Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 383

New South Wales Supreme Court

CITATION : Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 383 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 9 May 2001 JUDGMENT DATE : 9 May 2001

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) PARTIES : Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) JUDGMENT OF : Hamilton J

COUNSEL : M Shehadie, Solicitor (P1 & 2) K S McConnell, Solicitor (D1 - 6, 8) SOLICITORS : Michie, Shehadie & Co (P1 & 2) McConnell Jaffray (D1 - 6, 8) CATCHWORDS : PROCEDURE [32] - Courts and judges generally - Courts - Adjournment - Discretion of Court - Exercise in relation to long standing fixture when realistically matter will not be ready. DECISION : Fixture vacated.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 9 MAY 2001

3369/97 HIS GRACE METROPOLITAN PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & 2 ORS v LAMBE MITRESKI & 6 ORS

JUDGMENT

1 HIS HONOUR: This matter now seems to be progressing in a more orderly fashion. The plaintiffs, if not meeting time limits exactly, do now seem to be producing and sending to the defendants their undoubtedly complex and lengthy material in a more timely and orderly fashion. However, when the revised program was discussed this morning it became obvious that, on the best sort of hope, the defendants' affidavits could not realistically be brought forward until mid July. 2 The present fixture is to commence on 31 July. The defendant in the circumstances applies for the fixture to be vacated. It does so, although it is now apparent that a re-fixing of the case late in 2001 is not practicable and that the new fixture would have to be in February 2002. Mr Shehadie, the solicitor for the plaintiffs, says that he has no instructions to consent to the vacation of the fixture, but very sensibly says that he feels in all the circumstances there is little he can say in opposition to it. 3 Whilst I have been trying to ensure that this difficult case finally comes to trial and does not keep slipping into the wide blue future, it seems to me that confusion and a waste of costs is likely to occur if the present fixture is adhered to. The parties' money is likely to be saved and the Court's re-allocation of the time fixed in July/August facilitated if the fixture is vacated now. 4 Another consideration is that the Chief Judge in Equity is to hear the security for costs application on 11 May 2001, ie, this Friday. His Honour's determination of that application one way or the other is likely to have consequences for the future conduct of the case, and it may well be that the additional time made available by the postponement will be necessary to accommodate those consequences. In all the circumstances, I also think it better that his Honour, in case it has any materiality, is able to consider the security for costs application in the light of a realistic time frame for the trial rather than in the light that the present dates are maintained at the moment, only for the fixture to be vacated shortly after his Honour has come to his decision. 5 In all the circumstances, the appropriate course is for the fixture commencing before me on 31 July 2001 to be vacated and I do so. The directions to be made have been discussed. I shall in due course in private chambers give directions in accordance with a document that will be brought in, in accordance with the discussion and which ought incorporate a commencing date for a four week fixture in February 2002. The plaintiffs in the meantime, although the order is not formally made, should proceed on the basis that they are under firm direction to bring forward their final affidavits and furnish requested documents to the defendants within 14 days of today.