New South Wales Supreme Court CITATION : Metropolitan Petar & Ors v Mitreski & Ors [2000] NSWSC 1016 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 4 October 2000 JUDGMENT DATE : 4 October 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) 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 trial directions should be given before mediation. CASES CITED : Metropolitan Petar v Mitreski [2000] NSWSC 320 DECISION : Directions for trial not given before mediation. Fixing of trial dates next year foreshadowed. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 4 OCTOBER 2000 3369/97 HIS GRACE METROPOLITAN PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIAN & NEW ZEALAND & 2 ORS v LAMBE MITRESKI & 6 ORS JUDGMENT HIS HONOUR: 1 These proceedings are again before me for directions: see Metropolitan Petar v Mitreski [2000] NSWSC 320. I am told that there have been two events which have some impact upon the progress of the matter since it was last before me. The first is that I am told on behalf of the plaintiffs that there have been moves, in which at least one of the defendants has participated, towards the creation of a new church body avowedly outside the Macedonian Orthodox Church of which the first defendant is a prelate and that that may make the success of the mediation procedure that is under way less likely. Nonetheless the plaintiffs, very properly in the circumstances, are prepared to continue with the mediation procedure. The second development of which I am informed is that, whilst it was hoped, by all concerned, including the mediator, Sir Laurence Street, bending every effort to the matter, the formal mediation would take place earlier, it has now been agreed by the parties that the formal mediation should commence on 17 November 2000. 2 Mr Cockburn, of counsel for the plaintiffs, has asked me, in the light of his fears concerning the success of the mediation, to give directions concerning the trial of the matter at this stage before the mediation proceeds, to ensure that the trial can take place at some time reasonably soon after the mediation. 3 I am not prepared to accede to that application in the form in which it is made. In my belief it is important, for reasons that I have previously expressed, that this mediation succeed if possible. Quite apart from the risk of an increase in combativeness arising out of the pursuit of trial preparations, in my view it is important in a matter as complex as this that the parties' resources be directed to the matters necessary to prepare for the mediation rather than for a trial in the interim between now and the mediation date, in order that the mediation may have the highest possible prospects of success. I therefore refuse the application as made. 4 However, inspired not only by Mr Cockburn's application but by a review in my mind of the whole circumstances of this matter, I think it would be wise and appropriate for me in the near future to fix a trial of the matter for a time around the middle of next year. Whilst in no way ought I, nor do I, fetter the proper exercise of my discretion on any application made to me in the future, I do indicate to the parties that the Court will be most reluctant to allow that trial date, when fixed, to be vacated, whatever the state of preparedness of the parties. This is one of the occasions where the public interest in the finality of litigation will have to play an important part in the exercise of discretion in the light of the particular and unusual history of this individual matter. Mr Heath, of counsel for the defendants, does not assent to this course, but does not say anything seriously in opposition to it. The fixing of the date will have two purposes. It is intended to focus the parties' minds as the mediation approaches on the fact that, despite the various delays there have been in the progress of this matter for a variety of reasons, if it cannot be settled, it really will come to trial at a fixed point of time in the future, with all the expense, stress and uncertainty of result that that will involve for the parties. It will also ensure that trial time is available if and when it becomes plain that the matter must proceed, but at a sufficient distance in the future for that time to be redeployed easily for the Court's purposes if a settlement be effected. The trial will be far enough off for directions to be given late in November and implemented to permit the matter to be brought to trial on a proper basis, provided that the parties give sufficient priority to this matter and undertake all necessary endeavours. 5 The result is that I shall stand the matter over before me for further directions on 22 November 2000 at 9am. Such an order is probably still in force from the past but so there may be no doubt I shall again grant to the parties liberty to restore before me on 12 hours' notice in the meantime if any change of circumstances or exigency of the case makes it desirable. 6 My Associate will shortly communicate with the parties concerning appropriate trial dates during 2001. If there can be agreement about the dates I shall make an order in private Chambers fixing the dates. If there is any substantial argument about the dates the matter can be brought back to Court for that argument to be heard. 7 There are two additional matters that require to be dealt with. The first is that Mr Cockburn has foreshadowed an application to join as an eighth defendant a gentleman who he is instructed has been officiating at services at the St Petka Church and continues to do so. Despite what I have said about directions generally it is of importance that the situation as to parties be clarified at once so as not to delay the implementation of directions for preparation if they have to be made at the end of the year. It may also be that at least one other of the defendants may be able to be dismissed from the proceedings as having no continuing relevance to them. I direct that the plaintiffs inform the defendants in writing within 14 days whether they propose to apply to join or dismiss any defendants in or from the proceedings. The matter can be brought back to Court under the liberty to restore if that communication necessitates the making of orders. A copy of the letter should be forwarded to my Associate at the time that it is sent to the defendants' solicitors. Mr Cockburn also raises a question as to the possible joinder of additional plaintiffs. That matter also should be given early consideration and the situation raised with the defendants as soon as possible for discussion and brought back to Court if necessary. I am hopeful that the willingness that the Attorney-General has communicated to grant his fiat in the proceedings if they continue will cure any possible objection as to parties. 8 The second matter has been raised very properly by Mr Heath as counsel for the defendants. I do not wish to go into any great detail but as a result of what he has said it may be that there remains the possibility of an argument that the relevant property is subject to no trust but held beneficially by the legal owners. Things have been said as the matter has progressed that have induced a belief in the Court and in the plaintiffs that such an argument would not be put. I request that any necessary consultation among senior counsel and junior counsel for the defendants and any other relevant person take place as soon as possible and that both the plaintiffs and my Associate be informed in writing at the earliest possible date whether or not any claim of beneficial ownership is going to arise. In making this request I do not mean to reflect in any way adversely on any professional conduct on the defendant's side and the course that Mr Heath has followed in this matter this morning is in my view entirely appropriate and proper. 9 The orders that I make therefore are: 1 The proceedings are stood over for further directions before me at 9am on 22 November 2000. 2 Liberty to restore before me on 12 hours' notice. 3 Direct that the plaintiffs inform the defendants and my Associate in writing within 14 days whether they propose to apply to join or dismiss any defendants from the proceedings. …oOo… Last Modified: 11/24/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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