Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2012] NSWCA 304
• Hearing dates: 23 July 2012
• Decision date: 26 September 2012
• Before: Allsop P

Decision

Notice of Motion for security for costs dated and filed 1 June 2012 dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: SECURITY FOR COSTS - litigation concerning charitable trust - litigation stemming from community religious dispute - public and community interest involved in proceedings - overriding interest in just, fair and expeditious resolution of dispute - inappropriate to order security
• Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300; Winnote Pty Ltd v Page [2005] NSWCA 362; 64 NSWLR 244
• Category: Interlocutory applications
• Parties: Macedonian Orthodox Community Church St Petka Incorporated (First Appellant); His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (First Respondent); Very Reverend Father Mitko Mitrev (Second Respondent); Attorney General for New South Wales (Third Respondent)
• Representation: G Ng (First Appellant); G Parker SC, L Livingston (First and Second Respondents); M Izzo (Third Respondent); McConnell Jaffray (First Appellant); Sachs Gerace Lawyers (First and Second Respondents); Crown Solicitor (Third Respondent)
• File Number(s): 2012/10767

Decision under appeal

• Citation: [2012] NSWSC 16
• Date of Decision: 2012-02-03 00:00:00
• Before: Brereton J
• File Number(s): 1997/25609

Judgment

1 ALLSOP P: The first and second respondents seek an order for security for their costs from the first appellant, the Macedonian Orthodox Community Church St Petka Incorporated (the "Community Church").

2 The history of this litigation need not be canvassed beyond essentials. The Macedonian community has for a number of years been riven by religious and community discord. The focus of the discord has been a church in Sydney. The church was built with community funds and represents for many of the litigants the focus of their religious life. Broadly speaking, two groups have been in dispute as to control of the church and its property.

3 Over the years since 2006, the Equity Division has addressed the issues thrown up by the litigation in substantive judgments of Hamilton J, Young CJ in Eq and Brereton J. Numerous interlocutory judgments have been published. Brereton J has almost completed the last aspects of the litigation at first instance. The matter has been to the Court of Appeal on a number of occasions, and the High Court on one occasion.

4 This Court has stood over applications for leave to appeal and has made it clear that it will deal with the matter in one tranche. All matters requiring appellate consideration have been set down for a week next February.

5 Broadly speaking, the Community Church and the individuals associated with it have been unsuccessful and they are the appellants and applicants for leave to appeal in February.

6 Security for costs is sought under UCPR r 51.50, r 42.21 and the inherent jurisdiction of the Court. Some of the submissions of the parties focused upon the different wording of the two provisions of the Rules. I see no utility in discussing what might, on close analysis, be any differences between them. The resolution of the motion is to be undertaken by reference to more general considerations.

7 First, there is reason to believe that the Community Church will be unable to pay any order for costs should its appellate applications be unsuccessful. The orders of Hamilton J and Brereton J have the effect that all the property of the Community Church (other than property from donations and for the purposes of the litigation) is held upon charitable trust, and that property is not available for the raising of funds for the litigation.

8 Secondly, the appeals are not said to be hopeless or vexatious in their nature or character. As the respondents say in their submissions, the proceedings are "complex and wide-ranging".

9 Thirdly, the security that is sought is in the order of $50,000 which, in all the circumstances, if security were ordered, would not be an unreasonable amount for a four or five day appeal involving senior counsel.

10 Fourthly, without undertaking minute analysis of the issues, the Community Church and the other individual appellants and applicants share a common interest in the fate of the applications and will share a common responsibility for costs in respect of a significant number of them. A differential approach to individuals and corporations in the one appeal is ordinarily inappropriate: Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 at 303 (Kirby P). I do not consider that this consideration is limited by any narrowly framed rule that might be drawn (impermissibly) from the remarks of Mason P in dealing with the facts before him in Winnote Pty Ltd v Page [2005] NSWCA 362; 64 NSWLR 244 at 251 [43].

11 Fifthly, it is not clear on the evidence that a requirement for security could not be met and that its requirement would stifle one party's participation in the appeal. An understanding of the community basis of the dispute makes it likely, however, that those in the Macedonian community who support the appellants would be required to fund the security. It has not been demonstrated that this could not be done. To impose this, however, is to require that the members of a community religious group who have no financial (as opposed to spiritual and emotional) stake in the litigation place moneys at risk for the litigation.

12 The Court has a general discretion in relation to the ordering of security for costs. Such an order takes its place in the just, expeditious and fair resolution of disputes. Having regard to all the circumstances here, and having regard to all the arguments placed before me in writing and orally, I do not consider that it would be in the interests of justice or the fair resolution of the dispute to order security. The litigation concerns a charitable trust and so the public interest. More than that, it involves the religious and community life of ordinary people, unfortunately (and it would not be an exaggeration to say tragically) embroiled in a bitter dispute with others in the same community about deeply held views and beliefs.

13 As in most litigation, one side will "win" and one side will "lose". Of importance to both sides, however, is the just, fair and impartial resolution of the grievances of those within the community. This will not be assisted by an order for security. The case goes beyond money. The interest of those behind the Community Church goes beyond money. Final resolution of a long struggle will approach next year. I do not think it appropriate to burden either the public interest or those in the community who support the appellants with an order for security.

14 For these reasons the notice of motion dated and filed 1 June 2012 for security for costs is dismissed with costs.

Decision last updated: 26 September 2012