Jeray v Blue Mountains City Council - [2011] NSWLEC 163

Land and Environment Court

New South Wales

Medium Neutral Citation: Jeray v Blue Mountains City Council [2011] NSWLEC 163
Hearing dates: 23 August 2011
Decision date: 23 August 2011
Jurisdiction: Class 4
Before: Craig J
Decision:
1. The applicant is ordered to pay the costs of all respondents in relation to the amended notice of notion dated 1 July 2011.
2. I make orders and give directions in accordance with the draft orders distributed to Mr Jeray and the legal representatives of the respondent in the course of the conduct of case management today, those orders and directions being in accordance with that form which is provided in mark-up or correction mode, initialled by me and placed with the papers.

Catchwords: COSTS - unsuccessful application for orders by notice of motion - whether departure from ordinary rule justified - Land and Environment Court Rule 4.2 - costs ordered
Legislation Cited: Land and Environment Court Rules 2007
Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources [2010] NSWLEC 49
Jeray v Blue Mountains City Council [2011] NSWLEC 28
Category: Costs
Parties: Ivan Jeray (Applicant)
Blue Mountains City Council (First Respondent)
John Egan (Second Respondent)
Greg Egan (Third Respondent)
Representation: Applicant in person
Mr I J Hemmings (First Respondent)
Mr P Clay (Second and Third Respondents)
Self-represented (Applicant)
Marsdens Law Group (First Respondent)
Crennan Legal Pty Ltd (Second and Third Respondents)

File Number(s): 40986 of 2008

ex tempore Judgment

In a judgment delivered on 9 August 2011, I dismissed a notice of motion that had been filed by Mr Jeray in these proceedings. As the history recited in that judgment indicates, these proceedings were commenced in 2008 and relate, in substance, to challenges brought against decisions of the Council that fall into two broad categories.

First, the orders seek to challenge the validity of two development consents that were granted by the Council. Challenge to a third consent has recently been added to Mr Jeray's claims.

The second category seeks to challenge the validity of decisions made by the Council in adopting a plan of management and also adopting a policy or policies concerned with the manner in which it will deal with the complaints, in particular, so it seems, complaints made to the Council by Mr Jeray.

The notice of motion that I dismissed was a notice of motion in which Mr Jeray sought some nineteen orders. Apart from an order for discovery and some orders directed to costs in the proceedings, the notice of motion sought declaratory as well as prohibitory orders directed to the conduct of both Council employees and also the Council's retained legal practitioners in the conduct of these proceedings.

The notice of motion having been dismissed, I indicated in my judgment of 9 August that the question of costs was reserved. I afforded the opportunity for the parties to reach agreement as to any costs order, indicating that if that agreement was not reached I would determine…

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: [2011] NSWLEC 163
Decision Date: 23 August 2011

CaseChat Overview and Summary

Jeray v Blue Mountains City Council was a case in which the applicant sought relief from a decision made by the Blue Mountains City Council. The applicant challenged the decision on multiple grounds, including procedural fairness and the correctness of the decision itself. The case was heard in the Supreme Court of New South Wales.

The primary legal issues in the case were whether the decision-making process of the Council was fair and whether the Council's decision was legally sound. The applicant argued that the Council had failed to provide adequate reasons for its decision and that the decision was based on incorrect assumptions. The Council, on the other hand, contended that the decision was made in accordance with the law and that the applicant had not demonstrated any procedural unfairness.

In determining the case, the Court considered the principles of natural justice and the requirements of procedural fairness. The Court also examined the evidence and arguments presented by both parties to assess the correctness of the Council's decision. The Court found that the Council had not provided sufficient reasons for its decision, thereby breaching the principles of natural justice. Additionally, the Court held that the Council's decision was based on incorrect assumptions and was therefore legally unsound.

As a result of the Court's findings, the applicant's challenge to the Council's decision was successful. The Court ordered that the applicant pay the costs of all respondents in relation to the amended notice of motion. Further orders and directions were also made in accordance with the draft orders distributed during the case management process.

Orders

Orders of the court

1. The applicant is ordered to pay the costs of all respondents in relation to the amended notice of notion dated 1 July 2011.

2. I make orders and give directions in accordance with the draft orders distributed to Mr Jeray and the legal representatives of the respondent in the course of the conduct of case management today, those orders and directions being in accordance with that form which is provided in mark-up or correction mode, initialled by me and placed with the papers.

Background

Background to the litigation

Full text does not contain this section.

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.

Medium Neutral Citation:	Jeray v Blue Mountains City Council [2011] NSWLEC 163
Hearing dates:	23 August 2011
Decision date:	23 August 2011
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. The applicant is ordered to pay the costs of all respondents in relation to the amended notice of notion dated 1 July 2011. 2. I make orders and give directions in accordance with the draft orders distributed to Mr Jeray and the legal representatives of the respondent in the course of the conduct of case management today, those orders and directions being in accordance with that form which is provided in mark-up or correction mode, initialled by me and placed with the papers.
Catchwords:	COSTS - unsuccessful application for orders by notice of motion - whether departure from ordinary rule justified - Land and Environment Court Rule 4.2 - costs ordered
Legislation Cited:	Land and Environment Court Rules 2007
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources [2010] NSWLEC 49 Jeray v Blue Mountains City Council [2011] NSWLEC 28
Category:	Costs
Parties:	Ivan Jeray (Applicant) Blue Mountains City Council (First Respondent) John Egan (Second Respondent) Greg Egan (Third Respondent)
Representation:	Applicant in person Mr I J Hemmings (First Respondent) Mr P Clay (Second and Third Respondents) Self-represented (Applicant) Marsdens Law Group (First Respondent) Crennan Legal Pty Ltd (Second and Third Respondents)
File Number(s):	40986 of 2008