Australia: Church Trust Property in the Macedonian Orthodox Church

Last Updated: 2 May 2012
Article by Bill D'Apice

Summary - The Supreme Court has passed judgment again on the dispute over church trust property in the Macedonian Orthodox Church.

There has been a long running dispute between the Macedonian Orthodox Diocese of Australia and New Zealand (Church) and the Macedonian Orthodox Community Church St Petka Incorporated (Association).

At the core of the dispute is a contest for control of the affairs of the Parish of St Petka between the Church hierarchy represented by the Bishop and his appointed Priest on the one hand and, on the other, the Association which claims to represent the parishioners. An essential feature of the dispute is the tension between adherence to church law and adherence to the constitution of the Association.

In essence, those in control of the Association maintained that ownership of Association property resides with it and it is not subject to control by the Church, whereas the Bishop contended that the Association is no more than a manifestation of the Parish assembly and that its affairs must be conducted not only in accordance with the Association's constitution but also in accordance with church law.

The dispute started with the appointment of Bishop Petar in 1995 and the Bishop's appointment of Father Mitrev as the Parish Priest for St Petka's Parish in 1996.

The third substantive judgment in this long standing dispute was handed down by Mr Justice Brereton of the Supreme Court on 3 February 2012. It follows substantive judgments by Mr Justice Hamilton in April 2003 and Mr Justice Young, Chief Justice in Equity, in March 2009 (not to mention 46 other judgments on various aspects of the dispute!). Their Honours essentially found as follows in those two judgments:

  • a charitable trust for the purposes of the Macedonian Orthodox religion validly existed, although limited to the use of Association property for a church of that religion and ancillary purposes;
  • when property was held upon charitable trust for an organised church, if it is to be used in accordance with the purpose of the charitable trust, the property must be used in accordance with the doctrines, rituals and practices laid down by the church hierarchy;
  • the Courts do not regulate the practice of religions nor enforce church law. However, they enforce trusts and, in particular, the application of trust property in accordance with the terms of the trust. Where property is given on trust for the purpose of a particular church, there may be a breach of trust if it is applied to a purpose inconsistent with the law of that church;
  • it is not every provision of the church rules nor every matter of church doctrine that will necessarily be a term of the trust, breach of which will give rise to an action; only those elements of them which are "fundamental" or "essential" and, even then, only if they affect property or its use; and
  • what must be decided is whether each relevant rule is so fundamental that it is a term of the trust or whether it is merely an "incidental matter of regulation" which does not go to the core of the trust.

Following the delivery of Mr. Justice Young's judgment, members of the Church lodged a large number of applications for membership of the Association. These applications disclosed all details necessary to demonstrate eligibility but the Association chose to refuse to entertain the applications on the ground that they were not proposed and seconded by existing members. As a result, voting membership of the Association does not correspond with what is required for a Parish assembly under church law.

Mr Justice Brereton found that it was not just a requirement of church law but a term of the trust that members of the Parish should not be excluded from the body entitled to use the church under the trust. To allow exclusion of Parish members from the Association would be a "schismatic" purpose.

Mr Justice Brereton also found that the Association was in breach of trust in that it had:

  • excluded the Diocesan Bishop;
  • excluded the Parish Priest appointed by the Bishop;
  • prevented a Priest licensed by the Bishop from conducting services in the church;
  • employed Priests not appointed by the Bishop; and
  • failed to accept applications for membership from believers in the doctrines of the Macedonian Orthodox Church who satisfied the criteria for membership specified in the Association's constitution, the Diocesan statute and the By-Laws.

Mr Justice Brereton granted the Church an injunction, a declaration and other relief.

He ended his judgement with the hopeful statement that:

"Upon the voting membership of the Association being brought into line with the requirements of the Diocesan statute, the state of hostilities between the Association and the Macedonian Orthodox Church will probably come to an end."

Let's hope this is the case for the Macedonian Church.

This case turned on the facts peculiar to the establishment of the Association and the church law of the Macedonian Orthodox Church. Principles established in the judgments relating to this dispute are of assistance in interpreting the relationship between church trust property associations and the church for which those associations were established. However, the principles are not necessarily applicable across all churches and all church structures.

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