid the salary of the respondent on a weekly basis from which it deducted PAYE tax even when the respondent was in the United States of America.

48 I turn to the matter of control. It is not the exercise of control which is necessarily significant, but the right of an employer to exercise it: Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 per Dixon J at p404, Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.

49 Given the unusual nature of the services provided by the respondent compared with what is usually seen in the workplace, it is to be expected that there would be little, if any, occasion for control of the respondent in the discharge of his spiritual or pastoral duties. He provided a service to the appellant which did not admit of control in the usual sense that an employer would exercise control over an employee, such as a tradesperson or office worker. His task was to provide the service to the appellant and to control and direct the religious life of the priests and the services provided by them. In a case of this nature, it is to be expected that control, in the usual sense, would not be a matter of significance.

50 However, there were occasions when the appellant, through an office bearer, did exercise control of the respondent in relation to his duties. According to Mr Manos, they appear to have been mainly with respect to the respondent's disciplining of priests. According to the respondent, there were times when the appellant interfered in that activity. At one time he was prevented from disciplining priests. He said that in 1989 the appellant forced him to reinstate two bishops whom he had dismissed. On one occasion the appellant directed him to ordain a priest whom he thought was not suitable. He said that he was required to perform services at churches throughout South Australia and that the appellant decided which churches he would attend on a particular day. He said that on many occasions he preferred to be at a particular church but had been ordered by the appellant to attend another church and he complied with that direction. According to the respondent, when he was invited to perform a religious function interstate, he was obliged to seek permission from the appellant which, on occasions, was refused. On occasions he was told not to interfere with the practices of some of the priests. When the respondent wanted to return to the United States of America for a short period in 1975, he negotiated a paid leave of absence with the appellant.

51 Furthermore, these matters establish that if the respondent had failed to discharge his duties at all, or discharged them in a spiritually inappropriate or unseemly manner, he would have been subjected to direction by the appellant. The evidence of Mr Manos established that the appellant could give directions about matters which an archbishop may have previously regarded as matters of orthodox faith and tradition.

52 The learned Magistrate, having reviewed the evidence, concluded that a contract of service had been established. As I have said, the other members of the Industrial Relations Court, at various levels, saw no reason to interfere with that finding. I think it is open on the evidence. The matters I have mentioned justify such a conclusion in all the circumstances. There is no sound reason for this Court on appeal to interfere.

53 I would grant leave to appeal for the reason already mentioned, but I would dismiss the appeal.

54 Until 12 December 1993 the respondent, for more than twenty years, had been the Archbishop of the Autocephalous Greek Orthodox Church in Australia. On that day he ceased to be Archbishop. He subsequently brought proceedings in the Industrial Relations Court against the appellant. His claim was twofold: for a pro rata payment in lieu of accumulated annual leave, and for a pro rata payment for accumulated long service leave, calculated in both cases to the date he ceased to be Archbishop. The principal issue before the Industrial Magistrate and on the three appeals which have followed has been whether the respondent was an employee at common law of the appellant. The Industrial Magistrate who heard the claim held that he was. A single judge of the Industrial Relations Court dismissed an appeal from that decision. The Full Court of the Industrial Relations Court dismissed an appeal from the single judge.

55 The appellant now appeals to this Court. It claims that it has an appeal as of right. By way of alternative, the appellant made an oral application at the hearing of the appeal for an extension of time in which to seek leave to appeal and for leave to appeal against the decision of the Full Court of the Industrial Relations Court. In any event, the appeal was fully argued before this Court.

56 Section 191 of the Industrial and Employee Relations Act 1994 ("the Industrial Act") relevantly provides:

"(1) An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if - (a) the appeal is based on an alleged excess or deficiency of jurisdiction; or (b) the Supreme Court grants leave to bring the appeal. (2) The appeal must be heard by the Full Court of the Supreme Court. (3) On the hearing of an appeal under this section, the Full Court of the Supreme Court may - (a) confirm, quash or vary the judgment, order or decision appealed against; or (b) refer the judgment, order or decision back to the Court with directions the Full Court of the Supreme Court considers appropriate. (4) An application for leave to appeal under this section must be made within 14 days of the date of the judgment, order or decision against which the leave to appeal is sought."

57 It follows that whether the appellant has an appeal as of right depends on whether the appeal is "based on an alleged excess or deficiency of jurisdiction".

2.1 Jurisdiction of the Industrial Relations Court

58 The claim in respect of annual leave was based on an alleged contract of employment. It was not based on any statutory claim. Although the cause of action arose before the commencement of the Industrial Act (8 August 1994), clause 8 of Schedule 1 of the Act provides that the jurisdiction of the Court under the Industrial Act extends to causes of action that arose before the commencement of the Act. Jurisdiction was conferred on the Industrial Relations Court by s 14 of the Industrial Act:

"14. The Court has jurisdiction to hear and determine monetary claims of the following kinds - (a) a claim for a sum due to an employee or former employee from an employer or former employer under - (i) this Act, an award, enterprise agreement or contract of employment; or (ii) the Commonwealth Act, or an award or agreement under the Commonwealth Act; or (b) ...."

59 For the purposes of the Act "employee" is relevantly defined as meaning a person employed for remuneration under a contract of employment. The question in respect of this part of the claim is whether a conclusion that the respondent was an employee goes to the jurisdiction of the Court or whether it was merely a question to be determined by the Court in the exercise of its jurisdiction.

60 The jurisdiction of the Court in relation to the claim under the Long Service Leave Act 1987 (the LSL Act) is expressed somewhat differently. At the time when the proceedings were commenced, s 13 of the LSL Act read:

"13. (1) Subject to this section, where - (a) a worker is not granted long service leave in accordance with this Act; or (b) a worker, or the personal representative of a deceased worker, does not receive a payment to which he or she is entitled under this Act, the Industrial Court may, on application under this section, order the employer (or former employer) of the worker to grant the leave or make the payment. (2) An application under subsection (1) may be made by - (a) the worker; (b) if the worker is dead - the worker's personal representative; (c) with the consent of the worker - a registered association of which the worker is a member; .... (5) The Industrial Conciliation and Arbitration Act, 1972, applies in relation to an application under this section as if the application were a claim under that Act for a sum due under a contract of service."

61 At the time of commencement of these proceedings the Industrial Conciliation and Arbitration Act 1972 (subsequently renamed the Industrial Relations Act 1972) had been repealed and replaced by the Industrial Act. The former Industrial Court had been abolished. However, clause 5 of the transitional provisions of Schedule 1 of the Industrial Act ensures that thereafter the reference in the LSL Act to the Industrial Court must be read as a reference to the present Industrial Relations Court. The provisions of s 24 of the Acts Interpretation Act 1915 also ensure that the reference in the LSL Act to the Industrial Conciliation and Arbitration Act 1972 must be taken to be a reference to the Industrial Act. (It is to be noted that s 13 of the LSL Act has since been amended to confer jurisdiction on the Industrial Relations Court and to refer specifically to the Industrial Act in subsection (5): Long Service Leave (Miscellaneous) Amendment Act 1997, No 50 of 1997, which came into operation on 21 August 1997).

62 For the purposes of the LSL Act a "worker" is defined as meaning a person employed under a contract of service. Therefore the identical question as to whether or not the respondent was an employee arose under this part of the claim as it did in respect of the claim for a pro rata payment in lieu of annual leave.

63 Whether a person is an employee at common law is a mixed question of law and fact: Rohrlach v Christianos (1980) 26 SASR 161 per King CJ at 162 - 163. That question is to be resolved by determining whether the parties were in a contractual relationship and whether, if they were, the contract is properly characterised as a contract of employment. Both those issues involve questions of mixed law and fact. A wrong decision may involve an error of law in formulating the correct legal test or in failing to pose a relevant question. The decision may be wrong because the error is one of fact alone in failing to draw correct inferences of fact from proved or accepted primary facts. There may be many reasons or a combination of reasons why an incorrect conclusion as to the status of an alleged employee is reached.

64 Against that background one must attempt to discern what alleged errors involve excess or want of jurisdiction.

65 If the error in this case is said to be an error of law, the question may have to be faced as to whether it is an error of law going to jurisdiction or an error of law made within jurisdiction. In some cases it would appear that that distinction may no longer apply.

66 The debate on that issue since the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 seems now to have been resolved for the time being in this country by holding that whilst the distinction between errors of law going to jurisdiction and errors made within jurisdiction may not be relevant for the purposes of certiorari against most administrative tribunals, it is still a relevant distinction in considering the actions of a court of law: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178 - 180; Edwards v Guidice [1999] FCA 1836; (1999) 169 ALR 89 per Finkelstein J at [105]-[106]. In other words, absent a clear parliamentary intention to the contrary, an administrative tribunal may not have jurisdiction to make errors of law but a court of law usually will. The wisdom of this somewhat artificial distinction with its possible anomalous effects on the administration of justice may be questioned. However, it is a distinction which now must be applied. The Industrial Relations Court is a court of record (s 9, Industrial Act). Although it is a court of limited jurisdiction as to subject matter, it is plainly a court of law, and would appear to have jurisdiction to make errors of law. If the distinction based on Craig's Case is correct, the same may not be true of the Industrial Relations Commission, at least in the exercise of some of its jurisdictions. Whether it has jurisdiction to decide questions of law in its reinstatement jurisdiction, in which it too may often have to decide whether a person is an employee, is a matter which it is not now necessary to decide.

67 However, I do not believe that this is a case where it is necessary to dwell on the distinction between error of law made within jurisdiction and an error going to jurisdiction. The court plainly had jurisdiction to find the facts necessary in order to decide whether the contract of employment existed. It had jurisdiction to draw inferences of fact, even if they were inferences which an appellate court might not draw. It had jurisdiction to decide questions of law relevant to the conclusion as to whether the relationship was one of employment. The question is whether the exercise of its jurisdiction to entertain the respective claims, if it reaches a wrong conclusion as to whether a person is an employee, amounts to an excess or deficiency of jurisdiction. The question is clearly stated in the oft quoted passage from the speech of Lord Lindley in Free Church of Scotland v Overtoun (Lord) [1904] AC 515 at 702:

"The distinction between an erroneous decision by a body having jurisdiction to deal with a particular subject-matter, and a decision by a body having no jurisdiction over the matter decided, is familiar to all lawyers, and must be steadily borne in mind in this case."

68 However, it is a distinction which is not always easy of application, as shown by the narrowness of the majority of the High Court in Public Service Association of SA v Federated Clerks' Union of Australia, SA Branch [1991] HCA 33; (1991) 173 CLR 132. There appears to have been no disagreement on the principles to be applied. The difference between the majority (Brennan, Dawson and Gaudron JJ) and the minority (Deane and McHugh JJ) appears to be in the application of those principles to the circumstances of that case.

69 That case involved an appeal from this Court on whether certiorari was available to quash a decision of the then Industrial Commission in the light of the provisions of s 95 of the then Industrial Conciliation and Arbitration Act 1972. That section provided that no award, order or proceeding of the Commission could be challenged, appealed against, reviewed, quashed or called in question "except on the ground of excess or want of jurisdiction". At page 142 Brennan J said:

"Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it."

70 The whole Court held that "excess or want of jurisdiction" did not include wrongful failure or refusal to exercise jurisdiction. That does not affect this case, however, as if there has been an error in finding that the respondent was an employee, the subsequent action of the Industrial Relations Court constitutes an excess of jurisdiction. The real question is whether the Court had jurisdiction to act in the particular way it did.

71 Deane J provided, in my respectful opinion, a helpful method of applying the distinction. At 149 he said:

"In the absence of any applicable overriding constitutional provisions, identified error of law or fact on the part of the Commission will bring a case within the exception in s. 95(b) only if it leads the Commission to purport to make an award or order or to entertain a proceeding which is of a nature which it had no authority to make or entertain in the circumstances of the case. In other words, 'jurisdiction' is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd. v Foreign Compensation Commission. It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them."

72 However, even that passage begs the question which arises in this case as to whether the determination that the respondent was an employee is an issue involved in the proceedings or whether it goes to the Court's authority to entertain the case.

73 McHugh J at 164 noted that it was not uncommon for superior courts to use the phrases "want of jurisdiction" and "excess of jurisdiction" interchangeably. He continued:

"Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal."

74 In other words, if the conditions which define the ambit of the powers and authority of the court can be defined, and if a breach of those conditions can be demonstrated, this Court, in this case on appeal, or on judicial review, can intervene on the ground of excess or want of jurisdiction.

75 The High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 AWR 490 at [28] referred to such conditions as "jurisdictional facts":

"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) [of the Development Act 1993 (SA)] forbids the relevant authority granting a provisional development plan consent to a 'non-complying' development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a 'non-complying' development, which turned upon the application of the criterion of 'special industry', was a condition upon the existence of which there operated the obligation that the Commission not grant consent."

76 The relevant jurisdictional fact in that case dictated the procedure by which the application was to be determined and by whom. In other situations it will determine whether the court or tribunal can proceed at all.

77 Further clarification and assistance as to what may be regarded as being in excess or want of jurisdiction or, in other words, what may constitute jurisdictional facts, can be found in the joint judgment of the High Court in Craig v State of South Australia (supra) at 177:

"Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, whilst acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern." (Emphasis added)

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

78 The Industrial Relations Court undoubtedly has jurisdiction to decide whether a person is an employee or not. It has jurisdiction to embark on and to conduct the necessary inquiry for that purpose. The exercise of its power - to decide the terms of the contract concerning annual leave, whether there has been a breach of the contract, and whether the facts give rise to a statutory entitlement to long service leave - is nevertheless dependent upon its reaching a conclusion that the claimant is an employee. In that sense the jurisdiction of the court cannot properly be exercised unless such a finding is made.

79 That finding is not one which is committed to the discretion or opinion of the court. It is one which must be made upon admissible evidence in accordance with principles of law that are well known, if difficult to apply. It is one which, in my opinion, belongs to the "less obvious" class referred to by the High Court in Craig. It will lack authority to determine either part of this dispute if it makes a wrong decision that the claimant is an employee.

80 Expressed in a slightly different way, one of the conditions which defines the jurisdiction of the Industrial Relations Court under paragraph (a) of s 14 of the Industrial Act is that the claim, whether for benefits due under an award, an enterprise agreement or a contract of employment, is made by an employee. Likewise, in respect of long service leave, a defining condition of the court's jurisdiction is that the subject of the claim is a worker, or in other words, an employee. An appropriate finding as to that matter is what the Court described in Craig's Case as "an essential condition of the exercise of the jurisdiction". When that requirement is not satisfied, the court has no jurisdiction to entertain the claim, even though it is the kind of matter which the court is able to decide. It is an objective element which must be satisfied before the court can proceed to deal with the other matters it is called upon to decide.

81 This approach accords entirely with that taken by King J in R v Allan; Ex parte AMP Society (1977) 16 SASR 237. That case involved a claim for unpaid long service leave alleged to be due under the Long Service Leave Act 1967 as amended. The relevant parts of s 12 of that Act were as follows:

"12. (1) Subject to subsection (2) of this section, where the Industrial Court of South Australia is satisfied that a worker or a deceased worker had not been granted, or had not received payment in lieu of, the whole or any part of the long service leave to which he was entitled under this Act the court may, on the application of - (a) the worker; (b) in the case of a deceased worker, the personal representative of the deceased worker; or (c) a registered association within the meaning of the Industrial Conciliation and Arbitration Act, 1972, of which the worker is a member, by order direct that the leave be granted or the payment made by the employer or former employer of the worker liable under this Act to grant the leave or make the payment, as the case may be."

Subsection (2) is not relevant for present purposes.

82 It can be seen that subsection (1) of s 12 of the 1967 Act, although not identical, had a remarkably similar structure to that of s 13(1) and s 13(2) of the LSL Act. The principal issue in that case was whether the claimant for long service leave in the Industrial Court was an employee of the prosecutor. One of the issues in this Court[1] was whether, having held that the claimant was an employee, the Industrial Court was acting in excess of its jurisdiction in proceeding with its claim. This Court unanimously, but for slightly different reasons, held that such a conclusion did go to the jurisdiction of the court.

83 King J noted that the employer-employee relationship was made the basis of a number of heads of jurisdiction conferred by s 15 of the Industrial Conciliation and Arbitration Act 1972. That section was cast in similar style to that of s 14 of the Industrial Act to which I have referred. His Honour considered that the expression "the worker" in s 12 of the Long Service Leave Act 1967 ought also to be construed as going to the court's jurisdiction. King J continued (at 256):

"This conclusion is strengthened by a consideration of that expression where it appears in the section for the second time. The portion of the section in which the expression appears for the second time provides that the Court may make orders on the application of 'the worker, a personal representative of a deceased worker or a registered organization.' Here the expression is used to describe one of the classes of person who may make the application. If the applicant does not answer the description, there is no valid application and hence as it seems to me, no jurisdiction: The King v. The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd [1947] HCA 32; (1947) 75 CLR 361. This consideration strengthens the argument for construing the expression where it appears in the earlier part of the section as jurisdictional also. Otherwise there would be the strange result that a decision of the Industrial Court that a person for whom leave or payment in lieu of leave is sought, is or is not a worker, would go to jurisdiction and be reviewable by this Court if that person were the applicant but not if the applicant were a personal representative or registered organization. In my opinion, the jurisdiction of the Industrial Court depends upon the person for whom leave or payment is sought being a worker."

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

84 Bray CJ, with whom Hogarth J agreed, referred to the difficulty associated with determining in such cases whether certiorari for excess or want of jurisdiction was available. He decided the issue on the basis that s 12 of the 1967 Act specified the categories of possible applicants, and that that specification "confine[d] the jurisdiction of the Industrial Court to the hearing of applications instituted by applicants falling within one of the three specified categories... I think the question whether he fell into any of those categories was a preliminary or collateral question necessary to be answered in the affirmative in order that the Court should have jurisdiction to entertain the proceedings" (at 242).

85 In my opinion there is nothing in any of the later cases to which I have referred which could in any way qualify the approach taken by Bray CJ and Hogarth J in The Queen v Allan. There is no material difference between the section under consideration in that case and s 13 of the LSL Act. It follows that, even based on the narrower view taken by Bray CJ and Hogarth J, if the decision of the Industrial Magistrate that the respondent was an employee is wrong, then the Court has acted in excess of its jurisdiction, at least in respect of the claim for long service leave.

86 The same can be said by way of a slightly more circuitous route in respect of the claim for annual leave. Section 14 of the Industrial Act does not specify who may bring the claim. It merely speaks of "a claim for a sum due to an employee....". However, s 180 of the Industrial Act, in relation to proceedings before the Industrial Relations Court, relevantly provides:

"180. (1) A monetary claim may be made on behalf of a claimant by an association. (2) .... (3) A claim relating to money that should have been paid to or for the benefit of a person who is now dead may be made by the personal representative of the deceased person or a beneficiary of the deceased person's estate."

87 Reading the two sections together, a "claimant" can only be an employee or former employee. By parity of reasoning it follows that in this case the respondent only had standing before the Industrial Court and the Court could only entertain his claim for annual leave if he was an employee.

88 Even if the broader approach taken by King J in The Queen v Allan is adopted, it appears to me that there is nothing in either the PSA Case or in Craig's Case which would require any qualification to that approach. Indeed, it would seem that an analysis of those cases suggests that they only confirm the correctness of the approach taken by King J.

89 Two recent decisions of this Court were called in aid by the respondent. In my opinion both are distinguishable.

90 York Civil Pty Ltd v Workers Compensation Tribunal [1999] SASC 173 was a decision of the Full Court on an application for judicial review against the Workers Compensation Tribunal where such proceedings could only be brought "founded on an alleged excess or want of jurisdiction" (Workers Rehabilitation and Compensation Act 1986 s 88I). The question at issue was whether the Workers Rehabilitation and Compensation Corporation, having paid a large amount of compensation to a claimant for a work injury, was entitled to recover that sum from the plaintiff, it being alleged that that company was a person "other than the employer" of the worker within the meaning of s 54(5) of the Workers Rehabilitation and Compensation Act. Section 54(5) conferred on a person who had paid compensation a right to recover the amount paid against "a person other than the employer" where a right of action exists against such a person for damages in respect of the disability suffered by the worker. This Court had no hesitation in holding that a finding by the Workers Compensation Tribunal that the appellant was not the employer of the worker was not a matter which went to the jurisdiction of the Tribunal. It was described as being the very question to be decided by the Tribunal. In that case, the jurisdiction of the Tribunal had properly been invoked by a body which had paid compensation to the worker. That the appellant was not the employer of the worker was just one of the matters which had to be established in order for the claim to succeed. The distinction between the present case and York Civil is that in York Civil the question of whether the appellant was the employer of the worker was plainly not a matter which was conditional to the exercise of the jurisdiction by the Tribunal in determining whether the claim should succeed.

91 The other case, also relied on by the Court in York Civil, was a decision of Lander J in Selamis v WorkCover Corporation (1998) 200 LSJS 124. That concerned an entitlement to worker's compensation. The applicant was a truck driver employed by a company carrying on business in South Australia. He was injured in Western Australia in the course of his employment. As well as having to prove that the disability arose out of or in the course of his employment, s 6 of the Workers Rehabilitation and Compensation Act required him to prove that his "usual place of residence" was in South Australia at the relevant time. The Workers Compensation Tribunal held that it was not. His application for judicial review of that decision was struck out on the ground that in making a decision on that question the Tribunal was not acting in excess or want of jurisdiction (Workers Rehabilitation and Compensation Act s 88I).

92 It was plain from the exhaustive review of the Act conducted by Lander J that the jurisdiction of the Tribunal was invoked when a person "with a direct interest in a review or decision" (made in that case by the Corporation) lodged a notice of dispute. A reviewable decision included a decision on a claim for compensation (s 89A), which the plaintiff had previously made. Being a person directly affected by the decision (s 90(3)), he was a person with a direct interest in the decision. It was s 90 which determined the jurisdiction of the Tribunal. In those circumstances, Lander J was, with respect, entirely correct in holding that the matter for determination by the Tribunal was a matter for determination within the exercise of its jurisdiction, and that the application for judicial review had no prospect of success. However, that is a far cry from this case where the application could only be entertained, and the jurisdiction exercised, if the respondent was an employee.

93 Accordingly, in my opinion, the appellant has an appeal as of right.

94 It is therefore not necessary to consider the appellant's alternative application for leave to appeal and its application for an extension of time in which to make such application. If it became necessary, however, I would nevertheless have granted leave to appeal. Although the appellant would be seeking leave to prosecute its third appeal, the appeal does involve a significant question of some general importance as to the circumstances (if any) in which a minister of religion may be an employee. It involves questions as to whether and when an intention to enter into contractual relations should be inferred as a matter of course. As will be seen, the appellant's argument is not without some reasonable prospect of success. Although a number of the matters raised by the appellant are complaints about findings of fact in respect of which there are concurrent findings by a single Judge and by the Full Court of the Industrial Relations Court, they are, in most cases, findings by way of inference drawn from other primary findings of fact and which are not immune from attack on subsequent appeals: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. Nevertheless, those findings at three levels of judicial determination are on matters which this Court will need to consider very carefully before interfering, if it be necessary to do so. If it became necessary, I would also extend the time within which to make an application for leave to appeal. The respondent did not suggest that he would be prejudiced in any way by the extension of time. He has certainly been aware of the issues to be ventilated since this appeal was instituted.

95 In order to understand the nature of the arrangements made when the respondent came to South Australia, it is first necessary to understand the nature and structure of the various entities referred to from time to time in the evidence.

96 The appellant was but one of a number of Greek communities established throughout Australia when persons of Greek origin came to live in this country. Evidence concerning the history and development of Greek communities in Australia was given largely by Mr Manos, a witness whom the Industrial Magistrate accepted without reservation on such matters. He was President of the South Australian community from March 1969 to October 1973 and again from March 1978 to May 1985. He had practised as a lawyer and, prior to his retirement, had served approximately twenty years as a magistrate in South Australia, of which approximately ten years were as Chief Magistrate. He had taken an active part in the affairs of the Greek community for many years. The following summary from the reasons of the Industrial Magistrate is based largely on Mr Manos' evidence:

"Since the nineteenth century there have been substantial numbers of Australians professing the Greek Orthodox Faith and following Hellenic cultural values. From an early date these people combined in purposeful associations to protect and promote these values. These associations were essentially of local initiative and were for a number of decades informally structured, the classic 'voluntary associations' of the common law. In the 1920's and 30's these local associations sought and obtained registration under the laws of the states in which they existed as incorporated associations. As such, they could hold property in their corporate name and conduct their practical affairs without the need for trustees and trust arrangements. Unlike the case of a number of religious denominations in Australia, there were no church property trusts established either by statute or trust deed in respect of those parts of their affairs that dealt with religious or ecclesiastical matters."

97 Mr Manos was at pains to point out that the community itself was not a religious faith. None of the constitutions of any of the incorporated Greek communities were in evidence before the Industrial Magistrate, but they were clearly involved in a variety of community activities. Mr Manos said:

"The Greek Orthodox community constitution gives the - under its objects and so forth, it has an obligation to teach Greek to Greek children. It has social welfare obligations. It has general educative obligations to its members. It has wide obligations of assistance to newcomers and to people who are less fortunate, disadvantaged and so forth and so on. Their role included church activities, but it wasn't exclusive church activities..."

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

98 Mr Niarchos, a solicitor who had been President of the South Australian community since 1985 and its legal adviser for many years, said:

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

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

99 So it was that the Industrial Magistrate was able to conclude:

"The communities also organised the cultural, social and sporting lives of their members, and were one of the most important elements in the promotion of knowledge and understanding of that culture as Australian society grew in its size, variety and sophistication. It is significant to note that the communities were not exclusively dedicated to religious affairs or purposes, and some, at least, of the individuals who composed them did not necessarily share the full range of religious values and ecclesiastical practices of the church itself. Mr Manos was himself at pains to emphasise this point, as he was obviously concerned to ensure that people be allowed to continue in their participation in Hellenic social and cultural activities whatever their personal religion, against a background where those of strict observance, including members of the clergy, were rather more inclined to attempt to bar those characterised as non-believers from such activities."

100 The growth of an incorporated Greek community was not unique to South Australia. Other States and regions had their own communities, some being of a general nature such as that in South Australia, others being confined to much smaller community groups or towns, with a more limited range of activities.

3.2 Relationship between the Greek Orthodox Church and the communities

101 With their establishment, the incorporated communities had a heavy involvement with the religious affairs of the Greek communities. The Orthodox Church in Greece looked to the Patriarch of Constantinople as its ultimate earthly head, and below him were various archdioceses in Greece, Sydney, America and other parts of the world. However, they all owed allegiance to the Patriarch of Constantinople. Australian conditions affected the evolution of the Greek Orthodox Church in this country. Mr Manos described it this way:

"[W]hat happened in Greece, for example, is different to what happens here. In Greece, the church and the - it was really one with the community. I mean, the church ruled quite dictatorially in Greece mainly because it led the uprising against the oppression of the Turks for 400 years. So as a result the history gave it a role that we in Australia, for example, don't have. The Australian tradition, if I can call it that, of the Greeks in Australia was to be a little bit more independent, but the reason being the Greeks here had no church at all and no priest at all. Early on they established themselves at Port Pirie and other places. Out of their own labour, they built their own church or churches and then went looking for a priest, and they asked the leaders - and I assume they asked the patriarch or the archdiocese or whoever for a priest and couldn't get one. With that sort of background - 'Okay, we built our own church, we go looking for a priest and can't find one and he won't give us one' and so forth and so on, they tended to become more Australianised and more independent and wanted, I suspect, more say in what happened in their church rather than in Greece where things are fairly dictatorial, and bear in mind it's not long ago that in Greece you couldn't get other than a church marriage. There was no such thing as a registered marriage and so forth. The church had a very strong say in Greek life, and the same no doubt was originally the case here, but with evolution and such, people here were prepared to wear it."

By "registered marriage" I understand Mr Manos to have been referring to a civil marriage ceremony.

102 Because of the importance of their religion to the whole of their society it was not unexpected that the communities became the vehicles through which premises and other facilities were provided for the practice of that religion. As the Industrial Magistrate found:

"Among many other functions, these associations (which were more commonly referred to as 'communities') acquired land, built churches and recruited consecrated clergy of the Greek Orthodox Church, often from overseas, to minister to the spiritual needs of the members of the communities, and to provide the religious and spiritual dimension which was seen as an integral basic component of Hellenic and Orthodox culture. Each community was in the habit of arranging the recruitment of its own local clergy who, upon appointment, were recognised and treated as being employees of that community for the duration of their appointments, and were subject to the directions of its officers in their ministrations, subject however to the personal obligations that came with their consecration and the priestly nature of their employment. These aspects of the organisation of the orthodox churches were pointed up again and again in the evidence."

103 In the 1950's, however, friction was beginning to develop between many Australian Greek communities and the Archdiocese of Sydney. To that time, the Archdiocese of Sydney provided the spiritual leadership of the Greek Orthodox Church in Australia. Mr Manos described what happened:

"[T]o put it in a nutshell, both the priest and archbishop of that church in effect usurped the constitutional role of the community and its committee by the archdiocese priests becoming dictatorial, telling the committee that it was - for example, education was the church's function and not their function - not the community's function - and that there wasn't much role at all to play in the church for the communities unless that role was given to them by spiritual leaders, so to speak. That type of friction continued for some years, and eventually several communities in Australia broke away from the archdiocese. Adelaide was I think the first. A number of its committee were excommunicated as a result by the archbishop in Sydney, and there was chaos for quite some time, as I understand it, and eventually the Greek Orthodox Community in South Australia was able to obtain the assistance of a Russian Orthodox archbishop called Sergei.... but he was from White Russia and had left the Soviet Union. He was virtually forced to leave by the communists, and he came to Perth, as I understand it, and eventually he came to South Australia and in effect ordained priests and took over the spiritual leadership of the Greek Orthodox community in South Australia, and likewise assisted other communities in Australia who found themselves in the same boat, namely in Newcastle, Melbourne, Sydney, and there could have been others; I don't know, but the trouble was fairly widespread. There were even rumblings in Perth and other places, but they didn't take the final step that South Australia and other communities took."

104 It seems that the split came about largely by way of rejection by a number of the communities of the authoritarian attitudes sought to be imposed by the Archdiocese of Sydney, particularly under Archbishop Ezekiel. According to Mr Niarchos' evidence there was a requirement that assets be transferred to the property trust controlled by the archdiocese, and that the Church should exercise greater power over the internal affairs of the communities. Through the eyes of Mr Manos, the archdiocese considered that the Church embraced everything. He gave an example of members of the Greek community who had become Jehovah's Witnesses or followers of Islam. Children of those families were welcome in Greek community schools. The archdiocese attempted to exclude such people from Greek community schools.

105 It was against such an authoritarian regime that a number of communities revolted, including the South Australian community. The Industrial Magistrate said:

"[W]hat is significant about this earlier period is that the patterns of organisation, and of authority within the autocephalous church, had been firmly established before the applicant first arrived on the scene, and were at that stage based firmly and uncompromisingly upon the existing and registered community associations. Among these associations, the SA Community was already committed to a pattern of providing initiative and leadership on matters of common concern."

106 The religious communities involved continued to share the same beliefs and to carry out the same religious practices and rituals. They merely rejected the authority of the Sydney archdiocese over what they considered to be their temporal affairs. As the Industrial Magistrate found:

"The officers of the various incorporated communities were concerned to keep control of the affairs of their respective churches in their own hands, and were dismayed at this apparent démarche by the Ecumenical Patriarch. They were concerned that as a result of the growing authority of the patriarch they might find themselves denied the ability to nominate and appoint their own clergy, to retain control over the considerable church property that had accumulated in the hands of the communities over the decades, and which had all been contributed by the local efforts of the members of the communities...."

107 It may be for this reason that the priests of each of the churches, at least within the South Australian community, were regarded as employees of the appellant. Little evidence was led of their relationship with the appellant, no doubt because the appellant conceded from the outset that they were its employees, and according to Mr Manos, this was a requirement of the constitution of the appellant.

108 The consequence of rejection of the archdiocese was, however, that the communities had no-one to ordain those offering to serve as priests in the church or to perform other episcopal duties. This gap was filled, at least temporarily and in a part-time capacity, by Archbishop Sergei in the manner described by Mr Manos. It also meant, however, that ceremonies conducted in the churches, particularly marriage ceremonies and ordinations of priests, were not recognised by the Orothodox Church in Greece or by the Greek Government, and this was a matter of some concern to the communities involved.

109 Quite strenuous attempts were made to effect a reconciliation with the Archdiocese of Sydney through a patriarchal delegate, but those attempts failed. It was because of this and the failing health of Archbishop Sergei that someone had to be found to provide the necessary episcopal functions.

110 The number of churches forming this group of autocephalous churches was not large. When the break occurred in South Australia the Sydney archdiocese set up some four communities in metropolitan Adelaide who remained associated with the archdiocese. There were five or six autocephalous churches in Adelaide. From the early 1970's there were two in Sydney, along with churches associated with communities in Newcastle and Wollongong. There were a number in Melbourne, but shortly after the respondent's appointment, the Melbourne community withdrew from the autocephalous group. There remained a small number of locally based independent communities in Victoria some of whom joined the Federation during the respondent's episcopate.

111 It is important to realise, however, that the organised communities were not comprised solely of members who supported only one church or the other. As the Industrial Magistrate observed:

"In many, perhaps all, of the incorporated associations regular communicants of the patriarchal churches and the autocephalous churches mix on a daily basis as they attempt to organise and direct the affairs of the Hellenic cultural communities."

112 In summary, it can be said that the several community organisations, whilst steeped in the values and practices of the Greek Orthodox Church, were much more than church organisations or organisations devoted solely to the support of the church. They had become convenient vehicles for the financing and ownership of church buildings, over which they considered that they wished to retain some control, but they were essentially community organisations devoted to the support of a great many Hellenic values and traditions. They were organisations devoted to the provision to persons of Greek origin of a wide range of cultural, social, educational and sporting facilities. The services that they provided were not limited to adherents of the Greek Orthodox faith. That fact, coupled with the rejection by some of the communities of the hierarchal authority of the Patriarch in community affairs, and with the desire by the communities to retain some control over the appointment of priests and who could minister in their buildings, led to the formation of a loosely knit but identifiable autocephalous church. The physical facilities for that church had been provided by the communities. It was through that and the employment by the communities of the priests that the communities were able to influence significantly the direction which the church took. Nevertheless, it was one of the many activities or institutions which the incorporated communities supported.

113 Representatives of the communities in the various States met from time to time as a body known as the Federation of Greek Communities. This seems to have been a loose unincorporated organisation, but one which dealt with matters of common concern, particularly those of the autocephalous churches. It had no permanent executive. It appears to have met at least once a year, and one of the larger communities was designated the executive of the Federation for a period of time. The New South Wales community had been the seat of the Federation for part of the 1960's. In the late 1960's and in early 1970 the seat was held by Victoria, and thereafter by the South Australian community, throughout the respondent's episcopacy. It was because of that position that the appellant at all material times exercised significant executive authority on behalf of the Federation, in particular in relation to the affairs of the Church. Whilst it was not incorporated, the Federation did act as a voice for Greek communities in Australia and had its own letterhead. It appears not to have had its own bank account. Rather, any financial transactions on behalf of the members were conducted through the accounts of whichever community was acting as the executive.

114 The Federation was not concerned solely with religious affairs, although it was the forum in which matters of concern to the autocephalous churches were discussed. The Federation was not limited to communities who were only supporters of the autocephalous church. On the other hand, it did not represent all of the Greek communities. Shortly after the appointment of the respondent the Victorian community left the Federation, at least for the duration of his episcopacy.

3.4 The Autocephalic Greek Orthodox Church of America and Australia

115 For many years after the break with the Archdiocese of Sydney, there was no formal organisation of an autocephalous church. With the failure of the reconciliation attempt and the declining health of Archbishop Sergei, the future of the autocephalous churches became a matter of some concern within the Federation. The president of the Federation was Mr Elefantis, of the Victorian community. Mr Manos was president of the South Australian community. It was those two who were largely responsible for the initial contact with the respondent and for bringing him to Australia, with a view to his becoming the Archbishop of an autocephalous Greek Orthodox Church in Australia. He was then archbishop of "The Holy Archdiocese of the Autocephalos (sic) Greek Orthodox Church" of America. There was a significant meeting of the Federation held in Melbourne on 19 April 1970, a few weeks after the Archbishop's arrival in Australia. That meeting is significant for other reasons involved in the appointment of the Archbishop, but it seems the decision was also taken at that meeting, with the appointment of the Archbishop, to form an Autocephalic Greek Orthodox Church of Australia and America. Whilst there is no formal recorded resolution to that effect, it is plain from a record of the meeting that it was talked about, and according to Mr Manos' evidence, its formation was a matter of some delicacy and of necessary secrecy, owing to the likely spirited opposition to the proposal from the Archdiocese of Sydney. According to Mr Manos, the appointment of the respondent was subject to the new church being set up.

116 Mr Manos undertook the drafting of a constitution, and the Autocephalic Greek Orthodox Church of America and Australia Inc was incorporated in June of 1970. As the recital to the Constitution suggests, its formation was prompted, among other things, by the appointment of the respondent as its Archbishop. Its intended membership was to comprise "on the one hand, the Religious Leadership comprising the Archdiocese of the Church and on the other hand of the Laity comprising the Communities and their members" (Article 3(1)). The evidence showed that the only members in fact were the respondent and the appellant. The Industrial Magistrate held that "the whole concept of the autocephalic church as a distinct and separate entity was dead and buried within months of the registration of June 1970". That is no doubt so, as an operating incorporated church entity. Contrary to the Magistrate's specific finding, however, it seems to have been used for some purpose, as it operated a bank account through which the respondent's travelling and telephone allowances were paid.

117 Its incorporation was nevertheless significant because it was common ground that most of the terms of its constitution reflected what was to become in practice an autocephalous Greek Orthodox Church in Australia under the spiritual leadership of the respondent. Its constitution is therefore a useful source of information concerning the relationships which developed. There was no doubt that the appointment of the respondent began a new chapter in the evolution of the Autocephalous Greek Orthodox Church in Australia in that, whilst not incorporated, it was nevertheless an identifiable archdiocese with the respondent as its spiritual head.

3.5 Appointment of the Respondent - Preliminary Negotiations

118 In 1969 the respondent, in the United States, was Archbishop of The Holy Archdiocese of the Autocephalos (sic) Greek Orthodox Church. That was a body which had become incorporated in the State of New York in September 1969. The respondent was responsible for a number of churches comprising the autocephalous Greek Orthodox Church extending over several States of the United States. His name had been suggested to officers of the Federation as being a possible replacement for Archbishop Sergei.

119 The initial contacts were by letter and telephone from both Mr Manos, then president of the SA community (and who was, in 1970, to become president of the Federation) and Mr Elefantis who was then president of the incorporated Greek Orthodox Community of Melbourne and Victoria and then president of the Federation.

120 A number, but not all, of the letters passing between the respondent and Mr Elefantis in late 1969 and early 1970 were received in evidence. They reflected other correspondence and discussions and matters of concern to both sides. Those concerns were to dominate discussions in Australia after the respondent's arrival. The first of those matters were that the respondent was being approached, as he acknowledged, to undertake "the spiritual administration" of the communities "and thus work together for the glory and greatness of Orthodoxy and the perpetuation of the immortal Hellenic heritage". When asked in evidence what his understanding was of the role that he was being asked to undertake the respondent said:

"As a leader of the church I would take over the spiritual duties such as the ordination of the priests and I would look after the normal function of the churches.... I was serving the churches spiritually, but I was trying to serve the church socially. I was gathering the youth; I was making special ceremonies; I was going to visit sick people; and I was trying to keep the Greeks united...."

His reference to leadership of and serving the church is not insignificant.

121 The second matter of concern reflected in the correspondence related to the independence of the communities. He gave an assurance in one of his letters that "there will be full respect towards your constitutions and traditions of the Church in Australia in general, and I will confine myself to the spiritual administration of our priests".

122 The third matter of concern touched on in the correspondence was a reflection of some uncertainty of those in this country about the validity of the respondent's consecration as a bishop. That too was a matter to assume some importance after the respondent's arrival in Australia.

123 It is equally clear that at the stage of these discussions none of these issues was fully resolved, and that whether and on what terms the respondent would be appointed were matters to be discussed. There was certainly nothing said about remuneration or conditions applicable to his holding the office.

124 The correspondence also reflects that there was a meeting of the presidents of the members of the Federation in Sydney on 11 January 1970, at which the representatives of the communities undertook to provide the respondent's travel costs to Australia. The correspondence also reflects that there were difficulties in obtaining a visa for the respondent, and that his initial entry to the country in March of 1970 was on a three month temporary visa.

125 What was also perfectly clear, as acknowledged by Mr Manos and the respondent, was that the invitation to the respondent to come to Australia was being made on behalf of the whole Federation and not just the South Australian community.

126 What was not stated in evidence was why the respondent came to Adelaide. There are many possible explanations. The South Australian community had been one of the prime movers in rejecting the authority of the Archdiocese of Sydney and was one of the larger communities. Adelaide had been the home of Archbishop Sergei, who had served the autocephalous churches albeit on a less formal basis. Mr Manos, President of the South Australian community, had been one of the chief negotiators with the respondent. The position of the Melbourne and Victorian community in the Federation was unstable, as witnessed by the fact that within a few months of the respondent's arrival, it had left the Federation. The respondent also had relatives in Adelaide. There would have been obvious political difficulties if the respondent came to Sydney, and as Mr Manos said, the whole arrangement was necessarily attended by a degree of secrecy. There was even some anticipation that when, as expected, the Sydney Community would support the autocephalous Church, the respondent would move to Sydney.

127 The Court was never told of the conditions on which Archbishop Sergei had provided his episcopal services to the communities. However, he had acted on a less formal basis because he happened to be in South Australia and to be a convenient provider of episcopal requirements to the autocephalous churches. What was being contemplated by those responsible for inviting the respondent to Australia was the formation of an archdiocese of the autocephalous church with a full-time archbishop, involving a much more substantial financial commitment.

128 The respondent arrived in Adelaide from America on 21 March 1970. Crucial to the Industrial Magistrate's conclusion as to the respondent's claim was a finding that an enforceable contract was then made between the respondent and appellant that he should serve the South Australian community as archbishop, and that that contract was a contract of employment. Because of the significance of those findings, to which I shall return, it is necessary to review the evidence as to what was said and done which might have led to that conclusion.

129 The evidence to which I am about to refer must also be read against the background that there was planned to be held on 19 April 1970 a meeting of the Federation at which a number of the issues referred to in the correspondence were to be fully examined.

130 The South Australian community had arranged accommodation for the respondent, presumably before he arrived. The Magistrate concluded that there was a meeting between the respondent and the executive of the appellant on the day of his arrival at which, it is said, a number of conditions were discussed. The respondent's evidence as to the timing of those discussions and their nature varied considerably during the course of his evidence. When it was first raised he said that once he arrived "it was discussed that they would pay regularly or normally whatever they pay the other priests, a little bit more the archbishop". He said that he first had those discussions with Mr Manos in Adelaide and "apart from the salary that I would receive, they would give me other things that the people who are employed would get and if I fell sick they would take responsibility". Later in his evidence he said there was a meeting of the management committee "the first few days when I came here". His evidence was:

"'What is your demands?' and I ask them, 'You have to pay me a salary, a little more than the priests. You also enrol me in a fund,' or security fund - insurance, I'm sorry, insurance - and I receive what the law states for the other employees or workers."

131 When asked again later in examination-in-chief about the discussion with Mr Manos he said that it was with the whole committee of the South Australian community:

"I told them my aims; that I would be only a spiritual leader, and I will not interfere in their administration business as they were insisting on that.... There was an agreement between us that I would not interfere in their real estate or their assets, their financial and their asset branch of the community, and they were not to interfere in my spiritual administration. MR ROSSI: Was any offer made to you at that time of the meeting in Adelaide for the services that you were offering? INTERPRETER: There (sic) were paying my salary every fortnight. MR ROSSI: Was any figure mentioned at that meeting, being the meeting in Adelaide, when you first arrived from America about the amount of the salary? INTERPRETER: No, they were giving me some money - I can't remember how much - every fortnight, and an agreement was made on 19 April at the meeting in Melbourne."

132 Later in his examination-in-chief, when asked if there was any discussion about annual leave or long service leave at the meeting in Adelaide, he began by answering that "all this was discussed" at the Federation meeting in Melbourne in April "but also from the Greek community of Adelaide I was told that I would be paid similarly to the priest and I be one of their employees". He went on to say that this was on the first day when he arrived, with the executive committee, but he volunteered that whatever was said was accepted by the meeting in Melbourne and the community in Sydney and "the whole committee of the pan-community". I mention in passing that if that was said, it is not something that was maintained. Mr Stylianopoulos, a witness for the respondent, whose evidence the Industrial Magistrate accepted, told how, some years later, he had been instrumental in causing a review of the respondent's remuneration after it had fallen below that of the priests, and how subsequent adjustments were to be made not by reference to the salary of the priests but according to adjustments in the Consumer Price Index. The respondent also volunteered that he pointed out to the committee that he would "remain on the spiritual branch and not to interfere in this spiritual administration as I was not to interfere in the political - but unfortunately they did interfere in the spiritual....".

133 In cross-examination he agreed that he was introduced to the executive and that it was explained that the arrangements for his future would be discussed at the forthcoming meeting of the Federation in Melbourne. When it was put to him that no undertaking was given at the Adelaide meeting about paying annual leave or long service leave his answer was:

"They promised - then finally would be done down where we had to go in Melbourne. MR McRAE: Well, can I put it to you this way, that whatever was said clearly had in mind that arrangements would need to be confirmed in Melbourne? INTERPRETER: Yes."

134 When it was later put to him that whatever happened in Adelaide to begin with was purely temporary, pending the meeting of the Federation in Melbourne, he responded that he was being paid. "The rest would be arranged in the pan-community, so the other communities will pay also". The cross-examiner returned to the question of salary discussions in Adelaide. The respondent again asserted that the issue was mentioned, but on this occasion he said that the president (Mr Manos) was not present and Archbishop Sergei was and that the meeting was "a few days before he went to Melbourne". It was only on the very last occasion that the topic was mentioned that the respondent asserted that he had an agreement with the appellant to be Archbishop in South Australia notwithstanding what might happen in Melbourne. No other details of that agreement were ever given.

135 Mr Christopher was, at the material time, Vice-President of the South Australian community. His understanding was that the respondent's stay in Adelaide was likely to be temporary. Sydney was the "strongest community" and his understanding was that if everything "went right" with his appointment, Sydney would join the Federation and the Archbishop's seat should be in Sydney "after everything was fixed up". He was of the firm view that whatever the South Australian community did was done on behalf of the Federation, and that he was not paid for services provided to the South Australian community. He would not accept that he was paid a salary. He described it as "remuneration" for duties he was doing as Archbishop of the Federation. He did not hear any discussions about annual leave or long service leave. He did not hear any discussion about the respondent's entitlements being related to those of the priests. He eventually agreed that the committee of the South Australian community agreed that remuneration should be given to the respondent, but he was not aware of the details. That was paid, he said, for the Archbishop to do the "normal" duties that the Bishop should do. He described those as being -

"[T]hat the archbishop put his work with the community, attend - you know, the church, but that was at his - it was not - he didn't have to do it if he didn't want to though, and to speak with - make a speech, explain something about the - to the congregation but he wasn't - we never appointed - we never asked in my time that his Grace that he should go every Sunday, that he should do that, that he should do those duties.... According to the provision with a Greek Orthodox Church, the bishop, any bishop, the committee does not tell him what to do - to leave him to his discretion - and what normally happens, the bishop himself does not himself administer the holy communion and all those things that we have been talking about. He does not do it but has certain functions which would be a few a year. Then we expect him to - he himself goes - the bishop goes on his own without us telling him to do so, as, for example, to make a speech or to explain things. We expected that of him, but we did not intervene to tell him what to do."

136 The only other witness who was able to give evidence of what occurred at that time was Mr Manos. He accepted that there probably were meetings with the respondent which included questions of remuneration. He did not recall any discussion relating the respondent's salary to that of a priest. Indeed, he would have regarded that as being rather demeaning. He disagreed with the suggestion that it was important to sort out how the respondent was to be paid while in South Australia. He said:

"The thing that was most relevant was whether he remained here or was told he could go back, whether or not he was prepared to accept the lines of demarcation of power or control as you called it earlier on. That was the key issue."

137 He disagreed that there were "detailed discussions" about the respondent's remuneration. He admitted that there were discussions. "Probably we asked him what he thought was reasonable and he might have asked the same of us. I don't know". He did not recall any occasion on which annual leave or long service leave were requested or discussed.

138 The Industrial Magistrate considered that there was very little difference between what the respondent had said and what Mr Manos said, allowing for the fact that Mr Manos had a focus on the issue of control and demarcation, and was recalling discussions over a number of meetings. I shall need to return to the Industrial Magistrate's findings based on the evidence to which I have referred.

139 This was the crucial meeting for the Federation. It was the meeting at which the question of the respondent's acceptability and remuneration would be determined. It occurred on 19 April 1970, less than one month after the respondent's arrival in Adelaide.

140 The Industrial Magistrate had the advantage of a written record of the meeting. There was no disagreement by any of the witnesses with the substance of that record.

141 The meeting was attended by representatives of the Melbourne community, the Adelaide community, the Newcastle community and the Sydney community. It was evident that a number of things were coming together at this meeting. The representatives of the Sydney community announced that they had linked their destiny with the Federation, and pledged their integration into "the Autocephalous Church of Australia". They did not wish to "repeat the mistakes of the past and request to be given time to call a general meeting in order to stop recognising Archbishop Mr Ezekiel and recognising Mr Spyridon (the respondent)".

142 The President, Mr Elefantis, opened the meeting, describing it as "the most important because it concerns the spiritual leadership of our church". He stressed the need for confidentiality until final approval by the executive committees of the communities. The meeting was taking place in the wake of the failed attempt at reconciliation, and the creation of a new archdiocese would no doubt have substantial political ramifications in Greek communities throughout the country. Mr Elefantis referred to the "visit" of the respondent and that he was seemingly the right person to take over the spiritual leadership. Nevertheless he urged serious and calm consideration.

143 The first question addressed was the canonicity of the respondent's consecration. Certificates of consecration were produced. The advice of Archbishop Sergei was conveyed to the effect that the consecration of the respondent and of his consecrators was canonical. It will be remembered that this was of particular concern to the communities because of the previous lack of recognition in Greece of baptisms and marriages carried out by priests of the autocephalous churches.

144 It appears that at least the President had been under the impression that the churches in Australia might be joining with the churches in America and making a contribution towards the maintenance of one archdiocese. He referred to the change of conditions and the need now to consider creation of an Australian see.

145 Mr Manos stressed the need for the new Archbishop "to accept the conditions of cooperation with the Federation which Ezekiel and the Exarch rejected".

146 It appears that there was considerable discussion about remuneration and the extent to which the communities could support the archdiocese. Each of the communities except Sydney mentioned a weekly or annual figure which they were prepared to contribute. Without Sydney those figures amounted to approximately $110 per week. It was plain, however, that the meeting considered that the Archbishop would be paid considerable fees and other income for the performance of marriages and other rites and (presumably) from voluntary contributions. An estimate was given that these would amount to between $160 and $214 per week. Mr Christophidis, a representative of the South Australian community, who gave evidence as Mr Christopher, observed that if the annual income from such sources were $12-15,000, then he did not need any other salary.

147 Those who gave evidence agreed that the record of the meeting correctly recorded the resolution of that question:

"Mr Aristidis moves to guarantee $100.00 as salary of the Archbishop and the fees (of certificates for ceremonies) and to pay the expenses for the house and the rent for the telephone. Mr Kostaras seconds. Mr Christophidis adds that the above agreement will be valid as long as the income of the Archdiocese does not exceed $15,000 annually. From the moment that the income of the Archbishop exceeds $15,000 the Federation will cease to have any financial commitment towards the Archbishop."

148 A number of significant features emerge from the record of the meeting to that point.

. There was an inherent assumption of a separate but identifiable autocephalous church. As mentioned above, steps were subsequently put in train to incorporate the church. Although that seems to have had little practical effect, the autocephalous church as an institution seems to have continued under the spiritual leadership of the respondent.

. As an integral part of that church there was a recognition of a proposed archdiocese.

. The archdiocese would have its own sources of income for the support of the Archbishop.

. The agreement of the representatives of the Federation was to "guarantee" a payment of $100 per week.

. It was accepted that upon the separate income of the Archdiocese or Archbishop (they seem to be treated as one entity in the minutes) reaching $15,000 per annum the communities would have no further financial commitment towards the Archbishop.

. The guarantee of a salary was something determined by the representatives without consultation with the respondent.

. The amount guaranteed was significantly less than what was expected to be received by the Archbishop in fees and donations.

149 It was after that that the respondent came into the meeting. He was welcomed by the President who mentioned to him all matters discussed about "the establishment of the Autocephalous Orthodox Church of Australia and America" and who referred to the greater financial responsibility, now that it was understood that the see of the Church would be in Australia, and not America. The President expressed concern at the possible financial demands which this would create. He advised the respondent of the decision to pay $100 as salary "in addition to the fees of the ceremonies", and that the house and telephone rental would be paid by the Federation. The respondent graciously accepted the terms determined by the Federation, and went on to stress that he required only the spiritual leadership of the church, and had no desire to interfere in the administration of the communities and the Federation.

150 There was no record nor any evidence from any participants from that meeting, other than the respondent, concerning any other conditions which would be applicable. The respondent, in his evidence, maintained that the offer made to him included an offer to "pay the holidays and long service leave and anything else that the Australian law is in favour of". However, when asked who put that motion he claimed that it was Mr Sophias and Mr Andreas Mikhalidis, the two representatives from Sydney. The record of the meeting did not show anybody present by the name of Mikhalidis. A short time later he was asked which community or group of communities he understood was making the offer to pay the salary and the long service leave and annual leave. His answer was that it was the community of Adelaide. There was nothing in any other evidence or in the record of the meeting to suggest that that was the case. Furthermore, the respondent claimed that he had been at the meeting "almost from the beginning, up to the end", and yet from the record of the meeting it appears that most of the discussion on crucial matters took place before his arrival.

151 Notwithstanding the expectations of those at the meeting, it became clear that the respondent, as he said, never received any fees from baptisms, weddings etc, and that appears to have been common ground. The reason for it appears to have been that, as it transpired, his consecration, and hence the sacraments administered by him, were not recognised by the Greek authorities. There was other evidence from Mr Manos and Mr Niarchos which suggested that he performed very few (if any) of such sacraments. The allowance fixed at the March 1970 meeting therefore continued, and over the years was adjusted from time to time, usually, it would seem, on the decision of the committee of the South Australian community, which at all material times formed the Executive Committee of the Federation. Mr Stylianopoulos on one occasion initiated a review because it transpired that the respondent's remuneration had fallen below that of the priests.

152 Nevertheless, what happened at the meeting in March 1970, the background against which it happened and the understanding of the respective parties has a crucial bearing on the nature of the legal relationship (if any) then entered into between the respondent and the Federation on behalf of the respective communities.

153 It only remains to be said that following the conclusion of the arrangements made at that meeting a formal installation of the respondent as Archbishop of the autocephalous church took place on a Sunday shortly following the meeting.

154 What was intended by the parties to be the nature of their relationship, whilst dependent very much on the factors which I have just mentioned, is also to be inferred from how the parties immediately began to implement the relationship. It was acknowledged by the respondent that the major provisions of the constitution of the Autocephalic Greek Orthodox Church of America and Australia Inc, although a dead letter in organisational terms nevertheless reflected the practical position as it emerged.

155 Among other things, that constitution reflected the identity, although unincorporated, of an institutional church distinct from the communities. The recital to the constitution recorded the desire to establish an independent Australian Church of the Eastern Orthodox Faith "autonomous and belonging to Australia" and that it had invited the respondent to establish an independent church with them in Australia. The recital envisaged the independent Australian church would join with the Holy Archdiocese of the Autocephalos Greek Orthodox Church of America in sharing the same religious leader, but would in all other respects remain independent. In doctrine it was intended that there should be no difference from any other Greek Orthodox church, as one of the objects was to observe and maintain "the Christian Orthodox Faith known as the Eastern Orthodox Faith".

156 Article 3 of the constitution reflected the accepted view of the witnesses that the Church consisted, on the one hand, of the religious leadership comprising the archdiocese of the Church, and on the other hand, the laity comprising the communities and their members.

157 The respondent was at pains to point out on many occasions during the course of giving evidence that he would only ever claim to be the spiritual leader of the Church, that he would not interfere with the temporal or financial affairs of the Church or the communities, and that he expected the communities not to become involved in his spiritual administration. That much was equally insisted upon by the members of the Federation. It was interference in what they considered to be the temporal affairs of the communities which had caused the split with the archdiocese of Sydney in the first place. That duality of roles was also clearly reflected in the constitution.

158 It was part of the respondent's function to make periodic visits to each church of the archdiocese (Article 9), and that was commonly understood and in fact carried out. There were some differences in emphasis as to whether it was required or allowed to happen by the South Australian community, but it was the sort of thing which could only be arranged through mutual cooperation, particularly as the several communities were responsible for the costs of travel.

159 Article 9 of the constitution also provided, and the respondent agreed, that he held the religious leadership "for life unless he resigned voluntarily or has a proven physical or mental disability as to render him incapable of performing his duties in a proper manner, or his conduct is proven to be against the interests of the communities in the Church having regard to their constitutions, or if his conduct brings disrepute upon the Church to the satisfaction of a court of law". The Industrial Magistrate took the view that that condition entitled the communities or their representatives to determine whether conduct was proven to be against the interests of the communities. That might be debatable, but it is plain that it did not confer exclusive power on the South Australian community alone to take that view.

160 Article 9 of the constitution also provided that the Archbishop, with the agreement of the majority of the communities in the Church, could arrange for such bishop or bishops or other personnel as may be required by the Church to be ordained or engaged. As the evidence showed, in practice, that too was a matter for necessary consultation. There was no point in the Archbishop ordaining clergy when there was no position for them to hold; there was no point in imposing a particular priest on an unwilling congregation, and when there were vacancies to be filled it was in everybody's interests to work towards filling them.

161 Article 11 required all churches of the archdiocese to have a collection for the archdiocese each Easter and Christmas, and Article 12 required special donations and appeals for the Church and for the archdiocese to be made by the communities. The respondent acknowledged that such special collections occurred, but that at least those of Christmas and Easter were retained by the communities. In relation to other collections, the respondent said that "apart from the normal collection trays of Christmas and Easter and the festive days of signs, of the festivity days of the church we celebrate, which is the rights of the Archbishop, they could do special collection for the archdiocese".

162 Fundamental to the requirements of the communities, as reflected in the constitution, was that all church buildings were to be owned by the communities, but it was also contemplated that the archdiocese might purchase real estate in the name of the Church.

163 The evidence showed that not only did the respondent spend weeks or sometimes months in other cities in Australia, either performing episcopal duties or relieving where there was no priest to carry out services, but that he also spent a period of seven and a half to eight months in the United States in 1975. Throughout these periods of absence he continued to be paid his remuneration by the South Australian community. There was also undisputed evidence that the South Australian community in turn invoiced other communities for their share of the respondent's remuneration and allowances, other than in the case of some very small communities that could not afford any contribution.

164 It is also not without significance that internal requisitions of the appellant for salary payments to the respondent were drawn, as were the cheques in payment of salary, not to the respondent but to the "Archdiocese of the Autocephalic Church" (Exhibit R3). The examples of these documents submitted in evidence, although few, covered a wide period of time, and the evidence that the Church was the payee was supported by Mr Manos and Mr Niarchos. There was one proven exception to that practice, namely the final salary cheque paid to the respondent dated 10 December 1993 which was drawn in his favour. Similar evidence also showed that payment of travelling and telephone allowances, including internal reimbursement vouchers, were also drawn in favour of the Archdiocese of the Autocephalic Church, the one exception also being the last payment of such allowances on 10 December 1993. For a reason that was not explained, requisitions and cheques for travelling and telephone allowances were drawn on a bank account in the name of the incorporated church body which the Magistrate held had become defunct. All other cheques were drawn on an account of the appellant.

165 Although the record of the Melbourne meeting seems to treat the Archdiocese and the Archbishop as one, Mr Niarchos gave evidence (which was not challenged) that the Archdiocese comprised the Archbishop and those "within the priests or laity that he regarded as being his assistants".

166 The respondent maintained that he operated his own bank account in his own name. When asked whether he used that account for his affairs as Archbishop he answered "My money, I was banking in the bank.... at times I was presented with cheques and sometimes I would leave some and take some". He admitted that there was a separate bank account for the Archdiocese, at least for two to three months, to which he added the rider "and I was banking my money in order to help the situation". No banking records of the respondent were produced.

167 Although it was not referred to by the Industrial Magistrate, the evidence of Mr Manos, one of the chief negotiators for bringing the respondent to Australia and one of the key decision makers at the meeting of 19 April 1970 in Melbourne, is also instructive as to the nature of the relationship that was intended. He was a man of extensive knowledge and experience in Greek community affairs and of relationships with the Greek Orthodox Church. There is no doubt whatever that he shared identical views with the respondent as to the intended spheres of operation within the Church of the Archbishop and the communities. He gave as an example that matters of liturgy would be the respondent's exclusive province. On another crucial topic Mr Manos' evidence was:

"We told the archbishop from the word go that it was his final decision as to whether a priest was to be disciplined, suspended or whatever. However, we wanted the congregation, including ourselves, to be consulted as to what the priest had done and if there was a case of the archbishop wanting to take a priest from one church and put him in another church, we would ask him to bear in mind that one congregation can get upset and so forth and so on, and more often than not the Archbishop Spyridon would say, 'All right, okay, I'll let it go.' He disciplined priests, and he told that particular priest as I understand it that he either wasn't to conduct services or was to take a back-room role, so to speak, in conducting the services because I think he did something wrong at the altar...."

It was clear that on many occasions Mr Manos used his own personal influence to attempt to smooth troubled waters where disputes as to such matters arose.

168 It was on the question of remuneration and conditions that Mr Manos' evidence was particularly illuminating. Because it was believed that the respondent's orders would be recognised and that his marriages and other religious ceremonies would be recognised, both he and the respondent were of the view that the archdiocese would be self-supporting financially, and that it might not be necessary for the communities to underwrite any part of his salary. However, that hope fell by the wayside because the respondent's ceremonies were not recognised either by the Ecumenical Patriarch or by the Greek government. Furthermore, Greek consular officials advertised the fact that any ceremony conducted by Greek Orthodox community churches would not be recognised.

169 Mr Manos could not recall any discussions about annual leave or sick leave. That is not surprising given his understanding of what the position would be:

"A. ....We in effect were paying that money, as I understand it, to the church. Whether he was getting it himself or not is to me irrelevant. In fact he was saying he was giving it to people who were poor and so forth and so on, but that's irrelevant in my regard as to what he did with it. I would have given him that money irrespective. I mean, he's the leader of the church. Whether he's sick or not sick or going away as he was going away often, he was going to get that money. That would have been my attitude. Q. Yes, that's the question of the money. Now, did you have any instructions or any authority to deal with questions as specific as whether he would have a period of annual leave. A. Absolutely not. I mean, annual leave was to him - now, he could have annual leave 12 months of the year in effect if he was of a mind to do it. They would have probably dissolved the church if he could - if he did that sort of thing to us, but he may have rung up from time to time and said, 'Look, I'm going up the Riverland because I've got some friends up there and I'm going on an orchard,' and he would nick off. There were other times when people would say to me from the committee, 'The archbishop's gone to Wollongong,' or he has gone somewhere else. Sometimes he would leave a message that he was going. Sometimes he would ring back and say, 'Look, I was going to come back next week, but I'm staying over a few more weeks.'...."

170 In a sense Mr Manos was agreeing that the respondent was entitled to all the leave that he might want. Whatever leave he took was not the concern of the communities. The community's only role was to provide some financial support for the activities of the Autocephalic Church, in the same way as it no doubt provided financial support for other activities in which the Greek community was involved. Mr Manos summarised the respondent's status as follows:

"Well, he was an archbishop, an archdiocese. He was I suppose in a vacuum on his own. We were to pay him a certain amount of money. Whether he got it from the fees or whether he got it from us he was going to get that amount of money, no matter what. He would go to America. He made it quite clear to me that there would be occasions when he had to go off to America and I understand that he did."

171 There was also no doubt where Mr Manos stood in relation to the respondent's power to discipline clergy. That was one of his powers. The community, he said, could ask the archbishop to reinstate, but that is as far as it could go. The respondent expressed the same view several times in his evidence. In the disputes which subsequently arose over his disciplining clergy, the respondent regarded the communities as having trespassed into his domain.

172 Mr Niarchos, although his evidence in some respects was not accepted by the Industrial Magistrate, expressed similar views to those of Mr Manos as to the circumstances in which fees would normally be paid to a celebrant, but apart from the fact that the respondent's orders were not recognised, from Mr Niarchos' observations during his time as President, the respondent did very little. He did not complain, and that was consistent with his expressed view that the archdiocese was a separate entity, and that the community had no control over what the archbishop did. He considered that the only duties that the respondent had were those which he imposed upon himself.

173 I propose in due course to deal with the conclusions of the Industrial Magistrate that were based on all this material and to refer also to the conclusions of the various members of the Industrial Relations Court on the appeals which followed. Before I do so, however, it is desirable, for reasons which will become apparent, that some examination be made at this stage of a number of other cases that have involved the status of members of the clergy, both Christian and non-Christian. In all these cases, although they have arisen in a variety of contexts, the relief sought has been based on a claim that the clergy concerned were parties to a contract of employment. In all but a few cases in the United States and Canada, the claim has failed. In those cases where the claim has succeeded, a crucial element of the contract was not addressed, either because it was not raised or because it was not necessary to raise it.

174 In most cases the relationship has been described either as involving the holding of an office, or one of a spiritual or ecclesiastical relationship rather than a contractual relationship. I will return to the consideration of the position of an office holder, but such a process of categorisation by itself does not provide a satisfactory answer to why the person should not be an employee.

175 Re Employment of Church of England Curates [1912] 2 Ch 563 was a case concerning the applicability of the National Insurance Act 1911 to Church of England curates. In order to be subject to the Act they had to be employees. The evidence showed that a stipendiary curate entered into an agreement with the incumbent by which the incumbent promised to pay a certain sum as a stipend, and the curate agreed to accept that sum. However, the agreed stipend became a charge on the benefice of the incumbent. The curate was required to be licensed by the bishop, and could not resign or be dismissed without the bishop's permission. Parker J said (at 568 - 570):

"I have come to the conclusion that the position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose duties and rights are defined by contract at all. It appears to me that there can be no pretence in reality for arguing that the relation between him and his vicar, or between him and his bishop, or between him and any one else, is the relation of employer and servant.... Further, when I come to consider the duties of the curate, it appears to me that those duties are in no way defined by any contract of employment between him and any one else. He owes, no doubt, a certain amount of obedience to the vicar, as to the precise extent of which there may be some question - at any rate into that part of the case I do not intend to enter at any length - but the duty which he owes to the vicar is not a duty which he owes because of contract, but a duty which he owes to an ecclesiastical superior. He may owe one kind of duty to the bishop and another kind of duty to the vicar, and one may have greater control over his actions than the other, but whatever authority either exercises over him is an authority which can be exercised by virtue of the ecclesiastical jurisdiction, and not an authority which depends in any case upon contract. If I were to hold that the vicar and his curate were in the position of master and servant, I might be imposing on the vicar at common law very serious liabilities, from which I think, in all common sense, he ought to be exempt. It appears to me, therefore, that if I test the question, as to whether there is a contract of service, by any of the three methods suggested - the appointment, the power of dismissal, and the duty owed by curate to vicar - there is no such contract of service as the Act seems to contemplate."

176 With respect to Parker J, I find unhelpful the distinction between ecclesiastical authority and authority imposed by contract, and I find unacceptable the suggestion that the outcome should be governed by a desire to exempt clergymen from common law liabilities. That is not to say that the case was therefore wrongly decided. I merely indicate that I find the reasoning unacceptable.

177 The same question arose in Re Employment of Ministers of the United Methodist Church (1912) 107 LT 143. The ministers were appointed by the Conference of the Church, which also had powers of dismissal in the case of immorality, heresy or unsuitability, and they were paid by the circuits or churches to which they were attached. They were appointed for four years with the possibility of continuance. Joyce J (at 144) expressed some difficulty in identifying, if the ministers were employed, who was the employer. However, he went on, in a very brief judgment, to indicate that the case was argued on the difference between a contract of service and a contract for services. He considered that on the facts it could not be the former, even if there was a contract at all.

178 Scottish Insurance Commissioners v Paul [1913] ScotCS CSIH_3; [1914] SC 16 was also a case concerning the applicability of the National Insurance Act to assistant ministers, student missionaries and lay missionaries in the Church of Scotland and the United Free Church of Scotland. All three judges of the Scottish Court of Session (Lord Kinnear, Lord Johnston and Lord Mackenzie) appeared to have accepted that the substance of the reasoning of Parker J in Re Employment of Church of England Curates applied to the assistant ministers in question. Lord Kinnear and Lord Mackenzie also placed particular emphasis on the fact that the assistant clergy were office holders. Lord Kinnear said (at 23 - 24):

"I think the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.... When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is in no sense performing duties fixed and defined by a contract of service."

179 His Lordship also suggested, however, that there was a lack of any contractual obligation between the parties. Having referred to the duties of preaching the gospel, visitation of the sick and poor and the general nature of parochial work he said (at 25):

"These are duties which he has undertaken in accepting the charge, and his authority for performing them is that of a licentiate of the Church, derived from the presbytery and not derived from a contract either with the kirk-session or with the minister. It is manifest that the kirk-session can have no pretention to control a minister in the exercise of his religious office, and if he is, in some sense, subject to the control or superintendence of the minister of the parish, it is by reason of the duty which a junior owes to a superior clergyman, and not by force of the contractual obligations of a servant to a master."

"The case of the assistant is really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service."

181 The student missionaries were held not to be employed because their services were rendered as an incident in the course of their studies and not as work done under a contract of service, whilst lay missionaries, who held no ecclesiastical status, being appointed by and subject to the control of a minister of a kirk-session or a committee, were held to be employed persons within the meaning of the Act.

182 I have already referred to what I consider to be the unsatisfactory reasoning in Re Employment of Church of England Curates. To the extent that the reasoning in this case relies on the fact that the assistant ministers were ecclesiastical office holders, as I will point out in due course, this does not preclude a contract, and even a contract of employment, from existing at the same time.

183 Rogers v Booth [1937] 2 All ER 751 concerned the question of whether an officer of the Salvation Army was entitled to benefits under the English Workmen's Compensation Act 1925. In order to succeed he had to be an employee at common law. It was held that he was not. By the Salvation Army's orders and regulations, leadership and obedience to orders was a significant feature of the service of officers, but no salary or allowance was guaranteed to the officer. "The officer is pledged to do his duty, with or without pay; he works from love to God and souls, whether he receives little or much.... The Army does not recognise the payment of salary in the ordinary sense; that is, the Army neither aims at paying nor professes to pay its officers an amount equal to the value of their work; but rather to supply them with sufficient for their actual needs, in view of the fact, having devoted themselves to full-time salvation service, they are thereby prevented from otherwise earning a livelihood." (at 753 - 754). The form signed by the officer contained a pledge to work not less than a certain number of hours per day and per week, and a formal acknowledgment that the officer was not employed or had any right to wages. Whilst the acknowledgment that there was no employment relationship was important, Sir Wilfred Greene MR described the relationship thus (at 754):

"It is a relationship pre-eminently of a spiritual character. They are united together for the performance of spiritual work, and, in order to carry out efficiently the ends they have in view, they submit to a very strict discipline, and a very strict command. On the face of that, it appears to me that the necessary contractual element which is required before a contract of service can be found is entirely absent. The parties, when they enter into a relationship of that kind, are not intending to confer upon one another rights and obligations which are capable of enforcement in a court of law. It would be a very curious thing if the General of the Salvation Army, in regard to those under him, who are under him by virtue of these requirements, should be in a position in which he could bring actions for damages against them if they failed to obey some directions that he gave as to the way in which they should perform their spiritual task. I venture to think that nothing of the sort was the intention of either party when that arrangement was entered into."

184 In relation to the payment of money, the Master of the Rolls continued (at 755):

"The circumstance that a monetary sum is paid to officers who enter into this relationship is, in my opinion, quite insufficient to change the relationship from what it otherwise would be. It is quite obvious that, if officers are devoting the whole of their lives to this service, the Army would make provision to maintain them, and that it in effect does. But that does not mean that the sum which is paid has any similarity to wages or salary, or any payment given contractually for services given or for services rendered. It is a maintenance payment, to enable them to carry on the work that they have undertaken. It appears to me, therefore, that the appellant cannot establish, not merely a contract of service, but also any contractual relationship at all which could possibly become a contract of service or be a contract of service, and, in my opinion, the appeal fails on that ground."

185 Romer and Scott LJJ agreed. Whilst the relationship is described as "pre-eminently of a spiritual character", there is the recognition in this case of an absence of intention to confer enforceable rights and obligations, a matter to which I shall return.

186 Such lack of contractual intention formed the cornerstone of the decision of Dillon LJ in President of the Methodist Conference v Parfitt [1984] QB 368. In that case a Methodist minister successfully applied to an Industrial Tribunal to hear a complaint of unfair dismissal. It was held that he was an employee, but on appeal, the Court of Appeal reversed that finding. Dillon LJ said (at 375 - 377):

"[T]he spiritual nature of the functions of the minister, the spiritual nature of the act of ordination by the imposition of hands and the doctrinal standards of the Methodist Church which are so fundamental to that church and to the position of every minister in it make it impossible to conclude that any contract, let alone a contract of service, came into being between the newly ordained minister and the Methodist Church when the minister was received into full connection. The nature of the stipend supports this view. In the spiritual sense, the minister sets out to serve God as his master; I do not think that it is right to say that in the legal sense he is at the point of ordination undertaking by contract to service the church or the conference as his master throughout the years of his ministry. Equally I do not think it is right to say that any contract, let alone a contract of service, comes into being between the church and the minister when the minister accepts an invitation from a circuit steward to become a minister on a particular circuit and the invitation and acceptance are approved by the stationing committee of the conference. Despite the elaborate detail of the standing orders in relation to the manse and the furniture and fittings to be provided by the circuit for the newly appointed minister on the circuit, it seems to me that it follows, from a correct appreciation of the spiritual nature of the minister's position and relationship with the church, that the arrangements between the minister and the church in relation to his stationing throughout his ministry and the spiritual discipline which the church is entitled to exercise over the minister in relation to his career remain non-contractual.... I would agree with Mr. Parfitt's submissions to this extent that the spiritual nature of the work to be done by a person and the spiritual discipline to which that person is subject may not necessarily, in an appropriate context, exclude a contractual relationship under which work which is of a spiritual nature is to be done for others by a person who is subject to spiritual discipline. On any view the spiritual nature of the work and the spiritual discipline under which it is performed must be very relevant considerations when it has to be decided whether or not there is a contractual relationship. ....I have no hesitation in concluding that the relationship between a church and a minister of religion is not apt, in the absence of clear indications of a contrary intention in the document, to be regulated by a contract of service."

187 Dillon LJ made reference to Re Employment of Ministers of the United Methodist Church and to Re Employment of Church of England Curates. He did not find them of much assistance. He noted that the latter was a decision that a curate of the Church of England held an ecclesiastical office and for that reason was not an employee. He recognised, however, that the judgment of Parker J was "useful.... in recognising a distinction between the duties owed by a minister of religion to his ecclesiastical superiors and the duties owed by a servant to his master under a contract of service" (at 377 - 378). He noted that Rogers v Booth involved a clear finding that the relationship was not contractual. As to the authorities he concluded (at 378):

"The most that perhaps can be said from these authorities is that the courts have shown themselves ready to conclude that the relationship between a minister of religion and his church is not founded on contract and he is not an employee of the church. I do not for my part see any good reason why modern economic conditions or the development of social security and employment protection should lead to a different conclusion now."

188 May LJ (at 378) noted that there was evidence of an agreement and sufficient evidence of good consideration to support an agreement, but the claim failed because of the failure to establish that the parties intended to create legal relations between them. He approved a passage from the dissenting judgment of Waterhouse J in the Employment Appeal Tribunal below, which included the following (at 380):

"I am unable to accept that either party to the present proceedings intended to create a contractual relationship. Moreover the elaborate code of practice and discipline of the Methodist Church, containing a wide spectrum of subsidiary organisations and persons, does not seem to me to be capable of formulation in terms of a contract between identifiable parties. The submission by the Methodist Church that a minister is, in effect, a person licensed by the Methodist Conference to perform the work of a minister in accordance with the doctrine of the church and subject to its discipline is, in my judgment, the most persuasive description of his status and role."

Sir John Donaldson MR agreed with the judgments of Dillon and May LJJ.

189 Another attempt to apply unfair dismissal legislation to a clergyman was rejected in Davies v Presbyterian Church of Wales [1986] ICR 280. The House of Lords affirmed the decision of the Court of Appeal in Parfitt. The nature of the relationship was to be determined largely by the rules of the Church, and under those rules the duties of a minister were of an exclusively spiritual and non-contractual nature. Lord Templeman, speaking on behalf of the House of Lords, considered that it was possible for a person to be employed as a servant to carry out duties which were exclusively spiritual, but that in the case before him it was impossible to discern any contract. He said (at 289):

"My Lords, it is possible for a man to be employed as a servant or as an independent contractor to carry out duties which are exclusively spiritual. But in the present case the applicant cannot point to any contract between himself and the church. The book of rules does not contain terms of employment capable of being offered and accepted in the course of a religious ceremony. The duties owed by the pastor to the church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the church, then his pastorate can be brought to an end by the church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules but an industrial tribunal cannot determine whether a reasonable church would sever the link between minister and congregation. The duties owed by the church to the pastor are not contractual...."

190 I do not consider that Lord Templeman was saying that because the minister was a servant of God he could not be a servant of an earthly institution. However, his duties being dictated by conscience, it was unlikely that the parties intended a contractual relationship.

191 An attempt by the priest of a Sikh temple to take advantage of unfair dismissal legislation failed in an industrial tribunal, the Employment Appeal Tribunal and the Court of Appeal in Santokh Singh v Guru Nanak Gurdwara [1990] ICR 309. His duties were prescribed by the constitutions of the temple and involved duties of a spiritual and ceremonial nature, of a teaching nature and a number of secular duties. The Court of Appeal (Neill, Butler-Sloss and McCowan LJJ) endorsed the view of the Employment Appeal Tribunal in applying the House of Lords decision in Davies and the principles stated by Dillon LJ in Parfitt, and in concluding that there were no indicators of a contract of employment.

192 Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435 was a decision of an employment appeal tribunal comprising a puisne Judge of the High Court and two lay members. It concerned a complaint of the director and khateeb of the Birmingham Central Mosque of his alleged unfair dismissal. His duties were both religious and administrative, including giving a weekly sermon, addressing visiting groups on the role of the mosque, overall responsibility for the education of Muslim children and management of the mosque. The industrial tribunal at first instance found that the applicant was an academic who undertook certain priestly work, rather than a holy man, and that he was employed pursuant to a contract of employment. In allowing the appeal and remitting the matter to another tribunal, the appeal tribunal relied heavily on Parfitt, Davies and Santokh Singh. The industrial tribunal had failed to ask itself whether he had a contract which included consideration of which there was sufficient certainty for the parties to be ad idem, and whether there was an intention to create a contractual relationship.

193 Finally, in the line of English cases, there was well and truly established in Diocese of Southwark v Coker [1997] EWCA Civ 2090; [1998] ICR 140 the need to prove an intention to create legal relations if a clergyman was to be regarded as an employee. Dr Coker, an ordained priest of the Church of England was offered, by letter, the stipendiary position of Assistant Curate to the Vicar of St Luke's Church, Croydon in the diocese of Southwark. He was told that he would be put on the diocesan payroll, and in due course was licensed by the Bishop of Southwark to that position. At first instance the industrial tribunal hearing his claim of unfair dismissal held that a contractually and enforceable agreement should be assumed, in the absence of evidence to the contrary, in the case of a curate of the Church of England. That proposition was rejected by the Court of Appeal. Mummery LJ (at 146) observed that that was certainly true in the case of "ordinary commercial transactions" but that it was not so in the case of the relationship between a church and a minister of religion. His Lordship extracted what, in my view, was becoming apparent from the line of authorities to which I have referred. At 147 he said:

"Although not explicitly analysed in these terms in the authorities, the simple reason, in my view, for the absence of a contract between the church and a minister of religion is the lack of an intention to create a contractual relationship. If that is so, then it is unnecessary to ask whether the contract is one of service or some other kind of contract. I agree with the appeal tribunal that the chairman of the industrial tribunal misinterpreted the law, which has been settled by a long line of authority. In my judgment, the legal position is as follows. (1) Not every agreement constitutes a binding contract. Offer, acceptance and consideration must be accompanied by an intention to create a contractual relationship giving rise to legally enforceable obligations. (2) That intention is to be objectively ascertained. In the case of an ordinary commercial transaction, it will be for the person who contends that there was no contract to establish that the intention to create a binding contract has been negatived. (3) In some cases, however, there is no contract, unless it is positively established by the person contending for a contract that there was an intention to create a binding contractual relationship. This is such a case. Special features of the appointment and the removal of a Church of England priest as an assistant curate and the source and scope of his duties preclude the creation of a contract, unless a clear intention to the contrary is expressed."

194 Staughton LJ and Ward LJ agreed with that statement. In the course of his judgment Staughton LJ, after referring to Parfitt's Case said (at 150):

"One can say that a minister of religion serves God and serves his congregation, but does not serve an employer. That seems to me accurate in general terms. But it is accepted that an ordained priest may take employment, for example (to quote from Mr. Hage's outline argument), with a school, or a duke, or an airport authority. Yet he will perform spiritual duties in that employment for a congregation, selected or self-selecting. I agree with the analysis of Mummery L.J. and his conclusion that in general the duties of a minister of religion are inconsistent with an intention to create contractual relations. There may be some subsidiary contract as to a pension, or the occupation of a house; but there is not a contract that he will serve a terrestrial employer in the performance of his duties. The absence of contractual intention is regarded by Chitty on Contracts, 27th ed. (1994), p.161, para. 2.117 as the basis of the Methodist Conference Case. It seems to me to be the most appropriate explanation."

"If a curate and his bishop, or incumbent, intend to create legal relations, then there will be a contract between them. If it is a contract of service, the Act of 1978 will apply. But if, as I would hold in the ordinary way, no intention to create legal relations is to be inferred, there is no contract of employment between them within section 153(1) and nothing in that Act to be excluded. I would dismiss the appeal."

196 It can be said of that case that Mummery LJ in particular relied to some extent on the Church of England being an established church with its own historic and pre-existing legal framework and of an ecclesiastical hierarchy established by law. Nevertheless, both he and Staughton LJ, in reaching their conclusions, drew heavily on those cases such as Parfitt and Davies which did not rely for their conclusion on an established church.

197 Apart from the judgment and subsequent appeals in this case, there is only one relevant Australian decision. That is Knowles v The Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR 47, a decision of Wright J, President of the Industrial Relations Commission of New South Wales. The case concerned unfair dismissal application by a priest of the Anglican Church who had been appointed by the Bishop of the Diocese of Bathurst as Anglican Chaplain of the Bathurst Correctional Centre. The terms of the arrangement had been established by letter. Offers of extension had been made and accepted. In some of the correspondence the Bishop of Bathurst had even described the arrangement as "your employment". There was a reasonably well-established set of terms and conditions. Nevertheless, the case was decided on the question whether the arrangements between the parties evidenced an intention to enter into legal relations. Wright J considered at some length the recent English authorities to which I have referred. He rejected a submission that the English cases were of no relevance in Australia because the Church in this country was not established by law. He correctly pointed out that many of the more relevant English cases did not concern clergy of the Church of England. His Honour concluded that the materials showed that the relationship was a religious one, based on a consensual compact to which the parties were bound by their shared faith, based on spiritual and religious ideas, and not based on common law contract (at 90).

198 In New Zealand, the Court of Appeal has adopted a similar approach. Mabon v Conference of the Methodist Church of New Zealand [1998] NZCA 244; [1998] 3 NZLR 513 involved the employment status of a Methodist minister who had been appointed to a shared ministry between an Anglican parish and a Methodist parish. Whether or not the necessary intention to create legal relations had been established depended to a large extent on the interpretation of the Constitution of the Church, which was found in the laws and regulations of the Methodist Church of New Zealand, some of which had been drafted particularly with Parfitt's Case in mind. The five-member Court of Appeal concluded that no intention to establish legal relations was established. The Court said (at 524):

"The particular arrangement between church and minister must be analysed through a contemporary lens to determine whether the parties intend legal relations. The concept of calling is an important part of the subject-matter but is not controlling. And whether the church assumes the obligation of lifelong support for the minister may also be relevant. It is the actual intention of the parties as expressed in their engagement that must be determined. Clearly it is desirable in order to avoid misunderstanding for the parties to document the terms of the relationship and spell out their intention, particularly where in the secular world the day-to-day arrangements would readily be characterised as contractually based. And there are no reasons of legal principle or public policy why the parties should not provide for certain distinct matters to be the subject of a legally-enforceable contract and at the same time intend and so allow other matters to be resolved in other ways."

199 I am aware of one Canadian case in which the question has been raised. In McCaw v United Church of Canada (1988) 51 DLR (4th) 86 the principal question raised before a single judge of the Ontario High Court was the validity of the removal of the applicant's name from the roll of presbytery and from the order of ministers. The question was whether he had been afforded procedural fairness on a disciplinary inquiry. He also sought consequential orders for damages for the wrongful action and conduct of the church and, in the alternative, damages for wrongful dismissal. It was agreed, upon his succeeding on the principal issue, that that would not necessarily result in quashing the decision, he having abandoned any desire to return to his previous position. The question of employment or otherwise was cursorily dealt with by the trial Judge (at 114). He considered that because the plaintiff was dependent on the Church for his position and livelihood, "he was to be considered an employee for the purposes of determining whether the employment had been wrongly terminated", which it had been. There was no finding that the plaintiff was an employee, but merely that he was to be considered as such for a particular purpose. In my opinion, no reliance can be placed on the reasoning in that case to disturb the line of authority to which I have referred.

200 There are several United States decisions where the question of employment of clergymen has been touched on peripherally. However, they are not of great assistance, and do not derogate from the clear theme emerging from the other cases to which I have referred. Moses v Diocese of Colorado and Frey (1993) 863 P 2d 310, a decision of the Supreme Court of Colorado, was a case where a former parishioner sued the diocese and its bishop for damages for injuries sustained as the result of her sexual relations with a priest from whom she had sought counselling. There were several components of the claim, but a major portion turned on whether the bishop and the diocese were vicariously liable for the actions of the priest. In that context the question arose whether the parties were in "an employment or agency relationship". It was held that they were, principally because of the hierarchal nature of the church and the rights of the bishop and the diocese as principal to control and supervise the clergy. The relationship was discussed in conventional employment terms, but the court seems to have equated employment with agency, at least for the purposes of that case. The question of intention to create legal relations was certainly not discussed. In the event the court held that the defendants were liable for a breach of fiduciary duty, negligent hiring and supervision, but were not vicariously liable for the actions of the priest because they were performed outside the scope of the employment or agency.

201 Minker v Baltimore Annual Conference of the United Methodist Church [1990] USCADC 21; 894 F 2d 1354 (1990), a decision of the US Court of Appeals, District of Columbia Circuit, concerned the position of a Methodist minister. It is of limited assistance and does not contain any finding that the minister was an employee. The case as reported deals only with the constitutional competence of the Court to entertain argument that he was an employee. The case, on this aspect, stands for nothing more than the proposition that "a church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court" (at 1359[4]).

202 In Alford v United States of America 1996 US Dist Lexis 21699 the plaintiffs, husband and wife, sued for recovery of internal revenue income taxes and interest for certain years when the male plaintiff was an ordained minister in the Assemblies of God church, and was assisted by his wife. The success of the plaintiffs depended upon whether the male plaintiff was an employee of the particular church, or was self-employed. The question of intention to enter into contractual relations was not discussed. It was assumed that an enforceable contract existed. The US District Court characterised the relationship as a contract of employment. In my opinion it does not assist resolution of the present case.

203 A discussion of the relevant cases would be incomplete without some reference to the nature of an office and office holder. As to the legal nature of an office I can do no better than refer to what Windeyer J said in Marks v The Commonwealth [1964] HCA 45; (1964) 111 CLR 549 at 567 - 568:

"The legal concept embodied in the expression resignation of an office is founded upon the historic idea of offices, ecclesiastical, civil or military, held of the Crown or of a corporation, as a form of property. Beginning in the middle ages, this proprietary idea persisted into the nineteenth century; and it has left a legacy to the law and language of the present day. In mediaeval times and for long afterwards the grant of an office was made in much the same form as a grant of land. Blackstone put this plainly: 'Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments ... For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators': Commentaries, vol. 2, p.36. True, an office-holder must execute his office unless it were one that had become a mere place, a sinecure. If he failed to discharge the duties of the office the grant might be repealed by scire facias. But the duties could be performed by a deputy, unless the office were one, such as a judicial office, which the law required that the grantee serve personally: see Reynel's Case (1612) 9 Co. Rep., at p.97a [77 E.R., at p.874]. Those offices in which personal service was not required were, like other forms of property, assignable, although it is certainly true that 'there is great obscurity in the books respecting the assignment of offices'; Cruise's Digest, vol. 3, p.117. The notion of an office as a form of property in which a man can have an estate is foreign to present-day ideas. But it is, I think, the key to an understanding of the legal meanings of resigning an office and of holding an office at pleasure."

204 Although in most cases an officer was entitled to the fees and emoluments which attach to the office, most modern offices carry a salary only without a right personally to retain fees received. Thus, the right to retain fees can no longer be regarded as decisive in the existence of an office. Rowlatt J in Great Western Railway Co v Bater [1920] 3 KB 266 at 274 described an office as "an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holders". Isaacs J in R v Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452 described tenure, appointment and usually salary as the main indicia of the relationship, tenure involving the notion that a person cannot be removed at pleasure or will, but only after being given an opportunity to be heard and for good cause. Other cases (e.g. Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626) have tended to regard the independence of the function as indicative of being an office holder. That case concerned the position of a marine pilot employed by a harbour authority. Dawson J said (at 682 - 683):

"No doubt in [some cases], absence of control was a significant factor in establishing the independent status of a pilot employed by the Crown or a harbour authority or its equivalent. But it is absence of control in a different or more fundamental sense than the practical absence of control which recent cases reject as a decisive indication that there is no relationship of master and servant. There is a difference between absence of control which, in the case of the pilot, arises from the fact that his status does not permit it and absence of control which, in the case of other employees, stems from the fact that the employer lacks the skill or training necessary to exercise control. True it is that in a technologically complex world the relationship of master and servant may exist notwithstanding the inability of an employer to exercise control over the manner in which a skilled employee performs his work (see Montreal v. Montreal Locomotive Works Ltd. [1947] 1 D.L.R. 161, at p.169; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 C.L.R. 16, at pp.37-38), but in those circumstances it is the practicality of the situation which robs the absence of control of its significance rather than anything else. It is not so much that there is no right of control, but that it is practically impossible to exercise it because of the skill involved, except in incidental matters: Zuijs v. Wirth Brothers Pty. Ltd. [1955] HCA 73; (1955) 93 C.L.R. 561, at p.571. On the other hand, in the case of a pilot in the general employ of the Crown or a harbour authority or its equivalent, it is the very nature of the relationship and of the status conferred upon the pilot which is inconsistent with the exercise of control by his general employer over the matter in which he carries out his actual duties as a pilot."

205 However, it must be accepted that in the case of many office holders, particularly public sector office holders, they will also be employees at common law. There is nothing to prevent an office holder from also being in a contractual relationship with an employer in respect of the performance of the bulk of his duties. As the authors of Macken, McCarry and Sappideen: "The Law of Employment" (4th edition) say (at 67):

"[T]he correct position in Australia in the public sector where there is almost invariably a detailed statute and a large degree of control, is that persons described or appointed as officers are, in almost all cases, employees under a contract although they may at times exercise independent functions invested in them in respect of some of their duties. The extent to which the parties can agree on terms and conditions is, of course, circumscribed by the terms of the relevant statute and sub-legislation. And one party, the employer, by valid regulations, may be able to vary unilaterally some at least of the terms of the contract. Nevertheless there will be other terms, not circumscribed or expressly agreed, which will be implied by the common law. For example, there is an obligation to obey lawful orders. If not codified in regulations, this is imported from the common law obligation of an employee. In the private sector an officer strictly so called will also be relatively rare."

206 One of those rare cases in the private sector will be an ecclesiastical office where terms and conditions are not prescribed by statute or subordinate legislation, but where they are set out in canons or other prescriptions applicable within the church.

207 From these cases I consider it is possible to extract a number of principles concerning the ascertainment of the legal status of clergy with respect to those who provide them with material benefits:

1. It is not merely the fact that the relationship is of a spiritual character with his or her church or its members and his or her superiors that prevents a priest or minister from being an employee.

2. The fact that a person may be said to hold an ecclesiastical office will not in itself require a conclusion that the person is not an employee.

3. Although the priest or minister may be subject to a strict disciplinary regime, and be subject to supervision and control by religious superiors in spiritual and even in temporal matters, such regime will not of itself require a conclusion that the person is an employee.

4. Neither the fact that consistent remuneration is paid and conditions enjoyed, which are also typical of an employment relationship, nor the fact that the person acknowledges acceptance of the position on those conditions will necessarily determine that the relationship is one of employment.

5. The law of contract requires that a necessary element of every contract is an intention to create legal relations. That is as much part of the law of Australia as it is of the United Kingdom. In Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358 at 370 - 371 the majority, speaking of voluntary associations, said:

"They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract."

See also Scandrett v Dowling (1992) 27 NSWLR 483 per Mahoney JA at 491; Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 (NSW Court of Appeal) per Handley JA at 310.

6. It follows that United Kingdom cases dealing with the status of clergy, in so far as they identify the requirement for an intention to enter into contractual relations, have direct relevance to the approach that courts in this State should take in similar situations.

7. That relevance is not diminished by the fact that some of the United Kingdom cases relate to clergy of the Church of England by law established. The recognition of the need to establish an intention to enter into contractual relations has been given its greatest initial emphasis in those cases involving ministers of non-established churches.

8. In most commercial transactions, where the performance of duties or services is associated with the payment of remuneration and the affording of other conditions such as leave etc, an intention to enter into an enforceable contract is presumed. The question is seldom adverted to. It is for the person who contends that there was no such intention to establish that fact. Although an intention to enter into contractual relations is presumed in most cases, the position concerning ministers of religion is noticeably different. Such an intention cannot be presumed in such cases, and the intention will have to be proved: Parfitt (supra) at 376 - 377; Coker (supra) at 147.

9. Whether or not such an intention can be inferred will depend on a great many factors. The spiritual character of the relationship, the fact that it is ecclesiastical authority which may be exercised over the person, the nature of the duties of a priest or a minister, the commitment and dedication to the service of God, the fact that the position may also be regarded as an office and the fact that there is submission to a set of pre-determined rules and conditions or orders and to a set of ecclesiastical discipline will all generally militate against a finding that the necessary intention into contractual relations has been formed.

10. It is not inconsistent with the usual non-contractual status of a priest or minister that there should be a collateral and enforceable agreement as to peripheral matters, without compromising the legal status otherwise found.

11. It is only after the necessary contractual intention has been proved that the question whether the contract is properly characterised as a contract of employment will arise. That question will be decided according to the ordinary common law rules governing that relationship.

208 The Industrial Magistrate discussed the evidence of the nature of the relationship, and particularly that which evolved on the respondent's first arrival in South Australia. His Honour found that a meeting had occurred in Adelaide at which the respondent was promised that a residence would be made available to him in Adelaide, and that he was told that he would be expected to travel interstate to attend to the affairs of the churches and to act as locum tenens in any vacancy. The respondent understood that he would be paid a regular amount by the appellant, the amount of which was not revealed in the evidence, but that it would be related to that paid to priests. He held that there was an agreement at that meeting covering his functions and the terms of his engagement for the time being. That was to endure at least until alternative formal arrangements were made. The salary was to be paid in return for his performing the duties "appropriate for the archbishop of the Orthodox faith, ministering for the moment to the spiritual needs of the members of the SA community in the churches they have established, and performing such other ecclesiastical duties as might be suggested to him by the officers of the SA community". This, he held, was quite independent of the Melbourne meeting. He later described it as "the formation of a contract between the applicant and the SA community which was subject to the condition subsequent that the executive of the Federation, meeting later in Melbourne, was satisfied as to the standing of the applicant as an ordained bishop in full communion with the Greek Orthodox Church and was an appropriate person to be appointed of the Autocephalous Church". He further held that the Melbourne meeting did not intend or have the effect of changing the relationship that already existed between the applicant and the SA community. He then turned to consider whether at any time the parties had renegotiated their arrangements either expressly or by implication. His consideration of later events led to the conclusion that no such change had occurred.

209 The conclusion that a binding contract had been formed at the Adelaide meeting was made relatively early in the Magistrate's 152 page judgment, well before he began considering any issues of law. Those issues of law were only considered for the purpose of the appellant's argument that a minister of religion could not in law ever be considered an employee, that his special position as head of the church prevented his being held to be an employee, and that conventional tests of the employment relationship, when applied to the respondent's exceptional position, justified a finding that he was not an employee.

210 The Industrial Magistrate considered some of the English cases to which I have referred. However, he considered that they had no application in Australia by virtue of the decision of the High Court in Macqueen v Frackelton [1909] HCA 28; (1909) 8 CLR 673. In so holding he was plainly wrong, as that case only relevantly concerned the circumstances in which a civil court would intervene in the affairs of a voluntary association. It had nothing to do with the contractual status or otherwise of clergy. The respondent did not seek to justify the Industrial Magistrate's decision on this ground in either of the appeals before the Industrial Relations Court or before this Court.

211 The Magistrate then proceeded to categorise the contract as one of employment in accordance with the usual common law tests.

212 There were a number of flaws in the Magistrate's decision. It is not necessary to discuss them all. The fundamental flaw, however, is that at no stage does the Industrial Magistrate appear to have considered the question whether the parties intended to enter into contractual relations. He had concluded that a contract existed before even considering the English cases, and then dismissed them as irrelevant by virtue of the decision in Macqueen v Frackelton. His decision on the status of those authorities effectively prevented the Industrial Magistrate from addressing that important question. It follows that a significant and, in this case, fundamental issue was never decided by the Industrial Magistrate.

213 The Industrial Magistrate's approach to the facts was entirely appropriate for an ordinary case involving a commercial relationship. In such a case the intention is presumed and it need not be addressed unless the point is raised. The Industrial Magistrate seems to have treated this case as such a case. Because the case involved the relationship between a religious leader and his church, the necessary intention could not be presumed. It had to be addressed as an essential element of the contract if a contract was to be found. There is no suggestion that it was ever addressed, and the Industrial Magistrate's treatment of the cases merely confirms that.

6. THE APPEALS IN THE INDUSTRIAL RELATIONS COURT

214 The first appeal was heard by a single Judge of the Industrial Relations Court. He reviewed the Magistrate's findings and a number of cases. To some extent his conclusions were dictated by the nature of the argument put to him. It was contended, based on some of the English cases to which I have referred, that as a matter of law a minister of religion could not be an employee of the church whose ministry he practised. The single Judge concluded (correctly in my view) that there was no impediment at law to an archbishop entering a contract of employment. From that he seems to have assumed that the finding of the Industrial Magistrate that the respondent was party to a contract of employment was a finding open to the Industrial Magistrate. He then dealt with the argument that the agreement did not constitute a contract of employment, including an analysis of whether certain subsequent events were consistent with that position. His Honour also concluded that the contract was one of employment, and the appeal was dismissed. However, it is also clear that the single Judge did not address the question of intention to enter into contractual relations. In that respect he too seems to have failed properly to have applied the cases and to have considered a key issue in the case.

215 In the Full Court of the Industrial Relations Court, the learned President, with whom Judge Cawthorne agreed, held that it was open to the Industrial Magistrate to conclude that a legal relationship between the appellant and the respondent was established upon the arrival of the respondent in Adelaide. His Honour rejected an argument that the foundation of the agreement was that reached with the Federation. He dealt with an argument as to the Magistrate's acceptance of certain of the appellant's witnesses. His Honour noted that the cases dealing with clergy concerned contests between a clergyman and his church. He noted, however, that no-one had suggested that the appellant was a church in the traditional sense, nor did there exist a legal entity that had the status of a church with which the appellant could have had a relationship "akin to that which we see as such a central or key feature in all the cases cited to this court". He characterised the respondent as "a provider of spiritual, pastoral and ecclesiastical services to an association of the laity who contract with him for that purpose, as part of a larger or wider initiative to provide a range of social, cultural and sporting services to its members". It was on that basis that the cases to which I have referred were distinguished. His Honour considered as important the concession by the appellant that each of the priests was an employee of the community, that there was nothing in the evidence to indicate that the engagement of the respondent was to be different from that of the other priests, and that the apparent yielding by the respondent in later years to challenges to his authority by the appellant confirmed that relationship in his case. The finding of the existence of a contract of employment, so his Honour held, was therefore open to the Industrial Magistrate.

216 Once again, the majority do not appear to have considered the question of intention to enter into contractual relationships. Furthermore, the argument that there was no practical difference between the respondent's situation and that of a priest, and that there was no identifiable church with which the respondent could have had any sort of relationship is not one with which I can agree. Rather it seems to be based on the assumption that there must have been a contract and that in law it could only have been with the incorporated body.

217 Judge Parsons in the Full Court of the Industrial Relations Court was the only judge to consider the question of intention to enter into contractual relations. Her Honour referred to the recent United Kingdom cases and to Knowles (supra). She observed that there was nothing to prevent a person in the respondent's position from being party to a contract of employment and concluded:

"The primary findings about the Adelaide meeting, upon which the Magistrate drew certain inferences as to the existence of a legally enforceable contract between the appellant and the respondent, were based on his assessment of the witnesses and his acceptance of the Archbishop's evidence. The circumstances proposed by Devries and Another v. A.N.R. Commission & Another [1993] HCA 78; (1992) 112 A.L.R. 641 for interference with those findings have not been established. The inferences drawn were reasonably open to the learned Industrial Magistrate on the evidence and no error has been demonstrated (Warren v. Coombes & Another [1979] HCA 9; (1979) 142 C.L.R. 531)."

218 Later in her reasons her Honour addressed more specifically the question of intention to enter into contractual relations:

"As I have already indicated, there being no written contract it was permissible for the learned Industrial Magistrate to ascertain whether the relationship was founded in contract and the character of the relationship from all the circumstances, including their course of dealings, and upon being satisfied that the relationship was contractual, to apply the tests contained in Stevens v. Brodribb Sawmilling Company Pty. Ltd. [1986] HCA 1; (1985) 160 C.L.R. 16 to the facts found. To some extent there is an overlapping of the considerations relevant to these two issues to which I now turn. In determining whether there was an intention to create legal relations, and if so, whether there was a contract of employment, the evidence accepted by the learned Industrial Magistrate demonstrates the reservation of the right of control over the Archbishop in various significant respects."

219 Her Honour then referred to some specific incidents which occurred many years after the respondent took up his position, and which became the subject of some contention at the trial. However, as I have already pointed out, the question of control is not determinative of the existence of a legal relationship. In dealing with the later events, to which I shall refer in due course, it appeared to her Honour that the respondent had yielded to some demands of the appellant, and from that she concluded that a legal relationship was intended, and that it was consistent with that of employment.

220 There are a number of problems with that approach. Her Honour has inferred an intention to enter contractual relations at the commencement of the relationship from events which occurred many years later. The approach also assumes that the parties were ad idem as to the ultimate right of the appellant to direct such matters, when clearly the evidence shows they were not. The approach also confuses the process of using conventional legal tests to determine whether a contract is one of employment with the process of determining whether a legally binding contract exists at all.

221 However, her Honour correctly identified that the conclusion as to whether the facts constituted evidence of an intention to enter into contractual relations is a matter of inference from the primary facts. As such, it is an inference which an appellate court is in as good a position as the trial court to draw from those primary facts: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. However, unless there are compelling reasons to do so, as in State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588, the appellant court will respect the trial court's findings of fact based on the credibility of witnesses: Devries v ANR Commission (1992) 177 CLR 473.

7. WHETHER THERE WAS AN INTENTION TO ENTER INTO CONTRACTUAL RELATIONS

222 Because the question of an intention to enter into contractual relations was not addressed by either the Industrial Magistrate, the single Judge or the majority of the Industrial Relations Court on appeal, and because it appears to have been inadequately addressed by the one member of the Industrial Relations Court who did consider it, it is necessary for this Court to approach the question afresh, based on the evidence and findings of the Industrial Magistrate.

223 The Greek Orthodox Church plainly has a very long history. It has for a long time been highly integrated with Greek life, culture and government. It is not surprising that when Greek citizens migrated to Australia and other parts of the world, they took their religion with them. But like many migrants, they lacked the legal and institutional structures which supported their church in their homeland. They had to develop their own structures in a context where the church could be nothing more than a voluntary association; see Long v Bishop of Capetown (1863) 1 Moo NS 411 at 461; [1863] EngR 277; 15 ER 756 at 774; Wylde v Attorney-General (NSW) [1948] HCA 39; (1948) 78 CLR 224 at 285. In his judgment in Scandrett v Dowling (1992) 27 NSWLR 483 at 522ff Priestley JA provides a comprehensive analysis of the dilemmas and problems facing bishops and clergy of the Church of England as they began life without their institutional structures in the various British colonies established in the eighteenth and nineteenth centuries. He relates how the courts, especially the Privy Council, were called upon to resolve some of these dilemmas. What he said of the origins of the Church of England in this country has its obvious parallels with the Greek Orthodox Church, and no doubt with others. He said at 554:

"In places where adherents to the faith of the Church of England had to organise their spiritual and Church related temporal affairs without the benefit of their Church law being regarded, as it was and is in England, as part of State law, there was no way by which purely spiritual matters could be dealt with by State courts lacking ecclesiastical jurisdiction. The binding effect of the 'voluntary consensual compact' of which Gladstone spoke and of 'the contract' referred to by the judges in the Privy Council cases must therefore necessarily have come from something other than the enforceability of such compact or contract in State courts. The bindingness must have come from the shared faith of the members of the Church or, as it may be put in the language of the spirit, their baptism in Christ. The belief of Church members is, as I said earlier, respectfully adopting the words of St Paul, that they are all one in Christ Jesus; one way of describing the Church is to say that it, and this unity, are one and the same. The basis of the consensual compact or contract thus must be a willingness to be bound to it because of shared faith, or, in the Latin phrase used in some of the materials, in foro conscientiae. Its binding effect does not come from the availability of the secular sanctions of State courts of law. The availability of these latter sanctions when spiritual matters become mixed with Church property matters is an incident of the consensual compact or contract which means that in those cases where property is involved the consensual compact or contract is given the same effect, in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract."

224 Priestley JA was dealing with the question of the ability of civil courts to intervene in an internal church dispute. That is not this case, although I do not dismiss the possibility that this dispute may be symptomatic of a deeper internal problem. However, the concept of being bound together by a shared faith is of importance in understanding the nature of the Greek Orthodox Church in Australia and of the autocephalous branch of that Church. The evidence shows that that shared faith is the same within the Greek Orthodox Church, notwithstanding the division which has occurred between the Autocephalic Church and the Archdiocese of Sydney. It is the institutional structures which had been developed which came under strain in the split which occurred with the archdiocese.

225 It was not surprising that the various Greek communities used the incorporated bodies that they had formed as the vehicles for providing and holding the land and physical assets of the church they wished to continue. Had the issue arisen, no doubt the parties would have turned to the law of trusts to resolve a dispute as to the use to which such assets could be put. However, there was from the outset, an institution, albeit unincorporated, ultimately known as the Autocephalic Greek Orthodox Church, of which not all members of the communities professed membership. However, it was identifiable by the body of beliefs and practices to which the members subscribed and by the particular view that they took about the authority within the Church, a view not shared by the Archdiocese of Sydney and the Patriarch of Constantinople.

226 Without access to the infrastructure of the Archdiocese of Sydney, the communities supporting the independent churches had to develop their own organisational rules and procedures and their own ecclesiastical hierarchy. Unlike many churches, these were not reduced to a body of written rules, and to a large extent they had to be inferred, no doubt based on rules and practices inherited from the Church in Greece with which the participants were familiar. The constitution of the incorporated autocephalic church provides useful evidence of the accepted rules and practices understood by those who gave evidence in this case.

227 One of the ways they created their own ecclesiastical hierarchy was by employing their own priests. Another was to make use of a willing Archbishop Sergei from another branch of the Orthodox communion. When he became unable to continue, the communities concerned faced the challenge of providing, for the independent churches, a more permanent autocephalic archdiocese with its own full-time archbishop. Although it was not incorporated, there was, nevertheless, an identifiable institutional church. Notwithstanding the failure of the body incorporated in June 1970 to fulfil its intended role, a number of communities from time to time joined or left the Church.

228 Given that the initial split was not over purely doctrinal matters but over matters principally of property, control and authority, it was not surprising that the communities involved made it clear from the outset, as reflected in the rules of the incorporated body, that, at least in the Autocephalous Church, there were clear and distinct roles: the role of the archdiocese and the church was to be purely spiritual; the constitutions of the communities in the church were to be respected by the church; the church would not interfere with "the right and title and interest in the property (real and personal) proprietary rights, educational (except spiritual), management, government, economic, financial or other fiscal rights, policy, social and sporting activity and philanthropic rights of the Communities and including the erection and maintenance of church and like and other buildings and the management and control thereof as to control of the conduct of the congregations thereof, and the finances thereof, and the use thereof". The communities in the church were not to interfere with the purely spiritual role of the church (See constitution, Article 4).

229 It was an archbishop whose ordination was canonically acceptable and one who would respect that division, that the communities involved with the then autocephalous churches were seeking. Mr Elefantis and Mr Manos, on behalf of the communities, initiated discussions with the respondent and believed that they had found a likely candidate. They arranged to bring him to Australia. There was no doubt that Mr Manos and Mr Elefantis were negotiating on behalf of the Federation, not the appellant alone. The Archbishop understood that to be the case. He also understood that he had to be proved acceptable to the Federation before any final arrangement could be put in place. No such negotiations were ever carried out on behalf of the South Australian community alone.

230 I cannot accept that whatever arrangement was made in Adelaide upon the arrival of the respondent was one that was to survive the Melbourne meeting, if indeed the negotiations were to come to nought at that meeting. Nor can I accept that a permanent arrangement was made with the appellant alone, subject to confirmation at the Melbourne meeting. The respondent had entered Australia on a temporary visa. The Autocephalous Church in Australia was small in numbers anyway. The number of priests and churches in the Autocephalous Church during the respondent's episcopate did not change significantly. In the last couple of years of his episcopate the archdiocese comprised twelve priests in all, only five of whom were in Adelaide. There were only ever four or five churches in South Australia forming part of the Autocephalous Church. It was clear from this and from the record of the Melbourne meeting that South Australia alone could not have supported an archbishop. There was never any suggestion that, if appointed, he would minister only to the needs of the South Australian community. Nothing could be concluded until he was accepted by the Federation, or those parts of it which supported an independent Greek Orthodox Church. The respondent himself was clearly of the view that nothing could be resolved until the Melbourne meeting.

231 The respondent was already apparently a consecrated bishop of the Greek Orthodox Church. The South Australian community obviously had the first opportunity to get to know him. As an Archbishop of the Church, he was naturally afforded the honour and respect of the Church, and was expected to attend local services and perform archiepiscopal functions. All of that would be expected out of respect for his office in the church. However, there was never any ceremonial installation to any official position in the churches in South Australia until after the Melbourne meeting.

232 It was not surprising that accommodation was found for him and that some payment to support him was made pending the Melbourne decision. The Industrial Magistrate found, and it was open to him to do so, that the question of payment was discussed in Adelaide, although no finding was made as to what the amount of that initial payment should be or was in fact. It would not be surprising if the payment were linked in some way to the payments then being made to the priests. However, it was not until the Melbourne meeting that the level of payment was finalised and the level of contributions from the various communities agreed. Such evidence as there was about payment before the Melbourne meeting was always cast in terms of what the Archbishop should be paid and what conditions should be afforded, or what he should receive. He was asked what he would want, but the evidence did not suggest any mutual bargaining. It was a unilateral decision of those who led the South Australian community.

233 That in itself does not require a conclusion that a contract was made. It would be normal to discuss both his immediate needs and what might be determined in Melbourne, given the key role that the South Australian officials had already played, and were to play at the Melbourne meeting. Such discussions are often held before a person decides to accept an appointment to an official position, whether or not the payments or conditions so discussed are intended to be contractually enforceable. I will return in due course to the question of leave and the discussions about that which took place in Adelaide, but the taking of leave was not an issue which presented itself or that was even relevant in those few weeks before the Melbourne meeting.

234 However, whatever may have been discussed about such matters, there was never any suggestion that such payments would be made and accommodation found in return for or contingent upon the performance of some religious duties. It was expected that the respondent would perform such ceremonies, as it would be expected of any visiting archbishop, and he did perform them.

235 It was the evidence of the discussions about remuneration, accommodation and leave, vague as that evidence was, on which the Industrial Magistrate relied in order to conclude that there was a contract. They were discussions which, in a particular context, could well lead to a conclusion that a contract was formed. What the Industrial Magistrate failed to give any or sufficient weight to was the nature of the parties to the discussions and the context in which the discussions occurred.

236 One party to the discussions was an archbishop with whom discussions were taking place about the spiritual leadership of a church. It was accepted by the parties to the discussions that nothing could be resolved until the Melbourne meeting. In those circumstances it is simply not possible to infer from the nature of the discussions that the parties then intended to enter into contractual relations. In the circumstances it was an intention that could not be presumed but which had to be proved. The discussions were equally consistent with the non-contractual discussions that would be expected between a spiritual leader and representatives of his church as to the level of maintenance and material support that would be provided to him. In this case, as in most such cases, there was mutual acceptance and satisfaction with the terms discussed. It does not follow, in the case of a religious leader, that an intention to enter into contractual relations is also present.

237 In this case there was nothing in the discussions relied on by the Industrial Magistrate to indicate such an intention. Furthermore, at the time when the discussions took place, there could have been no intention to enter into contractual relations with the appellant in particular, because if the respondent was to take office at all, it could only be with the agreement of all the communities who supported the autocephalous church, and upon financial support coming from more than just the South Australian community.

238 Of course, interim arrangements were made for his support. Of course, there would be discussions about the level of support he could expect and the amount of time he would expect to devote to the affairs of the church if he were to be appointed. Of course, he would expect to perform religious functions when invited. But none of this by itself requires a conclusion that there was a legally enforceable contract between the appellant and the respondent.

239 It seems to have been assumed by the Industrial Magistrate that because the South Australia community had no authority to negotiate on behalf of other communities before the Melbourne meeting, there had to be a contract with the South Australian community. However, as I have already pointed out, the Industrial Magistrate did not address the question whether such a legally binding contract was intended, either at that stage or at the Melbourne meeting. It is to that issue which I must now turn.

240 Both the nature and the structure of the church to which the respondent was coming and the Melbourne meeting are crucial to an understanding of whether anything was intended by way of enforceable contractual relations. The fact that the respondent was to be the spiritual head of a then unincorporated body is important. At once it raises the question as to who would be the contracting party if there was to be a contract. He was to provide spiritual ministrations not to the communities but to the church. Membership of the bodies was not coterminous. No doubt the communities had a keen interest in ensuring that the spiritual needs of the great majority of their members was satisfied, but it was not to the communities or any one of them that the respondent was to provide his services. Indeed, the communities included members who remained faithful to the Sydney Archdiocese and the Patriarch. It is to be remembered that the communities had a variety of activities and interests, not necessarily religion-based. The South Australian community was there to support and encourage all religious, cultural, social, sporting and educational activities to the benefit of the wider Greek community. Part of its perceived obligation was to support religious observances common to many but not universal to all members of the Greek community. I have already recited Mr Manos' evidence in that regard. The respondent was not to provide a service to the communities. The communities, as part of their activities, were there to support the church, and it was in that capacity that the communities, including the South Australian community, undertook that role.

241 The nature of the church as an institution and the respondent's intended role in it were also important. He was to perform a spiritual function and to have a spiritual responsibility. About that aspect no party was ever in doubt. It was not a function which lent itself to legal relationships or to regulation by legal rules.

242 What took place at the Melbourne meeting is also significant. The discussions about remuneration, both as to amount and as to how the communities would contribute, took place in the absence of the respondent. It seems to have been assumed, contrary to what later occurred in fact, that the income from various fees and gifts - fees and gifts not provided by the incorporated communities - would be adequate to maintain the respondent and the archdiocese. What the communities agreed to do between themselves was not to pay for services rendered, let alone services rendered to the communities as such, but in effect to underwrite or to guarantee the respondent's maintenance and support at a nominated level until the expected fees and gifts reached a minimum annual amount. It was not an amount negotiated between contracting parties but a stipend or allowance or form of support considered adequate by the meeting of the Federation. Once the fees were to reach the stated level, there was to be no further financial support by the communities. The fact that the respondent claimed that he never received any such fees save for one or two occasional ceremonies may be because he did not perform any. Neither his orders nor his sacraments were recognised in Greece or by the Patriarch, and his only evidence was that he did not receive any fees from weddings etc. He was not asked whether in fact he performed any. Other evidence to which I have referred indicates that he did not.

243 The commitment having been formulated by those present at the meeting of the Federation, the respondent's response to the formal invitation of the President, as recorded in the minutes of the meeting, is also significant:

"The Archbishop Mr Spyridon says that Mr Elefantis' motion is reasonable and moral and comes from a good heart. The purse of the Communities should not be overtaxed."

244 He responded to the generosity and moral obligation of the communities not as if to a contractual entitlement, and expressed concern at the communities not being over-burdened by their new undertaking.

245 The allowance that was to be paid was not said to be conditional upon performing any given amount of work or of working any particular hours. Mr Manos was not concerned how or when the respondent was to undertake his episcopal functions. The allowance was to be paid regardless of what service was actually performed.

246 Of great significance to this aspect of the case is the evidence of Mr Manos. The Industrial Magistrate did not reject any of his evidence. Indeed, he relied on it heavily for an understanding of the history of the Church, the split with the Sydney archdiocese and the early negotiations with the respondent. Because the Industrial Magistrate, for reasons already identified, did not address the question of an intention to enter into legal relations, it was not necessary for him to address some of the important evidence touching this topic given by Mr Manos. Mr Manos, it will be recalled, was one of the principal negotiators to arrange for the bringing of the respondent to Australia and was a leading light in the Federation and at the Melbourne meeting. His understanding of what the parties intended was critical.

247 Mr Manos at all times understood that the communities would be paying money to the Church. That in fact occurred. It was irrelevant to him whether and to what extent the respondent benefited from those payments. The money would be paid whatever the respondent did, whether he was sick, whether he went away, whether he took leave or whether he went to America to fulfil episcopal duties there. As has already been noted, Mr Manos said that he could have had annual leave for twelve months of the year. He would still have been paid. He was "in a vacuum on his own". According to Mr Manos, the respondent had made it clear, as indeed turned out to be the fact, that there would be times when he would need to go to America. From Mr Manos' point of view that was not a matter of concern and would not affect the payment. In Mr Manos' eyes there was no obligation on the respondent to devote all his time to the affairs of the communities.

248 Although Mr Manos could not recall any discussion about annual leave or long service leave with the respondent in Adelaide, that is not surprising. It probably did occur as the Industrial Magistrate found. However, to Mr Manos and those with whom the respondent was dealing, it was a meaningless concept. The Church would be paid whether the respondent was on leave, performing duties elsewhere, relieving in a vacant church or just doing nothing. From his point of view the respondent could take whatever leave he liked. It was not the concern of the community. To the extent that it was discussed, I have no doubt it was something to which representatives of the community could readily agree simply because it was up to the respondent what duties he performed and when he performed them.

249 It is clear from Mr Manos' evidence as a whole that, from his point of view, as one of the chief negotiators for the Federation, there was no intention to enter into contractual relations.

250 The overwhelming impression from the minutes of the Melbourne meeting and from the evidence of those who were there is that the South Australian community, along with others, would collectively underwrite the maintenance of the respondent's material needs by, in effect, subsidising the archdiocese to a particular level, but only for so long as was necessary, and until the archdiocese, from its own activities and donations to it, could provide such maintenance through its own resources.

251 It seems to me that in all those circumstances the indicators point strongly to the fact that no legal obligations were intended by either "party" to the discussions. Rather, the appellant and others were merely undertaking what they regarded as a community responsibility to underwrite the support of a new Archbishop until the expected fees and gifts to the archdiocese made that no longer necessary. In my opinion the respondent failed to establish that there was ever any intention to enter into a legally binding contractual relationship.

252 The events which unfolded over the next 23 years were entirely consistent with that position. In my opinion they confirm that no contractual intention existed at the time of the respondent's appointment or at any time thereafter.

253 The respondent appears to have performed the necessary rituals and ceremonies as and when he pleased. There were undoubtedly requests addressed either to him or to the South Australian community to fill vacancies which occurred in churches in other States. There were requests from the South Australian community to fill temporary vacancies in churches in South Australia. These obviously necessitated some discussion with representatives of the community as to how best they would be filled. He was obliged to perform his episcopal duties not only in South Australia but elsewhere. There needed to be and there were discussions about how that would be fulfilled, even if only for the purpose of making travelling arrangements. He was not obliged to nor did he report his every movement to the community. He did spend extensive periods of time overseas and the appellant continued to pay his stipend. Whilst he made the final decision about who was to be ordained priest, once again there had to be cooperation in practical terms with the community to ensure that priests were not be ordained with no position to go to, and that vacancies were filled within a reasonable time.

254 The respondent understood and the constitution of the incorporated body provided that he held his position for life (Article 9), and that he had the right to determine his successor (Article 13). He could only be removed for just cause, however that might have to be determined. These are hardly indicative of a contract, let alone a contract of employment.

255 Special donations and appeals were to be made and apparently were made for the Church and for the Archdiocese by the communities as and when they deemed necessary, dependent upon the economic ability of such communities (Article 12). That is not what might be expected of a body or bodies under a contractual obligation to pay remuneration and to afford other conditions to its spiritual leader.

256 For most of the time payments were made by cheques drawn on the accounts of the respondent or of the supposedly defunct incorporated church body, not to the respondent personally, but in favour of the Archdiocese of the Autocephalic Church.

257 Whilst the remuneration continued to be paid throughout by the appellant, the appellant continued to seek and obtain reimbursement of a portion of the amounts paid from other communities according to their means. The appellant no doubt assumed the major role in the immediate provision of the stipend and allowances for the respondent. That was not surprising, as Adelaide remained one of the larger and more influential communities. It became the seat of the Federation from about June 1970 throughout the whole of the respondent's episcopate, and the Church in South Australia probably made greater demands on his time than did that associated with any other single community.

258 All these and other factors which are consistent with the view I have taken of the relationship are described in more detail in Part 3.8 of these reasons.

259 As a result of their peculiar position in Greek society in Australia, the communities, including the appellant, had reserved the right to leave the Church if they wished. Indeed some, notably the Melbourne and Victoria community, did so shortly after the respondent's appointment. The Church continued, and so did its Archbishop. It would be strange if what was said to be the common law contracting party (the appellant) could leave the Church and yet still remain contractually bound to the Archbishop to support him whilst he continues to provide a ministry to the Church.

260 The fact that throughout the period the appellant made PAYE tax deductions from the amount paid is, in my opinion, of little significance to the issue as to whether there was a contract or a contract of employment. Many office holders, both public and private, who are plainly not employees, have such deductions taken out of their remuneration.

261 The fact that priests who served in the several churches were regarded as employees of the communities is significant in that it shows that, in their case, there was an intention to enter into contractual relations. The fact that they were employees of the communities was conceded by the appellant at the outset. According to Mr Manos' evidence, the Constitution of the appellant required that they be so, at least in South Australia.

262 No doubt because of the concession, little evidence was led as to the nature of their relationship with the respective communities, and why it was considered necessary that they should be employees, or as to the significance of that relationship to the parties.

263 Does the fact that they are employees lead to an inference that a similar, or at least a contractual, relationship was intended in respect of the respondent? In my opinion it does not. The bare concession is of little help or relevance without some knowledge of the surrounding circumstances. It would be inappropriate to decide this case on the basis of a concession, information about which has not been placed before the court.

264 I have already endeavoured to show in Part 4 of these reasons that, in the case of ministers of religion, an intention to enter into contractual relations cannot be presumed. It will have to be proved. It cannot be presumed that the relationship was intended in one case merely because, in another, at a subservient level, such an intention is acknowledged. It is necessary to have regard to all the surrounding circumstances applicable to the arrangement in question. When that is done, a picture emerges in this case which shows that the onus has not been discharged. Particularly is this so where the evidence is overwhelming that the one common party intends to enter into contractual relations with one but, through its officers at the time, expressly disavows such intention with the other.

265 There are reasons why this might be so. One such reason might be that the duties of priests were limited to the church to which they were appointed, and it could be said that they had a much closer association with the local community than the respondent, whose responsibilities extended more diffusely across a number of communities in several States. Another might be that priests were in any event intended to be subject to much closer control and direction than an archbishop - a person acknowledged by all in this case to have had disciplinary authority over the priests. There may be other cogent explanations which have not been explored in this case.

266 There remains, however, the argument that it is unlikely that a body such as the appellant would place itself in the awkward position of the archbishop being responsible for the disciplining of the priests, but ultimate control as to their appointment and provision of remuneration being in the hands of the community. This plainly creates a tension, but it is tension of a type not unknown in many organisational structures. Indeed, it is a tension not unknown in the episcopal churches which practise synodical government. In most cases it is a constructive tension which involves consultation and compromise if it is to succeed. Alternatively, on occasions, it can be quite destructive and, as in this case, result in the breakdown of the relationship. But just because that result is possible does not mean that it was intended that there should be a contract of employment or some other contract. I am not satisfied that, because the concession was made in respect of priests, it must follow that there was an intention to enter into contractual relations with the respondent.

267 This was the first time it had been necessary to address the relationship of a religious leader extending beyond the sphere of a single community. It was the first time the communities had had to consider the appointment, on a reasonably formal basis, of an archbishop for the autocephalous churches. It cannot be presumed that a relationship that was satisfactory for priests was also intended for an archbishop or spiritual head in the circumstances in which he was to be appointed, particularly as he was to have disciplinary authority over those priests.

268 The mere fact that there may have been reference to the respondent's initial allowance and conditions being similar to that of the priests is not inconsistent with a desire not to enter into contractual relations. It is consistent with their salary being a marker for the amount to be paid to the respondent. As to other conditions enjoyed by the priests, they would appear to be of little consequence anyway, as the respondent was to be paid his salary and provided his accommodation whether he performed his duties or not. In any event, the evidence suggests that the initial relationship of the respondent's remuneration with the salary of priest was not maintained.

269 It remains to deal briefly with several issues, some of which occupied an unnecessarily large proportion of the trial and which, in many ways, helped to obscure the real issues in the case. The first two concerned the granting of annual leave and long service leave, and disputed conversations with Mr Niarchos, then President of the appellant. The first occurred in 1986 at a reception to a Father Kolindos, an Orthodox priest whom the respondent and the communities were hoping to recruit to the autocephalous church. The respondent's evidence, accepted by the Industrial Magistrate, was that Mr Niarchos asserted to Father Kolindos in the respondent's presence: "All our priests and clergy receive four weeks' annual leave and long service leave, even the Archbishop.... isn't that right, Your Grace?". Accepting that those words were said, it was an accurate statement as to the entitlement of the priests. From the observations I have already made, it was also accurate in respect of the respondent - indeed he could have taken more if he wished. It says nothing about the intention to enter into legal relations.

270 The second concerned a conversation which the Magistrate held had occurred, probably in early 1990. By this time, the relationship between the respondent and the communities had deteriorated significantly. There had been at least one dispute about the ordination of some priests, and the respondent had purported to discipline two bishops in Sydney by terminating their appointments. They did not leave, and had the obvious support of the Sydney community. The appellant maintained that it was within his province as spiritual head to do what he had done. The communities took a different view. There were attempts to have the respondent revoke his disciplinary measures. A letter bearing date 20th July 1989, about which there was some dispute as to the authorship, had been sent in the name of the Federation to the respondent objecting to decisions purportedly taken by a "synod" of the Autocephalous Church to discipline the bishops concerned. This had apparently been done and notified to the Church without the prior knowledge of the administrative committee of the Federation. The letter contained a request that the respondent cease publishing documents without prior approval of the administrative committee, that he review the decisions to unfrock the bishops and in particular that he revoke the suspension of Bishop Meletios. The Industrial Magistrate found that in the course of a subsequent conversation between the respondent and Mr Niarchos, Mr Niarchos said words to the effect "if you reinstate the bishops, I will see that you get your leave".

271 Again, if this was said, it can have no effect on the intention of the parties in 1970, and in the circumstances it was a meaningless undertaking. It may have related to the fact that at that time, as the respondent deposed, he wanted to return to America for some medical treatment not, as the Industrial Magistrate mistakenly found, to convene a synod of the Autocephalous Church. The Industrial Magistrate concluded that in making his offer to the respondent Mr Niarchos was promising him his aid in facilitating the holding of the synod. That was a finding which was not open to the Magistrate, and it may well have affected his finding as to whether the conversation occurred. However, whether it occurred or not is, for the reasons I have given, of little or no moment.

272 The other events also related to the disciplining of the bishops to which I have referred, the failure to ordain a priest at the request of one of the communities and the purported convening of a synod without the authority of the administrative committee of the Federation. All these, so it was held by the Industrial Magistrate, resulted in successful attempts to discipline the respondent and the exclusion of the respondent from discussions with representatives of the Ecumenical Patriarch, thereby indicating the extent of the control exercised in practice by the appellant over the respondent. All this was of principal relevance, of course, to the question whether the contract entered into was a contract of employment. None of it is relevant to the question of whether there was an intention to enter into legal relations. All of it happened in 1989 and 1990. Nevertheless, what appears to have escaped the Industrial Magistrate's attention is that none of these attempts to discipline him were accepted by the respondent. He maintained on many occasions during the course of his evidence that the communities had trespassed into his exclusive domain, contrary to the clear agreement made in 1970 as to the respective areas of control. There was no evidence that he ever in fact revoked the suspension of Bishop Meletios, or that he yielded to any of the other demands of the communities being made at that time. The letter that he was sent threatened that if he refused to act in accordance with the request of the Federation, the Federation would take "other measures for the reinstatement of normality and proper relations of the Autocephalous Church with the Federation and the Greek community in general". What those measures were was never explained. No such measures were ever taken.

273 There was no doubt that for the rest of his period as Archbishop the respondent was, as the Magistrate found, "in deep and fundamental disagreement" with the policies of the Federation. It was incorrect to say that he also did not have the legal or practical authority to stand against those policies. The relationship plainly became intolerable, and on 15 August 1993 the respondent gave the communities three months' notice by announcing from the pulpit his resignation. The Industrial Magistrate found (and this is entirely consistent with the respondent's own position as revealed by his evidence):

"In explaining the reasons for his decision he launched into an emotional and controversial review of his relations in recent years with officers of the SA Community and the Federation. He seems to have made it clear that he believed they had infringed on his own proper authority in the sphere of religious matters, and left him with no scope to give effect to his own views."

274 It is also not surprising that he had been excluded from any discussions with representatives of the Ecumenical Patriarch. The relationship between the communities and the respondent had been extremely poor for several years. The problem that had given rise to the schism in the first place was one related to property and authority within the Church, which had been principally the concern of the lay communities. However, as I have said, these events really had no bearing on what should have been the principal issue in the case.

275 For all these reasons, in my opinion there was no contract between the respondent and the appellant or between the respondent and any of the other communities. There certainly was no contract of employment and no legal entitlement of the respondent to annual leave or long service leave.

276 In my opinion the appeal should be allowed, the order of the Full Court of the Industrial Relations Court should be set aside. In lieu thereof there should be an order that the order of the Industrial Magistrate as varied by the single Judge be set aside, and that the applicant's claim for payment in lieu of annual leave and long service leave be dismissed.

277 It is not clear what orders (if any) were made in respect of costs on the two appeals in the Industrial Relations Court. I note that the combined effect of s 173 and s 185 of the Industrial and Employee Relations Act 1994 is to enable that court to award costs on an appeal but not at first instance. I would wish to hear the parties further on the question of costs.

1. The prosecutor successfully appealed against the decision of this Court to the Privy Council, but the appeal did not impeach this Court's conclusion as to whether such a finding affects the jurisdiction of the court: Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 52 ALJR 407.

The prosecutor successfully appealed against the decision of this Court to the Privy Council, but the appeal did not impeach this Court's conclusion as to whether such a finding affects the jurisdiction of the court: Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 52 ALJR 407.