Metropolitan Petar v Mitreski

[2000] NSWSC 180

CITATION:	Metropolitan Petar & Ors v Mitreski & Ors [2000] NSWSC 180
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3369/97
HEARING DATE(S):	15 December 1999 and 22 February 2000
JUDGMENT DATE:	22 February 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 cse should be fixed for trial before preparation complete.
DECISION:	Considerations stated as to whether trial should be fixed before preparation complete.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 22 FEBRUARY 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 case presents great difficulties of management. It concerns the control, as between the hierarchy of the Macedonian Orthodox Church and a group of local parishioners, of the Macedonian Orthodox Church at Rockdale. In early stages of the proceedings this dispute generated such emotions that this Court was asked to restrain by injunction and did restrain by injunction physical disorders in the church, and the police were called on a number of occasions to disorders that were created surrounding the church. I say that only to demonstrate that, as well as having other importances, the subject matter of this suit has at times presented a threat to public order in this city.

2    It is quite correct to say, as has been said from the bar table, that the suit is complex. It is equally correct to say that it has proceeded very slowly. I do not seek at this stage to attribute blame for that, insofar as there is blame, but it should be said that, to the extent that there was a suggestion in what was said in Court this morning by Mr Cockburn, of counsel for the plaintiffs, that the delay or slowness has all been on the part of the defendants, that is in my view quite incorrect. There have indeed been repeated failures to meet directions of the Court and many of those failures have been on the plaintiffs' part. There may have been good reasons for those failures, but they are a fact. One of the difficulties that everybody faces has been a problem of translation of extensive ecclesiastical documents from Macedonian into English, which has presented particular problems because of a lack of interpreters who have sufficient sophistication, or indeed legal knowledge, to permit them to translate ecclesiastical legal documents. Some translation, indeed, was carried out at one stage by a Macedonian speaking person who is in fact a barrister, to overcome this problem, in such time as that person could spare for the purpose.

3    At the moment what the parties are unable to agree about is even whether there is a realistic prospect of settlement negotiations proceeding. In one sense, even that is an advance in these proceedings, in that there has been at least talk of the possibility of settlement negotiations. The idea of settlement negotiations at earlier stages, because of the emotions involved, appeared absolutely nonexistent. However, the attempts even to set up, much less conduct, settlement negotiations have proved and are proving tortuous and difficult.

4    The problem that the Court faces is this: proceedings must continue to finality, whether by being tried and determined or by being dismissed out of Court, if they are not to proceed. That necessity for the orderly administration of justice in the Court is reinforced in the year 2000 by a public expectation that matters brought to Court be disposed of one way or another speedily, and not allowed to languish. However, for reasons that are evident in what I have already said, there is great desirability, bearing in mind the importance of the religious life of the particular community in Sydney within which this dispute rages, that the matter be settled by agreement, if at all possible, rather than by the decision of a court of law. On the other hand, if settlement is quite impossible, and the plaintiff as the moving party clearly indicates that he wishes the matter to proceed to trial, then at some stage in the fairly near future the matter must be allowed and encouraged to proceed in that direction. Mr Cockburn is correct in saying that the crunch point is approaching.

5    Whilst I am not called on at the moment to make any final decision concerning that, I have indicated in the past, by reason of the difficulty of compliance with directions and adherence to timetables in this matter, that the course that I should consider following if the matter is to proceed to trial is one which is not generally adopted. The general procedure in this Division and this Court is not to give matters a date for trial until all directions are complied with, or substantially complied with, and the matter is clearly ready for trial. Because of a long history of difficulties in this case I may well be inclined to proceed, if the case is to go to trial, by the different and unusual course of fixing a trial date some months ahead and working towards the proper and full preparation of the case in the meantime, on the basis that it will be only in the most extraordinary circumstances that I shall be prepared to vacate that trial date, whatever has or has not occurred in the meantime.

6    In view of the protracted process of considering whether settlement negotiations are realistic, I have thought it proper at this stage to set these considerations down in these short reasons for judgment, so that it may be plain that the Court is proceeding on a considered basis and that the matter is not just being stood over from time to time on some passing pressure of convenience, or simply on request of one side or the other.

7    Mr Cockburn and Mr McConnell, solicitor, who has appeared today as counsel for the defendants, have given orally at length in Court today their statements of the present state of affairs so far as the matter is concerned, and those have been recorded and will appear in the transcript.

8    Mr McConnell on the basis of those matters asks for the matter to be stood over to 14 March 2000 for further directions. Mr Cockburn opposes that, saying that, in light of the history of the matter, only a week should be given for further consideration of the possibility of settlement, and that the matter should be stood over for further directions seven days hence. I am of the view that Mr McConnell's is the more realistic proposal in view of all the history of the matter, and I propose to stand the matter over for further directions at 9.30am before me on 14 March 2000. I direct that each party on or before 13 March 2000 deliver to my Associate and to the other party a written statement as to the state of the affairs relating to negotiations and as to their intentions at that time as to the suit proceeding to trial. If either party expresses in that statement the view that the suit should immediately be treated on the basis that it is proceeding to trial, that party should bring in directions on 14 March 2000 as to the necessary preparations for trial. Parties can, of course, on that day seek any further directions generally as they may be advised in relation to the conduct of the suit.

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Last Modified: 09/25/2000