Jeray v Blue Mountains City Council

[2011] NSWCA 313

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jeray v Blue Mountains City Council & Ors [2011] NSWCA 313

Hearing dates:

15 September 2011

Decision date:

15 September 2011

Before:

Giles JA at [9]
Whealy JA at [1]

Decision:

Matter No 2011/106643 - Application for leave to appeal dismissed. Applicant to pay respondent's costs of the application and the reserved costs of the stay application.

Matter No 2011/149208 - Application for leave to appeal dismissed. Applicant to pay respondent's costs of the application.

In Matter No 2011/202349 - application for leave to appeal dismissed. Applicant to pay respondents' costs of the application and the reserved costs of the stay application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

Appeal under Land and Environment Court Act - leave to appeal - no arguable case demonstrated

Legislation Cited:

Land and Environment Court Act 1979 s 58

Category:

Principal judgment

Parties:

I Jeray (in person)
I Hemmings (First respondent)
P Clay (Second and third respondents in Matter No 2011/202349)

Representation:

I Jeray (in person)
I Hemmings - First Respondent (Blue Mountains CC)
P Clay - Second and Third Respondents in
Matter No 2011/202349
I Jeray (Applicant in person)
Marsdens Law Group (First Respondent in all matters)
Crennan Legal, Bathurst (Second and Third Respondents in Matter No 2011/202349)

File Number(s):

CA 2011/106643 CA 2011/149208 CA 2011/202349

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9106

Date of Decision:

2011-09-15 00:00:00

Before:

Craig J and Biscoe J

File Number(s):

LEC 2010/40517

Judgment

1. WHEALY JA: There are three summonses seeking leave to appeal before the Court. The appeal in each case is provided for in s 58 of The Land and Environment Court Act . Leave is required because of the provisions of s 58(3) of the Act. I shall deal with each of the summons separately and chronologically.

1. The first summons relates to orders made by Craig J on 4 March 2011. The major issue which arises on the appeal is whether a contempt of court had been demonstrated. The principal basis on which his Honour determined this was not to be the case was that, as he found, the failure to comply with a notice to produce was not a disobedience of or a failure to comply with an order of the Court. There does not appear to be any challenge made to that finding and, in my view, there is no arguable basis for suggesting that his Honour was wrong in that regard.

1. The second argument advanced was that his Honour should have recused himself on the basis of apprehended bias. I have examined carefully the reasons of his Honour and I am satisfied that no arguable case has been demonstrated to support that proposition. For those reasons I would refuse leave in relation to the first matter.

1. I should add that there was also an argument about costs raised in the grounds of appeal. The issue of costs is a discretionary decision and I do not consider that any basis has been demonstrated for suggesting that the discretion was wrongly exercised.

1. I turn then to the second summons. Leave to appeal is sought from an order of Biscoe J on 8 April 2011. The first ground relied upon here relates to a statement made by his Honour in his decision in which he made reference to a fishing expedition. I am satisfied that this ground misunderstands para 6 of Biscoe J's decision. It is clear that his Honour's concern about a legally impermissible fishing expedition was in relation to Mr Jeray's belated attempt to obtain additional information relating to the contempt proceedings. The comment in relation to a fishing expedition did not relate, nor could it possibly relate, to records being sought relevant to the main proceedings. To the contrary, I would simply observe that his Honour then went on to examine in very considerable detail the documents that had been produced before him for the purpose of considering whether they should be available for inspection. In that regard the applicant's grounds of appeal next challenged the manner in which his Honour categorised the documents he inspected or examined. His Honour found that documents generally either had been produced, that if they were produced a number of them were not relevant to any issue, or that they served no legitimate forensic purpose. In my opinion, in his Honour's careful and detailed categorisation of these documents no arguable error has been demonstrated.

1. The third argument raised by the grounds of appeal related to the timetable set by his Honour. It was suggested that this was done in circumstances which amounted to a lack of procedural fairness. It is necessary to stress, however, that the orders made by his Honour were interlocutory orders. More importantly they were completely overtaken by later events. I do not consider there has been a denial of procedural fairness, but in any event the grant of leave would completely lack any real utility. A number of timetables have been set and indeed hearing dates have been set, as I understand it. In my opinion, leave to appeal should be refused in relation to this matter.

1. I turn finally to the third matter. The summons seeking leave to appeal in this matter relates to an order of Craig J made on 27 May 2011. First, it may be observed that, for the reasons earlier given, the grounds of appeal relating to apprehended bias do not reveal, in my opinion, an arguable ground of appeal justifying leave. I need not repeat the remarks I have made earlier. The orders made by his Honour are set out in the white folder relating to this matter. The first three orders were orders requiring the council to either make documents available or to provide or allow inspection of those documents. I understand that those orders were complied with by the council but in any event no arguable error has been demonstrated in relation to any of those.

1. The remaining orders were simply orders directing the applicant to file and serve amended points of claim and giving a direction as to time, in the event that the applicant intended to commence proceedings on any of the matters identified in certain paragraphs of his notice of motion dated 25 May 2011. Otherwise the only other order made was that the matter be stood over to 1 July 2011. These were purely interlocutory orders but in my opinion, in any event, no possible utility could be demonstrated based upon an alleged error in making those orders. A grant of leave would be quite futile. I am satisfied that leave to appeal should be refused in relation to this summons as well.

1. GILES JA: I agree with what Whealy J has said. I would add only that I understand that the application for leave to appeal from the judgment of Biscoe J also included a complaint that his Honour made an order for costs against Mr Jeray. In that respect, as with the order for costs made by Craig J on the contempt motion, I do not consider that there has been shown any arguable basis for appealing against that exercise, that discretionary decision. I agree that each of the three applications for leave to appeal should be dismissed and that is therefore the order of the Court.

1. Mr Hemmings and Mr Clay, do you ask for costs or not?

HEMMINGS: Yes your Honour.

CLAY: Yes your Honour.

GILES JA: Mr Jeray, what if anything do you wish to say about costs? In the ordinary course the applications would be dismissed with costs, that is with an order that you pay the costs of the respondents. Do you wish to say anything against that?

APPLICANT: I refute the reasoning of the decision made now. I shouldn't pay the costs on that basis as well as that I've taken this in the public interest and the issues that are being brought up are just being ignored by this Court. I should not have to pay the costs and to do so you are just creating a disincentive for anybody else for me to follow course. I just find it absolutely absurd what has just happened now. God Save the Queen and I hope that she intervenes and dismisses our system of Government because it is a disgrace; it is corrupt and disgraceful.

GILES JA: Yes. We order that the applicant pay the respondents' costs of the applications, that is each of the applications. Yes Mr Clay?

CLAY: There was a reservation of costs, as I recall, in relation to the stay application. I don't know if your Honour would need to expressly include the application for stay.

GILES JA: That will include the reserved costs of the stay application.

CLAY: May it please the Court.

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Decision last updated: 26 September 2011