Jeray v Blue Mountains City Council

[2010] NSWLEC 261

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Jeray v Blue Mountains City Council [2010] NSWLEC 261

PARTIES:
APPLICANT
Ivan Jeray

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):
40517  of 2010

CATCHWORDS:
PRACTICE AND PROCEDURE :- application to vacate hearing dates - affidavit served in compliance with directions - omission of date and place of swearing insufficient basis to ground application - application refused

LEGISLATION CITED:
Local Government Act 1993

CORAM:
Craig J

DATES OF HEARING:
1 November 2010

EX TEMPORE DATE:
1 November 2010

LEGAL REPRESENTATIVES

APPLICANT
In person

RESPONDENT
D R Baird (Solicitor)
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

1 November 2010

40517 of 2010  JERAY v BLUE MOUNTAINS CITY COUNCIL

EX TEMPORE JUDGMENT

1. HIS HONOUR:  By notice of motion filed on 1 October 2010, Mr Jeray seeks orders for contempt of court against the respondent Council.  The notice of motion has been brought in the course of proceedings commenced some time ago by Mr Jeray.  The notice of motion is accompanied by a statement of charge that identifies, in the alternative, two bases upon which contempt is alleged by him.

2. Mr Jeray's notice of motion came before Justice Pepper of this Court on 8 October last.  At that time, her Honour made directions for the hearing of the motion, the hearing itself being listed to take place on 5 November, that is, on Friday of this week.

1. It appears that both parties were in Court when that hearing date was fixed and, as I am told from the bar table, no objection to that date was then voiced.  Understandably, the Council was anxious to have the motion determined, having regard to the serious nature of the allegations contained in it and the ramifications for the Council as a council constituted under the Local Government Act 1993.

2. One of the directions made by her Honour on 8 October was that the respondent Council should file and serve all affidavit evidence upon which it proposed to reply in opposing the motion by 19 October.  Mr Jeray now approaches the Court seeking to vacate the hearing date, as he claims that the Council’s evidence was not filed in accordance with the direction given.  It is claimed that the evidence was filed after the due date as a consequence of which Mr Jeray says that he is prejudiced in preparing the matter for hearing on Friday next.

3. The circumstances in which the Council provided its affidavit evidence to Mr Jeray are not in dispute.  On 19 October he was served with a document in the form of an affidavit said to have been sworn by a Council officer, namely Julie Bargenquast.  The document then received, which was tendered to me by Mr Jeray, appears to bear the original signature of Ms Bargenquast as well as the original signature of the witness who is described as a Justice of the Peace.  It is the affidavit upon which the Council seeks to rely for the purpose of these proceedings.

1. Mr Jeray points to the fact that the form of affidavit received by him on 19 October did not bear any Court stamp and did not have inserted, as was intended, the date upon which the affidavit is said to have been sworn.  Further, he points to the fact that the place at which the affidavit is said to be sworn was not stated.  By reason of these omissions Mr Jeray says that he did not regard the document as being one served in compliance with the direction given by Pepper J.

1. It seems that on or about 25 October Mr Jeray raised in correspondence with the Council’s solicitors the omissions from the affidavit that he had received.  As a result of that correspondence, the Council’s solicitor served upon him a further copy of the affidavit of Ms Bargenquast, service of that document being effected on 27 October.  The further affidavit so served not only contained the same signatures, but also indicated the date upon which it was sworn, said to be 19 October, the place at which it was sworn, said to be Katoomba, and also had affixed to it, a Court stamp indicating that it had been filed in the Registry of this Court on 21 October.

2. On the hearing before me today to vacate the hearing date, Mr Jeray was invited to identify any difference between the document received by him on 19 October and that which he received on 27 October.  In response to that request, he indicated that prior to coming to Court he had not been able to complete a comparison between the two documents.

3. I then granted Mr Jeray an adjournment of about thirty five minutes so as to afford him the opportunity to undertake the comparison exercise.  Upon resumption, Mr Jeray indicated that in the time available and under the pressure that he felt, he was not able to complete the comparison that I had invited him to undertake.

4. The Council has today been represented by Mr Baird, solicitor, who is a principal in the solicitor’s firm of Marsdens Law Group.  Mr Baird has indicated from the bar table that the affidavit served upon Mr Jeray on 19 October is identical to that also served upon him on 27 October, save that the latter inserts the date on which and place at which the affidavit was sworn and, as would be apparent, contains the Court stamp indicating the date upon which the document was filed.

5. When I enquired of Mr Jeray why he felt unable to commence his consideration of the Council's evidence upon receipt of the affidavit provided to him on 19 October, his response was to indicate that he was unsure as to whether that document was a final document because of the absence of any date on it and the absence of a Court stamp.  Although he informed me that there was a telephone accessible to him, he said that he did not did not feel comfortable in calling the solicitors for the Council so as to enquire from them whether the document that he had received was complete. Instead, his action was, as I have earlier indicated, to write to the solicitors on 25 October concerning the document, as a consequence of which he received the further copy on 27 October.

6. It is perhaps understandable that self represented litigants may think that there is significance in the omission of a date upon which an affidavit is sworn or that the absence of a Court stamp is a basis upon which to question the provenance of the document.  However, one would have thought that if doubt existed and access to a telephone was available, an enquiry from the Council’s solicitor would quickly have resolved any doubt that Mr Jeray may have entertained.

1. In considering Mr Jeray’s application to vacate the hearing fixed for Friday next, I accept it to be the fact, for present purposes, that there is no difference between the documents served respectively on 19 October and 27 October.  If, on further consideration, Mr Jeray is able to identify any difference of substance that prejudices his preparation for the hearing, he is at liberty to bring that difference to my attention and it will clearly impact upon the approach that I take to the further hearing of the notice of motion.

2. However, based upon what I presently understand to be the case, I see no logical basis upon which to vacate the hearing on Friday next. Mr Jeray, so it seems to me, has had the opportunity afforded by the directions made on 8 October last to prepare his case for hearing.

1. The Council has indicated that it is prepared to extend the time, otherwise given by the directions made by Pepper J on 8 October, for the filing of any affidavit evidence in reply upon which Mr Jeray may wish to rely.  In the directions made by her Honour on 8 October, Mr Jeray was given until 29 October in which to file any such evidence, that is, he was given ten days so to do following service upon him of the Council’s affidavit.

2. If I was to assume that Mr Jeray commenced or ought to have commenced preparation of his evidence in reply following receipt of the affidavit on 27 October and I allow him until 4.00pm on Thursday next, 4 November, to file his evidence in reply, he will have had almost eight days in which to undertake the task required of him.  In the circumstances, I do not consider this to be unreasonable.  I propose to allow until 4.00pm on 4 November for the filing of any evidence in reply.

3. For these reasons, I refuse the application made by Mr Jeray to vacate Friday’s hearing date.  The motion will proceed to hearing, as presently fixed, at 10.00am on that day.

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