Metropolitan Petar v Mitreski

[2003] NSWSC 1213

CITATION:	Metropolitan Petar v Mitreski [2003] NSWSC 1213
HEARING DATE(S):	26 November 2003
JUDGMENT DATE:	26 November 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Orders withdrawn.
CATCHWORDS:	PROCEDURE [489] - Judgments and orders - Amending varying and setting aside - Setting aside by consent.
CASES CITED:	Metropolitan Petar v Mitrevski [2003] NSWSC 262 Metropolitan Petar v Mitrevski [2003] NSWSC 1089
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) N C Hutley SC (D1 - 6 & 8) R Lancaster (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

WEDNESDAY, 26 NOVEMBER 2003

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: I now propose to make an order withdrawing the orders made as a consequence of my reasons for judgment earlier this morning: Metropolitan Petar v Mitrevski [2003] NSWSC 1089. I shall give some reasons for doing that.

2 At the time that I made those orders this morning, after indicating the orders I proposed and publishing reasons for my decision, I had not been told that there was any opposition this morning to the immediate making of the orders. Nor do I recall any earlier suggestion being made at the time the form of the orders was debated on 17 April 2003 that orders should not be made immediately. It was certainly made plain along the way that the defendants did not propose at this stage either to appeal from or seek leave to appeal from those orders when made, preferring the course of pursuing, if so advised, a single appeal after the results of the second trial are made known. After I made the orders, some time was spent before me discussing what further directions should be given and I gave those directions. At the heel of the hunt doubts were raised as to whether, in view of the anticipated delay in any appeal, the orders should have been made at all today. Mr Blake, of Senior Counsel for the defendants, has now asked me to withdraw today’s orders. That course is not opposed by counsel for the plaintiff or the Attorney-General. In the case of the Attorney-General, I am specifically asked to record that neither is the course consented to. The withdrawal of formal orders will facilitate the course proposed by the defendants of pursuing only one appeal by relieving them from either applying to appeal the first decision out of time or applying to delay the hearing of the first appeal, if now instituted, until after the second trial. The course, in my view, is in all the circumstances appropriate. As I have indicated, I propose to make an order to withdraw the orders at this early stage, although the Attorney General has not in terms consented to the withdrawal.

3 My exercise in preparing the reasons for judgment, which have been published this morning, is not, however, in vain. The reasons stand as defining the orders that I propose to make as a result of my decision at the end of the first trial: Metropolitan Petar v Mitrevski [2003] NSWSC 262. Although the orders do not now stand, not only has my decision been delivered, but I have defined the terms in which orders will be made at a later time in the proceedings as a result of that decision. The parties may proceed accordingly.

4 For abundant caution I should indicate that I am not withdrawing the directions I have made this morning for the further conduct of the proceedings.

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Last Modified: 02/19/2004