Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ

SPYRIDON ERMOGENOUS APPELLANT

AND

GREEK ORTHODOX COMMUNITY RESPONDENT

OF SA INC

Ermogenous v Greek Orthodox Community of SA Inc

[2002] HCA 8

7 March 2002

A22/2001

ORDER

1. Appeal allowed with costs. 2. Set aside paragraphs 3 to 6 inclusive of the order of the Full Court of the Supreme Court of South Australia dated 5 October 2000. 3. Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

On appeal from the Supreme Court of South Australia

Representation:

A J Besanko QC with A Rossi for the appellant (instructed by Mantzoros & Partners)

T M McRae for the respondent (instructed by Niarchos & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ermogenous v Greek Orthodox Community of SA Inc

Contract – Intention to create contractual relations – Engagement of a minister of religion – Whether presumption against intention to create contractual relations.

Churches and Religious Associations – Appointment and removal of ministers of religion – Discussion of presumption that no intention to create contractual relations.

Primary decision‑maker was a Magistrate – Appeals – Finding by primary decision‑maker – Whether primary decision‑maker failed to consider parties' intention to create contractual relations – Appellate review of findings by primary decision‑maker.

1. GAUDRON, McHUGH, HAYNE AND CALLINAN JJ. In September 1994, Archbishop Spyridon Ermogenous made a claim in the Industrial Relations Court of South Australia against the Greek Orthodox Community of SA Inc (the respondent in this Court) for sums he claimed were due to him for annual leave and long service leave. He alleged that he had been employed by the respondent since 18 March 1970 but had never received any payment for annual leave and that, on termination of his employment, he had not been paid his long service leave entitlements. While the claim was being heard, a number of Greek Orthodox Communities (some incorporated, some apparently not) were added as respondents. An Industrial Magistrate (Mr A R Cunningham) found that the present respondent was liable to pay to the Archbishop an amount ($23,989.35) for payment in lieu of accumulated annual leave and a further amount ($10,672.80) for accumulated long service leave. Judgment was given against the respondent for the total of these amounts, together with interest[1]. The claims made in the alternative against the other Greek Orthodox Communities which had been joined need not be considered. They did not succeed at trial and they have not been pursued in this Court. 2. The respondent appealed against the judgment to a single judge of the Industrial Relations Court of South Australia who ordered that the order of the Industrial Magistrate should be varied in some respects that need not be noticed but otherwise dismissed the appeal[2]. The respondent appealed against this decision, this time to the Full Court of the Industrial Relations Court, but that Court dismissed the appeal[3]. Again the respondent sought to appeal, this time to the Full Court of the Supreme Court of South Australia. That Court, by majority (Doyle CJ and Bleby J; Mullighan J dissenting) granted leave to appeal, allowed the appeal, set aside the order of the Full Court of the Industrial Relations Court and (in effect) substituted an order that the Archbishop's claims be dismissed[4]. By special leave, the Archbishop now appeals to this Court. 3. Two issues were argued on the appeal to this Court – whether the Full Court of the Supreme Court was wrong to hold, as it did, that there had been no intention to create legal relations between the Archbishop and the respondent, and whether it had been open to the Full Court to make (or whether it had erred in making) the findings of fact which it did. It is convenient to begin by identifying the chief features of the legislative framework in which these issues are to be decided.