Jeray v Blue Mountains City Council
[2010] HCATrans 346
[2010] HCATrans 346
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S279 of 2010
B e t w e e n -
IVAN JERAY
Applicant
and
BLUE MOUNTAINS CITY COUNCIL
First Respondent
GREG EGAN
Second Respondent
JOHN EGAN
Third Respondent
Summons
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO SYDNEY
ON WEDNESDAY, 15 DECEMBER 2010, AT 11.43 AM
Copyright in the High Court of Australia
MR I. JERAY appeared in person.
MR I.J. HEMMINGS: May it please the Court, I appear for the first respondent. Your Honour, we have not filed a notice of appearance in these proceedings yet, so I seek your Honour’s leave to appear. (instructed by Marsdens Law Group)
HIS HONOUR: Yes, thank you, Mr Hemmings. I will just take the other appearance for a moment.
MR P.R. CLAY: May it please the Court, with your Honour’s leave, I appear for the second and third respondents, no notice of appearance having been filed as yet. (instructed by McIntosh McPhillamy & Co)
HIS HONOUR: Now, Mr Jeray, the application for special leave which is the foundation of the proceedings in this Court has not and should not have been served on the respondents yet. Is there any reason, however, why Mr Hemmings and Mr Clay should not be granted leave to appear this morning on this application?
MR JERAY: No, I do not object.
HIS HONOUR: Yes. Well, Mr Hemmings, Mr Clay, you have that leave.
MR HEMMINGS: Please the Court.
MR CLAY: May it please the Court.
HIS HONOUR: Now, Mr Jeray, I should tell you what papers I have so that you can understand what I have looked at and what I have had available. First, I have your summons dated today together with an affidavit sworn by you today. I have also obtained from the Internet the decision of President Allsop of 13 December 2010 and the Registry has provided me with a copy of the transcript of proceedings before President Allsop of 13 December 2010. I have a copy of the order made in respect of the application of 13 December 2010.
I also have your application for special leave to appeal to this Court together with the reasons for judgment of the Court of Appeal of 27 October 2010. I have also obtained from the Internet the reasons for judgment that were delivered on 6 July 2010 by a court constituted by Justices Handley and Sackville, the principal reasons being given by Justice Sackville. Now, those are the pieces of paper to which I have had access. First, I assume that you move on the summons of 15 December and you seek to read the affidavit of 15 December, is that right?
MR JERAY: Yes, your Honour.
HIS HONOUR: Yes. Is there any reason not to receive the affidavit of 15 December?
MR HEMMINGS: No, your Honour.
MR CLAY: No, your Honour.
HIS HONOUR: Yes, thank you. Well, that may be taken as read. I also should say to you, Mr Jeray, that I understand that the appeal was called on in the Court of Appeal this morning but presently has been stood down to enable this application to be made. Now, I have, I think, therefore informed you of what I presently know about the matter and what papers I presently have in the matter. It is your application. What is it you would wish to say in support of it?
MR JERAY: Okay. Your Honour, I am seeking a stay of the appeal hearing that is scheduled for today because, as is highlighted in my application for special leave to appeal, I wish to include additional grounds in the appeal before the actual appeal is actually heard. So if this appeal went ahead today, then basically the orders that I seek for the additional grounds to be included in the appeal would become fruitless.
HIS HONOUR: I am not sure that that is right, Mr Jeray. I am not sure that that is right. Let me explain to you why I think that may not be right. Assume that the appeal goes forward for hearing today, assume further that the appeal were to be decided before your application for special leave to appeal was determined by this Court. Do you understand the two assumptions I am presently asking you to make?
MR JERAY: Yes.
HIS HONOUR: So long as the Court of Appeal’s order disposing of the appeal to that court has not been formalised by being entered in the records of the court, if your application for special leave to appeal to this Court were to succeed and if further an appeal to this Court were to succeed, the Court of Appeal would simply have to go on and hear your additional grounds, and they could do that so long as any order that the Court of Appeal had made apparently finally disposing of your appeal to that court had not been entered in the records of the court. If that chain of reasoning is right, the argument of futility, which is basically what you are seeking to mount, “My application for special leave will be futile if the appeal is allowed to go on”, seems to lose much of its force. Do you understand what I have said to you?
MR JERAY: Not entirely. It seems to me that there would be – because you are saying that those orders would not be entered, it would still seem to me that then I would have to put in another application to the High Court for special leave.
HIS HONOUR: I think not, because there would be grounds of appeal – on the assumptions we are making – there are several assumptions; one, that your application for special leave to appeal were to be granted, two, that if granted, your appeal succeeds. So that is making assumptions that are the best from your point of view. Are you with me so far? If those assumptions are made, you would have grounds of appeal to the Court of Appeal that would remain undetermined and the Court of Appeal would simply have to go on and hear and determine those further grounds. But the key part in that analysis is that the orders of the Court of Appeal have not been perfected by being entered. Whatever order the Court of Appeal may have made in disposing of your appeal is simply the oral order and it has not been entered in the records of that court.
MR JERAY: Yes, I am sorry, your Honour, I am getting lost.
HIS HONOUR: Yes. Well, we are into the minutiae of procedure. Let me take a different and separate set of ‑ ‑ ‑
MR JERAY: Could we deal with one issue at a time, sorry, one hypothesis at a time?
HIS HONOUR: Yes. Well, I have said all I want to say to you about that and I do not think that there is any advantage in my saying it to you again.
MR JERAY: Okay.
HIS HONOUR: Can you explain to me why you say the Court of Appeal was wrong to limit you to the one ground of denial of procedural fairness?
MR JERAY: That would be in my application for special leave to appeal.
HIS HONOUR: Yes.
MR JERAY: Do you want me to read the grounds out?
HIS HONOUR: No, I have read the grounds.
MR JERAY: Well, they are in there, your Honour, yes.
HIS HONOUR: Yes.
MR JERAY: Okay. So, what do you want me to do?
HIS HONOUR: Well, is there anything you want to say in amplification of those grounds? Why did they get it wrong?
MR JERAY: Well, I was denied procedural fairness at the 27 October 2010 hearing. The judgment was based on misconceived facts and the judgment is unfairly based on errors of law. The judgment of 27 October 2010 does not consider or address my submissions in support of my amended notice of motion of 5 October 2010. The judgment of 27 October 2010 unfairly does not provide any reasons why the applicant’s appeal grounds alleging a denial of procedural fairness during the incidents of the applicant’s notice of motion of 16 July 2009 are unarguable. It does not provide the reasons why these grounds are not arguable. That is at point E of my special leave application.
At point F, the judgment of 27 October 2010 unfairly does not provide any reasons why the applicant’s appeal ground alleging Justice Lloyd gave an irregular judgment when his Honour did not properly record the incidents of 16 July 2009 is not arguable. I would also like to make the point, your Honour, that I have been unable to – well, I have been able to put in an application for special leave to appeal, but I am in a difficult position because I still have not received the transcript for that hearing on 27 October 2010 and I have been requesting it for some time. That is actually explained in my affidavit of 7 December 2010.
HIS HONOUR: Sorry, which affidavit is that?
MR JERAY: The one that has been filed on 7 December 2010.
HIS HONOUR: Yes. That is not an affidavit which I presently have available to me. Can you read to me the passage from that affidavit upon which you rely?
MR JERAY: Okay. It says – I have several headings:
In relation to the transcript of 27 October 2010:
11.On 29 October 2010, I hand-delivered to the Court of Appeal Registry in the Supreme Court of NSW my completed application form (enclosed at p 7 [in this affidavit]) for a paper copy of the transcripts of 20 September 2010 and 27 October 2010 for case no. 2009/298487.
12.On 1 November 2010, I received a copy of the 20 September 2010 transcript from the Supreme Court of NSW by post.
13.Attached to the transcript of 20 September 2010 was a small note (enclosed at p 8 [in the transcript]) from the Supreme Court of NSW that appears to me to state: “Mr Jeray. Please note. 27 October 2010, was that the judgment? Should you need this please submit an application for judgement order form. Thanks.”
14.On 2 November 2010, I informed the Transcript Sales section of the Supreme Court of NSW by telephone that the transcript of 27 October 2010 should have also been posted to me. I explained to the Court’s transcript officer, Mr. Richard Stride that besides judgement being given, case no. 2009/298487 was also heard on 27 October 2010. Mr Stride then informed me he would order the transcript of 27 October 2010.
15.On 15 November 2010, I telephoned the Transcript Sales section of the Supreme Court of NSW but there was no answer.
16.On 18 November 2010, I telephoned the Transcript Sales section of the Supreme Court of NSW at three different times of the day but there was no answer.
17.On 22 November 2010, I sent an email (enclosed at p 9) to the Transcript Sales section of the Supreme Court of NSW.
18.On 23 November 2010, Mr Richard Stride from the Transcript Sales section of the Supreme Court of NSW sent me an email (enclosed at p 10) indicating that he had asked the Typing Centre to expedite my order for the transcript of 27 October 2010.
19.As at the time of this affidavit being duly sworn on 6 December 2010, I have not yet received the transcript of 27 October 2010 for case no. 2009/298487 from the Supreme Court of NSW.
Then there are further sections in the affidavit which I probably should come to in a moment, but on 7 December I then filed my application for special leave to appeal and today in the affidavit I also make mention that I have not – at point 9, you can see that on the affidavit of 15 December.
HIS HONOUR: Yes, I have read that.
MR JERAY: Yes.
HIS HONOUR: Are you able to tell me, Mr Jeray, when the Court of Appeal fixed today as the day for the hearing of the appeal?
MR JERAY: I am not real sure. It could have been after the 6 July judgment.
HIS HONOUR: Yes.
MR JERAY: Your Honour, I have just been told 29 July was the date that it was set.
HIS HONOUR: Yes, thank you. Now, is there anything else you wish to say in support of your application for a stay?
MR JERAY: Yes. There are further points of information in my affidavit of 7 December 2010 which generally relate ‑ ‑ ‑
HIS HONOUR: That is the affidavit in support of the application for leave, is it?
MR JERAY: Yes. That generally relates to why I could not complete my application on time and why I could not complete it. I was ill and it talks about – it has attached a medical certificate.
HIS HONOUR: Yes. At least for the moment you need not trouble about those matters. Yes.
MR JERAY: Okay. So you are aware, your Honour, that the notice of motion – there was a notice of motion that I filed on 13 December?
HIS HONOUR: Yes.
MR JERAY: That was Monday, last Monday.
HIS HONOUR: Yes, I have read those reasons for decision.
MR JERAY: Yes. You said you had a transcript. I do not have a copy of the transcript, but I do have a copy of the judgment that was handed to me this morning by the Court of Appeal. I believe there is an error in the judgment there made. I can see that Justice Allsop at paragraph 1 says that my notice of motion to postpone the appeal hearing scheduled for today says that it is based on fundamentally two grounds; my health and, two, the matters arising from 27 October 2010, being a lack of a transcript and the application for leave to appeal to the High Court.
It does not there raise the issue which I have raised earlier in that I am seeking additional grounds to be added to the appeal before the appeal is actually heard. As I explained to Justice Allsop, that should the appeal hearing go ahead, then – you were talking about it earlier – it would be futile to add those grounds later on once the appeal hearing went ahead. What else can I say? He also says in paragraph 2, Justice Allsop, in that judgment, your Honour, in the judgment of 13 December 2010:
In any event, if Mr Jeray obtains leave in relation to the matters on 27 October, they can be dealt with separately by the High Court.
But, as I said earlier, it appears to me that Justice Allsop has not considered those other grounds that I wish to include and I believe they could not be heard once the appeal hearing commenced. You were saying something earlier about that which I do not really understand. He also says:
If orders are made, they address different questions to those on the appeal on Wednesday.
Well, the orders do not address – well, the orders that I seek in my application for special leave to appeal have other orders requesting the inclusion of these other grounds which relate to the appeal that was scheduled for today. It seems to me that that is not acknowledging it there at paragraph 3, that judgment. I would also like to make note, your Honour, there in regards to costs. I would seek costs in the cause, if that is possible, and I have got my affidavit there in support of that which mentions the – well, they would be basically my reasons in support of that mentioned at paragraphs 10 through to 14 in my affidavit of 15 December 2010, and also paragraphs 1 and 2 would be relevant also. Okay. I think that is all I can say at this point.
HIS HONOUR: Yes, thank you, Mr Jeray.
MR JERAY: Thank you, your Honour.
HIS HONOUR: Mr Hemmings, what is the attitude of the Council to the application for stay?
MR HEMMINGS: It is opposed, your Honour.
HIS HONOUR: Yes. Just before you go further, I will hear what Mr Clay’s attitude is. Mr Clay, what is the attitude of the second and third respondents to the application?
MR CLAY: It is opposed, your Honour.
HIS HONOUR: Yes. I will not trouble either of you further, thank you.
On 6 July 2010 the Court of Appeal of New South Wales, constituted by Justices Handley and Sackville, made orders extending the time for the filing of a notice of appeal by Ivan Jeray against orders made by Justice Lloyd in the Land and Environment Court of New South Wales on 16 July 2009. The Court of Appeal directed that the notice of appeal be limited to a ground claiming that the orders made by Justice Lloyd on 16 July 2009 dismissing certain proceedings in the Land and Environment Court denied procedural fairness to Mr Jeray. The Court of Appeal further directed that the relief claimed in the notice of appeal be limited to relief appropriate should that ground be made out.
In reasons for judgment given by Justice Sackville, in respect of that application for leave, his Honour recorded that the proceedings in the Land and Environment Court were brought by Mr Jeray against Blue Mountains City Council and against Mr Greg Egan and Mr John Egan seeking declarations that certain development consents granted by the Council to the Egans were null and void and seeking also various forms of consequential relief. It is evident from the reasons of Justice Sackville and from the orders made by the Court of Appeal on 6 July 2010 that Mr Jeray sought to propound a number of other grounds of appeal other than that which was the subject of the leave granted.
A little more than three months later, on 27 October 2010, the Court of Appeal, again constituted by Justices Handley and Sackville, dismissed a motion filed by Mr Jeray on 7 September 2010 by which Mr Jeray sought to vary the orders of the Court of Appeal made on 6 July 2010. Justice Handley, in giving reasons for dismissing that notion of motion, described the principal purpose of the notice of motion as being “to enlarge the grounds of appeal available to Mr Jeray by including many of those which were disallowed by the Court in its decision of 6 July.” See Jeray v Blue Mountains City Council & Ors [2010] NSWCA 281 at [4]. As is evident from the reasons given, both on 6 July 2010 and 27 October 2010, the other grounds which Mr Jeray had sought to propound in his appeal to the Court of Appeal were regarded by the Court as being unarguable.
On 7 December 2010, Mr Jeray filed application for special leave to appeal to this Court from the whole of the judgment of Justices Handley and Sackville given on 27 October 2010. That application was made out of time – see rule 41.02.1 of the High Court Rules. Whether an extension of time should be granted is a matter which need not now be considered. It is convenient to proceed on the assumption that the extension may be granted. The grounds for the application for special leave to appeal are stated at some length, but it is desirable that they be recorded. Those grounds are that:
AThe applicant [Mr Jeray] was denied procedural fairness at the hearing of 27 October 2010 as follows:
(i)The applicant was put under duress and not provided with sufficient time to properly and completely argue his case including the opportunity to move his amended notice of motion of 5 October 2010.
(ii)Handley AJA and Sackville AJA did not provide the applicant with property assistance.
BThe judgement of 27 October 2010 is unfairly based on the following misconceived facts:
(i)The only order made by Lloyd J was to dismiss the applicant’s class 4 case on 16 July 2009 in the Land and Environment Court of NSW.
(ii)The applicant was aware Lloyd J evinced ostensible bias when all these incidents actually occurred.
(iii)The applicant was told that he had to make an ostensible bias application to Lloyd J.
(iv)The motion is simply an attempt to re‑agitate arguments in support of the additional grounds of appeal which the Court of Appeal of the Supreme Court of NSW considered and rejected as unarguable in its earlier decision.
CThe judgement is unfairly based on the following errors of law:
(i)There is simply no basis on which the Court of Appeal of the Supreme Court of NSW can properly entertain the applicant’s complaints based on the first three days of the hearing in the Land and Environment Court of NSW.
(ii)The statements made by Lloyd J would not enable the Court of Appeal of the Supreme Court of NSW to reverse the order of dismissal of 16 July 2009.
(iii)The judgement confines the power of the Court of Appeal of the Supreme Court of NSW to revisit and reconsider its interlocutory orders to new evidence or a new argument that were not considered in the earlier hearing or to establish a material change of circumstances since the earlier decision.
DThe judgement of 27 October 2010 unfairly does not consider or address the applicant’s amended submissions in support of the amended notice of motion of 5 October 2010.
EThe judgement of 27 October 2010 unfairly does not provide any reasons why the applicant’s appeal grounds alleging a denial of procedural fairness during the incidents of the applicant’s notice of motion of 16 July 2009 are not arguable.
FThe judgement of 27 October 2010 unfairly does not provide any reasons why the applicant’s appeal ground alleging Lloyd J gave an irregular judgement when His Honour did not properly record the incidents of 16 July 2009 is not arguable.
Before 7 December 2010 and the filing of the application for special leave, indeed, as I was informed as early as 29 July 2010, the appeal to the Court of Appeal was fixed for hearing today. That is to say, the appeal limited to the ground which had been fixed by the judgment of the Court of Appeal of 6 July 2010 and affirmed, if that be the right word, by its further judgment of 27 October 2010 was fixed for today. On 13 December, which is to say two days ago, Mr Jeray applied to the Court of Appeal to adjourn or vacate the date for hearing the appeal today.
President Allsop, who heard that application to adjourn or vacate the hearing date, dismissed the application leaving questions of costs to be dealt with by the Court of Appeal on 15 December 2010. In the course of his reasons for dismissing the appeal, President Allsop considered the consequences that may follow according to whether Mr Jeray succeeded or failed in the appeal fixed for hearing today. President Allsop said – see Jeray v Blue Mountains City Council [2010] NSWCA 354 at [2] to [3]:
[2] . . . If Mr Jeray is successful on Wednesday, that would influence significantly the likelihood of any leave. In any event, if Mr Jeray obtains leave in relation to the matters on 27 October, they can be dealt with separately by the High Court.
[3]If orders are made, they address different questions to those on the appeal on Wednesday. If Mr Jeray is unsuccessful on Wednesday, it would no doubt be convenient, if he thought it appropriate to apply for special leave, to link up that application with the application already filed.
On this and other bases recorded more fully in his Honour’s reasons, the application to vacate the hearing date was dismissed.
This morning, which is to say on the day fixed for hearing of the appeal in the Court of Appeal, Mr Jeray filed a summons in this Court applying for a stay of the hearing of the appeal in the Court of Appeal until his application for special leave to appeal has been finally determined. The proceedings in the Court of Appeal have been stood down to enable the hearing of this application. In support of his application, Mr Jeray has filed and relies on his affidavit of 15 December 2010 in which, having recorded the course of events which I have summarised at rather greater length earlier in these reasons, goes on to depose as follows:
8.On 7 December 2010, I filed an application to the High Court of Australia to appeal the judgement given on 27 October 2010 in Jeray v Blue Mountains City Council & 2 Ors [2010] NSWCA 281.
9.As at the time of this affidavit being duly sworn on 15 December 2010, I have not yet received the transcript of 27 October 2010 for case no. 2009/298487 from the Supreme Court of NSW.
. . .
10.I cannot afford legal advice, assistance or representation, as I am a full-time student reliant on Austudy income.
11.Like case no. 2008/40986 in the Land and Environment Court of NSW and case no. 2009/298487 in the Court of Appeal of the Supreme Court of NSW, I am pursuing the application in the High Court of Australia in the public interest without any financial gain and at considerable personal expense.
12.Like case nos. 2008/40986 and 2009/298487, I am pursuing the application alone whilst undertaking my TAFE studies.
13.To date, I have postponed my university studies in order to pursue case nos. 2008/40986 and 2009/298487.
14.I consider myself to be an environmentalist and an advocate for public participation in Local Government matters.
As developed in oral argument, it is evident that Mr Jeray’s application for a stay of proceedings in the Court of Appeal is founded on the proposition that a stay is necessary to preserve the subject matter of the litigation pending in this Court in the form of his unresolved application for special leave to appeal. He contends that if his application for special leave to appeal would be futile, and he says it would, unless a stay is granted, the jurisdiction to grant a stay arises. See in this respect Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 at 683 per Justice Brennan.
In considering whether a stay should go, even if it is demonstrated that a stay is necessary to preserve the subject matter of the process in this Court, a number of factors are material to the exercise of this Court’s discretion. Justice Brennan described those matters in Jennings Construction in the following terms – see (1986) 161 CLR 681 at 685:
In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider – first, whether there is a substantial prospect that special leave to appeal would be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
It is not self‑evident, in my opinion, that a stay of proceedings in the Court of Appeal is necessary to preserve the subject matter of the application for special leave to appeal to this Court. As I endeavoured to explain to Mr Jeray, it would seem to me that so long as the final orders of the Court of Appeal made in disposing of the appeal presently pending in that Court remained unentered in its records, any disposition of the application for special leave to appeal in Mr Jeray’s favour in this Court coupled with any favourable disposition of an ensuing appeal in Mr Jeray’s favour is a matter which would simply lead to the further hearing of the pending appeal in the Court of Appeal.
Whether or not that is so, it is evident from what President Allsop said in his reasons for declining to vacate the hearing date in that court, that if proceedings in the Court of Appeal go forward and if they were to be resolved against Mr Jeray in that Court, it would be open to Mr Jeray to appeal against that unfavourable disposition by the Court of Appeal of his appeal to that Court and couple it with his pending application in this Court.
Whether or not the analyses which I have made of the procedural posture of this case properly lead to the conclusion that a stay is not necessary to preserve the application for special leave to appeal against futility, I am not persuaded that, as framed in the application for special leave to appeal, the matters which Mr Jeray would seek to agitate in this Court are of a kind which so obviously would attract a grant of special leave as to tend in favour of the interruption at the last minute of the hearing of the appeal to the Court of Appeal when it has been set for hearing for as long as it has.
Whether or not the chronology of events is a valid basis for criticism of the application now made for a stay of proceedings, it is important to bear steadily in mind, in considering what order should be made on Mr Jeray’s summons, that the Court of Appeal’s hearing today has been fixed since, as I am informed, July this year. The application for special leave to appeal which Mr Jeray mounts in this Court is an application concerning his attempt to reopen his earlier application for leave to appeal to the Court of Appeal.
Whether or not the lateness of the application is properly laid as a criticism at the feet of Mr Jeray and assuming for the purposes of argument that no criticism can be made of his conduct in this respect, the fact is that the application for stay of proceedings is made in this Court only on the day on which the appeal has been called on for hearing in the Court of Appeal. This standing alone is powerful reason to decline to exercise the extraordinary jurisdiction of this Court to grant a stay of further proceedings in the Court of Appeal. Coupled with the other considerations that I have earlier mentioned, I am of opinion that the application for stay should stand dismissed. Accordingly, the application made by summons filed this day is dismissed.
MR JERAY: Please the Court.
HIS HONOUR: Yes.
MR HEMMINGS: I just seek costs of the motion, your Honour.
HIS HONOUR: Mr Jeray suggested that they should stand as costs in the application for special leave. What do you say as to that?
MR HEMMINGS: I would not oppose an order that it be the respondents’ costs on the special leave application, your Honour.
HIS HONOUR: Yes. What do you say, Mr Clay?
MR CLAY: That is an appropriate order, your Honour, respondents’ costs in the special leave application.
HIS HONOUR: Yes. Mr Jeray, let me explain to you what that description of the order entails.
MR JERAY: Yes.
HIS HONOUR: An order that the costs should be the respondents’ costs in the application for special leave means that if your application for special leave to appeal fails, you will have to pay the costs. If your application for special leave to appeal succeeds, there will be no order for costs. Do you understand that?
MR JERAY: Yes, your Honour.
HIS HONOUR: Yes. Is there anything you wish to say against my making that order?
MR JERAY: No, your Honour.
HIS HONOUR: Yes. There will be an order that the costs of this application are the respondents’ costs in the application for special leave to appeal. Adjourn the Court.
AT 12.36 PM THE MATTER WAS CONCLUDED
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