Metropolitan Petar v Mitreski [2001] NSWSC 994

New South Wales Supreme Court

CITATION : Metropolitan Petar v Mitreski [2001] NSWSC 994 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3369/97 HEARING DATE(S) : 6 November 2001 JUDGMENT DATE : 6 November 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 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) JUDGMENT OF : Hamilton J

COUNSEL : T G R Parker (P1 & 2) M J Heath (D1 - 6, 8) SOLICITORS : Sachs Gerace Lawyers (P1 & 2) McConnell Jaffray (D1 - 6, 8) CATCHWORDS : CHARITIES [140], [143], [146] - Administration and control by Court - Parties - Attorney General - When necessary or proper party - When not necessary or proper party - Whether plaintiff or defendant. LEGISLATION CITED : Charitable Trusts Act 1993 s 6 CASES CITED : Metropolitan Petar v Mitreski [2001] NSWSC 976 Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575 DECISION : Attorney General joined as defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 6 NOVEMBER 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: I delivered judgment concerning the constitution of these proceedings on 31 October 2001 (Metropolitan Petar v Mitreski [2001] NSWSC 976 ("my judgment")), and proposed two alternative courses by which the proceedings might continue for consideration of the parties and the Attorney General, who I indicated must in some form be a party to this suit for it to be properly constituted. This morning Mr Lancaster of counsel has appeared for the Attorney General and has on the Attorney General's behalf indicated a preference for the second course I suggested, namely, that the Attorney General should be joined as a defendant to the proceedings. The Attorney General indicated to the Court that he consented to be joined as a defendant. He also consented to the Court granting leave to the plaintiffs under s 6 of the Charitable Trusts Act 1993 to maintain the proceedings. Inherent in this consent is that the Attorney General acknowledges that the occasion has arisen for the Court to make such a grant of leave if so minded. The plaintiffs and the defendants have, as I understand it, also indicated a preference for this course, and have certainly offered no opposition to it. The Attorney General has also welcomed my suggestion that orders should be made in due course to limit the degree of his participation in the suit and attendance at the trial. I shall make appropriate orders in due course. 2 Mr T G R Parker, of counsel for the plaintiffs, has indicated a desire to recast the plaintiffs' statement of claim. That document I described in my judgment as unruly. I should certainly welcome a recasting of the statement of claim, first, to ensure that it embodies the plaintiffs' case as now sought to be put forward and, secondly, if there can be some reduction in the unruliness of the document that would be welcomed by the Court. I propose to stand the matter over for three weeks so that the plaintiffs may bring forward a proposed further amended statement of claim and apply for leave to file it by reference to the document that will by then have been formulated. 3 The last question that has been agitated before me this morning is the question of the costs of the notice of motion to strike out the statement of claim by reason of the defective constitution of the suit. Mr Parker has submitted I should reserve those costs to permit them to be considered by me later in light of the future progress of the suit. Mr Heath, of counsel for the defendants, has opposed that course, urging me to deal with the costs now so that less loose ends are left for later in the proceedings, which have already proved complex and unwieldy. In my view Mr Heath's argument should prevail and I should deal with the costs now. 4 Mr Parker has argued against an order for the costs of the motion against his clients despite the fact they were unsuccessful in the motion. Most significantly he has pointed in support of that opposition to the clouding of the issues by the fact that the Attorney General in correspondence (which was in evidence before me) and by other communications to the parties had taken the view that his presence in the suit was unnecessary on the ground that it was a suit that fell within the doctrine in Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575. Whilst there were issues of some difficulty in the question of the proper parties to this suit, my view is clear that this is not a suit within the Monsen doctrine. It is not to recover or protect property of the trust. The relevant claim in it is to enforce a charitable trust by having the existence of that trust declared, its ambit determined and such other orders made as are necessary to ensure that the property of the trust is used within its ambit. Such proceedings are not and never have been Monsen proceedings. Were the proceedings Monsen proceedings then the joinder of the Attorney General would not have been necessary. In other words, it is my view that it is not a result of s 6 of the Charitable Trusts Act 1993 that cases within the Monsen doctrine require the joinder of the Attorney General. 5 Mr Parker is right in saying that some determination of the questions as to the parties would have been necessary in any event in light of the Attorney General's reluctance to grant a fiat without indication from the Court that that was a necessary or appropriate course. However, it was quite open to Mr Parker's clients to take the correct view that the Attorney General was a necessary party and to join with the defendants in asking the Court to give an indication to that effect to the Attorney General. They followed the different course of taking out a motion to strike out the statement of claim for want of parties and pursuing that motion with vigour and, if I may say so in respect of Mr Parker's submissions to the Court, some refinement. They were unsuccessful in those endeavours and it is my view that the ordinary rule as to costs following the event should prevail in respect of this motion. I propose to order that the plaintiffs pay the defendants' costs of the motion to strike out the statement of claim. ********************************