Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors

[2007] NSWCA 263

New South Wales

Court of Appeal

CITATION:	Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors [2007] NSWCA 263
HEARING DATE(S):	24/09/07
JUDGMENT OF:	Beazley JA; Giles JA; Ipp JA
EX TEMPORE JUDGMENT DATE:	24 September 2007
DECISION:	(1) The application for leave to appeal made by the plaintiffs is stood over until final judgment in the trial is delivered. (2) The costs of such application is stood over with liberty to apply should the matter be resolved without final judgment being so delivered. (3) The application for leave to cross-appeal made by the first to seventh defendants is dismissed with costs. (4) The sixth defendant not be permitted to have recourse to the Schedule A property in respect of any costs of the application for leave to cross-appeal. (5) The first to seventh defendants' application to extend time to file a cross-appeal as of right be stood over until final judgment is delivered. (6) The costs of such application is stood over with liberty to apply should the matter be resolved without final judgment being so delivered. (7) The matter be remitted to Young CJ in Eq to make whatever practical arrangements are deemed fit for the future conduct of the trial. (8) Parties to bring in short minutes of order with seven days of judgment reflecting the orders made by the Court.
CATCHWORDS:	APPEAL – leave to appeal – application for leave to appeal against wording of various declarations made by trial judge – leave to appeal refused until after the trial has been conducted – proposed appeal would lead to further delay and would involve considering the trial judge’s determinations on the evidence – costs of application also stood over with liberty to apply should matter be resolved without final judgment being delivered – application for leave to cross-appeal – competency – whether application was incompetent on the ground that the defendants sought not to appeal against a decision of the court but, rather, against reasons (or findings in the reasons) – whether various findings of the trial judge were appealable pursuant to s 103 of the Supreme Court Act 1970 (NSW) – trial judge’s findings in this case did not constitute ‘decisions’ as that term is understood under s 103 – National Employers Mutual General Insurance Association Limited v Manufacturers Mutual Insurance Limited (1988) 17 NSWLR 223 considered – application for leave to cross-appeal dismissed with costs – no recourse to trust property by the sixth defendant – application to cross-appeal as of right – application for extension of time not granted and stood over until final judgment is delivered – costs of application reserved and also stood over with liberty to apply should the matter be resolved without final judgment being delivered . ND
LEGISLATION CITED:	Supreme Court Act 1970 (NSW), ss 101(2)(r)(ii), 103
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2003] NSWSC 1089 Metropolitan Petar v Mitreski [2003] NSWSC 1213 Metropolitan Petar v Mitreski [2007] NSWSC 70 National Employers Mutual General Insurance Association Limited v Manufacturers Mutual Insurance Limited (1988) 17 NSWLR 223
PARTIES:	His Eminence, Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (First Claimant) Very Reverend Father Mitko Mitrev (Second Claimant) Macedonian Orthodox Community Church St Petka Incorporated (First Opponent) Lambo Mitreski (Second Opponent) Pero Damcevski (Third Opponent) Boris Minovski (Fourth Opponent) Eftim Eftimov (Fifth Opponent) Mile Marcevski (Sixth Opponent) Naum Despotovski (Seventh Opponent) Attorney General for the State of New South Wales (Eighth Opponent)
FILE NUMBER(S):	CA 40105/07
COUNSEL:	T G R Parker SC/R E Steele (First & Second Claimants) G O Blake SC (First to Seventh Opponents) R P L Lancaster (Eighth Opponent)
SOLICITORS:	Sachs Gerace Lawyers (First & Second Claimants) McConnell Jaffray (First to Seventh Opponents) I V Knight, Crown Solicitor (NSW) (Eighth Opponent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 3369/97
LOWER COURT JUDICIAL OFFICER:	Hamilton J
LOWER COURT DATE OF DECISION:	4 April 2003, 26 November 2003, 7 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2003] NSWSC 262, [2003] NSWSC 1089, [2003] NSWSC 1213, [2007] NSWSC 70

CA 40105/07
ED 3369/97

BEAZLEY JA
GILES JA
IPP JA

Monday, 24 September 2007

His Eminence, Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & 1 Or v Macedonian Orthodox Community Church of St Petka Incorporated & 7 Ors

Judgment

1 THE COURT: The Court has given consideration to the arguments that were advanced this morning and now proposes to make orders and to give reasons for those orders as follows.

2 This is another round in the litigation between Bishop Petar and Father Mitrev who commenced the relevant proceedings, on the one hand, and the Macedonian Orthodox Community Church St Petka Incorporated ("the Association") and six other defendants, on the other hand. The Association is the sixth defendant in the proceedings. The Attorney-General is joined as the eighth defendant. The parties in question have been identified in several judgments of this Court and it is not necessary to do so again.

3 In August 2002, a separate hearing was held before Hamilton J to determine, as preliminary questions, the validity of certain defences raised by the Association and other defendants. The questions posed for separate determination were:

(a) Whether the property referred to in Schedule A and any other property referred to in paragraph 11 of the Further Amended Statement of Claim ("the Property") was, prior to it being vested in the sixth defendant, held upon, and, if so, what, trust:

(i) for the purposes of the Macedonian Orthodox Church (as that term is defined in the Further Amended Statement of Claim);
(ii) for some other purpose or beneficiary, and, if so, what purpose or beneficiary.


(b) Whether any trust found under (a) above is a valid charity.

(c) Whether the effect of the vesting of the Property in the sixth defendant was that the sixth defendant thereafter held the Property free of either trust.

4 His Honour delivered his decision on 4 April 2003 (see Metropolitan Petar v Mitreski [2003] NSWSC 262) and concluded (at [102]) that the separate questions should be answered as follows:

“(a)(i)&(ii) The property referred to in Schedule A was prior to the transfer of the legal titles to the sixth defendant held upon trust to permit the trust property to be used by the Macedonian Orthodox Church St Petka Rockdale as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion. I am unable on the evidence to answer the question as to other property.
(b) Yes.
(c) No.”

5 After debate as to the precise form of declarations that should be made to reflect his Honour's conclusions, Hamilton J delivered judgment on this issue on 26 November 2003 (see Metropolitan Petar v Mitreski [2003] NSWSC 1089). The declarations made were in the following terms (at [3]):

“1. Declare that the property referred to in Schedule A hereto (‘the trust property’) was prior to the transfer of the legal titles to the sixth defendant held upon charitable trust to permit the trust property to be used by the Macedonian Orthodox Church St Petka Rockdale NSW Australia as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with and ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion (‘the trust’).
2. Declare that in accordance with the terms of the trust and in the events which have happened the trustee is bound to permit the sixth defendant to use the trust property as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.”

6 On 26 November 2003, after making those declarations, his Honour withdrew them at the request of all parties other than the Attorney-General (see Metropolitan Petar v Mitreski [2003] NSWSC 1213). In a judgment delivered on 7 February 2007 (Metropolitan Petar v Mitreski [2007] NSWSC 70), his Honour noted (at [1]):

“The reason given for the request to withdraw the orders was so that there might be a single appeal after the results of the second trial were known...It was for this reason only that the withdrawal was sought by all parties except the Attorney-General, not opposed by the Attorney-General and made by the Court.”

7 On 7 February 2007, the Association requested Hamilton J to make the orders. His Honour acceded to that request and, on that date, formally re-made the declaration that he had, earlier, withdrawn.

8 This morning this Court heard three applications. The first was an application for leave to appeal by Bishop Petar and Father Mitrev against the wording of the declarations made on 7 February 2007. The second was an application for leave to cross-appeal by the Association and the six other defendants apart from the Attorney-General against what were described as certain "parts of [Hamilton J's] decision of 4 April 2003". The third application was by the Association and six other defendants and was described as a "cross-appeal as of right". According to the notice of cross-appeal, the cross-appeal was "from the declarations made by the primary judge".

9 It is convenient to deal firstly with the application for leave to cross-appeal made by the Association and the six other defendants. Mr Parker SC, who, together with Mr Steele, appeared for Bishop Petar and Father Mitrev, submitted that the application should be dismissed because, by the application, the Association and the six other defendants concerned sought to appeal against reasons (or findings in the reasons) and not a decision of the Court.

10 Mr Blake SC, who appeared for the Association and the six other defendants, submitted that the appeal was competent by virtue of s 103 of the Supreme Court Act 1970 (NSW). This section provides:

“An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court of any question or issue ordered to be decided separately from any other question or issue."

11 Mr Blake relied on certain observations by Kirby P in National Employers Mutual General Insurance Association Limited v Manufacturers Mutual Insurance Limited (1988) 17 NSWLR 223 at 236 where his Honour stated that where a "decision" is recorded and no declaratory or other judgment or order is entered, "the Court of Appeal may nonetheless entertain an appeal if it chooses to give leave to the party which seeks to challenge the 'decision'". His Honour observed that the "decision" might be "at quite a preliminary stage in the hearing". He said, "[i]t may not be formulated in terms of the 'judgment' or 'order'. If it is so formulated, it will attract s 101".

12 One fundamental problem that this submission faces, however, is that Hamilton J at [102] of [2003] NSWSC 262 specifically expressed his "decision" in a form constituted by the answers to the questions that he had been requested to answer. Further, while his Honour may have made findings in regard to the matters, the subject of the application for leave to appeal, those findings did not constitute decisions by his Honour. Kirby P in the National Employers case made it clear that s 103 of the Supreme Court Act applies "where the decision is recorded and no declaratory or other judgment or order is entered". His Honour stated, however (at 235):

“Where under Pt 31, r 5(b), a judgment or order is made, the case has effectively slipped out of s 103.”

13 Accordingly, the basis on which Mr Blake rested his argument does not exist. Therefore, the application must be dismissed. The application, in effect, had no prospect of success whatever and there was no reasonable ground on which it could have been made. Accordingly, the Association and the six other defendants should pay the costs of this application; further, there should be no recourse to the Schedule A property by the Association in respect of any costs of this application.

14 It is next convenient to deal with the application by Bishop Petar and Father Mitrev to appeal against the wording of the declarations his Honour made. An issue arises as to whether the declarations should be regarded as final orders. It is not necessary to decide this issue in regard to this application as Mr Parker accepted that, in any event, leave to appeal was required by s 101(2)(r)(ii) of the Supreme Court Act.

15 In our opinion, leave to appeal as sought by Bishop Petar and Father Mitrev on the wording of the declaration should not be given at this stage. We are not persuaded that at the present time the determination of the wording of the declarations would have sufficient utility to justify the granting of leave. That is to say, we do not consider that a decision in the terms sought by Bishop Petar and Father Mitrev would materially shorten the trial proceedings or otherwise save costs. On the contrary, the proposed appeal would lead to further delay and there has already been considerable delay. In addition, the argument advanced by Bishop Petar and Father Mitrev would involve considering questions of evidence and the matter is complex. We are not persuaded that this Court should, at this stage, when the trial is by no means concluded, reconsider the trial judge's determinations based on the evidence. Lastly, in this respect, it is not without relevance that for almost three years Bishop Petar and Father Mitrev were prepared to continue with proceedings without attempting to appeal from Hamilton J's orders.

16 In our opinion, it would be desirable for there to be only one appeal on all the issues that arise in the case and this appeal should be argued after the trial is concluded. This was a view taken by the parties after his Honour delivered judgment in April 2003 and, in our opinion, it is in the interests of justice that that approach be maintained. Accordingly, in regard to the application by Bishop Petar and Father Mitrev for leave to appeal, we consider that the appropriate order would be to stand the application for leave to appeal over until final judgment in the trial. The costs of the application should likewise be stood over with liberty to apply should the matter be resolved without final judgment being so delivered.

17 Finally, there remains the so-called cross-appeal as of right maintained by the Association and the six other defendants. This cross-appeal concerns the merits of the decision and the orders made by Hamilton J. Again an issue exists as to whether those orders are final or interlocutory, but once again it is unnecessary to make a final decision on that issue.

18 The cross-appeal was filed out of time and Mr Blake, rightly, accepts that it requires an extension of time. In our view, that extension should not be granted at this stage. Our reasons are similar to those given in regard to the application by Bishop Petar and Father Mitrev for leave to appeal.

19 The issues raised in this cross-appeal require regard to be had to a considerable body of evidence. We repeat that that is an undesirable course in the middle of a trial. We repeat that it would be desirable if all the issues, which the parties wish to agitate by way of appeal, were raised in one appeal once final judgment has been delivered. As was the case with Bishop Petar and Father Mitrev in regard to the issues they wished to raise in their application for leave to appeal, the Association and the six other defendants were, for a lengthy period, content to allow the trial to proceed without raising the issues, the subject of the cross-appeal.

20 We would stand over the application to extend time for the cross-appeal until final judgment is delivered. The costs of the application and the cross-appeal are reserved by this Court after final judgment has been delivered at the trial. The parties have liberty to apply in the event that final judgment is not delivered.

21 We consider it desirable and appropriate for the parties' right of appeal to be reserved until final judgment in the trial has been delivered and the orders we make are intended to have that effect.

22 Mr Parker requested this Court to take some action to ensure that the trial proceedings do not drag on. On consideration of the matter that he raises (and there is certainly force in them) we do not think it appropriate for us to make any order in this regard. This Court has recently delivered judgment in a question involving the legitimacy of judicial advice that the Association sought, and the Association has filed an application for special leave to appeal to the High Court against this decision. Mr Blake argues that it would be unfair to permit the trial to proceed while that application is pending. In our opinion, the issues that arise in this connection would best be decided by the trial judge. Accordingly, we would remit the matter to the Chief Judge in Equity for his Honour to make whatever practical arrangements he deems fit for the future conduct of the trial.

The orders of the Court, therefore, are those that we have announced during the course of the giving of judgment. The parties should bring in short minutes of order within seven days reflecting the orders that the Court has made.

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