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 April, May and June 2010. Prior to the viewing in June, on 26 May 2010 Mr Jeray asked the council’s records officer to ensure that the files were up to date and included all documents in time for his next viewing. However, when he came to view the files on 2 June 2010, he noticed that there were still missing documents.

5 Mr Jeray states that when he asked the council’s records officer why this was so, she replied that the council’s Executive Principal of Business and Systems had removed legal documents prior to his viewing the files. Mr Jeray indicated to the records officer that he believed that other documents had also been removed. After conferring with the Executive Principal, Mr Jeray states that the council officer told him to submit another application under s 12 of the Local Government Act to view the files.

6 Mr Jeray returned to view the files on 9, 11 and 18 June 2010, but the missing documents had not been returned.

7 A complaint was subsequently lodged by Mr Jeray with the Executive Principal of Business and Systems at the council regarding the removal of documents from the files. What then ensued was correspondence between Mr Jeray and the council wherein on 11, 15, 22 and 28 June 2010, by way of requests from the council to Mr Jeray, the council sought Mr Jeray’s assistance in identifying what documents he believed had been removed. These requests went unheeded. Instead, Mr Jeray invited the council in writing to provide him with a list of documents that had been removed from the files prior to him viewing them.

8 In his affidavit sworn 8 July 2010, Mr Jeray further states that he cannot afford the Court’s photocopying fee of $0.25 per page, particularly given that the proceedings may involve a large number of documents and because he is a full time student relying on Austudy income. Mr Jeray states that he is able to obtain copying services elsewhere at a much cheaper rate. He has suggested that if access to the files is ordered by the Court, that consistent with a procedure previously ordered by Pain J on 27 February 2009 (Jeray v Blue Mountains City Council 08/40986), he be permitted to use a digital camera to photograph the documents in order to prepare his evidence.

9 Accordingly, Mr Jeray gives an undertaking that he will use a digital camera only to photograph records “ordered/summonsed/subpoenaed/produced to the registry” of the Court to enable him to properly prepare his evidence for the hearing and that he will not use the digital camera (and presumably the photographs he takes with it) for any other purpose. Finally, Mr Jeray says that he will notify the registry staff prior to using the digital camera.

Mr Jeray’s Claims

10 Mr Jeray complains that documents have been removed from council development files. This is the substance of the allegations articulated in his statement of claim filed 30 June 2010. In this statement Mr Jeray pleads breaches of ss 12, 12A, 12B, 13, 335, 343 and 375 of the Local Government Act resulting in the council having failed to perform its duties under that Act. The breaches are said to arise largely out of the council’s mishandling of documents contained in its files.

11 Mr Jeray submits that in order to prove these allegations he is entitled to a list of the documents that he asserts have been removed from the files, pursuant to s 12A of the Local Government Act.

Legal Framework

12 Section 12A of the Local Government Act states as follows:

12A Restriction of access to information

(1) If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction.

(2) The reasons must be publicly available.

(3) The council must review any such restriction no later than 3 months after it is imposed.

(4) The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction.

(5) The council must remove the restriction if, at any time:

(a) it finds that there are no grounds for the restriction, or
(b) access to the relevant document or other information is obtained under the Freedom of Information Act 1989 .

(6) A review is not required under this section if the restriction concerned has been removed.

Consideration

13 My interpretation of s 12A does not accord with that of Mr Jeray. Section 12A(1) states that if a member of staff of the council decides that access to documents held by the council should not be given to the public, then the council must provide written reasons for the restriction and those reasons must be made publicly available.

14 No evidence has come before the Court that a decision restricting access to information or documentation has been made by the council. Rather, there is an assumption on the part of Mr Jeray that this has occurred. This assumption is hard to reconcile with the council’s not unreasonable requests that Mr Jeray identify, or at least assist in the identification of, the documents which he claims are missing from the files. Until such time as that step has been undertaken by Mr Jeray it is difficult, in my opinion, for the council to identify whether or not a decision has been positively made in relation to the withholding of particular information or documents thus enlivening s 12A of the Local Government Act. Mr Jeray could not point to any other provision in that Act entitling him to production by the council of documents from its files.

15 Significantly, from the bar table Mr Jeray was able to give a concrete example of one of the documents that he alleges is missing from the files, namely, an approval given under the Roads Act 1993. If Mr Jeray is able to identify documents in this manner then I do not understand why he is not able to inform the council about which documents he believes, or at the very least about which he is aware, are missing from the files.

16 Mr Baird, on behalf of the council, informed the Court that notwithstanding that Mr Jeray has not answered its numerous requests for information concerning the missing documents, the council has nevertheless instituted its own enquiries into the allegations. He told the Court that to date his instructions are that no documents are missing but that the enquiry is ongoing.

17 Ultimately Mr Jeray seeks orders for the production of documents in a way that would compel the council to prove the allegations he makes against it. To order production in this manner would reverse the onus of proof in respect of the breaches pleaded in the statement of claim. Such an approach is neither permissible nor just.

18 Mr Baird submitted to the Court that the preferable way forward is for Mr Jeray to issue a subpoena or notice to produce to the council or to particular officers for the production of the files and/or missing documentation. I agree. The council will then be obliged to produce the documents upon threat of contempt proceedings. The council can seek to deny access to Mr Jeray to documents over which it claims legal professional privilege or confidentiality, but these documents will nevertheless be produced (albeit separately from the remainder of the documents) and any argument in relation to access to these documents can take place at the appropriate time.

19 Mr Jeray also seeks an order that the council provide him with a list of the names of all of the council officers that have had access to the two files since his requests to view the files on 16 and 17 March 2010. The reason why Mr Jeray seeks this order is to enable him to issue subpoenas to those council officers to prove that the files have in some way been tampered with.

20 Mr Baird submitted, with which I also agree, that this request is premature. In my opinion, it is preferable for Mr Jeray to first inspect the council files and documents before seeking any further orders from this Court. This is to ensure that council officers are not unnecessarily subpoenaed in circumstances where they have no connection with the matters raised by Mr Jeray in the proceedings. The Court emphasised to Mr Jeray that by presently refusing to make this order he was not precluded from subsequently returning to the Court to obtain such an order provided that he could justify its making.

21 It is for these reasons that pursuant to s 56 (see also ss 57 and 58) of the Civil Procedure Act 2005, the Court is not satisfied that the making of the orders sought in the amended notice of motion would facilitate the overriding purpose of the just, quick and cheap resolution of the real issues for determination in the proceedings. The amended notice of motion is therefore dismissed.

22 Because I have dismissed the motion in its entirety I have not ordered that any documents that are ultimately produced by the council may be digitally photographed by Mr Jeray. Whilst this proposal may not be unreasonable in light of Mr Jeray’s undertaking and previous orders made by the Court, it is a matter that ought to be properly raised before the Registrar when any subpoena or notice to produce issued by Mr Jeray is made returnable before the Court. It is at this time that Mr Jeray can request that access ought to be granted to him in the manner he proposes.

Costs Are Reserved to the Trial Judge

23 In relation to costs, Mr Baird seeks the council’s costs on the motion on the basis that costs follow the event.

24 Mr Jeray submits that the more appropriate order is that costs ought to be costs in the cause, or that there be no order as to costs, on the basis that he brings the proceedings generally and, in particular, this notice of motion, in the public interest.

25 Whether or not the motion raises a question of public interest, is not an issue that can be readily determined in the time allocated to hear it (the estimate given by both parties was that the motion would take 30 minutes to hear, in fact it has taken over two hours towards the end of a full directions list). In light of recent case law concerning what constitutes ‘public interest’ for the purpose of costs (see Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59 and Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157) it was agreed by the parties that the question of who should bear the costs of the motion ought to be reserved to the trial judge for determination. Given that the general issue of whether or not the proceedings are in the public interest will be further agitated at that time, this is the most appropriate and efficient course for the Court to take.

Future Conduct of the Proceedings

26 It is appropriate for the Court to make orders for the future conduct of the proceedings. This is particularly so because the Court, in dismissing the notice of motion, has expressed a view that the appropriate method by which Mr Jeray may obtain access to the council files in order to determine whether there are missing documents is to seek production of those files and documents by way of subpoena or notice to produce.

27 Accordingly, in addition to the orders disposing of the amended notice of motion, the Court makes the orders set out in the short minutes of order that were agreed to by the parties upon the motion being dismissed.

28 The orders of the Court are:

(1) the amended notice of motion is dismissed;
(2) the question of the costs of the amended notice of motion is reserved for determination by the trial judge;
(3) the applicant is to issue any subpoena or notice to produce to the council by 13 July 2010, such subpoena or notice to produce to be made returnable on 27 July 2010;

(4) the applicant is to file and serve its points of claim and affidavits in chief by 31 August 2010;

(5) the respondent is to file and serve its points of defence and any cross-claim and the affidavits upon which it relies by 14 September 2010;

(6) the applicant is to file and serve any reply and defence to any cross-claim and any affidavits in reply by 4 October 2010;

(7) the proceedings are listed for a second directions hearing on 8 October 2010; and

(8) liberty to restore on 3 days notice.


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