Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic

1. [1]

   WARD JA: I agree, for the reasons given by Payne JA, that leave to file the proposed amended notice of appeal should be refused and that the appeal should be dismissed. I also agree with the observations made by Gleeson JA. The orders proposed by Payne JA should be made.

2. [2]

   GLEESON JA: I have had the advantage of reading the detailed and comprehensive reasons for judgment of Payne JA. I agree that leave to file an amended notice of appeal should be refused for the reasons given by his Honour. On that issue, I would add the following brief observations.

3. [3]

   The hearing below occupied well over five weeks. Having failed, relevantly, on the questions of whether an order should be made for a cy-près scheme under s 9 of the Charitable Trusts Act 1993 (NSW) and as to the terms of the proposed scheme to be ordered by the Court, the appellants sought to recast their case on appeal ignoring the way in which they had conducted their case at trial.

4. [4]

   Unsurprisingly, the respondents took objection to the new case which was first raised in the appellants’ written submissions dated 12 April 2016. In a footnote, the appellants foreshadowed that leave to amend the notice of appeal would be sought “so as to better reflect the issues which the appellants still press” being a reference to grounds 1-7 only. However, the appellants took no step in this regard until after the respondents had served their submissions dated 20 May 2016 and 14 June 2016 respectively. Over a month later, on 21 July 2016, the appellants served a proposed amended notice of appeal which purported to “better reflect the issues which the appellants will still press”. The respondents promptly objected to the amended notice of appeal. The appellants took no steps to obtain leave to file such document in advance of the hearing of the appeal which was fixed for two days commencing 1 September 2016. Indeed, the appellants indicated on 30 August 2016 that they intended to proceed on the existing notice of appeal (grounds 1-7 only).

5. [5]

   Notwithstanding that history, the appellants belatedly sought leave to file an amended notice of appeal during the course of the first day of the hearing of the appeal.

6. [6]

   The appellants’ delay in seeking leave to file an amended notice of appeal was left wholly unexplained. That the respondents would be prejudiced if the very late amendment was permitted is not in doubt and the prejudice is not of a type that could be cured by a costs order, even if case management considerations were put aside.

7. [7]

   Nor was it suggested by the appellants that the new points could not possibly have been met by further evidence at the trial. As the High Court remarked in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [51]:

8. [8]

   The appellants’ failure to explain the delay is a factor weighing heavily against a grant of leave to file an amended notice of appeal.

9. [9]

   There is a related difficulty with the proposed amendment. As Payne JA explains, the amended notice of appeal did not comply with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in relation to the contents of a notice of appeal: r 51.18(2). In addition, the appellants did not comply with the requirements of the Rules in relation to the contents of written submissions. UCPR r 51.36(2) provides:

10. [10]

    As a general proposition, non-compliance with the Rules might be overcome by a grant of leave to file an amended document addressing the deficiencies in the document(s) which have been filed. No such application was made by the appellants in the present case. Accordingly, the amendment application is to be determined by reference to the amended notice of appeal in respect of which a grant of leave was sought.

11. [11]

    That the proposed amended notice of appeal and the appellants’ written submissions did not comply with the relevant Rules (rr 51.18(2) and 51.36(2)) provides an additional reason for refusing the belated amendment sought by the appellants.

12. [12]

    The High Court has repeatedly emphasised that a party is bound by the conduct of his or her case. In Metwally v University of Wollongong (1985) 60 ALR 68, the Court said (at 71):

13. [13]

    Here, the appellants did not point to any exceptional circumstances. The present case is not one in which “all the facts had been established beyond controversy or where the point is one of construction or of law” such that an appellate court may find it expedient and in the interests of justice to entertain the point: Water Board v Moustakas (1998) 180 CLR 491 at 497; [1998] HCA 12.

14. [14]

    Looking as one must “to the actual conduct of the proceedings” (Water Board v Moustakas at 497), the reasons of Payne JA demonstrate that the appellants sought to raise a case not advanced at trial. If such a case had been run at trial, it can be accepted that the respondents (or at least the first and second respondents) would have cross-examined relevant witnesses and most likely sought to lead additional evidence, including expert evidence. There is no injustice to the appellants in refusing leave to file an amended notice of appeal because the primary judge considered the case that the appellants ran at trial: Whisprun Pty Ltd v Dixon at [53]. This Court should not consider this new case on appeal. To do so would involve an injustice to the respondents.

15. [15]

    As to the disposition of the notice of appeal, I agree with the orders proposed by Payne JA for the reasons given by his Honour.

16. [16]

    PAYNE JA: The present appeal raises for consideration the proper application of s 9 of the Charitable Trusts Act 1993 (NSW), which was introduced in 1993, in the context of a charitable trust established for the purposes of constructing and operating a monastery property located near Canberra.

17. [17]

    Section 9 provides, relevantly, that:

18. [18]

    The dispute at the heart of these proceedings concerns a trust, the principal asset of which is a Serbian Orthodox monastery at Wallaroo in New South Wales. In navigating the lengthy history to this matter, it is helpful at the outset to understand the principal actors in this appeal. I have, where appropriate, given abbreviated names to certain organisations to avoid confusion and do so without intending any disrespect.

19. [19]

    The first appellant is the Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust, the registered proprietor of the land on which the monastery stands (“the Property Trust Company”). The second to fifth appellants, Messers Rupar, Nesic, Cubrilo and Mandic, are directors of the Property Trust Company.

20. [20]

    The individual appellants are members of the Free Serbian Orthodox Church for Australia and New Zealand (“the Free ANZ Diocese”), a diocese that formed in 1964 after a split with the Serbian Orthodox Church. In 1984, the diocese changed its name to the Free Serbian Orthodox Church – Diocese for Australia and New Zealand (“the FSOC-ANZ”), to reflect the formation at about that time of an international Free Serbian Orthodox Church. In 1991, the Diocese changed its name again to the Serbian Orthodox New Gracanica Metropolitanate – Diocese for Australia and New Zealand (“the NGM-ANZ Diocese”), as a show of goodwill while the Serbian Orthodox Church and the Free Serbian Orthodox Churches took steps towards reconciling. After 2010, for reasons I will explain in detail later, and after the migration of the vast bulk of the then members of the church back to the Serbian Orthodox Church as a result of a largely successful reconciliation between the two churches, the Diocese returned to using the name the “Free ANZ Diocese”. Except where the context requires reference to names other than the Free ANZ Diocese, this is the description I will use in these reasons to describe this church.

21. [21]

    The first respondent, Bishop Irinej Dobrijevic, is a bishop of the Serbian Orthodox Church and head of the Metropolitanate of Australia and New Zealand of the Serbian Orthodox Church (“the SOC-ANZ Metropolitanate”). The membership of the SOC-ANZ Metropolitanate comprises the Australian and New Zealand members of the Serbian Orthodox Church together with all of those members of the Free ANZ Diocese who rejoined the Serbian Orthodox Church after the international reconciliation between the two churches. The second respondent is a company established in 2008 to hold newly acquired property for the Serbian Orthodox Church in Australia.

22. [22]

    The Attorney General, as protector of charitable trusts, played an active role in the proceedings before the primary judge and in this appeal.

23. [23]

    The issues before the primary judge were far more extensive than those on appeal. Before the primary judge it was asserted that the Free Serbian Orthodox Church Diocese for Australia and New Zealand had ceased to exist, by reason of the reconciliation vote with the Serbian Orthodox Church. The primary judge ruled that vote to have been invalid. Further, his Honour rejected an application by the Serbian Orthodox Church for the property to be applied cy-près at general law. No cross-appeal was brought from those findings.

24. [24]

    In a long and careful decision which addressed the myriad of issues presented to him by the parties, the primary judge concluded, however, that under s 9 of the Charitable Trusts Act the original purposes of the trust had ceased to provide a suitable and effective method of using the trust property having regard to the spirit of the trust: [2015] NSWSC 637. Accordingly, his Honour ordered that a s 9 scheme be devised.

25. [25]

    In a separate lengthy and careful judgment, the primary judge considered the competing s 9 schemes presented to him and ultimately, with some modifications, adopted the scheme propounded by the Attorney General: [2015] NSWSC 1976. That scheme, which I will explain in greater detail below, applied the monastery for the purposes of the SOC-ANZ Metropolitanate and established an advisory committee, comprising five lay persons, two nominated by each of the SOC-ANZ Metropolitanate and the Free ANZ Diocese with a neutral chair, to determine applications for the use of the trust property more generally.

26. [26]

    The appellants filed a lengthy notice of appeal. They subsequently filed written submissions which did not address in any coherent way the issues raised in that notice of appeal. Despite having that matter pointed out to them by the respondents months before the appeal hearing, it was only after lunch on the first day of a two day appeal that the appellants sought to file an amended notice of appeal. For the reasons which follow I would refuse leave to file the amended notice of appeal. The proposed amendments raised fundamentally different questions to those in the notice of appeal and, equally importantly, raised a different case to that conducted by the appellants before the primary judge.

27. [27]

    In relation to the issues the primary judge was asked by the parties to address, the appellants have not demonstrated error on the part of the primary judge.

28. [28]

    For the reasons that follow I would dismiss the appeal.

RELEVANT FACTS

1. [29]

   The Serbian Orthodox Church, established in 1219, is a hierarchical church. The bishop has authority for all spiritual and administrative matters of the diocese. A priest, who acts as the bishop’s delegate when conducting a liturgy, will elevate the name of the bishop in the course of the liturgy.

2. [30]

   A significant number of Serbs who were members of the Serbian Orthodox Church emigrated to Australia after World War II. As there was no organised diocese for them, they came under the American-Canadian Diocese of the Serbian Orthodox Church, which was then headed by Bishop Dionisije of Illinois. In 1952, the Holy Assembly in Belgrade, the highest body in the Serbian Orthodox Church, decided to recall under its jurisdiction all Serbs living in the diaspora in countries where there was no organised diocese. Serbian Orthodox Church denominated church-school communities in Australia were brought under the jurisdiction of the Patriarchate in Belgrade.

3. [31]

   In 1964, the Holy Assembly removed Bishop Dionisije from his position after he labelled the Holy Assembly as “communistic”. Bishop Dionisije declared the American-Canadian Diocese autonomous from the Serbian Orthodox Church. There was litigation in the United States about the ownership of Serbian Orthodox Church assets, ultimately resolved by the US Supreme Court against Bishop Dionisije: The Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich 426 US 696 (1976).

4. [32]

   The majority of the Orthodox Serbs in Australia aligned with Bishop Dionisje, although some continued to accept the authority of the Patriarchate in Belgrade.

5. [33]

   In October 1964, Bishop Dionisije held the First Assembly (or Sabor) of the Free ANZ Diocese. Bishop Dionisije became the first bishop of the Free ANZ Diocese.

6. [34]

   A Diocesan Council was elected and a draft constitution considered and adopted. Resolutions passed by the Assembly included:

7. [35]

   On 31 October 1964, the Free ANZ Diocese adopted its Constitution. This Constitution did not make the bishop a “monarch”. Instead, he was responsible to the Diocesan Council, and in the event of disagreement, the dispute would be resolved by the National Assembly. The laity had a majority representation on both the Council and the Assembly. The method for appointing the bishop was set out in Article 9:

8. [36]

   Article 156 was also of some importance in this case:

9. [37]

   In 1964, the Holy Synod of the Serbian Orthodox Church published a decree that those who had left the Serbian Orthodox Church had excluded themselves from the community of the Serbian Orthodox Church. Thereafter, they were treated as schismatic.

10. [38]

    In 1976, immediately following completion of the litigation in the United States Supreme Court, the Free ANZ Diocese Constitution was amended. Relevantly, Article two provided:

11. [39]

    Article four of the 1976 Constitution provided:

12. [40]

    Article 22 provided, relevantly:

13. [41]

    The primary judge found, which findings were not challenged, that the 1976 Constitution (only slightly modified in 1988) continued to apply to the Free ANZ Diocese at all relevant times and that the method prescribed by the Constitution for the appointment of bishops and the resolution of disputes between the bishop and the laity was not followed in important respects on numerous occasions relevant to the issues before him.

14. [42]

    His Honour summarised the effects of his findings about the history of the organisations at [45] thus:

15. [43]

    In June 1972, the Free ANZ Diocese began to explore ways in which it might buy a parcel of land upon which to build a monastery, a home for the aged and a home for abandoned children.

16. [44]

    In January 1979, Bishop Petar (the administrative assistant to the Bishop) wrote to the Free ANZ Diocese church-school congregations urging the need for the building of a monastery in Australia. The following month, the Council, representatives of the congregations and a number of national organisations approved the collection of funds through the “St Sava Monastery (Missionary) Fund”.

17. [45]

    In November 1979, Bishop Petar published an appeal for the raising of funds. Five thousand copies of the appeal were sent out.

18. [46]

    The terms of that appeal provided, relevantly:

19. [47]

    On 24 November 1980, the Wallaroo Road property was purchased. On 31 December 1981, the property was transferred to the Property Trust Company for nominal consideration.

20. [48]

    Moneys were initially raised from 1980 to 1981 for the purposes of buying the land, building the monastery, and to repay the debt incurred in both of those processes. Donations continued to be received during the 1980s. The primary judge found, at [80], that:

21. [49]

    Building work on the monastery commenced in 1982. The buildings that were on the site on its acquisition were described as the monastery even before the construction of the monastery church. Thus, in Serbs in Australia Volume 1 (Fr T Kazich, ed., 1989, Monastery Press), a book received in evidence for the truth of its contents and relied upon by both parties, it was reported that the Seventh Sabor for the diocese was held for the first time in the new monastery at the end of 1982. At that time voluntary workers were “putting up the roof of the monastery flats”. In his report to the Sabor Bishop Petar stated:

22. [50]

    On 27 January 1990, the monastery was consecrated.

23. [51]

    During this period there was a change to the structure of the wider Free Serbian Orthodox Church. By 1984 there were three dioceses calling themselves the Free Serbian Orthodox Church: one in America and Canada, one in Australia and New Zealand, and one in Western Europe including Britain.

24. [52]

    On 14 August 1984, an extraordinary Sabor was held in Illinois attended by delegates from each of the dioceses, including Australia. The bishops and the delegates of the three dioceses unanimously proclaimed the formation of the Free Serbian Orthodox Church and accepted a constitution for that church. That constitution provided for the church to have a more hierarchical structure with less lay involvement.

25. [53]

    In November 1984, Bishop Petar died. The Free ANZ Diocese had become a “spiritual widow”. Metropolitan Irinej took on the role of administrator of the Diocese himself and appointed Archimandrite Sava as his deputy. This course was consistent with the powers conferred on the Hierarchical Synod under the 1984 Constitution of the Free Serbian Orthodox Church, but not the 1976 Constitution of the Free ANZ Diocese.

26. [54]

    In December 1988, the Ninth Church National Assembly of the Free ANZ Diocese was held, where amendments to the Constitution of the Diocese were proposed and considered. The primary judge found that

27. [55]

    The relevant amendments constituted:

    1. (1)

       changes to the first and fourth articles of the Constitution;

    2. (2)

       changes to the coat of arms;

    3. (3)

       an amendment to provide for the Diocesan Council to choose delegates to represent the Diocese at an assembly of the three dioceses of the Free Serbian Orthodox Church;

    4. (4)

       adoption of an additional church language; and

    5. (5)

       election by each church-school congregation of their delegates to attend the assembly meetings.

28. [56]

    Regarding the changes to the articles of the Constitution, a new Article one was introduced in the following terms:

29. [57]

    Article four was amended, so that the first sentence of the 1976 version of article four was removed, as shown by the strikethrough below:

30. [58]

    In 1990, the Patriarch of the Serbian Orthodox Church announced his goal of achieving reconciliation in the Serbian diaspora. A Reconciliation Proposal was agreed upon in 1991, however, the Holy Assembly did not agree to the whole proposal. Instead, the Holy Assembly resolved to form a Joint Commission to consider future administrative relations between the Serbian Orthodox Church and the Free Serbian Orthodox Church, which was to be renamed the New Gracanica Metropolitanate.

31. [59]

    In June 1991, Metropolitan Irinej, Bishop Vasilje and Bishop Damaskin held an extraordinary Sabor, where the Free ANZ Diocese Assembly passed a resolution to “show goodwill at this difficult time of reconciliation” to change its name to the Serbian Orthodox New Gracanica Metropolitanate– Diocese for Australia and New Zealand (“NGM-ANZ Diocese”). It was also decided at this Sabor that any decision of the Joint Commission would only be implemented once confirmed by the NGM-ANZ Diocese.

32. [60]

    On 15 February 1992, Patriarch Pavle, Metropolitan Irinej, Bishop Vasilje and nine bishops of the Serbian Orthodox Church concelebrated a liturgy of reconciliation in the Cathedral at Belgrade, whereupon the clerics and rites performed in the Free Serbian Orthodox Church dioceses were confirmed and the entire New Gracanica Metropolitanate were welcomed into the fold of the “now one Serbian Orthodox Church”.

33. [61]

    The primary judge found, at [321], that:

34. [62]

    In January 1993, the Diocesan Plenum of the NGM-ANZ Diocese held a meeting and passed a vote of no confidence in Bishop Vasilje. On 20 May 1994, the Holy Assembly of Bishops in Belgrade appointed Archimandrite Sava (juric) as bishop of what was called the vacant diocese for Australia and New Zealand of the New Gracanica Metropolitanate. Some members of the Church National Assembly expressed concern that they had not been involved in choosing the new Bishop. However, with Mr Nesic’s (the third appellant) and Metropolitan Irinej’s support, Bishop Sava faced no further opposition.

35. [63]

    The latter appointments were not in accordance with the Constitution of the Free ANZ Diocese but the primary judge found (and there is no challenge to this finding on this appeal) that the Free ANZ Diocese accepted the appointments and there was thus a variation of the consensual compact which governed the operation of the Free ANZ Diocese.

36. [64]

    Conflict between the clergy of the NGM-ANZ Diocese and certain lay members began to emerge in late 2004. On 24 December 2004, a Plenum meeting was held, but was discontinued by the then Bishop on the ground that former members (Mr Nesic and Mr Toma Banjanin) were present but refused to leave. The National Assembly, held the following day, elected a new council to the exclusion of Mr Nesic and Father Saracevic.

37. [65]

    In September 2005, the Annual General Meeting of the Property Trust Company voted for Mr Nesic to chair the meeting, rather than the Bishop. The tension was predicated, in part, by the Company’s call for the Bishop (or the Diocese) to pay rent and expenses for the Bishop’s residence on the monastery property.

38. [66]

    In 2006, Bishop Irinej Dobrijevic was elected by the Holy Assembly in Belgrade as Bishop of the Serbian Orthodox Church with responsibility for the ANZ Diocese and Bishop-Administrator of the NGM-ANZ Diocese (as noted above the latter appointment was not in accordance with the 1976 Constitution but the primary judge found it was nonetheless valid by reason of alteration of the consensual compact governing the operation of the Free ANZ Diocese). Bishop Irinej Dobrijevic attempted to complete the unification of the two dioceses, but was resisted by some members of the laity of the NGM-ANZ Diocese, including the present appellants.

39. [67]

    In December 2006, Bishop Irinej advised all parish administrators and others that he intended to hold the next National Assembly in Sydney, thus moving the administrative centre of the Diocese from the monastery to Sydney. This proposed move, and the Bishop himself, were heavily criticised in a paper prepared by Mr Nesic and Mr Banjanin which was published online. The Bishop demanded that the text be withdrawn and an apology issued. The Bishop said that the men had excommunicated themselves and rendered themselves subject to disciplinary punishment. The Bishop also wrote to all the organisations in the NGM-ANZ Diocese, saying that members who were excommunicated could not participate in meetings. This extended to meetings of the Property Trust Company.

40. [68]

    On 15 September 2007, the Property Trust Company passed a special resolution to change its constitution. The changes resulted in the Board no longer requiring a balance of lay and clergy members, paving the way for a greater representation of lay members. They also saw the Bishop’s active role on the Board removed; he was to be an “honorary president” only.

41. [69]

    Father Saracevic had been a priest in the Blacktown parish before having a falling out with his parishioners and had been without a parish since 2005. In late 2007, he took a position with the Old Calendar Orthodox Church of Greece – Holy Synod in Resistance (“OCOCG–HSIR”). He was subsequently defrocked by Bishop Irinej. Father Sarcevic was not notified of the charges, the penalty was not imposed by the Ecclesiastical Court and there was no hearing.

42. [70]

    The conflict escalated when, in October 2007, Bishop Irinej announced that the 15th National Church Assembly would be held in Sydney.

43. [71]

    On 1 December 2007, Mr Mandic and Mr Kaladjudjevic, members of the Diocesan Council, along with four others, said to be writing with the support of 10 congregations and four Serbian organisations, sent an invitation to “legally elected delegates” and “faithful people” to attend an Assembly at the monastery.

44. [72]

    On or about 10 December 2007, Bishop Irinej caused a warning to be published regarding the “illegal call” for the meeting at the monastery. The notice also stated that Mr Mandic and Mr Kaladjudjevic had been excluded from financial membership in any church-school parish. At the same time, the Bishop convened a meeting of the Diocesan Council without inviting Mr Mandic or Mr Kaladjudjevic. The primary judge found that the Bishop did not have authority to exclude these members, nor did the Council have authority to ratify his decision.

45. [73]

    On 20 December 2007, the Bishop and the Ecclesiastical Court both published an announcement that any delegates who took part in the monastery meeting would be stripped of their financial membership in the community and referred to the Ecclesiastical Court for discipline. The Ecclesiastical Court excommunicated Mr Nesic from the Orthodox Church on the basis that he still had not apologised to the Bishop for his online publication. The Ecclesiastical Court said he was stripped of all rights to sacraments and church rights. Mr Nesic did not receive prior notice that proceedings had been brought against him, nor did he have the opportunity to defend himself.

46. [74]

    A meeting that described itself as an Extended Plenum took place at the monastery on 29 December 2007, notwithstanding the Bishop’s warnings. Mr Nesic was elected to chair the meeting. The meeting was not a meeting of the Church National Assembly. Those attending the meeting issued a media release that conveyed greetings to Patriarch Pavle of the Serbian Orthodox Church, but also advised that the meeting had passed a vote of no confidence in the administrator, Bishop Irinej. The meeting stated that those present did not recognise the validity of a “so-called meeting” held on the same day in Sydney and would not acknowledge decisions that might be made at that meeting.

47. [75]

    On 6 February 2008, Bishop Irinej wrote a letter to all parish administratiors and committees of church-school communities of the NGM-ANZ Diocese condemning what he called the illegal and graceless meeting. He said that no such meeting could be held without the Bishop’s authority and that those who had called the meeting had placed themselves outside the protection of the Church. Bishop Irinej stated that various individuals either had been stripped of their rights to financial membership or would be stripped of those rights if they did not repent and apologise.

48. [76]

    Between 2007 and 2008, Bishop Irinej was also in conflict with four NGM-ANZ Diocese church-school congregations. During this period Bishop Irinej excommunicated numerous people, removed them from their office in the congregation and appointed trustees in their place. Meanwhile, the Property Trust Company continued to reject the Bishop’s authority and sought to exclude him from the monastery property.

49. [77]

    In 2008, these divisions in the NGM-ANZ Diocese spilled over to the monastery. Prior to March 2008, the Bishop and clergy and the individual members of the Diocese generally had unfettered access to the monastery property. On 22 March 2008, the directors of the Property Trust Company resolved to change the locks and keys to buildings on the monastery grounds and further resolved that all access to the property would be a matter for the directors of the Property Trust Company. On or shortly after 22 March 2008 the locks were changed. This was done without the directors consulting Bishop Irinej.

50. [78]

    On 27 March 2008, Bishop Irinej issued a notice addressed “To Whom it May Concern” stating that the monastery fell under the direct jurisdiction of the Bishop. He referred to Article 22 of the 1976 Constitution.

51. [79]

    Following the issue of Bishop Irinej’s decree of 27 March 2008, members of the Diocese, acting with the Bishop’s approval, changed the locks again. In April 2008, Mr Nesic (as chairman of directors of the Property Trust Company) called the police when he found that the monastery church had been locked and that members of the Property Trust Company could not enter. On a number of occasions in 2008 and up to 2010, the locks were changed by one group and then changed again by another.

52. [80]

    The primary judge found that Bishop Irinej was entitled to supervise the monastery under the 1976 Constitution and the appellants acted in breach of trust in acting to prevent him from doing so. No challenge was made to those findings.

53. [81]

    Work on a new constitution had resumed after the appointment of Bishop Irinej and a joint legislative committee consisting of representatives of both the NGM-ANZ Diocese and the Serbian Orthodox Church-ANZ Diocese had prepared a draft of a new constitution for a unified diocese and given it to Bishop Irinej. Messrs Nesic, Banjanin and others complained that the draft did not represent the views of the members of the NGM-ANZ Diocese.

54. [82]

    On 4 September 2010, assemblies of both the Serbian Orthodox Church-ANZ Diocese and the NGM-ANZ Diocese were held in the presence of each other in Melbourne. Both passed resolutions to adopt the unified constitution, which were approved by the Holy Assembly on 23 May 2011. The primary judge found that those resolutions were invalid and did not have the effect that the Free ANZ Diocese ceased to exist as a separate association. No cross appeal was brought from these findings.

55. [83]

    Since the meeting on 4 September 2010, the Free ANZ Diocese has been functioning entirely separately from the SOC-ANZ Metropolitanate. As the Free ANZ Diocese did not have a bishop, it was unable to convene many of its administrative bodies (which require the bishop to be a member).

56. [84]

    On 15 November 2010, the Property Trust Company wrote to Bishop Ambrose granting him approval as Bishop of the OCOCG-HSIR, Diocese for Australia, to conduct divine liturgy in the church of the monastery and to hold the first Annual General Meeting of the Australian Diocese of the Old Calendar Orthodox Church of Greece on the premises of the monastery. On 19 November 2010, the OCOCG-HSIR conducted a service at the monastery. This, of course, was without the approval of Bishop Irinej.

57. [85]

    On 22 March 2011, Mr Nesic as chairman of directors of the Property Trust Company wrote to Bishop Ambrose. He advised that the board of the Property Trust Company recognised and acknowledged his Grace as administrator of the Old Calendar Greek Orthodox Diocese for Australia and had resolved to request his Grace to consider “receiving” the congregation of the Free Serbian Orthodox Church Monastery St Sava New Kalenic under his direct spiritual jurisdiction and the spiritual jurisdiction of the Holy Synod of the Old Calendar Orthodox Church of Greece until such time as the Property Trust Company deemed otherwise. The resolution of the Property Trust Company, as advised to Bishop Ambrose, included that the Property Trust Company would not be bound by any decisions of the Old Calendar Greek Orthodox Diocese for Australia or the Holy Synod of the Old Calendar Orthodox Church of Greece, apart from those spiritual decisions to which it consented. The resolution also included the appointment of Father Saracevic as rector and spiritual overseer of the monastery.

58. [86]

    Bishop Ambrose replied on 28 March 2011 and advised that the Holy Synod of the OCOCG–HSIR had unanimously accepted the request and had decided that:

59. [87]

    Bishop Ambrose did not give evidence to explain how this term by which the Property Trust Company could decide not to accept decisions of the Old Calendar Orthodox Diocese of Australia with which it disagreed was consistent with principles of Orthodoxy. Nor (as the primary judge found) did the Property Trust Company, as distinct from the Free ANZ Diocese, have any right under Article 4 of the 1976 Constitution to affiliate with another religious group. No appeal was brought from that finding.

60. [88]

    On 11 July 2011, a new company limited by guarantee was incorporated that was called “Free Serbian Orthodox Church – Diocese for Australia and New Zealand”. Its directors were Messrs Nesic, Cubrilo and Vucicevic and Father Saracevic. Mr Nesic gave evidence (which the primary judge found to be implausible) to the effect that the incorporation of a new company with a similar name was done through the Property Trust Company’s auditors and he was not familiar with it.

61. [89]

    On 30 September 2012, Mr Nesic, writing as the chairman of directors of the “Free Serbian Orthodox Church Diocese for Australia and New Zealand” (that is, the newly incorporated company) wrote to Bishop Ambrose purportedly confirming that the “Free ANZ Diocese” confirmed its affiliation with, and accepted the refuge provided by, the OCOCG-HSIR. Thus the directors of the new company took it on themselves to represent the Free ANZ Diocese. They were numerically a small part of that religious association, as it had formerly been constituted.

62. [90]

    Mr Nesic stated in his letter of 30 September 2012 that the affiliation with the OCOCG–HSIR did not require the “Free ANZ Diocese” to transfer any of its church property to the OCOCG-HSIR, nor to change its liturgy or the way in which it practised its faith. He wrote that:

63. [91]

    The 1976 Constitution of the Free ANZ Diocese (renamed NGM-ANZ Diocese in June 1991) did not make provision for the appointment of an administrator, a point the second to fifth appellants made against the respondents in the court below. Nonetheless, Bishop Ambrose was purportedly appointed as administrator of the “Free ANZ Diocese” by the directors of the new company. Mr Nesic also advised that:

64. [92]

    Thus an avowed purpose of the directors of the Property Trust Company engaging a bishop from the OCOCG-HSIR, was to assist the Property Trust Company in defending the present proceedings.

65. [93]

    On 5 November 2012, Father Saracevic (who was associated with the appellants), purportedly acting on behalf of the Diocesan Council, convened a joint meeting of the Diocesan Council and the Ecclesiastical Court of the Free ANZ Diocese to be held on 17 November 2012 to consider the proceedings before the primary judge. The notice was apparently sent by Father Saracevic to 11 individuals. The primary judge found that there was no evidence that those individuals were members of the Diocesan Council or the Ecclesiastical Court. The appellants (defendants before the primary judge) accepted that in 2012 there were no continuing members of the Diocesan Council or the Ecclesiastical Court.

66. [94]

    The primary judge found that the appellants did not reject the authority of Bishop Irinej Dobrijevic over the monastery on the grounds of differences of faith or doctrine and that the division was about church politics. No ground of appeal squarely challenged this finding.

67. [95]

    The primary judge found that whilst in many respects Bishop Irinej exceeded the authority that he had as Bishop-Administrator of the NGM-ANZ Diocese and failed to provide procedural fairness to individuals who were purportedly excommunicated or deprived of rights as members of church-school congregations, none of the examples cited by the appellants’ expert witness, Archbishop Chrysostomos, supported the view that claims of administrative injustice were matters of “faith and righteousness” that “… could reasonably constitute grounds – according to the letter of the canons and the spirit of the Church’s super-canonical historical witness – for a walling-off from the Serbian Orthodox Church in terms consistent with the 1976 constitution”.

THE DECISION OF THE PRIMARY JUDGE

1. [96]

   The following findings by the primary judge are those most important to the issues on appeal.

2. [97]

   It should be appreciated at the outset that the primary judge dealt with a much broader case than the one presented on appeal. In particular, his Honour needed to determine important questions such as the effect of the 2010 resolutions and whether the NGM-ANZ Diocese had ceased to exist as a separate association. His Honour found that the NGM-ANZ Diocese did continue to exist and no cross-appeal was brought from that conclusion. In addition, his Honour was asked to determine whether the present appellants had engaged in breaches of trust regarding the trust property. He found that they had. No appeal was brought from those findings.

3. [98]

   In reaching these decisions, the primary judge made many findings of fact about disputed issues which informed his analysis of the s 9 question. No appeal was brought about those findings of primary fact and, as will become apparent, the appellants did not comply with Uniform Civil Procedure Rules 2005 (NSW) r 51.18(2), leading to considerable confusion about what case it was that they sought to make. The appellants’ procedural failures made the resolution of this appeal much more difficult than it should have been.

4. [99]

   After reciting the principal matters of fact and dealing with the issues which are not the subject of this appeal, the primary judge turned specifically to the question posed by s 9 of the Charitable Trusts Act at [458] of his reasons.

5. [100]

   It is telling, in the light of the case sought to be conducted by the appellants in their proposed amended notice of appeal (dealt with below) that the primary judge dealt with the original purposes of the trust at an earlier part of the judgment, [81] and [82]. He did so because, as the voluminous trial record discloses, the appellants made no submission that the original purposes of the trust included the establishment of a church with a congregational or presbyterian structure. When specifically dealing with s 9 in their lengthy written closing submissions the appellants struck through all submissions about the original purposes of the charitable trust. To the extent that the primary judge was required to consider the struck out material, no submission was advanced by the appellants that the original purposes of the trust included the establishment of a monastery for a church with a congregational or presbyterian structure.

6. [101]

   The appellants’ opening oral submissions before the primary judge addressed the topic of the original purposes in the following terms:

7. [102]

   The italicised words in this submission are important. At [82] of his reasons, the primary judge agreed with the appellants as to what were the original purposes of the trust, finding that “the property was acquired by the Free ANZ Diocese…for the purpose of building and conducting a monastery, a monastery church, and related facilities for the purposes of the Free ANZ Diocese.” That finding adopted almost verbatim the submission made by the present appellants about the original purposes of the trust. That finding by the primary judge involved a rejection of the competing original trust purposes advanced by the present respondents.

8. [103]

   On appeal, the appellants belatedly sought to advance a different case about the original purposes of the trust, based on an asserted ecclesiological difference between the Free ANZ Diocese’s congregational structure, and the hierarchical structure of the Serbian Orthodox Church.

9. [104]

   The argument that the original purposes of the charitable trust included that the monastery property only be used in a way consistent with an alleged fundamental matter of faith - the congregational or presbyterian nature of the Free ANZ Diocese - was not put to the primary judge. While it is true that the appellants commenced their final submissions before the primary judge by reference to an alleged ecclesiological difference between the Free ANZ Diocese and the Serbian Orthodox Church, this submission was addressed to the separate claim, dismissed by the primary judge, that that property should be applied cy-près at general law to the SOC-ANZ Metropolitanate and not the content of the original purposes of the trust.

10. [105]

    As there was no trust instrument for the monastery property trust, the identification of the trust purpose depended on what the intentions were of those who contributed to the acquisition of the land and construction of the monastery and related facilities. The primary judge found:

11. [106]

    The primary judge returned to this topic at [129]‑[131] and [140]:

12. [107]

    His Honour made clear findings about the limits of the consensual compact between the members of the unincorporated associations in the context of the leading cases about church property and trusts:

13. [108]

    There was no issue at the trial about this matter and no challenge to this finding by the appellants in the original notice of appeal. As will become apparent, a challenge to the primary judge’s findings about the original purposes of the trust became the centrepiece of the appellants’ challenge to the decision of the primary judge in the proposed amended notice of appeal.

14. [109]

    Regarding the “fundamental” doctrines of the Free ANZ Diocese, the primary judge addressed and only addressed the doctrines asserted by the appellants at the trial to be “fundamental”. It is for that reason that his Honour in various places stated what the “fundamental” or “essential” doctrines of the Free Serbian Orthodox Church were not.

15. [110]

    In A-G ex rel Elisha v Holy Apostolic Church (1989) 37 NSWLR 293 Young J summarised the discussion of Miller J in the US decision of Watson v Jones 80 US 679 (1871):

16. [111]

    By hierarchical, Miller J meant a church which has superior clergy and in which the government of the church is committed to those superior clergy. Ordinarily a church which has bishops will fall into this class and this will be so notwithstanding that some governmental powers are given to clergy of inferior rank or to laity. The presbyterian model is where there is a succession of committees at national, regional and local level, so that the decision of the local congregation may, in appropriate cases, be overturned by that of a general assembly. With a congregational model, the local congregation is the body which makes or unmakes the rules.

17. [112]

    The primary judge considered the nature of the Free ANZ Diocese at [62]:

18. [113]

    The primary judge answered each of these questions, although not in a way specifically related to the original purposes of the trust, because he was not asked to do so. He did address these questions when considering the spirit of the trust, which is the way the parties chose to fight the issues before him.

19. [114]

    Shortly put, in relation to the spirit of the trust, the primary judge found that independence from the Serbian Orthodox Church was not fundamental. The model of governance whereby the Bishop was subjected to the authority of the Diocesan Council and the Church National Assembly was not fundamental and the principles of the Free ANZ Diocese were based upon a desire to reunite with the Serbian Orthodox Church when communism fell in Serbia.

20. [115]

    So far as the question of whether the ecclesiological principle (i.e. the congregational or presbyterian character of the church) was fundamental, the present appellants did not submit before the primary judge that this was part of the original purposes of the trust.

21. [116]

    The appellants argued that at various stages of the primary judge’s reasons he failed to have regard to his finding that the Free ANZ Diocese is a presbyterian church. As the Attorney General correctly submitted, in determining what the original purposes of the trust were, if one of the fundamental principles of the trust was an intention to reunite with the Serbian Orthodox Church, it cannot be that a presbyterian style of governance was also a fundamental principle. This is because:

    1. (1)

       an eventual return to a hierarchical church must logically indicate that the presbyterian mode of governance was to be forsaken; and

    2. (2)

       the primary judge found that the split in the church in 1964 was about Church politics, not matters of faith.

22. [117]

    The primary judge found that there were five elements of the spirit of the trust:

23. [118]

    As will become apparent, the primary judge made other important findings relevant to the consideration on the appeal of the parties’ position about the spirit of the trust.

24. [119]

    First, the primary judge concluded at [24], [467] and [510] that the split between the Free ANZ Diocese and the Serbian Orthodox Church was political, not religious. The appellants did not challenge that finding. In Church and State in Yugoslavia since 1945 (S Alexander, 1979, Cambridge University Press) (Exhibit AB at the trial which was admitted for the truth of its contents), it was explained, at page 280:

25. [120]

    Secondly, the primary judge found that the Free ANZ Diocese did not take a stance on ecumenism at the time of creating the trust, however, at the time of the hearing they had aligned with another church body which considered the Serbian Orthodox Church to be guilty of doctrinal heresy on this issue.

26. [121]

    Thirdly, the primary judge found the practice of the Free ANZ Diocese of appointing a bishop was altered by conduct. In particular the model of governance whereby the Bishop was appointed by and subject to the authority of the Diocesan Council and the Church National Assembly was not followed by the Free ANZ Diocese.

27. [122]

    The primary judge also found that the Constitution of the Free ANZ Diocese was also relevant for another purpose. For at least the early years of the Free ANZ Diocese it contained the terms of the “consensual compact” between the members of the unincorporated association known as the Free Serbian Orthodox Church - ANZ Diocese (Macqueen v Frackelton (1909) 8 CLR 673 at 679 per Griffith CJ, 696-697 per O’Connor J, 704-705 per Isaacs J; Long v Bishop of Cape Town (1863) 1 Moo PC (NS) 411 at 461; 15 ER 756 at 774). The members of the church were taken to have assented to the terms of the Constitution adopted in 1964 and 1976 and modified in 1988. The Constitution had the force at law of a contract or consensual compact between the members of the unincorporated association. It could usually only be amended according to the provisions in the Constitution regarding amendment or otherwise by agreement of all members of the Diocese (Harington v Sendall [1903] 1 Ch 921; Radmanovich v Nedeljkovic (2001) 52 NSWLR 641; [2001] NSWSC 492 at [204]).

28. [123]

    As touched on above in relation to the manner of appointment of bishops and administrators to the church, however, the primary judge also found, at [132]‑[133] that:

29. [124]

    No appeal was brought from this finding.

30. [125]

    In Lewis v Heffer [1978] 1 WLR 1061 Lord Denning MR said (at 1072) speaking of a branch of a political party that:

31. [126]

    Ormrod LJ said (at 1076) that:

32. [127]

    The primary judge found that the method of appointment of bishops and the governance of the Diocese in the absence of a bishop were not matters of fundamental doctrine or principle and that they could be altered by conduct. The practices, whereby the members of the Free ANZ Diocese accepted the appointments of hierarchs, either as bishops or administrators, became part of the terms and conditions of the consensual compact of the members of the Free ANZ Diocese and were as effective as if they had been made in accordance with the terms of the Constitution.

33. [128]

    Those findings were not challenged by the appellants.

34. [129]

    The primary judge made careful and detailed findings about the matters which enlivened the jurisdiction under s 9 of the Charitable Trusts Act. Without repeating all of those findings, his Honour’s summary at [500]-[504] and [509]-[511] identified all of the presently relevant issues.

35. [130]

    The primary judge found that to apply the monastery property to the appellants in the circumstances that now exist would be contrary to the spirit of the trust in the following respects:

    1. (1)

       first, the original purpose of the trust was that it was a trust for the benefit of all of the church-school congregations and associated organisations who formed the Free ANZ Diocese. The character of that organisation has changed markedly. Only a rump of that organisation remained. Many of those who remained, or at least their leaders, were persons who acted contrary to the terms of the Constitution of the Free ANZ Diocese by acting contrary to the directions of the diocesan authorities, namely Bishop Irinej and the Diocesan Council.

    2. (2)

       secondly, the spirit of the trust was that the monastery be held for the purposes of a church that was Serbian, in nationality and ethnicity. The monastery was to be a continuation of a tradition of the Serbian Orthodox Church. The Free ANZ Diocese has departed from that spirit by affiliating itself with the OCOCG-HSIR and appointing an Englishman, Bishop Ambrose, who is a bishop of that church. His position as bishop of two churches both professing the Orthodox faith is irregular.

    3. (3)

       thirdly, it was part of the spirit of the trust that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church. That purpose is likely to be frustrated whilst the Free ANZ Diocese remains associated with the OCOCG-HSIR.

    4. (4)

       fourthly, the primary judge found that the original division of the Serbian Orthodox Church and the Free ANZ Diocese was not a division on a point of religious principle, but on a matter of church politics. For the monastery property to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with any religious principle of the Free ANZ Diocese.

36. [131]

    His Honour concluded that where the condition for the exercise of the statutory power in s 9 was satisfied, the order that can be made was one for the application of the trust property “cy-près”, that is, as nearly as possible to the original trust purpose, but in a way which provides a suitable and effective method for using the trust property. That is to say, a s 9 scheme should provide a suitable and effective method for using the trust property having regard to the spirit of the trust, but, subject to that requirement, it should adhere as closely as possible to the particular manner in which the settlors of the trust sought to achieve their general charitable intention.

37. [132]

    The primary judge found that in this case there is no relevant difference in faith between the two groups. It is true that the Extended Plenum held on 29 December 2007 and the Church National Assembly held on 29 November 2012 rejected the doctrine of ecumenism and this is a point of difference in religion between the current two competing groups. But it was not an issue of religious principle for the Free ANZ Diocese when the trust was established. No question arose before the primary judge about which group was more closely aligned to the opinion of the Free ANZ Diocese on the issue of ecumenism at the time the trust was established.

38. [133]

    The primary judge concluded that the changes to the character of the Free ANZ Diocese since the trust was established and the migration of the majority of the church-school congregations that were formerly part of the Free ANZ Diocese to the SOC-ANZ Metropolitanate meant that not only had the existing trust purpose ceased to provide a suitable and effective method for using the monastery having regard to the spirit of the trust, but that the use of the monastery for the purposes of the SOC-ANZ Metropolitanate would be closer to the original trust purpose, having regard to the spirit of the trust, than would its continued application for the purposes of the Free ANZ Diocese.

39. [134]

    The primary judge concluded at [71]-[76] and [511] as follows:

40. [135]

    The appropriate terms for a cy-près scheme for administering the monastery property trust were the subject of a separate judgment: [2015] NSWSC 1976. Detailed competing schemes were proposed by both the first and second respondents on this appeal (with the support of the Attorney General) and the present appellants. The original schemes underwent amendment as a result of negotiations between the legal representatives for the parties.

41. [136]

    The primary judge found that the scheme proposed by the present appellants did not reflect his reasons and “would be productive of conflict”. In rejecting the appellants’ proposal, his Honour said, at [45]:

42. [137]

    The primary judge concluded that the scheme proposed by the first and second respondents on this appeal jointly with the Attorney General best reflected the statutory requirements and the purpose of the trust as identified by his Honour in his earlier reasons.

43. [138]

    The effect of this scheme is that the trustee is to hold and use the monastery property for charitable purposes of the SOC-ANZ Metropolitanate. The scheme also provided for use of the monastery by individuals and organisations that are part of the Free ANZ Diocese, to the extent that such use is not inconsistent with the charitable purposes of the SOC-ANZ Metropolitanate, and to the extent that such use is practicable, having regard to the need to avoid conflict.

44. [139]

    A number of clauses in the adopted scheme provided for the Free ANZ Diocese’s use of the monastery, including:

    1. (1)

       the establishment of an advisory committee, comprising five lay persons; two nominated by each of the SOC-ANZ Metropolitanate and the Free ANZ Diocese. Those four would nominate a fifth, who would be the chairperson. The committee would function to hear and consider any requests or disputes about the use of the monastery from members of the Free ANZ Diocese and make recommendations to the trustee about their resolution;

    2. (2)

       provisions to ensure that individuals belonging to the Free ANZ Diocese who have purchased cemetery lots or vaults will be entitled to have funerals or burials conducted by clergy of either the Free ANZ Diocese or Serbian Orthodox Church and in accordance with the Free ANZ Diocesan rites and customs; and

    3. (3)

       a provision to prevent the trustee, without a direction or order of the Court, from prohibiting the use of the Trust Property only on the ground that it is a secular use. His Honour’s reasons emphasised that a “proposed use by individuals or organisations of the Free ANZ Diocese that is not inconsistent with the use of the monastery by the Serbian Orthodox Church-ANZ Metropolitanate should only be refused if necessary to avoid conflict.” at [59].

THE GROUNDS OF APPEAL

1. [140]

   The original notice of appeal filed on behalf of the appellants on 1 March 2016 listed 13 grounds of appeal.

2. [141]

   The first seven grounds addressed the primary judge’s findings about the spirit of the trust. Grounds eight and nine addressed the s 9 cy-près scheme that was imposed by the primary judge. Grounds 10 and 11 addressed the position of the first plaintiff (Bishop Irinej) as “Bishop-Administrator” and the powers conferred on him by the Free ANZ Diocese Constitution. Grounds 12 and 13 addressed the primary judge’s finding that the second to fifth defendants had engaged in breaches of trust, and his failure to find that the first plaintiff’s actions precluded the plaintiffs from being awarded equitable relief.

3. [142]

   Grounds eight to 13 (inclusive) were ultimately not pressed by the appellants.

THE APPLICATION TO AMEND THE NOTICE OF APPEAL

1. [143]

   The critical starting point to the appellants’ case as presented on the appeal (but not contained in the notice of appeal) was that the primary judge had failed properly to identify the original purposes of the trust. It was submitted that his Honour erred in finding that the original purposes of the Monastery Trust only included fundamental or essential doctrines of the Free ANZ Diocese. Alternatively, it was submitted that his Honour ought to have found that all of the doctrines and principles of the Free ANZ Diocese, as reflected in its Constitution, were essential or fundamental purposes of the trust. As will become apparent, the appellants did not ask the primary judge to make either finding. The submission made on appeal that they asked the primary judge “indirectly” to reach the conclusions they sought to advance on the appeal should be rejected.

2. [144]

   On the afternoon of the first day of the hearing of the appeal the appellants sought leave to file an amended notice of appeal.

3. [145]

   The amended notice of appeal that the appellants sought to file in Court is better described as a complete replacement notice of appeal. The document which was proffered to the Court did not reveal what changes had been made, and in particular, what content was new and what was merely rearranged.

4. [146]

   The grounds of appeal sought to be relied upon by the appellants (marked up as they should have been by the appellants) have been set out in full in ANNEXURE A (151 KB, pdf) to this judgment. For ease of reference the text which is new has been italicised. The text which has been replaced has been struck through.

5. [147]

   Consideration of this marked up document makes it clear that it is a fundamentally different document, bearing little resemblance to the notice of appeal which was filed and relied upon to that point.

6. [148]

   The appellants essentially made no meaningful submissions in support of the proposed amendments, save that they reflected the argument that the appellants wished to advance on appeal and that the essential points raised in the proposed amendments could be divined from the original notice of appeal. Written submissions in reply by the appellants handed up as part of the oral address on the second day of the appeal went so far as to describe the debate over the proposed amendments as “arid”, although they correctly accepted that the notice of appeal “organised the whole of the challenge to the primary judge’s cy-près findings in his first judgment under the heading ‘spirit of the trust’”. No evidence was filed in support of the amendments.

7. [149]

   The respondents objected to the amendments. Mr Glacken QC, who appeared with Mr Herzfeld on behalf of the first and second respondents, submitted that the amended notice of appeal raised, conservatively, 44 issues that had not been agitated before the primary judge and therefore would give rise to unfairness of the kind described in Coulton v Holcombe (1986) 162 CLR 1.

8. [150]

   It was submitted that the appellants were attempting to recast the asserted “ecclesiological principle” it was advancing as part of an argument about the original purposes of the trust on appeal, rather than an aspect of the spirit of the trust which was how the argument was advanced below.

9. [151]

   The first and second respondents argued that this created Coulton v Holcombe unfairness, as they had not led evidence on this issue as would have been the case if such a case had been advanced below. In particular, the first and second respondents submitted that they could have asked the witnesses direct questions about the religious principles of hierarchical or congregational structures, as applied to the Free ANZ Diocese, if this was cast as a “purpose of the trust” issue at trial.

10. [152]

    Counsel for the Attorney General tendered a bundle of correspondence between the parties prior to the hearing that concerned the grounds of appeal and submissions relied upon by the appellants. This became Exhibit A on the appeal. That evidence demonstrated:

    1. (1)

       on 12 April 2016, almost five months prior to the date fixed for the hearing of the appeal, at the time of filing their written submissions in chief, the appellants noted that they would seek to file an amended notice of appeal which better reflected the issues the appellants still pressed. The reference to an amended notice of appeal, in context, was plainly intended to be understood as referring to the abandonment of grounds 8-13 of the notice of appeal;

    2. (2)

       on 14 June 2016, the Attorney General’s written submissions expressly noted that the submissions of the appellants departed in important respects from the grounds in the notice of appeal;

    3. (3)

       on 21 July 2016, approximately six weeks before the dates fixed for the hearing of the appeal, the solicitors for the appellants wrote to the respondents, enclosing a proposed amended notice of appeal apparently in the form of the document now proffered, enquiring whether the respondents would consent to the amendments. On 1 August and 2 August 2016 respectively, the Attorney General and the first and second respondents declined to consent to the proposed amendments, each noting a number of concerns arising from the document;

    4. (4)

       the Attorney General pointed out that it was entirely unclear the extent to which the proposed amended notice of appeal raised issues outside the existing notice and written submissions. The Attorney General stated that the issue of leave to file the amended notice of appeal could not be left to the hearing and pointed out that an appropriate notice of motion and supporting affidavit in support of any application to amend the notice of appeal should be filed forthwith;

    5. (5)

       the first and second respondents made clear that the draft amended notice of appeal sought to raise matters which were not raised before the primary judge and had they been raised evidence would have been led on the issues; in particular grounds 1 and 2 (dealing with the original purposes of the trust), grounds 3(b) (dealing with an aspect of the spirit of the trust), 4(c) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act), 4(e) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act) and 4(g) (dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act);

    6. (6)

       the first and second respondents also pointed out that the proposed amended notice of appeal contained, including sub-grounds, approximately 120 separate contentions. This was not in accordance with UCPR r 51.18(1)(e) which requires the notice of appeal to state briefly but specifically the grounds relied upon in support of the appeal;

    7. (7)

       the appellants did not reply to either of these letters;

    8. (8)

       on 15 August 2016, the Attorney General again wrote to the appellants noting that it would be completely inappropriate in the present case for the issue of the content of the notice of appeal to be left in the state it was in to be dealt with at the hearing of the appeal; and

    9. (9)

       on 30 August 2016, the appellants wrote to the respondents confirming that they would proceed at the hearing only on grounds 1-7 of the existing notice of appeal and that they no longer intended to seek leave to amend their notice of appeal.

11. [153]

    On the basis of that correspondence, it was submitted that:

12. [154]

    Counsel for the Attorney General submitted that this correspondence demonstrated that the possibility of an amended notice of appeal was raised by the appellants on 21 July 2016, five weeks after each of the respondents had filed written submissions. It was submitted that the Attorney General would be prejudiced if the amendments were allowed.

Consideration of application to amend the notice of appeal

1. [155]

   The application for leave to amend the notice of appeal arises under s 64 of the Civil Procedure Act 2005 (NSW) and under UCPR r 51.23 which applies the general rules of amendment in Part 19 of the UCPR to the notice of appeal. Section 64 provides, relevantly:

2. [156]

   The principles relevant to the grant of leave to permit an amendment were explained in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 in the context of a late application for leave to amend pleadings made under the ACT’s Court Procedure Rules. Writing about the court’s discretion to allow an amendment, French CJ explained, at [5] and [30] – [31]:

3. [157]

   Specifically addressing the question of the importance of the explanation for any delay in seeking the amendment, the plurality stated, at [102] – [103]:

4. [158]

   Delay, especially where there has been a material (and inadequately explained) failure to comply with directions or procedures in the court, may justify the refusal of leave to amend: Aon at [4], [51]-[54], [106].

5. [159]

   In the present case it is also relevant to consider the principles which bind this Court in a case where an issue is sought to be agitated on appeal which was not raised before the primary judge. In Coulton v Holcombe Gibbs CJ, Wilson, Brennan and Dawson JJ explained, at 7‑8:

6. [160]

   When “all the facts have been established beyond controversy or where the point is one of construction or of law, then a Court of Appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied”: Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12 at 497; Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 at [16].

7. [161]

   In my view, the application to amend the notice of appeal should be refused with costs for the following reasons.

8. [162]

   First, this case involves an egregious delay in seeking leave to amend the notice of appeal for which no satisfactory explanation was provided. The appellants had a lengthy period of time in which to reflect upon the points they wished to agitate. If new points were sought to be raised, outside the existing notice of appeal, there was sufficient time before the appeal to do so. They should have applied for leave to amend the notice of appeal long before the date fixed for hearing the matter. That would have given the respondents a proper opportunity to address the matters raised by the proposed amended notice of appeal. The appellants made a deliberate forensic choice not to deploy the proposed amended notice of appeal at a time when the Court could have addressed the issue and made directions for its further conduct consistent with fairness to the respondents. Leave to amend should be refused on that basis alone: Aon at [4], [51]-[54], [106].

9. [163]

   Secondly, it is clear that the principal arguments sought to be advanced via the amended notice of appeal raise issues which were not agitated before the primary judge, in particular the grounds attacking his Honour’s conclusion about the original purposes of the trust. The first and second respondents submitted that there is a “certain irony” between how the case about the nature of the church (hierarchical or not) was put below compared with how it was put on appeal. It was submitted that the notion that ultimate authority in the Free ANZ Diocese be exercised by an assembly was not explored in the evidence below. The first and second respondents, in making good this proposition, relied on the following:

   1. (1)

      Bishop Irinej’s evidence was that he did not accept the premise that the Free ANZ Diocese was anything but hierarchical;

   2. (2)

      Bishop Irinej’s evidence was that he did not accept that Free ANZ Diocese was congregational. The passage relied upon related to who had power to dismiss the Bishop and whether there were any constitutional limits on his power; Bishop Irinej argued that he had the powers of a Bishop when holding the title Administrator;

   3. (3)

      Bishop Irinej, Bishop Ambrose and Archbishop Chrysostomos were not asked whether the nature of the Diocese (being hierarchical or congregational) was a fundamental ecclesiological principle of the Free ANZ Diocese.

10. [164]

    To this may be added references to the appellants’ written submissions below which are in direct opposition to the submissions now sought to be advanced. Those submissions provided, relevantly:

11. [165]

    In effect, the appellants are seeking on the appeal to conduct a diametrically opposed case to that advanced immediately above in circumstances where, on the topic of the original purposes of the trust in the context of s 9 of the Charitable Trusts Act, they struck through all written submissions, and made limited oral submissions. The appellants made no submissions directed to this asserted ecclesiological difference as part of the original purposes of the trust.

12. [166]

    It is clear that the proposed amended notice of appeal raises many issues which were not raised before the primary judge. In addition to those already identified, the following grounds of the proposed amendment were not raised below:

    1. (1)

       Ground 3(b) - dealing with an aspect of the spirit of the trust;

    2. (2)

       Ground 4(c) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act;

    3. (3)

       Ground 4(e) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act; and

    4. (4)

       Ground 4(g) - dealing with an aspect of the spirit of the trust in the context of the application of s 9 of the Charitable Trusts Act.

13. [167]

    I accept that had those issues been raised before the primary judge, the first and second respondents would have approached the issues differently. They lost the opportunity to consider leading additional evidence. They certainly would have conducted cross-examination differently. In particular, no witness squarely addressed the question of whether the terms of the 1976 Constitution which provided a congregational or presbyterian structure represented a fundamental ecclesiological principle of the Free ANZ Diocese. Certainly the appellants led no such evidence and the references to the evidence of Archbishop Chrysostomos given by the appellants, extracted below, do not support that claim. At its highest that evidence provided:

14. [168]

    Further, in circumstances where the unchallenged findings of the primary judge are that the congregational or presbyterian structure was ignored by the Free ANZ Diocese in the appointment of bishops on many occasions, it is obvious that the respondents lost an opportunity to lead evidence and cross-examine witnesses. Leave to amend should also be refused on that basis.

15. [169]

    Thirdly, the complaints now sought to be made about the original purposes of the trust were outside the appellants’ pleaded case before the primary judge. The only aspects of the pleading said to support this case were paragraphs 9(d) and (e) of the appellants’ defence below. Each addressed a different case, namely whether it was a fundamental tenet of the Free ANZ Diocese that it be forever independent of the Serbian Orthodox Church.

16. [170]

    Grounds 1 and 2 of the proposed amendment dealing with the original purposes of the trust were simply not the subject of the notice of appeal. None of those grounds, which the appellants correctly accept are “organised … under the heading ‘spirit of the trust’”, suggest that the primary judge erred in failing to adopt a “touchstone” about which original trust purposes were fundamental. Nowhere do they suggest that the primary judge erred in failing to make the findings they now advance about the fundamental or essential doctrines of the Free ANZ Diocese as being part of the original trust purposes. Leave should not be granted to rely on any of these grounds: Coulton v Holcombe.

17. [171]

    Fourthly, the form of the proposed amendment made it near impossible to discern which issues were truly in contest. How those issues arose before the primary judge was not explained. What, if any, errors the primary judge was asserted to have made were not identified. It is unsatisfactory for an appellant, on the first day of an appeal which had been fixed for some months, to attempt to fundamentally re-cast the grounds of appeal. The Court should not be required to wade through a proposed amendment in circumstances where the changes are not meaningfully marked up and, upon analysis, virtually the entire document comprises new material. The proposed amended notice of appeal was not prepared in accordance with UCPR r 51.18(1)(e) which requires the notice of appeal to state briefly but specifically the grounds relied upon in support of the appeal. Whilst such failure, of itself, would usually be an insufficient reason to refuse leave to amend the notice of appeal, in the circumstances here, taken together with the other matters to which I have referred, it provides an additional reason to refuse leave to rely upon the proposed amended notice of appeal.

18. [172]

    For these reasons, I would refuse leave to the appellants to rely upon the proposed amended notice of appeal. As will be seen, this conclusion has significant effects on a number of arguments sought to be raised by the appellants on this appeal.

ISSUES ON THE APPEAL

1. [173]

   In order to identify the issues on the appeal it will be necessary first to set out the grounds pressed and attempt to link those grounds to the submissions made. This was not an easy task. The appellants did not in their written or oral submissions identify particular errors other than at an unhelpful level of generality.

2. [174]

   The grounds pressed in the notice of appeal were as follows:

3. [175]

   The appellants did not address their submissions to any particular ground of appeal. Indeed, having regard to the proposed amendment, they impliedly accepted the criticism of the respondents advanced long before the appeal that their written submissions bore little, if any, relationship to the issues advanced on appeal.

4. [176]

   The oral submissions of the appellants also addressed topics without reference to the grounds of appeal. In effect, the appellants sought to re-litigate all the issues, and more, which were before the primary judge about s 9 of the Charitable Trusts Act. A suggested “roadmap”, described as a provisional aide memoire to argument which was handed up by the appellants at the outset of oral submissions could not readily be used to cross reference grounds, the primary judge’s findings and the appellants’ submissions.

5. [177]

   For example, the assertion of error was made in that document that the primary judge failed to find that the original purposes of the trust included “the ecclesiological principle that ultimate authority was to be exercised by an assembly of clergy and laity, rather than a hierarchy of clergy”. References were given to appeal grounds 5, 6 and 7(a) set out above. A number of things need be said. First, as I have found when dealing with the proposed amended notice of appeal no such finding about the original purposes of the trust was sought before the primary judge. It is unsurprising that the “judgment reference” for this issue in the “roadmap” is blank. It was not an issue at the trial. Secondly, the references to the appeal grounds do not reflect this submission. Each of the grounds referred to appears under a heading “spirit of the trust”. Further:

   1. (1)

      Ground 5 - under the heading “spirit of the trust” apparently attacks findings made by the primary judge (although it will be recalled that the “judgment reference” for this issue in the “roadmap” is blank). Nowhere in ground 5 is it suggested that these matters comprised original purposes of the trust.

   2. (2)

      Ground 6 commences in terms:

   3. (3)

      Ground 7(a) commences in terms:

6. [178]

   There was a further problem with the presentation of the appellants’ case in that, so far as findings of fact made by the primary judge were concerned, the appellants failed to comply with UCPR r 51.18(2) which provides:

7. [179]

   The note handed up after lunch on the first day by the appellants purportedly in conformity with UCPR r 51.18(2) was of limited assistance. The fact which was challenged numbered “1”, which had five sub-clauses, was a complaint about conclusions of mixed fact and law concerning the original purposes of the trust in the amended notice of appeal (but not the notice of appeal) as follows:

8. [180]

   At the risk of repetition, none of these matters of “fact” was addressed in evidence below, at least in the legal context of the original purposes of the Monastery Trust. None of these matters of “fact” was suggested to the primary judge as a finding he should make about the original purposes of the trust. These matters were outside the appellants’ notice of appeal.

9. [181]

   The fact which was challenged, numbered “2”, which had three numbered sub-clauses but a large number of internal qualifications, simply sought to repeat the conclusions asserted by the appellants about the spirit of the trust:

10. [182]

    The appellants failed to comply with UCPR r 51.18(2). This was not a case where there was separate identification in the written submissions of the substantial challenges made to primary facts found by the primary judge: cf Hamod v State of New South Wales [2011] NSWCA 375 at [774].

11. [183]

    As Basten JA explained in Sullivan v Stefanidi [2009] NSWCA 313 at [16]:

12. [184]

    The appellants should not be permitted, under the guise of a late filed schedule of facts which are challenged, in effect to re-write their notice of appeal. If the purported schedule of facts had been filed well before the hearing of the appeal, as it should have been, the respondents and the Court would have been appraised of the fundamental shift in the approach of the appellants and steps taken then to ensure that the appeal was properly prepared and conducted only on the issues identified in the notice of appeal.

13. [185]

    I would refuse leave to the appellants to rely upon the document handed up during the appeal purportedly in compliance with UCPR r 51.18(2).

14. [186]

    Effectively, by reason of their concentration upon the amended documents which I would refuse leave to rely upon, the appellants vacated the field and left it to the respondents, and in particular the Attorney General, to attempt to explain what the real issues in dispute were and how those issues might arise on particular grounds addressed by the appellants’ notice of appeal.

15. [187]

    The issues on the appeal were, correctly in my view, identified by the Attorney General as being:

16. [188]

    First, the spirit of the trust question:

17. [189]

    Secondly, as to whether the original purposes, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property:

18. [190]

    Thirdly, as to whether an order under s 9 of the Charitable Trusts Act should be made the issues were:

RELEVANT LEGAL PRINCIPLES - SECTION 9 OF THE CHARITABLE TRUSTS ACT

1. [191]

   It will be recalled that s 9 of the Charitable Trusts Act provides:

2. [192]

   The appellants suggested that the issues raised by s 9 of the Charitable Trusts Act identified four separate but related questions:

   1. (1)

      What is the purpose of the trust?

   2. (2)

      What is the spirit of the trust, which refers to the basic intention underlying the gift?

   3. (3)

      Have the original trust purposes, wholly or in part, since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust?

   4. (4)

      If so, what application of the trust property is cy-près, that is, most nearly approximates the intentions of the founders having regard to the spirit of the trust?

3. [193]

   Despite the appellants’ tendency to break up the components of s 9 into four separate parts, s 9 must be read as a whole in the statutory context in which it appears and by reference to the objects that the legislation is intended to secure. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holding Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].

4. [194]

   In addressing the way the appellants put their arguments, segmented into the various component parts of s 9, it should not be thought that this exercise of construction is to be set aside or left behind.

5. [195]

   Ultimately, the question posed by s 9 must be considered as a whole, and not examined artificially by reference to each of its separate components.

6. [196]

   Section 9 is engaged by three interacting criteria through which to consider the continuing utility of the original trust purposes:

   1. (1)

      First, the notion of “wholly or in part”;

   2. (2)

      Secondly, a “suitable and effective method”;

   3. (3)

      Thirdly, the requirement to have “regard to the spirit of the trust”.

7. [197]

   It is textually clear that the requirements of s 9 involve a threshold lower than the general law cy-près requirement of impossibility or impracticality. The test is whether the original purposes of the trust have ceased to provide a suitable and effective method of using the property, in whole or in part, having regard to the “spirit of the trust”. The spirit of the trust is thus a broader conception than the original purposes of the trust. It is clear that the general law requirement for impossibility or impracticability of achievement of the trust purposes is no longer a condition precedent to the making of an order.

8. [198]

   Originally, the general law jurisdiction to apply charitable trust property cy-près was restricted to circumstances where the original purposes of the trust had become impossible or impractical to carry out: see Varsani v Jesani [1999] Ch 219 at 229 and the authorities cited in Attorney General for NSW v Fulham [2002] NSWSC 629 at [12] – [15] per Bryson J.

9. [199]

   In Taylor v Princess Margaret Hospital for Children Foundation Inc (2012) 42 WAR 259; [2012] WASC 83 Edelman J said of the cy-près doctrine:

10. [200]

    In 1952, the English Committee on the Law and Practice relating to Charitable Trusts, chaired by Lord Nathan, (referred to by Edelman J above) reported to the government of Sir Winston Churchill on the need and near unanimous desire to relax the cy-près doctrine. The Nathan Report recommended that the cy-près doctrine be “so relaxed as to admit of trust instruments being altered, even though the carrying out of their objects has not become impracticable”: at [699]. The authors drew upon long established Scottish law in proposing that the formulation of any cy-près scheme should have “special regard to the spirit of the intention of the founders”: at [700].

11. [201]

    The leader in legislative amendments in this area was New Zealand. The Charitable Trusts Act 1957 (NZ) was enacted on 4 October 1957 and came into force on 1 January 1958.

12. [202]

    The Nathan Committee Recommendations were implemented by s 13 of the Charities Act 1960 (UK), which provided:

13. [203]

    These provisions were re-enacted in the Charities Act 1993 (UK).

14. [204]

    In 2006, references to the “spirit of the gift” in s 13(1)(c), (d) and (e) of the Charities Act 1993 (UK) were replaced by the expression “appropriate considerations” which was defined to include the spirit of the gift on one hand, and the social and economic circumstances at the time of altering the original purposes on the other hand. This section now appears as s 62 of the Charities Act 2011 (UK).

15. [205]

    In 1962, a subcommittee of the Victorian Chief Justice’s Law Reform Committee was appointed to consider possible reforms to Australian charitable trust law. In 1965, the Report on Charitable Trusts was published. It considered the meaning and effect of s 13 of the Charities Act (1960) (UK) and noted that “possibility or practicability is no longer the test [for invoking the cy-pres jurisdiction], but that it is sufficient that the original purpose is no longer suitable and effective”: at 22.

16. [206]

    The Report also observed at 23 that:

17. [207]

    Between 1962 and 1993, each Australian state enacted legislation in similar terms to s 13 of the Charities Act 1960 (UK), including, relevantly, s 9 of the Charitable Trusts Act.

18. [208]

    The Explanatory Notes to the enacting bill, the Charitable Trusts Bill 1993 (NSW), explained that s 9:

19. [209]

    The second reading speech for the bill also acknowledges that the bill expands the test for when a charitable trust fails.

The legal test to be applied to the issues on this appeal

1. [210]

   The four stages proposed by the appellants are appropriate as a shorthand way of analysing the requirements of s 9, however, they do not replace the statutory task of considering s 9 as a whole and in its statutory context.

2. [211]

   The appellants’ task on this appeal is not to persuade this Court that different findings would be preferable; instead the appellants must demonstrate an error in the primary judge’s findings in the sense described in House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ. The notice of appeal, on its face, does not suggest any form of House v The King error.

3. [212]

   While it may be accepted that the questions of the original purposes of the trust and the spirit of the trust are capable of being analysed as objective facts, in review of such decisions on appeal the principles of restraint governing appellate review of discretionary decisions apply for the same reasons as explained by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 211-12:

4. [213]

   The application of these principles of appellate review in the present statutory context is underlined by two matters.

5. [214]

   First, each of the questions arising on the application of s 9 of the Charitable Trusts Act involves, at least in part, the making of value judgments. Determining what elements of the founders’ intentions are “basic”, whether the trust purposes have ceased to provide a “suitable and effective method” of using the trust property, and what application of the trust property “most nearly approximates” the founders’ intention, involves an evaluative judgment.

6. [215]

   Secondly, the questions posed by s 9, while conceptually distinct, are interrelated. In particular, identification of the spirit of the trust is relevant to whether the trust purposes have ceased to provide a “suitable and effective method” of using the trust property. For example, the appellants contended that the primary judge was in error in finding that the spirit of the trust included that the Free ANZ Diocese would in time be reunited with the Serbian Orthodox Church. The appellants also contended that there was error in finding that this element of the spirit of the trust was likely to be frustrated while the Free ANZ Diocese remained associated with the OCOCG-HSIR. Whether there has been error in relation to the first issue will inform whether there has been error in relation to the second.

7. [216]

   In the present case there was no written trust document. Regard must be had to a wide range of both documentary and oral evidence as to intentions at the time. A value judgment is required to ascertain the basic intention underlining the trust. The threshold required to establish that the original purposes have ceased to provide a suitable and effective method of using the trust property is well short of the threshold required to establish impossibility: Attorney General for NSW v Fulham at [17] per Bryson J.

8. [217]

   As I have said, the spirit of the trust will necessarily comprise a broader conception than the original purposes of the trust. When determining the spirit of the trust it is appropriate and necessary to have regard to “the trust’s history and the social context of the time at which it was established”: RSL Veterans’ Retirement Villages Ltd v NSW Minister for Lands [2006] NSWSC 1161 at [57].

9. [218]

   In Varsani v Jesani, the English Court of Appeal was asked to determine whether it had jurisdiction to apply trust property cy-près, following a split in a Hindu religious sect. Both factions contended that they were the true proponent of the faith and therefore entitled to worship in the temple to the exclusion of the other faction. Morritt LJ described the concept of the spirit of the gift as “the basic intention underlying the gift or the substance of the gift rather than the form of the words used to express it or conditions imposed to effect it.” It was noted that the legislative provision only refers to the “spirit of the gift” when the court is being asked to make a value judgment: at 234.

10. [219]

    This was echoed by Chadwick LJ, who explained, at 238, that:

THE ORIGINAL PURPOSES OF THE TRUST

1. [220]

   No ground of appeal was addressed to the primary judge’s finding about the original purposes of the trust. The attempt to agitate the issue in the proposed amended notice of appeal has been rejected for the reasons already given. Nevertheless, it is helpful to understand the submissions made by the appellants about other issues if the arguments about the original purposes of the trust are described in the way advanced on the appeal.

2. [221]

   The appellants submitted that there was error in the way the original purposes of the trust were found at trial because:

   1. (1)

      In the absence of a “touchstone”, the Court is not able to determine the fundamental or essential doctrines of the Free ANZ Diocese. The appellants submitted that anything which constitutes a fundamental principle of the Free ANZ Diocese is an original purpose of the trust. As a result, the Constitution itself, the doctrinal principles by which the Diocese is governed on the basis of the Holy Tradition and canons are all part of the original purpose of the trust; or, alternatively,

   2. (2)

      If the Court is able to determine the fundamental or essential doctrines of the Free ANZ Diocese in the absence of a touchstone, the primary judge did not undertake the task of so determining the essential doctrines.

3. [222]

   The appellants accepted that the primary judge was not asked to determine the “fundamental doctrines” of the Free ANZ Diocese, but submitted that this issue was indirectly put to him, as he rejected their principal submission that the entire Constitution was part of the purposes of the trust. The appellants submitted that his Honour did not find what the original purposes of the trust were.

4. [223]

   The appellants submitted that his Honour should have made the following findings in respect of the original purposes of the trust:

   1. (1)

      A purpose of the trust was freedom of religious association and that a person is free to stay or leave, as he or she chooses, based on Article 91 of the Constitution.

   2. (2)

      It was not a fundamental principle that the Bishop be Serbian; this is not found in the Constitution and is in fact inconsistent with the expert evidence on the canons.

   3. (3)

      The size of the church was not a fundamental element of the Free ANZ Diocese’s doctrine and therefore not part of the original purposes of the trust.

5. [224]

   A fundamental problem with these submissions is that the appellants did not ask the primary judge to make these findings about the original purposes of the trust.

6. [225]

   In the detailed schedule handed up at the hearing (which I have described above as a “roadmap”), the appellants submitted that the original purposes the primary judge should have found were:

7. [226]

   The primary judge’s conclusions on this topic were set out at [81]-[82] and [129]- [130] which I have quoted above at paragraphs [105] and [106].

8. [227]

   There was no error shown in his Honour’s conclusions. The complaints made by the appellants about the primary judge’s findings concerning the original purpose of the trust should be rejected.

9. [228]

   First, there was no ground of appeal identifying an error in the primary judge’s conclusions regarding the original trust purposes. Notwithstanding this omission, this complaint became a central feature of the appellants’ case.

10. [229]

    Secondly, as I have found at paragraphs [161], [167] and [171] above, the respondents would be prejudiced by permitting the complaints about the original purposes of the trust to be advanced for the first time on appeal.

11. [230]

    Thirdly, the appellants did not ask the primary judge to address at the trial any of the matters about which they now complain in respect of the findings about the original purposes of the trust. Even if the notice of appeal had identified these issues the appellants’ complaints must be rejected for that additional reason.

12. [231]

    There was no challenge to the determination of the original trust purposes by the primary judge and the appellants’ pleaded trust purposes did not include the asserted purposes now advanced. Having regard to the failure of the appellants to raise this issue in their notice of appeal it does not arise on this appeal.

13. [232]

    Fourthly, the original purposes of the trust must be determined at the time of creation of the trust. The primary judge was entitled to have regard to later events, however, as it is appropriate to look to the usage of trust property where there is no trust instrument: Radmanovich v Nedljkovic at [151]‑[153]. In my view the primary judge was correct to regard the church Constitution as capable of being changed through practice, as it represented a consensual compact: see generally Justice McPherson “The Church as Consensual Compact, Trust and Corporation” (2000) 74 ALJ 159 at 167-169. The appellants did not challenge the finding that the church Constitution was capable of being changed through practice, yet, on appeal attempted to argue that selected parts of the Constitution represented purposes of the trust. The appellants sought to insert their own “touchstone” as to what was properly to be judged as “essential”. The appellants were, in effect, attempting to rank the importance of the different constitutional provisions, an exercise that the primary judge was not asked to undertake. They should not be permitted to advance such a case on appeal.

14. [233]

    Fifthly, to the extent that the terms of the consensual compact may provide evidence of the purpose for which a religious charitable trust exists, not every rule will be a term of the trust; it is necessary to ascertain what is fundamental or essential. Hence, in Attorney-General v Grant, the distinction was made between, on the one hand, matters of fundamental or essential doctrine (the basis of union) and, on the other hand, the organisation of the church – its government (the articles of agreement). As Young CJ in Eq explained in Radmanovich v Nedljkovic at 668 [158]:

15. [234]

    The primary judge concluded, correctly in my view, that the Constitution of the Free ANZ Diocese (1964, 1976, or 1976 as amended in 1988) was not to be treated as a written prescription of the trust. To the extent it evidenced the fundamental or essential principles of the Diocese, it was evidence of the purposes of the trust in the same way as other evidence of the founders’ intention. His Honour held that its terms relating to matters of governance for the appointment of a bishop, altered by long standing contrary practice, did not involve matters of fundamental doctrine. This meant that Bishop Irinej (and his predecessors) appointed by the Holy Assembly in Belgrade had the authority of a Bishop of the Free ANZ Diocese, and that the Property Trust Company and its directors acted in breach of trust in rejecting that authority. This is significant in circumstances where the appellants have abandoned any challenge to those findings. Those findings, which were not challenged, were fundamentally inconsistent with the submission that the original purposes of the trust included congregational or presbyterian governance principles based on certain articles of the 1976 Constitution. It was an irony that the present appellants’ case was based on the congregational or presbyterian aspects of the 1976 Constitution being essential purposes of the trust as representing fundamental doctrine of the Free ANZ Diocese in circumstances where the same formal aspects of the 1976 Constitution were not followed by the Free ANZ Diocese (and the appellants) in this case.

16. [235]

    Sixthly, the thesis of a canonical walling off by the Free ANZ Diocese propounded by the appellants’ expert witness Archbishop Chrysostomos, put forward to support the defence that independence was a fundamental or essential tenet of the Free ANZ Diocese, was rejected by the primary judge. That meant, on that evidence and the pleaded defence, that there was no difference in fundamental or essential doctrine involved; as the defence pleaded (at [9](d)-(e)), the Free Serbian Orthodox Church and the Serbian Orthodox Church otherwise had the same doctrines and liturgy as the Free ANZ Diocese. Thus, the appellants’ case about fundamental principle, even if available, fails at that point.

17. [236]

    Seventhly, the appellants contended that the primary judge should have found certain additional principles or doctrines of the Free ANZ Diocese to be essential or fundamental. Leaving aside the fact that the appellants did not ask the primary judge to make any such findings below, the submission did not identify any House v The King error (in the sense described by Mason CJ, Deane and McHugh JJ in Singer v Berghouse) in the determination of what was “essential” or “fundamental”. The primary judge’s findings as to these matters were open to him and no House v The King error has been shown.

THE SPIRIT OF THE TRUST

1. [237]

   The primary judge’s findings as to the spirit of the trust at [500]-[502] were:

2. [238]

   The primary judge’s summary of his earlier findings about the spirit of the trust was contained in [521(l)]. The appellants’ criticism of his Honour’s summary findings, made without reference to the findings elsewhere in the body of the reasons, was unfair. In [521] the primary judge summarised his earlier findings thus:

3. [239]

   The appellants submitted that the primary judge made two errors in this summary:

   1. (1)

      His Honour found (at [521(l)]) what the spirit of the trust included, and not what the spirit of the trust was;

   2. (2)

      His Honour erred by identifying four of the five elements of the spirit of the trust he found. No issue was taken with item (v) because it concerned apostolic succession, which Bishop Ambrose was found by the primary judge to have, and the matter went no further.

4. [240]

   The complaint that his Honour found what the spirit of the trust included, and not what the spirit of the trust was should be rejected. Whilst in [521(l)] his Honour uses the words “the spirit of the trust included”, his conclusions about the spirit of the trust, in particular at [500] – [504], make it clear that his Honour was not drawing a conclusion that the spirit of the trust should be defined “inclusively”.

5. [241]

   At [500] his Honour found what would be contrary to the spirit of the trust and then says "First, the original spirit of the trust was that it was a trust for the benefit….", at [501] "the spirit of the trust was that the monastery be held..." and at [502], “it was part of the original spirit of the trust” .

6. [242]

   His Honour was there identifying what the spirit of the trust was by reference to a number of specific things. The summary in [521] is a summary of conclusions his Honour had reached earlier. It is those earlier conclusions which must be examined in order to determine precisely what was and was not determined to be the spirit of the trust. When this reading of the primary judge’s summary was raised in argument Senior Counsel for the appellants, Mr Blake SC who appeared with Mr Edwards, said:

7. [243]

   No attempt was made by the appellants to address the substantive findings that his Honour made earlier in the judgment. Paragraph [521] should be understood as a summary of conclusions his Honour had reached earlier. The complaint, which was based only upon one introductory word in the summary and not the detailed findings which had earlier been made, should be rejected.

8. [244]

   The appellants submitted that the primary judge erred in incorporating “former members” into this element of the spirit of the trust, for the following reasons:

9. [245]

   The appellants’ submission based on the primary judgment at [521(l)(i)] is not a fair characterisation of his Honour's reasons at [500], which is the finding that [521(l)(i)] is summarising. Paragraphs [500] and [504] provided:

10. [246]

    Although I will return to the topic below when addressing the proper application of s 9 and grounds 1(a), 1(b), 2(c) and 2(d) of the notice of appeal, this submission proceeds on a false premise. The correct reading of [500] is that the primary judge concluded that the spirit of the trust was that it was a trust for the benefit of all the church-school congregations who comprised the Free ANZ Diocese. His Honour’s conclusion was simply that the character of that organisation had changed markedly since the settling of the trust. His Honour did not conclude that the spirit of the trust was that it was directed to “former members” of the Free ANZ Diocese.

11. [247]

    First, the primary judge concluded that the character of the Free ANZ Diocese had changed markedly since the creation of the trust. That conclusion was unremarkable and undoubtedly correct. Initially 14 church-school congregations and later up to 16 congregations were affiliated with the Free ANZ Diocese. It was a key part of his Honour’s reasoning (addressed at [270] below) that the monastery was intended to be a little piece of Serbia in Australia and that there was no difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church but rather a split based on politics. The majority of Serbian Orthodox adherents in Australia were associated with the Free ANZ Diocese at the time the spirit of the trust was to be determined. Only four church-school congregations remained under the jurisdiction of the Patriarchate at that time. At the time of the trial before the primary judge only three church-school congregations remained affiliated with the Free ANZ Diocese, which church-school congregations comprised only a rump of the adherents to Serbian Orthodoxy in Australia. The primary judge’s finding was that the character of the Free ANZ Diocese now, as compared to the time of settling of the trust, was thus different.

12. [248]

    Secondly, it will be recalled that the primary judge decided that he could not make a cy-près order at general law as he had been asked to do below because the achievement of the original purposes of the trust were not impossible. In the course of making that finding the primary judge said at [456]:

13. [249]

    His Honour made a clear finding that the monastery could not be applied under a cy-près scheme at general law for the purposes of congregations who had joined the SOC-ANZ Metropolitanate, citing Attorney-General (NSW) v Grant (1976) 135 CLR 587; Craigdallie v Aikman (No. 2) (1820) 2 Bli 529, 4 ER 435; Craigie v Marshall (1850) 12 D 523; and Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 3) (2011) SLT 1213; [2011] CSIH 52 at [54]-[64], [78], [79] and [122]-[130].

14. [250]

    Thirdly, the appellants’ submission also ignores an important and unchallenged part of his Honour’s conclusion at [500], namely that to apply the monastery property now to the purposes of the appellants would be contrary to the spirit of the trust as the leaders of the Free ANZ Diocese (the appellants) had acted contrary to the terms of the Free ANZ Diocese Constitution and in breach of trust. That conclusion tells heavily against the appellants’ submission. It is part of the central conclusion concerning the change in character of the Free ANZ Diocese that the trustees of the trust had not complied with the 1976 Constitution and had acted in breach of trust in numerous respects regarding the management of the monastery property.

15. [251]

    The appellants submitted that it was wrong to include the nationalist character of the monastery in the spirit of the trust, for the following reasons:

16. [252]

    The appellants submitted that the primary judge erred in making his finding regarding tradition at [521(l)(iii)] for essentially the same reasons as in the preceding paragraph.

17. [253]

    As I will later explain, this was a correct finding.

18. [254]

    The appellants suggested that reunification with the Serbian Orthodox Church should not be considered part of the spirit of the trust because:

19. [255]

    The appellants submitted that the material evidence for ascertaining the spirit of the trust was Bishop Petar’s letter of 2 January 1979 and the appeal letter sent on 23 November 1979. It was submitted that the substance of those letters was that “the monastery property would be for the purpose of nurturing the spiritual life of the members of the diocese from time to time.”

20. [256]

    The primary judge’s error, it was submitted, was in failing to recognise that the spirit of the trust, in supporting the spiritual life of its members, was for a lay assembly to exercise ultimate authority, including when and on what terms to affiliate or reconcile with the Serbian Orthodox Church. The primary judge also erred, it was submitted, in finding that the monastery had to be “exclusively” Serbian.

21. [257]

    It will be recalled that the issues raised by the appellants about the spirit of the trust should properly be categorised as follows:

22. [258]

    The inquiry required by the statute is whether the “original purposes, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust”.

23. [259]

    The original trust purposes – identified by the primary judge at [82] – involved building and conducting a monastery, a monastery church, and related facilities for the purposes of the Free ANZ Diocese, not for the purposes of the Diocese generally, but for conducting church services. The Diocese was initially comprised of 14 church-school communities (congregations) of the Serbian Orthodox Church, and later up to 16 congregations belonged to the Free ANZ Diocese. The majority of those church-school communities joined the SOC-ANZ Metropolitanate in September 2010.

24. [260]

    Relevantly for present purposes, the conclusions of the primary judge were:

25. [261]

    I will return to the significance of these findings below. For present purposes it should be noted that these claims were at the heart of the case presented by the appellants to the primary judge on this issue.

26. [262]

    The meaning of “the spirit of the trust” was identified by the primary judge as the basic intention underlying the gift: Re Lepton’s Charity [1972] Ch 276. It was common ground that the spirit of the trust in s 9 was a different, and broader, concept than the original purposes of the trust. The appellants did not challenge his Honour’s identification of the correct legal test, merely its application.

27. [263]

    A key to understanding the primary judge’s findings is to consider the case presented to him by the appellants which focussed on the claim (not repeated in this Court) that the spirit of the trust was that the Free ANZ Diocese would be, and remain, independent from the Serbian Orthodox Church. It is clear on the evidence that the founders of the trust intended to assert a temporary administrative independence from the Serbian Orthodox Church, but did not intend to assert spiritual independence from the Serbian Orthodox Church. That issue, and its resolution by the primary judge (which is unchallenged), lies at the heart of the findings attacked by the appellants, which are addressed below.

28. [264]

    As I have explained, the appellants contended that the primary judge should not have “focus[ed] on the language of the letter dated 2 January 1979 of Bishop Petar” but should instead have found that the substance of that letter was that the Wallaroo property would be for the purpose of nurturing the spiritual life of the members of the Free ANZ Diocese. This submission should be rejected.

29. [265]

    The primary judge’s finding that the basic intention underlying the gift was the creation of a monastery that was Serbian was not only open to him on the evidence, but obvious and clear.

30. [266]

    The intention was expressed not only in the letter of 2 January 1979 but also in the appeal of 23 November 1979, the relevant terms of which are:

31. [267]

    The intention is manifest in the constitutional documents. The Diocese was a religious community of Orthodox Serbs joined in Serbian Orthodox church-school congregations, who professed the Orthodox faith (1976 Constitution Articles 1 (amended 1988), 5 and 83), primary judgment at [23] (1964 resolution), [65] (1979 appeal for funding), [96], [340] (1985 resolution), [102]-[105] (1988 resolution) and [163] (1991 resolution) which provided as follows:

32. [268]

    The Serbian character of the Free ANZ Diocese is also clear from the following evidence:

33. [269]

    The evidence of the Serbian character of the spirit of the trust, from Serbs in Australia Volume 2 (Fr T Kazich, ed., 1992, Monastery Press), relied upon by all parties, is clear. When addressing the call for funds to build the monastery that book states:

34. [270]

    The primary judge found that the monastery property would be a place of worship for Serbians living in Australia and seeking to uphold the Serbian Orthodox Church traditions. There was an abundance of evidence that it was intended that the monastery would be a piece of Serbian soil in Australia, that is, the monastery and the church that used it, would be a Serbian church. No error has been shown in the primary judge’s finding that:

35. [271]

    Ground 3(a) of the notice of appeal should be rejected.

36. [272]

    The appellants’ submission that there was “no evidence” that the hope of reunification between the Free ANZ Diocese and the Serbian Orthodox Church animated the members who contributed funds to the acquisition of the monastery property should be rejected.

37. [273]

    The terms of the appeal for funds sent out on 23 November 1979 refer in terms to the prospect of Serbia being liberated from communism:

38. [274]

    In context, this key document obviously refers to the widespread desire within the Free ANZ Diocese to reunify with the Serbian Orthodox Church when communism fell. The fervent desire for the fall of communism in Serbia is an obvious corollary with a desire to return to the Serbian Orthodox Church, in the way it was between 1918 and 1943, whilst Serbia was independent and not ruled by a communist dictatorship.

39. [275]

    While it is true, as the appellants submitted, that Articles 1, 3 and 4 of the 1964 Constitution of the Free ANZ Diocese which provided, inter alia, that the Free ANZ Diocese was part of the Serbian Orthodox Church “of the Kingdom of Yugoslavia [1918 to 1943]”, had been removed in the 1976 Constitution, this was plainly explicable by reason of the decision of the US Supreme Court immediately prior to that time.

40. [276]

    The 1976 Constitution emphasised the administrative independence of the Free ANZ Diocese. It did not, however, contain any statement that would suggest that the spiritual affinity with the Serbian Orthodox Church previously central to the Free ANZ Diocese, including the desire to reunify expressed at the 1964 Church National Assembly referred to above, was no longer a continuing desire.

41. [277]

    Other evidence makes clear that the desire amongst contributors to the trust to reunify with the Serbian Orthodox Church when communism fell remained widespread at the time of the monastery appeal in 1979-80. Mr Nesic, one of the appellants, said:

42. [278]

    Mr Veselinovic, another donor to the collection said:

43. [279]

    Further, the 1979 Church National Assembly of the Free ANZ Diocese was attended by Prince Andrej of the former Kingdom of Yugoslavia, thus indicating that the affinity with the “Kingdom of Yugoslavia [1918 to 1943]” was still current despite the change in wording in the 1976 Constitution.

44. [280]

    Accordingly it was open to the primary judge to find, as he did, that reunification with the Serbian Orthodox Church remained the intention of at least most of the members of the Free ANZ Diocese following the adoption of the 1976 Constitution, and that it was part of the spirit of the trust. That conclusion was, on the evidence before the primary judge, compelling.

45. [281]

    Ground 4(a) of the notice of appeal should be rejected.

46. [282]

    The appellants’ submissions on this topic do not reflect any of the grounds of appeal. Ground 7(a) contends that the independent governance of the Free ANZ Diocese was part of the spirit of the trust. However the submission made was that independent governance was part of the original purposes of the trust, rather than the spirit of the trust, and on account of that, the spirit of the trust could not include the hope of reunification.

47. [283]

    As I have explained, this complaint was outside the grounds of appeal and was not an issue presented for determination to the primary judge.

48. [284]

    The 1976 Constitution, understandably in light of events in the United States, placed emphasis on independent governance, however it is tolerably clear that it was hoped that the situation which had made this necessary would change. There is no error, let alone a House v The King error, identified in the primary judge’s finding on this topic.

49. [285]

    The appellants also submitted that the primary judge “misdirected himself” in finding that the spirit of the trust was that the Free ANZ Diocese be led by a bishop having apostolic succession. This is not raised in any ground of appeal and would appear to be irrelevant, given that his Honour was ultimately satisfied that Bishop Ambrose has apostolic succession.

50. [286]

    Grounds 6 and 7(a) of the notice of appeal should be rejected.

WHETHER THE ORIGINAL PURPOSES, WHOLLY OR IN PART, HAVE SINCE THEY WERE LAID DOWN CEASED TO PROVIDE A SUITABLE AND EFFECTIVE METHOD OF USING THE TRUST PROPERTY, HAVING REGARD TO THE SPIRIT OF THE TRUST

1. [287]

   The third element identified by the appellants, whether the original purposes, wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust also divided the parties.

2. [288]

   The appellants submitted that the original trust purposes remained suitable and effective having regard to the spirit of the trust. I have above rejected the appellants’ complaints about the primary judge’s findings about the spirit of the trust.

3. [289]

   At [521(q)], the primary judge recorded the summary of his conclusions on this question, namely:

4. [290]

   The appellants’ first complaint was that the primary judge erred in that he allegedly “regarded consistency or otherwise with the spirit of the trust as being determinative of the question.” That is, he based his decision on whether things were not in accordance with, contrary to or a departure from the spirit of the Monastery Trust.

5. [291]

   It is convenient to address together and at this stage the appellants’ second complaint, that the primary judge failed to consider certain issues raised below.

6. [292]

   The appellants contended that the primary judge did not consider five of the submissions they made below in the context of answering the question “whether the charitable trust should be varied cy-près for the religious purposes of the ANZ Metropolitanate”.

7. [293]

   That submission should be rejected. It is not enough simply to assert that a submission is not expressly referred to in the primary judge’s reasons. What is required is that an appellant show how the failure to address a submission (assuming that to be the case) constituted a material error. The appellants in this case did not do this. On analysis, the appellants did not even establish that any of the matters about which there was complaint was not addressed by the primary judge.

8. [294]

   The first three submissions said not to have been considered relate to the impact of the Free ANZ Diocese’s communion with the OCOCG-HSIR. Those submissions were as follows

9. [295]

   The appellants’ complaints with regards to these three submissions should be rejected for the following reasons:

   1. (1)

      First, the primary judge plainly had regard to the fact that the Free ANZ Diocese’s association with a non-autocephalous church was not unique to the Free ANZ Diocese’s current association with the OCOCG-HSIR. His Honour noted, at [436]:

   2. (2)

      Secondly, the primary judge did not conclude that the Free ANZ Diocese’s relationship with “a non-autocephalous church” changed its character. His Honour acknowledged that this had previously occurred in the Free ANZ Diocese at [483]:

   3. (3)

      Thirdly, his Honour did in fact consider that the Diocese was independent, as he found at [321] that the concelebration of the liturgy did not disturb the Free ANZ Diocese’s status as an “independent and autonomous church”.

   4. (4)

      Fourthly, his Honour dealt with the relationship between the OCOCG-HSIR and the Free ANZ Diocese in detail at [493], noting the “closeness of the relationship between the two churches”.

10. [296]

    The fourth submission said not to have been considered related to the relevance of the 1984 Constitution of the Free Serbian Orthodox Church:

11. [297]

    This submission should be rejected for the following reasons:

    1. (1)

       First, the appellants have not identified any particular findings of the primary judge that they assert are incorrect because they are based on articles in the 1984 Constitution. It is therefore unclear, assuming the primary judge not to have addressed the submission, what significance for the primary judge’s reasons this alleged failure had.

    2. (2)

       Secondly, the primary judge did make a finding, favourable to the appellants’ case below, that only limited amendments were made in consequence to the 1984 Free Serbian Orthodox Constitution, stating that “[r]elevantly to the present case, the amendments to the 1976 constitution were to Article 1 and the deletion of the first sentence of Article 4 of the 1976 constitution”: at [123].

    3. (3)

       Thirdly, the only reference to the 1984 Constitution as evidence underpinning a conclusion of the primary judge is in relation to the issue of a hoped for unification with the Serbian Orthodox Church in the future, at [340]:

    4. (4)

       Fourthly, the buildings on the monastery property were being constructed throughout the 1980s, including 1984. While the trust may have been established prior to this, as his Honour pointed out in [341], the resolutions of the 8th Sabor show there was no departure from the hope that the Diocese would one day reunite with the Serbian Orthodox Church.

12. [298]

    The appellants next submitted that “important evidence” was not referred to by the primary judge:

13. [299]

    While it is true that the primary judge did not expressly refer to this evidence in his reasons, the appellants’ complaint is misconceived. The primary judge did not find that there was an impediment based on the size of the church to concluding that the Free ANZ Diocese was “validity functioning as an Orthodox Church”. As I have said, in addressing the claim for cy-près relief at general law the primary judge expressly rejected the submission (made by the present first and second respondents below) that the Free ANZ Diocese had ceased to exist. That finding is incompatible with the submission that, in the same judgment, his Honour had concluded that the Free ANZ Diocese had no “validity as a functioning Orthodox Church”. The appellants’ complaint that his Honour did not have regard to their submission about the evidence concerning the “validity” of the Free ANZ Diocese should be rejected.

14. [300]

    The appellants also submitted that the primary judge failed to refer to the division of opinion within the Orthodox Church about ecumenism. The appellants relied on Fr Rentel’s evidence that within the Orthodox Church there are differing views about ecumenism. The alleged error was that the primary judge found that the Free ANZ Diocese’s association with the OCOCG-HSIR (which holds an anti-ecumenical view) was a reason why the original purposes no longer provided a suitable method. The appellants submitted that the doctrines of the Orthodox Church do not prohibit a church from holding an anti-ecumenical view.

15. [301]

    This submission should be rejected. The primary judge made detailed findings about ecumenism and rejected the factual sub-stratum of the appellants’ present complaint in terms. He found that there was no evidence of opposition to ecumenism being part of the doctrines or beliefs of the members of the Free ANZ Diocese at the time the trust was established:

16. [302]

    Turning to the submission concerning the specific reasons attributed by the primary judge, looking first at [521(q)(i)], that the membership of the Free ANZ Diocese is much smaller than when the trust was formed, the appellants submitted that the primary judge erred in finding this was relevant to the question of suitable and effective method because his Honour:

17. [303]

    The appellants submitted that the primary judge’s conclusion in [521(q)(ii)], that use of the monastery for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust, was a mistake for the following reasons:

18. [304]

    Lastly, looking at [521(q)(iii)], that the affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the appointment of Bishop Ambrose as Bishop is inconsistent with the spirit of the trust, the appellants submitted that the primary judge erred in considering that these two elements were inconsistent with the Serbian character of the trust and future reconciliation. The appellants made the following points in relation to the Serbian character of the trust:

19. [305]

    The appellants made the following submissions about the future reconciliation component of [521(q)(iii)]:

20. [306]

    The concluding submissions of the appellants on the application of s 9 were that:

    1. (1)

       There was no basis for finding that reunification with the Serbian Orthodox Church had to occur within a specific time frame;

    2. (2)

       The primary judge should not have imposed a “reasonable” time limit on reunification: just because reunification was unlikely to occur in a “reasonable time” did not mean the original purposes have ceased to provide a suitable and effective means of applying the trust; and

    3. (3)

       The Free ANZ Diocese’s current stance against ecumenism was within the Holy Tradition; it cannot be that holding this stance is contrary to the original purposes. The appellants submitted that the primary judge was impermissibly adjudicating on the reasonableness of religious doctrine, by finding that it was unreasonable to adopt an anti-ecumenical view in light of the spirit of the trust.

21. [307]

    It will be recalled that the notice of appeal made the following complaints about the suitable and effective method question:

22. [308]

    The appellants accepted that they must show House v The King error in respect to this aspect of the s 9 test, which they described as the “third element” of that test. As I have explained above I do not regard it appropriate to parse and analyse the various components of s 9 in this way but for present purposes it is unnecessary to say more.

23. [309]

    The two issues raised by the grounds of appeal as to whether the primary judge was correct to conclude that the original trust purposes had ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, may be described as a change in character of the Free ANZ Diocese which the appellants describe as based on “size” and whether or not the original trust purposes remain suitable and effective having regard to the spirit of the trust and affiliations with the OCOCG-HSIR, which itself raised a number of sub-issues.

24. [310]

    Before dealing with these issues, it is appropriate to address two more general submissions. First, the appellants contended that the primary judge erred in his approach to the application of s 9 of the Charitable Trusts Act, because it is said that he regarded a departure from the spirit of the trust as “determinative” of the question, when s 9 of the Charitable Trusts Act merely provides that regard is to be had to the spirit of the trust.

25. [311]

    There is no substance to this submission. The appellants seize upon the word “gauged” at [508] to suggest that the primary judge applied a test that diverged from the statutory test. The primary judge there was rejecting a submission made by the appellants below that the approach followed in Varsani v Jesani and White v Williams [2010] EWHC 940 (Ch); [2010] PTSR 1575 elevated the spirit of the trust above the original trust purposes. His Honour was simply observing, correctly, that the text of s 9 required regard to be had to the spirit of the trust in assessing whether the original trust purposes had ceased to provide a suitable and effective method of using the trust property.

26. [312]

    Secondly, the appellants contended that the primary judge erred in finding that because use of the monastery property for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust, it followed that the original trust purposes had ceased to provide a suitable and effective method of its use. The primary judge made no such finding; that is, it was not because use of the monastery property for the purposes of the SOC-ANZ Metropolitanate would be consistent with the spirit of the trust that, it followed that the original trust purposes had ceased to provide a suitable and effective method of its use.

27. [313]

    It is correct that s 9 does not enable a court simply to select an alternative purpose that it thinks is a more beneficial one, if the original purposes continue to provide a suitable and effective use of the trust property. However, the primary judge did not adopt any such approach. There was a passing reference at [503] to the fact that use by the SOC-ANZ Metropolitanate would not be inconsistent with the spirit of the trust. His Honour there addressing (and rejecting) an argument put below by the appellants about the alleged spirit of the trust being that the Free ANZ Diocese should forever (until a proper decision by the National Assembly to the contrary was made) remain independent of the Serbian Orthodox Church.

28. [314]

    This finding, correctly rejecting part of the appellants’ case about the spirit of the trust, was not determinative in the primary judge’s consideration of whether the trust purposes had ceased to be a suitable and effective method of using the trust property.

29. [315]

    Further, the appellants’ complaint that the primary judge erred in finding that under s 9 property must be applied for purposes that are as near as possible to the original purposes, having regard to the spirit of the trust, should be rejected. This is because s 9 expands the grounds on which property may be applied “cy-près”. The legislature, in its decision to use the language of “cy-près”, specifically provided that s 9 would apply in additional, and expanded, circumstances to those at general law. The use of the term “cy-près” indicates the continued relationship between the statutory jurisdiction and the general law concept. Section 9 does not remove the requirement that, where the jurisdiction is engaged, the property be applied as near to the original purposes of the trust as would be effective and suitable, having regard to the spirit of the trust.

30. [316]

    I have already dealt with the appellants’ submission that the primary judge applied a “size” test in the determination of the question posed by s 9 of the Charitable Trusts Act at [299] above. His Honour’s conclusion was not the application of a size test. Rather, at [500] his Honour found that the character of that organisation had changed markedly since the settling of the trust. His Honour did not conclude that the spirit of the trust was that it was directed to “former members” of the Free ANZ Diocese.

31. [317]

    Rather, as I have explained, the finding of the primary judge was that the character of the Free ANZ Diocese had changed markedly since the creation of the trust. That conclusion was unremarkable and based on his related findings that the monastery was intended to be a little piece of Serbia in Australia and that there was no difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church but rather a split based on politics.

32. [318]

    Once those related matters are taken into account the findings about character become clearer. The vast majority of Serbian Orthodox adherents in Australia who associated with the Free ANZ Diocese at the time the spirit of the trust was to be determined are now associated with the SOC-ANZ Metropolitanate. At the time of the trial before the primary judge only three church-school congregations remained affiliated with the Free ANZ Diocese, which church-school congregations comprised only a small proportion of the adherents to Serbian Orthodoxy in Australia. The primary judge’s finding was that the character of the Free ANZ Diocese now, as compared to the time of settling of the trust, was thus different. The vast majority of Serbian Orthodox adherents in Australia could enjoy the monastery at the time of creation of the trust. Now, given the divisions which his Honour found were matters of church politics and not faith, only a small minority of Serbian Orthodox adherents in Australia could enjoy the monastery.

33. [319]

    This finding was not a simple application of a “size” test by the primary judge. What his Honour did was to contrast the character of the trust, being a body which had provided access to a monastery which was “a little piece of Serbia” to the vast majority of Serbian Orthodox adherents in Australia, with the body now which provided access to only a small minority of Serbian Orthodox adherents in Australia.

34. [320]

    His Honour made a clear finding when addressing the general law cy-près doctrine that the change in character he identified was irrelevant. He found in favour of the appellants that the monastery could not be held on trust for the purposes of congregations who had joined the SOC-ANZ Metropolitanate, citing Grant. That is, the fact that only a rump of Serbian Orthodox adherents now had access to the monastery did not make it impossible or impracticable to carry out the original purposes of the trust. The appellants, in effect, seek to elevate this question as determinative of the s 9 question his Honour was asked to address.

35. [321]

    That was not the task which was set by s 9 of the Charitable Trusts Act. In addressing that question it was relevant for his Honour to consider the changed character of the trust having regard to the spirit of the trust.

36. [322]

    The appellants’ submissions on the character issue assumed that as two churches were involved the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante were necessarily matters of faith. I agree that if the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante had been matters of faith, his Honour should have taken those differences in faith into account for the purposes of s 9: General Assembly of Free Scotland v Lord Overtoun. However the primary judge concluded, correctly in my view, that the differences between the Free ANZ Diocese and the SOC-ANZ Metroplitanante were not matters of faith. The detailed history of the organisations recited by his Honour which I have summarised in these reasons makes clear that the split in the Serbian Orthodox Church was one based on perception of control of the Serbian Orthodox Church by the (then) communist authorities in Belgrade and not on matters of faith. The submission that there was “no evidence” to support this conclusion is not possible to maintain. The appellants’ reliance on an alleged inconsistency with the decision of the US Supreme Court in Milivojevich is both legally irrelevant and factually incorrect.

37. [323]

    As I have found, the alleged difference in faith, which was that the Free ANZ Diocese was an ”independent presbyterian church”, was correctly rejected by the primary judge. The claim that the Free ANZ Diocese was forever to be independent of the Serbian Orthodox Church was at the forefront of the appellants’ case before the primary judge and rejected by him. The alleged presbyterian character of the Free ANZ Diocese as a central tenet of faith was at the forefront of this appeal. As I have found, however, the primary judge correctly rejected the submission that the presbyterian aspects of the 1976 Constitution were matters of faith.

38. [324]

    In relation to the primary judge’s findings about the changed character of the trust this is important. His Honour’s conclusion at [500], was that to apply the monastery property now to the purposes of the appellants would be contrary to the spirit of the trust as the leaders of the Free ANZ Diocese (and the appellants in relation to the trust) had acted contrary to the terms of the Free ANZ Diocese’s Constitution and in breach of trust. Those breaches of trust included failing to heed the directions of Bishop Irinej, who was entitled to give those directions by reason of his appointment which was in accordance with the changed consensual compact. It is part of the central conclusion of the primary judge concerning the change in character of the Free ANZ Diocese that its leaders did not adhere to the 1976 Constitution and had acted in breach of trust in numerous respects regarding the management of the monastery property.

39. [325]

    The appellants’ submission that the primary judge erred in taking this matter into account as it involved only “the actions of past leaders of the Free ANZ Diocese who acted contrary to the constitution” should be rejected. Factually, the breaches of trust were committed by some people who remained involved with the trust at the time of the trial before the primary judge. More fundamentally, so far as the character issue is concerned, the breaches of trust were relevant in that the directions of the properly appointed Bishop, with the constitutional authority to give those directions, were not followed. This was a significant change in the character of the trust, relevant to determining the question posed by s 9.

40. [326]

    It is no answer that the Property Trust Company purportedly appointed Bishop Ambrose to the role he now plays. As the primary judge found, the Property Trust Company had no power to do so under the 1976 Constitution. Whatever else may be said about the appointment of Bishop Ambrose, the steps taken by the appellants to effect that appointment are a cogent demonstration that the presbyterian aspects of the 1976 Constitution were not matters of faith for the Free ANZ Diocese. If they were, the fact that the 1976 Constitution was completely ignored by the appellants in the appointment of Bishop Ambrose was inexplicable.

41. [327]

    There was no error, let alone a House v The King error, demonstrated in the primary judge’s conclusion on this issue. The appellants’ submissions on the character issue are, in essence, that because the monastery “remained available to nurture the spiritual life of the members of the Free ANZ Diocese”, the original trust purposes must therefore have remained a suitable and effective method of using the trust property. The proposition elevates the test in s 9 to the general law test of impossibility or impracticability. The appellants’ submission is inconsistent with the intention of the legislature that s 9 provide a more expansive operation of the cy-près doctrine.

42. [328]

    Grounds 1(a), 1(b), 2(c) and 2(d) of the notice of appeal should be rejected.

43. [329]

    The appellants’ submissions were to the effect that because the original trust purposes included “the principles of freedom of religious association of the Free ANZ Diocese and that a diocese would not be administered by a bishop of a particular ethnicity”, the continued use of the trust property by the Free ANZ Diocese with Bishop Ambrose as its bishop necessarily continued effectively to serve those purposes. There are two principal difficulties with this submission.

44. [330]

    First, as I have found, the appellants’ complaints about the primary judge’s findings about the original trust purposes are outside the grounds of appeal and were not raised in the proceedings below.

45. [331]

    Secondly, the appellants have not addressed the statutory test. The appellants’ submission amounts to the proposition that affiliation of the Free ANZ Diocese with the OCOCG-HSIR and the ethnicity of Bishop Ambrose do not demonstrate the “inappropriateness” of the original trust purposes. The appellants’ submission ignores the critical elements of the primary judge’s findings about the spirit of the trust, namely that the Free ANZ Diocese had a Serbian character and its members shared the fervent hope that the church would reunify once communism fell.

46. [332]

    I have set out those findings at [117] above. On the evidence before the primary judge, which I have summarised at [273]‑[280], those conclusions were compelling. There was no error, let alone a House v The King error demonstrated in the primary judge’s findings that the Free ANZ Diocese’s affiliations with the OCOCG-HSIR were completely inconsistent with critical elements of the spirit of the trust, namely that the Free ANZ Diocese have a Serbian character and it was fervently hoped that the church would reunify once communism fell. The primary judge found that affiliation with the OCOCG-HSIR was inconsistent with the former and made the latter much less likely. No error has been shown in those findings nor in his Honour taking them into account in making the broad evaluative assessment that s 9 of the Charitable Trusts Act requires.

47. [333]

    The appellants’ remaining submissions on this issue seek to approbate and reprobate about the role of Bishop Ambrose in relation to the Free ANZ Diocese. It will be recalled that the Property Trust Company (outside any powers granted to it) engaged Bishop Ambrose to lead the Free ANZ Diocese at least in part to better defend the proceedings before the primary judge. In many respects the appellants succeeded before the primary judge on issues which are not the subject of this appeal. In that endeavour they were no doubt assisted by the fact that the Free ANZ Diocese had a bishop who enjoyed apostolic succession (as the primary judge found Bishop Ambrose had).

48. [334]

    The primary judge found, and there was no appeal from this finding, that the OCOCG-HSIR rejects, and treats as heresy, the fundamental basis upon which members of the Free ANZ Diocese associated, which is, belief in the “One Holy, Ecumenical and Apostolic Church”, which is drawn from article 1 of the 1976 Constitution.

49. [335]

    In circumstances where Bishop Ambrose had been appointed to lead the Free ANZ Diocese the appellants’ complaint that the Free ANZ Diocese was allegedly “not under the spiritual jurisdiction of the OCOCG” is of little moment. The primary judge was entitled to conclude that the appointment by the Property Trust Company of a bishop to lead the Free ANZ Diocese who viewed the fundamental basis upon which that church associated as heresy as making reunification with the broader Serbian Orthodox Church much more difficult and thus inconsistent in material respects with the spirit of the trust.

50. [336]

    The appellants’ complaints about the primary judge’s findings concerning the old Julian Calendar should be rejected. There was nothing illogical in a finding that the affiliation with the OCOCG-HSIR was likely to be counterproductive to reunification in the Serbian Orthodox Church until the issue of the use of the new calendar was resolved by a Greater Orthodox Council in the future.

51. [337]

    So far as the appellants’ complaints about the primary judge’s findings about ecumenism were concerned, they should be rejected. It will be recalled that the primary judge found that opposition to ecumenism was not part of the spirit of the trust at the time of its creation, nor a principle of the Free ANZ Diocese at that time.

52. [338]

    No error was shown in these findings. Nor was any error, let alone a House v The King error established in relation to the broad evaluative judgment his Honour made under s 9 taking account of these matters.

53. [339]

    As a fall back submission the appellants submitted that the Free ANZ Diocese’s alignment with the OCOCG-HSIR and Bishop Ambrose was nonetheless in accord with the spirit of the trust. This is said to be based on the propositions that:

54. [340]

    These submissions should be rejected. Contrary to the appellants’ submission, there was evidence that since the alignment of the Free ANZ Diocese with the OCOCG-HSIR and Bishop Ambrose, the character of the Free ANZ Diocese as Serbian has been significantly compromised. The primary judge made findings about the relationship between the Free ANZ Diocese and the OCOCG-HSIR. Those findings were unchallenged. The effect of those findings was that this association was not in accordance with the spirit of the trust, as the OCOCG-HSIR did not have a distinctly ethnic and nationalist Serbian focus. No error has been shown in that conclusion.

55. [341]

    The mere fact that the OCOCG-HSIR and Bishop Ambrose “could not frustrate” a decision of the Free ANZ Diocese Church National Assembly to reunify with the Serbian Orthodox Church is not to the point. The evidence clearly demonstrated that any reconciliation was highly unlikely to occur while the close association of the Free ANZ Diocese with the OCOCG-HSIR and Bishop Ambrose continued. So much was stated by the Free ANZ Diocese in the resolutions passed at the Church National Assembly on 29 November 2012 (dealt with at [132] above).

56. [342]

    Grounds 3(b) and 3(c) of the notice of appeal should be rejected.

57. [343]

    The appellants said virtually nothing in support of this ground either in writing or orally.

58. [344]

    The appellants accepted that the cy-près order made under s 9 should itself represent a “suitable and effective” use of the property, having regard to the spirit of the trust. However, the appellants contended that even if the primary judge was correct to conclude that the original trust purposes have ceased to provide a suitable and effective method of using the trust property, the property should be applied cy-près for the purposes of the Free ANZ Diocese.

59. [345]

    In my view, as the primary judge correctly concluded that the s 9 jurisdiction was engaged, it was not an error to fail to conclude that an order should be made under s 9 in favour of the Free ANZ Diocese.

APPLICATION OF THE TRUST PROPERTY CY-PRÈS

1. [346]

   The appellants submitted that even if they failed at stage 3, it did not automatically follow that the purposes of the trust should be altered in favour of the SOC-ANZ Metropolitanate.

2. [347]

   The appellants submitted that the primary judge erred in two ways in how he determined to apply the trust property cy-près.

3. [348]

   First, it was submitted the primary judge failed to adopt the correct approach. The approach he adopted is found in [509] of the judgment:

4. [349]

   The appellants submitted that the introductory clause of s 9 showed that the section was intended to extend the grounds upon which the Court’s jurisdiction to apply property cy-près is engaged. There is nothing in the text which says that it applies to how the original purposes are to be altered – i.e., there is nothing in the text that requires that property the subject of a cy-près scheme be applied as near as possible to the original purposes.

5. [350]

   The appellants submitted that this is also reflected in the history of the equivalent sections in other jurisdictions. Both the UK provision found in the Charities Act (UK) and the South Australian provision in the Trustee Act (SA) made specific amendments to require that a court take into account the spirit of the trust when determining how to apply the property cy-près. It is telling, the appellants submit, that no such provision exists in the NSW legislation.

6. [351]

   Secondly, the appellants submitted that the primary judge’s discretionary or evaluative judgment miscarried. This submission was based on the primary judge’s finding that there was no relevant difference in faith between the Free ANZ Diocese and the Serbian Orthodox Church. His Honour found at [510]:

7. [352]

   The appellants submitted that the evidence supported a finding that there was a difference in faith as the primary judge ignored evidence that:

   1. (1)

      the governance of the church was an ecclesiological principle, and relevant to faith. The appellants referred to the evidence of Bishop Irinej at [Black1 411];

   2. (2)

      differing views about ecumenism existed between orthodox churches.

8. [353]

   The appellants ultimately submitted that:

9. [354]

   The respondents submitted that it was appropriate for the primary judge to regard the church Constitution as capable of being changed through practice, as it represented a consensual compact. The respondents emphasised that the appellants did not challenge this finding, yet, on appeal attempted to argue that selective parts of the Constitution are the instrument of trust. The respondents took issue with this, and additionally, the appellants’ failure to distinguish which of the trust articles go to the original purposes of the trust and which go to the underlying intention (or spirit) of the trust.

10. [355]

    The respondents argued that the appellants were seeking to insert their own touchstone as to what is judged essential or not. They drew examples from within the Constitution where the “essential” Articles referred to by the appellants are countered by other Articles. Mr Glacken QC contrasted the ecclesiological principle of governance with how the Constitution “defines unequivocally” the character of the church as Serbian. It was submitted that the appellants were attempting to rank the importance of the different constitutional provisions, an exercise that the primary judge was not asked to undertake.

11. [356]

    The respondents submitted that once the Court found that the original purposes no longer provide a suitable method of using trust property, the Court was required to apply the property cy-près. However, it was submitted, the Court may select between potential schemes or “rival candidates” for the new and altered purposes, provided they are within the ambit of the basic intention of the trust.

12. [357]

    The appellants’ submissions on the cy-près question focus on the proposition that where there has been a split in a religious organisation, the court’s task is to determine who are the “true adherents” to the organisation’s foundational principles and apply the property for the purposes of that group.

13. [358]

    This submission required the appellants, in turn, to submit that the primary judge erred in his findings that there was no difference in faith between the Free ANZ Diocese and the SOC-ANZ Metropolitanate, and similarly that the original division between the Serbian Orthodox Church and the Free ANZ Diocese was simply a matter of church politics.

14. [359]

    There is a fundamental difficulty with this submission. Merely because, as is undoubtedly correct at a level of generality, a difference between a congregational and a hierarchical structure could be a matter of ecclesiology or theology does not address the issue in this case. The evidence in this case did not establish that a difference between the congregational structure adopted in the 1976 Constitution and the hierarchical structure of the Serbian Orthodox Church was considered a matter of ecclesiology or theology by the Free ANZ Diocese.

15. [360]

    There was no error in the primary judge’s findings that the original split between the Serbian Orthodox Church and the Free ANZ Diocese, in this case, was a division on a “matter of church politics”.

16. [361]

    The primary judge made detailed findings about the origin of the split. It is not suggested that any of those findings were made in error. Those findings amply support the primary judge’s ultimate conclusion. As a consequence of that division, the Free ANZ Diocese in 1964 (and again in 1976) adopted a structure which involved administrative independence from the Serbian Orthodox Church. It did so, on the primary judge’s findings, in response to events which had consequences for control of Church assets in America, not because of any religious opposition to the concept of a hierarchical church.

17. [362]

    If, as the appellants submitted, this congregational or presbyterian structure of the Free ANZ Diocese was a fundamental matter of ecclesiology or theology, it is inconceivable that this structure would have been routinely ignored by the Free ANZ Diocese in the appointment and supervision of bishops, as the unchallenged findings of the primary judge demonstrate it was. The primary judge made detailed, unchallenged, findings on this topic. Ironically, given his central role in this case, the appointment of Bishop Ambrose was also effected by the Property Trust Company ignoring completely the congregational or presbyterian terms of the 1976 Constitution. The primary judge was entitled to conclude on the evidence that the division was on a “matter of church politics”. No error has been shown.

18. [363]

    This being so, the primary judge was correct to conclude that for the monastery to be applied for the purposes of the SOC-ANZ Metropolitanate would not be inconsistent with the spirit of the trust.

19. [364]

    As I have found at paragraph [315] above, the primary judge did not err in concluding that the property the subject of a s 9 cy-près scheme be applied as near as possible to the original trust purposes. The appellants’ complaint to the contrary should be rejected.

20. [365]

    Finally, the appellants’ submissions that the orders of the primary judge amounted to a “misuse of the power” conferred by s 9 of the Charitable Trusts Act should be rejected. There is no unfairness in concluding that the changes in character of the Free ANZ Diocese have resulted in the original trust purposes ceasing to provide a suitable and effective use of the trust property, having regard to the spirit of the trust. That is so because the changes in character are primarily a result of the Free ANZ Diocese and those who control it rejecting key elements of the spirit of the trust – the Serbian character of the Free ANZ Diocese and the desire to reunify with the Serbian Orthodox Church when communism fell.

21. [366]

    The fact that certain members of the Free ANZ Diocese became members of the SOC-ANZ Metropolitanate does not mean that it is not appropriate to apply the property for the purposes of the SOC-ANZ Metropolitanate. Section 9 does not require impossibility.

22. [367]

    None of the matters raised by the appellants was a fair criticism of the primary judge’s reasons. The primary judge found that applying the monastery property for the purposes of the SOC-ANZ Metrolpolitanate was the most suitable and effective application of the property, having regard to the spirit of the trust. No error has been demonstrated in his Honour’s approach.

23. [368]

    The primary judge’s findings reflect the distinctly Serbian character of the trust, the fervent desire of the Free ANZ Diocese at the time of settling the trust to reunify with the Serbian Orthodox Church when communism fell and the fact that there was no fundamental or doctrinal dispute between the Free ANZ Diocese and the SOC-ANZ Metropolitanate.

CONCLUSION AND ORDERS

1. [369]

   In a careful and lengthy judgment the primary judge addressed each of the relevant issues that the parties presented to him. The appellants have not demonstrated any error in his Honour’s reasons. Each of the grounds of appeal should be dismissed.

2. [370]

   The Attorney General sought to be heard on costs once the Court’s reasons were published, both as to the costs of the appeal and as to whether there ought to be an order permitting an indemnification from the trust funds.

3. [371]

   The Attorney General and the other parties should have that opportunity, and I propose that the Court should consider the question of costs and indemnification on the papers.

4. [372]

   For the above reasons, the orders I propose are:

   1. (1)

      Leave to file an amended notice of appeal is refused;

   2. (2)

      Appeal dismissed;

   3. (3)

      Within 14 days of the publication of this judgment the respondents to file and serve any submissions (of no more than 20 pages) they wish to make on the question of costs or indemnification of any party from the trust property;

   4. (4)

      Within 21 days of the publication of this judgment the appellants to file and serve any submissions (of no more than 20 pages) they wish to make on the question of costs or indemnification of any party from the trust property;

   5. (5)

      Within 28 days of the publication of this judgment the respondents to file and serve any submissions in reply (of no more than 10 pages) they wish to make on the question of costs or indemnification of any party from the trust property.