Jeray v Blue Mountains City Council

[2009] NSWLEC 90

Land and Environment Court

of New South Wales

CITATION:

Jeray v Blue Mountains City Council [2009] NSWLEC 90

PARTIES:

APPLICANT:
Ivan Jeray

FIRST RESPONDENT:
Blue Mountains City Council

SECOND RESPONDENT:
Greg Egan

THIRD RESPONDENT:
John Egan

FILE NUMBER(S):

40986 of 2008

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- whether hearing date should be vacated where applicant is litigant in person - whether directions or changes to directions for trial and as to subpoenas and conduct money should be made.

DATES OF HEARING:

26 June 2009

EX TEMPORE JUDGMENT DATE:

26 June 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I Jeray, in person
SOLICITORS
N/A

FIRST RESPONDENT:
Mr I Hemmings, barrister
SOLICITORS
Marsdens Law Group

SECOND & THIRD RESPONDENT:
Mr P Clay, barrister
SOLICITORS
McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

26 June 2009

40986 of 2008

IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the applicant filed on 22 June 2009 seeking various directions, including, as emerged during the hearing, that the hearing date, which has been fixed for 13 July, be vacated and that a new hearing date be fixed on 3 August.

2 The proceedings concern two main issues, which may be broadly described as “communication matters” and “development matters”.

3 The first two orders sought in the applicant’s notice of motion, described as appeals from the Acting Registrar’s orders of 29 May 2009, are intended to refer to an order made by the Acting Registrar on that date when she largely dismissed a notice of motion filed by the applicant on 22 May 2009. Relevantly, the last mentioned notice of motion sought to set aside items 1 – 6 in a notice to produce filed by the first respondent council on 29 April 2009. In effect, the applicant seeks to resurrect his claim to have those items set aside. The applicant says that he has in fact produced the documents referred to in items 1 to 6 of the council’s notice to produce, either in his bundle of documents filed in the proceedings or in affidavits. I therefore propose to direct that the applicant serve the respondents with a letter on or before 5 pm on 30 June 2009 identifying where those documents are located in his filed bundle of documents or affidavits.

4 Paragraph 3 of the applicant’s notice of motion was substituted by a document which has been marked MFI 1. It requires the first respondent to send the applicant a letter by 3 July 2009 providing information or documents. During the course of the hearing an agreement emerged between the applicant and the council concerning the production of those documents. By consent of the applicant and the first respondent, I will make an order that all the documents in MFI 1 be produced by Monday, 29 June, except for documents 9 and 11 that will be produced by Wednesday, 1 July 2009.

5 Paragraph 4 of the applicant’s notice of motion seeks an order that he file and serve any additional points of claim, declarations and orders sought for the development matters by 10 July 2009. This description “points of claim, declarations and orders” broadly corresponds with the title of the document filed by the applicant earlier in the proceedings, which might more conventionally be called a summons and points of claim. I think that the date of 10 July 2009 is a little too late but I am prepared to give leave to the applicant to file and serve that document by 5 pm on 6 July 2009.

6 Paragraph 5 of the applicant’s notice of motion seeks an order he file and serve an amended index to his bundle of documents for the development matters by 10 July 2009. I propose to make an order that the applicant do so by 5 pm on 6 July 2009.

7 Paragraph 6 of the applicant’s notice of motion seeks that the schedule of directions made on 26 June 2009 and the hearing date be changed. The applicant’s proposed amended schedule of directions has been marked MFI 2. It provides for a new set of directions, culminating with a new hearing date on 3 August 2009. The current hearing date of 13 July 2009 was fixed on 7 April 2009. The applicant points out that he is a litigant in person and says that he did not fully appreciate the implications of the directions previously made. The applicant has sworn an affidavit in which he says that he is a self litigant without legal qualifications and experience; he is working alone on this court case whilst undertaking TAFE studies; he cannot afford legal advice or assistance; he does not have internet access at his home; and he is pursuing the case in the public interest without financial gain. The applicant says that some documents have not been produced which should have been produced. This is denied by the council which says that it has produced all documents that it was required to produce and, indeed, it says that even though it has agreed to produce more documents and information pursuant to paragraph 3 of the applicant’s notice of motion (which I have dealt with above) that it does not necessarily accept that they relate, or all relate, to the issues in the proceedings. There is a suggestion by the council, upon which it is unnecessary for me to adjudicate, that the applicant is investigating whether there are other matters, which are not yet the subject of the applicant’s process filed in the proceedings. Whether or not that is so, and giving weight to the other matters raised by the applicant, I am not persuaded at this time that it is unreasonable to maintain the hearing date on 13 July, which is still more than two weeks away, nor to make the directions proposed by the applicant. Accordingly, I decline to make any order pursuant to paragraph 6 of the applicant’s notice of motion.

8 Paragraphs 7 to 9 of the applicant’s notice of motion seek leave to issue subpoenas to attend to give evidence at the hearing addressed to four members of the council’s staff. I propose to give leave to the applicant to issue those subpoenas. There is an issue about conduct money. Three of those council staff indicated that $25 per person per day was sufficient conduct money, but the fourth member of the staff, who is the General Manager, seeks conduct money of more than $200 per day. The difference is represented by the cost of train travel from Katoomba to Sydney as compared with driving a car and parking it in the city. On balance, in the particular circumstances of the case, I am prepared to make the order sought in paragraph 8 of the notice of motion, that $25 per person per day is sufficient conduct money for each of those persons.

9 I agree with the proposal in paragraph 9 of the applicant’s notice of motion that the subpoenas to attend to give evidence specify that attendance is required only when called upon by the applicant, through the first respondent’s legal counsel or the court.

10 Finally, paragraph 10 of the notice of motion seeks an order that the first respondent provide an affidavit to the court indicating that all documents and files sought by the applicant have been provided or produced. I do not think that is usual or appropriate. I decline to make that order.

11 I direct the parties to bring in short minutes of order later today to reflect my decision.