Jeray v Blue Mountains City Council
[2013] FCA 545
•31 May 2013
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 27.05Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ruffles v Chilman [2002] WASCA 145Date 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 dispute. He submits that the essence of mediation is that the parties resolve their dispute, not the Court. He says further that the primary judge here directed the outcome of the mediation and that he did not have power to do so.
It is convenient to deal with those interlocutory applications in turn.
Leave to appeal
On 3 May 2013, Judge Lloyd-Jones made the following orders in proceedings between the Council and Mr Jeray in proceedings (P)SYG466/2013:
1.The matter is referred to a Registrar in Sydney for mediation forthwith on a date to be fixed by the Registrar pursuant to Part 27 of the Federal Circuit Court Rules 2001 (Cth).
2.If mediation is unsuccessful the matter be re-listed for a directions hearing forthwith at a time to be fixed.
3.The respondent debtor’s interim application filed on 30 April 2013 be otherwise dismissed.
4.Costs be reserved.
The Court also included the following note to those orders:
5.The scope of the mediation to be conducted is limited to the timing and method of the payment of the debt that is the subject of these proceedings and must not extend beyond that.
The applicant seeks leave to appeal against “Order” 5 on the following two grounds:
1.Lloyd-Jones J did not have the power to limit the outcomes of mediation.
2.Limiting the outcomes of mediation to the advantage of the respondent gives rise to bias of Lloyd-Jones J.
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.
Having regard to those provisions, the applicant has failed to establish that any doubt as to whether there is power to limit the mediation in the way that his Honour did. There plainly was power to do so, in the exercise of the primary judge’s discretion.
The applicant wants to have a mediation which extends to the issue of the underlying alleged debt. It is plain that the primary judge was not prepared to refer that matter to mediation. He was only prepared to refer the matters set out in Order 5 above. In my view, he plainly had the power to so limit the mediation, having regard to s 34 of the FCC Act and r 27.05 of the FCC Rules. In my view, there is nothing in Order 5 to indicate that the outcome of the mediation has been directed or dictated in any way by the primary judge. He has simply defined the scope of the mediation, as the express terms of Order 5 make abundantly clear. The parties are free to negotiate the outcome of the mediation within the scope defined by that order. And, of course, it is the terms of that order, not anything said by the primary judge in the course of the hearing on 3 May 2013, which provide the terms of reference or determine the scope of the mediation.
The proposed second ground of appeal is tied to the first ground of appeal. The applicant proposes to argue that, ordering the mediation be limited in a way which is said to be to the Council’s advantage and to the applicant’s disadvantage, gives rise to bias on the part of the primary judge. This proposed ground of appeal does not provide a sufficient basis for a grant of leave to appeal. The allegation of bias has not been particularised and the applicant was unable to point to any persuasive evidence apart from the terms of Order 5 made by the primary judge as providing a basis for any argument of either actual or apprehended bias. The applicant’s evidence of what was said about the scope of the mediation does not suggest bias. The making of an order which is clearly within the primary judge’s power and discretion cannot, of itself, give rise to an arguable case of bias.
The applicant drew the Court’s attention to the decision of the Full Court of the WA Supreme Court in Ruffles v Chilman[2002] WASCA 145. That case deals with principles which are incontrovertible as far as allegations of apprehended bias against a judicial officer are concerned. In my view, they do not assist the applicant in overcoming the need for him to establish in the particular circumstances here that he has an arguable case of either apprehended or actual bias so as to warrant a grant of leave to appeal.
I consider that the applicant has failed to identify any arguable appellable error by the primary judge. Nor is there sufficient doubt as to the validity or correctness of the disputed order to warrant a grant of leave to appeal. Moreover, the applicant has failed to demonstrate that he will suffer any substantial injustice if leave to appeal is refused in circumstances where he has failed to identify any arguable appellable error.
For all these reasons, the application for leave to appeal should be dismissed with costs.
Interlocutory application for a stay
This interlocutory application must also be dismissed because it is inextricably tied to the applicant’s unsuccessful application for leave to appeal. Accordingly, that interlocutory application is also dismissed, with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 31 May 2013