Seek Justice Pty Ltd v Blue Mountains City Council

[2022] NSWCA 41

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Seek Justice Pty Ltd v Blue Mountains City Council [2022] NSWCA 41

Hearing dates:

21 March 2022

Date of orders:

21 March 2022

Decision date:

21 March 2022

Before:

Basten JA

Decision:

(1)   Dismiss the application for review of the decision of the Registrar.

(2)   Applicant to pay the costs of the second respondent in this Court other than those that have been the subject of previous orders.

Catchwords:

PRACTICE AND PROCEDURE – review of decision of Registrar – show cause direction – proceeding dismissed for non-compliance – failure to comply with directions and attend directions hearings – proceedings lacking utility

Legislation Cited:

Supreme Court Act 1970 (NSW), s 121

Uniform Civil Procedure Rules 2005 (NSW), rr 13.6, 49.19

Cases Cited:

Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWCA 87

Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Procedural rulings

Parties:

Seek Justice Pty Ltd (Applicant)
Blue Mountains Local Planning Panel/Blue Mountains City Council (First Respondent)
USM Events Pty Ltd (Second Respondent)

Representation:

Counsel:
No appearance by Applicant
Mr Campbell (Second Respondent)

Solicitors:
Applicant unrepresented
Sparke Helmore Lawyers (Second Respondent)

File Number(s):

2021/133390

 Decision under review 

Court or tribunal:

Court of Appeal

Citation:

N/A

Date of Decision:

18 October 2021

Before:

Registrar Riznyczok

File Number(s):

2021/133390

Judgment

1. BASTEN JA: The applicant, Seek Justice Pty Ltd, requested the Court to review the decision of the Registrar to dismiss the applicant’s summons seeking leave to appeal from a judgment of the Land and Environment Court. The summons was dismissed pursuant to r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The authority of a single judge of this Court to review a decision of the Registrar is to be found in a combination of s 121(3) of the Supreme Court Act 1970 (NSW) and r 49.19 of the UCPR. ^[1] Accordingly, I am satisfied that I have power to deal with the application to review the decision of the Registrar.

   1. Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [52].

2. The director of the company who has appeared on its behalf in all proceedings prior to this, both in this Court and in the Land and Environment Court, is Mr Ivan Jeray. Mr Jeray filed an affidavit of 14 February 2022 in this Court on behalf of the company stating he is the director and representative of the applicant. In the affidavit of 14 February, he set out matters in support of a number of orders set out in a notice of motion for directions in relation to the further conduct of the matter.

3. On 16 March 2022 Mr Jeray wrote a letter to the Registrar, part of which apologised for the nonappearance of the company on 28 February and 21 March 2022. It thus anticipated non-attendance at the hearing which had been fixed for today. Mr Jeray did not attend when this matter was called before the Registrar, nor has he attended by telephone at this hearing in accordance with the procedures adopted by the Court for dealing with interlocutory motions, of which he was apprised by email in the usual way. I have not heard from him today, but I am satisfied that he has notice of the date on which this matter was to be heard and has apologised in advance for his nonappearance.

4. It is necessary to consider whether the Court should deal with the matter in his absence or adjourn the matter to allow him a further opportunity to appear. As he does not seek a further opportunity to appear and as he has not appeared on prior occasions, it is appropriate to deal with the matter in his absence.

5. The matter involves proceedings commenced in the Land and Environment Court in May last year seeking immediate injunctive relief in relation to a four-day track event which was to take place in Katoomba over the period 13-16 May 2021. An application was made for an interlocutory injunction on the basis that the development consent pursuant to which the event would be held was invalid.

6. The motion was heard on 7 May 2021; Moore J delivered his judgment and made orders dismissing the application on 10 May 2021. ^[2] The event took place in the following days, as planned. It was from that interlocutory decision that the applicant seeks leave to appeal. The matter proceeded before the Land and Environment Court to a final dismissal of the proceedings for want of utility, pursuant to UCPR r 13.4, orders being made on 5 November 2021.

   2. Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42.

7. The development consent which had been the subject of the challenge in the Land and Environment Court no longer had utility after the event took place. I understand that it was surrendered by the company, the second respondent in this Court, USM Events Pty Ltd, on 8 July 2021.

8. On 18 October 2021, following a number of interlocutory stages in this Court, the Registrar dismissed the application for leave to appeal pursuant to r 13.6 for the failure of the applicant, by its agent, to appear on various occasions to comply with directions and ultimately its failure to respond to a show cause notice, together with the lack of utility in the proposed appeal.

9. I can see no basis in allowing these proceedings to remain on foot. They clearly lack utility. The event to which injunctive relief was sought was completed almost a year ago. There was some suggestion in the course of the interlocutory proceedings in the Land and Environment Court that if there were concerns about the validity of the development consent, even though a judgment would not affect the events in 2021, a ruling might be of some assistance in considering any proposal for further similar events in the Blue Mountains City Council area on a future date.

10. However, an application in this Court for an interlocutory injunction was dismissed by Macfarlan JA, noting that there had been no grounds of appeal filed and there was no arguable basis for challenging the decision below. ^[3]

    3. Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWCA 87.

11. For all of these reasons, together with the absence of any indication as to error on the part of the Registrar, in dismissing the proceeding following the provision of a notice under r 13.6, the application for review of the decision of the Registrar must be dismissed.

12. The Court makes the following orders:

1. Dismiss the application for review of the decision of the Registrar.

2. Applicant to pay the costs of the second respondent in this Court other than those that have been the subject of previous orders.

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Endnotes

Decision last updated: 24 March 2022