Jeray v Blue Mountains City Council

[2010] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION:	Jeray v Blue Mountains City Council [2010] NSWLEC 229
PARTIES:	APPLICANT Ivan Jeray RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	40517 of 2010
CORAM:	Craig J
KEY ISSUES:	PRACTICE AND PROCEDURE :- self-represented applicant – applicant’s motion for contempt fixed for hearing – afternoon prior to hearing applicant informed Registrar that he would not attend due to “medical condition” – medical certificate states applicant is “unfit for work” – insufficient details of medical condition provided – notice of motion stood over– further details of medical condition required if applicant claims to be unable to attend future hearing
LEGISLATION CITED:	Local Government Act 1993
DATES OF HEARING:	5 November 2010
EX TEMPORE JUDGMENT DATE:	5 November 2010
LEGAL REPRESENTATIVES:	APPLICANT No Appearance RESPONDENT I J Hemmings (Barrister) SOLICITORS Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

5 November 2010

40517 of 2010 JERAY v BLUE MOUNTAINS CITY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR

: Mr Ivan Jeray, the applicant in the proceedings, is a self-represented litigant. His principal proceedings seek orders to the effect that Blue Mountains City Council has breached various provisions of the Local Government Act 1993 by its failure to provide access to documents which Mr Jeray claims should be made available to him for inspection. That summary does not reflect the detail of his claim but is sufficient for present purposes.

2 On 1 October 2010, Mr Jeray filed a notice of motion seeking orders to the effect that the Council is in contempt of court. His allegations of contempt appear to be founded upon the Council’s response to a Notice to Produce served upon it by Mr Jeray for the purpose of preparing his case for hearing.

3 On 8 October, Mr Jeray’s notice of motion for contempt was fixed for hearing today. At the time at which the hearing was fixed, Mr Jeray was present in Court and accepted the hearing date as being suitable to him.

4 On Monday last, 1 November, Mr Jeray applied to me as Duty Judge to have today’s hearing vacated. For reasons then given, I refused his application. In summary, Mr Jeray claimed that his preparation for the hearing today was prejudiced because the Council had not served the affidavit evidence upon which it relied by the date fixed for it so to do as required by directions made by Pepper J on 8 October last. I did not accept that the Council had failed to comply with the direction given for the filing of its affidavit evidence and so refused his application.

5 Having refused the application, I made further directions for preparation of the matter for hearing. Those directions attempted to accommodate Mr Jeray’s requirement for further documents to be provided to him by the Council and I extended until 4.00pm yesterday the time by which he should file any affidavit in reply to the Council’s evidence.

6 Shortly after 3.00pm yesterday, a letter was received by facsimile in the Court Registry from Mr Jeray. I am told that at about the same time a letter was received by the Council’s solicitors from Mr Jeray. By his letter, Mr Jeray informed the Registrar that due to his current medical condition he will not appear in Court “for the period specified in my medical certificate (enclosed)” with the consequence that he would not be appearing at today’s hearing. The nature of the medical condition which prevented his attendance was not stated.

7 Attached to Mr Jeray’s letter was a medical certificate dated yesterday (4 November) signed by Dr Rajinder Shah of the Upper Mountains Medical Centre in Katoomba. Dr Shah’s certificate states as follows:

“This is to certify that on 4/11/2010 I examined the above named person. In my opinion he is suffering from a medical condition and is unfit for work [sic] from 4/11/2010 to 3/12/2010.”

8 There are two further matters to be noticed relating to Mr Jeray’s letter. First, it appears that the identical letter was sent to the solicitor for the Council. Secondly, the letter records that Mr Jeray could not be contacted on the facsimile number from which his letter was sent.

9 When the matter came before me this morning, understandably, there was no appearance by or on behalf of Mr Jeray. The Council was represented by Mr I J Hemmings of counsel who had been briefed to appear for the Council. It is contesting the contempt motion. Mr Hemmings fairly acknowledged the difficulty which confronted him and indicated that the Council would not today seek to have Mr Jeray’s notice of motion dismissed.

10 In the absence of Mr Jeray, I was not prepared to make any order in respect of the notice of motion other than for its adjournment. However, it must be recorded that the circumstances which bring about this adjournment are far from satisfactory. While a litigant in person may not fully appreciate the seriousness which is attached to the conduct of legal proceedings and the manner in which the Court’s business must be ordered, justification for an adjournment on medical grounds requires a much fuller explanation than that which has been proffered in the present case either by Mr Jeray himself or by his medical practitioner. A statement in a medical certificate to the effect that a patient is “unfit for work”, without further elaboration, provides no support for a contention that the patient is unable to conduct legal proceedings in which he or she is a moving party.

11 The inconvenience occasioned by this adjournment is further exemplified by the attendance today of three witnesses. Those witnesses are employees of the Council and were in attendance because of subpoenas issued by Mr Jeray requiring them to attend. The costs of their attendance will need to be considered in due course.

12 I therefore propose to stand over the notice of motion to 19 November for the purpose of giving any further necessary directions and fixing a further date for hearing which I will endeavour to accommodate before the close of term. In the event that Mr Jeray claims to be unable to attend at that time for medical reasons, a medical report will need to be provided sustaining the basis for his inability to attend. That basis will require more than a statement to the effect that he is “unfit for work”. The nature of the condition which prevents his participation in the proceedings will need to be given. Advanced notice of inability to attend will need to be provided to the Council’s legal representatives and to the Court.

13 The orders that I make are therefore as follows:

1. Stand over the applicant’s notice of motion to 19 November 2010 at 9:30 am before me for the purpose of fixing a date for hearing.


2. In the event that the applicant is unable to attend Court on 19 November for medical reasons, a medical report provided by a legally qualified medical practitioner indicating the nature of Mr Jeray’s medical condition, which prevents his attendance at Court, must be provided both to the solicitor for the respondent and to the Registrar of the Court by 4.00pm on Wednesday 17 November 2010.

3. Costs reserved.

4. Direct that the respondent serve a sealed copy of these orders upon Mr Jeray by 5.00pm on 10 November 2010. Such service to be effected personally, but if not able to be effected personally on that day, by leaving a sealed copy of the orders in the letterbox of Mr Jeray at 34 Carlton Street, Katoomba, that being the address given by him as his address for service.

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