New South Wales Supreme Court CITATION : Metropolitan Petar v Mitreski [2010] NSWSC 1183 HEARING DATE(S) : 10 August 2010 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 10 August 2010 DECISION : Proceedings adjourned. CATCHWORDS : PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Trial – adjournment – whether hearing should be adjourned for one day so that parties can conduct settlement negotiations CATEGORY : Procedural and other rulings His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia & New Zealand (first plaintiff) The Very Reverend Father Mitko Mitrev (second plaintiff) Lambe Mitreski (defendant) Pero Damcevski (second defendant) PARTIES : Boris Minovski (third defendant) Eftim Eftimov (fourth defendant) Mile Marcevski (fifth defendant) Macedonian Orthodox Community Church St Petka Incorporated (sixth defendant) Naum Despotoski (eighth defendant) Attorney-General for the State of NSW (ninth defendant) FILE NUMBER(S) : SC 97/25609 Mr TGR Parker SC w Mr RE Steele (Ps) COUNSEL : Ms L Goodchild (D1-6, 8) Mr M Izzo (D9) Sachs Gerace Lawyers (Ps) SOLICITORS : McConnell Jaffray Lawyers (D1-6, 8) Crown Solicitor (D9) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Tuesday, 10 August 2010 1997/25609 His Eminence Petar the Dicoesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski JUDGMENT (ex tempore) 1 HIS HONOUR: This, as all present know, is the seventh day of a trial that is set down for 20 days. It is the culmination of a protracted and bitter dispute between factions that have emerged in the Australia and New Zealand diocese of the Macedonian Orthodox Church, in particular in connection with that church at St Petka in Rockdale, New South Wales. 2 This morning Mr McConnell, solicitor for the defendants, applied for an adjournment for one day to explore the prospects of settling the dispute between the parties. The application is said to be made in the context that in the course of the evidence of the first plaintiff, Metropolitan Petar, yesterday an indication as to a willingness to appoint an additional priest was given and that has encouraged the defendants to think that there might be some prospect of reaching a compromise, particularly in the face of the prospective costs of further litigation. 3 For the plaintiffs their senior counsel, Mr Parker SC, has frankly expressed scepticism as to the prospects of achieving a compromise. That response is not unreasonable, given that, to date, there have been two mediations before senior and experienced mediators, which have been unsuccessful, and other attempts to settle even a single aspect of what is now a multifaceted dispute. But it is far from unknown for complex disputes to be settled during a final trial, notwithstanding the failure of earlier mediations. 4 In my relatively short time of involvement in this case, this is the first occasion on which I have heard of any prospect of compromise. 5 I am satisfied that were the opportunity to be granted to explore those prospects for a day the case can still be completed in the time allotted. As I have indicated previously, the adjournment being sought by the defendants, they run the risk that time otherwise allocated to them in connection with the case may be truncated by direction of the court. I include in that, for example, the completion of the cross-examination of the first plaintiff and the prospective cross-examination of the second plaintiff. That of itself is some guarantee that the defendants will exploit the opportunity, if given to them, sensibly and prudently. 6 Mr Parker has also submitted that negotiations could proceed, as they often can, concurrently with the continuation of the hearing. That submission is not without merit but, given the involvement of the numerous men and women of the Macedonian church communities in this dispute, I accept that it is desirable that if possible they be involved in giving the instructions, or at least approving the instructions for any settlement. 7 While compromise of litigation is usually a desirable result, in this case it is more so than usual. That desirability comes first of all from the very protracted nature of these proceedings to this point. The fact that about two and a half weeks of hearing, and the costs associated with that, remain; the fact that appeals are pending from earlier decisions of the court on separate questions; the fact that it is almost inevitable that whatever my decision there would be another appeal from it; and particularly the fact that this involves not just a commercial or financial dispute between commercial parties, but a deep rift in a community in which strong and genuine beliefs are held on both sides. 8 The remarks I am about to make are addressed to everyone in court, in particular the members of the community on both sides of this unhappy dispute. The benefits of achieving a settlement in this case for you are, I think, enormous. All parties save the costs of two and a half weeks of further litigation before me, and of the appeals pending and of the inevitable appeal from my decision. Only by compromise can you achieve finality of this dispute now. My decision will not achieve finality because the unsuccessful party will appeal. Indeed, even without an appeal from my decision, one of the parties that has already appealed may succeed on one of the appeals that are pending, and one of the real potential consequences of that is that I would not have decided the necessary points, and there would have to be another retrial after this. 9 More importantly than that, only by compromising can you restore the rift and bridge the schism that now exists in your community. If I make a decision, and one party wins and the other loses, that will not solve anything for your community. It will leave it divided. Only you, by reaching an agreement, can do something about bridging that gap. 10 Neither side should be confident at this stage that you are necessarily going to win or lose. Mr Parker has pointed in his opening to some arguments based on the decisions already made that would give the plaintiffs confidence. But Mr Walker has focussed on the fact that the trust that Hamilton J declared has, as the user of the church as well as the trustee, the Association. Resolving that competition between the purposes of the church and the religious purpose and the use by the Association is, I think, going to be a key dispute in this case and it is not by any means clear-cut. I certainly do not know – in fact I have very little idea – of how my mind is going to resolve that question at this stage and I do not think any party should be confident of success on that issue. Either could succeed, and whatever I decide, it is within the scope of that territory in which the Court of Appeal could easily come to a view different from mine. 11 If you are going to achieve a compromise, both sides are going to have to give more ground, give more room by way of compromise than you think you ought to or that you think appropriate. That happens in almost every case in which there is a settlement. It is often said that a good settlement is one in which both parties walk away unhappy. That is because neither of you will have won and each of you will have given up more ground than you think you ought to have. But that is the only way in which you are going to be able to achieve a settlement. And, just at the outset, can I suggest that one area in which that is very common is that questions of costs and costs orders usually have to go by the board in settlement negotiations, because normally they provide straws that break camels' backs if pressed. 12 To achieve a settlement in this case with the number of issues in dispute and the amount of energy that has been invested to this point will need everyone on both sides to be tolerant. It will also need everyone on both sides to exercise a large measure of forgiveness. Given the beliefs that you all share in your religion, that is something of which you should all be capable. Ultimately, you all have the same belief at heart, you all have the same end wishes at heart. You need to recognise that, and be prepared to forgive what has gone on up to this point on both sides. 13 On that basis, and with that encouragement, I will adjourn the proceedings until 10am tomorrow. I order that in the meantime the parties engage in bona fide endeavours to compromise the issues in dispute between them. I reserve liberty to apply by arrangement with my associate, in the meantime, if any party bona fide forms the view that further negotiations are pointless. Given what Mr Izzo has said, it may be that the Attorney-General can provide a useful intermediary in what will need to take place and it may be that the Attorney, as a relatively independent party, would be in the best position to decide whether the matter should come back on the basis that further negotiations are pointless. ********** 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.