Seek Justice Pty Ltd v Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning

[2025] NSWCA 120

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Seek Justice Pty Ltd v Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning [2025] NSWCA 120

Hearing dates:

26 May 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Before:

Griffiths AJA

Decision:

(1) The notice of motion dated 7 May 2025 in proceeding 2024/292933 and the notice of motion dated 8 May 2025 in proceeding 2023/174137 are dismissed.

(2) The applicant to pay the second respondent's costs of the motion dated 8 May 2025 in proceeding 2023/174137 and the third respondent’s costs of the motion dated 7 May 2025 in proceeding 2024/292933.

Catchwords:

PRACTICE AND PROCEDURE — hearings — ex parte — proceedings dismissed for non-compliance — failure to comply with directions and attend directions hearings — motions seeking to set aside Registrar orders dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 13.6

Cases Cited:

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

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

Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127

Seek Justice Pty Ltd v Minister for Planning (No 2) [2024] NSWLEC 68

Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Seek Justice Pty Ltd (Applicant on motions)
Blue Mountains Local PlanningPanel/Blue Mountains City Council (First Respondent to motion in proceeding 2023/00174137; Second Respondent to motion in proceeding 2024/00292933)
Minister for Planning (First Respondent to motion in proceeding 2024/29293) (Submitting appearance)
USM Events Pty Ltd (Second Respondent to motion in proceeding 2023/174137; Third Respondent to motion in proceeding 2024/292933)

Representation:

Counsel:
M McGrath (Second Respondent to motion in proceeding 2023/174137; Third Respondent to motion in proceeding 2024/292933)

Solicitors:
Sparke Helmore (Second Respondent to motion in proceeding 2023/174137; Third Respondent to motion in proceeding 2024/292933)

File Number(s):

2023/00174137; 2024/00292933

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2021] NSWLEC 42; [2024] NSWLEC 68

Date of Decision:

5 November 2021; 12 July 2024

Before:

Moore J; Pritchard J

File Number(s):

2021/121055; 2022/299420

EX TEMPORE JUDGMENT (REVISED)

1. The applicant, Seek Justice Pty Ltd, has brought two separate proceedings in this Court in relation to two Ultra Trail Australia events, which are long distance trail races held in the Blue Mountains. The races in particular which are the subject of the proceedings occurred in 2021 and 2022. The races are held in Katoomba in the Blue Mountains, and they are run by USM Events Pty Ltd (USM), who is the second respondent in proceeding 2023/174137 and the third respondent in proceeding 2024/292933. Both the appeals challenge the validity of a time-limited development consent granted by Blue Mountains City Council (Council) to USM, both of which consents were surrendered, as I understand it, after completion of the events. Mr Ivan Jeray is the sole director of the applicant company.

2. Let me describe the two proceedings, noting that there are some slight differences, even though they also overlap.

1. The first proceeding, which is 2023/174137, relates to the 2021 Ultra Trail Australia event and a judgment of Moore J in the Land and Environment Court, in which the applicant’s claim was rejected. That decision is reported as Seek Justice Pty Ltd v Blue Mountains City Council and Anor [2021] NSWLEC 42. There was an appeal from that decision and the relief was refused yet again (see Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWCA 87). Following the applicant's repeated non‑appearance at further directions hearings, the appeal was dismissed for lack of utility pursuant to orders by the Registrar. Those orders were upheld by this Court in 2022 in Seek Justice Pty Ltd v Blue Mountains City Council [2022] NSWCA 41. Much later, on 31 May 2023, the applicant filed a summons seeking leave to appeal and an extension of time. The first respondent in those proceedings is the Council. The second respondent is USM.

2. The other proceedings, 2024/292933, relate to the 2022 long distance running event. Two judgments were delivered in this matter in the Land and Environment Court. The first, by Pepper J, dealt with an amended summons filed 7 October 2022 and is reported as Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127, and the second, by Pritchard J, related to second further amended summons filed 14 July 2023. Her Honour's judgment is reported as Seek Justice Pty Ltd v Minister for Planning (No 2) [2024] NSWLEC 68. In both those cases, the applicant's challenge to the validity of the development consent was rejected. The applicant sought to expedite the hearing of its first amended summons seeking leave to appeal, and that was refused in this Court, Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220. The first respondent in those proceedings is the Minister for Planning. On 9 August 2024, a notice of intention to appeal was filed in relation to the 2022 claim. This was followed by a notice of appeal filed 18 October 2024. The second respondent in those proceedings is the Council. The third respondent is USM.

3. Two notices of motion were listed for hearing before me as the Referrals Judge today. Both those motions were filed by the applicant.

1. The first is a motion filed 7 May 2025 in the 2024/292933 proceeding, which I will refer to as the "2022 motion".

2. The second motion was filed on 8 May in proceeding 2023/174137 and I will refer to it as the "2021 motion".

4. Both motions seek leave to file the motions out of time and to set aside orders that were made by the Registrar of the Court on 2 April 2025. On that day, the Registrar made an order under r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the proceedings based on the applicant's failure to appear after notice was given of the hearing scheduled for 2 April 2025. Further, the applicant seeks an order as to costs in the cause or otherwise for the applicant to be reimbursed.

5. In the 2022 motion, the applicant also seeks additional orders to obtain leave to file an amended notice of appeal in the matter and additionally to be allowed to access, conduct a search and copy the council's records relevant to issues raised in the amended notice of appeal.

6. On 24 March 2025, the Registrar made orders under r 13.6 for notification to be sent to Mr Jeray to show cause why the appeal should not be dismissed or struck out for non-attendance (Order (2) in both matters). Notification was then subsequently made by substituted service to the applicant's email address, which had been provided to the Court, and in which there had been approximately 42 emails exchanged between the Court and the applicant during the period 26 October 2022 to 23 May 2025, those matters being evident from the Court file.

7. On 2 April 2025, the following orders were made in both proceedings (noting that order (5) was not made in proceedings 2023/00174137):

1. NOTES that a Notice pursuant to UCPR r 13.6 was sent to the Applicant by the Court on 24 March 2025.

2. NOTES that the Applicant has failed to appear in Court.

3. ORDERS that the proceedings be dismissed pursuant to UCPR r 13.6.

4. ORDERS that the Applicant pay the Second Respondent’s costs, fixed in the sum $2,500.00.

5. VACATES Directions on 7 April 2025.

6. VACATES the Hearing set down for 15 April 2025.

8. On Friday, 23 May 2025, the Registrar notified Mr Jeray using the same email address and sending an email dated 11:16am that the hearing of both motions would proceed at 10:00am this morning. On Sunday 25 May 2025 at 3:41pm, Mr Jeray emailed the Registrar, using the same email address as previously, saying that he would be unable to attend any Court matters on behalf of the applicant this week due to an unspecified illness. He sought an adjournment to the following week.

9. Mr Jeray was informed by an email sent by the Registrar at 5:59pm yesterday that the hearing would proceed as scheduled, that he could appear by audio-visual link or by telephone and could apply for an adjournment at that time but he would be required to provide supporting medical evidence. Details of those links were then sent to the applicant by my Associate in an email dated 8:51am this morning. When the matter was called at 10:00am, there was no appearance by the applicant. The matter was called outside the Court but again there was no appearance.

10. Ms McGrath, who appeared for USM, urged the Court to dismiss the motions with costs.

11. I note that Mr Jeray has filed an affidavit dated 7 May 2025 in support of both motions. He claims that he did not receive the 2 April 2025 orders to vacate the listing and to dismiss both the proceedings. It is important to note that his complaint relates to him not receiving copies of the orders that were made on 2 April 2025 rather than him complaining that he had not received a copy of the notice of listing, which was sent to him using the usual email address.

12. Mr Jeray says in his affidavit that he was not aware of the orders dated 2 April 2025 until he attended the Court Registry on 23 April 2025, when he was provided with a copy of the orders.

13. Mr Jeray's complaint concerning notification of the 2 April 2025 orders is misconceived. In accordance with the usual practice, the orders were listed on JusticeLink on or around 2 April 2025. It may reasonably be inferred from Mr Jeray's lengthy involvement in litigation in relation to these matters over many years that he was aware of the fact that parties could seek access to JusticeLink for the purpose of monitoring developments in the proceedings. There was no obligation on the Court to give personal notice to the applicant of the orders dated 2 April 2025. In any event, Mr Jeray became aware of the orders when he attended the Registry on 23 April 2025.

14. Neither motion challenges the 2 April 2025 orders on the basis that no notification of the listing was made in accordance with r 13.6; rather, the motions are directed to the applicant's complaint that it was not notified of the orders dated 2 April 2025. As I have already noted, this complaint is misconceived.

15. For the reasons given above, I will dismiss both motions and order the applicant to pay the costs of the second respondent in proceeding 2023/174137 and the third respondent in proceeding 2024/292933.

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Decision last updated: 03 June 2025