AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 April 2003

Radmanovich v Nedeljkovic

[2003] NSWSC 350

Other
CHURCHES AND RELIGIOUS ASSOCIATIONS CONSTRUCTION OF RULES OF LOCAL CHURCH SCHOOL COMMUNITY APPEAL APPEAL EXTENSION OF TIME FOR APPEAL

Citation: Radmanovich v Nedeljkovic [2003] NSWSC 350
Court: Supreme Court of New South Wales, Equity Division
Date: 30 April 2003
Judge(s): Barrett J

Background

This case arose from a long-running dispute over the control and administration of property belonging to a Serbian Orthodox Church School Community centred on the northern beaches district of Sydney. The community operated under rules dating from 1950 (the "1950 Rules"), and earlier litigation had resulted in orders made by Young CJ in Eq appointing three trustees and directing them to settle a provisional list of the community's members, with any disputes about that list to be referred to a Master for adjudication.

A dispute arose as to whether four men, who had been sentenced to excommunication by a church court for a period, were entitled to remain on the membership list. Master McLaughlin held that none of the four should be included, reasoning that excommunication automatically caused a person to cease being a member of the community under articles 4 and 6 of the 1950 Rules.

Three of the four men appealed that conclusion to the Supreme Court. Before the substantive appeal could be heard, two procedural questions required resolution: whether the appeal had been brought by the correct process and to the correct court, and whether a time extension should be granted.

  • Whether the appeal from the Master's decision lay to the Court of Appeal or to the Supreme Court constituted by a single judge under the Supreme Court Rules.
  • Whether the time for filing the correct notice of appeal should be extended, given that the appellants had initially filed the wrong process in the wrong court within time, but only filed the correct process after the prescribed period had expired.
  • Whether articles 4 and 6 of the 1950 Rules had the effect of automatically terminating the community membership of persons who were subjected to a sentence of excommunication by a church court.

Decision

Competency of the appeal and the correct appellate pathway: Barrett J found that the appeal from the Master's decision was properly brought to the Supreme Court constituted by a single judge, not to the Court of Appeal. The subject matter referred to the Master was a "matter" rather than a "trial or hearing of proceedings," which determined the correct appellate route under the Supreme Court Rules. The appeal was accordingly declared competent.

Extension of time: Although the appellants had initially filed an application for leave to appeal in the Court of Appeal within time, that was the wrong vehicle and the wrong court. The correct notice of appeal to a single judge was not filed until after the permitted period had elapsed. Barrett J granted an extension of time, backdating it (nunc pro tunc, meaning effective from a past date) to cover the date of filing of the notice of appeal on 29 November 2002.

The substantive appeal: Barrett J dismissed the appeal. His Honour agreed with the Master's overall conclusion that the four relevant persons should not appear on the membership list, though he differed from the Master on some points of reasoning. Barrett J rejected the Master's reliance on Faramus v Film Artistes' Association for a particular proposition, and also disagreed that the specific form of excommunication imposed had itself terminated the men's church membership as such. However, his Honour concluded that, properly construed, the phrase "members of St Sava's Orthodox Church" in article 4 of the 1950 Rules did not extend to persons subject to excommunication, and that article 6 rendered such persons ineligible for membership of the community. These differences in reasoning did not alter the outcome.

Orders Made

  • The appeal to the court constituted by a single judge (initiated by notice of appeal filed 29 November 2002) was declared competent.
  • Time for filing that notice of appeal was extended nunc pro tunc to 29 November 2002.
  • The appeal was dismissed.
  • No order as to costs was made on the competency application (each side to bear its own costs).
  • The appellants were ordered to pay the respondents' costs of the extension of time application (excluding costs that overlapped with the merits of the appeal).
  • The appellants were ordered to pay the respondents' costs of the appeal itself.
  • Parties were directed to file brief written submissions on costs within 21 days.

Key Takeaways

  • In dismissing the substantive appeal, Barrett J confirmed that the construction of a religious community's own rules is a matter of civil law, and courts will interpret those rules according to ordinary principles of contractual and statutory construction without deference to the church's own characterisation of the effect of its disciplinary measures.
  • A procedural misstep, such as filing the correct appeal to the wrong court by the wrong process, does not necessarily preclude a later, correctly constituted appeal, but the party seeking relief must obtain an extension of time and demonstrate sufficient grounds for that indulgence.
  • Where an appellant files the wrong type of process in the wrong court within time, and then files the correct process out of time, the earlier filing does not itself preserve the time limitation for the corrected process.
  • The characterisation of a referral to a Master as a "matter" rather than a "trial or hearing of proceedings" determines whether any appeal lies to a single judge or to the Court of Appeal under the Supreme Court Rules.
  • Differences in a trial court's reasoning, even where Barrett J found some of the Master's analysis to be incorrect, will not lead to a different result on appeal if the ultimate conclusion is independently supportable on the correct analysis.

Legislation and Cases Referenced

Legislation:
- Supreme Court Act 1970 (NSW), s 101
- Supreme Court Rules (NSW), Pt 60 rr 10, 11, 17, Sch D Pt 3

Cases:
- Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 (Young CJ in Eq, earlier proceedings)
- Radmanovich v Nedeljkovic [2002] NSWSC 212
- Radmanovich v Nedeljkovic [2002] NSWSC 763 (Master McLaughlin, decision under appeal)
- Faramus v Film Artistes' Association [1963] 2 QB 527; [1964] AC 950
- Cameron v Hogan (1934) 51 CLR 358
- Jackamarra v Krakover (1998) 195 CLR 516
- Warren v Coombes (1979) 142 CLR 531
- Williams v Hursey (1959) 103 CLR 30
- Blake v Norris (1990) 20 NSWLR 300
- Do Carmo v Ford Excavations Pty Ltd [1980] 1 NSWLR 409
- Stollznow v Calvert [1980] 2 NSWLR 749
- Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
- Woodford v Smith [1970] 1 WLR 806
- Dawson v African Consolidated Land and Trading Co [1898] 1 Ch 6
- Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421
- Various United States and Victorian authorities also cited