Metropolitan Petar v Mitreski

[2003] NSWSC 608

CITATION:	Metropolitan Petar v Mitreski [2003] NSWSC 608
HEARING DATE(S):	3 July 2003
JUDGMENT DATE:	3 July 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	New interlocutory regime varied in limited regards.
CATCHWORDS:	EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Use of church property subject to charitable trust for hierarchical church pending final determination of issues.
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 594
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) B J Walker SC then K S McConnell, Solicitor (D1 - 6 & 8) N L Sharp (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

THURSDAY, 3 JULY 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: On last Tuesday, 1 July, I delivered a judgment concerning the interlocutory arrangements in these long running proceedings pending the second trial which is to commence on 15 March 2004: Metropolitan Petar v Mitreski [2003] NSWSC 594 (“my judgment”). I stood the matter down to 2.00 o'clock for short minutes. Unfortunately, after I delivered judgment, the attention of senior counsel on both sides was diverted elsewhere and the first plaintiff, the Bishop, returned to Melbourne. Upon my attending to make orders at 2 o'clock, the arrangements that had been made between the parties and which were the basis of my judgment appeared to unravel. In particular, the understanding that I was led to, as noted in [9] of my judgment, that the Bishop would take steps to make available one of three agreed priests to officiate in the church pending the arrival of Father Alexovski from Macedonia appeared to evaporate. I was told that the priests potentially available had shrunk from three to one and I was told that that gentleman sought to impose a condition on the Court that he would not act unless Father Mitrev were admitted to the church on Sundays, which my judgment had specifically precluded. This, of course, was quite unacceptable to the Court. The matter has therefore been brought before me again this morning for further debate on the details of the arrangements. The matters that have been debated this morning include those to which I shall now advert.

2 It has now been specified that the Bishop will conduct the first service of reconsecration on Saturday 12 July 2003. That will be specified in the order. The Bishop and Father Mitrev may enter the church and have the use of it for the whole of that day for the purposes of carrying out that ceremony.

3 The priest whose services will be procured by the Bishop for the sixth defendant will be Father Kiselinov. He will enter upon his duties on Sunday, 13 July 2003. In view of the difficulties that arose during the course of last Tuesday I propose to make the orders for the use of the church after 12 July 2003 by Father Mitrev and by the Bishop for the second reconsecration ceremony conditional upon the continuing provision by the Bishop of a priest acceptable to the sixth defendant to act as priest at the church. I regard it as vital to the conduct of the whole scheme which has been devised that there be effective and working use of the church by the parties on each side during the times allotted to them.

4 It has been pressed on me by the defendants that there should be some sort of financial accounting under Court order for the moneys taken by Father Mitrev during services conducted by him. In particular, it is suggested that, apart from gratuities to Father Mitrev for ceremonies such as weddings and funerals, moneys taken by Father Mitrev during his use of the church, including for candles, should be regularly accounted for to the sixth defendant. However, the case has gone for five or six years now without financial accounting and it seems to me that a requirement for weekly accounting during this still delicate period is only a trigger for trouble and I decline to make that order. The plaintiffs should ensure that strict accounts are kept of all monies taken in the church. I do not intend to impose this as an order, but the expectation is quite clear and I do not doubt that failure to keep those accounts may result in consequences to the plaintiffs in the final wash up of the matter.

5 The only matter as to which there is a substantial departure from my judgment is as to the question of use of the church on Saturdays. In my judgment I indicated that the whole of each Saturday should be available to Father Mitrev. However, the question of weddings, funerals and christenings, which was not previously mentioned, has been drawn to my attention. That regime would exclude the defendant's side from the use of the church for these ceremonies on Saturdays. Whilst different customs may persist in Macedonia, I have formed the impression that this Australianised community of Macedonians tends to adhere to Australian social customs, where weddings and christenings are frequently held on Saturdays. This is borne out by the fact that the only wedding actually booked of which I have been told is in fact on a Saturday. In those circumstances, it seems fair to me that on every second Saturday Father Mitrev's use of the church should be confined to the time up to 1pm so that he can conduct a morning service. On those days the use of the church will return to the defendants in the afternoon for the holding of ceremonies. They have pressed that they should have every Saturday afternoon, but I do not think that this is reasonable. There may well be people who wish to have Father Mitrev carry out such ceremonies and he should have every second Saturday afternoon to do that. In addition, he has been conducting a vespers service on Saturdays in his alternative premises and wishes to continue this. However, it is too complicated in the difficult circumstances that prevail to divide Saturdays into three. Father Mitrev will have to forego the use of the church on the defendants’ Saturday afternoons for vespers services in the evening, but on the Saturday afternoons available to him he will of course be able to conduct a vespers service in the evening if he wishes.

6 Minutes have been given to me by each side. I shall take those and use them to prepare further orders.

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Last Modified: 07/14/2003