New South Wales Supreme Court CITATION : Metropolitan Petar v Mitreski [2003] NSWSC 594 HEARING DATE(S) : 30 June 2003 JUDGMENT DATE : 1 July 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Interlocutory regime for use of church determined. CATCHWORDS : EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Use of church property subject to charitable trust for hierarchical church pending final determination of issues. Bishop Petar v Mitreski NSWSC 13 August 1997 unreported CASES CITED : Bishop Petar v Mitreski NSWSC 20 February 1998 unreported Metropolitan Petar v Mitreski [2003] NSWSC 262 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 B A J Coles QC and R E Steele (Ps) COUNSEL : B J Walker SC and M J Heath (D1 - 6 & 8) N L Sharp (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, 1 JULY 2003 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: In these vexed proceedings, I have determined certain questions pursuant to an order for separate decision: Metropolitan Petar v Mitreski [2003] NSWSC 262 ("my judgment"). The central question determined by that judgment was the terms of the charitable trust under which the St Petka Church at Rockdale and associated real property is held. I found that the property is held by the sixth defendant upon trust to permit the trust property to be used by the Macedonian Orthodox Church St Petka Rockdale as a site for a church of the Macedonian Orthodox religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox religion: see my judgment [102]. That determination leaves other questions to be determined in the proceedings and I have set the matter down for a further trial before me in March 2004. The plaintiffs now apply for a change of interlocutory regime bearing in mind the determination that has been made of the nature of the trust. 2 There is at present in force an interlocutory regime that has stood for more than five years. That regime was set by two interlocutory judgments of mine in these proceedings: Bishop Petar v Mitreski NSWSC 13 August 1997 unreported ("the first interlocutory judgment") and 20 February 1998 unreported ("the second interlocutory judgment"). In addition, a separate suit was brought to restrain certain individuals from carrying out acts of violence in the church. In those proceedings, #1296/98, the 11 named defendants gave undertakings to the Court to desist from their behaviour. It is a gratifying aspect of the case that those undertakings have been meticulously kept to date. 3 In the first interlocutory judgment the plaintiffs had applied for the restraint of Father Dzeparovski from acting as priest in the church and for orders that would restore the second plaintiff, Father Mitrev, who was appointed by the Bishop to act as parish priest in the church. That application I refused. I found that there was a prima facie case that Father Mitrev had been invalidly dismissed by the sixth defendant as parish priest of the church. However, I found that that prima facie case was not strong and, on the balance of convenience, I refused the application. 4 The second interlocutory judgment resulted from a further application by the plaintiffs to restrain Father Dzeparovski from acting on the basis that he had been defrocked, a proposition which was denied. There did seem indeed to be a prima facie case that the steps taken to defrock Father Dzeparovski had not in fact been efficacious. By that time, as I say, the restraint by way of undertakings of violence taking place in the church was already in place. In the fraught situation, on the balance of convenience, I declined to restrain Father Dzeparovski from acting, so that the priest chosen by the local congregation could continue to officiate. 5 At the time of the first interlocutory judgment 13 August 1997 I had already fixed the matter for trial before me within a couple of months. That fixture was not able to be maintained. Even when I delivered my second interlocutory judgment in February 1998, it was anticipated that the trial would take place long before it did. The trial did not in fact take place until the second half of 2002. I should put on record at once that that was not caused by the unwillingness or inability of the Court to provide time for a trial in the interim. There were long delays by the parties in their preparation of the case. Initially, these delays were principally on the plaintiffs' side of the record. Subsequently, when the plaintiffs improved their performance in their preparation for trial, the defendants (in which expression I do not include the Attorney General) also proved to be tardy in getting ready for trial. That is why the interlocutory regime in force has lasted so long. It has served well in that, at least, the church has continued to function and the violent disorder, of which there had been a deal in 1997 and at the start of 1998, ceased. 6 The position has changed in a number of ways since that time. Father Dzeparovski has ceased to officiate. The eighth defendant, Naum Despotovski, has officiated as priest. However, he is now under the official interdict of the hierarchical Church. Now that the terms of the trust are declared, the plaintiffs have sought interlocutory relief principally in two forms. The first is the restraint of Naum Despotovski from continuing to officiate at the church. The second is an order in sweeping terms restraining the defendants from preventing the Bishop and Father Mitrev from entering the church at any time and from preventing Father Mitrev carrying out his function as the parish priest appointed by the Bishop. 7 Every effort has been made to have the parties come to an agreement as to the form of an ongoing interlocutory regime. That has included an order under s 110K of the Supreme Court Act 1970 that that matter be mediated and a mediation has occurred before Registrar Berecry. The mediation was not successful in that it did not produce an agreed regime. However, the mediation and diligent efforts that have continued to be made by the legal representatives on each side have narrowed the field of conflict and brought what I have to decide down to a much narrower compass than what was initially sought on behalf of the plaintiffs. 8 Both Naum Despotovski and the sixth defendant have recognised that, in view of his ecclesiastical status, he cannot now continue to officiate at the church. This decision is wise and I think inevitable. Now that the terms of the trust are declared, it seems to me that it is clear that a priest under interdict cannot be permitted to act at a church which is for the worship of the institutional Macedonian Orthodox religion without there being a breach of trust. The defendants have argued that there should be no injunction against Naum Despotovski in light of his stated and actual cessation of participation in services at the church. However, as that is very recent and to make the situation quite plain, I think it prudent that I should restrain Naum Despotovski from officiating in the church. 9 The defendants have made another very important concession. They not unnaturally wish to have a priest approved by and acceptable to them officiating at the church. There was a conflict as to how this priest should be selected. There was a fear that any priest nominated by the Bishop would, in the emotional regime which prevails, be unacceptable to the defendants. What is worse, there was a fear that any priest who indicated willingness at the request of the defendants to officiate at the church would be unacceptable to the Bishop and that that unwillingness might be reinforced by some ecclesiastical interdict upon him. In the face of this, the defendants have made a considerable compromise and, it should be said, the Bishop also has made a compromise which is of considerable assistance. The sixth defendant has indicated that it will accept on an interim basis as a priest a Father Alexovski, at present not in Australia but in Macedonia. Furthermore, it will take all steps necessary to appoint him on a temporary basis as a priest of the parish. This is necessary, apart from anything else, for him to obtain permission to enter Australia in terms which would enable him to carry out his office and, as I understand it, the sixth defendant will also attend to his remuneration. It is also part of the arrangement that the Bishop will facilitate one of three named priests officiating from time to time in the church pending Father Alexovski's arrival. 10 The bone of contention remains that the plaintiffs are insistent that Father Mitrev be readmitted to the church to perform services and that some arrangement be made for the use of the church at alternative times for each of Father Mitrev and the new priest to conduct services. The defendants have strongly pressed on me that the interlocutory regime of exclusion of Father Mitrev should continue, particularly now that they are willing to accept a priest nominated by the Bishop as an interim priest at the church. They say that this is important from the point of view of the maintenance of order and so that the defendants will not be compelled to work in close cooperation with a person who has been a source of controversy. I also bear in mind that the president of the sixth defendant, Mr Dimcevski, has deposed that if Father Mitrev returned to the St Petka community, his safety could not be assured in the light of past history. No cross examination of Mr Dimcevski on that statement was sought or carried out and, indeed, for present purposes past history would suggest that Mr Dimcevski's word must be taken as having some substance. On the other hand, Father Mitrev has until now held services at a church in Carlton which has been available for the purpose, for those members of the parish who prefer to attend services conducted by him. This arrangement is coming to an end as the use of that church is being withdrawn by the owners for their own purposes. 11 The decision is a very difficult one. The present interlocutory regime has been successful. As I originally decided, there is a prima facie case that Father Mitrev's dismissal as priest was not valid and he still validly holds that office. Equally, there is a prima facie case that the dismissal was valid and he does not hold the office. The decision that I have come to in all the circumstances is, however, that some use of the church premises by Father Mitrev should be permitted. However, rather than there being an alternation of services on Saturdays and Sundays between the two priests, the view I take, particularly in view of the fact that the defendants are now prepared to accept a priest nominated by the Bishop, is that it is the priest who is in temporary office as priest at the church who ought conduct the usual weekly services on Sundays. However, if Father Mitrev desires to conduct services for his congregation on Saturdays, either regular celebrations of the liturgy or services by way of wedding, funeral or otherwise, he ought be able to do that. In view, however, of the prima facie case that he has been dismissed as parish priest, I shall not make any order that would compel the sixth defendant at this stage to remunerate Father Mitrev for carrying out any function. 12 I made it quite plain early in the hearing of the application that I was not minded in this delicate situation to allow unlimited access to the church by Father Mitrev or, indeed, by the Bishop. In that context, the other thing that is asked of me is that the Bishop should be permitted to attend the church on two occasions to carry out a preliminary reconsecration and a second more formal reconsecration. The Bishop believes this is necessary because of the desecration of the church by the celebration of services by clergy not qualified to celebrate them. The defendants argue that it is not clearly established that such a reconsecration is necessary, although, as I understand it, they do concede that the Bishop holds that belief. In those circumstances, I am prepared to permit the Bishop to attend the church on two occasions to carry out services of reconsecration. In doing this, I should say at once that I am not expressing any view as to whether or not reconsecration is necessary. Those occasions should be on Saturdays when the church is in any event available to Father Mitrev. The mechanism for permitting the access that I contemplate to the Bishop and Father Mitrev will be a variation of undertakings they have given to the Court and which are still in force not to enter the church. In addition, the services of reconsecration should be limited to what is liturgically necessary for the purposes of reconsecration and there should not be associated with them any other liturgical or general event. 13 There are aspects of this regime that will undoubtedly be distasteful to both the plaintiffs and the defendants. I hope that the parties to the proceedings and other participants in the life of the church of St Petka Rockdale will, despite this, conduct themselves with the same restraint which they have worthily shown since the present interlocutory regime was put in final place early in 1998. I have attempted to facilitate this by providing that it is on one day of the week that Father Mitrev may use the church if he chooses and that the Bishop may attend for limited purposes. I hope that persons who are not supporters of those gentlemen will simply refrain from attendance at or near the church on those days. Equally, I trust that the supporters of those gentlemen will continue to refrain from attending the church at other times, or generally in circumstances where conflict or disturbance may arise. 14 I require an undertaking as to damages to support the restraint of Mr Despotovski. The undertaking as to damages is given on behalf of the plaintiffs by Mr Coles of Queen's Counsel. That can also be incorporated in the minutes. Short minutes should be brought in to encompass these changes to the interlocutory regime. ********** Last Modified: 07/14/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.