Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160

Reported Decision : 66 NSWLR 112

New South Wales Court of Appeal

CITATION: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160

HEARING DATE(S): 5 June 2006

JUDGMENT DATE: 29 June 2006

JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Hodgson JA at 63

DECISION: 1. Grant leave to appeal; 2. Appeal allowed; 3. Remit the matter to the Equity Division for determination in accordance with these reasons; 4. The opponents pay the costs of the summons for leave to appeal and of the appeal and are to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; 5. The opponents pay the claimants' costs of the hearing before Young CJ in Eq.

CATCHWORDS: TRUSTS – application for judicial advice by trustee – parties given notice under s 63(4) of the Trustee Act 1925 (NSW) – whether parties given notice are entitled to privileged legal opinion obtained by trustee and provided to Court – no entitlement to privileged material - JUDICIAL ADVICE – application under s 63 of the Trustee Act 1925 (NSW) – whether proceedings adversarial - proceedings non-adversarial - PRIVILEGE – legal professional privilege –legal opinion obtained by trustee to assist court in application for judicial advice – privilege covers legal opinion in its entirety – privilege not abrogated by rules of natural justice –whether implied waiver by placing legal opinion before court – no waiver

Civil Procedure Rules 1998 (UK) PD 64B Crimes Act 1914 (Cth) s 10 LEGISLATION CITED: Evidence Act 1995 (NSW) ss 4(1), 118, 122 Pt 3.10 Div 1 Supreme Court Rules 1970 (NSW) Pt 70 r 3, r 4 Trade Practices Act 1974 (Cth) s 155 Trustee Act 1925 (NSW) ss 63, 64