Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council

[2011] NSWLEC 228

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jeray v Blue Mountains City Council & Ors; Jeray v Blue Mountains City Council [2011] NSWLEC 228

Hearing dates:

29 November 2011

Decision date:

30 November 2011

Jurisdiction:

Class 4

Before:

Moore AJ

Decision:

In proceedings 40986 of 2008:

(i) Proceedings 40986 of 2008 is dismissed.

(ii) The applicant pay the respondents' costs of the proceedings including any reserved costs.

(iii) The first respondent serve on the applicant a copy of these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders.

(iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr. Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba.

In proceedings 40517 of 2010:

(i) Proceedings 40517 of 2010 is dismissed.

(ii) The applicant pay the respondent's costs of the proceedings including any reserved costs.

(iii) The respondent serve on the applicant a copy of these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders.

(iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr. Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba.

Legislation Cited:

Uniform Civil Procedure Rules 2005
High Court Rules
Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007

Cases Cited:

Bi v Mourad [2010] NSWCA 17
Hoser v Hartcher [1999] NSWSC 527

Category:

Principal judgment

Parties:

Ivan Jeray (Applicant)
Blue Mountains City Council (First Respondent)
Greg Egan (Second Respondent)
John Egan (Third Respondent)
Ivan Jeray (Applicant)
Blue Mountains City Council (First Respondent)

Representation:

No appearance(Applicant)
Mr I Hemmings(First Respondent)
Mr P Clay SC(Second Respondent & Third Respondent)
No appearance(Applicant)
Mr I Hemmings(First Respondent)
Self-represented(Applicant)
Marsdens Law Group(First Respondent)
McIntosh McPhillamy and Company (Second Respondent)
McIntosh McPhillamy and Company (Third Respondent)
Self-represented(Applicant)
Marsdens Law Group (First Respondent)

File Number(s):

40986 of 2008 40517 of 2010

Judgment

Introduction

1. This judgment concerns applications by the respondent or respondents in two proceedings to dismiss each of them under rule 12.7 of the Uniform Civil Procedure Rules 2005 ("the Rules") on the basis that the applicant, Mr Jeray, has not prosecuted each of the proceedings with due dispatch. These applications are made against the immediate background of the applicant having recently unsuccessfully sought to vacate the hearing dates fixed for each proceedings. I gave judgment dismissing those applications on 23 November 2011.

1. As I noted in my reasons published on 23 November 2011, the more recently filed proceedings (40517 of 2010) were listed for hearing for four days from 13 to 16 December 2011 by Pain J on 9 September 2011. A number of procedural orders were made on the same day to ensure the matter was ready for hearing on the dates fixed. The older proceedings (40986 of 2008) were listed for hearing for 10 days from 29 November 2011 to 12 December 2011 by Craig J on 23 August 2011. Again a number of procedural orders were made on the same day to ensure the matter was ready for hearing on the dates fixed. It is clear from the orders of Craig J, that his Honour had in mind the Court hearing the matters involving Mr Jeray in a period commencing 29 November 2011 and concluding 16 December 2011.

1. Mr Jeray did not appear in court at 10 am on 29 November 2011. I am satisfied he was aware his application to vacate the hearing dates had been unsuccessful. I am also satisfied that he was aware he ran the risk that these applications for dismissal of the proceedings would be pursued particularly if he (or someone acting on his behalf) did not attend at the appointed time either to present his case or apply again to vacate the hearing dates. He would have been aware of these matters because he was served with orders which made it tolerably clear such applications would be made together with the notices of motion and affidavits in support. In any event, it was a possibility I adverted to in my reasons for judgment of 23 November 2011, which were also served on Mr Jeray.

1. Not only do affidavits of service establish service by leaving various documents including my earlier reasons in his letter box, actual receipt of the documents can be inferred from the terms of a letter sent by Mr Jeray by facsimile to the Registrar of the Court at 9.32 am on 29 November 2011 indicating "I am unable to respond to the Court's orders of 23 November 2011 and attend the proceedings of today, 29 November 2011 at 10 am for the above Land and Environment Court (LEC) cases...". The word "above" was a reference to the heading of the letter, which referred to both proceedings.

1. Shortly after 10 am on 29 November 2011, the Blue Mountains City Council ("the Council"), a respondent in both proceedings applied, by notice of motion, for the dismissal of the proceedings for the reason referred to earlier. The additional respondents in 40986 of 2008, the Egans, made a similar application.

The background

1. The history of each proceedings is less than straightforward. The following account is an adaptation of an account in the written submissions of counsel for the Council. I should add that what appears in the submissions is based on affidavit evidence filed in support of the notices of motion to dismiss the proceedings or is otherwise apparent from the Court file and is correct. What appears in this account represents findings of fact I make.

1. I first consider the history of proceedings 40986 of 2008. This account is far from exhaustive. They were commenced on 30 September 2008. Justice Lloyd began hearing the matter on 13 July 2009 and dismissed the proceedings on 16 July 2009. The apparent reason for his Honour doing so was that Mr Jeray refused to continue to present his case after his Honour refused to recuse himself. About 18 months later on 15 December 2010 an appeal to the Court of Appeal against the dismissal of the proceedings was upheld and an order was made remitting the matter to this Court.

1. The steps taken by Mr Jeray in preparation for the appeal were complex. He was initially granted leave to appeal on limited grounds on 6 July 2010 but was dissatisfied with the extent of leave granted and filed a notice of motion to set aside that leave. This was dismissed on 27 October 2010.

1. On 13 December 2010 the applicant sought to "postpone" the hearing of the appeal but the President dismissed that application for an adjournment. On 15 December 2010 the applicant sought a stay of the Court of Appeal hearing in the High Court. Justice Hayne dismissed this application and on the same day the appeal was heard.

1. An application was made for special leave to appeal against the order dismissing the motion to set aside leave. That application was deemed abandoned by operation of the High Court Rules and an application for re-instatement was dismissed by Heydon J on 14 February 2011.

1. A further application for special leave to appeal against the decision of Hayne J (dismissing the application for a stay of the Court of Appeal proceedings) was deemed abandoned by operation of the High Court Rules and an application for re-instatement was dismissed by Heydon J on 14 February 2011.

1. On 27 June 2011 an application to the Court of Appeal to stay the Land and Environment Court proceedings was dismissed.

1. An application for special leave to appeal against Heydon J's decisions, which dismissed the re-instatement applications, were dismissed by Keiffel and Gummow JJ on 8 September 2011.

1. Directions were made by Pepper J at a hearing on 11 February 2011 and by Biscoe J at a hearing on 15 April 2011 to facilitate the hearing of the remitted proceedings but no further material has been filed by Mr Jeray pursuant to those directions.

1. The proceedings were then listed for case management before Craig J on 27 May 2011. Mr Jeray filed a motion two days earlier asking that the motion be heard prior to case management. On 27 May 2011 Craig J made directions relating to both case management and the notice of motion. These orders were the subject of an application for leave to appeal which was dismissed on 15 September 2011. Case management resumed on 1 July 2011.

1. A further notice of motion was filed on 1 July 2011 (effectively amending the motion of 25 May 2011). On 1 August 2011 the motion of 1 July 2011 was heard and it was dismissed on 9 August 2011. As noted much earlier in these reasons Craig J made directions on 23 August 2011 fixing the proceedings for hearing and identifying steps that might be taken to ensure the matter was ready for hearing. No such steps have been taken.

1. I next consider the history of proceedings 40517 of 2010 which were commenced on 30 June 2010. Again, this account is far from exhaustive.

1. Directions were made for the filing of evidence on five different occasions. The first order was made on 9 July 2010 and the last order on 9 September 2011 when evidence was required to be filed and served by 28 October 2011. As at 29 November 2011 no evidence had been served in the substantive proceedings.

1. On 1 October 2010 a motion was filed by Mr Jeray alleging contempt and the motion was fixed for hearing on 5 November 2010. Mr Jeray filed a motion to vacate that hearing date but it was dismissed on 1 November 2010. Mr Jeray did not appear on 5 November 2010.

1. On 19 November 2010, Craig J made orders for the motion for contempt to be fixed for hearing 31 January 2011 and Mr Jeray sought to set aside those directions on 3 December 2010. Mr Jeray sought to adjourn the hearing at the commencement of the hearing of the contempt motion but that was refused. On 4 March 2011 Craig J dismissed the motion for contempt and Mr Jeray sought to have that decision set aside. A month later on 8 April 2011 Biscoe J dismissed that notice of motion.

1. The substantive proceedings were further delayed by the following events. On 8 April 2011 the matter was fixed for a five-day hearing, set to commence on 11 July 2011. Mr Jeray sought to stay the proceedings but the Registrar dismissed that application. Following this Sheahan J dismissed an application by Mr Jeray to review the Registrar's decision and Giles J dismissed an application by Mr Jeray to have the Land and Environment Court hearing stayed by the Court of Appeal.

1. At the hearing on 11 July 2011 before Sheahan J, Mr Jeray filed a notice of motion which, like his contempt motion, contained serious allegations against both the officers of, and the legal representatives for, the first respondent.

1. Mr Jeray sought leave to appeal to the Court of Appeal on two occasions and they were dismissed. At the commencement of the hearing of each leave application he sought an adjournment.

1. As noted much earlier in these reasons, the matter was before Pain J on 9 September 2011 and directions were made for the filing and service of evidence for the fifth time and the proceedings were also fixed for hearing. As at 29 November 2011 no evidence had been served.

Other evidence

1. There was evidence led from the Council's solicitor, which I accept, that the Council had incurred liability for solicitors' legal professional costs in excess of $96,000, for counsel's fees in excess of $61,000 and other expenses and disbursements of almost $4000 by 3 November 2011 in defending proceedings 40986 of 2008. It is not clear whether these sums have yet been paid in whole or in part.

1. There was also evidence led from the Council's solicitor, which I accept, that the Council had incurred liability for solicitors' legal professional costs in excess of $94,000, for counsel's fees in excess of $59,000 and other expenses and disbursements of about $2000 by 3 November 2011 in defending proceedings 40517 of 2010. Again, it is not clear whether these sums have yet been paid in whole or in part.

1. There was evidence from Mr Gregory Egan, which I accept, that he and his father have incurred costs in the order of $150,000 in defending proceedings 40986 of 2008. Yet again, it is not clear whether this sum has yet been paid in whole or in part. Mr Egan also gave evidence, which I accept, concerning the negative and stressful impact of the proceedings on not only him but also his wife.

Consideration

1. The touchstone for the exercise of the power to dismiss proceedings because an applicant has not prosecuted them with due dispatch is the Civil Procedure Act 2005 (NSW) ("CP Act") and particularly ss 56-60: see Bi v Mourad [2010] NSWCA 17. That is not to say the earlier exposition of considerations (in judgments predating the CP Act) which then might have informed the exercise of the power, no longer have any relevance. One such judgment apparently widely cited was Hoser v Hartcher [1999] NSWSC 527 in which Simpson J helpfully listed (in what her Honour described as a non-exhaustive list) eleven such possible considerations, some or all of which may be applicable having regard to the particular facts of the case. I have read this judgment. However while this judgment remains relevant it should not distract attention from the CP Act.

1. What emerges from the background discussed earlier is that Mr Jeray has commenced proceedings (and I am here referring to both proceedings though the position is more acute in 40986 of 2008) and conducted them in a way which has meant that the hearing of the issues he wishes to ventilate (and their determination) is probably now nearly as far removed into the future as it was at the time the proceedings were commenced. I do not, in making these comments, suggest that any prolongation of the time arising directly and immediately from the applicant's successful appeal to the Court of Appeal has any relevance. It does not. The same, however, cannot be said of the ancillary litigation in the Court of Appeal and the High Court.

1. Plainly enough Mr Jeray has exercised, at virtually every turn, legal rights conferred on him by our legal system. However, save for the successful appeal against the dismissal of proceedings 40986 of 2008 by Lloyd J, the exercise of those rights has been largely a barren exercise which has delayed the final resolution of the proceedings, increased, and probably increased substantially, the costs incurred by the respondents and exacerbated considerably the associated stresses and strains litigation almost necessarily imposes on litigants both personal and corporate. While there is no direct evidence of Mr Jeray's financial position, he said in his letter of 29 November 2011 that he could not afford legal representation and he was undertaking the proceedings "with significantly limited means and resources". I think I can reasonably infer that he is unlikely to have the capacity to meet any costs orders or at least to do so readily.

1. The general impression I have of Mr Jeray's conduct of the litigation is that while he is prepared to litigate ancillary issues with alacrity, perhaps even enthusiasm, though he sometimes hesitates at the threshold of the courtroom and seeks adjournments. However he is not prepared to take such steps as are necessary, including attending a hearing scheduled as a final hearing, which might actually determine the issues he seeks to raise in each proceedings.

1. I have not endeavoured to come to terms with what those issues might be in any detail. It is inappropriate for two reasons. The first is that directions have been given in both proceedings designed to elucidate what truly are the issues but this has not occurred. Thus the task of considering what those issues might be is a fraught one. The second is that a decision to dismiss these two proceedings because they are not being prosecuted with due dispatch does not, in the particular circumstances of this case, depend on the subject matter of the litigation other than in the most general sense. There is one qualification I should make to this last comment.

1. The qualification is this. In these proceedings Mr Jeray challenges the general conduct and workings of the Council but also challenges, amongst other things, two development consents and related consents given by the Council to a development project the Egans proposed and are now undertaking. A relevant consideration is whether orders dismissing both proceedings will prejudice Mr Jeray because time limits will preclude fresh proceedings mounting a similar challenge. They will because of the operation of s 101 of the Environmental Planning and Assessment Act 1979. However for reasons that will emerge shortly, Mr Jeray can avoid this outcome if he successfully follows a course I outline later in these reasons.

1. The CP Act has, as an overriding purpose, the facilitation of the just, quick and cheap resolution of the real issues in dispute in proceedings: s 56. This purpose infuses case management: s 57. That purpose also embodies an objective. Mr Jeray's conduct of the proceedings has, in the main, been antithetical to meeting that objective. In particular, his refusal to attend the hearing on 29 November 2011 or to demonstrate to the Court on a proper basis that the hearing (and the one to follow) should not proceed, brings about a circumstance where it is now clear (if it was not clear earlier) the two proceedings he commenced are not being conducted quickly or cheaply nor, having regard to his earlier conduct, are the real issues being identified. There will be no trial in November and December 2011 and one could not be confident there would be a trial in the months to follow. In my opinion, Mr Jeray has not prosecuted both proceedings with due dispatch and, for this reason, they should be dismissed.

1. I should conclude by noting that the orders I am making have been made in the absence of Mr Jeray. Senior Counsel for the Egans drew attention to rule 36.16(2)(b) of the Rules (and invited me to refer to it in these reasons). That provision enables the Court to set aside an order after it has been entered if it has been made in the absence of a party. So that rule will apply in the present case when the orders I will be making have been entered. Before the orders are entered, rule 36.16(1) enables the Court to set aside the orders.

1. In this Court an order is entered (unless the court otherwise orders) when a document embodying the order is first sealed by the Registrar: rule 7.6 of the Land and Environment Court Rules 2007 . Mr Jeray should appreciate that when this occurs (the orders are entered) he will have only fourteen days to file a notice of motion making an application to set aside the orders under rule 36.16(2)(b) given that the orders have been made in his absence. There is no flexibility about this 14 day requirement or time limit. The time cannot be extended. This rigid time limit is imposed by the combined operation of rule 36.16(3A) and (3C) of the Rules.

1. If such an application is made by Mr Jeray (to set aside the orders I make today) it will be heard by a judge of this Court who will exercise a discretionary power when deciding whether or not to set aside the orders. I cannot and should not indicate in these reasons in any concluded way what factors might influence the judge in deciding whether or not to set aside the orders. However it is likely that Mr Jeray would need to establish an acceptable explanation for his non-appearance on 29 November 2011. If it is for a reason based on what he has repeatedly said in correspondence, namely that he is suffering from a "medical condition", it is likely there would need to be evidence concerning that condition in a form acceptable to the judge. That would be likely to be an affidavit from a medical practitioner or oral evidence from a medical practitioner who Mr Jeray has subpoenaed to give evidence. I have discussed this topic in the reasons for judgment I published on 23 November 2011.

1. It may also be that the judge hearing any such application would wish to be satisfied that Mr Jeray has an arguable case or at least that there are serious questions to be tried. I would imagine there would be other matters about which the judge would need to be satisfied. They might include Mr Jeray's capacity to meet a costs order if he is unsuccessful which might, in turn, raise a question about whether the proceedings could properly be characterized as proceedings brought in the "public interest", a characterization Mr Jeray has repeatedly advanced.

1. Mr Jeray needs to understand that:

(i)   Unless he applies within 14 days of the entry of the orders I will make today to have the orders set aside and that application is successful, the orders will stand including the costs orders.

(ii)   If the orders stand, each of the proceedings will remain dismissed.

(iii) While it may be possible for him to commence fresh proceedings raising some of the issues raised in the present proceedings, s 101 of the Environmental Planning and Assessment Act 1979 creates a time limit for bringing proceedings questioning the development consents he challenges in the present proceedings.

(iv) That time limit has passed and s101 would create a legal barrier for questioning those consents in fresh proceedings.

(v)   If the orders stand, Mr Jeray will be liable to pay the Council and the Egans their legal costs of the dismissed proceedings on a party and party basis (which is probably going to be less than the actual costs). I have already referred to evidence which gives some indication of the magnitude of the costs he will be liable to pay on a party and party basis. In practical terms that is likely to be many tens of thousands of dollars and quite conceivably hundreds of thousands of dollars in aggregate.

(vi)   If the orders dismissing the proceedings stand, and Mr Jeray seeks to bring fresh proceedings, those proceedings will most likely be stayed until he has paid the respondents their costs of the dismissed proceedings.

1. If a respondent procures the entry of the orders I am about to make, those entered orders must be served on Mr Jeray within 24 hours of their entry together with a letter explaining that (and when) the orders have been entered and setting out (in the body of the letter or as an annexure) the text of the preceding five paragraphs of these reasons. Service can be effected in the same way as ordered in relation to the service of the reasons for judgment refusing to vacate the hearing dates. That is, by leaving them in the applicant's letterbox at the specified address.

1. I make the following orders in proceedings 40986 of 2008:

(i) Proceedings 40986 of 2008 is dismissed.

(ii) The applicant pay the respondents' costs of the proceedings including any reserved costs.

(iii) The first respondent serve on the applicant a copy these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders.

(iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr. Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba.

1. I make the following orders in proceedings 40517 of 2010:

(i) Proceedings 40517 of 2010 is dismissed.

(ii) The applicant pay the respondent's costs of the proceedings including any reserved costs.

(iii) The respondent serve on the applicant a copy these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders.

(iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr. Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba.

Amendments

01 December 2011 - 15 - 27 June 2011 changed to 15 September 2011 to accord with evidence.20 - 3 December 2011 changed to 3 December 2010 - typographical error

Amended paragraphs: 15, 20

Decision last updated: 05 December 2011