Jeray v Blue Mountains City Council - [2013] FCA 545

FEDERAL COURT OF AUSTRALIA
Jeray v Blue Mountains City Council [2013] FCA 545

Citation: Jeray v Blue Mountains City Council [2013] FCA 545

Parties: IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL

File number: NSD 845 of 2013

Judge: GRIFFITHS J

Date of judgment: 31 May 2013

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from orders of the Federal Circuit Court of Australia – principles in relation to applications for leave to appeal interlocutory judgment - whether judge of the Federal Circuit Court had the power to order mediation in relation to only part of the dispute – whether apprehended or actual bias on the part of the primary judge

Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 34
Federal Circuit Court Rules2001 r 27.05

Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ruffles v Chilman [2002] WASCA 145

Date of hearing: 31 May 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr N Arias Alvarez

Solicitor for the Respondent: Marsdens Law Group

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 845 of 2013

BETWEEN:
IVAN JERAY
Applicant

AND:
BLUE MOUNTAINS CITY COUNCIL
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

31 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for leave to appeal filed 17 May 2013 is dismissed.
2.The interlocutory application filed 17 May 2013 is dismissed.
3.The applicant pay the respondent’s costs in relation to the applications referred to above in paragraphs 1 and 2.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 845 of 2013

BETWEEN:
IVAN JERAY
Applicant

AND:
BLUE MOUNTAINS CITY COUNCIL
Respondent

JUDGE:

GRIFFITHS J

DATE:

31 MAY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

The Court has before it today for hearing two interlocutory applications filed on 17 May 2013 by the applicant. The first is an application for leave to appeal against an order made on 3 May 2013 by Judge Lloyd-Jones of the Federal Circuit Court of Australia. In his second interlocutory application, the applicant seeks a stay of proceedings in the Federal Circuit Court, including a mediation which is scheduled to take place on 5 June 2013, as ordered by Judge Lloyd-Jones on 3 May 2013.
The applicant relies on two affidavits sworn by him on 17 and 31 May 2013 respectively. He also tendered a Fact Sheet issued by the NSW Attorney-General’s Department entitled “Mediation at Community Justice Centres”, which describes what a mediation is about. The applicant also took the Court to various cases and other documents which describe mediation. He emphasised that at the heart of the concept of mediation is the notion that people involved in the mediation can reach their own common sense solution to their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCA 545
Decision Date: 31 May 2013

CaseChat Overview and Summary

Jeray v Blue Mountains City Council is a case where the applicant, Jeray, sought leave to appeal against orders made by the Federal Circuit Court of Australia, specifically related to a mediation process in the context of a debt dispute. The Federal Circuit Court had ordered that only certain aspects of the dispute, namely the timing and method of payment of a debt of approximately $6,000, be subject to mediation. Jeray argued that the primary judge exhibited bias and did not have the power to limit the mediation to only part of the dispute.

The legal issues before the court were twofold: first, whether the judge had the authority to order mediation concerning only a portion of the dispute, and second, whether there was any evidence of bias on the part of the primary judge. The court examined the statutory provisions and rules governing mediation under the Federal Circuit Court of Australia Act 1999 and the Federal Circuit Court Rules 2001. It found that the primary judge indeed had the power to limit the scope of mediation to specific issues, as permitted by section 34 of the FCC Act and rule 27.05 of the FCC Rules. Regarding the bias claim, the court found no evidence to support Jeray's assertion of actual or apprehended bias.

The court concluded that Jeray had not demonstrated sufficient doubt regarding the correctness of the Federal Circuit Court's orders or that refusing leave to appeal would result in substantial injustice. Therefore, the application for leave to appeal was dismissed, along with the interlocutory application. Jeray was also ordered to pay the respondent's costs associated with these applications.

Orders

Orders of the court

1. The application for leave to appeal filed 17 May 2013 is dismissed.

2. The interlocutory application filed 17 May 2013 is dismissed.

3. The applicant pay the respondent’s costs in relation to the applications referred to above in paragraphs 1 and 2.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant gave evidence that during the hearing below on 3 May 2013, the primary judge said that the applicant either had to agree to pay the alleged debt in one amount or in instalments and that nothing else could be considered at the mediation. He says that this statement assists his claim that the primary judge dictated the outcome of the mediation. Background to the dispute The dispute arises against the background of contested proceedings between the parties which commenced in the Land and Environment Court, was then appealed to the Court of Appeal and then ultimately went to the High Court. The applicant informed me that the subject debt relates to an order for costs in the amount of approximately $6,000 concerning the High Court proceedings. The principles guiding whether or not leave to appeal should be granted in respect of an interlocutory judgment are well established. They are set out in the Full Court’s well-known decision in Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397. In essence, the applicant must demonstrate that there is sufficient doubt as to the correctness of the judgment or challenged order below to warrant leave to appeal being granted and, further, that if the judgment or order below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. Those two guiding principles are not exhaustive but they suffice in the circumstances here. In my opinion, the applicant has failed to show that there is any sufficient doubt as to the correctness of Lloyd-Jones J’s orders concerning mediation and, in particular, order 5, which confined the ambit of the mediation to matters relating to the timing and method of payment of the subject debt. As to the first proposed ground of appeal, it is plain that his Honour had power to make an order that only part of proceedings or any matter arising out of them be referred to mediation. That is made clear in s 34 of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCC Act) which relevantly provides:34. Mediation(1)The Federal Circuit Court of Australia may, by order, refer proceedings in the Federal Circuit Court of Australia, or any part of them or any matter arising out of them, to a mediator for mediation in accordance with the Rules of Court.(2)Subsection (1) has effect subject to the Rules of Court.(3)Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings.… Division 27.2 of the Federal Circuit Court Rules 2001 (the FCC Rules) deals with mediation. Rule 27.05(2) deals with a situation where part only of a proceeding is the subject of an order for mediation. Rule 27.05 is in the following terms:27.05 Mediation conference(1) A mediation conference must be conducted:(a) in accordance with any direction of the Court; and(b)as a structured process in which the mediator assists the parties by encouraging and facilitating discussion between the parties so that:(i)they may communicate effectively with each other about the dispute; and(ii)if agreement is reached, with the consent of the parties the agreement can be included in a consent order.(2)If part only of a proceeding is the subject of an order for mediation, the mediator may at the end of the mediation report to the Court in terms agreed between the parties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Jeray v Blue Mountains City Council [2013] FCA 545
Parties:		IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL
File number:		NSD 845 of 2013
Judge:		GRIFFITHS J
Date of judgment:		31 May 2013
Catchwords:		PRACTICE AND PROCEDURE – application for leave to appeal from orders of the Federal Circuit Court of Australia – principles in relation to applications for leave to appeal interlocutory judgment - whether judge of the Federal Circuit Court had the power to order mediation in relation to only part of the dispute – whether apprehended or actual bias on the part of the primary judge
Legislation:		Federal Circuit Court of Australia Act 1999 (Cth) s 34 Federal Circuit Court Rules2001 r 27.05
Cases cited:		Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Ruffles v Chilman [2002] WASCA 145
Date of hearing:	31 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr N Arias Alvarez
Solicitor for the Respondent:	Marsdens Law Group

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 845 of 2013

JUDGE:	GRIFFITHS J
DATE OF ORDER:	31 MAY 2013
WHERE MADE:	SYDNEY

JUDGE:	GRIFFITHS J
DATE:	31 MAY 2013
PLACE:	SYDNEY