Metropolitan Petar v Mitreski

[2005] NSWSC 21

CITATION:	Metropolitan Petar v Mitreski [2005] NSWSC 21
HEARING DATE(S):	2 February 2005
JUDGMENT DATE :	2 February 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Save for directions made by consent application relating to adequacy of discovery refused.

CATCHWORDS:	PROCEDURE [437] - Discovery and interrogatories - Discovery and inspection of documents - Discovery of documents - List of documents - Form and contents - Description of documents - Adequacy.
LEGISLATION CITED:	Supreme Court Rules 1970 Part 1 r 3, Part 23 r 3(6)(b)
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) V Colaluce (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, 2 FEBRUARY 2005

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

JUDGMENT

1 HIS HONOUR: There is an application before me on motion relating to the adequacy of discovery. There was initially informal discovery of documents in certain categories that were referred to in a direction of mine of 6 November 2003. That was in part translated into more formal discovery by the delivery of a list of documents by the plaintiffs on 24 December 2004. That has not yet been verified, but no complaint is made on the present application about the lack of verification. What is complained of is the inadequacy of the descriptions of the documents on the ground that the descriptions do not comply with the requirements of Part 23 r 3(6)(b) of the Supreme Court Rules 1970 (“the SCR”). That rule requires (so far as relevant) “a brief description by reference to the nature and dates (or period) of each document”.

2 Among the vices complained of in relation to the list of documents are the fact that a number of documents are simply described as “document” whereas a more ample description was possible. One example is document 20, which is described as a typewritten document from MOC St Ilija, Queanbeyan. Upon my enquiring in Court, it would appear that a more ample description would have been that it was a letter to Archbishop Mikhail from the Church of St Ilija and the specific statement could have been made that it was undated. A complaint was made in relation to document 4 that it was described as “copy handwritten document in Cyrillic script”, whereas it could have been described as handwritten notes. The other complaint is that in quite a number of places the documents are described at least in part by the use of words, I think mostly proper names, which are set out in Cyrillic script and not transliterated into Latin script.

3 Mr T G R Parker, of counsel for the plaintiffs, submits that, insofar as there is a non compliance with the rule, it does not matter. The defendants are going to have the documents translated in any event. I am not prepared to accept that as a reason why the documents should not be described, and described so that the description can be read and understood by lawyers who do not speak Macedonian. However, I think that his proposition that it does not matter is closer to being established if one considers the difference that there would have been as a matter of practicality had descriptions which were a little fuller and which undoubtedly fulfilled the rule been used. I do not think, for instance, that much is achieved so far as document 4 is concerned. A simple glance shows that it is some form of short handwritten notes. So far as document 20 is concerned, not very much more useful is conveyed in its context by it being described as a letter to Archishop Mikhail from the Queanbeyan Church than by the description given of it as being a typewritten document emanating from that Church.

4 There is perhaps a nicer point as to whether, when there are Macedonian readers in each camp, although not among the lawyers, it matters that part of some descriptions is by words in Cyrillic script. However, I tend to the view that the person preparing the list should at least render those words into Latin script, but I need not give more detailed consideration to that, since Mr Parker is prepared without admission to have the plaintiffs undergo a direction that they provide a list of transliterations of the words in Cyrillic script in the list of documents.

5 It would perhaps have been more desirable if, for instance, the slightly fuller information that I have outlined above had been given in relation to document 20. I do remind the embattled parties in this case of the provisions of Part 1 r 3 of the SCR. The requirement is for the parties to cooperate in making the path of the litigation easier, rather than with getting away with the absolutely minimal, in complying with the letter and spirit of the Rules.

6 However, urging this as I do upon both sides so far as the future conduct of the litigation is concerned, I do not propose to make any order upon the present motion other than to direct that the plaintiffs on or before 3 February 2005 supply the defendants with transliteration of the words in Cyrillic in the list of documents.

7 It has been urged upon me that I ought, at least, grant relief under the motion by requiring the list of documents to be divided into separate sections relating to each of the five categories of documents which are being dealt with in the list. I have examined the list of categories which is contained in direction 5 in short minutes of order (2) of 26 November 2003. After being assisted by an answer to an inquiry I made of the plaintiffs’ counsel, it seems to me that there are only a small number of documents in categories (a) to (d) inclusive. The plaintiffs are willing to provide a list specifying which of the documents fall in each of those four categories. I shall make a direction by consent to that effect. In my view, no further order is necessary or appropriate in respect of the division of the documents into categories. I direct that the plaintiffs on or before 4 February 2005 furnish to the defendants a list of the documents which fall within each of the categories (a) to (d) inclusive in order 5 in short minutes (2) of 26 November 2003.

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