New South Wales Supreme Court CITATION : Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 152 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 13 March 2001 JUDGMENT DATE : 13 March 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 Cockburn (P1 & 2) K S McConnell (D1 - 6, 8) SOLICITORS : Michie, Shehadie & Co (P1 & 2) McConnell Jaffray (D1 - 6, 8) CATCHWORDS : PROCEDURE [21] - Courts and judges generally - Judges - Other matters - Judge discharging self from further hearing of part heard application - Relevant considerations - PROCEDURE [81] - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules to facilitate just, quick and cheap resolution of real issues - Duty of parties to assist - Court's concern at costs of litigation. LEGISLATION CITED : Supreme Court Rules Pt 1 r 3 DECISION : Plaintiffs ordered to pay defendants' costs of directions hearing; Hamilton J discharges himself from hearing of security for costs application and refers same to Young J. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 13 MARCH 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 (See page 7 of transcript) 1 HIS HONOUR: Mr Cockburn, the view that I tentatively have is that your clients ought be ordered to pay the defendants' costs of the last occasion, which was 2 March. It seems to me we have had at least one too many directions hearings because of slowness in the plaintiffs' camp. The situation as revealed on the last occasion really did show that insufficient effort was being applied at the time. In saying that I am aware that the plaintiffs also have difficulties in conducting the case, as well as the defendants. Of course it is the plaintiffs who are under focus at the moment because it is their case being brought forward piece by piece. 2 It may be thought that Judges are oblivious of the costs of litigation or unconcerned by it. That is totally untrue. One of the greatest concerns, both of individual Judges and of the Judges of this Court on a collegiate basis, is what can be done to lessen the cost of litigation, as is witnessed by the recent promulgation of Pt 1 r 3 of the Supreme Court Rules imposing on litigants a duty of assistance to the Court in seeking to meet the overriding purpose of the Rules, being the just, cheap and quick resolution of the real issues in the proceedings. There is no simplistic answer to the problem. A lot of people who talk about it do not face up to the fact that litigation is a labour intensive activity and certainly some of the people whose labour is involved are highly skilled professionals who would not acquire the skills and undergo the stresses of being litigation lawyers without being highly paid. That it is labour intensive at all levels is illustrated by Mr Cockburn telling me this morning that there is a typing bottleneck and my replying that, if there is, the case can't go at a slower pace, more typing labour must be found. The whole process is very complicated and very labour intensive. That is the reason why there are going to be repeated directions hearings. 3 Both parties want the matter brought to trial. The trial is going to occur this July/August and is not going to occur in an orderly way, in my view, unless a great deal of effort is put in and unless the necessary steps are judicially supervised to ensure that they are being kept up. It is the plaintiffs who are having trouble keeping up at the moment. The defendants may find when the time for filing their affidavits on strict limits comes, that it is easier to be in the seat complaining than in the seat under obligation to do and doing what is to be done. 4 It was because of concern over costs that I urged and urge the parties to attempt settlement. I know the money was lost, but I believe the parties were extremely wise to engage in a mediation. Part of the motivation for settlement is to remove the stress from people of engaging in litigation, part of it is to remove the embattled feeling of litigation from the processes of a church which is central to the lives of all the litigants and which would be much better off not involved in litigation, and part of the motivation is, it is costing a lot of money which people are finding difficult to find and which, if found, would be much better spent on other things. 5 The concern is there, but if the litigation goes on, it is going to be costly and there are going to have to be directions hearings to ensure it stays on the rails. Unless that happens, it will either never be tried and lie and fester, or the trial in July/August will abort and money will be thrown away and even more money will be lost in the long run. I say these things so there is laid out in public the considerations in my mind concerning those matters. I do not wish to be seen as simply belabouring the plaintiffs over this. 6 In my judgment there was a period of inactivity earlier in the year by the plaintiffs which has cost at least one more directions hearing than was necessary. The one that I select is that of 2 March. I will hear you, Mr Cockburn, but my present intention is to order the plaintiffs to pay the defendants' costs of the directions hearing of 2 March. I will not, however, on the present state of the evidence order that those costs be assessed and paid forthwith. That is an order that I rarely make and I would make it only on financial evidence showing that there was some financial necessity for the order to be made and paid at once and that a significant financial difference in the overall picture would be made by the payment. I am not saying that alone would cause me to make an order for payment of costs at an earlier time than they are conventionally paid. But it would only be if there was evidence of that sort, in conjunction with other matters, that I would consider making such an order. I have indicated my attitude to you both, so you can address me in the light of these considerations. …oOo… (See page 10 of transcript) 7 In the submissions which Mr Cockburn has now put to me, it is suggested that there is some pattern, over a long period, of the defendants sitting back, not complaining about the slow conduct of the matter, and now bringing forward complaints, with the intention of delaying the matter. Secondly, it is said that no complaint has been made about non-delivery of documents in recent times. The times that I refer to as "recent times" are the time since 11 December 2000. The third last directions hearing in this matter occurred on that day. The next directions hearing was on 23 February 2001 and the succeeding directions hearing was on 2 March 2001. It is correct, as Mr McConnell concedes, that no letters of complaint were sent during that period. 8 What I intend to say about those two submissions at this time is as follows. As to the first, I do not intend to make any ruling on it and I do not intend to take it into account in making the order that I am about to make. It is a matter of some seriousness. If it calls to be ruled on at some stage for some purpose of the litigation, then it should be ruled on with proper evidence available and proper submissions heard. In view of the fact that it is conceivable I may have to rule on it in the future, I do not intend to say anything else about it at this stage. However, so far as the second submission is concerned, I continue to be of the view that the plaintiffs' degree of attention to the matter and production of results since 11 December 2000 has been inadequate and that that inadequacy has caused one of the directions hearings to be a waste. In my view, were it not for that inadequacy, the necessity for one of the directions hearings that has occurred in the recent period would have been obviated. On that narrow basis I continue to hold the view that the appropriate course is to order the plaintiffs to pay the defendants' costs of one directions hearing and I select the directions hearing of 2 March 2000 as the hearing in respect of which I shall order the costs. 9 In making that order I have read and taken into account the whole of what passed in court on 11 December 2000 and 23 February and 2 March 2001. Whilst it is true that no letters of complaint were written as to progress by the defendants during that period, they were not during that period written in a context where the remarks that I made from the bench on those various occasions indicated a high degree of urgency necessary and the importance of the time limits being complied with as nearly as possible. In those circumstances it was not, in my view, necessary to found the order I propose to make that the defendants should have complained during that time. As I say, as to any alleged general course of conduct on the part of the defendants I say nothing and do not take that matter into account in making the present ruling. 10 So far as the question of an order for the immediate assessment and payment of the costs is concerned, I do not propose to make that order. Such orders are made sparingly. I should be inclined to grant such an application only in the presence of evidence that there was some particular financial reason why the payment should be made at once and that the making of a payment of the comparatively small size involved against the large overall costs of this litigation would make a substantial difference. I should make such an order only upon the availability of some such evidence to be taken into account with the other considerations that would need to be considered in making such an order. …oOo… (Re Security for costs application - see page 10 of transcript) 11 Some time ago I heard a security for costs application in this matter. The evidence was given and submissions were made. I reserved judgment on 27 July 1998 and, indeed, at that time started to prepare a judgment to dispose of the application. What supervened was that it was agreed that I should desist from completing and delivering that judgment while long and worthy settlement negotiations were conducted, including the holding of a mediation before Sir Laurence Street. Those efforts I can only commend, despite their unfortunate lack of success. 12 Immediately upon it becoming apparent late last year that the matter would have to proceed to trial, and I having announced that I would fix dates for the trial of the proceedings before me during 2001 (subsequently fixed for a period of about four weeks commencing on 31 July 2001), the defendants indicated that they wished to prosecute their application for security for costs to finality. However, circumstances have greatly changed since I heard and reserved judgment in the security for costs application. Up-to-date evidence will almost certainly have to be taken of the financial positions of the plaintiffs and defendants. Furthermore, the proceedings having been fixed for trial before me, it is now clear that I shall be the trial Judge in the proceedings. The determination of the security for costs application will almost certainly necessitate some consideration of the strength or weakness of the respective cases of the parties. It seemed to me that for this reason the determination of that application at this stage by the Judge who is to be the trial Judge is quite undesirable. Whilst a Judge is, in general terms, capable of assessing the strength or weakness of a case on a provisional basis on material available at an early stage of the proceedings and to come to quite another view upon the evidence presented at the trial, on the other hand, it is readily understandable that there are circumstances in which it can be difficult for lay parties involved to feel that a Judge who has necessarily expressed any view about the strength or weakness of cases may in some way have prejudged the issues. That is particularly important in this case which touches upon the conduct and property of a church, which occupies a central part in the lives of all the parties, plaintiffs and defendants, which has been embattled and which has even been the occasion of some incidents of violence, fortunately now in the distant past. 13 I should add that the hearing of the security for costs application before me was not long. The evidence is already outdated and would have to be significantly supplemented if I were to proceed to deliver judgment in the matter, so there would have to be some further hearing before me. In those circumstances little is thrown away by my discharging myself from the hearing of the application so that it may be dealt with by another judicial officer. Although applications for security for costs are generally heard by a Registrar, there are reasons why the primary hearing should, in this instance, be before a Judge, as was acknowledged by the fact that I, myself, earlier undertook the task. There is an urgency in the hearing of this application at this stage and delay would be occasioned if the result before a Registrar resulted in the requirement of either side that that decision be reviewed by a Judge. In any event, the matter is one of some quite considerable complication as well as urgency, and it is desirable, in my view, that a Judge should hear it. Fortunately Young J has indicated himself willing to entertain the application. The parties ought approach his Honour's Associate with a view to having the matter listed as soon as possible to fix a day for hearing and give any necessary directions towards that end. 14 Whilst it is entirely a matter for the Judge who hears the application to form his own views concerning all aspects of the matter, I should record that it is my view that the defendants should not be regarded as delaying the bringing forward of the application for security from the time that I reserved judgment in the application until now, when I have discharged myself from the further hearing. 15 The orders of the Court will therefore be: 1 I order the plaintiffs to pay the defendants' costs of the directions hearing of 2 March 2001. 2 I discharge myself from further hearing the defendants' application for security for costs. 3 I refer the hearing of that application to Young J. 4 The matter is stood over for further directions before me at 9.30 am on 22 March 2001. …oOo… Last Modified: 03/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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