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Church Governance Insights from Macedonian Orthodox Community of Australia Ltd v Subeski [2013] NSWSC 22

It is not uncommon for churches to find themselves in a scenario where they need to consider removing a person from the church membership or board. A relatively recent decision of the New South Wales Supreme Court is particularly instructive on this matter whether your church has a corporate structure or is an unincorporated association.

This case concerned the expulsion of a member, Mr Subeski, from the membership and board of a company limited by guarantee and his subsequent application for that decision to be reversed. The key issue in this case was whether Mr Subeski was extended natural justice in respect of the resolution that proposed to expel him as a member, which in turn expelled him from the church board. It was a pre-requisite for all board members to also be members of the company.

In this case the church had given a written notice to Mr Subeski to provide him with an opportunity to attend an upcoming board meeting and also respond to an intention to remove him as a member. This notice also provided a very detailed narrative about the sorts of things that the council/ board would be considering in their decision, and that Mr Subeski could make written submissions for their consideration. Importantly, the notice also specified that Mr Subeski was to give three days notice in writing if he intended to attend the meeting in person. This was to allow the church to arrange appropriate security measures in light of Mr Subeski’s  aggressive, abusive, and at times violent behaviour on a previous occasion relating to the same matter. Mr Subeski decided to make various written submissions, then personally arrived at the board meeting without having given any prior notice of his intention to attend. When he arrived, the board called the police who removed him from the property.

The court decided that there was no denial of natural justice in the way the board meeting was conducted. It was viewed that the church had been eminently reasonable in their request for notice from Mr Subeski, and that he had decided to forfeit his right to be heard orally at the meeting by not providing notice of his intention to attend.

As a result, it was decided that Mr Subeski had been effectively removed as a member. The court also declared that he was not a board member and that he was permanently restrained from representing that he was a board member or representing that he was a member.

This case highlights the importance of correctly drafting and particularising a notice to persons such as Mr Subeski, because the courts are clearly willing to involve themselves in church governance matters where it is in the interests of justice.