Metropolitan Petar v Mitreski

[2000] NSWSC 1126

CITATION:	Metropolitan Petar & Ors v Mitreski & Ors [2000] NSWSC 1126
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3369/97
HEARING DATE(S):	31 October 2000
JUDGMENT DATE:	31 October 2000
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 Mitrevski (D1) Pero Damceski (D2) Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Father Klime Dzeparovski (D7)
JUDGMENT OF:	Hamilton J

COUNSEL :	M Cockburn (P1 & 2) K S McConnell, Solicitor (D1 - 7)
SOLICITORS:	Michie, Shehadie & Co (P1 & 2) McConnell Jaffray (D1 - 7)
CATCHWORDS:	PROCEDURE [109] - Supreme Court procedure - Practice under Supreme Court Rules - Setting down for trial - Expedition - Equity Division - Whether trial directions should be given during mediation.
DECISION:	Seventh defendant substituted; stood over for further directions hearing.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 31 OCTOBER 2000

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

JUDGMENT

HIS HONOUR:

1    This matter has been restored to the list today by the plaintiffs pursuant to liberty reserved by me on 4 October 2000. As usual, there has unfortunately been disputation between the parties as to communications between them, and little agreement on any subject. However, I have asked Mr Cockburn, of counsel for the plaintiffs, what applications he makes today, and he has asked that I make orders joining Naum Despotovski as seventh defendant to the proceedings in place of the present seventh defendant, Klime Dzeparovski, whom the plaintiffs ask to be now dismissed from the proceedings. The reason for this change is that, whereas at one stage Mr Dzeparovski was officiating as the priest at the subject church, it is now and has for some time been Mr Naum Despotovski who has been carrying out that function. Whilst I am minded to do as little as possible in these proceedings until after the holding of the mediation before Sir Laurence Street, both to minimise costs and to avoid exacerbation of the situation pending the mediation, I have thought it appropriate to deal at this stage with this issue of parties so that the situation as to parties is stabilised by 22 November 2000, when the matter is again before the Court, so that if the mediation has not been successful the Court may on that occasion proceed to give directions for a trial as soon as possible thereafter, and certainly by the middle of next year.

2    Mr Cockburn has also applied to have the members of the Diocesan Ruling Committee joined as plaintiffs. This is a precautionary application, lest there be any suggestion that the suit is not properly constituted. However, whilst the defendants have not today committed themselves to agreeing that that joinder of plaintiffs is not necessary, they do not point to any reason why it should be necessary. It seems to me that in any event the first plaintiff as Archbishop is appropriate to represent the Church. Also it is anticipated that, if the suit proceeds to trial, it will be on the basis that a fiat will be granted by the Attorney General as the officer of the State responsible for the enforcement of charitable trusts. Bearing both those matters in mind it seems to me wholly unlikely that the joinder of these plaintiffs will be necessary, and I decline to make that order. I have already said today, and I repeat, that if the defendants do not before the end of this year put forward some reason why there should be such a joinder, I shall not readily listen to any complaint made by them afterwards that there is a defect in the constitution of the suit by reason of the absence of those plaintiffs.

3    Similarly, Mr Cockburn on the last occasion made a call, in which I concurred, for the defendants to declare at some stage whether there is or is not any contention on their part that any of the defendants holds any of the relevant property beneficially, and not subject to a charitable trust. Mr McConnell, solicitor for the defendants, not yet having conferred with senior counsel, is unable to answer this question, but the time will soon come when it must be answered. I indicate in this regard also that I shall not readily hear any such contention, that is, that any of the defendants beneficially owns any of the property, unless such a contention is squarely brought forward before the end of this year.

…oOo…

4    I note that Mr McConnell in assenting to the propostion that Mr Dzeparovski is now officiating at services at the church, gave that assent not on instructions but as a matter of his personal belief.

5    The orders of the Court will be:

(1) On the plaintiffs’ application (not opposed) dismiss the seventh defendant Klime Dzeparovski from the proceedings.

(2) Reserve all qustions of Mr Dzeparovski’s costs.

(3) Order that Naum Despotovski of 1/65 Railway Street, Rockdale be joined as the seventh defendant to the proceedings.

(4) Order the plaintiffs to file and serve amended statement of claim on or before 21 November 2000.

(5) Confirm appointment of further directions hearing on 22 November 2000 before me.

(6) Application by the defendants for costs of today stood over to 22 November 2000.

…oOo…

Last Modified: 12/11/2000