Ermogenous V Greek Orthodox Community of Sa Inc. [2002] Essay

1. CITATION.Ermogenous v Greek Orthodox Community of SA Inc. 2002 HCA 8 209 CLR 95 76 ALJR 465 187 ALR 92 (7 March 2002) 2. act.HIGH COURT OF AUSTRALIAFULL COURTGAUDRON, McHUGH, KIRBY, HAYNE and CALLINAN JJERMOGENOUS, Spyridon APPELLANTvGREEK ORTHODOX COMMUNITY OF SA INC RESPONDENT3. BRIEF STATEMENT OF somatic FACTS.1 The plaintiff in error alleged that he had been employed by the respondent since 18 March 1970 provided had non received every entitlements to annual conk or long service leave upon termination of his mesh in December 1993. The Magistrate from the industrial dealings Court of southwestward Australia found in sp atomic number 18 of the appellant in the source instance but the autocratic Court of southwesterly Australia overturned the Industrial Magistrates ruling at the first appeal. It has been re-appealed to the Full Court of the postgraduate Court of Australia. 4. PROCEDURAL HISTORY.South Australia Industrial Relations Court2 The case was first brought t o the South Australia Industrial Relations Court and was perceive by the Industrial Magistrate. The Magistrate found in favour of the appellant stating that the appellant had been employed under a contract of employment by the respondent for 23 years. 3 The respondents statement that on that point in fact was no contract of employment was rejected on the grounds that the appellant was recruited from America for the purpose of appointment as Archbishop and the occasion as head of the Australian autocephalous church. He met with members of the committee of management of the South Australian Community and at such a time an harmony was reached that he would be paid similarly to the priest and would be referred to as one of the employees. 4 Further evidence of the existence of sound traffic in the midst of the parties was the respondents actions. The respondent deducted tax from the appellants allowance, which was then forwarded to the Australian Tax Office (ATO). The respondent also provided evidence in the form of certificates stating the existence of an employer relationship tothe appellant, who was the employee. Supreme Court of South Australia5 The finale of the Industrial Court was appealed to the Supreme Court of South Australia whereupon the case was heard by Doyle CJ and Bleby J. It was proposed that the presence of conception to enter into contractual relations should not be presumed, particularly when encountering remuneration and maintenance and support of a attend of worship. 6 The Supreme Court reconsidered the Industrial Magistrates ruling that the parties had entered legal relations and had shown intention to do so. 7 His Honour Doyle CJ stated that it is important to bear in mind that the respondent is not a church, in which the appellant held a clerical social occasion The respondent is a body that fosters Greek culture in South Australia in the broadest sense. He later went on to say in considering the inference to be drawn from the talk ofions in Adelaide, it is also relevant that the appellant was not providing services to the respondent, but to members of the local Greek Orthodox Church. 5. GROUNDS FOR APPEAL AND/OR ISSUES TO BE DECIDED.8 Four departures were raised as the grounds for appeal. The first beingness whether the Full Court of the Supreme Court of South Australia had erred in any way in their decision that the Magistrate of the Industrial Relations Court of South Australia failed in considering if inflictable contractual relations had actually been entered into by the parties. 9 Secondly, relevant upon a negative decision of the first resultant, whether the Supreme Court failed to consider the Industrial Magistrates reasons for deciding in regards to the aftermath of intention to induce legal relations. 10 The third issue brought to the attention of the greet was whether the Industrial Magistrate erred in his reasoning that enforceable contractual relations had been entered into by the pa rties on the considerateness of the spiritual profession of one, or both, of the parties. 11 The final issue raised in the grounds of appeal was whether the Industrial Magistrate was correct in concluding that the parties had so entered into a contractual relation, being a contract of employment. 6. SUMMARY OF COURTS ANALYSIS OF LAW.12 The Court agreed with the Industrial Magistrates rejection of the proposal that the relationship of a minister of religion to those whoprovided for the ministers necessities of sprightliness was, of its nature, incompatible with a contract of employment. 13 As mentioned in figure & Privity (2007), discerning intention warrants intricate analysis of the facts intention cannot be presumed stringently based on the context or type of the agreement. Similarly, the court considered the following matters What was the subject matter of the agreement? What was the status of each society to the formation of the agreement? And, what was the relationship th e parties held to each other? 14 The Archbishop was successful in establishing a meeting of the minds during the initial talks and negotiations held in Adelaide in 1970 and as a result the Court found in favour of the appellant and that a contract of employment had been entered into between the parties and further was enforceable by law. 7. PRINCIPLE OF LAW TO BE APPLIED.15 The principle of law to be utilize to the case is intention to create legal relations and whether relationships involving the basis of religion would have an core on the existence of a contractual relationship. 16 Their honours made note that it is said that it may be presumed that there are some family exhibitions which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the lan guage of presumptions in this context. refer to presumptions may serve only to distract attention from that more rudimentary and important proposition. 8. DESCRIPTION OF HOW LAW APPLIED TO THE FACTS.17 The character of the employment arrangement is continuously evolving, but in this case, their Honours interpreted the respondents actions the respondent arranged to have income tax deducted from the appellants salary as well as issuing to the appellant cheques for travel and a variety of other incurred expenses. It was then reasonable to conclude that both parties had in fact entered into contractual relations of an employment nature which is enforceable at law. 9. DECISION.18 The case was found in favour of the appellant with the first issue raised being decided in the affirmative, leaving the second issue non-existent as it does not arise. The decision of the third issue was negative. The fourth issue was remitted back to the Supreme Court for decision under the Full Court. 10. determine MADE BY THE COURT.19 The appeal was allowed with costs and the issue of whether the Industrial Magistrate aright held that the relationship between the parties was regulated by a contract enforceable at law, it was, as he found, a contract characterised as a contract of employment. Remit the matter to that Court for further auditory modality and determination conformably with the reasons of this Court. 11. SOCIAL OR CULTURAL CONTEXT.20 female horse Keyes and kylie Burns discussed the social context of the case in bargain and the Family Whether Intention. They championship that intention to create a contractually enforceable agreement is regarded as an immovable aspect of modern contract doctrine. They continued to discuss the case in length, referring to the joint judgement given in the High Court The joint judgment recognised that the presumptions had been elevated to such an termination that they had become difficult, if not impossible, to rebut. Their Honours bel ievedcorrectly, in our viewthat the presumptions of fact, which should merely think where the onus of proof falls, had ossified into strict rules of law. 21 Rogers CJ stated in Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 that the livelong thrust of the law today is to attempt to give proper effect to commercial transactions. If the statements are appropriately promissory in character, courts should enforce them when they are uttered in the course of business and there is no clear indication that they are not intended to be licitly enforceable. 1 . (1997) 64 SAIR 622 at 651. 2 . (1997) 64 SAIR 622 at 651-652. 3 . 2000 SASC 329 (2000) 77 SASR 523 at 524-525 4 per Doyle CJ, 575-576 207 per Bleby J. 4 . (2000) 77 SASR 523 at 526 9 5 . (2000) 77 SASR 523 at 528 17 6 . 2002 HCA 8 at 56 7 . 2007, Intention & Privity, The Future Role of Presumptions, StudentAtLaw 8 . (2002) 209 CLR 95 9 . 2002 HCA 8 at 80 10 . 2002 HCA 8 at 53 11 . 2002 HCA 8 at 5 2 12 . Keyes, Maria and Burns, Kylie 2002, Contract And The Family Whether Intention? 13 . Keyes, Maria and Burns, Kylie 2002, Contract And The Family Whether Intention? 14 . Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502, 523 and Keyes, Maria and Burns, Kylie 2002, Contract And The Family Whether Intention?