Metropolitan Petar v Mitreski [2004] NSWSC 122

New South Wales Supreme Court

CITATION : Metropolitan Petar v Mitreski [2004] NSWSC 122 HEARING DATE(S) : 3 March 2004 JUDGMENT DATE : 3 March 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Fixture vacated.

CATCHWORDS : PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application - Refusal of adjournment likely to lead to defendants being unrepresented in proceedings which are difficult, complicated and technical. 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) V Colaluce (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

WEDNESDAY, 3 MARCH 2004

3369/97 HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITRESKI & ORS JUDGMENT 1 HIS HONOUR: This is an application to vacate a second trial in this matter fixed to commence on 15 March 2004. An earlier trial of questions relating to the constitution of the trust was heard by me and judgment delivered in 2003: Metropolitan Petar v Mitreski [2003] NSWSC 262. The situation surrounding this application is, as with so many other things relating to these proceedings, a vexed one. 2 The defendants' solicitor and counsel who have conducted the matter thus far are owed a large sum, in excess of $250,000. In November 2003 the plaintiffs' solicitors wrote to the defendants' solicitors and the statement of claim was further amended claiming squarely as a breach of trust the use of the funds of the trust to conduct the defence of the proceedings. It had earlier been signalled (no later than April 2003) that use of the funds in this fashion was regarded by the plaintiffs as a breach of trust. The defendants' solicitor has sworn, and I accept his word, that his state of mind was that the proposition then put to him was unsound and he did not come to the view that the defendants' legal representatives could not continue to act with any confidence in their costs being met from the trust fund until his mind was focused by what occurred in November 2003. It may be that this is unfortunate, but I accept his word that this was his state of mind. 3 Since that time steps have been taken to obtain through the Pro Bono Scheme of the Bar Association advice which would found an application under s 63 of the Trustee Act 1925 to determine whether or not the sixth defendant would be justified in using the trust fund in the defence of the proceedings. Criticism has been made of the rate at which this application has proceeded. What is now occurring is that the relevant advice has been obtained from Mr Rayment of Queen's Counsel. A public appeal has now been made for funds to be contributed for costs by 10 March 2004 and the evidence indicates that, unless enough funds are raised by that time to obviate the necessity for recourse to the trust fund, the application for judicial advice will then proceed. 4 The Court is faced with a very difficult situation. The time available for hearing this application is constrained. Mr T G R Parker, of counsel for the plaintiffs, has put the objections to an adjournment being granted succinctly and forcefully, as is his wont. 5 The situation is that there has been delay on the defendants' part in facing up to this situation. It would have been much better had it been faced up to in mid 2003, so that it could have been resolved before the process of resolving it made inevitable the unpalatable choice the Court faces, that is, a trial in March with the defendants unrepresented or the vacation of the fixture and the adjournment of the trial to August, when I can next give it the necessary time. 6 Whilst I do not endorse all the criticisms made by Mr Parker of the defendants and their legal representatives, on the other hand, it would have had much more fortunate if the application for the vacation of the hearing had been faced much earlier. On the other hand, this is a matter relating to the administration of charitable trusts. It is difficult. It is complicated. It is technical. If the defendants are forced to face a trial without counsel, whom they may well otherwise be able to obtain, it will have two serious consequences. One is from the point of view of the Court, which will face this difficult matter without the assistance of counsel. The other, and in the end more important, consequence is the possibility of injustice to the defendants in this situation. I have also borne in mind that this matter has progressed slowly over the years owing to the tardiness of both sides, including over a substantial period of time, the plaintiffs. 7 The conclusion I have come to in all the circumstances is that the proper exercise of my discretion is to vacate the hearing fixed for 15 March 2004. The matter will be refixed before me in August 2004. I am too pressed at this moment to select dates. It is apparent there will be further interlocutory applications made necessary by the postponement. I shall keep some of the time freed by the vacation of fixture for the hearing of those interlocutory applications. I have indicated that it will be necessary to provide a proper regime for the protection or assurance of the funds of the trust in the meantime and there may be further interlocutory relief necessary in relation to liturgical matters. These can be dealt with by me later in the month. 8 There is a strong case that the defendants must in the long run bear the costs thrown away by the postponement. However, partly because of the constraints of time at the moment, but also because there will have to be a lengthy consideration of a number of costs matters at the end of the coming trial, I propose to reserve the costs of this application and of costs thrown away by the postponement. Whilst I have just mentioned the end of the trial, I am not ruling that the matter cannot be brought forward under the reservation of leave at an earlier point of time, if circumstances arise which indicate the appropriateness of that course. …oOo… 9 Mr Parker has reminded me that he did submit to me during his address that I should not make an immediate vacation of the fixture, but should deal with the interlocutory relief to which I have just referred as terms of the vacation. If there were time to do that, I should think that course appropriate. However, the time available for those matters to be considered, if they are to be considered at a little more leisure than it has been possible to consider this application, would be during the actual time of the fixture, which is too late a time to determine whether there is to be vacation or not. Again despite the force in what Mr Parker has said, the time constraints dictate there is no realistic course available but to vacate the fixture and to deal with the interlocutory questions at a slightly later point in time. I have already indicated, without making any comment upon the stances that have so far been taken by the parties, about which I am not entirely clear, that the Court will require a satisfactory regime for the protection of the trust funds in the meantime.