Svetozar Spasojevic & Anor v Ilija Vitorovic & Ors [2004] NSWSC 1004 (21
October 2004) Last Updated: 1 November 2004
NEW SOUTH WALES SUPREME COURT
CITATION: Svetozar Spasojevic & Anor v Ilija Vitorovic & Ors [2004] NSWSC
1004
CURRENT JURISDICTION: Equity Division
FILE NUMBER(S): 4731/04
HEARING DATE{S): 18/10/04, 19/10/04
JUDGMENT DATE: 21/10/2004
PARTIES:
Svetozar Spasojevic (First Plaintiff)
Archpriest Father Dragan Saracevic (Second Plaintiff)
Ilija Vitorovic (First Defendant)
Radomir Todorovic (Second Defendant)
Ignjatija Babic (Third Defendant)
Radmila Babic (Fourth Defendant)
Milivoje Gilogrevic (Fifth Defendant)
Desa Gilogrevic (Sixth Defendant)
Stanislav Milojevic (Seventh Defendant)
Radenko Durutovic (Eight Defendant)
Mitar Rebic (Ninth Defendant)
Andrija Kajtez (Tenth Defendant)
Dragica Martic-Pavic (Eleventh Defendant)
Branko Djurichkovic (Twelfth Defendant)
JUDGMENT OF: Brownie AJ
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr JJ Fernon SC, Mr AF Fernon (Plaintiffs)
Mr A Ogborne (Defendants)
SOLICITORS:
Joseph P Saad & Co (Plaintiffs)
Matthews Dooley & Gibson (Defendants)
CATCHWORDS:
Voluntary Associations
trust for use of land for religious purposes
ACTS CITED:
Supreme Court Act 1970 (NSW)
DECISION:
Interlocutory injunction granted.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
Brownie AJ
Thursday 21 October 2004 ex tempore
Revised 27 October 2004
4731/04 Svetozar Spasojevic & Anor v Ilija Vitorovic & Ors
JUDGMENT
1 By notice of motion dated 13 October 2004, the plaintiffs seek
interlocutory relief against the first eleven named defendants, including
interlocutory injunctions.
2 The first plaintiff may be the remaining trustee holding land at Blacktown
upon a trust created or recorded in a deed dated 6 July 1978. By that deed
he, the twelfth defendant and another person (who has since died), declared
that they held the land in question "upon trust for the members of the St
Nicholas Free Serbian Orthodox Church, Blacktown according to the rules
thereof to be sold, leased or mortgaged or otherwise dealt with as the
members shall from time to time direct". The twelfth defendant has filed a
submitting appearance.
3 The second plaintiff, Father Saracevic, is or may be the parish priest. He
was appointed, or purportedly appointed, to this position in 1990 and he
served as if he was the parish priest until February 2004, when either the
church school congregation or the executive committee of that congregation
dismissed or purported to dismiss him.
4 It seems that whilst the reasons for that dismissal related to matters
going either to personal differences between those concerned or to the
administration of the parish, the furtherance of the litigation has led to
significant questions being debated, although only at an interlocutory
level, concerning the constitution of the Free Serbian Orthodox Church
diocese for Australia and New Zealand: whether there is any bishop who has
been validly appointed to that diocese, whether the second plaintiff was
validly appointed as parish priest, and allied questions.
5 It may be as well to emphasise that at this stage it is not my function to
decide these questions. A decision must await the final hearing of the
litigation when, presumably, there will be a great deal more evidence than
there is presently available.
6 The present hearing proceeded on the basis that if the applicants show
there are serious questions to be tried, that is, tried on the final
hearing, then it will be appropriate to decide, by reference to what is
conventionally called the balance of convenience, whether any and, if so,
what injunctions should be granted.
7 It seems that during the period of Communist rule in Yugoslavia various
Free Serbian Orthodox churches were established - in Western Europe, in
North America and in Australia and New Zealand. Later, it seems, various
Free Serbian Orthodox churches merged into one Free Serbian Orthodox Church.
Later still, after the end of the Communist rule in Yugoslavia, there were
negotiations between the Serbian Orthodox Church and the Free Serbian
Orthodox Church.
8 On the applicants' case that led to a reconciliation between the two
churches. On the respondents' case it did not, although there was a
reconciliation concerning spiritual but not legal or administrative matters.
9 The constitution of the Free Serbian Orthodox Church Diocese for Australia
and New Zealand, as amended and dated 1976, is in evidence and a good deal
turns upon it. On the respondents' case it governs the relationship of all
concerned.
10 Article 9 provides that:
"This constitution embraces all legislative and administrative organs of the
Diocese and regulates"
various church authorities and organs which are named, including the
Diocesan Bishop, the Diocesan Church National Assembly, the Diocesan
Ecclesiastical Court and various church school congregations.
11 Article 12 provides that:
"Every organ and church committee in the Diocese is subordinated in all
executive matters directly to the higher executive organs of the Diocese."
12 Articles 15 to 22 deal generally with the position of the Diocesan
Bishop. Article 16 provides that in the case of a vacancy in the position of
the Bishop, the Diocesan Council and the Diocesan Ecclesiastical Court are
to continue to manage the Diocese until the newly elected Bishop takes over.
In the meantime, they are to convoke a meeting of the National Assembly
within six months.
13 Article 17 provides for the election of the Bishop by the National
Assembly. There is no other provision in the constitution for the
appointment of a bishop.
14 Paragraph 23 provides that:
"The Church National Assembly is the supreme legislative and supervisory
body within the Diocese and represents the whole Free Serbians in Australia
and New Zealand."
15 Succeeding articles contain other provisions as to what it might do.
16 There are then various provisions made concerning the Diocesan Council
and its committees and concerning the Diocesan Ecclesiastical Court and
other organs of the church.
17 Article 84 and succeeding Articles deal with the church school
congregations. Article 84 provides that:
"Each church school congregation is considered an integral part of the Free
Serbian Orthodox Church Diocese for Australia and New Zealand and, as such,
is subject to all the statutes of this constitution, church canons and
others regulations, rules and orders of the Diocesan authorities headed by
the Diocesan Bishop."
18 Article 94 provides that a church school congregation is to be managed by
various organs, including a managing committee and by the priest-rector.
There is to be an annual general meeting of the church school congregation
when its officers are to be elected.
19 Article 102 provides that the domain of work of the general meeting of
the church school congregation is as listed there. The list does not include
any reference to the possible removal from his position of the parish
priest.
20 Article 103 is in these terms:
"All misunderstandings and disagreements which might arise in the course of
the year between the priest and teachers on one side, and the committee of
the church school congregation on the other, must be submitted for
consideration to the Diocesan Council. The Diocesan Council, through its
official Diocesan organs, will investigate and study the matter and submit
its decision to the committee. The decision of the Diocesan Council is
final."
21 It may be that the dispute which arose in this case is not covered by
Article 103. It is a dispute perhaps categorised as a dispute between the
priest alone and the committee, as distinct from a dispute between the
priest and the teachers together and the committee. I do not need to decide
this question.
22 Article 111 and succeeding Articles deal with the position of the
executive committee, that is to say the executive committee, that seems to
be also called the managing committee of the church school congregation.
23 Article 111 provides for the election of committee members at the regular
annual general meeting of the church school congregation.
24 Article 117 provides that the committee -
"... is obliged in its entire work and in its decisions to strictly uphold
the statutes of this constitution and by-laws of its church school
congregation as well as all the directives of the Diocesan authorities."
25 The provisions of the constitution of the Diocese are to prevail over the
rules of the congregation.
26 Article 118 prescribes the domain of the authority of the executive
committee by reference to twenty-one numbered paragraphs. Paragraph (4)
provides that the committee is -
"to execute the decisions of the general meeting and the directions of the
Diocesan authorities."
27 Paragraph (9) provides that it is, "to propose to the general meeting the
manner of paying the priest," and other matters. There is no provision
concerning the dismissal of a priest in Article 118.
28 Then there are a series of Articles dealing with the position of the
parish priest. Article 133 provides:
"The parish priest is considered as such when he has regular, lawful and
permanent appointment and approval for the assigned parish by the Diocesan
Bishop; he is the head of the parish and the parish church."
29 Article 134 provides that:
"The parish priest, either permanent or temporary, is appointed by the
Diocesan Bishop or he may be selected for parish priest by the respective
church school congregation (by advertisement) and confirmed by the Diocesan
Ecclesiastical Court."
30 The position of "temporary priest" is not immediately directly relevant.
It is clear that a priest who is to be permanently appointed must be
appointed by either the Diocesan Bishop or selected by the congregation,
with that selection confirmed by the Ecclesiastical Court.
31 Article 135 provides:
"The post of parish priest may be vacated by:
(1) death of the parish priest;
(2) transfer on his request, by Ecclesiastical Court's decree or by call of
duty;
(3) loss of calling on the ground of valid sentence by the qualified
Diocesan authorities;
(4) regular resignation of position."
32 Article 138 provides:
"The church school congregation has no right to, without knowledge and
approval of the Diocesan Bishop, either to dismiss a priest or to bring
another one."
33 There are other provisions limiting the circumstances in which one priest
may lawfully serve in the parish of another.
34 Article 141 provides that:
"The parish priest in his work is under the direct control of his Diocesan
Bishop."
35 Article 142 provides:
"All grievances, accusations and questions in dispute by church school
congregations and individuals against the parish priest must be submitted to
the Diocesan Bishop who shall review the matter(s) in question and resolve
them within his own discretion and his designed rights, or submit to the
Ecclesiastical Court or to the Diocesan Council, which shall depend on the
particular characteristics of the accusations. The decision by either of the
said organs shall be final."
36 I take it that the word "designed" should be "designated".
37 There was an annual general meeting of the church school congregation of
the St Nicholas Church at Blacktown on 1 February 2004. In summary, the
respondents assumed, although perhaps they were not formally elected to,
positions on the executive council of the church school congregation. It is
not necessary to decide any questions about this.
38 At the end of that process words were said to the effect that the second
plaintiff, the parish priest, had to go. He said words to the general effect
that only the Bishop, the Council or the church court could dismiss him. In
other words, words were said to the general effect that the executive
committee or the church school congregation, or the two of them together,
could do this. These words, about which there is some dispute, appear to
have triggered the litigation, although presumably a good deal was thought
about and perhaps spoken about before the meeting commenced.
39 On 8 February Father Saracevic attended the church and conducted the
usual Sunday service. After that service the first defendant delivered to
the second plaintiff a letter purporting to dismiss him, purportedly on the
authority of the annual general meeting held on 1 February, but recording
that "we" - that is the first defendant as president of the executive
committee, and the second defendant, as its secretary - confirmed that
decision.
40 The letter recorded that the decision at the annual general meeting had
been conveyed to His Eminence Bishop Milutin and to his deputy, Father
Djurdjurevic, and later it said that the second plaintiff should report the
matter to Bishop Milutin for his consideration.
41 To state matters briefly, the second plaintiff and Bishop Milutin
asserted that the church school congregation and the executive committee had
acted beyond the limits of their authority and that the purported dismissal
was a nullity.
42 The respondents obtained the assistance of police and prohibited entry of
the second plaintiff into the church. He appealed to the church authorities.
Generally speaking they supported his position, culminating in a decision of
the Ecclesiastical Court on 4 May. There were then some further
communications but the respondents refused to hand over the keys to the
church and associated buildings.
43 There was some delay, perhaps occasioned by reason of the absence
overseas for some weeks of Bishop Milutin. There were attempts made to deal
with the funds of the parish church held at the bank. The second plaintiff
caused the locks on the church buildings to be changed, but then the
respondents caused them to be changed again. Then the litigation commenced
and the present notice of motion was filed.
44 Paragraph 1 of that document seeks an order that the first to the tenth
respondents deliver to the plaintiffs, until further order, possession of
the land in question; and paragraph 2 seeks leave to issue a writ of
possession in respect of that land.
45 Paragraph 3 seeks orders against the eleven respondents, restraining them
from interfering with the performance by the second plaintiff of the Holy
sacraments of the Free Serbian Orthodox Church, including certain named
rituals and from teaching at the church school. I should add that one of the
duties of the priest is to act as a teacher at that school.
46 Paragraph 3 of the notice of motion does not say so explicitly, but the
hearing proceeded on the basis that this was an application for the order in
question, not on a permanent basis but until further order.
47 It seems that it was not until some time after 8 February that anyone
took any point to the effect that Bishop Milutin had not been validly
appointed as a Bishop of the Free Serbian Orthodox Church. It seems that
nobody perceived any possible point then that the second plaintiff had not
been validly appointed as a priest.
48 Initially the respondents, in substance, claimed to have been justified
in dismissing the second plaintiff and when their attention was drawn to the
provisions of the 1976 Diocesan constitution, they said, in substance, that
since Bishop Milutin had not been validly appointed, there was a vacancy in
the position of Bishop and therefore Article 138 authorised the church
school congregation and/or the executive committee to dismiss the priest.
49 If I had to decide the present application by reference to this argument,
I would decide it in favour of the applicants. If one reads the constitution
as a whole, as one must, it seems clear that the role of church school
congregations is limited in so far as they might have any right to dismiss a
priest. That right is limited to acting with the knowledge and approval of
the Diocesan Bishop.
50 On the respondents' case, if there is vacancy in the position of the
Bishop, then the congregation can act on its own. This does not seem to me
to be correct. See the general framework of the constitution and
particularly Articles 9, 12, 84, 103, 133, 135, 138 and 142. Of these,
Article 135 seems, at least so far as the matter has so far been argued, to
be the most significant. It limits to four situations the circumstances in
which the post of the parish priest may be vacated.
51 I should have thought that Article 138 was added by way of emphasis and
for clarity. It seems to me, on a fair reading of the Article itself, as
well as the constitution as a whole, to limit the right of congregations and
not to give them some additional implied right to act on the occasion of a
vacancy in the position of Bishop.
52 So far as the evidence goes, it seems that all concerned, including the
respondents, recognised Bishop Milutin as the Bishop and the second
plaintiff as the parish priest, until some time after the dispute arose.
53 Given the findings I have just made, I will deal shortly with the other
questions that were argued. There is some evidence, sufficient for present
purposes but obviously insufficient for the purposes of a final hearing,
concerning the creation of a hierarchal synod representing three Dioceses of
the Free Serbian Orthodox Church, one in Australia and New Zealand, one in
the United States and Canada and the other in Western Europe.
54 There is some evidence about negotiations between the Free Serbian
Orthodox Church and the Serbian Orthodox Church. There was a meeting in
Chicago in 1984 of representatives of the dioceses I have mentioned of the
Free Serbian Orthodox Church. There is a question about what was resolved
there.
55 In 1988 there was a meeting of the National Assembly of the Australian
and New Zealand Diocese of the Free Serbian Orthodox Church. It seems there
was a resolution passed there, in substance, for the formation of a new
world-wide Free Serbian Orthodox Church under the leadership of Metropolitan
Iriney, who was the Bishop for the United States and Canadian Diocese. That
resolution was passed subject to some conditions.
56 There is a dispute now as to whether those conditions had been met, and
the evidence about that is the subject of contention. It is inappropriate
that I express any view at all about this topic except the view that on the
present evidence, unsatisfactory as it would be in a final hearing, the
applicants have demonstrated that there is a serious question to be tried.
57 The present evidence is generally of a hearsay nature and, I repeat,
entirely unsatisfactory for the purpose of a final decision. Each of the
propositions that Bishop Milutin was not validly appointed as a bishop and
the second plaintiff not validly appointed as a priest, turn ultimately upon
the circumstance that Bishop Milutin was appointed not in a way provided for
by the 1976 constitution of the Australian and New Zealand Diocese. Rather,
he was appointed, or purportedly appointed, by Metropolitan Iriney. If
Bishop Milutin's appointment was invalid, then so was the appointment of the
second plaintiff.
58 I consider that the applicants have demonstrated a sufficient case for
present purposes concerning these questions, but this is not a necessary
foundation for my judgment.
59 The respondent suggested that the applicants had been guilty of delay,
leading to the proposition that as a matter of discretion no injunction
should be granted. I do not accept this. There was, I think, no relevant
delay at all until after the decision of the Ecclesiastical Court in May.
There was then a delay of some weeks, perhaps explained by the absence from
Australia of the Bishop. It seems that there were then communications, if
not discussion, about the possible resolution of the dispute.
60 There was then an attempt at self-help by the applicants, followed by the
respondents themselves resorting to self-help. The proceedings were then
commenced and thereafter proceeded, it seems, with reasonable diligence. The
applicants agreed to the respondents taking a reasonable time to take
reasonable steps. I see nothing in that that would lead to the refusal of
injunctive relief. There is no suggestion of any prejudice or change in
position.
61 The occasion for the present application appears to be that the patriarch
of the Serbian Orthodox Church, who is also recognised as the spiritual head
of the Free Serbian Orthodox Church, is coming to Australia for a short
time, arriving later this month. It may be that the patriarch will wish to
visit St Nicholas Church if, but only if it is, in the eyes of the church
authorities, being administered in a regular manner.
62 The respondents submitted that it would be inappropriate to grant any
relief because what the applicants seek is not the preservation of the
status quo until the final hearing, but the restoration of an earlier
position, that is to say, the position before 1 February or thereabouts or
before the dismissal and the effective exclusion from the church buildings
of the second plaintiff. It is often said that the function of a court
granting an interlocutory injunction is to preserve the status quo until the
final hearing, but that is not necessarily the position.
63 Section 66(4) of the Supreme Court Act provides that:
"The Court may, at any stage of proceedings, on terms, grant an
interlocutory injunction in any case in which it appears to the Court to be
just or convenient so to do."
64 See also Patrick Stevedores Operations (No 2) Pty Limited v Maritime
Union of Australia (1998) 195 CLR 1 at 59 and Liquorland Australia Pty
Limited v Anghie [2001] VSC 362.
65 I note the usual undertaking as to damages given to the Court by the
plaintiffs by their counsel. I consider that I should make an order in terms
of paragraph 3 of the notice of motion, but with the insertion of the words
"until further order". I do not consider that it is appropriate to make
orders in terms of paragraphs 1 and 2, although it may be that some
modification of order 1 is appropriate.
66 I have come to this view because of the terms of the trust and by
reference to the constitution or rules of the St Nicholas Free Serbian
Orthodox Church, Blacktown, as well as by reference to the Diocesan
constitution. The land is held on trust, essentially for the purpose of
religious functions and ancillary activities. Although some services were
held in the church in the period up to July, this was perhaps in breach of
the terms of the constitution, but in any event what is called for is the
celebration of mass each week as well as the holding of other services when
appropriate. It seems to me that the applicants are on strong ground in
saying that this should be done, that is to say, mass should be celebrated
each week and other rituals performed when appropriate.
67 As it seems to me at the moment, the applicants do not need and are not
entitled to possession of the land as if the owners in fee simple and it is,
therefore, inappropriate to make an order in terms of paragraph 1 of the
notice of motion.
68 I invite the parties to confer with a view to agreeing, if possible,
about what form of access, if any, should be ordered or whether it should be
sufficient to make an order in terms of order 3, amended in the way I have
mentioned, and giving the parties liberty to apply. It would seem to be
right to say that perhaps a great deal of costs can be saved if the matter
can be agreed upon today.
69 I note the usual undertaking as to damages given by the plaintiffs to the
Court by the plaintiffs' counsel. I make an order in terms of paragraph 3 of
the notice of motion filed on 13 October 2004. I grant liberty to either
party to apply on 48 hours notice. I decline to make an order in terms of
paragraphs 1 and 2. I decline to make an order at this stage that the
respondents give to the applicants, or either of them, the keys to the
church and the church buildings generally.
70 I wish to make it clear that I do that on the basis that in the context
of this litigation I regard the respondents as members of the executive
committee of the church school congregation, bound by the constitution both
of the Australian and New Zealand Diocese of the Free Serbian Orthodox
Church and the constitution of the St Nicholas Free Serbian Orthodox Church
at Blacktown.
71 The order that I make in terms of paragraph 3 of the notice of motion is
to enable the second plaintiff, Father Saracevic, to perform the Holy
sacraments of the church, including the saying of mass and officiating at
weddings, funerals, baptisms and other church occasions and, if the occasion
should arise, from teaching at the church school.
72 I wish to make it clear to the respondents that if they do not co-operate
in a proper and reasonable way in allowing Father Saracevic to perform those
sacraments and if the occasion arises, from teaching at the church school,
then it may well be that I, or whoever the other judge is who hears the next
round, if there is one, might order them to pay the costs occasioned by the
parties having to come back to court. I do not make a formal order on that
now because I do not think I have enough information before me to do it.
73 I think the respondents must do what is reasonably necessary to enable
the sacraments to be administered in a way which members of the church would
regard at proper.
74 The respondents are to pay the applicants' costs of the motion.
I certify that paragraphs 1 -74
are a true copy of the reasons
for judgment herein of
the Hon. Acting Justice Brownie
given on 21 October 2004 ex tempore and
revised on 27 October 2004
___________________
Susan Piggott
Associate
27 October 2004
mailto:[EMAIL PROTECTED]
LAST UPDATED: 28/10/2004
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