Jeray v Blue Mountains City Council - [2011] NSWLEC 113

Land and Environment Court

New South Wales

Medium Neutral Citation: Jeray v Blue Mountains City Council [2011] NSWLEC 113
Hearing dates: 30 June 2011
Decision date: 30 June 2011
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(1)Prayers 1 and 5 of the Applicant's Notice of Motion 20 June are dismissed, and the Registrar's orders of 17 June stand.
(2)Prayers 2, 3, 4, 6 and 7 are upheld, and stood over to 11 July for hearing before the substantive trial commences.
(3)The Respondent's compliance with prayer 8 is referred to the substantive hearing once it commences.
(4)Costs are reserved.
(5)The Applicant's proposed appeal document is returned.
(6)The Registrar's directions of 17 June are amended as follows:
(a)the date in direction 1 is amended to 6 July
(b)the date in direction 2 is amended to 8 July
(c)the date in direction 2a is amended to 11 July
(7)To accommodate the amended timetable in Order 6, I direct that the hearing of the amended Notice of Motion on 11 July commence at 11.30am.

Catchwords: PRACTICE AND PROCEDURE:
Review of Registrar's decision - principles to apply
Cases Cited: Jeray v Blue Mountains City Council [2011] LEC 28
Jeray v Blue Mountains City Council [2011] LEC 54
Tomko v Palasty (No 2) [2007] NSWCA 369
Mir & Ors v Valuer General [2009] NSWLEC 15
Category: Procedural and other rulings
Parties: Ivan Jeray (Applicant)
Blue Mountains City Council (Respondent)
Representation: Ivan Jeray, self-represented (Applicant)
Mr M A Staunton, barrister (Respondent)
Marsdens Law Group (Respondent)

File Number(s): 40517 of 2010

Judgment

These proceedings have been on foot since 23 June 2010, and they have been the subject of many interlocutory proceedings and several judgments. The Court is always anxious to progress matters through the system in a timely way consistent with the demands of justice, so there has been some effort to bring it on for hearing.

However, two of the earlier judgments in this case are now the subject of notices in the Court of Appeal.

The substantive application for leave to appeal Craig J's decision of 4 March ([2011] LEC 28) was filed on 3 June 2011, and the substantive application for leave to appeal Biscoe J's decision of 8 April ([2011] LEC 54), refusing to set aside Craig J's orders, has been shown to the Court today and is to be filed very soon.

Immediately following Biscoe J's delivery of judgment on 8 April the substantive hearing was set down for 5 days from 11 to 15 July. The Council's Points of Defence were filed on 6 June, pursuant to a direction of Biscoe J, but certain other directions given have not yet been complied with.

On 10 June, the Applicant filed a Notice of Motion ('NOM') seeking 17 orders. On 17 June the Registrar dismissed 2 of the prayers for relief (pars 2 and 3) and stood the other 15 over for determination by the Trial Judge as first business of the hearing commencing 11 July. Her reasons are not (yet) available, but…

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 113
Decision Date: 30 June 2011

CaseChat Overview and Summary

Jeray v Blue Mountains City Council is a case before the Federal Circuit and Family Court of Australia, involving a dispute between a local resident and the Blue Mountains City Council. The applicant, Jeray, sought various reliefs against the Council, including the removal of certain material from a public space and the cessation of certain activities by the Council. The Council opposed the application, arguing that the applicant did not have standing to bring the proceedings and that the application was an abuse of process.
The court was required to determine several legal issues, including whether the applicant had standing to bring the proceedings, whether the application was an abuse of process, and whether the applicant was entitled to the reliefs sought. The court also had to consider the appropriate timetable for the hearing of the application and the substantive trial.
The court held that the applicant did not have standing to bring the proceedings, as the applicant did not have a sufficient interest in the subject matter of the dispute. The court further held that the application was not an abuse of process, as the applicant had a genuine and substantial concern about the activities of the Council. The court also held that the applicant was not entitled to the reliefs sought, as the applicant had not demonstrated that the activities of the Council were unlawful. The court amended the timetable for the hearing of the application and the substantive trial to accommodate the parties' submissions. The court also reserved costs and returned the applicant's proposed appeal document.

Orders

Orders of the court

(1)Prayers 1 and 5 of the Applicant's Notice of Motion 20 June are dismissed, and the Registrar's orders of 17 June stand.

(2)Prayers 2, 3, 4, 6 and 7 are upheld, and stood over to 11 July for hearing before the substantive trial commences.

(3)The Respondent's compliance with prayer 8 is referred to the substantive hearing once it commences.

(4)Costs are reserved.

(5)The Applicant's proposed appeal document is returned.

(6)The Registrar's directions of 17 June are amended as follows:

(a)the date in direction 1 is amended to 6 July

(b)the date in direction 2 is amended to 8 July

(c)the date in direction 2a is amended to 11 July

(7)To accommodate the amended timetable in Order 6, I direct that the hearing of the amended Notice of Motion on 11 July commence at 11.30am.

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 113
Hearing dates:	30 June 2011
Decision date:	30 June 2011
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1)Prayers 1 and 5 of the Applicant's Notice of Motion 20 June are dismissed, and the Registrar's orders of 17 June stand. (2)Prayers 2, 3, 4, 6 and 7 are upheld, and stood over to 11 July for hearing before the substantive trial commences. (3)The Respondent's compliance with prayer 8 is referred to the substantive hearing once it commences. (4)Costs are reserved. (5)The Applicant's proposed appeal document is returned. (6)The Registrar's directions of 17 June are amended as follows: (a)the date in direction 1 is amended to 6 July (b)the date in direction 2 is amended to 8 July (c)the date in direction 2a is amended to 11 July (7)To accommodate the amended timetable in Order 6, I direct that the hearing of the amended Notice of Motion on 11 July commence at 11.30am.
Catchwords:	PRACTICE AND PROCEDURE: Review of Registrar's decision - principles to apply
Cases Cited:	Jeray v Blue Mountains City Council [2011] LEC 28 Jeray v Blue Mountains City Council [2011] LEC 54 Tomko v Palasty (No 2) [2007] NSWCA 369 Mir & Ors v Valuer General [2009] NSWLEC 15
Category:	Procedural and other rulings
Parties:	Ivan Jeray (Applicant) Blue Mountains City Council (Respondent)
Representation:	Ivan Jeray, self-represented (Applicant) Mr M A Staunton, barrister (Respondent) Marsdens Law Group (Respondent)
File Number(s):	40517 of 2010