Greek Orthodox Community of SA Inc v Ermogenous No. SCGRG-99-653

(2000) 77 SASR 523; [2000] SASC 329

Supreme Court of South Australia

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Intention to create legal relations
4. › Ministers of religion
5. › Whether presumption of intention to create legal relations applies
6. › Whether intention to be inferred from discussions about remuneration and conditions
1. Churches and Ministers of Religion
2. › Employment of clergy
3. › Archbishop of Greek Orthodox Church
4. › Whether minister of religion capable of entering contract of employment with church
5. › Whether relationship between minister and church gives rise to presumption against contractual intention
1. Appeal
2. › Standard of appellate review
3. › Mixed questions of law and fact
4. › Inferences from primary facts
5. › Whether appellate court in as good a position as trial court to draw inferences
6. › Warren v Coombes (1979) 142 CLR 531
1. Employment Law
2. › Contract of employment
3. › Whether relationship of minister of religion to church constitutes employment
4. › Distinction between office holders and employees
5. › Industrial and Employee Relations Act 1994 (SA), ss 9, 191

Quick Take

In the case of a minister of religion claiming to be an employee, there is no presumption of an intention to create legal relations. The starting point is that usually there is no such intention, but this may be rebutted by evidence. Detailed discussions about remuneration and conditions do not of themselves establish contractual intent in the minister-church context. The question whether an intention to create legal relations is to be inferred from primary facts is one on which an appellate court is in as good a position as the trial court.