MACEDONIAN ORTHODOX COMMUNITY OF SYDNEY AREA LIMITED & ORS v MACEDONIAN... [2003] NSWSC 601 | Case summary

JUDGMENT (Defamation - juridical status of alleged publisher - unincorporated ecclesiastical entity -SCR Pt 8 r 13) 1 On 28 May 2002 an amended statement of claim was filed for the first to ninth plaintiffs against the four defendants. It is an extraordinarily unsatisfactory pleading. It purports to plead, as I understand it, essentially three causes of action. The first cause of action is in defamation; secondly, there appears to be a cause of action in detinue and thirdly, an allegation of contempt of court. 2 The matters set out in the amended statement of claim can be characterised, presently, as reflecting an intra-communal dispute in relation to the Macedonian Orthodox Community in this city, possibly in this country, and possibly within its worldwide structure. I need make no findings of fact on the subject. 3 Each side moves the Court for relief. The plaintiffs move the Court on the affidavit of David Glamcevski sworn 13 January 2003 and the exhibits thereto, seeking in effect an order for discovery against the second, third and fourth defendants. That order for discovery relates to the identity of the entity hitherto sued as the first defendant, namely the "Macedonian Orthodox Diocese of Australia and New Zealand". 4 A notice of motion has also been filed by the defendants, (including the named first defendant), seeking that the proceedings against that defendant be struck out, and relief, shortly stated, in relation the action for detinue and the claim that there has been committed a contempt of court. That motion is supported by an affidavit of David Lewis Sachs sworn 6 February 2003. The defendants have in effect "offered" to the plaintiffs that the second defendant "His Eminence Metropolitan Petar" be appointed a representative of the entity presently described as the "Macedonian Orthodox Diocese of Australia and New Zealand", and being one that is apparently not incorporated. 5 In the murky context of the evolution of the dispute between these "parties", it is to be noted that the solicitors for the defendants on 22 August 2002 forwarded to the plaintiff's solicitors what was described as the "Defence" they then proposed to file. That "Defence" (which is annexure E to Mr Glamcevski's affidavit) denies that the first defendant was an incorporated association, denies that it was capable of being sued, and asserts that it was no more than an area with its population under the auspices and pastoral care of the second defendant, Metropolitan Petar. 6 The plaintiffs complain, to use the language of their submissions, that the defendants had been sending "mixed messages" to them about the juridical status of the first named defendant. The proposed "Defence" has already been referred to. There are communications between the solicitors for the parties annexed as "H" and "K" to Mr Glamcevski's affidavit and certain conduct by the first named defendant and its solicitors is also relied upon. 7 On 24 December 2001, it is said, undertakings were given by and on behalf of the first defendant (annexure A to Mr Glamcevski's affidavit). These undertakings were given to David Kirby J pursuant to the initiation of interlocutory proceedings to restrain the distribution of a calendar that, in effect, provoked the commencement of proceedings in this Court before me on 14 December 2001. What the plaintiffs overlook, and what was the subject of a submission for the defendants, is that no admission was made as to the juridical status of the first defendant at the time of the undertakings being given to Kirby J and indeed the question was expressly reserved. 8 As well as communications between solicitors to which I have referred there was the proposed "Defence" to which I have also referred and an earlier notice of motion (annexure D to Mr Glamcevski's affidavit) which had been filed on 15 March 2002 and indeed the current notice of motion filed by the defendants. 9 I take the view that all this is really "manoeuvring" by the plaintiffs, not so much to establish that which cannot be established, namely that the presently first named defendant has a juridical status, but rather protection on the question of costs. 10 In the course of submissions for the plaintiffs I was referred to litigation in other courts involving cognate parties. The first is a decision of the Supreme Court of Victoria in His Grace Metropolitan Petar & Ors v Kostovski & Ors (SC VIC, unreported, 27 October 1997, Byrne J) and the second, Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 414, Young J. Neither decision provides authority or precedent for the determination of any matter with which I am concerned on these motions. I respectfully adopt, however, the tenor and import of the observations made by Young J in paragraph [12]: [12] …Now, one does not have to be involved in many ecclesiastical law cases to realise that churches are very strange bodies. It is often said that churches are asset rich and income poor. Hidden behind this statement, however, is the fact that not only do they have relatively little income, but most of their assets are in the form of churches or other buildings which are subject to trusts. It is thus a matter of speculation as to whether any of the assets are able to be taken in execution for the payment of any costs. Indeed, it is quite an unsatisfactory state of affairs in many ways that because of the way all church assets are held on trust, they are protected, to a great degree, from any litigation". 11 In the instant case I have been provided with two documents constituted by the exhibits to Mr Glamcevski's affidavit. Exhibit GD1 is described as "The Constitution adopted on 1 November 1994 by the Macedonian Church in Skopjke". Exhibit DG2 is described as "The statute approved by the Holy Synod, or Holy Bishop's Synod in Skopjke on 23 February 1996 and published in the church gazette in March 1996, i.e. the Statute of the Macedonian Orthodox Diocese of Australia and New Zealand". 12 It seems tolerably clear from articles 85-92 of DG1 that the present first named defendant relevantly comprises the members of the Diocesan Administrative Committee, also known as the Diocesan Management Committee or Diocesan Ruling Committee. Correspondence between the parties, annexures "P" and "S" to Mr Glamcevski's affidavit, evidence indicate that, what I will in short form describe as the "Committee" comprises eight people. It is as to the identity if those eight people that the sought discovery is directed. The period in relation to which discovery is sought is 1 October 2001 to 31 January 2002. 13 This period, in my view is appropriate, notwithstanding the flaws in the pleading, as the amended statement of claim seems to embrace that period as the one during which the pertinent tort, namely defamation, is alleged to have been committed. 14 It is thus far clear, as the plaintiffs acknowledge, that the first defendant should be removed from the record and that the cause of action in detinue should be pleaded otherwise than in the current statement of claim. It is contended for the defendants that the alleged contempt should also be the subject of separate proceedings. Proceedings for contempt more usually are brought otherwise than by an amended statement of claim and I propose to direct the plaintiffs, if they persist in raising this matter, to proceed otherwise than by that means of pleading. 15 Before dealing with the principal thrust of the submissions for the defendants one matter can easily be disposed of. 16 It is contended for the defendants that the first plaintiff, the Macedonian Orthodox Community of Sydney Area Limited and, I assume, the fourth plaintiff, Macedonian Orthodox Community of Melbourne and Victoria Limited have no standing, as corporations, to sue for the tort of defamation. Leaving aside the coming into effect in February 2003 of the 2002 amendments to the New South Wales Defamation Act which preclude corporations from suing for that tort (there is an exception), I would have thought that it could not presently be argued that these plaintiffs have no such right: see Church of Scientology of California Incorporated & Anor v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344. There may be real issues as to the nature of the reputation each corporation can assert that it enjoyed and which it can assert was damaged, whether that reputation be as a trading corporation or as an ecclesiastical entity. I decline this aspect of the defendants' application. 17 I turn now to the defendants' "offer" to have the second defendant, Metropolitan Petar, appointed a representative defendant pursuant to SCR Pt 8 r 13. I consider this question only in the context of the alleged tort of defamation and not in what would in due course be a separate action for detinue or separate proceedings, if the plaintiffs insist on prosecuting them, for contempt. As to the last mentioned, one could hardly see a representative defendant being appointed to answer a charge of contempt of court. 18 There are two interdependent reasons for my declining to make an order in the present case. The first is the peculiar nature of the tort of defamation and the considerations of who in fact is a publisher, who in law is a publisher, or who can be liable for a particular publication by someone else. The conduct of a publisher is itself amenable to particular scrutiny on questions of defeasance of defences of privilege and comment, for example, or on the question of the aggravation of damages. Given that the number of people in respect of whom an order for discovery will be made is eight, instead of the inchoate entity of the present first named defendant, secondly, it may simply be premature to make any such order and any consequential orders whether by way or convenience or otherwise. 19 Other orders sought by the defendant relate to the structure of the pleading of the cause of action in defamation and compliance with SCR Pt 67. The defendants' complaint, although I have heard no argument about it, on its face appears to be absolutely meritorious in terms of the form of the imputations pleaded. That is an aspect that can be determined when, and if, the plaintiffs propose to restructure their case to incorporate an alternative to the present named first defendant. 20 I do not propose to make orders striking out the detinue component of the amended statement of claim or indeed the contempt of court component insofar as it can be identified. The plaintiffs will in any event have to file an amended statement of claim properly to plead (subject to submissions) their causes of action in defamation. To avoid further costs or unnecessary costs being incurred in filing an interim amended statement of claim, the actual removal of the causes of action from the document can abide any ultimate remaining dispute as to parties and the proper form of the pleading of the tort of defamation. 21 In the meantime it can be taken as abundantly clear that first, not only do the plaintiffs agree that they will not maintain in the current process the claim in detinue, it can be taken that a chosen course further to prosecute an allegation of contempt of court will also have to be dealt with otherwise than in the current form of pleading. 22 In relation to the plaintiff's notice of motion I make orders 1, 2 and 3 therein. 23 As to the defendants' notice of motion filed on 30 August 2002, I make an order removing the first defendant as presently named from the proceedings constituted by the present amended statement of claim, reserving the question of costs of that defendant. 24 Otherwise, I order each side to pay its own costs of the proceedings before me on 17 February 2003. 25 The matter will be stood over to the Registrar's Defamation Directions List on Friday 22 August 2003.

MACEDONIAN ORTHODOX COMMUNITY OF SYDNEY AREA LIMITED & ORS v MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ORS

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