New South Wales Supreme Court CITATION : Metroplitan Petar v Mitreski [2002] NSWSC 290 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 10 April 2002 JUDGMENT DATE : 10 April 2002 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 Mitreski (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) Attorney General for State of NSW (D9) JUDGMENT OF : Hamilton J T G R Parker (P1 & 2) COUNSEL : K S McConnell, Solicitor (D1 - 6 & 8) No appearance (D9) Sachs Gerace Lawyers (P1 & 2) SOLICITORS : McConnell Jaffray (D1 - 6 & 8) I V Knight (D9) CATCHWORDS : PROCEDURE [97] - Supreme Court procedure - Practice under Supreme Court Rules - Pleadings - Defence - Extension of time for filing. DECISION : Grant leave to defendants (other than the Attorney-General) to file defence on or before 26 April 2002. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 10 APRIL 2002 3369/97 HIS GRACE METROPOLITAN, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITRESKI & ORS JUDGMENT - On the Filing of a Defence 1 HIS HONOUR: This is an application on behalf of the defendants other than the Attorney General ("the defendants") for a direction that the defence be filed and served on or before 26 April 2002. Representatives of both sides saw me in private chambers on 27 March 2002 at their request. At that time I was told that a revised defence would be delivered the following day. That did not occur. When I say a "revised defence", the situation is as follows. A form of defence has been delivered by the defendants to the plaintiffs, but not filed. The defendants indicated that the defence as delivered would require to be revised before filing, and it is this proposed revised defence that has been referred to as the revised defence. The making of a direction which in effect extends the time for the filing of a defence to 26 April 2002, slightly more than two weeks hence, is opposed on behalf of the plaintiffs. 2 There have been many delays in these proceedings. It is fair to say, now that the plaintiffs' house is reasonably in order, that the bulk of the earlier delays arose in the plaintiffs' camp. However, as a result of a direction in December 2001, the defence ought to have been filed in February 2002 and the delays since that time have been substantially in the defendants' camp. The reasons for the present application have been given to the Court by Mr McConnell, the defendants' solicitor, partly in his affidavit sworn 9 April 2002, which has been read on the application, and partly by Mr McConnell from the bar table. The part that is encompassed in the affidavit is that there was a sudden resignation of the President of the sixth defendant. The sixth defendant plays a central part in the litigation because it is the legal owner of the real property alleged to be the subject of a charitable trust. On part of that property stands the church of the parish, which in essence is in these proceedings in conflict with the hierarchical church. The Court has been previously informed of the possibility or likelihood of Mr Markovski's resignation, but there is no doubt that its actuality has been disruptive of the conduct of the sixth defendant's affairs and it is understandable that it has created a problem as to the defendants' solicitor taking instructions. Furthermore, Mr McConnell informs me that the reason that the revised defence was not delivered as I had previously been informed it would be was by reason of the fact that he and junior counsel formed the view that it was vital that it be settled by senior counsel before being handed over. A problem as to fees has delayed its settlement by senior counsel, but a conference is now scheduled so as to permit the document to be delivered on 26 April 2002. 3 I can say only that I agree that in these convoluted and difficult proceedings it is highly desirable that the pleadings to be relied on at the trial have the imprimatur on both sides of the senior counsel who are to be leading counsel at the trial. Whilst the further delay is unfortunate, I propose, despite the protests of Mr T G R Parker, of counsel for the plaintiffs, to accede to Mr McConnell's application and to direct that the defence be filed and served on or before 26 April 2002. 4 Two questions that are outstanding are the question of the verification of the defence, which I have previously reserved. That question will remain reserved. The defence when filed should, if at all possible, have the verification of a representative of the sixth defendant. If for some good reason that proves absolutely impossible at the time, it should be filed without the verification on the day directed and its verification on behalf of the sixth defendant attended to as soon as possible thereafter. The question of other verifications can be considered after that time. 5 I have been asked on behalf of the plaintiffs to indicate that no further extension of time will be granted. I shall, however, do nothing that binds or could be seen as binding my future exercise of the Court's discretion. However, in the circumstances I do regard it as of the utmost importance that the defence be filed in accordance with the direction now to be made and as the defendants have now through their solicitor solemnly told the Court it can and will be. 6 The last question which remains is the costs of this and earlier directions hearings from which the defence has been absent. However, I do not propose to deal with applications relating to the costs of those directions hearings until it is seen what occurs on 26 April 2002. As I am not sitting in the week following that, the matter will be before me for further directions in the week after namely, at 9.30 am on Tuesday, 7 May 2002. 7 Questions have been raised concerning notices to produce and subpoenas. I shall appoint 30 April 2002 before the Registrar for the return of subpoenas. As I fear that putting notices to produce in this matter before the Registrar would cause but a detour on the way to their coming to me, I shall say that any notices to produce may be made returnable before me at 9.30 am on 7 May 2002. That includes any existing notices to produce, provided notice is given of intention to make a call under them at that time. 8 I am gratified to be told by Mr McConnell that other aspects of the defendants' preparation for trial are proceeding, albeit the defence has not yet been finalised and filed. 9 The orders of the Court are: 1 Direct the defendants other than the ninth defendant to file and serve defence on or before 26 April 2002. 2 Reserve questions of verification of defence. 3 Reserve costs of directions hearing today. 4 Proceedings stood over to 9.30 am on 7 May 2002 before me for further directions. 5 Appoint 30 April 2002 before the Registrar for the return of subpoenas. 6 Direct that notices to produce may be made returnable before me at 9.30 am on 7 May 2002. ********** Last Modified: 05/30/2002 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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