Jeray v Blue Mountains City Council - [2010] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION: Jeray v Blue Mountains City Council [2010] NSWLEC 123

PARTIES:
APPLICANT
Ivan Jeray
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 40517 of 2010

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- notice of motion seeking production by council of documents alleged to have been removed from files and the names of council officers handling files - refusal to assist the council in the identification of the alleged missing documents - no impediment to issuing a subpoena or notice to produce to obtain the documents - motion dismissed

LEGISLATION CITED: Local Government Act 1993 ss 12, 12A, 12B, 13, 335, 343 and 375
Civil Procedure Act 2005 ss 56-58

CASES CITED: Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157

DATES OF HEARING: 9 July 2010

EX TEMPORE JUDGMENT DATE: 9 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr I Jeray (in person)
SOLICITORS
N/A
RESPONDENT
Mr D Baird (solicitor)
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

9 July 2010

40517 of 2010 Ivan Jeray -v- Blue Mountains City Council

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is an amended notice of motion brought by the applicant, Mr Ivan Jeray, against the Blue Mountains City Council (“the council”). Initially, the motion as filed on 30 June 2010 sought orders in relation to the confiscation of two development application files held by the council. After some discussion, Mr Jeray withdrew orders 1 and 2 from the notice of motion and sought to amend the notice of motion by the inclusion of new orders 1, 2 and 3.

2 Mr David Baird, who appeared on behalf of the council, neither consented to nor opposed the granting of leave to amend the notice of motion. Given the content of the substituted orders compared to that sought by the original orders, and bearing in mind the substance of the evidence filed by Mr Jeray in his affidavits sworn 30 June and 8 July 2010 which, in my preliminary view, could not on any view support original orders 1 and 2, I formed the view that it was appropriate to grant leave to amend the notice of motion. Leave was therefore granted.

Evidence of Mr Jeray

3 In his affidavit dated 30 June 2010, Mr Jeray deposes that he seeks orders compelling the council to furnish him with documents because he is concerned that in previous viewings of files held by the council (the application to view those files having been made under s 12 of the Local Government Act 1993) in respect of two properties located at 85-99 Burrawang Street, Katoomba and 108-120 Narrow Neck Road, Katoomba (“the properties”), he discovered that documents were missing from the files.

4 Viewing of the files took place in…

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: [2010] NSWLEC 123
Decision Date: 9 July 2010

CaseChat Overview and Summary

Ivan Jeray commenced proceedings against the Blue Mountains City Council seeking orders for the production of documents and the names of council officers handling certain files. The case was heard in the Land and Environment Court of New South Wales by Pepper J. The key issues before the Court were whether the council should be compelled to produce documents and the names of officers handling certain files, and whether the applicant's refusal to assist in identifying the alleged missing documents was justified. The Court examined the provisions of the Local Government Act 1993 and the Civil Procedure Act 2005 in making its decision.

Pepper J dismissed the motion, finding that Mr Jeray's request for production of documents and names of officers was not justified. The Court held that Mr Jeray had not provided sufficient evidence to support his claims of missing documents, and that his refusal to assist the council in identifying the missing documents was unreasonable. The Court noted that there was no impediment to Mr Jeray issuing a subpoena or notice to produce to obtain the documents. Pepper J concluded that ordering production in this manner would reverse the onus of proof and was neither permissible nor just. The Court also found that Mr Jeray's request for the names of officers handling the files was premature, and that it was preferable for him to inspect the files before seeking further orders. The Court dismissed the motion in its entirety and made orders for the future conduct of the proceedings. Costs were reserved to the trial judge.

Orders