Metropolitan Petar v Mitreski

[2004] NSWSC 22

CITATION:	Metropolitan Petar v Mitreski [2004] NSWSC 22
HEARING DATE(S):	3 February 2004
JUDGMENT DATE:	3 February 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Time for compliance with directions further extended.
CATCHWORDS:	PROCEDURE [105] - Supreme Court Procedure - Practice under Supreme Court Rules - Directions - Non compliance with directions - Deferral of compliance pending application under s 63 of Trustee Act 1925 concerning use of trust funds in defence of proceedings.
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) No appearance (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, 3 FEBRUARY 2004

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: Mr Blake, of Senior Counsel for the defendants, has indicated to me that the advice has not been obtained through the Bar Association's pro bono scheme, or at all, which would found the application under s 63 of the Trustee Act 1925 that the defendants are contemplating making as foreshadowed in Court before me on 18 December 2003. I am told by Mr Blake that his instructions are that a brief has been delivered to the Bar Association for delivery to appropriate senior counsel, but this did not occur until 29 January 2004. Mr Blake has conveyed his instructions as to various reasons said to explain the delay between 18 December 2003 and 29 January 2004 in delivering that brief to the Bar Association. What is worse, appropriate senior counsel has been identified by the Bar Association but, upon Mr Blake speaking to that counsel this morning, he has been informed that that counsel has not yet received the brief. Furthermore, it is only in the last few days that the defendants have conveyed to the plaintiffs the questions asked of counsel in the brief, so that it will only be today that the plaintiffs are able to give to the defendants their comments upon the questions. Counsel for the plaintiffs has informed the Court that the questions in their present form are not regarded as satisfactory to resolve the relevant issues. All this bespeaks a very unsatisfactory situation.

2 The matter is fixed before me for its second trial on 15 March 2004 and real doubts are arising as to its readiness for trial at that time. Already there have been murmurs from both sides as to their dissatisfaction with the current interlocutory regime. This was cast in its present form by Barrett J during my absence last year. It is very desirable that there not be further applications for interlocutory relief in this case. This is particularly so as at the moment, if such applications were made they would subtract from the already limited time available for preparation for trial. One of the factors that will point towards the trial date being maintained, whatever the state of preparedness, is the difficult interlocutory situation between the parties in this matter. The time has come when the parties, particularly the defendants, must pull out every stop to give this matter top priority, to ensure that the application for judicial advice can be made the preparations for trial and that continued with as soon as possible.

3 My dissatisfaction with the state of affairs was made plain in my exchanges with Mr Blake while he was putting his submissions to me. Mr T G R Parker, of counsel for the plaintiffs, has enunciated certain further complaints and concerns of the plaintiffs in his answer to Mr Blake's submissions. Despite the great deal of force that there is in the plaintiffs’ stance, I feel that nothing can be done at this stage but to stand the matter over to 19 February 2004 at 9.30am before me for further directions. I extend the time for compliance with directions up to and including 19 February 2004. I direct that if any further application is to be made for extension of time for compliance with directions on that day it must be made on sworn evidence. Costs reserved.

**********

Last Modified: 02/18/2004