Jeray v Blue Mountains City Council & Ors [2011] HCATrans 36

[2011] HCATrans 36

[2011] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S279 of 2010
  No S24 of 2011

B e t w e e n -

IVAN JERAY

Applicant

and

BLUE MOUNTAINS CITY COUNCIL

First Respondent

GREG EGAN

Second Respondent

JOHN EGAN

Third Respondent

Summons for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 FEBRUARY 2011, AT 9.48 AM

Copyright in the High Court of Australia

MR A.M. PICKLES:   May it please the Court, I appear for the first respondent in the first matter and the first respondent has filed a submitting appearance in the second matter.  (instructed by Marsdens Law Group)

MR P.R. CLAY:   May it please the Court, I appear for the second and third respondents in both matters.  (instructed by Crennan Legal)

MR I. JERAY appeared in person.

HIS HONOUR:   Mr Jeray, you want both matters, as it were, to be heard together or do you want them heard one by one?

MR JERAY:   I do not mind if they are heard together.

HIS HONOUR:   Very well.

MR JERAY:   It might be efficient, I do not know.

HIS HONOUR:   In the first matter, which is S279 of 2010, I think that you have filed – may I say this.  I have read everything that has been filed but, in particular, may we take it that you rely on an affidavit of yours which was filed on 7 December?

MR JERAY:   Okay.  That is going back to the original application, yes.

HIS HONOUR:   Well, it is in the file.  If you do not want to rely on it, that is all right.

MR JERAY:   Yes.

HIS HONOUR:   Then there is another affidavit of yours which was filed on 13 December.

MR JERAY:   Yes, okay.

HIS HONOUR:   Then there was one filed on 15 December 2010 by you.

MR JERAY:   Yes.

HIS HONOUR:   Finally, I think, you filed two affidavits on 6 January 2011?

MR JERAY:   Yes.

HIS HONOUR:   Now, do the respondents have any objection to anything in those affidavits?

MR PICKLES:   No objections, your Honour.

MR CLAY:   No, your Honour.

HIS HONOUR:   Just to complete this formal stage, we are moving today on a summons that was filed on 6 January, the primary relief in which is that your application for special leave be reinstated.  That is right, is it not?

MR JERAY:   Yes, that is correct.

HIS HONOUR:   In the other matter, which is S24 of 2011, again I have read the contents of the file but the evidentiary material you are relying on consists of an affidavit filed on 15 December 2010?

MR JERAY:   I cannot find that.  Was that a separate affidavit or was it mentioned in the summons?  I think it was ‑ ‑ ‑

HIS HONOUR:   It is a separate affidavit filed on 15 December.  I am sorry, that actually seems to have drifted into this file out of the other file, so we have probably already seen it or it is read in the other matter.  Then there was one on 18 January 2011 which is really, I think, just an affidavit of service.

MR JERAY:   Yes, that is correct.

HIS HONOUR:   Finally, there is an affidavit of 10 February 2011.

MR JERAY:   Yes, that is correct.

HIS HONOUR:   Any objections to those affidavits?

MR CLAY:   No objections, your Honour.

MR PICKLES:   No, your Honour.

HIS HONOUR:   Now, if we take 279 first, is there anything you want to add, Mr Jeray, to the material that is already in the file by way of oral argument?

MR JERAY:   Well, just to emphasise that I still have not received the transcript that I require to complete my special leave application and summary of grounds.  This is the transcript that I have referred to in the affidavit of 27 October 2010, the subject of the appeal, the notice of motion

that occurred on that day in the Court of Appeal in the Supreme Court of New South Wales.  I have actually prepared another affidavit this morning, if the Court would allow me to file that in Court.  It is just a three‑page affidavit, so it is not detailed, it just has an exhibit and a very short ‑ ‑ ‑

HIS HONOUR:   Have you got a copy for ‑ ‑ ‑

MR JERAY:   Yes, I have copies to provide.

HIS HONOUR:   You hand ‑ ‑ ‑

MR JERAY:   I will hand to the Court in ‑ ‑ ‑

HIS HONOUR:   I will just have a look at it first.  Give copies to your opponents.  Is there any objection to the filing of this affidavit in Court?

MR CLAY:   No, your Honour.

MR PICKLES:   No objection, your Honour.

HIS HONOUR:   Any objection to its being received in evidence?

MR CLAY:   No, your Honour.

HIS HONOUR:   First I give leave to the applicant to file in Court an affidavit sworn by him on 14 February 2011 and I treat that affidavit as having been read without objection.  Yes, anything else, Mr Jeray?

MR JERAY:   Also in the affidavit it does say that I was not well during that period where I was required to put together my summary of grounds.  I think the medical certificate is in the affidavit.  In relation to costs, would that be heard separately?

HIS HONOUR:   Yes, we will hear that at the end, if we get that far.

MR JERAY:   Okay.  All right.

HIS HONOUR:   In the other matter, S24 of 2011, is there anything you want to say orally?

MR JERAY:   Not really.  I think it says it all in my affidavit, your Honour.  Thank you.

HIS HONOUR:   I need not trouble counsel for the respondents in the first matter or the second. 

Dealing with the first matter, on 7 December 2010 the applicant filed an application for special leave to appeal from a decision of the New South Wales Court of Appeal constituted by Acting Justice Handley and Acting Justice Sackville.  That decision was given on 27 October 2010.  The applicant thereafter failed to file and serve a summary of argument and a draft notice of appeal within 28 days of filing his application.  By reason of Rule 41.10.4 of the High Court Rules, his application was deemed to have been abandoned.  The applicant this morning relies on a summons filed on 6 January 2011 which seeks an order that his special leave application be reinstated together with consequential orders.

The background to the Court of Appeal’s judgment of 27 October 2010 is as follows.  On 6 July 2010, the Court of Appeal granted the applicant leave to appeal against the dismissal by the Land and Environment Court, Justice Lloyd, of certain proceedings brought by the applicant in that court.  The judgment of 27 October 2010 declined to extend the grounds on which leave to appeal had been granted.  The position, therefore, after 27 October 2010 was that the applicant had leave to appeal on a ground connected with the applicant’s application that the primary judge disqualify himself, but not on various other grounds.

On 13 December 2010, the applicant unsuccessfully sought to vacate the hearing of his appeal from the Land and Environment Court which had been fixed for hearing by the Court of Appeal on 15 December 2010.  On 15 December 2010, the applicant applied to Justice Hayne for a stay of that hearing.  That application was rejected.  The hearing proceeded on 15 December 2010 before the Court of Appeal and the appeal succeeded.  The Court of Appeal remitted the matter to the Land and Environment Court for rehearing, but the Court of Appeal did not disturb the order of 27 October 2010 that the applicant pay the costs of that application and it made no order as to the costs of 13 December 2010. 

Before making its orders on 15 December, which included an order that the costs order of 27 October 2010 not be disturbed, the Court of Appeal afforded the parties an opportunity to debate costs and the form of the orders. 

The applicant’s application for special leave to appeal is now pointless.  If that application succeeded and if the appeal were allowed, all that success would mean is that the applicant would be able to rely on further grounds of appeal against the Land and Environment Court’s order dismissing his proceedings in that Court.  But since the applicant has succeeded on the one ground on which leave was granted, there is no point in considering the merits of other grounds because those merits are now only academic.  Appeals are brought against orders, not reasons. 

The Court of Appeal will not reconvene to hear any argument about the extra grounds and success on those extra grounds would not improve the applicant’s position in any way.  It is true that in the applicant’s special leave application there are complaints about the way in which the hearing of 27 October 2010 was conducted in the Court of Appeal.  Those complaints are presently unsupported by evidence or any other material.  In oral argument the applicant stressed, as he had stressed in the written material filed, that he had not received a copy of the transcript which he was seeking in order to complete his special leave application and summary of argument in this Court.  But the only adverse consequence of that hearing, as matters now stand, is the costs order against the applicant. 

The applicant does not seek reversal of that order and even if he were to do so, the prospects of obtaining special leave in relation to that order are so low that there is no reason to reinstate the application for special leave.  It would be a very rare case on which special leave to appeal only on a costs order would be granted, particularly where the quantum involved is as low as seems likely here.  It would be a totally unsatisfactory form of litigation in this Court.  It follows that the summons seeking reinstatement must be dismissed. 

Is there anything you wish to say about costs of that application, Mr Jeray?

MR JERAY:   Your Honour, I just have to say something.  I am not sure whether I can say this, but it seems to me that there was also another order that was made by Justice Lloyd which I am also appealing, as is indicated in my summons.  I am not just appealing the dismissal of the hearing that occurred on 16 July 2009.  There was also an order to dismiss my notice of motion with costs, which is also what I am appealing in the special leave application.  I do not know if you saw that, but that is in there as well.

HIS HONOUR:   I have your special leave application.  I am not sure what this had got to do with costs, but just tell me what you are referring to in that special leave application.

MR JERAY:   If you look to section G, it raises it there – it talks about it there.  It says the whole decision, paragraph G – and if you look at the judgment that was made by the Court of Appeal, the judgment only sets aside the dismissal of the hearing, not the notice of motion with costs.  Since the appeal was upheld, that would be another reason why I would amend my special leave application to eliminate those other ‑ ‑ ‑

HIS HONOUR:   Are you saying that the Court of Appeal on 15 December failed to deal with whatever is referred by paragraph G of your special leave application?

MR JERAY:   They only talk about that order that was made.

HIS HONOUR:   Order 2 of the Court of Appeal was:

Set aside orders of the Land and Environment Court made on 16 July 2009, dismissing with costs proceeding 40986 of 2008.

MR JERAY:   That is right.

HIS HONOUR:   Is that not precisely what paragraph G is referring to?

MR JERAY:   It says the whole decision made by Justice Lloyd on 16 July, and if you have a look at what decision Justice Lloyd made, it was not only the dismissal of the proceedings with costs, but it was also, prior to that, the dismissal of the notice of motion that I had filed for him to recuse himself.  That was dismissed with costs, but there is no mention of that.  I do not believe that judgment included that – setting aside that order which I am – which was the substance of my notice of motion to include further grounds to set that aside.  I do not think the Court of Appeal was looking at that order because that order was not allowed.

Justice Handley and Justice Sackville said there was no grounds for the setting aside of that order, which I disagree with, which is why I came to this Court with the special leave application and I think it would be wrong to interpret that as a decision made on 15 December by the Court of Appeal in the Supreme Court of New South Wales saying that that was – I think it would be wrong to say that the Court of Appeal dismissed all the decisions made on 16 July by Justice Lloyd.  I think you can see it specifically refers only to the dismissal of the hearing, not the dismissal of the notice of motion.  I am sorry, I did not bring that up earlier.  I thought that the ‑ ‑ ‑

HIS HONOUR:   Is there anything else you want to say about the costs of your summons?

MR JERAY:   Well, your Honour, I am taking up this cause in the public interest.  I am not gaining in any financial way in this matter.  The matter deals with the way that the Council approved the development application.  There was also an unlawfully commenced development that is being contested there as well and I also believe I have evidence of maladministration that has occurred in Blue Mountains City Council which relates to the other part of my matter, the communication matters.

HIS HONOUR:   Let me just interrupt you for a moment.  You seek costs, do you, of this summons?

MR PICKLES:   Yes, your Honour.

HIS HONOUR:   Very well.  Anything further, Mr Jeray, on the costs question?

MR JERAY:   I have the affidavit there that – my affidavits talk about it further.  If the Court ‑ ‑ ‑

HIS HONOUR:   Yes, I have read what you have said in your affidavits about your financial position and your motivation for bringing the proceedings.

MR JERAY:   Okay.  Thank you.

HIS HONOUR:   Mr Pickles and Mr Clay, do you have anything to say not about those latter matters, but about what Mr Jeray said in relation to the orders of Justice Lloyd?

MR CLAY:   I might be able to assist a little more.  Mr Jeray made an application to Justice Lloyd that he disqualify himself and put on a motion but declined to prosecute it before Justice Lloyd asking that it dealt with by a different judge.  He sought leave to appeal against the dismissal of that motion in the Court of Appeal and leave was not granted by Acting Justices Handley and Sackville in the decision of 6 July 2010.  Leave was granted, as your Honour would have noted, only in respect of one of the grounds in respect of the dismissal.  As I say, this is the first I have heard Mr Jeray seek to agitate an appeal against the decision of his Honour Justice Lloyd not to disqualify himself and, of course, your Honour may be aware that Justice Lloyd’s commission ended about 12 months or so ago, in any event.

HIS HONOUR:   What I do not quite understand is this.  Justice Lloyd’s orders dismissing the proceeding – that order was set aside by the Court of Appeal because it was said that Justice Lloyd should have recused himself or at least erred procedurally in the way in which he approached that application.

MR CLAY:   No, with respect, your Honour, it was in respect of procedural fairness in identifying to Mr Jeray the reasons why his Honour was about to dismiss the proceedings because Mr Jeray declined to proceed with the substantive proceedings.

HIS HONOUR:   But they are integrally linked, are they not?  The reason why Mr Jeray was taking that posture was the complaint about the propriety of Justice Lloyd continuing.

MR CLAY:   That is so, but the Court of Appeal really was saying, well, he needed to identify to Mr Jeray, Justice Lloyd, the consequences of him not proceeding, including the costs consequences.  A greater identification of the rules of the game is the metaphor that was used.

HIS HONOUR:   So what you are saying is there is a notice of motion not dealt with by the Court of Appeal because leave was not granted in that regard?

MR CLAY:   Yes.

HIS HONOUR:   If leave had been granted in that regard, what impact would it have made on the hearing in the Court of Appeal on 15 December?  What different order might the Court of Appeal have made if it had proceeded in that regard?

MR CLAY:   I do not imagine it would have occupied very much time at all or made any material difference because the substantive matter was the procedural fairness matter in dismissing the proceedings.

HIS HONOUR:   Let me try and put this differently.  Would Mr Jeray have been better off if the Court of Appeal had not only made the orders it did on 15 December but gone on to say that there had been an error in dismissing that notice of motion?

MR CLAY:   No, your Honour.

HIS HONOUR:   Would there have been any costs difference, the costs before Justice Lloyd?

MR CLAY:   No, the costs order was set aside.  His Honour dismissed the motion with costs and that order remains undisturbed except to the extent to which those costs were encompassed in the costs of the proceedings which costs order has been set aside.  I must say for our part, the costs – I apologise, your Honour.  The motion was such that Mr Jeray’s file in the registry was brought up to court on the fourth day of the hearing.  So, in practical terms, there were no additional costs incurred by virtue of the motion because we were there for the hearing.

HIS HONOUR:   If there is any, as it were, extant, and unoverturned order as to costs in relation to that motion, are you seeking any costs?

MR CLAY:   No, your Honour.

HIS HONOUR:   What about you, Mr Pickles?

MR PICKLES:   No, for counsel’s part, no, your Honour.

HIS HONOUR:   Have you anything more to say, Mr Jeray?

MR JERAY:   I need to clarify what is going on.  I am not real sure what is going on, please, and I would still like to have a reply after you explain to me, please, what is going on.

HIS HONOUR:   What is going on is this.  You put a submission, quite apart from Justice Lloyd’s order dismissing the proceedings with costs, which has been overturned by the Court of Appeal.  There was another order dismissing a notice of motion with costs.

MR JERAY:   That is correct.

HIS HONOUR:   The opponents accept that that is so.  Mr Clay said, one, there are probably not extra costs involved in the notice of motion and, two, both of your opponents say, even if there are, they will not be seeking to execute the costs order against you.  Do you understand?

MR JERAY:   I understand that, yes.  I was not aware of that either.

HIS HONOUR:   They just said it then.

MR JERAY:   Yes, now.

HIS HONOUR:   Now, do you want to say anything in addition?

MR JERAY:   There is also the dismissal of the notice of motion with costs on 27 October 2010 which I wish to set aside.

HIS HONOUR:   I have dealt with that in my judgment.  I am not going to hear any further argument about it.

MR JERAY:   I do raise the issues in my summons.  Well, anyway, I will just repeat that this is the first time I have known about it now.  I just found out about it today, right now, so ‑ ‑ ‑

HIS HONOUR:   Anything else?

MR JERAY:   No, your Honour.

HIS HONOUR:   Thank you.

The respondents seek costs of the summons in S279 of 2010.  Mr Jeray advances two groups of arguments in opposition to a costs order.  The first turns on a point he has made in the papers filed and which he made orally again.  That point is that he is not seeking to gain financially in any way from these proceedings.  His concern is to vindicate the public interest in preventing unlawfully commenced developments from proceeding.  The fact is, however, he has engaged in litigious steps which have put the respondents to expense and if that were the only consideration, they are entitled to costs. 

The second point he makes is this.  The Court of Appeal set aside orders of the Land and Environment Court made on 16 July 2009.  Those orders dismissed, with costs, Mr Jeray’s proceeding in that court.  Mr Jeray submits that there was also a notice of motion filed before Justice Lloyd which was dismissed with costs with which the Court of Appeal did not deal.  The respondents, or at least Mr Clay, in particular, for the second respondent, put a submission that the costs of that notice of motion would probably have been swallowed up in the costs of the proceedings as a whole so that there is no separate content. 

Whether or not that be so, both the second and third respondents, for whom Mr Clay appeared, and Mr Pickles, for the first respondent, indicated that they would not be seeking to enforce the costs order in relation to the notice of motion in any event.  Accordingly, there is no reason either to alter the reasons for judgment I pronounced earlier or standing in the way of the conclusion to which I have come, which is that the applicant should pay the costs of the summons. 

I now go to S24 of 2011.  On 12 January 2011, the applicant filed an application for leave to appeal from a costs order made by Justice Hayne on 15 December 2010.  That order was made by Justice Hayne while dismissing an application for an order that the hearing by the Court of Appeal of the Supreme Court of New South Wales, which had been fixed for that day, be stayed.  Following Justice Hayne’s dismissal of the stay application, the hearing actually proceeded and the applicant succeeded in that appeal.  Contrary to Rule 41.10.3(c), the applicant did not, within 28 days of 12 January 2011, file a written case and a draft notice of appeal.  By reason of Rule 41.10.4.1, the application for special leave to appeal was therefore deemed to have been abandoned.

On 10 February 2010, the applicant filed a summons seeking an order that his application for special leave to appeal be reinstated, together with consequential orders.  The explanation for the applicant’s failure to comply with the Rules is that when he attended the Registry on 9 February 2011 he discovered that he had forgotten his draft notice of appeal.  Assuming without deciding that is a sufficient explanation for the applicant’s delay, the question remains whether there is any utility in his summons. 

The applicant’s application for special leave to appeal makes various complaints about what happened before Justice Hayne on 15 December 2010, but the point of the proceedings before Justice Hayne has gone.  On the one hand, since the stay application failed, the appeal proceeded before the Court of Appeal.  On the other hand, the appeal before the Court of Appeal was successful.

To debate the justice of Justice Hayne’s costs order of 15 December 2010 is a completely unsatisfactory way for this Court to spend its time when the point of the application heard on that day has dissolved.  It is also completely unsatisfactory that the applicant expose the respondents to a waste of time and money in engaging in that debate.  Accordingly, the summons is dismissed.

Mr Jeray, have you anything to say about the cost of that summons?

MR JERAY:   The same argument as before, that – I would also like to point out, too, that this Court has previously set aside costs orders if applicants take matters in the public interests without any financial gain.  I think that principle was highlighted in Oshlack v Richmond River Council in 1998 by this Court.

HIS HONOUR:   Thank you.

Mr Jeray adopts his earlier submissions about his inability to make financial gains for himself out of these proceedings.  He submitted that this Court had set aside costs orders if applicants take proceedings in the public interest without financial gain, and he referred to Oshlack v Richmond River Council.  What is in question is a costs order made in relation to a stay application before a single Judge of this Court which I have held to lack any utility if it were to be proceeded with.  In those circumstances, I see no alternative but to order that the applicant pay the costs of that summons. 

That concludes those two matters.

AT 10.27 PM THE MATTER WAS CONCLUDED