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…

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] NSWCA 354
Decision Date: 13 December 2010

CaseChat Overview and Summary

Jeray and Blue Mountains City Council were parties to proceedings before the Court of Appeal of New South Wales. The dispute concerned an application by Jeray to vacate a hearing date that had been set for Wednesday, 15 December 2010.

The central legal issue before the Court of Appeal was whether the hearing date should be vacated. This required the Court to consider the circumstances presented by Jeray in support of the application to adjourn the scheduled hearing.

The Court of Appeal dismissed Jeray's application to vacate the hearing date. The Court did not provide detailed reasons for this dismissal in the provided text, but the outcome indicates that the grounds presented were not considered sufficient to warrant vacating the already scheduled hearing. The Court also ordered that the question of costs associated with the application to vacate the hearing would be dealt with on the same date as the hearing itself.

Orders

Orders of the court

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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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