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

Case •

[2025] NSWCA 201

•

04 September 2025

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Seek Justice Pty Ltd v Blue Mountains Local Planning Panel/Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning [2025] NSWCA 201
Hearing dates: 22 August 2025
Date of orders: 4 September 2025
Decision date: 04 September 2025
Before: Leeming JA at [1];
Mitchelmore JA at [2];
Stern JA at [3]
Decision:

(1)   Notices of Motion filed 10 June 2025 in appeal proceedings 2023/174137 and 2024/292933 are dismissed.

(2)   The applicant is to file and serve any submissions on costs and whether filing fees should be remitted or reimbursed, limited to 3 pages by 4 pm on 11 September 2025.

(3)   The second respondent in appeal proceeding 2023/174137 and the third respondent in appeal proceeding 2024/292933 is to file and serve any submissions in reply on costs and whether filing fees should be remitted or reimbursed, limited to 3 pages by 4 pm on 18 September 2025.

Catchwords:

CIVIL PROCEDURE — whether relevant misapprehension of facts or law affecting decision of single Judge of Appeal or some matter calling for review or interests of justice require that orders should be set aside under UCPR r 36.15 — where no such misapprehension or error calling for review and interests of justice do not so require

CIVIL PROCEDURE — whether interests of justice require that orders of single Judge of Appeal be set aside or whether real likelihood that it would be unjust to applicant to allow judgment to stand such that orders should be set aside under UCPR r 36.16(2)(b) — where no real likelihood of injustice to applicant and considerations of utility weigh heavily against applicant being permitted to reinstate proceedings

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), s 9.1

Supreme Court Act 1970 (NSW), s 46(4)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.2, 13.4, 13.6, 36.15, 36.16(2)(b), 51.2

Cases Cited:

De L v Director-General of Community Services [No 2] (1997) 190 CLR 207; [1997] HCA 14

Lahoud v Willoughby City Council [2022] NSWCA 214

Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45

Petrou v Vassiliadis [2025] NSWCA 174

Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

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

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

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

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

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

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

Category:Principal judgment
Parties:

2023/174137:

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

2024/292933:

Seek Justice Pty Ltd (Applicant)
Minister for Planning (First Respondent, submitting)
Blue Mountains Local Planning Panel/Blue Mountains City Council (Second Respondent, submitting)
USM Events Pty Ltd (Third Respondent)
Representation:

In each proceeding:

Counsel:
I Jeray (director, with leave) (Seek Justice Pty Ltd)
M Harker (USM Events Pty Ltd)

Solicitors:
Sparke Helmore (USM Events Pty Ltd)
File Number(s): 2023/174137; 2024/292933
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Court of Appeal
Citation:

[2025] NSWCA 120

Date of Decision:
26 May 2025
Before:
Griffiths AJA
File Number(s):
2023/174137; 2024/292933

HEADNOTE

[This headnote is not to be read as part of the judgment]

By two notices of motion filed on 10 June 2025 (and amended in Court with leave on 22 August 2025) (June 2025 motions), the applicant sought to set aside orders of Griffiths AJA, made on 26 May 2025 in two appeal proceedings (2023 and 2024 appeal proceeding, respectively), dismissing applications to set aside earlier orders of the Court of Appeal Registrar (Registrar) on 2 April 2025. By those orders, the Registrar had dismissed the 2023 and 2024 appeal proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.6 on the basis of the applicant’s failure to appear after notices were given on 24 March 2025 under r 13.6 of the hearing on 2 April 2025 stating that, if the applicant did not attend the hearing on that date, the Court may dismiss both the 2023 and 2024 appeal proceedings. In the June 2025 motions the applicant also sought to set aside the Registrar’s orders of 2 April 2025.

Two issues arose on the motions, being:

  1. whether the applicant had shown that there was a relevant misapprehension of the facts or the law affecting the decision of Griffiths AJA, that there was some matter calling for review, or that the interests of justice required that the orders of Griffiths AJA should be set aside under UCPR, r 36.15 or having regard to the principle in De L v Director-General of Community Services [No 2] (1997) 190 CLR 207; [1997] HCA 14; and

  2. whether the orders of Griffiths AJA or the Registrar should be set aside under UCPR, r 36.16(2)(b).

The Court (Stern JA, Leeming and Mitchelmore JJA agreeing) held, dismissing both notices of motion:

As to issue (i)

  1. Any litigant should presume that a hearing will go ahead unless the court makes orders, or otherwise indicates, to the contrary. There was nothing procedurally unfair to the applicant in Griffiths AJA proceeding to make orders on 26 May 2025 in the applicant’s absence: [40].

  2. There was nothing procedurally unfair to the applicant or improper in Griffiths AJA having recourse to emails on the Court file for the limited purpose of identifying that an email address had been regularly used by Mr Jeray (being the sole director and representative of the applicant) to communicate with the Court. There is no denial of procedural fairness in relying upon information the substance of which is well-known by the affected person: [41]-[43].

    Petrou v Vassiliadis [2025] NSWCA 174; Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, applied.

    De L v Director-General of Community Services [No 2] (1997) 190 CLR 207; [1997] HCA 14, referred to.

As to issue (ii)

  1. There was no cogent explanation for Mr Jeray’s non-attendance at Court on 26 May 2025 or for Mr Jeray’s failures to attend or seek adjournments of the earlier hearings before the Registrar on 24 March 2025 and 2 April 2025: [46]-[52].

  2. There was no utility in the applicant being permitted to pursue the 2023 appeal proceeding, nor was there any material before the Court that suggested such an appeal would have any prospects of success, such that the interests of justice weighed heavily against the Court allowing the application to set aside the orders of Griffiths AJA in the 2023 appeal proceeding: [53]-[54].

  3. Considerations of utility weighed heavily against the applicant being permitted to reinstate the 2024 appeal proceeding and there was no arguable error in the reasons given by the Courts whose decisions the applicant sought to challenge: [55].

  4. There was no real likelihood of injustice to the applicant if the decisions which the 2023 and 2024 appeal proceedings sought to challenge were allowed to stand: [56].

  5. The orders of the Registrar made on 2 April 2025 had been superseded by the orders of Griffiths AJA made on 26 May 2025: [57].

JUDGMENT

  1. LEEMING JA: I agree with Stern JA.

  2. MITCHELMORE JA: I agree with Stern JA.

  3. STERN JA: The matters before the Court have a lengthy and somewhat convoluted procedural history.

  4. By two notices of motion filed on 10 June 2025 (and amended in Court with leave on 22 August 2025) (the June 2025 motions), the applicant seeks to set aside orders of Griffiths AJA made on 26 May 2025 (the 26 May 2025 orders): Seek Justice Pty Ltd v Blue Mountains City Council; Seek Justice Pty Ltd v Minister for Planning [2025] NSWCA 120. Those orders were made in two appeal proceedings (2023 and 2024 appeal proceeding, respectively) and are as follows:

  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; and

  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.

  1. In the June 2025 motions the applicant also seeks a number of further substantive orders, the availability of which is largely contingent upon the 2023 and 2024 appeal proceedings being reinstated.

  2. The notices of motion dismissed by Griffiths AJA sought to set aside orders made by the Court of Appeal Registrar (Registrar) on 2 April 2025 that both the 2023 and 2024 appeal proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.6 and that the applicant pay the costs of USM Events Pty Ltd (USM), which is the second respondent in the 2023 appeal proceeding and the third respondent in the 2024 appeal proceeding, fixed in the sum of $2,500 for each proceeding.

  3. UCPR, r 13.6 provides:

13.6    Non-appearance by plaintiff (cf SCR Part 13, rule 5A)

(1)    If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2)   If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3)    This rule does not restrict any other power of the court to dismiss proceedings.

  1. The applicant appeared at the hearing of these motions by its sole director, Ivan Jeray. No affidavit satisfying the requirements of UCPR, r 7.2 was filed with the Court. However, Mr Jeray’s affidavit evidence read on the motions confirmed that he is the sole director of the applicant and he confirmed from the bar table that he was aware that a personal costs order may be made against him if he obtained leave to appear for the applicant. In these circumstances Mr Jeray was granted leave to represent the applicant at the hearing.

  2. As for evidence, the applicant read without objection 13 affidavits, all sworn by Mr Jeray and most of which have annexures or exhibits. These comprise two affidavits of 7 May 2025 (one in each of the 2023 and 2024 appeal proceeding), two affidavits of 10 June 2025 (one in each of the 2023 and 2024 appeal proceeding), two affidavits of 19 June 2025 (one in each of the 2023 and 2024 appeal proceeding), two affidavits of 8 July 2025 (both in the 2024 appeal proceeding), two affidavits of 11 July 2025 (both in the 2024 appeal proceeding), one affidavit of 14 July 2025 (in the 2024 appeal proceeding), and two affidavits filed in Court with leave on 22 August 2025 (one in each of the 2023 and 2024 appeal proceeding). It also relies upon the red book that was filed in January 2025 in the 2024 appeal proceeding.

  3. All respondents except USM filed submitting appearances in the 2024 appeal proceeding, but the Blue Mountains City Council (the Council) did not file any appearance in the 2023 appeal proceeding. USM opposed the motions and read without objection two affidavits of Leigh Simpkin affirmed on 23 July 2025 (one in each of the 2023 and 2024 appeal proceeding).

  4. Both the applicant and USM made written and oral submissions on the June 2025 motions.

  5. For the reasons set out below, the June 2025 motions should both be dismissed.

This court’s jurisdiction to set aside the 26 May 2025 orders

  1. The applicant contends that the Court has power to make the orders sought in the June 2025 motions under UCPR, rr 36.15 and 36.16(2)(b). These relevantly provide:

36.15    General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1)    A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16    Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1)    The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)    The court may set aside or vary a judgment or order after it has been entered if—

…

(b)    it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

…

(3A)    If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B)    Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C)    Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4)    Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

  1. As was recently explained in Petrou v Vassiliadis [2025] NSWCA 174 at [3]-[4]:

That rule [UCPR, r 36.16(2)(b)] provides that the court may set aside or vary a judgment or order after it has been entered if it has been “given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order”. The rule does not specify how the discretion it confers ought to be exercised or expressly identify matters to be taken into account. As Leeming JA observed in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [2] (relying upon Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 at [5] (Gaudron ACJ, McHugh, Hayne and Callinan JJ)), the meaning of the rule “depends on a background of concepts, principles, practices and circumstances that the drafters took for granted or understood, without conscious advertence, by reason of their common language or culture”. His Honour proceeded to explain in Pham v Gall at [43], [55]-[56], [102] that the discretion is encapsulated by the question whether there was “a real likelihood that it would be unjust to the defendant to allow the judgment to stand”, as held by Jordan CJ in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239. This involves at least consideration of whether any useful purpose would be served by setting aside the judgment and how it came about that the applicant found himself bound by a judgment regularly obtained (see also Payne JA in Pham v Gall at [92]-[102], McCallum JA agreeing).

Payne JA explained in Pham v Gall at [110] (Leeming and McCallum JJA agreeing) that:

“UCPR r 36.16(2)(b) provides an unfettered, though judicial, discretion. It is unwise to attempt to lay down rules of universal application in the exercise of that broad discretion which, as I have said, necessarily involves the Court in making a broad evaluative judgment”.

  1. The applicant also relies upon De L v Director-General of Community Services [No 2] (1997) 190 CLR 207 at 215; [1997] HCA 14 where Toohey, Gaudron, McHugh, Gummow and Kirby JJ in their joint judgment observed:

The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law”, where “there is some matter calling for review” or where “the interests of justice so require”. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part”, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.

(Footnotes omitted.)

  1. As this Court said by reference to De L v Director-General of Community Services [No 2] in Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3] (Barrett, Ward and Emmett JJA):

There is no doubt that the Court has power to re-open a judgment or order to reconsider a point. It may do so if it is convinced that, in the earlier consideration of the point, it has proceeded on a misapprehension as to the facts or the law, or there is some matter calling for review, or the interests of justice so require. However, a heavy burden rests upon the applicant for re-opening to show that such an exceptional course is required, on the assumption that there has been no fault on the part of the applicant.

  1. This Court also has jurisdiction under s 46(4) of the Supreme Court Act 1970 (NSW) to discharge or vary a judgment given or order made by a Judge of Appeal (albeit that the applicant does not ask that this Court exercise that jurisdiction). An application under s 46(4) is not an appeal: UCPR, r 51.2. As was explained by Bathurst CJ and McColl JA in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48], in order to succeed in an application under s 46(4) it is necessary to demonstrate that the judge erred in principle or that the judge’s decision was plainly wrong. As their Honours said, that is a heavy burden.

Background

  1. Before turning to the 2023 and 2024 appeal proceedings it is necessary to say something of the background to those proceedings.

  2. The 2023 appeal proceeding was commenced by summons filed by the applicant on 31 May 2023 seeking leave to appeal from an ex tempore judgment of Moore J in the Land and Environment Court on 5 November 2021, dismissing proceedings, under UCPR, r 13.4, that had been commenced by the applicant on 30 April 2021. In that proceeding, the applicant sought to have a development consent issued by the Council, which permitted a four-day ultra-trail running event operated by USM to take place from 13 to 16 May 2021 (the 2021 event), declared null and void. On 10 May 2021, Moore J refused to issue an injunction to prevent the event from taking place: Seek Justice Pty Ltd v Blue Mountains City Council [2021] NSWLEC 42, and a summons seeking leave to appeal against his Honour’s refusal of an injunction was dismissed with costs by the Registrar under UCPR, r 13.6 on 18 October 2021 (and it can be noted that an application to review that decision was dismissed by Basten JA on 21 March 2022 with no appearance from the applicant: Seek Justice Pty Ltd v Blue Mountains City Council [2022] NSWCA 41).

  3. In dismissing the proceedings on 5 November 2021, Moore J observed that the applicant had been notified that the matter was to be dealt with that day, but did not appear. There were, however, submissions from USM that the proceedings should be dismissed on the basis of futility as the 2021 event had taken place and the development consent for the 2021 event had been surrendered on 8 July 2021. His Honour was satisfied on this basis that he should dismiss the proceedings and that the applicant should pay USM’s costs unless the applicant indicated that it wished to be heard on costs.

  1. After the summons seeking leave to appeal from this decision was filed on 31 May 2023 there were a number of directions hearings before the Registrar between 26 June 2023 and 13 November 2024, at each of which the matter was stood over or listed for further directions.

  2. Turning to the 2024 appeal proceeding, this was commenced by notice of appeal filed by the applicant on 18 October 2024 (a notice of intention to appeal having been filed on 9 August 2024) seeking to challenge both orders of Pepper J on 25 October 2022: Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127, and orders of Pritchard J on 12 July 2024: Seek Justice Pty Ltd v Minister for Planning (No 2) [2024] NSWLEC 68. Both of these decisions were in proceedings commenced by the applicant by amended summons filed on 7 October 2022 (and further amended on 14 July 2023) seeking a range of orders primarily relating to a development consent issued by the Council on 19 September 2022 to permit USM to hold a 2022 ultra-trail running event which took place from 27 October 2022 until 30 October 2022 (the 2022 event). On 30 October 2022 the development consent, which was a “Time Limited Consent”, lapsed.

  3. The proceedings before Pepper J involved an expedited hearing of two of the prayers for relief in the summons filed on 7 October 2022, in which the applicant sought declarations of invalidity as regards the development consent to permit the 2022 event and the 2022-2023 eco-tourism licences issued by the Council to USM. Pepper J dismissed both prayers for relief with costs on 25 October 2022. On 26 October 2022 the applicant sought leave to appeal from the decision of Pepper J and sought both expedition and an urgent injunction or stay in this Court. Those applications were heard and determined by Kirk JA on 27 October 2022: Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220. His Honour noted at [13] that the applicant contended that “if the appeal [was] not determined with great urgency then in practical terms it may potentially be rendered futile”. His Honour dismissed the application for expedition and noted at [18] that the application for a stay or interlocutory injunction had been withdrawn. The summons filed 26 October 2022 (seeking leave to appeal) was discontinued on 6 December 2024.

  4. Pritchard J then heard the applicant’s further prayers for relief. Her Honour noted that the issues arising were: a challenge by the applicant to the validity of two local planning panel directions (the planning panel directions) given under s 9.1(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), dated 23 February 2018 and 30 June 2020 respectively, on the basis that they permitted a conflict of interest where the applications related to council-owned land; a challenge by the applicant to a modified development consent for the 2022 event (granted on 26 October 2022); and whether USM had failed to comply with two conditions of the development consent for the 2022 event. Save as regards costs, the applicant sought only declaratory relief.

  5. Pritchard J rejected the applicant’s contention that the planning panel directions were invalid because they enabled local planning panels to determine applications relating to council-owned land or that that gave rise to a relevant conflict of interest. Her Honour found that local planning panels were not relevantly subject to the direction or control of the Council (save as regards procedural matters) and that was so irrespective of the fact that, under s 9.1 of the EPA Act, the local planning panel exercised statutory functions on behalf of the Council, as held by this Court in Lahoud v Willoughby City Council [2022] NSWCA 214. Her Honour rejected the applicant’s contentions as to the remaining issues, finding that any breach by USM of conditions of the development consent were technical in nature and did not merit a grant of declaratory relief. Her Honour dismissed the second further amended summons and ordered that the applicant pay USM’s costs in the amount of $5,000.

  6. Turning to the conduct of the 2023 and 2024 appeal proceedings, on 20 November 2024 the Registrar made directions by consent at a hearing at which both the applicant and USM appeared. Those directions listed both the 2023 and 2024 appeal proceedings for hearing on 15 April 2025 and made directions in both matters to ensure they were ready for hearing on that date. Significantly, in the 2024 appeal proceeding, the applicant was to file written submissions by 4 February 2025. It does not appear that those submissions were ever filed. On 25 February 2025 both the 2023 and 2024 appeal proceedings were listed for directions on 3 March 2025. The applicant was notified of this by email of 25 February 2025 sent to the email address [redacted]@proton.me. On 26 February 2025, the solicitor for USM sent an email to the applicant at [redacted]@proton.me identifying non-compliance by the applicant with the orders of 20 November 2024.

  7. The applicant did not appear at the directions hearing before the Registrar on 3 March 2025. On that date, the Registrar made orders updating the timetable for preparation of the matters for hearing on 15 April 2025, listing both the 2023 and 2024 appeal proceedings for directions on 24 March 2025 and directing that USM notify the applicant of those orders. By email to the applicant at [redacted]@proton.me on 3 March 2025 the solicitor for USM did so. Follow-up emails, on each occasion attaching the 3 March 2025 orders and querying when the applicant would comply those orders, were sent by the solicitor for USM to the applicant at [redacted]@proton.me on 11 March 2025 and 18 March 2025. There was no reply by the applicant to these emails.

  8. There is no evidence that the applicant complied with the 3 March 2025 orders and the applicant did not appear at the hearing before the Registrar on 24 March 2025. On that day the Registrar made orders standing the matter over for further directions on 2 April 2025, and directing that the Registry issue a notice under UCPR, r 13.6 to the applicant to show cause why the summons (in the 2023 appeal proceeding) and appeal (in the 2024 appeal proceeding) should not be dismissed or struck out for non-attendance on 24 March 2025. The Registrar directed that this notice be sent to [redacted]@proton.me which he described in the orders as:

[T]he email address which the Applicant [or, in the case of the 2024 appeal proceeding, Appellant] has used to email the Registrar.

  1. Mr Jeray does not say in any of his affidavits that the applicant did not receive any of the emails referred to above or the notice issued on 24 March 2025.

  2. The applicant did not appear at the hearing on 2 April 2025 and, as I have already noted, the Registrar dismissed both proceedings under UCPR, r 13.6.

  3. By emails of 10 and 17 April 2025, sent from the email address [redacted]@proton.me, the applicant sought copies of the orders made at the directions hearings on 24 March 2025 and 2 April 2025. Mr Jeray says in his evidence that he did not in fact receive copies of those orders until 23 April 2025 when he attended the Court registry.

  4. As already noted, the motions seeking to set aside the orders of 2 April 2025 were filed on 7 and 8 May 2025. The motions are both marked returnable at 9 am on 26 May 2025. According to the affidavits of Ms Simpkin, motions indicating that they were returnable on this date were served on the solicitors for USM by registered post. Then on 23 May 2025 the Registrar notified the applicant at the email address [redacted]@proton.me that the hearing of both motions would proceed at 10 am on 26 May 2025.

  5. On Sunday 25 May 2025 Mr Jeray sent an email from the email address [redacted]@proton.me to the Registrar stating:

I sincerely apologise, as I will be unable to attend any court matters on behalf of Seek Justice Pty Ltd this week due to an illness and request an adjournment of the matters to the following week.

  1. As recorded by Griffiths AJA in his judgment at [9], the Registrar informed the applicant by email at 5.59 pm on 25 May 2025 that the hearing would proceed as scheduled and that the applicant could appear by audio-visual link or by telephone and could apply for an adjournment at that time but would have to provide supporting medical evidence. Details of the audio-visual links were sent to the applicant by email at 8.51 am on 26 May 2025. There was no response by the applicant to either of those emails and the applicant did not attend the hearing before Griffiths AJA in person or by audio-visual link or telephone.

  2. In his judgment, Griffiths AJA noted the procedural history and that USM urged the Court to dismiss the motions with costs. His Honour referred to Mr Jeray’s two affidavits sworn 7 May 2025 (which were before his Honour) and noted that Mr Jeray’s complaint was that the Court had not sent the applicant notice of the orders it made on 2 April 2025. His Honour observed at [11] that:

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.

  1. His Honour then described Mr Jeray’s complaint about non-receipt of those orders as misconceived given their availability on JusticeLink which his Honour inferred, from Mr Jeray’s lengthy involvement in litigation over many years, that he would be aware of. In any event, his Honour added, Mr Jeray became aware of the orders on 23 April 2025. In these circumstances, his Honour dismissed both motions.

Consideration

  1. Consistent with the principles set out above, there are two issues that arise on the motions.

  2. The first is whether the applicant has shown that there was a relevant misapprehension of the facts or the law affecting the decision of Griffiths AJA, or that there is some matter calling for review, such that the orders of Griffiths AJA should be set aside having regard to the principles set out above at [14]-[16] or reaching the threshold in UCPR, r 36.15 (to the extent that there is any difference between the two). Such error might also have been relied upon by the applicant to support a contention that Griffiths AJA was plainly wrong to support a contention that this Court should set aside his orders under s 46(4) of the Supreme Court Act (see [17] above).

  3. The only matters relied upon by the applicant in this regard are, in effect, complaints of a denial of procedural fairness (and as regards the second matter, impropriety), arising from either the hearing going ahead despite the applicant’s request for an adjournment on account of illness, or from the fact that Griffiths AJA relied in his judgment (at [6]) upon notification of the orders of 24 March 2025 having been sent to an email address:

[W]hich 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.

  1. As to the first of these matters, this complaint must be rejected. There was no denial of procedural fairness in the hearing going ahead in the circumstances. No attempt was made by the applicant to put medical evidence before Griffiths AJA in advance of the hearing on 26 May 2025 and there was no basis for the applicant to presume that the adjournment that he was seeking by email sent the day before the hearing would be granted. Any litigant should presume that a hearing will go ahead unless the court makes orders, or otherwise indicates, to the contrary. There is nothing procedurally unfair to the applicant in Griffiths AJA proceeding to make orders on 26 May 2025 in the applicant’s absence.

  2. As to the second of these matters, the applicant contended that Griffiths AJA had compromised his independence and had effectively become a party to the proceedings by seeking out and relying upon emails in the Court file, and that that infected his Honour’s decision. The applicant also submitted that it was not proper for Griffiths AJA to have access to emails without the parties being given an opportunity to object to that course or at least to see what emails were requested.

  3. These contentions must be considered in light of the fact that the only reliance Griffiths AJA placed on material on the Court file was that the email address [redacted]@proton.me had regularly been used by Mr Jeray to communicate with the Court. There was nothing procedurally unfair to the applicant or improper in his Honour having recourse to emails on the Court file for this limited purpose.

  4. It is also apparent from the evidence before the Court that in 2024 and 2025 the applicant has communicated with, and received emails from, the Court using this email address. Indeed, the annexure to Mr Jeray’s affidavit of 10 June 2025 in the 2024 appeal proceeding includes an email he sent to the Court from that email address on 25 May 2025 and an email he received from the Court at that email address on 3 June 2024. Mr Jeray did not suggest in any of his affidavits that this was not his email address or that emails sent to this address were not a proper means of communicating with the applicant. There is no denial of procedural fairness in relying upon information the substance of which is well-known by the affected person: see eg Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [30] (Rares and Jagot JJ).

  5. In these circumstances, the applicant has not shown that there is any misapprehension of law or fact or other matter calling for review. Nor has the applicant shown that the decision of Griffiths AJA was plainly wrong.

  6. The second issue is whether the interests of justice require that the orders of Griffiths AJA be set aside so as to enliven the principles discussed at [14]-[16] above or whether there is a real likelihood that it would be unjust to the applicant to allow the judgment to stand such that the orders should be set aside under UCPR, r 36.16(2)(b).

  7. The applicant relies in this regard first upon the explanation Mr Jeray gives, in his unchallenged affidavit evidence, for the applicant’s non-attendance at each of the hearings on 24 March 2025, 2 April 2025 and 26 May 2025. As to this, in his affidavits sworn on 10 June 2025, Mr Jeray says that he had told the Court in his email of 25 May 2025 that he would be unable to attend Court that week due to an ongoing illness and that:

Due to the illness, I could not appear in court in person or remotely on behalf of the applicant [or appellant, in his affidavit in the 2024 appeal proceeding] on 26 May 2025. I was also unaware that the court allowed the applicant to appear in court remotely on 26 May 2025, as the applicant does not have Internet access facilities. I must attend a public library in order to access the applicant’s email account. The applicant also does not have a telephone and notes public phone booths are not shielded from traffic noise and the weather, have very limited shelf space to peruse documents, lack privacy and are subject to delays and sanitary conditions from other users.

  1. Mr Jeray also says, in his affidavits sworn on 19 June 2025, that:

Due to the same illness … I could not appear in court in person or remotely on behalf of the applicant [or appellant in his affidavit in the 2024 appeal proceeding] on 24 March 2025 and 2 April 2025 and notify the court in advance that I was unable to appear.

  1. In his oral submissions, Mr Jeray submitted that it was unwise for someone to come to court if they are unwell or could infect other people.

  2. The only medical evidence relied upon by the applicant to support Mr Jeray’s assertions as to the applicant’s inability to participate in these proceedings is a letter from the Upper Mountains Medical Centre headed “Medical Certificate”, dated 30 May 2025, signed by Dr James Harwood, stating:

THIS IS TO CERTIFY THAT

Mr Ivan Jeray has an intermittent medical condition which has been present for some weeks and has attended this practice today for its assessment.

  1. This material falls well short of providing a satisfactory explanation for Mr Jeray’s asserted inability to attend the hearings on 24 March 2025, 2 April 2025 or 26 May 2025, or attend those hearings remotely or even to notify the Court of this as regards the two earlier hearings. Dr Harwood does not say that Mr Jeray’s intermittent medical condition would impact upon his ability to attend Court whether in person or by audio-visual link or telephone. Nor does he say that Mr Jeray’s intermittent medical condition would impact his ability to get in contact with the Registrar or the Court. Dr Harwood does not identify the period or periods when Mr Jeray was in fact affected by the symptoms of this intermittent condition and his description of the intermittent medical condition having been present “for some weeks” would not naturally encompass the dates of the earlier hearings on 24 March 2025 or 2 April 2025. Further, Dr Harwood does not identify what intermittent illness the applicant suffers from or what symptoms are caused thereby. Whilst the applicant submitted orally that information about his medical condition is private information, the privacy of medical information does not excuse a litigant from the need to provide a cogent explanation to the Court for non-attendance at Court hearings if the litigant relies upon it as an element of an application to set aside orders made as a result of that non-attendance. Of course, if appropriate, orders restricting the disclosure or publication of such information might be made under the Court Suppression and Non-publication Orders Act 2010 (NSW).

  2. In circumstances in which it was open to Mr Jeray to provide medical evidence to the Court to support his affidavit evidence of incapacity on account of medical illness to attend or contact the Court on specific dates, and the medical evidence he puts before the Court does not support him having had any such incapacity on those dates, the Court will necessarily be cautious about attaching any material weight to the affidavit evidence of incapacity even where, as here, that evidence is not challenged in cross-examination. In these circumstances, I am not satisfied on the evidence before the Court that there is any cogent explanation for Mr Jeray’s non-attendance at Court on 26 May 2025 or for Mr Jeray’s failures to attend or seek adjournments of the earlier hearings before the Registrar on 24 March 2025 and 2 April 2025.

  3. Further, as counsel for USM pointed out at the hearing, the evidence before the Court shows that on 23 March 2025, that is, the day before the hearing on 24 March 2025, Mr Jeray sent a detailed email to the solicitor for the Council alleging unlawful tampering with documents relevant to proceedings in the Land and Environment Court. That stands in stark contrast to Mr Jeray’s assertion that he was too ill even to notify the Court in advance of the hearing on 24 March 2025 of his inability to attend the directions hearing on that day. This is so even if, as Mr Jeray submitted orally, the illness has been on and off before that time and he was ill on 24 March 2025 as the illness “came about again”.

  4. On the issue of the interests of justice, the applicant also relies upon what it submits is the importance of these proceedings in the judiciary upholding and enforcing the law, in securing accountability and transparency in local government and in exposing conflicts of interest affecting the Council’s decision-making. The difficulty with this submission is that this Court must evaluate whether it is in the interests of justice that these proceedings be reinstated given the likelihood that the applicant will succeed in the claims that it makes, the procedural history of the proceedings and the applicant’s non-attendance at the hearings on 24 March 2025, 2 April 2025 and 26 May 2025. The Court must also consider broader interests in the administration of justice, including the likely costs burden on USM and the Court’s concern to do justice to all litigants.

  1. Given that the 2021 event has long since ended and the development consent has been surrendered, there is simply no utility in the applicant being permitted to pursue an appeal against the orders of Moore J on 5 November 2021. Nor is there any material before this Court that suggests that such an appeal would have any realistic prospect of success. The interests of justice weigh heavily against this Court allowing the application to set aside the orders of Griffiths AJA in the 2023 appeal proceeding.

  2. Considerations of utility also weigh heavily against the applicant being permitted to reinstate the 2024 appeal proceeding to challenge the validity of the development consents for the 2022 event. That event occurred, and the development consent lapsed, nearly three years ago. There is no realistic prospect of the appeal against Pritchard J’s orders succeeding as regards these matters. To the extent that the 2024 appeal proceeding seeks to challenge the planning panel directions, I am not satisfied that there is any arguable error in the reasons given by Pritchard J for rejecting the applicant’s contentions. As for Pritchard J’s refusal of declaratory relief as regards the alleged non-compliance by USM with conditions of the development consent, I am not satisfied that there is any utility in the applicant challenging that decision, nor that there is any arguable error in her Honour’s analysis.

  3. In the circumstances there is no real likelihood of injustice to the applicant if the decisions of Moore, Pepper or Pritchard JJ are allowed to stand. It follows that there is no basis to set aside the orders under UCPR, r 36.16(2)(b) or having regard to the principles at [14]-[16] above.

  4. As for the applicant’s challenge to the 2 April 2025 orders of the Registrar, those orders have been superseded by the 26 May 2025 orders of Griffiths AJA.

Conclusion

  1. It follows that these motions seeking to set aside the 26 May 2025 orders of Griffiths AJA in both appeal proceedings should be dismissed.

  2. It necessarily follows that the other relief sought by the applicant in the June 2025 motions falls away.

  3. The applicant sought the opportunity to make written submissions addressing the questions of costs, and whether he should be reimbursed any Court fees, in the event that the relief he sought was otherwise refused (the applicant sought orders as to both costs and reimbursement of Court fees in the June 2025 motions). The applicant should be given this opportunity.

  4. The orders I propose are:

  1. Notices of Motion filed 10 June 2025 in appeal proceedings 2023/174137 and 2024/292933 are dismissed.

  2. The applicant is to file and serve any submissions on costs and whether filing fees should be remitted or reimbursed, limited to 3 pages by 4 pm on 11 September 2025.

  3. The second respondent in appeal proceeding 2023/174137 and the third respondent in appeal proceeding 2024/292933 is to file and serve any submissions in reply on costs and whether filing fees should be remitted or reimbursed, limited to 3 pages by 4 pm on 18 September 2025.

Decision last updated: 04 September 2025

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

4

Petrou v Vassiliadis [2025] NSWCA 174
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45
Rinehart v Welker [2011] NSWCA 403