Metropolitan Petar v Mitreski

[2005] NSWSC 383

CITATION:	Metropolitan Petar v Mitreski [2005] NSWSC 383 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 & 19 April 2005
JUDGMENT DATE :	19 April 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Late affidavits allowed to be used. Objection to relevance overruled.

CATCHWORDS:	EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Facts potentially relevant to discretionary considerations for consideration on interlocutory injunction application.
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:	B A J Coles QC, T G R Parker and R E Steele (Ps) G O Blake SC (D1 - 6 & D8) R Lancaster (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

TUESDAY, 19 APRIL 2005

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

JUDGMENT (On Admissibility of Affidavits)

1 HIS HONOUR: I have reserved overnight my decision as to general objections to the reading of the affidavits of Ilija Acevski sworn 15 April 2005 and of Father John (John Cluny Macpherson) affirmed 17 April 2005. The general objections to the affidavits were twofold. The first was the lateness of their delivery to the plaintiffs. The second was what was said to be their complete irrelevance to the injunction application that is currently before me. I have come to the conclusion that neither of those considerations should preclude the reading of the affidavits.

2 Although they were very late, being delivered during the weekend immediately before this hearing commenced on Monday the 18th, they were not, in a sense, very late because the direction for their service was a direction that they be served on or before Friday the 15th. The tightness of these time tolerances arose from the urgency with which, at the parties' instigation, the Court has brought this matter on for hearing. Furthermore, the subject matter that they relate to was subject matter which was, in general terms, flagged in an affidavit of Mr K S McConnell that was before the Court when this application first came before it on 1 April 2005. In the circumstances, I do not propose to preclude them for lateness.

3 As far as the question of relevance is concerned, they are said to be totally irrelevant to an application to restrain the use of the trust moneys for costs. The basis on which they are proposed to be used is put by Mr Blake, of Senior Counsel for the defendants, in this way. He says that they are to be used in resisting the application on a basis, one description of which he has given, as a basis of lack of clean hands. Alternatively, he puts it on the basis that, even if the basis does not come within the clean hands doctrine in the strict sense, the affidavits go to a discretionary consideration to be taken into account as to the granting of the relief sought.

4 In each case, it is said that the sixth defendant has been obstructed in the carrying out of the trust by what is sought to be characterised as unreasonable behaviour by the first plaintiff in his requirements for the reconsecration of the church, which would permit it to be used by the sixth defendant in pursuance of the terms of the trust as found by me.

5 I have not had time to consider the degree to which the unclean hands doctrine, as such, applies to interlocutory applications, but the ambit of the matters which may be taken into account in the discretion of the Court in granting interlocutory injunctive relief is very wide and has not been and cannot be limited by referral to specific categories. In these circumstances, I find it impossible to say, at this stage, that the material is utterly irrelevant, or may not be taken into account in the determination of the application.

6 For those reasons, I propose to allow, in general terms, the reading of those two affidavits. As I indicated last evening, objections can be taken to the admissibility on particular grounds of particular portions of the affidavits.

7 I have made it quite clear yesterday that, although, in the circumstances, I have allowed these affidavits to be brought forward at a very late time, I shall, of course, hear any application on behalf of the plaintiffs as to what accommodation they may need in order to deal with these affidavits that are now presented against them.

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12/05/2005 - Senior counsel appearing for Plaintiffs accidentally omitted from cover sheet. - Paragraph(s) No alterations to body of judgment.