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Ermogenous v Greek Orthodox Community of SA Inc

(2002) 209 CLR 95


The case considered the issue of intention to create legal relations.

Archbishop Spyridon Ermogenous claimed for annual and long service leave. The Industrial Relations Court initially found in favour of Ermogenous.

Greek Orthodox Church

An appeal to the Full Court of the Supreme Court of South Australia was successful, with the majority finding that there was no intention to create legal relations between the Archbishop and the respondent.

The High Court allowed the appeal. It confirmed that presumptions about intention should not be used; in each case intention must be proved using an 'objective' test.

The High Court held that the Full Court erred in finding that there was no intention based on the nature of the employment contract without taking full consideration of the circumstances that surrounded this particular contract.



Archbishop Ermogenous made a claim for payments he thought due for annual and long service leave from the Greek Orthodox Community.  He succeeded at first instance but the Full Court of the Supreme Court of SA found there was no intention to create legal relations between the parties.  An appeal was made to the High Court.


High Court (Gaudron, McHugh, Hayne and Callinan JJ)

Gaudron, McHugh, Hayne and Callinan JJ

Claimed it would be both difficult and wrong to ascribe rules to determining whether or not intention exists in any particular case.  They noted the objectivity of the requirement (the Court does not search for uncommunicated subjective reservations of intention) and that this meant that the circumstances in which intention may or may not exist could potentially be so varied that prescriptive rules were not appropriate.

[para 26] In this context of intention to create legal relations there is frequent reference to "presumptions".  It is said that it may be presumed that there are some "family arrangements" 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 language of presumptions in this context. … Reference to presumptions may serve only to distract attention from that more basic and important proposition."

In this case, their Honours considered use of presumptions could (wrongly) lead to the conclusion there was no intention here (because of the nature of the employment contract) without full consideration of the circumstances surrounding this particular contract.

Their Honours considered the Full Court in error in inferring there was no intention here. 


Justice Kirby

Justice Kirby reached the same conclusion.

[para 48] To hold that an archbishop is engaged under a contract with a community organisation, indeed a contract of employment, challenges common notions about the status and functions of an archbishop and the common features of contracts of employment as they are generally understood in Australian law. Confronted by such a proposition, it would not be surprising for a decision-maker to question whether such a legal relationship was apt to apply to a person such as an archbishop. Supposing that it was, it would be unsurprising to ask whether the archbishop was "employed" by anyone other than perhaps his God or possibly his church. Employment by a community organisation, whose members do not necessarily even adhere to the tenets of the religion espoused by the archbishop, seems at first blush to be a dubious proposition.


[para 74] There is therefore no presumption that contracts between religious or associated bodies and ministers of religion, of their nature, are not intended to be legally enforceable. At least where the contracts concern proprietary and economic entitlements, of the kind which in this case Archbishop Ermogenous sought to enforce (and certainly where they are not intertwined with questions of religious doctrine that a court would not feel competent to resolve according to legal norms) there is no inhibition either of a legal or discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties.