Metropolitan Petar v Mitreski

[2005] NSWSC 507

CITATION:	Metropolitan Petar v Mitreski [2005] NSWSC 507
HEARING DATE(S):	25 May 2005
JUDGMENT DATE :	25 May 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Further amendment of statement of claim allowed.

CATCHWORDS:	PROCEDURE [101] - Supreme Court procedure - Practice under Supreme Court Rules - Amendment - Proposed amendment may be futile but covers same subject matter as recent amendment made without objection.
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 and R E Steele (Ps) G O Blake SC (D1 - 6 & D8) C Tassone, Solicitor (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (D1 - 6 & 8) I V Knight, Crown Solicitor (D9)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 25 MAY 2005

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

JUDGMENT - Re Application to file Statement of Claim (Version 7)

1 HIS HONOUR: I have today dealt with questions of whether further particulars should be given and, in the course of argument, have made indications as to what I think appropriate. Mr T G R Parker, of counsel for the plaintiffs, has usefully proposed - and Mr Blake, of Senior Counsel for the defendants, has usefully agreed - that reasons for judgment for the indications I have given need not be delivered. Mr Parker has indicated that particulars will be given in accordance with those indications.

2 The other question that has been debated before me today is whether leave should be granted for the filing of a Statement of Claim (Version 7). This contains a number of amendments, but it is agreed that the only one of substantive effect is the insertion of paragraphs 29T and 29U on page 18 of the draft, together with the consequential amendments of paragraphs 30 and 31.

3 The allegation as to application of parish funds to costs is intended by the plaintiffs to refer to the application of parish funds at all times during the proceedings and not only since the making of the interim judicial advice order by Palmer J. That it was so understood by the defendants is apparent from Exhibit A76, a letter written by the defendants' solicitors as recently as 29 May 2005 indicating their ground of opposition to the amendment.

4 Mr Blake has mounted an argument of some force as to why earlier payments of costs ought not be regarded or regarded at the suit of the plaintiffs as breaches or operative breaches of trust in light of facts that he has outlined to me. The difficulty with this proposition is that the same or similar allegations are made in paragraphs 29E and 29F of the statement of claim. Those in their present form were inserted in the statement of claim as recently as 1 April 2005. Mr Blake, in effect, concedes that there is overlap between the allegations in paragraphs 29E and 29F on the one hand and the proposed paragraph 29U on the other hand. He says that it was by inadvertence that 29E and 29F were not objected to at the time they were inserted on 1 April this year and that he would contemplate an application to strike those paragraphs out on the ground that the allegations that they make are futile or hopeless.

5 However, they were, without protest from the defendants, inserted in the statement of claim at the recent time I have mentioned. They are there and I take the view that, by virtue of their being there, paragraph 29U should be allowed and the body of provisions in which it is embedded, namely 29T, 29U and the amendments to 30 and 31, should be allowed.

6 Whilst I cannot preclude the defendants from making any application to the Court that they may be advised, I should say that I do not encourage any application to strike out the provisions, including paragraphs 29E and 29F. I have been inclined, over the long history of this matter, to allow both sides to remould their cases as they have gone, bearing in mind that new phases are seen of this matter from time to time because of its extreme complexity and difficulty. However, where matter has been allowed into the pleading without protest only a short time ago, it is certainly my view at the moment that any application to remove it again would face very considerable difficulties in succeeding.

7 It is necessary for some form of certainty to be achieved as to the shape of this unruly matter. Certainly I propose, as I have indicated, to allow the insertion of paragraphs 29T and 29U and consequential amendments today. That, at least, will allow the statement of claim to be settled in the form of Version 7. The matter may go with the statement of claim in that settled form before Palmer J on 2 June 2005 for his Honour to continue dealing with the judicial advice matter. If it is necessary for his Honour to advert to them, at least the bulk of the particulars which have been discussed today will also have been given before that day, so that his Honour can be referred to them, if necessary. Furthermore, it will produce a certainty in the state of the pleadings on the basis of which I can continue to hear the interlocutory injunction application at present proceeding before me, when the hearing is resumed before me in July.

8 I therefore propose to allow the filing of the statement of claim in Version 7, as I have indicated. However, there is one qualification to that. Both parties have proceeded on the basis that the applications of funds referred to in paragraph 29U encompass applications before the making of Palmer J's interim judicial advice order as well as after. Despite the fact that both sides have proceeded on that basis, that appears to me to be a completely impossible construction of the paragraph looking at its words. That is because the application of costs complained of is expressed to be beyond that “authorised by the interim judicial advice order”. Those words could operate only, in my view, in relation to funds applied to costs after the interim judicial advice order. That is not what was intended on the plaintiffs' side, nor understood on the defendants' side.

9 Before the actual document is filed in Court, I require the incorporation of a revision to paragraph 29U which makes it quite plain that the complaint is of applications of funds to costs from the commencement of the proceedings, as well as to applications beyond the judicial advice order after the judicial advice order was made.

10 The costs of this application will be reserved.

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