Jeray v Blue Mountains City Council

[2011] NSWLEC 54

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jeray v Blue Mountains City Council [2011] NSWLEC 54
Hearing dates:	25 March, 1 April 2011
Decision date:	08 April 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) Applicant's amended notice of motion 25 March 2011 dismissed; (2) Applicant to pay Respondent's costs of the amended notice of motion; (3) directions.
Catchwords:	CONTEMPT:- application to set aside orders in contempt proceedings and for production of documents; PRACTICE AND PROCEDURE: - production of documents
Legislation Cited:	Local Government Act 1993 Uniform Civil Procedure Rules 2005, rr 36.15, 36.16
Cases Cited:	Jeray v Blue Mountains City Council [2011] NSWLEC 28
Category:	Interlocutory applications
Parties:	Ivan Jeray (Applicant) Blue Mountains City Council (Respondent)
Representation:	Mr I Jeray, in person (Applicant) Mr D R Baird, solicitor (Respondent) Self represented (Applicant) Marsdens Law Group(Respondent)
File Number(s):	40517/10

Judgment

1. By his amended statement of claim, the applicant, Mr Ivan Jeray, seeks seven declarations to the effect that the respondent, Blue Mountains City Council, has breached a number of provisions of the Local Government Act 1993 by failing to provide access to documents which he claims an entitlement to inspect. The relief that he seeks is also directed to establishing breach on the part of the Council of provisions of the Local Government Act having regard to the manner in which it keeps and maintains its records.

1. The matter presently before the Court is an amended notice of motion by the applicant, filed and served on 25 March 2011. He moves for orders that:

(a)   the orders made by Craig J on 4 March 2011 be set aside;

(b)   before that motion is heard, the Council provide him with certain information said to be relevant to the first order; and

(c)   the Council also provide him with other information said to be relevant to the proceedings.

1. On 4 March 2011 Craig J determined Mr Jeray's motion that the Council be found guilty of contempt of court for failure to produce an email of 8 June 2010 from the Council's General Manager, Mr Greenwood, to the Council's Executive Officer, Ms Bargenquast, in response to a notice to produce issued by him on 16 September 2010. His Honour acquitted the Council of the charges; dismissed the notice of motion; and ordered Mr Jeray to pay the Council's costs insofar as the motion charged the Council with contempt: Jeray v Blue Mountains City Council [2011] NSWLEC 28. His Honour said at [5]:

5 As will appear, the contempt ultimately alleged by Mr Jeray is the failure by the Council to produce, in response to a notice to produce issued by him on 16 September 2010, an email dated 8 June 2010 from the Council's General Manager, Mr Greenwood, to the Council's Executive Officer, Ms Julie Bargenquast ( the 8 June email). That email attached a complaint from Mr Jeray dated 7 June 2010 which was, in turn, forwarded to the Council by way of email. A copy of the 8 June email was not produced to Mr Jeray until 3 February 2011, that is, during the hearing of the contempt motion.

and at [52] - [54]:

52 The evidence given by Ms Bargenquast was clear. When called upon to respond to Mr Jeray's notice to produce on behalf of the Council, her source of reference was the Serious and Substantial Complaints File into which, so she understood, all documents relevant to enquiries seeking to respond to Mr Jeray's complaint had been placed. She also searched the Council electronic records management system for documents related to matters of that kind. The 8 June email was recorded in neither the file nor on that database. Moreover, the request from Mr Greenwood that she deal with the complaint was seen by her to be a work direction to commence the process rather than a document which, in itself, was part of that process.

53 As I have also recorded earlier, Ms Bargenquast did not recollect that she had received the 8 June email from Mr Greenwood. It was only in response to the request made by Mr Jeray following her cross-examination on 1 February that she had searched the email archives system enabling her to identify the document.

54 I am satisfied that Ms Bargenquast did use her best endeavours to locate the documents believed to be responsive to Mr Jeray's notice to produce. The failure to identify the 8 June email was clearly an oversight. Other than to record the fact that the initial step was taken by the General Manager on 8 June by referring the matter to Ms Bargenquast, the document does not otherwise provide any substantive information directed to the enquiries made into Mr Jeray's complaint. It is understandable that the email was not seen to be a record of enquiries made into his complaint.

1. At the trial before Craig J, Mr Jeray cross-examined Ms Bargenquast on the email of 8 June 2010.

1. Mr Jeray says that he wishes to see information referred to in his amended notice of motion in order to know whether the evidence given by Ms Bargenquast referred to at [52] and [53] of that judgment was false. Mr Jeray contends that if he can demonstrate that Ms Bargenquast's evidence was false, the falsity of that evidence constitutes a ground for setting aside Craig J's orders. Conversely, he says that if the documents are produced and satisfy him that the evidence was not false, he may withdraw his application to set aside those orders. He refers to publications of the NSW Ombudsman concerning transparency and accountability in government and the public sector and access to information.

1. Three observations may be made at this point. First, the attempt to obtain additional information relating to the contempt proceedings is in my view a legally impermissible fishing expedition, with the object of seeing if it provides a reason for setting aside the orders. Secondly, it is a general principle that parties cannot in the same suit advance argument or adduce further evidence directed to showing that an issue was wrongly determined. Thirdly, the power to set aside orders is limited by rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 to which Mr Jeray does not refer.

BACKGROUND

1. Mr Jeray commenced these Class 4 proceedings in June 2010. He is a self-represented litigant. The history of the proceedings is recounted in the judgment of Craig J in the contempt proceeding.

1. Craig J's judgment was delivered on 4 March 2011. In the meantime, his Honour had directed that the substantive proceedings be listed for directions on 18 February 2011. On that date Pain J made directions to progress the substantive proceedings. They included directions that Mr Jeray file and serve points of claim and affidavits by 8 March 2011. He has not complied. He asserts that he cannot comply until the Council provides the information referred to in his amended notice of motion with which I am dealing.

1. On 7 March 2011 Mr Jeray wrote to the Council stating: "It appears to me the respondent did not provide to the Court and me essential evidence for the judgement of Jeray v Blue Mountains City Council [2011] NSWLEC 28". He then requested that the Council provide him with copies of a very substantial number of documents which he described in 11 numbered paragraphs.

1. On 8 March 2011 Mr Jeray wrote a further letter to the Council requesting them to provide more documents by the same time.

1. On the same date the Council's solicitors, Marsdens Law Group, wrote to Mr Jeray stating that the solicitor with the carriage of the matter was on leave and would be returning on 14 March and that the solicitor would then address Mr Jeray's letter of 7 March. The solicitors indicated to Mr Jeray that in the meantime the letter had been forwarded to the Council for instructions.

1. I note at this point that Mr Jeray has insisted that the Council only communicate with him by letter left in his mailbox. This purports to preclude modern methods of communication such as the e-mail. It appears to have resulted, on occasions, in letters passing in the mail.

1. On 10 March 2011 Mr Jeray wrote to the Council's solicitors extending the time for compliance with his request to produce documents by one day to 11 March 2011.

1. On 16 March 2011 Mr Jeray wrote to the Council's solicitors again saying that the records he had requested were "essential evidence for the judgment of Jeray v Blue Mountains City Council [2011] NSWLEC 28". For the first time he asserted that those records were also relevant to the main proceedings. Mr Jeray asserted that the Council's failure to provide access to those records had prejudiced his ability to comply with the Court's directions to file points of claim and affidavits in chief by 18 March.

1. On 16 March 2011 the Council's solicitors replied to Mr Jeray in detail regarding the requests for records Mr Jeray made in his letters of 7 and 8 March 2011. Generally, this reply placed the records in three categories. First, documents that had previously been produced, further copies of which were attached; secondly, documents which were said not to be relevant to any fact in issue in the contempt proceedings or the main proceedings; and thirdly, documents that did not exist.

1. It appears that Mr Jeray had not received the last-mentioned letter when he wrote to the Council's solicitors on 17 March 2011 stating again that the records he had requested were "essential evidence for the judgment of Jeray v Blue Mountains City Council [2011] NSWLEC 28". He did not mention that they were relevant to the main proceedings. He said that he had been placed in a position where he had to file a notice of motion to set aside the orders of Craig J in addition to seeking an order for the provision of those records.

1. On 18 March 2011 Mr Jeray filed a notice of motion returnable on 25 March 2011 seeking an order that the orders made by Craig J on 4 March 2011 be set aside and that, before the motion for that order be heard, the Council provide him with copies of a substantial number of records set out in 12 numbered paragraphs.

1. On 23 March 2011 Mr Jeray wrote to the Council's solicitors refining the list of documents he required to be produced. It seems this amended list was a result of the Council's solicitors' letter of 16 March. A long list of records which he required to be produced was set out in his letter. He foreshadowed that he would file an amended notice of motion seeking different documents from most of those sought in his notice of motion.

1. On 25 March 2011 Mr Jeray's notice of motion came before me as the list judge. Because of the pressure of the list I stood it over to be heard at 2pm. Shortly before lunch, Mr Jeray served the Council with an amended notice of motion which he filed in Court at 2pm. The amended notice of motion continues to seek to set aside the orders of Craig J, but changes all the records that he seeks to have the Council produce, except for those in prayer 2(i). The hearing of the amended notice of motion occupied the remainder of the day and then was stood over part heard to my list on the following week, 1 April 2011, when it occupied the majority of that day.

MR JERAY'S AMENDED NOTICE OF MOTION

1. Mr Jeray's amended notice of motion is in the following terms:

1. That this notice of motion not be heard until the respondent has provided to the applicant a copy of all the information indicated at paragraph no. 2(i) and (ii) below and further information as required by the applicant.

2. The respondent must provide to the applicant a copy of all the following information:

(i) A copy of all the information listed at point nos. 4 to 6 in the applicant's letter to the respondent dated 23 March 2011, a copy of which is included in the applicant's affidavit dated 24 March 2011.

(ii) Screenshot copies of the entire registers and all their details showing who has had access and when to the F05085 file and Mr. Robert Greenwood's email to Ms. Julie Bargenquast (see point no. 4b of the applicant's letter to the respondent dated 23 March 2011) from 7 June 2010 to the time the screenshots are printed.

(iii) Screenshot copies of the entire F05541 file register and all its details.

(iv) Screenshot copies of the entire registers and all their details for the 108-120 Narrow Neck Rd, Katoomba and 85-99 Burrawang St, Katoomba development application files and records, inclusive of development related records.

(v) Screenshot copies of the entire registers and all their details for the Upper Kedumba River Valley, The Gully Traditional Owners and The Gully Co-operative Management Committee files and records.

(vi) Screenshot copies of the registers and all their details showing who has had access and when to the above files and records at paragraph no. 2 (iii) to (v) above from 16 March 2010 to the time the screenshots are printed.

3. Set aside order nos. 1, 2 and 3 made by Justice Craig on 4 March 2011 for case no. 2010/40517.

4. Costs.

1. Mr Jeray says that the information in 2(i) and (ii) relate to the contempt proceedings and that the information in 2(iii) - (vi) relate to the main proceedings.

1. Prayer 3 seeks to set aside the orders made by Craig J referred to at [3] above. Prayer 1 is that that motion not be heard until the Council has provided a copy of all the information in prayers 2(i) and (ii).

1. The Council submits that, generally, the documents sought by Mr Jeray in the amended notice of motion have either already been provided; or are not relevant to any issue, serve no legislative forensic purpose and provide no link to the contempt or main proceedings; or do not exist. I accept that this is generally accurate, as the following analysis shows.

2(i) amended notice of motion

1. The documents sought in 2(i) of the amended notice of motion were requested in paragraphs 4-6 of Mr Jeray's letter of 23 March 2011. That letter had been substantially responded to earlier by the Council's solicitors' letter of 16 March 2011, as follows:

Mr Jeray letter 23.3.11 4(a) request

A complete copy of the email that was faxed from the Marsdens Law Group's office to Blue Mountains City Council at 1:38 pm on 19 October 2010 that was partly concealed and subsequently included within Ms Bargenquast's affidavit of 19 October 2010 at annexure "E". This copy must reveal the concealed portion of the email.

Council's solicitors' reply 16.3.11

Paragraphs 1 and 2 provided the complete document. Mr Jeray complains that a copy of his email of complaint of 7 June 2010 to the Council annexed to Ms Bargenquast's affidavit of 19 October 2010 in the contempt proceedings, masked the top part of the page on which it appeared. He says that he is entitled to see the masked part. He is suspicious that the masked part was the email of 8 June 2010. The evidence before me establishes that the masked part was merely an email from Ms Bargenquast to the Council's solicitors, enclosing Mr Jeray's email of complaint. There was no reason for Ms Bargenquast to annex it to her affidavit.

Mr Jeray letter 23.3.11 4(b) request

A complete copy of the email (Subject: FW: Attn: Acting General Manager - Complaint of Ms Marlene Jones) that was sent by Mr Robert Greenwood to Ms Bargenquast on 8 June 2010 at 10.09 am, with the TRIM reference number included in the record of the email.

Council's solicitors' reply 16.3.11

Paragraph 3 provided another copy of this document which had previously been provided, but with no TRIM reference number because the Council says it is not on its TRIM computer system. That is consistent with the evidence before Craig J, which his Honour accepted at [52] - [54] of his judgment quoted earlier. Mr Jeray suggests that the Council may have removed, or did remove, the email of 8 June 2010 from the TRIM system. This is a serious allegation. There is no evidence to support it and I do not accept it.

Mr Jeray letter 23.3.11 4(c) request

Complete copies (with the TRIM reference number included in the record) of the following TRIM reference numbered records: 10/83370 to 10/83373 and 10/83375 to 10/83384.

Council's solicitors' reply 16.3.11

Paragraph 4 said that the Council would not be providing these documents because none are relevant to a fact in issue in the proceedings or the proceedings generally, and provided a brief description of each document to confirm this. I agree. Mr Jeray wants to know if the 8 June 2010 email is among these TRIM documents. The Council's response indicates that it is not.

Mr Jeray letter 23.3.11 4(d) request

Screenshot copies of all the electronic Group and Branch Document Registers (inclusive of archive registers showing archived records) from Executive Services and Environmental and Customer Services showing the records (and all their details as shown on the registers including their titles) indicated at nos. 1 to 4 in my letter dated 7 March 2011 and the F00146 and F05085 files (inclusive of their contents). The electronic Group and Branch Document Registers are referred to in the Council's procedure called "Record Keeping and Archival."

Council's solicitors' reply 16.3.11

Paragraph 5 sought clarification. Clarification was provided in the last sentence of paragraph 4(d) of Mr Jeray's letter of 23 March 2011. At the hearing before me the Council indicated that there are no such records.

Mr Jeray letter 23.3.11 4(e) request

Screenshot copies of all the TRIM Context registers showing the records (and all their details as shown on the registers including their titles) indicated at nos. 1 to 4 in my letter dated 7 March 2011 and the F05085 file (inclusive of the contents).

Council's solicitors' reply 16.3.11

Paragraph 6 provided one of the documents sought and said that others did not exist in relation to 1-3. It also said that those relating to 4 were not relevant to a fact in issue in the proceedings. I agree. Paragraph 6 said that the F05085 file would not be provided as it was Council's "Serious and Substantial Complaint" file. Paragraph 6 said that, but for documents that had already been provided to Mr Jeray, the balance of the file and its documents were not relevant to a fact in issue in the proceedings and contained information that was private and confidential. Mr Jeray sought the file during the contempt proceedings. Craig J reviewed the file and determined it was not relevant. Mr Jeray suggests that the whole file may not have been produced to Craig J. There is no evidence to support this serious allegation and I do not accept it.

Mr Jeray letter 23.3.11 4(f) request

Screenshot copies of all the TRIM Context view pane details (ie assignee, edit status, title, record number, file, notes, date declared as final, date created, date registered, creator, author, etc) for each of the records indicated at nos. 1 to 4 in my letter dated 7 March 2011.

Council's solicitors' reply 16.3.11

Paragraph 7 indicated that there were no documents in relation to 1 - 3 and that the Council would not be providing the requested documents in relation to 4 as they were not relevant to a fact in issue in the proceedings. I agree.

Mr Jeray letter 23.3.11 4(g) request

Screenshot copies of all the TRIM Context "Audit Events" and "Movement History" for each of the records indicated at nos. 1 to 4 in my letter dated 7 March 2011.

Council's solicitors' reply 16.3.11

Paragraph 8 indicated that there were no documents in relation to 1 - 3 and those sought in 4 were not relevant to any fact in issue in the proceedings. I agree.

Mr Jeray letter 23.3.11 4(h) request

All Blue Mountains City Council policies, practices, procedures and manuals for the electronic management of records including email.

Council's solicitors' reply 16.3.11

Paragraph 9 said that these documents were provided under cover of Council's letter of 4 November 2010 and attached a further copy.

Mr Jeray letter 23.3.11 4(i) request

All Blue Mountains City Council policies, practices, procedures and manuals of the Document Control System. The Document Control System is referred to in the Council's procedure called "Record Keeping and Archival".

Council's solicitors' reply 16.3.11

Paragraph 10 sought clarification of what was sought. That was provided in paragraph 4(i) of Mr Jeray's letter of 23 March 2011. Before me the Council indicates there are no such documents.

Mr Jeray letter 23.3.11 4(j) request

All Blue Mountains City Council policies, practices, procedures and manuals regarding the Council's Central Records system and Corporate Document Management System. The Central Records system and Corporate Document Management System are referred to in the Council's procedure called "Record Keeping and Archival".

Council's solicitors' reply 16.3.11

The last four unnumbered paragraphs indicated that these documents do not exist.

Mr Jeray letter 23.3.11 4(k)(i) - (v) request

Blue Mountains City Council publications:

(i)   Document Control Procedure

(ii)   Plan Management and Control Procedure

(iii)   Register of Harcopies-Business System

(iv)   Branch and Group Document Registers

(v)   BMCC Record Retention Policy. Note (i) to (v) are referred to in the Council's procedure called "Record Keeping and Archival."

Council's solicitors' reply 16.3.11

Paragraph 11 indicated that no such documents exist.

Mr Jeray letter 23.3.11 4(k) (vi) request

(vi)   General User Training - "Getting Started" Exercises in TRIM Context (pages 8-11). Note these pages are missing in the copy provided to me.

Council's solicitors' reply 16.3.11

Paragraph 11 indicated that a copy of the document (including the alleged missing pages) was provided under cover of Council's letter of 4 November 2010. A copy of those pages were also given to Mr Jeray at the hearing before me. Mr Jeray alleges that these pages were missing from the copy document provided to him on 4 November 2010; and that if he had known of those pages at the trial at that hearing it would have assisted him to question Ms Bargenquast. That document without the pages was tendered by him at the hearing before Craig J (Exhibit B before Craig J). However, the Council tendered at that hearing the letter of 4 November 2010 and enclosures including the whole document with those pages (Exhibit 2 before Craig J). Therefore the whole document was in evidence before Craig J. Upon this being pointed out to Mr Jeray before me, he indicated that he did not recall that the whole document was in evidence before Craig J.

Mr Jeray letter 23.3.11 5(a) request

Screenshot copies of the document title and archive information for TRIM reference record number 10/83378

Council's solicitors' reply 16.3.11

Paragraph 4 of the Council's letter indicated that this record does not exist (see the eighth item in the table in paragraph 2).

Mr Jeray letter 23.3.11 5(b) request

Screenshot copies of all TRIM Context view pane details, "Audit Events" and "Movement History" information for TRIM reference record number 10/83378 and just for the F00146 file itself (ie not for each record contained therein).

Council's solicitors' reply 16.3.11

The Council says that this information does not exist in relation to Trim reference record 10/83378. The Council produced the information for the F00146 file at the hearing before me and gave it to Mr Jeray.

Mr Jeray letter 23.3.11 5(c) request

Screenshot copies of the registers (inclusive of archive registers showing archived records) showing the records (and all their details as shown on the registers including their titles) for the records indicated at nos. 1 to 4 in my letter dated 7 March 2011.

Council's solicitors' reply 16.3.11

The Council says that the documents in relation to 1-3 of that letter do not exist and that they had previously informed Mr Jeray of this. As regards the records relating to the record in 4 of the letter, the Council says that it is not relevant to a fact in issue and that this was indicated in the table in paragraph 2 of the Council's letter of 16 March 2011. I agree.

Mr Jeray letter 23.3.11 5(d) request

All Blue Mountains City Council policies, practices, procedures and manuals for the archiving of records.

Council's solicitors' reply 16.3.11

The Council says there are no such Council documents but that the document it uses is a NSW State record document GA39 "General Retention Disposal Authority".

Mr Jeray letter 23.3.11 6 request

Please provide copies of all manuals that describe how the electronic records/document management system, the TRIM Context system and the email archives system operate and interconnect.

Council's solicitors' reply 16.3.11

The Council provided these documents to Mr Jeray under cover of their letter of 4 November 2010.

2(ii) amended notice of motion

1. As regards the records sought in prayer 2(ii) of the amended notice of motion, the position is as follows:

(a)   the F05085 file is Council's "Serious and Substantial Complaints File". The Council's solicitors' letter of 16 March 2011 says at paragraph 6 that it will not be provided, but for the documents that have already been provided, as the balance of the file is not relevant to a fact in issue in the proceedings and contains information that is private and confidential. I agree.

(b)   prayer 2(ii) of the amended notice of motion also seeks screen shot copies of the entire registers and all their details showing who has had access, and at what time to Mr Greenwood's email to Ms Bargenquast. Paragraph 3 of the letter of 16 March 2011 provided a copy of that email to the applicant, which the Council had also earlier provided to him on 2 February 2011. Before me the Council's legal representative responded that there are no screen shot copies because the subject email is not stored on the Council's electronic document management system known as TRIM. When an email is received it is either placed on the TRIM system or it is deleted. Deleted emails go into the Council's email archive system, which does not have a register and which does not detail who had access to it and when. The Council's response is consistent with the findings in Craig J's judgment at [52] - [54]. Mr Jeray says that there is no evidence that the email was not on the TRIM system. I consider that he is impermissibly seeking to canvass Craig J's findings.

2(iii) of the amended notice of motion

1. These records were the subject of Mr Jeray's notice to produce of 1 November 2010 seeking, inter alia, file F05541. On 12 November 2010 the Council filed a notice of motion seeking that that notice to produce be set aside insofar as it sought that file. The notice of motion appears to have been stood over until after the contempt proceedings and has not been heard. I accept the supporting affidavit of 12 November 2010 of Jodie McCullan which indicates that it is not relevant to a fact in issue.

2(iv) amended notice of motion

1. The two properties referred to here are the subject of the main proceedings. At the hearing before me the Council indicated that these records exist but are extremely numerous and invited Mr Jeray to attend the Council to view the screen shot copies. I agree with this course. I note that the Council's solicitors' letter of 16 March 2011 at paragraphs 7 and 8 invited him to attend the Council to view other documents.

2(v) amended notice of motion

1. The position is the same as for paragraph 2(iv).

2(vi) amended notice of motion

1. Insofar as this refers to file F05541, I have previously indicated that it is not relevant to a fact in issue in the proceedings. Otherwise the position is the same as for 2(iv).

ORDERS

1. For these reasons, Mr Jeray's amended notice of motion should be dismissed with costs.

1. Over nine months have passed since the proceedings were commenced. They have been largely consumed by a number of interlocutory applications by Mr Jeray seeking documents from the Council and by his contempt motion. Class 4 proceedings are usually heard and determined within nine months. Mr Jeray is in default of directions made on 18 February 2011 to file and serve points of claim and affidavits. I propose to vacate the directions made on that day, make fresh directions, and fix the matter for hearing.

1. The orders of the Court are as follows:

1. The applicant's amended notice of motion filed on 25 March 2011 is dismissed.

2. The applicant is to pay the respondent's costs of that notice of motion.

3. The exhibits may be returned.

4. Direct that:

(a)   The directions made on 18 February 2011 are vacated.

(b)   The applicant is to file and serve any evidence and (if he wishes) any amended statement of claim on which he intends to rely by 21 May 2011.

(c)   The respondent is to file and serve points of defence and any evidence on which it intends to rely by 7 June 2011.

(d)   The matter is to be fixed for final hearing for five days as soon as practicable after 21 June 2011. The parties are to approach the Registrar forthwith to obtain hearing dates.

(e)   By no later than six working days before the hearing the applicant is to file and serve his written submissions.

(f)   By no later than three working days before the hearing the Council is to file and serve its written submissions.

Decision last updated: 12 April 2011