Jeray v Blue Mountains City Council (No 2)

The appeal concerned a dispute between Jeray and Blue Mountains City Council. Jeray had brought proceedings against the Council, but after the primary judge dismissed a motion for recusal, Jeray indicated he could not proceed with his case. The primary judge then dismissed Jeray's case for "implied discontinuance." Jeray appealed this decision to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the primary judge had denied Jeray procedural fairness by dismissing his case for implied discontinuance. This involved considering the specific obligations a primary judge owes to an unrepresented litigant, particularly in ensuring the litigant understands the proceedings and has a proper opportunity to present their case. The Court also had to determine whether the primary judge had a duty to warn Jeray of the consequences of his inability to proceed and to ascertain if he genuinely intended to discontinue his action.

The Court of Appeal found that the primary judge had failed to afford Jeray procedural fairness. The Court held that where a litigant, particularly an unrepresented one, indicates an inability to proceed following a judicial decision, the judge has a duty to ensure the litigant understands the implications of their stance. This includes a duty to warn the litigant of the potential consequences, such as dismissal of their case, and to ascertain whether the litigant genuinely intends to discontinue their proceedings. The Court concluded that the primary judge had erred in dismissing the case for implied discontinuance without fulfilling these obligations.