Metropolitan Petar v Mitreski

[2010] NSWSC 1187

CITATION:	Metropolitan Petar v Mitreski [2010] NSWSC 1187
HEARING DATE(S):	20 August 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	20 August 2010
DECISION:	Paragraphs 6, 7 & 8 of affidavit rejected
CATCHWORDS:	EVIDENCE – Admissibility and relevance – documents – secondary evidence – whether evidence of the contents of document should be admitted pursuant to (NSW) Evidence Act 1995 s 48(4) – whether unavailability established – prejudice – late service
LEGISLATION CITED:	(NSW) Evidence Act 1995, s 48(4)(b)
CATEGORY:	Procedural and other rulings
PARTIES:	His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia & New Zealand (first plaintiff) The Very Reverend Father Mitko Mitrev (second plaintiff) Lambe Mitreski (defendant) Pero Damcevski (second defendant) Boris Minovski (third defendant) Eftim Eftimov (fourth defendant) Mile Marcevski (fifth defendant) Macedonian Orthodox Community Church St Petka Incorporated (sixth defendant) Naum Despotoski (eighth defendant) Attorney-General for the State of NSW (ninth defendant)
FILE NUMBER(S):	SC 97/25609
COUNSEL:	Mr TGR Parker SC w Mr RE Steele (Ps) Mr M Leeming SC w Ms L Goodchild (D1-6, 8) Mr M Izzo (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray Lawyers (D1-6, 8) Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday, 20 August 2010

1997/25609 His Eminence Petar the Dicoesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski

JUDGMENT (ex tempore)

1 HIS HONOUR: The defendants seek to read an affidavit of Mire Anevski, sworn 15 August 2010. Objection is taken on the grounds of relevance, form and prejudice (said to arise from the inability to respond to it at this late notice).

2 So far as relevance is concerned, I am prepared to accept that proof that the church hierarchy had notice of the terms of the constitution of the Association and, even moreso, had expressed some form of approval of it, is sufficiently potentially relevant to matters in issue in the proceedings as to justify its admission.

3 As to form, the witness endeavours to prove the contents of a document by giving the affidavit equivalent of oral evidence of the contents of the documents in question. Such a course is open to a party where the document in question is not available to the party, or its existence and contents are not in issue in the proceedings – see (NSW) Evidence Act 1995, s 48(4)(b). In order to support the reception of evidence of the contents of a document in that manner, it is necessary for the party tendering the document to establish that the document is not available to the party.

4 In the dictionary to the Evidence Act, clause 5 provides that for the purposes of the Act, a document or thing is taken not to be available to a party if and only if it cannot be found after reasonable inquiry and search by the party, or it was destroyed by the party or by a person on behalf of the party otherwise than in bad faith, or was destroyed by another party, or it would be impractical to produce the document or thing during the course of a proceeding, or production of the document or thing could render a person liable for a conviction or an offence, or it is not under the possession and control of the party and cannot be obtained by judicial or other procedures. In my view, the evidence so far adduced does not establish unavailability within that definition of the term, and the formal objection must succeed.

5 In any event, the prejudice objection must also succeed. The history of procedural directions in these proceedings, and the attitude I would take to late evidence, has previously repeatedly been outlined. In short, I indicated that evidence served late, after the final extension granted for that purpose had expired, would be received if it could be dealt with without prejudice to the other party, but if there was a bona fide claim of prejudice would be rejected.

6 In this instance, it is easy to see that, had there been notice of this evidence earlier, searches in the Archbishopric could have been undertaken to discover whether there was any record of any such letter, and affidavit evidence might have been adduced proving that such searches had been undertaken and that no such letter had been found in the records – or, alternatively, the alleged letter, if found, might have been produced.

7 Accordingly, both on the grounds of want of proof of unavailability, and on the grounds of its lateness, I reject paragraphs 6, 7 and 8 of the affidavit. I otherwise read the affidavit.

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