Mitreski v His Eminence Metropolitan Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2009] NSWCA 319 (10 September 2009)

Last Updated: 27 October 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Mitreski v His Eminence Metropolitan Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2009] NSWCA 319


FILE NUMBER(S):
40202/09

HEARING DATE(S):
10 September 2009


EX TEMPORE DATE:
10 September 2009

PARTIES:
Lambe Mitreski
His Eminence Metropolitan Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand

JUDGMENT OF:
Allsop P Tobias JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):


LOWER COURT JUDICIAL OFFICER:
Young CJ in Eq

LOWER COURT DATE OF DECISION:
4 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Metropolitan Petar v Mitreski [2009] NSWSC106

COUNSEL:
B Walker SC, S Free (Applicants)
R Lancaster, M Izzo (Respondents)

SOLICITORS:
McConnell Jaffray Lawyers (Applicants)
Attorney-General (Respondents)

CATCHWORDS:
APPEALS – leave to appeal - appeal from determination of separate questions – full disposition of hearing of first instance trial before exercise of the appellate jurisdiction
PROCEDURE - judgments and orders - effect of judgments - determination of separate questions - whether reasons of trial judge went beyond scope of separate questions – whether reasons foreclosed issues in the proceedings – whether failure to afford procedural fairness – answers given to separate questions do not preclude any aspect of further hearing at first instance
PROCEDURE - judgments and orders - effect of judgments - determination of separate questions - whether trial judge failed to answer many of the questions placed before him in the separate issues –unanswered questions remain live in the litigation at first instance – no need to invoke the appellate jurisdiction
APPEALS - application for leave to cross-appeal – revival of application previously dismissed by Court of Appeal – previous orders and declarations - whether orders and declarations below interlocutory – relevance of evidence for rest of hearing – whether answers to questions will preclude evidence being led

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
Bass v Permanent Trustee [1999] HCA 9; 198 CLR 334
Blair v Curran [1939] HCA 23; 62 CLR 464
Dubbo Base Hospital v Jones [1979] 1 NSWLR 225
Fidelitas Shipping v Export Chleb [1966] 1 QB 630
Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478
Metropolitan Petar v Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 263

TEXTS CITED:


DECISION:
1. Summons for leave to appeal from the orders of Young CJ in Eq dismissed.
2. Application to renew the application for leave to appeal from the orders of Hamilton J refused.
3. The applicants (being the 1st to 6th and 8th defendants in the Equity Division) pay the costs of the respondents (the plaintiffs below) of summons and of the application for leave to renew the application for leave to appeal.
4. The 1st to 6th and 8th defendants pay the Attorney-General’s costs of the summons and of the application for leave to renew the application for leave to appeal; the property in Schedule A to the judgment of Hamilton J dated 4 April 2003 may be resorted to for such costs as a last resort.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40202/09

ALLSOP P

TOBIAS JA

HANDLEY AJA

Thursday 10 September 2009

LAMBE MITRESKI v HIS EMINENCE METROPOLITAN PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND

Judgment

1 ALLSOP P: Before the Court is a summons seeking leave to appeal from orders made by the then Chief Judge in Equity in March 2009 in Metropolitan Petar v Mitreski [2009] NSWSC 106. Also informally before the Court is an application made to the Court through written submissions and oral address to revive an application for leave to cross-appeal, from orders made in 2003 by Justice Hamilton in these proceedings in Metropolitan Petar v Mitreski [2003] NSWSSC 262.

2 I will not lengthen the reasons necessary today by any detailed background of the dispute. The parties are all members of the Macedonian Orthodox Church, though they are in deep disagreement with each other as to the use of premises in Rockdale in Sydney for those purposes and other attendant questions concerning the conduct and operation of the church since the mid-1990s.

3 The dispute has been in the Court now for twelve years. It has proceeded through a number of stages before judges of the Equity Division, primarily by reference to the mechanism of separate questions. Whether or not that procedure has, with the benefit of hindsight, ultimately been successful may be a matter for debate. That is not said in any way critically of either the parties, their legal representatives or the judges who have decided to undertake that process, but it is an important preliminary comment as to one aspect of what I wish to say in relation to the disposition of the current applications.

4 In Metropolitan Petar v Macedonian Orthodox Community Church St Petka Inc: [2007] NSWCA 263, this Court, differently constituted, made clear its view that there should be a hearing in the Equity Division taken to finality before substantive appeals being brought to this court. Mr Walker SC, who appears with Mr Free for the applicants, the defendants in the Equity suit below, recognised in his submissions the necessity to deal with that threshold issue, being the considered and expressed view of this Court two years ago that the administration of justice and the interests of the parties was to be best served by the quelling of the controversy in full at first instance before the invocation of appellate jurisdiction.

5 Mr Walker today clearly and powerfully, if I may say so, put two fundamental reasons why this court should in effect change its approach. First, he identified what was seen to be a central difficulty with the Chief Judge in Equity’s reasons at [397]. There the Chief Judge said the following:

“397 Most of the provisions of church law advanced here do not assist on the issue. However, Article 90, the provision advanced in oral argument, deals with the composition of the Church Committee. It states the members who comprise the Committee, including (at (a)), the parish priest. In the case of a larger parish, this includes ‘all parish priests’. This Article does confer a right on the priest to membership of the committee, which has been breached by excluding the priest from the executive committee.”

6 The reference to breach was described by Senior Counsel as inexcusable in that the questions posed before the Chief Judge did not include the question of breach for his Honour’s disposition. His Honour indeed recognised that in [7] of his reasons.

7 The order made by way of answer to questions by the Chief Judge was as follows:

“The question should be answered by saying that the terms of the relevant trust do not justify the exclusion of the Bishop from the parish Church of St Petka nor the employment of any priest not authorised by the Bishop nor the closing, alteration, addition to the Church building or its ornaments without the Bishop’s approval.”

8 The complaint was that a finding of breach was a decision which foreclosed issues in the proceedings and, secondly, the fact that it had occurred in circumstances where the matter was not put forward for disposition legitimately evoked a real sense of grievance of a failure to afford procedural fairness. Thus it was said that this Court should now bring up this aspect of the matter to correct what was seen to be both an injustice and an impediment to the further conduct of the proceeding.

9 The second fundamental reason to overcome the expressed view of the Court in 2007 was that the Chief Judge failed, it was said, to answer many of the questions placed before him in the separate issues. Thus it was said that the preliminary hearing had miscarried in a way that called for this Court now to clear the ground by reference to that incomplete and unfair, it was said, findings by the Chief Judge.

10 The reasons of the Chief Judge at [397], to the extent that there is reference made to breach, arguably do not appear to amount to reasoning that is legally indispensable to the conclusion made by his Honour in the order made. That is the better view. I refer to Blair v Curran [1939] HCA 23; 62 CLR 464 at 532-533. That being the case, it does not seem to me, though we are not called upon to express a final view, that those matters preclude any aspect of the further hearing. This was accepted by the respondents, the plaintiffs below, that there is no issue estoppel in relation to breach to be taken from the reasoning in [397] in light of the terms of the order. In the light of that concession, which for the reasons I have given appears to be correctly made, there is no impediment in the further conduct of the hearing at first instance brought about by the terms of [397].

11 To the extent that his Honour may have expressed himself in a way at [397] inconsistently with his earlier expression in [7], that can be perhaps better seen, if I may respectfully put it, as a mode of expression to express the content of the terms of the trust rather than the consequences. It may be seen as an expression of consequences but on a suppressed assumption of certain matters which are not in dispute as I would understand it. The question of breach may well be live at the hearing of the matter at first instance but not on the basis of the suppressed assumption within the paragraph and the correctness of the conclusion on that hypothesis, that the Chief Judge reached.

12 Therefore I do not see, once the matter is fully explained to the parties and in the light of these reasons, that there is any call to invoke the appellate jurisdiction of the court to remedy a perceived grievance as to a failure to afford procedural fairness. I do not see that that is what the Chief Judge did and, in any event, the trial will be before a member of the Equity Division and not the Chief Judge, who is now a Judge of Appeal.

13 The second issue (that his Honour did not answer some questions) need not be discussed at any length. To the extent that some of the questions were not answered, they remain unanswered and remain live in the litigation. I do not see a need to invoke the appellate jurisdiction to deal with questions not answered in the light of the fact that a contested hearing in the Equity Division will otherwise proceed in any event.

14 The question as to the decision of Justice Hamilton raises other issues. There is a position taken by the respondents to the motion, the plaintiffs in the suit, that the defendants in the suit are precluded from complaining under any cross-appeal about the orders and declarations made by Justice Hamilton by reason of the fact that a notice of appeal was required, the declarations being said to be final orders, and the notice of appeal being out of time. The defendants in the proceedings assert that the orders and declarations of Justice Hamilton were interlocutory. The argument for that view of the defendants appears, if I may put it at its lowest, to be powerful. I refer to what Lord Justice Diplock said in Fidelitas Shipping v Export Chleb [1966] 1 QB 630 at 642 in a passage cited by Gleeson CJ and Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Bass v Permanent Trustee [1999] HCA 9; 198 CLR 334 at 360. It is not necessary to resolve that issue. It was a matter canvassed before the Court of Appeal in 2007 and need not be resolved at this point.

15 If the question of an extension of time was simply a matter of the defendants having missed a relevant date pursuant to the expiration of time, there may be thought to be utility in dealing with that matter promptly rather than leaving it to fester in the otherwise growing body of the litigation, however Senior Counsel for the plaintiffs below eschewed, as I understood it, any reliance on mere passage of time and indicated that there were matters of substance of approbation and reprobation in the conduct of the proceedings which would need to be dealt with. Those issues, being matters of substance, are better dealt with at the appeal, if there be one, after a full hearing in the Equity Division.

16 That said, the decision of Justice Hamilton may be seen to raise a possible difficulty. The process that was engaged in by the use of separate issues led to, as was intended, the decision of matters intended to bind the parties piecemeal, if I may use that expression. It may be that, theoretically at least, the answering by Justice Hamilton of questions and making declarations would make irrelevant certain evidence at the later hearing at first instance if that evidence could only be led on the hypothesis of an answer to the question that Justice Hamilton did not give.

17 Given the passage of time and the continued complexity and burden of this case both on the Court and on the parties, in any further hearing in the Equity Division one would have thought that the case managing judge and/or the trial judge, if they be different, would be alive to the clear necessity to ensure that the totality of the controversy between the parties was quelled at first instance. That aim, one would have thought, would outweigh any technical consequence of the earlier employment of the separate issue process, though, of course, any such questions are matters for the judge in the Equity Division. There would be the mechanisms available for the reception of any evidence subject to relevance and the making of findings which may only be relevant on the hypothesis that Justice Hamilton was wrong in some respect in his earlier reasons.

18 These matters have been canvassed with counsel, all of whom have had involvement in the case to varying degrees to date. Counsel for the plaintiffs below was of the view that there would be unlikely to be a large body of such evidence. Mr Walker for the defendants below could not give that assurance. It may be that that evidence may be of more than minor compass when the case comes before the court for final disposition. Nevertheless, I would only reflect upon the possibility of a most unhappy event should the case proceed and conclude below if any appeal that may be brought was allowed. It would be, as I said, most unhappy for all concerned if there was a need for a new trial.

19 The course that I have suggested as possible can be seen in a slightly different context without a separate issue in the view of the Court of Appeal in Dubbo Base Hospital v Jones [1979] 1 NSWLR 225, in particular at 226 where the Court of Appeal indicated that the primary judge in that case should not have rejected evidence which turned upon, in effect, the substantive issue in the case. Here the position is different because the substantive issue has been decided by Justice Hamilton. Nevertheless, there would be mechanisms available for the reception of evidence if thought necessary subject to objection.

20 In my view, in the interests of the administration of justice and, if I may respectfully say so, in the interests of the parties, the most appropriate mechanism for the disposition of the controversies that still plague the parties is that the view of the Court of Appeal in 2007 should be maintained. There are no insurmountable or impenetrable barriers to the Equity Division finally resolving all issues between the parties in a manner which can give rise, if it be necessary, to an appeal. That appeal could then be dealt with subject to the arguments about Justice Hamilton’s earlier decision in one complete exercise of the appellate jurisdiction.

21 In my view, subject to hearing the parties on costs, the orders that I would make today are that the summons seeking leave to appeal from the orders of the Chief Judge in Equity be dismissed, and the informal application to revive an application for leave to appeal from the orders made by Justice Hamilton also be refused.

22 TOBIAS JA: On 24 September 2007 this court, constituted by Beazley, Giles and Ipp JJA, [2007] NSWCA 263 made it clear at [16] of their Honours’ judgment that it would be desirable for there to be only one appeal on all the issues that arise in this case and that any such appeal should be argued after the trial was concluded. That sentiment was repeated by their Honours at [19] and [21]. Notwithstanding the powerful advocacy of Mr Walker, I see no reason to express any different view to the sentiment expressed by the Court in 2007.

23 What has happened since then is that Young CJ in Eq (as his Honour then was) has answered a further separate question that was argued before him. In my view, nothing said by the learned Chief Judge. as he then was, causes me to change my view as to the future conduct of this matter.

24 It is true that Mr Walker referred to some unrest and concern within the community for whom he acts allegedly caused by some paragraphs of the Chief Judge’s judgment in which it could be suggested that his Honour found that there were in fact breaches of trust. However, as the President has pointed out, at [7] of his judgment, his Honour made it clear that he was not being asked and did not propose to make any findings as to whether in fact there had been any breaches of trust.

25 The only paragraph of his Honour’s judgment in which it might be suggested that he had departed from this injunction is [397] to which the President has referred. However, without in any way seeking to be critical given the length and complexity of the issues that were debated before the Chief Judge, it may be accepted that prima facie this paragraph could be read as a finding of breach. Nevertheless it is apparent to me that that is not what his Honour intended and that it should not be so read. Later paragraphs of his Honour’s judgment such as [496] and [497], as well as others, make it clear that at all material times during the course of his judgment he was dealing with alleged breaches and not making any findings to suggest that those actual breaches had in fact become breaches. Accordingly, in my view, one of the main planks that otherwise may have supported a grant of leave disappears.

26 For those additional reasons as well as those falling from the President, I would concur in the orders his Honour proposes.

27 HANDLEY AJA: I agree with both the previous judgments and will simply add some very brief comments of my own.

28 Where issues are separately determined but the action continues, the answers to the questions and any consequential declarations are interlocutory decisions or orders, although they are final for res judicata purposes and create issue estoppels which are binding on the parties in the later stages of the action. The decisions cited by the President establish these propositions.

29 It is also established law of long standing that on a final appeal, that is an appeal from a final decision in the action, the appellate court is entitled to examine any interlocutory order which has affected the final result and to correct that order if it is necessary to correct the final result. That proposition was applied by the High Court in Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478.

30 Subject to those additional reasons, I agree that the application should be dismissed.

Counsel Addressed on Costs

31 ALLSOP P: In relation to costs, the orders of the Court will be:

1. Summons for leave to appeal from the orders of Young CJ in Eq dismissed.

2. Application to renew the application for leave to appeal from the orders of Hamilton J refused.

3. The applicants (being the 1^st to 6^th and 8^th defendants in the Equity Division) pay the costs of the respondents (the plaintiffs below) of summons and of the application for leave to renew the application for leave to appeal.

4. The 1^st to 6^th and 8^th defendants pay the Attorney-General’s costs of the summons and of the application for leave to renew the application for leave to appeal; the property in Schedule A to the judgment of Hamilton J dated 4 April 2003 may be resorted to for such costs as a last resort.

32 The orders of the court otherwise are as I have proposed.

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LAST UPDATED:
26 October 2009