In commercial transactions, the onus of proving (on the balance of probabilities) that a contract does not exist rests with the party disputing what courts presume to be an agreement intended to have legal force. For disputes concerning family members, courts take the viewpoint that “each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted”. In doing so, the law cordons off sections within the private law arena. When an agreement is considered domestic, the onus of proving that a contract exists lies with the party arguing that legal relations were intended. The case of Ermogenous v Greek Orthodox Community of SA Inc demonstrates the grounds on which the private and domestic distinctions are adjudged, and the ideology on which these decisions ride.
Ermogenous was an Archbishop with the Australian Greek Orthodox Church for over two decades. He was paid a salary by the Greek Orthodox Community, which controlled all activities of the church and its clergy, but was claiming for annual and long-service leave entitlements. The Supreme Court of Appeal of South Australia had presumed that an agreement involving a religious minister was not intended to create a legally binding employment contract.
The High Court dismissed the presumption that legal relations do not exist in such cases, and instead stipulated that this merely throws an onus of proof onto the party alleging that contractual relations exist. Although not entitled to rule on issues of religious doctrine, the church was not distinct from the community where proprietary and economic entitlements were concerned. Justice Kirby best explained the position of the court:
Every day of his life, Archbishop Ermogenous, like everyone else in Australia, made contractual arrangements of an express or implied kind with secular organisations and individuals of great variety… it would be contrary to basic principle to suggest that his spiritual calling somehow placed him outside the rights and duties of the common law.
This web page was prepared on 3 June 2015, and the law or facts contained in this article may have changed at the time it is read.