Jeray v Blue Mountains City Council

[2009] NSWCA 415

New South Wales

Court of Appeal

CITATION:	Jeray v Blue Mountains City Council [2009] NSWCA 415
HEARING DATE(S):	14 December 2009
JUDGMENT DATE:	14 December 2009
JUDGMENT OF:	Hodgson JA at 1
EX TEMPORE JUDGMENT DATE:	14 December 2009
DECISION:	I make order 1 of the Notice of Motion filed 7 December 2009 but with the intent that it not prevent the costs assessment in relation to such costs orders proceeding. I order that the first respondent not commence a costs assessment in relation to the costs orders made by Lloyd J on 16 July 2009 until the application for leave and/or appeal in this case is determined. I order that the costs of this application be costs in the application for leave and appeal if leave is granted to appeal.
CATCHWORDS:	PROCEDURE - Appeal - Stay of costs order - Whether assessment of costs should also be stayed.
LEGISLATION CITED:	Legal Profession Act s.353
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 40409/09
COUNSEL:	In person (applicant) J McCULLAN (Sol) (first respondent) F BERGLUND (second and third respondents)
SOLICITORS:	Marsdens Law Group (first respondent) McIntosh McPhillamy & Co (second and third respondents)
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40986/08
LOWER COURT JUDICIAL OFFICER:	Lloyd J
LOWER COURT DATE OF DECISION:	16 July 2009

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CA 40409/09

HODGSON JA

Monday 14 DECEMBER 2009

Ivan JERAY v BLUE MOUNTAINS CITY COUNCIL and Ors

Judgment

1 HIS HONOUR: I am dealing with a notice of motion filed 7 December in which an applicant for leave to appeal seeks orders staying costs orders and also orders having the effect of staying a cost assessment based on those costs orders.

2 The first respondent does not oppose orders having that effect. The second respondent does not oppose an order that will prevent the execution of any costs order and any costs assessment until the decision of the Court of Appeal in this matter but does oppose an order that would prevent a costs assessment which has commenced from proceeding.

3 The applicant submits that it is premature that a cost assessment should be permitted to go ahead and submits that to permit it to do so would impose an unreasonable burden on him being an unrepresented litigant having to deal, at the same time, with a costs assessment and preparation of the application for leave to appeal.

4 A principle usually applied in relation to applications for a stay pending an appeal is that one thing the applicant needs to do is to show arguable grounds of appeal. The applicant has directed me to the appeal ground in his notice of appeal and in particular grounds 22 and 23. However, at this stage, there is no evidence of those matters. The applicant did say he could find and possibly tender transcript that will illustrate those matters. I did not follow that course. It does seem to me that that would greatly extend this application and possibly involve assessment of considerable pages of transcript which have not previously been selected and brought to the attention of the respondents. I appreciate that the applicant is self represented but in fairness to all parties matters like this should proceed on material that is prepared and served in advance of the hearing.

5 To some extent the necessity to assess whether the applicant has arguable grounds of appeal is avoided because of the approach taken by the respondents of not opposing a stay at least as regards enforcement of any costs order. As I have said, the only issue argued is whether an assessment of those costs that has commenced should proceed.

6 In all the circumstances I am not satisfied that this would impose a hardship on the applicant to the extent of requiring a stay in that respect. However, I would make the observation that the applicant has made a request under s 332A of the Legal Profession Act for a detailed bill and has not been provided with it. It is asserted by the solicitors for the second and third respondents that that section has no application. I have not had an opportunity to research that matter but it does seem to me possibly arguable that s 353 of the Legal Profession Act which makes the applicant a person entitled to apply for assessment of legal costs may give him standing to make a request under s 332A.

7 As I have said, I have not been able to research that matter but if that is the case then it would seem to me that the assessment could not proceed until that bill is provided. If the solicitors for the second and third respondents maintain the view that it does not apply then it may be that that is a matter that the cost assessor will have to consider.

8 Apart from making that comment however, as I have said, I am not satisfied that the case is made out that it would impose undue hardship on the applicant for the cost assessment to proceed. I think there is some force in contention on behalf of the first and second respondents that if they are prepared to take the risk of incurring the costs of the assessment with a view to reducing the delay in being able to pursue costs if the application for leave to appeal or the appeal itself fails the balance in my opinion does favour the second and third respondents in that respect.

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