Metropolitan Petar & Ors v Mitreski & Ors [2000] NSWSC 320

New South Wales Supreme Court

CITATION : Metropolitan Petar & Ors v Mitreski & Ors [2000] NSWSC 320 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 22 February, 14 March & 13 April 2000 JUDGMENT DATE : 13 April 2000

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) PARTIES : 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) B J Walker SC & M J Heath (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 case should be fixed for trial before preparation complete or adjourned to permit mediation or negotiation. CASES CITED : Metropolitan Petar v Mitreski [2000] NSWSC 180 DECISION : Further adjournment granted to permit negotiations.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 13 APRIL 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 I gave some short reasons for judgment on 22 February 2000 concerning how this matter should proceed in the future: Metropolitan Petar v Mitreski [2000] NSWSC 180. The matter was again before the Court on 14 March 2000, but the parties were not at that time ready to proceed. The matter was again listed on 22 March and on 7 April 2000, but on each occasion it was taken out of the list without attendance so as to save the parties the expense of the attendance, because the matter was not ready to proceed on those days. 2 The matter is again before me on 13 April 2000. Today Mr Walker SC has appeared with Mr Heath for the defendants and Mr Cockburn of counsel has appeared for the plaintiffs. Mr Walker puts to the Court the proposition that there are only two rational courses open. One is that the Court, as I have previously foreshadowed, should in the unusual circumstances of this case fix a date for hearing some time ahead, although the case is not ready for trial, and should work towards a hearing taking place at that time, engaging, if necessary, in intensive case management to ensure preparation. The other alternative he suggests is that the matter be adjourned for some time to permit a mediation between the parties to be entered on. Mr Walker informs me that the defendants have suggested two eminent mediators to the plaintiffs, whilst making it quite clear that they would consider other suggestions as to the identity of the mediator. Mr Walker has emphasised that the parties should not regard the mediation as a Court process imposed upon the parties, but as part of the process of, or an assistance to, negotiation, in circumstances where the parties appear on each side to have some genuine desire to settle the matter, but encounter difficulties, because of the nature of the matter, even as to the terms of a negotiation and the course which it ought follow. I must say that I think that Mr Walker's analysis of those courses as the possible alternatives and the reasons he gives for them are compelling. 3 Mr Cockburn usefully indicates that his clients would not in the end be opposed to mediation, if that proves necessary, but are anxious for there to be a last attempt either to enter into direct negotiations between the parties, or at least for a further conference between the parties as to the issues involved in the substantive negotiations to be held, before mediation be entered on. He indicates that, despite lengthy correspondence arising from the complexity of the matter, there are questions which the plaintiffs still desire the defendants to answer for negotiations to be meaningful. 4 He has also usefully indicated that, to simplify the matter, the plaintiffs are prepared quickly to draw those questions together in the one letter. He has asked me that I should direct that those questions be answered. I am not prepared to give such a direction. I have previously granted adjournments on terms that documents relating to the possible form of negotiation be exchanged between the parties, but it is not appropriate for the Court to enter into the detail of such communications. I have said earlier today, and I record in these reasons, that the Court has received the earlier negotiation documents for the purpose of it being established that they have been brought into existence and delivered, not for the purpose of the Court considering their contents. I have not considered the contents of those documents, and shall not do so unless and until they are placed in evidence, or a request is made of me to do so, and I have indicated in open court that I shall follow that course. 5 However, whilst I am not prepared to give the direction that Mr Cockburn has requested, and whilst I think that Mr Walker's analysis shows the courses, one of which must soon be adopted, I am still, in general terms, perhaps for one last time, prepared to follow the course that Mr Cockburn has requested. I propose to stand the matter over for about four weeks. I propose to request, rather than direct, that the plaintiffs deliver a comprehensive list of their questions in a short time and that the defendants, about four days thereafter, give their answers to those questions. On the adjourned day, it may be seen whether and how the negotiations are progressing, and what the parties then desire with regard to the continuation of the negotiations, or the participation in some way of a mediator to further them. It is not appropriate, and, of course, I do not give any indication of how I shall exercise my discretion concerning the further conduct of the matter on that occasion in the light of circumstances that then prevail. However, I am certainly minded that, if there is no substantial progress in negotiation, then one or other of the courses that Mr Walker has outlined ought be followed. 6 The matter is adjourned for further directions before me at 9am on Thursday, 11 May 2000. I request that the plaintiffs deliver a comprehensive list of questions on or before Friday 14 April 2000. I request that the defendants respond in one document to those questions, answering them or indicating the reasons for declining to answer any that they decline to answer, on or before 28 April 2000. …oOo…