Whether the validity or invalidity of part of the Diocesan statute affects the answers to the sub-questions
201 We have here a situation where there is an hierarchial church, though probably an hierarchial church with a conciliar flavour. That is, a church where the hierarchy are constrained by valid constitutional provisions limiting their authority.
202 If a constitutional instrument is valid then that might validly limit a bishop's authority.
203 However, no invalid instrument can affect the bishop's authority.
204 Thus, generally, if the Diocesan Constitution is invalid in whole or in part, it does not affect the bishop's authority. The only consequence is that if the Diocesan Statute purports to limit that authority by empowering others or requiring the consensus of others, those provisions will be inoperative.
205 Accordingly, although I will make rulings on the submissions as to the validity of the Diocesan Statute in case the matter goes further, I do not consider that those rulings affect the ultimate decision on the question posed.
206 I will now deal with the factual issues that arise with respect to the diocesan constitution. I will deal with the matter under three sub-heads: (a) The Geelong meeting; (b) The ratification in Macedonia; and (c) whether in any event parts of the diocesan constitution are contrary to the 1994 constitution.
(a) The Geelong meeting
207 A large amount of evidence was received on this issue. Various people who were present at the meeting gave evidence and there were vast differences in their recollection.
208 During the proceedings, I heard a good deal of conflicting evidence on whether or not the Diocesan Statute passed at a Meeting of the Diocesan Assembly held at Geelong on 15 and 16 of February 1996 ("the Geelong meeting"). The plaintiffs say it did. The defendants say it did not. I will outline the evidence below, before making factual findings on whether the Statute passed. (Assuming it is of consequence). Although I eventually received transcriptions of tapes of the meeting, the evidence of these witnesses is still of import, as it deals with the surrounding circumstances of the meeting, such as the signing of minutes and the preparation of a text to be sent to the Holy Synod.
209 Before considering the oral evidence I must note that during the proceedings, I expressed concern that there were situations where the independence of interpreters were in question. In particular, at one stage, the interpreter had been sitting with the plaintiffs (Transcript: p 238).
210 The Court insists that interpreters are for the court's assistance. They are to be and to be seen to be completely neutral. In most cases, the court prefers that the interpreter used in court is not even a person who assisted a party in the preparation of its case.
211 Circumstances often mean that the pure rule cannot be kept. Given the scarcity of accredited Macedonian interpreters, it would seem that little could be done about this problem in the instant case, but its existence must be mentioned.
212 The first witness to give evidence on this issue was Father Dvojakovski, who was a priest of St Petka from June 1987 to June 1996. He swore an affidavit on 12 November 2008 and appeared before me as a witness on 25 November 2008.
213 The witness attended the Geelong meeting in his capacity as priest of the St Petka Church. He said he was given the responsibility of making a record of the decisions there made. He said he did not receive a copy of the document he prepared subsequently, and has not seen it since.
214 Father Dvojakovski said that "two or three" people were appointed to take minutes, and he recalled them as being Valentin Spasevski and Father Talevski. During cross-examination, it was put to the witness - and he was suddenly able to recall - that Father Ristevski was the third person appointed to take minutes, and that Father Djrovski and Mr Jazevski were appointed to verify the minutes.
215 At first the witness said that he did not make a written record of the meeting at the time of the meeting (p 101 of Transcript), but he later corrected himself and said that he made "conclusions of the decisions made and to hand that over to the presiding committee". He said he produced a document which set out the conclusions of the meeting as he understood them, dealing with the terms of the Diocesan Statute. As Mr Parker pointed out during cross-examination, the witness did not refer to having prepared the document in his affidavit.
216 The witness admitted that when preparing his affidavit he could only rely on his memory, as he had no written record of the meeting. Mr Parker pointed out that it was only in the weeks leading up to the proceedings that the witness had to cast his mind back to February 1996.
217 The witness agreed that during discussions of the Statute at the Geelong meeting, the Statute was introduced, and then each article discussed one by one. In his affidavit, he said that before this process occurred various people (whom he listed) said that they lacked the authority to agree to the Statute, but during cross-examination he agreed that it was possible that two of the men he named had not even been at the Geelong meeting.
218 The witness later agreed that the people he had listed in the affidavit were people he had already thought prior to the meeting would object to certain parts of the Statute - that is, in his affidavit the people he had listed were people he thought would find the Statute controversial, and so had attributed a statement made at the meeting to them, even though some of these people did not even attend the meeting (at p 106 of the Transcript). He agreed that he had assumed these people had attended and assumed based on what he thought their attitudes would be to the Statute what they would have said about the Statute.
219 The witness said that when the attendees of the Geelong meeting voted on the Statute, there were some objections to the articles which related to property and trustees. He said that there was "no clear conclusion" (Transcript: p 109) on "what was carried and what was not carried". He said that all articles were looked at and passed, but the article on property and trusts was not passed - something which he did not note in his affidavit.
220 During cross-examination Mr Parker broke the process of voting on the Statute into three stages for the witnesses. The first stage was an objection that people did not have the authority to pass the Statute. During the first stage, the witness said that the Bishop told the meeting that the Statute had to pass at that meeting.
221 The second stage was going through each of the articles in the Statute in turn. The Bishop read each article out and invited comments or amendments. The witness said that during this second stage, some amendments were suggested and voted on. Some articles were agreed upon and some were not. Some articles passed unamended, some passed amended. The witness said that none of the articles were rejected (Transcript: p 111), but then said that the article relating to property and trusts did not pass (Transcript: p 111). This confusion was later resolved, with the witness saying the Statute did not pass (Transcript: p 112) because the article on property and trusts did not pass.
222 The third stage of the process involved the bishop standing up and saying something. The witness disagreed with the suggestion that the bishop spoke of giving thanks for the approval of the Statute. The witness also disagreed with the suggestion that people applauded. He agreed that the priests sang a church hymn entitled "for many years", but disagreed that the hymn is usually sung when something good has happened, rather, he said it was sung for general happiness and success in the future.
223 During re-examination, the witness said that after the Geelong meeting he gave his record of conclusions to the chairperson and "those responsible for" the meeting and he has not seen it since. He later identified the chairperson as being Bishop Petar.
224 I formed the view that the cross-examination was effective in justifying a tribunal of fact in accepting this witness's evidence only with a great degree of caution.
225 The second witness was Valentin Spasevski, who swore an affidavit on 13 November 2008. When he appeared before me, he had a notebook containing notes to refresh his memory, which was removed. The witness refused to answer questions directly, and instead made irrelevant speeches in response to many of the questions. His evidence was often contradictory and confusing.
226 The witness said that during the Geelong meeting, he prepared a handwritten note. After the meeting, he said he went outside for a cigarette, and returned to find audio tapes and notes he took missing. He said that he asked a "delegate whose name I do not recall" who took these belongings, and the unknown delegate told him "that Father Mile Talevski took them" (Transcript: p 118).
227 The witness said he was one of the people asked to prepare the minutes of the meeting, and he understood that he would have to sign the minutes as being correct. Father Ristevski and Father Talevski were also appointed to take the minutes. The witness said he did not sit near either of these men at the meeting.
228 The witness said that the 25 November 2008 was the first time he had seen the minutes and he does not know who prepared them. He said he did not participate in the official recording or preparation of the minutes. He agreed that the minutes had his signature on them, but said that he did not sign the document. He said he did not know how the signature came to be on the document.
229 The witness said that the Statute was somewhere in the middle of the agenda of the Geelong meeting. He said that on some articles there was no discussion (Transcript: p 125). He said that the chairperson told the minute-keepers when he said an article had passed that they were to record it as having passed. The witness then said that all articles were accepted (Transcript: p 126) because some were not put to a vote, but the chairperson just said "accepted" (Transcript: p 127). Mr Parker put it to the witness that he assumed an article which the witness proposed amendment to was accepted because there was no further discussion about it (Transcript: p 130) and the witness did not deny this.
230 The witness acknowledged that at the end of the process, the bishop said how pleased he was the Statute had passed and that a prayer was held at the end of the meeting.
231 There was evidence from other witnesses that, at the end of the meeting the priests and laity present sang a hymn, ""For many years" which was only sung at time of celebration of a successful assembly. This witness denied that that hymn was sung (Transcript: p 133).
232 During re-examination, the witness said that Metropolitan Petar initially told the Geelong meeting that they would be able to go back to their committees and report what was discussed at the meeting before they would have to vote on the Statute (Transcript: p 134). He said that this was the reason not every article was read before Metropolitan Petar declared them to be "approved" (Transcript: p 135).
233 In view of the comments I have made in the course of discussing this witness' evidence, it is clear that I do not accept him as a reliable witness.
234 The third witness was Donce Jazevski. He swore an affidavit on 13 November 2008 and appeared before me as a witness on 26 November 2008.
235 The witness agreed that at the beginning of the Geelong meeting there was a procedure or protocol adopted for how it was to be conducted. It was decided three people would take minutes and two others would verify them. The witness said he was one of the two people to verify the minutes. The witness said he understood that the three people taking minutes would later prepare the minutes and then they would be verified. He said he went to the Bishop's office and signed a piece of paper without being able to read it, because he trusted the Bishop. The witness was shown the official minutes and agreed that the signatures of those who were supposed to take the minutes, and those who were supposed to verify them, appeared to be on the document.
236 The witness's memory of the circumstances in which his signature came to be on the document was that he was taken to the Bishop's office after midnight to sign it and at the time there were no other signatures on the document (Transcript: p 140). He accepted that he signed the document (Transcript: p 141) but said he did not see it again until he took the witness stand.
237 The witness remembered that the meeting concluded at two or three in the morning, but could not remember whether it was light or dark when he was taken home (Transcript: p 142). He said he signed the document straight after the meeting. He did not remember clearly, but thought he may have signed a blank document (Transcript: p 143).
238 The witness said that when people complained at the Geelong meeting that they did not have the power to pass the Statute, the Bishop said they had deal with the issue then (Transcript: p 145). He agrees that the Bishop did not say the Statute would be treated as a draft for the time being (Transcript: p 146). This contradicts what the witness said in his affidavit.
239 The witness said he is "quite sure" that at the completion of the meeting there was no singing of the hymn "For many years" (Transcript: p 147).
240 Again the witness's evidence is at variance with documentation and his explanation about this was hard to justify.
241 The fourth witness who appeared before me was Father Mile Tileski, who had sworn an affidavit on 24 November 2008. In 1996, Father Tileski had the St Nicholas Parish in Preston.
242 Father Tileski's affidavit contained a list of all of the church jurisdictions in Australia under the Holy Synod. During his oral evidence, he said he could not remember whether these churches were all represented at the Diocesan Assembly (Transcript: p 148).
243 Father Tileski agreed that he participated in drafting the Statute in 1995. He also took minutes at the Geelong meeting. The meeting went from mid-morning to 2 or 3 am the following day (Transcript: p 151). The witness agreed that the minutes show that Bob Stefanovski had noted that the church community in Canberra had not been part of the process of preparing draft Statute, but the witness did not agree that this note was in the nature of a complaint (Transcript: p 151).
244 Father Simonovska responded to this comment by saying the reason for the lack of church community involvement was that the commissions had been set up in the Holy Synod in that way (Transcript: p 151). The witness, in his affidavit, recalled that a representative of St John at Geelong, Father Nikolovski, said that his committee had not been given the authority to vote upon the Statute (Transcript: p 152). He did not remember any other members so complaining, but thinks that no other members complained.
245 The witness remembered that the Bishop gave general information before each article of the Statute was read in turn (Transcript: p 152). He said that some amendments were proposed, which the Bishop identified as not according with the Constitution of the Macedonian Orthodox Church, and those amendments were not put to a vote. The witness said that no articles were accepted without a vote (Transcript: p 153). He did not record any amendments from Article 22 to Article 132 (Transcript: p 155), even though the official minutes show there were amendments to Articles 29, 95, 96 and 103 (Transcript: p 155).
246 The witness agreed he and Father Ristevski were responsible for preparing the official minutes after the meeting (Transcript: pp 156; 160). He had access to the notes of Mr Spasevski, which say that Article 29 was "accepted by over half the majority" (Transcript: p 156) indicating that an amendment was accepted, something which was not recorded in the official minutes. The witness said he did not recall whether Articles 41, 81 and 86 contained amendments which were accepted (Transcript: p 158). The witness said he did not remember whether an amendment was proposed in respect of the article concerning ownership of church properties (Transcript: p 159).
247 The witness said he was not involved in preparing the Statute that was sent to Macedonia (Transcript: p 159). He said that he and Father Ristevski typed up the official minutes (Transcript: p 160).
248 Father Simonovski swore an affidavit on 24 November 2008 and appeared before me on 26 November 2008. He is the Deputy Bishop of the Diocese of Australia and New Zealand in the Macedonian Orthodox Church. He became the Deputy Bishop in December of 1994 (Transcript: p 161).
249 The witness was shown a letter from Archbishop Mihail to the witness which contained instructions on the preparation of the draft Statute. It instructed that the drafters take into account that the text "must be acceptable to all church communities in Australia" (Transcript: p 162). The witness agreed that two committees were set up to draft the Statute, one in Melbourne and one in Sydney (Transcript: p 162). The churches not located in Sydney or Melbourne did not participate in the drafting of the Statute, but the witness said they were invited to (Transcript: p 162).
250 The witness said that a complete draft was presented to those committees not represented at earlier meetings for their consideration prior to the Geelong meeting (Transcript: p 163). The witness said that the communities' opinions were taken into account through the committee process (Transcript: p 166).
251 The witness said that he did not take notes at the Geelong meeting, but he saw Father Ristovksi take notes (Transcript: p 166). The witness did not clearly state whether the Bishop told people they could vote at the Geelong meeting and discuss the Statute with their communities later (Transcript: p 168) - he did say that he could not remember the Bishop's words. The witness said that all articles were voted on (Transcript: p 168).
252 The witness said that there are corrections in his and Bishop Petar's handwritings on the final text of the Statute, which was sent to the Holy Synod (Transcript: p 170). He said that they used the official minutes, the Constitution of the Macedonian Orthodox Church, and the notes of Fathers Talevski and Spasevski and Stojce Ristovski to prepare the text to be sent to the Holy Synod (Transcript: p 170). The witness later could not remember whether Stojce Ristovski's notes had been used. He said that only typing and grammatical errors were corrected (Transcript: p 170).
253 The witness said he has been unable to locate the notes of Father Ristovski recently (Transcript: p 171). He said they were not used in preparing the document to go to the Holy Synod (Transcript: p 172). This seems to be his final word on this.
254 These last two witnesses gave their evidence impressively.
255 Mr Robert Spasenoski swore an affidavit on 13 November 2008 and appeared before me on 26 November 2008. He was elected President of St Ohrid Church in Canberra in 1986. This church was opened on 18 December 1988. At the Geelong meeting he was elected Vice-President of the Diocesan Assembly.
256 The witness was difficult at times and prone to making irrelevant speeches.
257 The witness said that the articles on church property in the draft Statute were actually rejected by a majority of the people present at the Geelong meeting (Transcript: p 175). He said that they were not accepted "in any form" (Transcript: p 175). He said that the draft Statute had not been completely approved because certain articles were not accepted (Transcript: p 176). He said that no priests voted against any proposals put by the Bishop (Transcript: p 178). He said that there was less voting and discussion as the meeting progressed (Transcript: p 182).
258 Mr Parker showed the witness a letter he (the witness) had written to the Bishop on 18 February 1996. The witness admitted that he sent the letter (Transcript: p 179), which congratulated the Bishop and said "I feel proud … for all our future work" (Transcript: p 179). The witness attempted to explain this by saying said the Statute did not pass, the letter was to congratulate the Bishop on "the fact that he took it upon himself to declare it as being passed" (Transcript: p 180).
259 As regards the article concerning church property, the witness said there was an objection to the properties being owned or controlled by the mother church through the Bishop (Transcript: p 186) and that certain people said they could not accept the article without consulting a general meeting of their members (Transcript: p 186). The witness said that the Bishop explained that a church must accept the canonical jurisdiction of the Macedonian Orthodox Church in order to call itself part of the Macedonian Orthodox Church (Transcript: p 187).
260 Throughout cross-examination, the witness continued to deny that the article concerning church property had passed, however he repeatedly said "It would not have passed" (see, for example, p 188 of the Transcript) rather than "It did not pass".
261 The witness's demeanour on which I have already remarked and his contemporaneous letter shows that this witness's evidence cannot be accepted except with considerable reserve.
262 Father Despotoski swore an affidavit on 12 November 2008 and appeared before me as a witness on 26 November 2008.
263 The witness said that at the Geelong meeting representatives from Wollongong and Rosebery said they would need time to discuss the proposals with their church committees (Transcript: p 204). He said that the Bishop told the delegates they had already had adequate time to discuss the matter (Transcript: p 205). He agreed that the Bishop had probably told them that a decision had to be made that day (Transcript: p 205).
264 In his affidavit he had sworn that the Bishop said "You've had enough time to discuss the matter. We need to make a decision here". When pressed about the difference between his oral evidence and his affidavit, the witness said he could not remember properly and was not sure which was correct (Transcript: p 206).
265 Bishop Petar swore three affidavits for the purpose of the present proceedings: one on 7 October 1997 and two on 8 August 2002. He appeared before me as a witness on 27 November 2008.
266 The witness said he was President of the constitutional panel or committee formed to present the Constitution to the Archbishop's Assembly which adopted it.
267 The Bishop said he had been trying (unsuccessfully) to contact the Archdeacon for a copy of the minutes of the meeting of the Archbishops Assembly on 24 February 1996 (Transcript: p 233).
268 On 24 February 1996 there was a meeting of the Archbishops Management Committee. The Bishop said he did not attend this meeting (Transcript: p 235). The witness said that the composition of such a meeting is usually determined by who can arrive the fastest, due to the urgency of the matter (Transcript: p 235). The Bishop said he was not invited to attend that meeting because he was in Australia (Transcript: p 236).
269 The Bishop agreed that prior to his election as the Bishop of the Diocese of Australia in November 1995 the Holy Bishop Synod was taking responsibility for the affairs of the Diocese (Transcript: p 239). He agreed that in August 1995, and also earlier, the Holy Bishop's Synod decided that a Statute for the diocese of Australia should be prepared (Transcript: p 240). The witness said that the Holy Synod decided that the text should be drafted by two committees, one in Sydney and one in Melbourne, and agreed that the Holy Synod decided that the text was to be acceptable to all church communities in Australia (Transcript: p 240).
270 The witness agreed he was the chairman of the Geelong meeting. The witness agreed there were a few complaints about a perceived lack of time to consider the draft Statute at the meeting (Transcript: p 241). He did not agree that he told the representatives not to worry and that they would be given time after the vote to discuss the Statute with their members (Transcript).
271 The witness agreed that he went through the articles one by one (Transcript: p 241). He said all of the Statute was accepted unanimously, except for one article, which one member objected to (Transcript: p 242). He said that at the end of the process there was a vote to accept the Statute overall (Transcript: p 242).
272 The witness agreed that the version of the Statute prepared after the meeting contained his handwriting (Transcript: p 242). He said the only edits he made were to appropriate language (Transcript: p 242), for example, where it said "church community" he added "parochial", meaning "it's to do with the same thing" (Transcript: p 242).
273 The witness did not remember adding anything to Article 88, or directing that anything be added (Transcript: p 243).
274 The witness said that the Holy Synod made some additions to the text (Transcript: p 244). The witness agreed that the Holy Synod had changed the number of representatives in one article from five to three, and thought this was probably to ensure compliance with the Constitution (Transcript: p 245). The witness said he only became aware of the differences between the text sent to the Holy Synod and the one returned from the Holy Synod "in the last few days" (Transcript: p 246).
275 I should make the following general observations:
(a) The events in question occurred over twelve years ago. Accordingly, it is understandable that there exist some conflicting versions of precisely what occurred.
(b) All of the witnesses who were asked agreed that the Bishop went through the content of the articles one by one - at least in the beginning of the process.
(c) There is more inconsistency among the versions of events told by the defendants' witnesses than there is for the plaintiffs'. For example, the defendants' witnesses have different ideas about how their signatures came to be on the minutes: Valentin Spasevski said he did not know at all how his signature came to be on the document; where Donce Jazevski said he signed a piece of paper - possibly a blank one - without reading it because he trusted the Bishop. This is to be contrasted with the plaintiffs' witnesses general agreement of the events which occurred.
(d) The defendants' witnesses evidence did not completely tally with the contemporaneous documentation including some documentation which was signed by some of those witnesses about the time of the Geelong meeting.
(e) Some of the evidence as to time and place given by some of the defendant's witnesses is unlikely to be correct and probably is an unskilful reconstruction.
(f) I consider that a large amount of the defendant's evidence is impure recollection which has been supplemented by reconstruction so that the witness now believes that what he thought should have happened, did happen.
276 It is generally agreed - including by the Bishop - that there was at least one objection made before the process of voting occurred that delegates did not have the authority to vote on the Statute.
277 There were some notable examples of unjustified internal inconsistencies in the evidence of certain witnesses. For example, Mr Spasenoski's explanation on the difference between his oral evidence that the Statute did not pass and a letter written by him to the Bishop congratulating him on the passing of the Statute was not terribly convincing. Another example of this is Father Dvojakovski's evidence that particular people made objections at the Geelong meeting, only to agree in cross-examination that those people did not even attend the meeting.
278 Virtually all witnesses had a tendency to attribute comments which they assumed would have been spoken by certain people to those people.
279 Belatedly, tapes of the Geelong meeting were tendered. The tapes were in the Macedonian language. Thus, I need to rely on the translations in evidence.
280 The affidavit of Kataarina Cipuseva of 18 December, 2008 disclosed the following position, although she does say that she could not understand all that the bishop said at the meeting.
281 Ms Cipuseva's affidavit says that on Tape 4 the Bishop explained the process of voting at the meeting before the vote commenced. First there were to be discussions of the Statute where attendees could propose amendments: the Bishop said he would ask for amendments and attendees could propose changes from their seats (p 4).
282 The Bishop rejected general discussion before the reading of the articles, saying that general discussion could be conducted at the end (p. 5). Mitko seemed to be proposing the church communities be told before the Statute be finally passed (p 5). Mitko also stated (in spite of the Bishop's requests that he advance these arguments later) that attendees did not have the authority to vote (p 6). Mitko also cautioned that the process should not be rushed (p 6), and the Bishop responded that this has not been a rushed process: there had been commissions tasked to review it and to submit it to the Holy Synod (p 6). The Bishop then read out a letter from a Brisbane community saying that they accepted the proposed Statute, subject to minimal amendments (p 7).
283 The Bishop then commenced the reading of articles one by one (p 8). He read the content of Article 1, then asked "Is Article 1 of the Statute accepted? Anyone against? No one" (p. 8). The Geelong delegate (possibly Mitko again) interrupted and said he did not have the authority to agree to the article passing (pp 8-9). The Bishop responded, "You do not have to vote, that is your right, you do not have to vote… " (p 9). There seemed to be a conclusion that those who abstained from voting would be counted as "no" votes ("They will remain as those against"; "There are no undecided, they are either for or against").
284 The Bishop said he would not tolerate people calling out during the reading of the articles (p 9) and suggested that people submit written proposals for amendments (p 9). He urged the meeting to hurry because of time constraints (p 9). He said that amendments with "more than half the majority of votes" would be accepted (p 9).
285 Upon the reading of Article 2 there was another interruption (again, probably by Mitko) and the Bishop again said he did not have to vote (p 10).
286 Tape 5 begins with an interruption by Ilija Niceski that 21 days notice is required to invite members to a general meeting (p 1). There is some discussion about whether Australian law has been complied with (p 2), the Bishop assures the meeting it has.
287 An amendment to Article 1 is proposed by Valentin Spaseski (pp 2-3). The amendment is put to a vote (p 3) but the tape only records indistinct voices. Spaseski is given the opportunity to state why he has proposed the amendment (p 4). Then, the Bishop asks for hands to be raised in a vote (p 5). Indistinct voices are heard before the Bishop says "The Article, as is, to be accepted" (p 5), but then asks if the word "Republic" should be deleted (p 6). A count is held (p 6), before the Bishop asks if anyone is against the amendment and says "Nobody's against. That means Article One is adopted with the amendment "in Macedonia, with its seat in Skopje." And under its canonical and spiritual jurisdiction. " (p 7). The Bishop appears to be proposing on the spot changes.
288 Article 2 is then put forward for discussion (p 7). As it references Articles 10 and 11 of the Constitution, these articles are read out (pp 7-8). A vote takes place, and after no objections, the Bishop declares "Article two is accepted" (p 8).
289 The same process occurs for Articles 3 -9 (pp 8-16). Some amendments are proposed and discussions held. Eventually, all articles are declared to have passed, some with changes. Then the Bishop requests that Revered Simonovski help with the reading, for "My mouth will catch sour-cream" (p 15).
290 Reverend Simonovski and Bishop Petar jointly read the articles and continue the process (from p 16). It seems as though all of the articles are being read and voted on, though it is difficult to properly tell due to incomprehensible interventions etc (pp 17-24). However, Article 12 is not confirmed to have been accepted (p 16). Article 14 is read, then Article 15, without saying whether Article 14 was accepted or not (p 24).
291 At page 20 the Bishop appears to be saying that Article 40 has already been passed.
292 At times, the Bishop urges the meeting to keep moving - for example, "we go on" at page 15.
293 The Bishop notes there is one person against Article 17 (p 30) and accepts it.
294 Side B of Tape 5 begins with a speech by the Bishop, possibly in the context of a request for elaboration on an article made on Side A.
295 From here, the Articles are discussed in turn, sometimes with acceptance being declared but sometimes not, and occasionally with a vote, but more often not. Often, the Bishop will say an article is a "Constitutional norm", seeming to suggest that it does not need to be voted upon.
296 Article 18: discussed but acceptance/voting not mentioned (on page 30 the Bishop says it is a constitutional norm).
297 Thereafter the meeting discussed the following articles with the following results:
· Article 19: accepted and declared.
· Article 20: declared accepted without discussion.
· Article 21: not mentioned.
· Article 22: no amendment, not declared accepted.
· Article 23: no discussion, Simonovski quickly says its accepted.
· Article 24: read out, no discussion or vote.
· Article 25: read out - in less than a second Simonovski says it is accepted.
· Article 26: read, put for vote, Simonovski immediately says yes. Stefanovski comments on this, but what he says is incomprehensible (p 36). Later, at p. 37 the affidavit says that Article 26 is probably corrected.
· Article 27: read, an amendment is suggested, the Bishop says the article is a constitutional norm.
· Article 28: read, call for amendments, there are none.
· Article 29: read, discussed, Bishop submits an amendment.
· Article 30: read, no discussion or vote.
· Article 31: read, no amendment.
· Article 32: read, no vote or acceptance declared.
· Article 33: read, no vote or acceptance declared.
· Article 34: read.
· Article 35: read, asks if accepted, Bishop declares it must be.
· Article 36: read, Spasenoski says it is accepted.
· Article 37: read, accepted.
· Article 38: declared accepted, read.
· Article 39: read, no vote or declared acceptance.
· Article 40: read (so is an article it refers to), no acceptance mentioned.
· Article 41: read, Bishop proposes an amendment, accepted. However, later (p 46), Metodij has a complaint about this article, which the Bishop dismisses by saying it is not in the form of an amendment.
· Article 42: read, accepted.
· Article 43: read, declared a constitutional norm.
· Article 44: read.
· Article 45: read, accepted (the Bishop asks if it is accepted and Simonovski says yes immediately).
· Article 46: read, not voted or accepted.
· Article 47: read, not voted or accepted.
· Article 48: read, no pause before the next Article.
· Article 49: read.
· Article 50: read.
· Article 52: Read, asks whether there are any amendments.
· Article 53: read.
· Article 54: Read, accepted (says Simonovski).
· Article 55: Read, Bishop declares accepted.
· Article 56: read.
· Article 57: read.
· Article 58: read.
298 It should be noted that at pp 45-47 there is a discussion/argument over an article relating to power in the church.
299 Tape 6 continues with discussion of later articles.
300 Mr Parker says that it is clear that there is a gap between successive tapes where, presumably, the monitor has not noticed that the tape has finished. He also says that there are cases where no-one wanted to move any amendment to a draft clause and the bishop assumed that, accordingly, it was agreed to. However, there is nothing in the tapes to support the view put by some of the defendants' witnesses that the bishop refused to accept amendments that were capable of being accepted.
301 Both sides submit that the tapes support their side's oral evidence. In particular, Mr Blake says that the tapes substantiate the fact that the bishop did not put to the meeting various clauses.
302 My view is that whilst there are gaps in the tapes, there does not appear to be a situation where a bulk of proposed articles are put through without opportunity for debate.
303 Mr Parker also relies heavily on the fact that minutes were produced which were authenticated by the secretaries of the Assembly.
304 Although there is not the statutory presumption with respect to minutes that applies to minutes in the official minute books of corporations, I agree with Mr Parker that the authorities such as the High Court's decision in McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 are of the view that even in the absence of a statute, courts are entitled to give considerable weight to the fact that a meeting solemnly produced an official minute of its proceedings and to the content of those minutes.
305 The minutes bear out the plaintiffs' version of what occurred at the Geelong meeting.
306 In light of the minutes, my comments on the oral evidence and having perused the transcripts of the meeting, I accept Mr Parker's submissions that the bishop did put to the meeting the various clauses and the document was accepted by the meeting.
307 However, it is also clear that, after the meeting, the secretaries of the assembly under the bishop's guidance did make some adjustments to the text of the document that had been approved at the meeting.
308 Mr Parker also referred to the fact that in proceedings in the Supreme Court of Victoria before Byrne J in a case brought by the Parish of St Nikola in Preston Victoria, the argument was put and rejected by his Honour that the Diocesan Statute was invalid.
309 Although the parties to the Victorian proceedings were not the same as in the present case, Mr Parker put that when a superior court makes a declaration after full hearing on a matter affecting a large section of the public, the public interest mandates that the same matter should not be permitted to be freely reagitated.
310 Mr Parker referred to Spencer Bower & Handley, Res Judicata para 234 where the term "judicial decision in rem" is defined as one which determines the status of a person or thing towards the world generally. Mr Parker says that Byrne J's decision is in that category.
311 Mr Parker cites Jenkins v Robertson (1867) LR 1 Sc & Div 117 where the House of Lords held that a Scottish declarator of the existence of a right of way was conclusive against the world.
312 Modern cases on declaratory orders have distinguished between two classes of declaratory action, class A where purely private rights are involved where consent declarations may perhaps be made and class B actions involving public rights, such as town planning laws, when consent orders will not be made. This seems to take the same line as the Jenkins case.
313 In Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 60 ALR 756 the Full Federal Court appears to have taken the view that a decision of the Federal Court in finding the meaning of a particular provision in the relevant legislation in a case involving other parties had more than precedent value and was presumptively binding in subsequent litigation.
314 It may be that this line of cases leads to the proposition that when a court construes a document which is of constitutional significance to a large organisation, it is against the public interest that the same question should be reagitated in subsequent litigation.
315 It is unnecessary to decide whether that principle, assuming it exists, applies to the present case as I have decided on the facts that the Diocesan Assembly passed the document. However, I will need to revert to it when considering the approval process in Macedonia.
(b) Ratification by the Archbishop's Council
316 Article 190 of the Constitution of the MOC provides that the diocesan organs of the MOC are to be regulated by a specific statute "that according to this Constitution is approved by the Diocesan Assembly after a previous consultation with the Holy Synod and an approval of the ACCP". "ACCP" means the Archbishopical Council of the Church and People" established by Article 38 of the Constitution.
317 Mr Parker says, I believe correctly, that there is a two-fold question of construction for the court to undertake. The first is, has there been a failure to comply with the procedural provisions in the Constitution for the adoption of a diocesan constitution? The second is, what consequences follow? Mr Parker says that the two questions are distinct and must be kept distinct.
318 I will now consider the first of these questions.
319 I should note here that the case was hampered by the fact that almost all the available translations of the constitution appeared to be imperfect.
320 There are some relatively insignificant areas where this is noticeable such as the fact that some translations refer to the Archbishop's Council and others to the Archbishop's Assembly. This interchange of terminology has probably also infected these reasons.
321 Of greater consequence is the fact that there is dispute as to whether the word which appears as "previous" in the above quote of Article 190 governed both "consultation" as well as approval by the ACCP. There was further debate as to whether the word translated "approval" meant permission to proceed or endorsement of something that had already occurred.
322 As to this, Mr Parker put that the court had to be very careful when considering a document which had been written in a foreign language not to assume that the same grammatical rules applied as would apply to a document prepared in English.
323 Mr Parker referred me to Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188, 197 where Rich J made the point that English is a positional language. That is, the position of the words in a sentence may give a good guide as to which noun adjectives relate or to which verbs adverbs relate.
324 However, Mr Parker put, the evidence in the instant case shows that Macedonian is not a positional language and one cannot construe a document prepared in Macedonian in the same way.
325 Mr Blake submits that the proper grammatical construction of Article 190 is that the Holy Synod with the approval of the ACCP formulates a draft Diocesan statute which is then put to the Diocesan Assembly.
326 Mr Parker submitted that that was the wrong way around. He put that it was almost inconceivable that the drafter of the Constitution would consider that the lowest body in the system, the Diocesan Assembly would have the last say on the document.
327 Further, if the aim was, as it appears to be, that the controlling bodies in Macedonia were concerned that local dioceses should operate within the worldwide constitution and the worldwide basic principles of order in the orthodox Churches, it was logical that the Macedonian authorities have the last say.
328 The language of Article 190 is ambiguous. I consider that Mr Parker's submissions on its meaning should be accepted. Thus the Diocesan Assembly first passes the Statute and then it goes to Macedonia for approval.
329 This then leads to a consideration of the second question and the approval process in Macedonia.
330 Mr Parker submits that I must put out of my mind seemingly analogous situations such as the passage of a Bill through the Houses of Parliament in a bicameral legislature. He puts that "approval" in Article 190 extends to a process where the approving body may approve of the document passed by a lower body with amendments.
331 It will be remembered that, in the present case, not only were amendments made to the document that passed the Diocesan Assembly by the bishop and his officials in Melbourne, but further minor alterations were made in Macedonia. No vital provisions directly affecting the present dispute was involved in any alteration.
332 Mr Parker asks that the Court remember that, under the constitution, the Archbishop's Council and the Holy Synod are the Supreme legislative bodies for the MOC. Thus, one should construe the layers of documents with the thought in mind that it is more likely than not that it was intended that the ultimate say on all matters would lie with the Macedonian authorities.
333 I accept Mr Parker's submissions. In particular I accept that 'approval' includes the case where the approving body approves the general thrust of a document even though it makes some amendments.
334 The ACCP under the 1994 Constitution is to be constituted by certain ex officio members and certain elected members in accordance with articles 38-49 of the Constitution. By Article 46, one half of the members constitutes a quorum.
335 It is none too clear just what body did consider the diocesan constitution when it was submitted to Macedonia. What is clear is that certain alterations were made because the body handling the matter thought they were needed to comply with the constitution, but that is as far as it goes.
336 Mr Blake, more than once during the oral hearing called for the Minutes of the meeting of the ACCP which dealt with the matter. This call was reinforced with a notice to produce. These minutes were never produced.
337 Mr Parker said that he had and was producing all the relevant material in his clients' possession on the issue, but it was beyond their authority to compel the Macedonian authorities to release material and, despite requests, they had not done so.
338 There is material to suggest that the Australian diocesan constitution was not considered by the full ACCP, but rather the consideration was by some presidential committee.
339 However, even if this were the case, it would not necessarily mean that the ACCP had not effectively done the deed. There are many situations where a sub committee has validly delegated to it all the powers of the full committee.
340 Again, as Mr Parker points out, one must not assume that just because the approval process may not have been followed to the letter that the purported approval is operative. The question is whether the constitution properly construed means that the defective process causes the approval to be void. An imperfect analogy is the old distinction between directory and mandatory requirements.
341 Mr Blake submits that in the circumstances there was no valid ratification and that all that has happened is that a sub-committee of the Council has decided to refer the matter of rectification to the full assembly.
342 Mr Blake urges the view that the diocesan constitution has never taken effect even if it were validly passed by the Diocesan Assembly because of the failure in procedure in Macedonia.
343 My view is that I should not hold that the approval process has failed. I say this for a number of reasons. The approval process appears to have been conducted in the ordinary way with no suggestion that Australia is being given any special treatment. Secondly, it would seem that the Macedonian authorities gave due consideration to the documents: they made reasoned amendments. Thirdly, the presumption of regularity should apply. Fourthly, one needs to be careful in holding a transaction bad on the basis of the poor translations of the vital documents and lack of full evidence. Finally, it is significant that Byrne J held the diocesan constitution to be valid.
344 Because I have reached this view, I do not have to consider the proposition that, if the Diocesan Statute were invalid, the previous By-Laws or other laws are still in force and what effect those laws might have on the case.
(c) Whether Diocesan Statute ultra vires
345 Mr Blake submits that Articles 26(1), 27 and 124 of the diocesan statute are ultra vires the 1994 Constitution and that parts of Article 48 do not come within the proper function of a Diocesan church court specified in Article 153 of the 1994 Constitution.
346 In my view, it is of no value to adjudicate on this matter as the result can have no bearing on the decision on the question I have been posed: it is a complete red herring for the reasons already stated. Briefly these are that as it is acknowledged that the bishop has full authority unless there is a constitutional limitation, if the diocesan constitution affirms the bishop's power, that cannot assist the defendants. On the other hand, if the constitution is invalid, it cannot take away any of the bishop's powers.
347 In any event it cannot be assumed that if the Diocesan Statute is invalid, previous rules affecting the diocese such as the By-Laws of 1977 or 2001 would provide similar rules. This question was not investigated.
348 Assuming that that proposition could be applied generally, I would disagree with the reference to "customary practice". The terms of the Trust exclude such reference.
349 I now turn to other issues.
Surplice Fees
350 "Surplice fees" a term used in churches to refer to fees that people are accustomed to pay a member of the clergy for performing baptisms, funerals etc.
351 In the Established Church of England, members of the congregation were not asked to put money in the plate by way of freewill offertory to defray the expenses of the parish. The parish priest was allotted glebe lands and may have the right to receive tithes of produce and so was able to be sustained financially. He was entitled to keep any surplice fees. Indeed, except for the money which the Book of Common Prayer directed be provided for the poor of the parish, there were no parish accounts.
352 In modern Anglican and Protestant Churches, who receives the surplice fees is usually settled by agreement and the stipend is fixed accordingly. There is no presumption that the parish is entitled to the surplice fees.
353 There is no evidence as to what was or is the practice of the Orthodox Churches as to surplice fees.
354 However, Apostolic Canon XLI states: "For the law of God has ordained, that they who wait at the altar should be nourished by the altar. Neither does any soldier bear arms against an enemy at his own cost".
355 As to this, Professor Erickson said that the general principle being set forth here is that "the clergy are entitled to compensation for their services out of church funds" (Affidavit, [23.1]).
356 In the absence of any evidence of a rule as to whom the surplice fees belong in the Macedonian Orthodox Church, I should not presume that they belong to the Parish. Indeed, if any assumption is to be made particularly in view of Apostolic Canon XLI it would be that the fees belong to the person to whom they were handed.
357 The defendants say that the Bishop and his appointed priest "stole" the surplice fees they received in that they did not account for them to the parish. As the parish has not demonstrated any right to receive these fees, the allegation cannot be sustained.
358 From my reading of the pleadings, the only allegation concerning the abstraction of monies relates to surplice fees.
Visa problems
359 Another difficulty raised by the defendants is that there were visa problems with the priests appointed by the bishop.
360 However, the facts on this matter need to be considered in some depth before making a conclusion on this allegation.
361 It would appear that Father Mitrev was granted a visa to enter Australia because he was needed as the parish priest of S Petka. When the present dispute erupted, the Department of Immigration was informed that the priest had been removed from office. There was at least an implied invitation that his visa should be revoked.
362 In my view, any visa problems were brought about by the defendants' own conduct and can in no way be held to be the fault of the bishop.