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

1. 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.

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

1. 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.

1. 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.

1. 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 her orders are clearly noted on the file. She also gave directions for the filing of evidence on the matters raised in the adjourned Notice of Motion.

1. On 20 June, Mr Jeray filed a further NOM which is before me today for determination as Duty Judge. It seeks, primarily (in par 1), review of the Registrar's decision/orders of 17 June. Such a review is provided for in UCPR 49.19. The Court of Appeal decision in Tomko v Palasty (No2) [2007] NSWCA 369 makes plain that it is not an appeal, that error need not be demonstrated, and that the mover must establish that any variation in the original decision serves the interests of justice. I applied the Tomko principles in Mir & Ors v Valuer General [2009] NSWLEC 15.

1. The NOM of 20 June also seeks (in pars 4, 5, 6 and 7) to amend some of the prayers adjourned on 17 June (nos 1, 3, 5 and 15), and to add some more (new nos 18 and 19 spelt out in pars 2 and 3, and another new prayer for production of documents, spelt out in par 8 of the 20 June NOM). The Council does not raise any real objection to allowing some of those amendments to go forward to the Trial Judge on 11 July, as ordered by the Registrar.

1. Prayer 1 of NOM 10 June seeks to " stay" the scheduled hearing until the other issues in that NOM have been decided. That prayer was one of the 15 stood over to the Trial Judge on 11 July. Prayer 4 of NOM 20 June basically seeks the same order, but uses the word " vacate ".

1. Essentially, Mr Jeray argues that the hearing of his substantive proceedings should await the outcome of the two appeals.

1. The Council argues that the substantive hearing ought not be vacated by reason of the two appeals, and, from the arguments previewed by Mr Jeray before me today, that will be a serious question for the Trial Judge to decide, if the Registrar's order of 17 June is to stand.

1. I turn now to consider that issue.

1. In respect of the Registrar's dismissal of Prayer 2 of NOM 10 June on 17 June, Mr Jeray says that she lacked power in respect of No 2 and should have referred the matter to a Judge. That prayer sought a " no tamper or destroy " order against the Council, but it appears to be accepted that Mr Jeray's concerns were not supported by evidence of any breach or intended breach of council's statutory obligations. I believe that determination of that prayer was within the Registrar's powers and duties, and that any Judge to whom the matter was referred would, in the absence of such evidence, have made the same decision.

1. Prayer 3 of the NOM 10 June sought an order for discovery by Council of " all records that it possesses that are relevant to " prayers 5 to 9 of that NOM. The discovery process (UCPR 21) requires clear specification of classes of documents before the question of relevance can be adjudicated. The Registrar decided that the order sought was too broad and she dismissed it. That decision would appear, on the basis of the terms in which declarations are couched in prayers 5 to 9, to be entirely appropriate in all the circumstances.

1. I am afraid that I cannot agree that the interests of justice would be served by those orders of 17 June being " reviewed " and set aside.

1. I am also of the view that adjudication of the stay/vacate application to Day 1 of the proposed hearing was the appropriate decision, and serves the interests of justice. As I have already noted, that course provides the Applicant with a suitable opportunity to agitate his argument that the trial should await the appeals.

1. Par 5 of NOM 20 June seeks to replace par 3 of NOM 10 June and add some of the amended prayers to the list. That prayer was correctly dismissed, and the new formulation suffers from the same faults as the first.

1. In respect of par 8 of NOM 20 June, the Council says that there are no documents to produce in respect of par 8(a), and that it will comply with par 8(b). The adequacy of that response will, no doubt, arise at the hearing of the substantive proceedings.

1. Accordingly I make the following orders:

(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.

Decision last updated: 01 July 2011