Metropolitan Petar v Mitreski

[2010] NSWSC 1185

CITATION:	Metropolitan Petar v Mitreski [2010] NSWSC 1185
HEARING DATE(S):	18 August 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	18 August 2010
DECISION:	Affidavits in question admitted.
CATCHWORDS:	EVIDENCE – Admissibility and relevance – Opinion evidence – Expert opinion – whether evidence complies with Makita standard
CATEGORY:	Procedural and other rulings
CASES CITED:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
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 defendants sought to read three affidavits of Mr Ilija Acevski sworn respectively on 3 September 2003, 15 April 2005 and 15 August 2010. However, it was conceded that the first of those did not go to an issue that remained relevant in the proceedings and it was not pressed. The deponent is a builder, and deposes in very general terms as to estimates of the cost of various rectification works to St Petka, which are said to have been required by the bishop preliminary to reconsecration of the church.

2 The potential objections may be summarised as going to relevance, qualification, and basis (in the Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 sense).

3 So far as relevance is concerned, I am persuaded that this material could be relevant, albeit marginally, insofar as the plaintiffs press an application for removal of the trustee – since, on such an application, an explanation for the conduct of the trustee would be relevant, and the cost of rectification works might provide at least part of an explanation, as it would explain why insistence those works was seen as an insurmountable impediment to return of the Bishop.

4 However, it also needs to be borne in mind that the application for removal of the sixth defendant as trustee is but an alternative one, and not at the forefront of the plaintiffs’ case; and that insofar as this evidence might explain conduct of the trustee, it does not really explain the breaches of which the trustee is accused in these proceedings but, in effect, collateral conduct of the trustee. Its relevance therefore is marginal, but I would not exclude it on grounds of irrelevance.

5 By the reference to qualification, I mean essentially compliance with the expert witness code of conduct. The evidence is opinion evidence of a builder, and it is tendered on the basis of his expertise. However, there is no suggestion of compliance with, or even aversion to, the code of conduct; and the witness could not in any event comply with it, in the sense that he is plainly affiliated with the defendants, having been a member of the church community, a member of the committee assisting the executive council and, at some stage, a member of the council itself.

6 I have, in the plaintiffs’ case, admitted expert opinion of the Bishop, on the basis that the rules did not intend to prevent a party who had appropriate qualifications from giving opinion evidence. The real purpose of the rules about expert evidence was to ensure that where non-party experts were retained, the court be assisted by truly independent experts. There is something to be said for the view that that is the course that ought to have been adopted here, however, it seems to me that this evidence might be regarded as the evidence of an officer of the sixth defendant of views that he formed in that capacity, which subsequently influenced decisions and courses of action taken by him as a member of the executive council. I would not exclude this evidence on the grounds of its non-compliance with the expert witness code of conduct.

7 The final problem is that, insofar as it gives costs estimates, the witness furnishes no basis for the trier of fact or for the opposing party to evaluate and assess the opinions expressed. In an estimate of the costs of building works, one would expect to see analysis – not necessarily as detailed as a quantity surveyor’s report – but at least an estimate of the time, labour and materials involved and the costing of that time, labour and material. There is virtually nothing of that type in this evidence. The closest that the affidavit approaches it is that, in respect of the frescoes, it is said that they would require 60 square metres at between $500 to $1,000 per square metre totalling $30,000 to $60,000. Elsewhere, not even that degree of detail is provided.

8 I do not see how it can be said that the witness has furnished the trier of fact with the necessary material on which to form any view as to whether the witness’s opinions are or are not soundly based and, as has often been pointed out, it ought not be visited on the cross-examiner to have to elicit and then deal with that material without notice.

9 I have come to the conclusion that I would be justified in admitting this evidence only on a very limited basis, and that is as evidence of an impression, formed by a member of the executive committee, as to the costs of the works. I would not treat it as an expert estimate of the cost of the works at all. In other words, it would have no further weight than a member of the executive council, who happened to be a builder, saying “One of the factors I took into account was that I thought that the works would cost this amount.” It would be no evidence of the reasonableness of that amount.

10 On that basis only, I would be prepared to receive the two affidavits in question.

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