Seek Justice Pty Ltd v Blue Mountains City Council

[2021] NSWCA 87

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

12 May 2021

Date of orders:

12 May 2021

Decision date:

12 May 2021

Before:

Macfarlan JA

Decision:

(1)    Application for an injunction to restrain the holding of the event the subject of Moore J’s judgment rejected.

(2)    Order the applicant to pay the second respondent’s costs of the application.

(3)    Note that the first respondent indicated that it submits to the orders of the Court.

Catchwords:

APPEALS – procedure – informal urgent application for injunction pending appeal – applicant applied to stop trail running event in the Blue Mountains from proceeding the next day – primary judge dealt thoroughly with circumstances of proposed event and carefully weighed matters going to the balance of convenience – applicant did not show any reason for a different view to be taken than that taken by the primary judge

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
Mr I Jeray (director of Applicant)
Submitting appearance (First Respondent)
Mr T To (Second Respondent)

Solicitors:
Sparke Helmore (Second Respondent)

File Number(s):

2021/133390

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2021] NSWLEC 42

Date of Decision:

10 May 2021

Before:

Moore J

File Number(s):

2021/121055

EX TEMPORE Judgment

1. This is the hearing of a notice of motion brought in aid of an application for leave to appeal that was filed this afternoon. The application relates to a judgment of Justice Moore of the Land and Environment Court delivered at 1pm on Monday 10 May 2021 ([2021] NSWLEC 42). Although not stated in the notice of motion, the applicant seeks an injunction to the effect of that refused by Justice Moore to restrain the holding of a four-day sporting event in the Blue Mountains, the first day of it being tomorrow. The first approach made by the applicant to the Court of Appeal was today, in the late morning, that is, nearly forty-eight hours after Justice Moore delivered his decision. The Court has put itself out to hear the application this afternoon at 4.15pm, and it is now approaching 5 o'clock.

2. In court this afternoon, the applicant provided a document described as "Appeal Grounds". Mr Jeray, a director of the applicant who was given leave to appear on its behalf, accepted that grounds 2, 3, and 4 relate to questions of costs which are not urgent, and therefore, I do not further address them. Ground 1 asserts that Justice Moore failed properly to consider and correctly weigh four matters: (1), the seriousness of the applicant’s case; (2), the strength of the applicant’s case; (3), the public interest involved in the applicant's case; and (4), “the impacts of the approved development given its scale and intensity”.

3. In his judgment of 10 May Justice Moore dealt thoroughly with the circumstances of the proposed event, and carefully weighed matters going to the balance of convenience.

4. I have pressed Mr Jeray on the hearing of this application to identify the reasons why he says Justice Moore was in error, but that did not produce from him any more than mere general assertions, essentially assertions that his underlying case on the law is a sound one and that the impacts of the development proceeding are significant. Justice Moore took these matters into account and weighed them carefully, and I do not consider that any reason has been shown to take a different view than that taken by his Honour.

5. The result is that I will not grant the injunctive relief that is sought. As it was not sought in the motion but was only raised informally, it is sufficient for me to indicate that I refuse that relief.

6. The notice of motion will remain on foot because it essentially seeks expedition of the application for leave to appeal, and directions concerning it. If Mr Jeray wishes to pursue it, he may do so at some future time by arrangement with the Registrar. Likewise, the application for leave to appeal remains on foot, and Mr Jeray may seek to have that listed if he still wishes to pursue it.

7. The result today is that I make an order rejecting the application for an injunction to restrain the event the subject of Justice Moore's judgment, and I order the applicant to pay the second respondent's costs of the application. I note that the first respondent did not appear and has indicated that it submits to the orders of the Court.

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Decision last updated: 13 May 2021