Ermogenous v Greek Orthodox Community of SA Inc [2002]

Ermogenous v Greek Orthodox Community

Case name & citation: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

  • The concerned Court: High Court of Australia
  • Year of the case: 2002
  • The bench of judges: Gaudron, McHugh, Hayne, Callinan, and Kirby JJ.
  • Area of law: Intention to create legal relations

What is the case about?

Agreements of a social nature generally don’t have a legal intent. Can this presumption be rebutted? The Australian case of Ermogenous v Greek Orthodox Community of SA Inc is a classic example of this. It dealt with the issue of intention to create legal relations in agreements of social nature.

Facts of the case (Ermogenous v Greek Orthodox Community)

The Greek Orthodox Community of South Australia, an incorporated group/association that organized cultural, social, recreational, and religious events for its members, requested Ermogenous, who was living in America at the time, to become the head of the Greek Orthodox Church in Australia. He accepted the offer and relocated to Australia, where he served as archbishop for the next 23 years. He was paid a salary by the Community during this period.

At the end of his tenure, the Community declined to pay Ermogenous for the accumulated leave that he would have been entitled to under a legally enforceable contract of employment.

Thus, Ermogenous filed a claim in the Industrial Relations Court of SA against the Greek Orthodox Community and sought damages in respect of accumulated annual leave and accumulated long service leave. The initial decision was found in favour of Ermogenous to which the respondent (the Community) appealed. Their appeal was allowed in the Full Court of the Supreme Court of South Australia with the finding that there was no intent to create legal relations between Ermogenous and the respondent. To this, another appeal was made and the case was then heard in the High Court.

The Community contended that their arrangement with Ermogenous was never meant to be legally enforceable.

Issue that arose

What was the nature of the agreement between Ermogenous and the Community?

Was the appointment of the archbishop intended to be a legally binding contract of employment?

The decision of the Court in Ermogenous v Greek Orthodox Community

The High Court confirmed that presumptions regarding intention should not be used. It held that the Full Court erred in concluding that there was no intention to create legal relations.

The High Court of Australia decided that the agreement between Ermogenous and the Community was intended to be legally binding. And therefore, Ermogenous was entitled to payment for accumulated leave.

The reasoning behind the decision

The judges observed that there should be an objective assessment of the state of affairs between the parties. The existence of an intention to be legally bound should be determined on the basis of all pertinent information that is available. The idea of “presumptions” operating against such an intention in specific types of cases can readily divert attention from the real effort of accurately evaluating the specific circumstances.

In other words, the presumptions should not be seen in isolation rather the circumstances of each case should be properly evaluated to determine whether or not there is an intention to create legal relations. That is to say, an agreement with a minister of religion does not automatically mean that it is not meant to be legally binding. This is especially true when additional factors indicate otherwise, i.e., if the agreement is made by an incorporated non-religious body and if it provides financial and economic benefits to the minister.

In the present case, the Greek Orthodox Community of SA was an incorporated association that engaged in activities that were not only religious but also cultural, social, and even sporting. Further, during the course of employment, it paid the appellant an agreed-upon salary with deductions of taxes. These points, among other things, indicated that there was a formal agreement between the appellant and the Community, and the appellant was entitled to payment for accumulated leave upon termination of employment.

Significance of the case

This case is important because it rebutted the presumption that formal contracts were not generally formed through connections of a social nature. It also stated that an objective examination of the case’s background and circumstances was the correct way for determining the intent to create legal relations.

Also, the success of the archbishop set a precedent for subsequent cases to follow.

Legal rules emerging from “Ermogenous v Greek Orthodox”

  • In order to demonstrate intent, an objective assessment of the alleged contract between the parties should be carried out.
  • Though social arrangements do not usually imply an intention to enter into legal relationships, they do not rule it out.
  • Simply because they are bodies of a predominantly religious nature, they are not exempted from the requirements of contractual relationships.

List of references:


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