Metropolitan Petar v Mitreski [2004] NSWSC 401

New South Wales Supreme Court

CITATION : Metropolitan Petar v Mitreski [2004] NSWSC 401 HEARING DATE(S) : 11 May 2004 JUDGMENT DATE : 11 May 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Order for further particulars made.

CATCHWORDS : PROCEDURE [742] - Contempt, attachment and sequestration - Disabilities of persons in contempt - Refusal of court to hear - Whether there must be formal finding of contempt - Where Court can see that order has plainly been disobeyed. CASES CITED : Application of Macedonian Orthodox Community Church St Petka Incorporated [2004] NSWSC 388 Young v Jackman (1986) 7 NSWLR 97 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) FILE NUMBER(S) : SC 3369/97 T G R Parker and R E Steele (Ps) COUNSEL : G O Blake SC (D1 - 6 & D8) N J Owens (Solicitor) (D9) Sachs Gerace Lawyers (Ps) SOLICITORS : McConnell Jaffray (D1 - 6 & 8) I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 11 MAY 2004

3369/97 HIS EMINENCE PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA & NEW ZEALAND & ORS v LAMBE MITRESKI & ORS JUDGMENT 1 HIS HONOUR: In these proceedings, Palmer J has now delivered judgment on a judicial advice application concerning the use of trust funds by the defendants in the defence of the proceedings. His Honour has authorised the use of those funds up to and including 9 July 2004 (Application of Macedonian Orthodox Community Church St Petka Incorporated [2004] NSWSC 388), so the defendants' legal representatives are now funded to continue preparation of the case. 2 A motion is brought before me today for further particulars and consequential adjustments of the directions I gave on 23 March 2004. I have heard argument concerning the appropriateness of further particulars being ordered and I have formed the view that further particulars should be ordered in respect of all but one of the questions relating to which the defendants have brought the application. I am proposing to direct that those particulars, to be identified in an annexure to my orders, be given by 20 May 2004, as the matter is before me for further directions on 21 May 2004. I recognise that it may be very difficult to do this in relation to some of the particulars requiring specification of particular provisions of Church law, and I shall bear that in mind when the matter comes to be reviewed on 21 May 2004. The view that I take on that day will be governed by my view as to the vigour of the efforts which have been made in the meantime to comply. 3 Arguments were put to me that particulars should not now be ordered because of the lateness of the day and the earlier opportunity of the defendants to request them. But, in the circumstances, I think that the appropriate course is for every possible step to be taken as quickly as possible for all matters still in dispute between the parties to be determined in the new trial of the matter commencing in August. 4 Furthermore, Mr T G R Parker, of counsel for the plaintiffs, put to me that I should not accede to any application by the defendants by reason of their being in contempt of court. Certain affidavit evidence was laid before me which relates to certain activities in buildings on the trust property over Easter which raise questions as to whether there was a breach of an injunction granted by me restraining the holding of church services by persons unauthorised to do so. Mr Parker referred me to the decision of Young J (as His Honour then was) in Young v Jackman (1986) 7 NSWLR 97. However, this is not a case in which there has been a finding of guilt of contempt, nor is it a case of the kind referred to by Young J in that judgment where, although there is not a formal finding, the Court can plainly see that a party is in contempt. In my view, I could not form a view on the material laid before me, without further evidence, including expert evidence, as to whether or not there had, in fact, been a contempt of court by reason of the activities referred to in the affidavits. 5 In those circumstances, I propose to give directions which order further and better particulars as I have indicated and other adjustments of the programme. The whole matter will require further review when it comes back before me on 21 May 2004.