Jeray v Blue Mountains City Council

[2010] NSWCA 354

New South Wales

Court of Appeal

CITATION:	Jeray v Blue Mountains City Council [2010] NSWCA 354
HEARING DATE(S):	13 December 2010
JUDGMENT DATE:	13 December 2010
JUDGMENT OF:	Allsop P at 1
EX TEMPORE JUDGMENT DATE:	13 December 2010
DECISION:	1. Application for vacation of hearing date on Wednesday 15 December 2010 is dismissed. 2. The question of costs of today to be dealt with by the Court of Appeal on Wednesday 15 December 2010. [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:	PROCEDURE - civil - interlocutory issues - application to vacate hearing
CATEGORY:	Procedural and other rulings
PARTIES:	Ivan Jeray (Applicant) Blue Mountains City Council (First Respondent) Greg Egan (Second Respondent) John Egan (Third Respondent)
FILE NUMBER(S):	CA 2009/298487
COUNSEL:	In Person (Applicant) Mr M Staunton (First Respondent) Mr Clay (Second & Third Respondents)
SOLICITORS:	In Person (Applicant) Marsdens Law Group (First Respondent) McIntosh McPhillamy & Co (Second & Third Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2009/298487
LOWER COURT JUDICIAL OFFICER:	Handley AJA, Sackville AJA
LOWER COURT DATE OF DECISION:	6 July 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Jeray v Blue Mountains City Council [2010] NSWCA 153

2009/298487

ALLSOP P

Monday 13 December 2010

JERAY v BLUE MOUNTAINS CITY COUNCIL

Judgment

1 ALLSOP P: This is an application to vacate the hearing of the appeal of this matter on Wednesday 15 December 2010 by the appellant. The matter was given a date after two members of the Court gave leave on a limited basis of procedural fairness earlier this year. Mr Jeray made an application to that Court to reopen and to widen the grounds of appeal. That Court refused to do so in October. Mr Jeray has made an application for special leave to appeal in relation to those orders. He seeks a vacation of the hearing date today, fundamentally on two grounds, (1) his health; and (2) the matters arising from 27 October 2010, being a lack of a transcript and the application for leave to appeal to the High Court.

2 I do not propose to adjourn the appeal on the basis of the matters arising from 27 October and the application for special leave. If Mr Jeray is successful on Wednesday, that would influence significantly the likelihood of any leave. In any event, if Mr Jeray obtains leave in relation to the matters on 27 October, they can be dealt with separately by the High Court.

3 If orders are made, they address different questions to those on the appeal on Wednesday. If Mr Jeray is unsuccessful on Wednesday, it would no doubt be convenient, if he thought it appropriate to apply for special leave, to link up that application with the application already filed.

4 In relation to the question of Mr Jeray’s health, I have given anxious consideration to the matters he identifies. Stress and anxiety in relation to litigation are understandable. They are an unhappy concomitant of the process. That is one reason why the Court expects parties before it to conduct their litigation, to the extent that it is possible, in a polite and civilised way.

5 I do not say that critically of the respondents here, but having weighed the matters in [4]-[9] of Mr Jeray’s affidavit and having now some familiarity with the appeal on Wednesday, I do not think that grounds have been made out for the vacation of that appeal.

6 The reasons of the Court in July, principally the reasons of Justice Sackville, indicate a substantive question of procedural fairness which will have to be dealt with on Wednesday. This is an important question, both to Mr Jeray and the other parties, but also for the administration of justice and the matter should come on as promptly as the parties have permitted it to.

7 For that reason, I think it necessary for the Court to deal with the matter on Wednesday, which it will. The application for vacation of Wednesday is dismissed. The question of costs will be dealt with by the Court of Appeal on Wednesday.

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