Metropolitan Petar v Mitreski

[2004] NSWSC 1225

CITATION:	Metropolitan Petar v Mitreski [2004] NSWSC 1225
HEARING DATE(S):	14 December 2004
JUDGMENT DATE:	14 December 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Timetable set for preparation for further trial.
CATCHWORDS:	PROCEDURE [105] - Supreme Court procedure - Procedure under Supreme Court Rules - Directions - Whether directions for preparation should be given now or deferred until after judicial advice given re propriety of use of trust funds in defence of proceedings.
CASES CITED:	Application of Macedonian Orthodox Community Church St Petka Incorporated [2004] NSWSC 388 Metropolitan Petar v Mitreski [2004] NSWSC 439
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)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 14 DECEMBER 2004

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

JUDGMENT re proposed timetable (see transcript 17)

1 HIS HONOUR: In this matter there was an appeal before the Court of Appeal on 8 December 2004. That appeal was an appeal from the decision of Palmer J on the defendants’ application for judicial advice: Application of Macedonian Orthodox Community Church St Petka Incorporated [2004] NSWSC 388. By reason of the institution of that appeal, on 21 May 2004, I suspended the operation of the timetable in this case. I vacated the fixture of the matter for trial before me commencing on 9 August 2004: Metropolitan Petar v Mitreski [2004] NSWSC 439. The matter was subsequently stood over to today for further directions on the basis that this was a day after the appeal I have mentioned was before the Court of Appeal.

2 I am somewhat hampered in dealing with the matters that have been agitated before me today because no transcript of what occurred in the Court of Appeal is available to me and I do not have in written form the short reasons given by the Court of Appeal concerning the disposal of the appeal. I have been given accounts of what occurred in the Court of Appeal by Mr T G R Parker, who appears with Mr R E Steele for the plaintiffs, and by Mr Blake, of Senior Counsel, who today appears for the defendants. In short, the submission was put to the Court of Appeal by the defendants (being raised, it is said, for the first time on that day) that the order appealed from was an interlocutory order rather than a final order and that the appeal was therefore incompetent as being brought without leave. The fact that it was interlocutory was said to arise from the conditional nature of Palmer J's orders. The relevant conditions involved included a condition that his Honour's orders were subject to revocation. It was submitted that the revocation contemplated by the orders was not a revocation de futuro but a revocation ab initio. Whether or not any of these submissions was correct it is not for me to pass on. However, the result was, apparently, that the plaintiffs, who were the appellants, asked for a short adjournment and, having used that to consider their position, announced that they would consent to the dismissal of the appeal, which thereupon inevitably followed.

3 Two competing courses that the matter should now take were agitated this morning before me as the managing and trial Judge. Mr Blake has brought forward on behalf of the defendants a timetable replacing the timetable suspended by me on 21 May 2004. On the other hand, Mr Parker has submitted that I should give no directions, to the intent that the judicial advice application should go back before Palmer J for further determination before the principal proceedings are again set in train.

4 The view that I have come to is that the correct course is for me to re enliven, at the defendants' request, the principal proceedings. There are two reasons for this. The delays in this case are already very lengthy. They are, as I have had occasion to say in the past, not delays that have arisen on the part of the Court, but have arisen from the conduct of the parties and the nature of the proceedings. However, in my view, the Court should take every possible step to promote the early and orderly disposal of the proceedings. I think that will be best met if a program is in place and the various preparatory steps are moving forward. But, in addition to that, Palmer J, when dealing with the matter earlier, did so in a provisional way by reference to various stages of the proceedings and dates by which those stages were to be completed. As his Honour may well wish to deal with the matter again in that fashion, I also think it is important to provide for his Honour a framework by reference to which the proceedings are moving forward, so that his Honour can proceed in that way if he still deems that appropriate. For those reasons, I propose to fix a program.

5 I initially took the view that the program as put forward by Mr Blake was altogether too leisurely. However, bearing in mind the impending long vacation, the difficulty of this matter, Mr Blake’s estimates of the times necessary for the various steps, and the fact that there is no possibility of Palmer J again addressing the judicial advice application until next term, I think that a program essentially in accordance with the times proposed by Mr Blake should be fixed.

6 I stand the matter down to permit short minutes to be brought in later today, to allow certain alterations to be made which have become necessary or appropriate during the course of discussions that have taken place this morning between the Court and counsel.

**********

Last Modified: 07/16/2007