The Chief Justice later said (at p 218):
"If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation for the claim for interlocutory relief disappears.
In a context such as the present, a proposition that the respondent has a 'free-standing' right to interlocutory relief is a contradiction in terms."
11 The response of the sixth defendant is that the present application is not of the kind to which the observations in Lenah Game Meats as to the character of interlocutory orders relate. Rather, in the sixth defendant's submission, the situation is one in which an interlocutory regime is already in place under existing orders and one party does no more than to seek a variation of that regime. The sixth defendant refers to Brereton v Milstein [1988] VR 508 as an instance in which such a variation was made. It also points to observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (unreported, NSWSC, 19 September 1988).
12 In Brereton v Milstein, a defendant against whom interlocutory orders of a Mareva kind had been made sought variation of the orders by omission of the principal restraint. This followed what the defendants regarded as a significant change in the circumstances which had caused them to consent to the making of the original orders. Murphy J varied the orders in the way sought by the defendants. In doing so, he took a course which experience would suggest is routinely and uncontroversially taken in such cases.
13 There is, however, a significant conceptual difference in this case. The sixth defendant does not seek merely some dispensation or release from an existing interlocutory order binding on it. The substance of its application is a claim to have the first plaintiff compelled by the court to engage in particular conduct. That, it seems to me, entails much more than variation of existing orders, at least when variation is viewed as something that modifies within some existing scope. It is here that the sixth defendant prays in aid observations in Brimaud v Honeysett. McLelland J was there asked to vary an interlocutory regime under which a provisional liquidator was in office. It is appropriate to set out part of the judgment:
"The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process illustrated in such cases as Stephenson v Garrett [1891] 1 QB 677 and Hunter v Chief Constable [1982] AC 529, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing (see eg s75A(8) of the Supreme Court Act 1970).
Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see e.g. Warringah Shire Council v Industrial Acceptance Corporation - McLelland J 22 November 1979 unreported).
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application (see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447 - 8 ; Chanel v Woolworth & Co [1981] 1 WLR 485 at 492-3; Adam P Brown Male Fashions v Philip Morris 148 CLR 170 at 177-8; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894).
The following passages illustrate the point: 'The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position.' ( Chanel v Woolworth & Co at 492-3 per Buckley LJ.) 'A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ...... . Of course the changed circumstances must be established by evidence ( Adam P Brown Male Fashions at 178 per Gibbs CJ and Aickin, Wilson and Brennan JJ.)"
14 The sixth defendant focuses upon the references by McLelland J to material change in circumstances as a trigger for the availability of orders varying an interlocutory regime. It says that, in the present case, there has been a material change in circumstances since the interlocutory orders currently in force were most recently the subject of consideration by the court, that is, when they were before Master Macready on 5 and 6 August 2003 in the context of an application by the plaintiffs for variation. The change in circumstances is said to consist of the failure of the first plaintiff to reconsecrate the church and to allow the hall to be used for worship. The sixth defendant says that all previous orders making up the interlocutory regime proceeded on the clear, although implicit, footing that the first plaintiff would reconsecrate the church or take other steps making the premises in Railway Street, Rockdale fit to be used by a duly authorised priest installed by the bishop, this being an essential pre-condition to the grant of authority to and installation of a priest. Because there has been no reconsecration and no other steps have been taken, the orders have, it is said, been frustrated.
15 The plaintiffs say, however, that none of this is any form of answer to their principal objection, namely, that the sixth defendant does not seek any substantive relief in the proceedings and therefore cannot assert any claim to interlocutory relief, whether by way of variation of existing interlocutory orders or otherwise - at least to the extent that the interlocutory relief entails an attempt to impose positive obligations on the first plaintiff. It seems to me that this must be so. As the Lenah Game Meats case shows, interlocutory relief cannot be granted at large. Nor do I gather from Brereton v Milstein, Brimaud v Honeysett and similar cases any suggestion that a party who is no more than a defendant and does not seek substantive relief in the proceedings may properly claim an interlocutory order regulating the conduct of a plaintiff in relation to the general subject matter of the plaintiff's claims. Those cases were not concerned with the fundamental requirement referred to in Lenah Game Meats. Brereton v Milstein involved a defendant's application to be freed from Mareva restraint. In Brimaud v Honeysett, the defendant sought termination of the appointment of a provisional liquidator previously made upon the application of the plaintiff. In neither case was there any claim by the defendant/applicant to have the court impose some positive requirement with respect to the plaintiff's future conduct.
First legal or equitable right asserted by sixth defendant
16 Despite what I thus consider to be a fatal procedural obstacle to the grant of the relief the sixth defendant seeks, I proceed to the substance of its claims. The sixth defendant asks the court to compel a bishop to do two things: first, to authorise the use of a particular ecclesiastical article in a particular building so that the availability of that building for comprehensive ecclesiastical purposes may be put beyond doubt and, second, to do all things in the bishop's power to procure one of two named priests to perform priestly functions at a particular location.
17 The legal or equitable rights upon which the sixth defendant relies in asserting an entitlement to such orders are said to have two sources. The first is said to be found in the evidence of Father John (John Cluny Macpherson) of St Ephrem's Cell, 41 Irvine Street, Wallsend who, since June 2002, has been a priest of the Russian Orthodox Church Outside of Russia, having previously been, at various times over a period stretching back to the 1950s, a Stravrophore Monk of that church, an Athonite Monk of the Orthodox Church under the authority of the Patriarch at Constantinople and a Friar's Minor of the Society of St Francis of the Church of England. I admitted, over objection, an expert report of Father John on matters of ecclesiastical law and practice of the Orthodox Church.
18 Father John's report contains a section headed "Responsibilities of a Bishop of the Orthodox Church". That section refers to the content of a purported letter of St Ignatius of Antioch (said to have lived from AD25 to AD107) to Bishop Polycarp of Smyrna and to a work of unstated date and provenance entitled "Didascalia apostolorum". Each purports to set out exhortations to bishops or descriptions of good conduct on the part of bishops. In the former, there is a exhortation "to continue on in your course and to exhort all people so that they may be saved" and to "[v]indicate your office with all diligence, both fleshly and spiritual". The latter says that it behoves bishops to care for all and that they are "in sore peril of destruction if you neglect your people".
19 On the basis of this evidence, the sixth defendant submits that the first plaintiff, being a bishop, has a legal duty to authorise the use of an antimension in the hall in Railway Street, Rockdale and to do all things in his power to procure a named person or some other person acceptable to the sixth defendant to act as a priest at the Railway Street premises.
20 These contentions are not sustainable. The acts of the first plaintiff the court is asked to compel are acts of a discretionary and, one might say, a spiritual kind. There is, in my view, no difference in character or substance between the present claims and a claim that a bishop ordain a particular person priest or baptise a particular child or grant absolution of a particular sin of a particular person. The court would never compel those acts. Nor will it compel the acts the sixth defendant asks it to compel. English cases said by the sixth defendant to indicate otherwise will be examined presently.
21 Even if the writings of church fathers as to the duties of a bishop towards his flock are properly regarded as requiring performance by the first plaintiff of the particular acts in relation to Railway Street establishment, it has not been suggested that the requirements are of a contractual kind giving rise to a contractual right. Nor could a claim to any such species of contractual right be made by the sixth defendant. It is a body corporate which has no soul and does not stand in need of the spiritual succour contemplated by those writings. A corporation "is incapable of exercising itself in the duties of piety and true religion, either publicly or privately, on any day of the week": Rolloswin Investments Ltd v Chromolit Portugal Cutelarias e Produtos Metalicos SARL [1970] 1 WLR 912 per Mocatta J.
22 The requirements emerging from the writings of the fathers, whatever may be their precise content, are of a domestic and non-justiciable kind to which the following observation of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan (1934) 51 CLR 358 is applicable:
"The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer of member concerned to a civil sanction."