New South Wales Court of Appeal CITATION: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 3) [2007] NSWCA 143 HEARING DATE(S): 25 July 2006 JUDGMENT DATE: 19 June 2007 JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Hodgson JA at 1 DECISION: The Notice of Motion filed 31 October 2006 is dismissed with costs. CATCHWORDS: COSTS – Notice of Motion of respondent seeking to vary Orders of Court of Appeal by including additional subparagraph – Order sought to include costs on application for special leave to appeal to the High Court of Australia – matter not raised during course of the appeal – whether Court should vary Orders His Eminence, Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (First Appellant) PARTIES: Very Reverend Father Mitko Mitrev (Second Appellant) Macedonian Orthodox Community Church St Petka Inc (First Respondent) Attorney-General for the State of New South Wales (Second Respondent) FILE NUMBER(S): CA 40313/06 TGR Parker SC & R E Steele (Appellants) COUNSEL: GO Blake SC (First Respondent) C Tassone (Solicitor) (Second Respondent) Sachs Gerace Lawyers (Appellants) SOLICITORS: McConnell Jaffray (First Respondent) Crown Solicitor (Second Respondent) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 3369 of 1997 LOWER COURT JUDICIAL OFFICER: Hamilton J LOWER COURT DATE OF DECISION: 27 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Metropolitan Petar v Mitreski [2006] NSWSC 336 - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40313/06 BEAZLEY JA GILES JA HODGSON JA 19 June 2007 HIS EMINENCE METROPOLITAN PETAR, DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX CHURCH OF AUSTRALIA AND NEW ZEALAND & ANOR v THE MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED & ANOR (No 3) Judgment 1 THE COURT: By Notice of Motion filed 31 October 2006, the first respondent (the Association) seeks a variation of the Orders made by the Court in proceedings CA 40313/06. The variation sought is in the following terms: "That the orders made by the Court of Appeal in these proceedings on 6 October 2006 be varied by the inclusion of the following additional subparagraphs in paragraph 5: '(f) reasonable legal costs incurred in an application for special leave to appeal to the High Court of Australia from this judgment and if applicable the further judgment on the question of costs, and, if special leave to appeal is granted, the appeal …'" 2 The Notice of Motion is supported by two affidavits of Keith Stevens McConnell, the solicitor for the Association, dated 1 and 7 November 2006. In his affidavit of 9 November 2006, Mr McConnell deposes to the Association having received legal advice that this Court's judgment contained appellable errors and that there were proper grounds for making an application for special leave to appeal to the High Court of Australia. That application was subsequently filed on 6 November 2006 and the application for special leave, together with the accompanying documents, were then exhibited to Mr McConnell's affidavit of 7 November 2006. The application for special leave was heard by the High Court on 8 December 2006 and leave was refused. 3 In its written submissions in support of the Notice of Motion made on 7 November 2006, the Association submits that the Orders made by the Court of Appeal on 6 October 2006, if not varied, will seriously prejudice the claimant's application for special leave to appeal. The Association also submits that the Notice of Motion should be heard by this Court and not by a primary judge, because, inter alia, the proceedings are still before the Court and it will avoid the proliferation of appeals. 4 The Association also relied upon there being urgency as at that stage, as the Judicial Advice had not been given and costs were being incurred in respect of the pending application for special leave. 5 Judicial Advice has now been given and the application for special leave has been dealt with, leave being refused, so that the question of urgency raised by those two matters is no longer relevant. 6 The Association recognises in its submission that this application will involve the determination of factual matters in support of the application, with oral evidence including cross-examination. 7 The appellants (Metropolitan Petar) submit that, given that the issues which arise on the application, including the need to explore factual issues, the Notice of Motion would be more conveniently dealt with by the Court at first instance. Accordingly, it seeks an order that the Notice of Motion in the Court of Appeal be dismissed with costs but without prejudice to any application the first respondent may wish to make in the court below. 8 The second defendant (the Attorney-General) urges this Court to determine the application and opposes the order sought. The Attorney-General submits that the payment of significant legal costs in pursuit of the special leave application would involve an irrecoverable reduction in the assets alleged to be trust assets. It submits that the Court ought not make any order in respect of those costs, particularly having regard to the concern expressed in the Court's judgment that care must be taken to protect trust property: see judgment at [85]. The Attorney-General also submits that the Court would not vary its orders in the way proposed unless it was of the view that the special leave application had "very substantial prospects of success". As events have turned out, that question has now been determined. 9 The Court considers that the orders sought in the Notice of Motion should be refused. The matter was not raised during the course of the appeal. At the time that this matter was before the Court, the Association, and for that matter, the appellants, would have had in prospect an application for special leave if either was not successful on the appeal. That is a normal prospect in litigation and would not have been an unexpected consequence of a loss in this Court, given that difficult issues have arisen between the parties, both of whom have demonstrated that they will engage in such litigious processes as they consider and/or are advised are appropriate to protect their claimed rights and interests. 10 The parties gave extensive consideration to the orders that each contended the Court ought to make in the matter. If the Association had wished to protect itself in respect of litigation including appeals to the High Court, it should have raised the matter to enable the Court to give it proper consideration at the time. It would have been a relevant consideration in the Court's determination as to whether it should make orders restraining the use of the non-Schedule A property and the extent to which it should do so. It is the Court's view that the Association should not now raise the matter as an afterthought. Our view in this regard is reinforced by the fact that special leave to appeal to the High Court was refused. Accordingly, the Notice of Motion filed 31 October 2006 is dismissed with costs. ********** 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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