Metropolitan Petar v Mitreski - [2010] NSWSC 1186

CITATION: Metropolitan Petar v Mitreski [2010] NSWSC 1186

HEARING DATE(S): 18 August 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 18 August 2010

DECISION: Order for production of documents.

CATCHWORDS: PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of Court – whether notice to produce should be set aside – Discovery – obligations of party giving discovery to have discovered documents readily available during hearing.

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005, r 34.2

CATEGORY: Procedural and other rulings

CASES CITED: IceTV Pty Ltd v Ross [2009] NSWSC 832
Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283

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

Wednesday, 18 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 plaintiffs have served on the defendants – it would seem at 18.40 last night, 17 August by facsimile – a notice to produce calling for production of the following documents at 10am this morning:

1. The “claims analysis” document provided to the Court in the judicial advice proceedings and referred to in Palmer J’s first judgment [2004] NSWSC 388 at [23]; and

2 The defendants move orally for what is either an order pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 34.2, that they need not produce the documents in accordance with the notice, or alternatively to set aside the notice on the grounds that it is an abuse of process. That application was made – one initially having been foreshadowed simply to extend time for compliance with the notice – it is fair to say following the court having indicated a tentative view that a notice to produce dated yesterday or today and returnable today is prima facie an abuse of process and liable to be set aside.

3 The argument that it is an abuse of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2010] NSWSC 1186
Case: [2010] NSWSC 1186
Decision Date: 18 August 2010

CaseChat Overview and Summary

Metropolitan Petar commenced proceedings against Mitreski in the Supreme Court of New South Wales. Petar sought various remedies, including damages for personal injury. The dispute arose from an incident where Petar alleged that Mitreski caused him injuries. During the litigation, Petar issued a notice to produce documents to Mitreski. Mitreski objected to the notice and sought to have it set aside, arguing that Petar failed to have the relevant documents readily available during the hearing. The court was required to determine whether the notice to produce should be set aside and whether Petar breached any obligations under the Uniform Civil Procedure Rules.

The court considered the obligations of a party to ensure that documents identified in a notice to produce are readily available during the hearing. The court examined the evidence and submissions from both parties. The key issue was whether Petar's failure to have the documents readily available constituted a breach of the obligations under the rules. The court noted that the primary obligation is to ensure the documents are available for inspection and production at the hearing, but also acknowledged the need for flexibility in exceptional circumstances. The court found that while Petar's actions were not ideal, they did not amount to a breach warranting the setting aside of the notice to produce. The court held that Petar's failure did not prejudice Mitreski's ability to respond to the notice.

The court ordered that the notice to produce should not be set aside. It further directed Petar to ensure that the documents are readily available at the next hearing. The court emphasised the importance of compliance with procedural rules to ensure the efficient administration of justice. No further orders were made regarding the dispute's substantive issues.

Orders