Metropolitan Petar v Mitreski

[2007] NSWSC 70

CITATION:	Metropolitan Petar v Mitreski [2007] NSWSC 70
HEARING DATE(S):	7 February 2007
JUDGMENT DATE :	7 February 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Orders made resulting from first trial but previously deferred.
CATCHWORDS:	PROCEDURE [482] – Judgments and orders – In general – Other matters – Making of orders after trial of separate questions deferred – Whether orders should be made before further trial.
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2003] NSWSC 1089 Metropolitan Petar v Mitreski [2003] NSWSC 1213
PARTIES:	His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Father Mitko Mitrev (P2) Lambe Mitreski (D1) Pero Damceski (D2) Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) Attorney General for State of NSW (D9)
FILE NUMBER(S):	SC 3369/97
COUNSEL:	T G R Parker SC and R E Steele (Ps) G O Blake SC (Ds1-6 & 8) R Lancaster (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (Ds1-6 & 8) I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 7 FEBRUARY 2007

3369/97 HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITRESKI & ORS

JUDGMENT

1 HIS HONOUR: The question that has been agitated before me this morning is the question of whether I should now make the orders embodying my decision after the first trial: Metropolitan Petar v Mitreski [2003] NSWSC 262. After argument about their form those orders were made by me on 26 November 2003 for reasons then given: Metropolitan Petar v Mitreski [2003] NSWSC 1089. The orders were, however, withdrawn by me on the same day at the request of all parties other than the Attorney General, for reasons then given: Metropolitan Petar v Mitreski [2003] NSWSC 1213. I was asked to record specifically that the Attorney General did not oppose but did not consent to, and certainly did not request, that course. I made it quite plain that when the orders were remade they would be made in the form determined in Metropolitan Petar v Mitreski [2003] NSWSC 1089. 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: Metropolitan Petar v Mitreski [2003] NSWSC 1213 at [2]. 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.

2 A request has now been made of the Court on behalf of the sixth defendant to make the orders now, since the definition of the issues that will fall to be contested in the further conduct of these proceedings needs the making of formal orders at this stage and the institution and determination of an appeal to the Court of Appeal in relation to those orders. In particular, the future course of the proceedings would be quite different if the sixth defendant succeeded in convincing the Court of Appeal that I was wrong in deciding that the charitable trust as initially created had ceased to exist upon the incorporation of the sixth defendant and the vesting of trust property in the sixth defendant.

3 The Attorney General joins the sixth defendant in submitting to the Court that this is the appropriate course and that the orders should be made now.

4 The plaintiffs agree to the abandonment of the earlier course to which they agreed and that the order should be made before there is any further trial in the proceedings. They say, however, that they ought to be allowed to file a reply and in effect reopen my decision by allowing evidence that would suggest that the sixth defendant has approbated and reprobated on the question of whether or not it is a trustee by bringing the judicial advice proceedings that have been conducted before Palmer J.

5 They say that it is important that all possible issues be determined by the Court of Appeal at the time of this first substantive appeal in the proceedings and that that course will be facilitated by my reopening the proceedings and dealing with the issues that they wish to put forward.

6 Long delays (not by the Court) and the vigorous contest of every possible question have characterised these proceedings. The Attorney General, when the matter was before me last week, through his counsel, expressed his concern at the protracted nature of the proceedings.

7 I cannot stop the plaintiffs, if they are so minded, applying to the Court to reopen its earlier decision and orders, although it is significant that no motion has yet been filed in this regard.

8 At first it seemed to me that perhaps I ought defer the making of the declarations until such an application could be brought and contested. However, that seems to me to protract the proceedings further by delaying the date from which time for an appeal might run. It also seems to me, as at present advised, an inutile course because it seems to me highly unlikely that I should be persuaded to reopen the only substantive decision that has in fact been made in the case and reopen it by reference to events which have occurred since that decision was made.

9 Furthermore, it does not seem to me that the failure to agitate this matter before the trial Judge, or before the trial Judge before the making of final orders, would prevent the matter being agitated before the Court of Appeal or otherwise decided in the future at the plaintiffs’ suit, if it indeed be a matter of substance.

10 I have considered the deferral from today of the making of the orders requested on behalf of the defendants and the Attorney General and in respect of which the plaintiffs take the course that they do not oppose the making of the declarations earlier than originally anticipated. However, I have come to the conclusion that the Court must take some radical steps to attempt to move these proceedings towards finality.

11 I know from experience in these proceedings that to defer from today the making of those orders is likely to lead to the deferral of the taking of this next step, not for days or weeks, but for many months.

12 In the circumstances and because, as stated above, I do not think that the making of the orders now will have the effect upon the plaintiffs contended for by Mr Parker of Senior Counsel, I propose to make the orders now. I also bear in mind that the plaintiffs have not up till today filed any application for reopening, despite ample opportunity to do so.

13 I should add that Mr Parker has submitted to me that not only should the orders not be made before consideration of an application to reopen the proceedings but that they should not be made before the determination of the costs of the first trial. This would involve very considerable delay and is an application not made until today. In any event, I remain at this stage of the view that costs in the proceedings would be better considered at their termination in the light of circumstances then prevailing. Those costs should remain reserved.

14 I make orders in terms of orders 1 and 2 set out in Metropolitan Petar v Mitreski [2003] NSWSC 1089 at [3].

15 I note that the plaintiffs have leave to file Version 8 of the Statement of Claim incorporating the amendments indicated in the draft brought into Court this morning. The proceedings are stood over to next Wednesday, 14 February 2007 at 9am before me for further directions.

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