Seek Justice Pty Ltd v State of New South Wales (No 2)

[2024] NSWSC 1410

Supreme Court

New South Wales

Medium Neutral Citation:

Seek Justice Pty Ltd v State of New South Wales (No 2) [2024] NSWSC 1410

Hearing dates:

9 August 2024

Date of orders:

7 November 2024

Decision date:

07 November 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) The judgment given on 30 October 2024 in Seek Justice Pty Ltd v State of New South Wales [2024] NSWSC 1358 is set aside;

(2) The first defendant is renamed “the State of NSW”;

(3)   The summons is dismissed; and

(4)   Seek Justice is to pay gross costs:

(a) of $22,558.93 to the State; and

(b) of $31,000 to the Council.

Catchwords:

ADMINISTRATIVE LAW — standing — judicial review proceedings brought under the Supreme Court Act 1970 (NSW) — whether plaintiff has interest in proceedings beyond that of ordinary member of the public — where plaintiff pursues relief in public interest — where plaintiff pursues no personal right in proceedings — where plaintiff does not seek to gain advantage from proceedings — plaintiff does not have standing

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether plaintiff’s claims are so obviously untenable that they cannot possibly succeed — where plaintiff did not put on submissions or evidence to advance its case — where this Court not empowered to grant some of the relief sought by the plaintiff — where plaintiff’s judicial review application is misconceived

CIVIL PROCEDURE — hearings — adjournment — where plaintiff requested adjournment by email to associate — where plaintiff had not complied with timelines for filing evidence and submissions — where plaintiff did not file submissions — where no explanation for failure to comply with court orders was given — where plaintiff was self-represented — adjournment application refused at hearing

COSTS — gross sum costs order — whether discretion to order gross sum costs ought be exercised — whether costs assessment likely to be protracted and expensive — where it is unlikely plaintiff can pay defendants’ costs

COSTS — security for costs — where plaintiff corporation produced no bank statements or tax returns or list of assets — plaintiff impecunious

COURTS AND JUDGES — bias — where plaintiff alleged bias at hearing — where plaintiff was self-represented — where plaintiff disagreed with judge’s decisions — bias not established

JUDGMENTS AND ORDERS — amending, varying and setting aside —— where parties had filed written submissions pursuant to order of the Court — where submissions did not come to the attention of the Court — where judgment delivered without regard to those submissions — original judgment set aside and new judgment issued

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 60, 98(4)(c)

Constitution Act 1902 (NSW), s 5

Commonwealth Constitution, ss 51, 109, 118

Corporations Act2001 (Cth), s 1335

Environmental Planning and Assessment Act 1979 (NSW), s 9.45

Freedom of Information Act1982 (Cth)

Government Information (Public Access) Act 2009 (NSW), ss 8, 129

Land and Environment Court Act 1979 (NSW)

Local Government Act 1993 (NSW)

Supreme Court Act 1970 (NSW), ss 23, 65, 66, 69, 75

Government Information (Public Access) Regulation 2018 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.16(3B), 42.21, Pt 59

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53

Baker v R (2004) 223 CLR 513; [2004] HCA 45

Batistatos v Roads and Traffic Authority(NSW) (2006) 226 CLR 256; [2006] HCA 27

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gabrielle v Abood (No 4) [2023] NSWCA 100

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84

Lin v Commissioner of Victims Rights (Costs) [2024] NSWSC 574

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NSW v The Commonwealth (the Wheat Case) (1915) 20 CLR 54; [1915] HCA 17

Oshlack v Richmond River Council (1988) 193 CLR 72; [1998] HCA 11

Peterswald v Bartley (1904) 1 CLR 497; [1904] HCA 21

R v Kelly [2000] QB 198

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

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

Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405

Spence v Queensland (2019) 268 CLR 355; [2019] HCA 15

South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113

Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55

Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4

Category:

Principal judgment

Parties:

Seek Justice Pty Ltd (Plaintiff)
State of New South Wales (First Defendant)
Blue Mountains City Council (Second Defendant)

Representation:

Counsel:
I Jeray (Plaintiff) (in person, self-represented)
A Sapienza (First Defendant)
C Ireland (Second Defendant)

Solicitors:
Crown Solicitors (First Defendant)
Marsden Law Company (Second Defendant)

File Number(s):

2024/42323

Publication restriction:

Nil

JUDGMENT

1. Mr Ivan Jeray is the sole director and controlling mind of Seek Justice, which brought these proceedings in January 2024. It seeks judicial review of various provisions of the Government Information (Public Access) Act 2009 (NSW), the Government Information (Public Access) Regulation 2018 (NSW), the Council’s Planetary Health Precinct Plan, its Parklands Precinct Plan and Katoomba Master Plan, all of which were claimed to be invalid.

2. Seek Justice seeks declaratory and injunctive relief under the Supreme Court Act 1970 (NSW), as well as orders requiring the Council to adhere to claimed mandatory requirements of the Public Access Act and Regulations with resulting public release of identified documents, including those of bodies established under provisions of the Local Government Act 1993 (NSW). An interlocutory injunction prohibiting the Council from adopting its Katoomba Falls Reserve Precinct Plan is also sought.

3. The relief sought is resisted and Seek Justice’s standing to pursue these claims has been put in issue.

Setting aside the 30 October 2024 judgment

4. On 30 October I gave judgment on motions which the State and Council had filed, seeking various orders in relation to the named parties, the dismissal of Seek Justice’s claims, as well as other relief, including orders as to security for costs.

5. At the hearing Mr Jeray had consented to the correction of the name of the first defendant, from the Information Commissioner of NSW to the State of NSW, but opposed the other orders sought.

6. Judgment on the motions was delayed because, by consent, Seek Justice was given the opportunity to respond to the cases advanced for the Council and the State, in writing.

7. When I gave judgment dismissing the summons I understood that Seek Justice had not availed itself of the opportunity to make written submissions and that the parties had not yet filed submissions about costs. The following day the State drew to my attention that Seek Justice had filed written submissions, albeit out of time and that the defendants had replied, as well as dealing with costs. There was no objection, in the circumstances, to Seek Justice being heard on the submissions it had filed.

8. For reasons which are unnecessary to explain, none of those submissions had come to my attention. In the result I accepted that the judgment had to be varied: r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW).

9. Seek Justice was invited to make short written submissions, if it wished to be heard about that course. It did not do so, nor did it file any submissions to respond to the evidence and submissions which the State and the Council had advanced in relation to costs.

10. On reflection, in the circumstances which have arisen I am satisfied that the appropriate course is to order that the 30 October 2024 judgment be set aside, rather than varied and that this judgment be given to replace it: r 36.16(3B).

11. That course pays regard to Seek Justice’s submission at the hearing of the motions that there be only one judgment given, which deals both with the motions and the question of costs, given the cost of pursuing appeals against separate judgments. It not seeking to be heard about costs, I have dealt with them on the papers.

12. I note that while it was possible that a consideration of the parties’ written submissions might have resulted in the conclusion that the summons should not be dismissed, as I had ordered in the 30 October judgment, that is not the conclusion which I have reached. I have also concluded that the gross costs orders which the State and the Council sought should be made.

13. The reasons for these conclusions follow, together with reasons for refusing Seek Justice’s adjournment application and not accepting the complaints it advanced at the hearing, about the conduct of the hearing.

Adjournment

14. Seek Justice was given leave to file an amended summons, but none has ever been filed. One had apparently been served, but despite having also been annexed to an affidavit Mr Jeray relied on, which he had sworn in April 2024, it has not been filed. Seek Justice was then inactive in the proceedings until shortly before the hearing of the motions, when it sent an email to my associate, requesting that the hearing be adjourned. That is not how an adjournment application may be made, as it was advised.

15. At the hearing Mr Jeray appeared to press for an adjournment, which was opposed and which I refused. These are the reasons for that decision.

16. The position then was that it was in March 2024 that Seek Justice had been given leave to file the amended summons and a timetable for the filing of the motions was fixed. The time for filing the amended summons was later extended until May, but still it was not filed. In May orders were made for the filing and service of evidence and submissions for the hearing of the motions. Seek Justice did not comply with them and did not appear at the further directions hearing in July, when it was given a further opportunity to put on its submissions, before the August hearing.

17. Seek Justice was informed of those orders, but also did not comply with them, nor did it respond to the Court’s communications.

18. It was not until shortly before the hearing that Mr Jeray emailed my associate advising that Seek Justice was in no position to file evidence, submissions or a court book. But one had already been filed by the defendants, as had been ordered. He then sought a six-week adjournment.

19. Mr Jeray said that he and Seek Justice had been involved in other court and tribunal matters without legal representation, which had taken a considerable amount of his time and that they were at a significant disadvantage, having limited resources, legal knowledge or ability to prepare legal documents.

20. Even accepting what was so advanced, that communication provided no basis for the adjournment of the regularly fixed hearing of the motions. Seek Justice having failed to that point, without explanation, to comply with the Court’s orders, did not support the grant of such an application.

21. The hearing of the motions had been fixed without opposition from Seek Justice either to the date or the orders made, which required it to put on its evidence and submissions. That it and Mr Jeray then prioritised other unexplained obligations, over the proceedings it had brought in this Court, provided no just basis for the adjournment of the hearing of the motions.

22. Contrary to Mr Jeray’s observations, that the Registrar should not have presumed that “everybody can fit into one proforma timetable”, the Registrar’s orders were not unjust. They had not been opposed and gave Seek Justice a fair opportunity to prepare for and appear at the hearing of the motions, it not having appeared to disclose that it had any difficulties which it would have to manage. It not having appeared at the last directions hearing and despite having later been notified of the Court’s orders, it also made no timely application to have them revisited, when it became apparent that they could not be complied with.

23. The adjournment application was not made in the usual way by motion, supported by an affidavit, in which the relevant circumstances had to be disclosed. Indeed Mr Jeray did not disclose what they were even at the hearing, other than that he had not had enough time to go through and respond to the documents he had received, noting that he was an unrepresented litigant and had received “lots of information”.

24. That a litigant which has limited resources chooses to commence proceedings, with the result that it is unrepresented, is not unusual. Nor is it unusual for a litigant to be involved in other proceedings at the same time as litigating in this Court. It may be accepted that this may put the litigant at disadvantage, but that does not relieve it of the obligation which falls on all litigants, to comply with the applicable requirements of the Uniform Civil Procedure Rules 2005 (NSW) and the Court’s orders.

25. This means that timely application must be made to revisit such orders, if problems arise. Failing to do so cannot, without more, provide a just basis for the adjournment of a hearing.

26. Nor can a litigant’s failure even to read documents which have been served upon it. In Seek Justice’s case, documents served upon it as long ago as May not having been read in preparation for the hearing, as Mr Jeray later disclosed during the course of the hearing. In the circumstances, that it had not filed and served the evidence and submissions it wished to rely on in advance of the hearing of the motions or otherwise prepared for the hearing, did not provide a proper basis for the adjournment of the hearing.

27. Any resulting disadvantage it had suffered was because of steps it had chosen to take and not to take. That did not result in any relevant injustice when it pressed and was refused its belatedly made and unsupported adjournment application.

28. Still Seek Justice’s resulting difficulties were addressed at the hearing by it being offered and seeking the opportunity, which the Council and the State accepted it should be given, to later respond to the cases they advanced. It took advantage of that opportunity, filing written submissions on 23 September 2024 out of time, having sought and obtained an extension of time to do so.

29. In the result there can be no question that Seek Justice has been given a fair opportunity to be heard on the motions which have to be decided.

Conduct of the hearing

30. During the course of the hearing Mr Jeray objected to the way in which the proceedings were being conducted, making submissions consistent with allegations of bias, after I took an adjournment, so that he could compose himself, albeit making no recusal application.

31. I was well satisfied that what Mr Jeray complained about did not establish any bias and that the hearing was being conducted fairly, giving Seek Justice a fair opportunity to advance its case on the evidence which it had led.

32. The necessary consideration when bias is raised is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide.

33. This test requires first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [16].

34. This principle admits of the possibility of human frailty. But the bare assertion that a judge is biased, when a litigant disagrees with a decision made or step taken at a hearing, cannot of itself establish the existence of bias warranting recusal, no matter how strongly the litigant’s opinion might be held.

35. All of the relevant circumstances must be taken into account in determining whether a proper basis for recusal for apprehended bias exists, the test having been applied. The relevant standard of assessment being that explained in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [111] namely, that “in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it”.

36. While no recusal application was made, Mr Jeray’s conduct of the proceedings exemplified that on occasions, judges must perform the duties of their office which, of their nature, may be painful and unrewarding, with courage and decisiveness, avoiding the relinquishment of their duties bearing in mind the costs, delay and inconvenience to parties who are otherwise entitled to have the hearing proceed and the decision falling to the judicial officer appointed to their case made.

37. Mr Jeray’s ongoing objections were made while the hearing proceeded with some difficulty at certain points, after the refusal of his adjournment application.

38. Mr Jeray, for example, repeatedly interrupting and speaking over me to explain his disagreement with some of my decisions, which included not only the refusal of his adjournment application, but also asking him to read a short affidavit about service, and their perceived unfairness, despite me having asked him not to do so, given the difficulties this caused. They including the need for the transcript kept of the proceedings to be accurate.

39. Mr Jeray also explained his view that the Court had double standards and had dealt inconsistently with emails which he had sent to my associate seeking an adjournment, which I had originally marked for identification, when the hearing began. Later they were tendered by the Council and Mr Jeray objected, claiming he had earlier, unsuccessfully, sought to tender them. They were received, because I was satisfied that there was no proper basis on which they could be excluded, despite Mr Jeray considering that he was being tricked.

40. After Mr Jeray tendered his April 2024 affidavit and was asked if he had any other evidence that Seek Justice wished to rely on, he protested. He considered that it was unfair for the hearing to proceed, with it being denied the ability to put on further evidence.

41. Eventually I adjourned, in the hope that Mr Jeray could compose himself. On resumption, the following exchange occurred, before the hearing was able to continue:

“HER HONOUR: Mr Jeray, I've indicated to you that I'm not going to continue the debate and you're not entitled to constantly keep interrupting me. Now Mr Ireland, please proceed.

JERAY: I object to that.

HER HONOUR: Mr Ireland.

JERAY: I'm not interrupting. I'm explaining something that you do not wish to understand or accept.

HER HONOUR: Mr Jeray, if you don't take your seat‑‑

JERAY: I didn't just storm out now of the Court room like you did. That's disrespectful to me and I'm offended by that. Well, I seek an apology from the Court for your storming out of the Court.

HER HONOUR: Mr Jeray, I didn't storm out‑‑

JERAY: Yes, you did, you did. You didn't say anything. You walked out.

HER HONOUR: Mr Jeray, sometimes it's necessary‑‑

JERAY: Why don't you explain to me why I shouldn't report that to members of Parliament about your conduct just now.

HER HONOUR: Mr Jeray, that's a matter for you. Sometimes it's necessary to take an adjournment when a litigant can't compose themselves.

JERAY: Well, I am composed. You choose to see it differently.

HER HONOUR: I do see it differently. Please take a seat. Please take a seat.

JERAY: I'm offended by your conduct.

HER HONOUR: I note that. Please take a seat. Please take a seat. You're not entitled just to interrupt whenever something occurs to you.

JERAY: I'm not interrupting. I'm trying to argue something that you do not wish to hear about.

HER HONOUR: Mr Jeray, please take a seat.

JERAY: You're taking advantage or exploiting my disadvantage. I'm offended by that. This has happened to me in another Court as well where the vulnerability of unrepresented litigants are being exploited by Courts and judges and registrars.

HER HONOUR: Please take a seat.

JERAY: The law is not for people. This law is so inaccessible, it doesn't even have any value any more.

HER HONOUR: Please take a seat

JERAY: It's only by rich barristers and rich litigants that can come to these places and where someone unrepresented who is disadvantaged can't, needs more time. You just say bugger you, we don't want to know about it. You can just keep going on like other parties. They can have the same amount of time to prepare.

HER HONOUR: Mr Jeray, please take a seat.

JERAY: This is unreasonable. It is unjust. It is unacceptable.

HER HONOUR: Please take a seat. Please take a seat.

JERAY: I'll take a seat ma'am, but I'm not happy with the way these proceedings are being conducted.

HER HONOUR: Thank you. Please take a seat.

JERAY: And I object to the way they are being conducted.

HER HONOUR: Mr Ireland.”

42. While Mr Jeray had plainly been angered by the rejection of Seek Justice’s adjournment application and the continuation of the hearing over its objection, I was satisfied that his disagreement with my refusal of its application, my insistence that he not interrupt or speak over me or counsel, or his views about the inappropriateness of my adjourning to enable him to compose himself, did not establish the unfairness about which he complained, particularly as to the conduct of the hearing.

43. I had not stormed out of the courtroom and certainly owed him no apology for the short adjournment, when it became impossible for the hearing to continue in an orderly fashion, given the approach from which he refused to desist. On resumption, we were eventually able to proceed to the conclusion of the hearing, which was adjourned in order for Seek Justice to file its submissions. It finally did out of time, to which no objection was taken.

44. In the circumstances I am satisfied that how the hearing was conducted was incapable of establishing a basis for Mr Jeray’s ongoing complaints. To the contrary, I was well satisfied that any fair-minded lay observer could not reasonably have apprehended from what had unfolded, that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I was required to decide about the motions, or that the hearing was proceeding unfairly.

45. In its written submissions Seek Justice sought the opportunity to cross examine the defendants’ witnesses, noting that the Court has “unfairly not provided the plaintiff with an opportunity” to do so. It also sought the opportunity to make further oral submissions.

46. Given all that I have explained I am satisfied that justice does not permit these belated requests to be granted. Seek Justice had the opportunity to cross examine the defendants’ witnesses at the hearing of the motions but did not seek to do so. The plaintiff’s failure to avail itself of that opportunity does not make its lack of cross examination unfair. It also had an opportunity to make oral submissions and has availed itself of the opportunity to make written submissions, even though they were filed late.

47. Fairness does not require it to be given even a further opportunity to make its submissions.

The motions must succeed

48. For the following reasons I am satisfied that orders pressed by the defendants must be made.

Does Seek Justice have the necessary standing?

49. In its summons Seek Justice invokes the jurisdiction of this Court pursuant to ss 23, 65, 66, 69 and 75 of the Supreme Court Act, as well as part 59 of the Uniform Civil Procedure Rules.

50. Section 23 deals with the Court’s general jurisdiction, “necessary for the administration of justice in New South Wales”. Section 65 empowers the Court to “order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested”. Seek Justice does not seek such orders.

51. Section 66 empowers the Court to “restrain any threatened or apprehended breach of contract or other injury”. But Seek Justice does not claim it has suffered any injury.

52. The orders Seek Justice pursues are:

“1 A declaration that section 41 (1) (c), 41 (2), 51A, 62, 64, 65, 66, 67, 68, 69, 70, 71, 85, 87 and 127 of the Government Information (Public Access) Act 2009 and clause 10 of the Government Information (Public Access) Regulation 2018 are invalid.

2 An order requiring Blue Mountains City Council to perform the mandatory requirements of sections 8 and 16 (g) of the Government Information (Public Access) Act 2009 and clause 1 (2) (b) and (c) of Schedule 1 and clause 4 (1) of the Government Information (Public Access) Regulation 2018 and publicly release the meeting agendas, business papers and minutes of all its committees, including panels, groups, councils and section 355 and section 377 committees of the Local Government Act 1993.

3   A declaration that Blue Mountains City Council’s Planetary Health Precinct and Parklands Precinct Plan is invalid.

4   A declaration that Blue Mountains City Council’s Katoomba Master Plan is invalid.

5   An interlocutory injunction that prohibits Blue Mountains City Council adopting the Katoomba Falls Reserve Precinct Plan.

6   The plaintiff’s costs, including court filing fees and photocopying, printing, scanning, postage and the plaintiff’s travelling costs associated with this judicial review.”

53. The details given of the challenged decisions are:

”1 The NSW legislature has made sections 41 (1) (c), 41 (2), 51A, 62, 64, 65, 66, 67, 68, 69, 70, 71, 85, 87 and 127 of the Government Information (Public Access) Act 2009 and clause 10 of the Government Information (Public Access) Regulation 2018 without jurisdiction.

2 Blue Mountains City Council has failed to perform the mandatory requirements of sections 8 and 16 (g) of the Government Information (Public Access) Act 2009 and clause 1 (2) (b) and (c) of Schedule 1 and clause 4 (1) of the Government Information (Public Access) Regulation 2018.

3   Blue Mountains City Council has adopted the Planetary Health Precinct and Parklands Precinct Plan at its meeting of 31 October 2023 and the Katoomba Mater Plan at its meeting of 28 November 2023 without jurisdiction. Blue Mountains City Council is currently in the process of creating and adopting Katoomba Falls Reserve Precinct Plan without jurisdiction.

4   There are no terms of the decisions to be reviewed.

5   The plaintiff seeks relief from the above matters concerning jurisdictional errors.”

54. Section 69 deals with the Court’s judicial review powers, which permit it to grant declaratory relief. Section 75 precludes objection on the ground that a merely declaratory judgment or order is sought and permits the Court to make binding declarations of right, whether any consequential relief is or could be claimed or not.

55. But unlike s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) and other relevant provisions, which permit any person to bring proceedings for an order to remedy or to restrain a breach of that Act, the Supreme Court Act does not permit judicial review proceedings to be brought by “any person”. They can only be brought by a person who has the necessary standing.

56. That Seek Justice does not have such standing must be accepted, despite its case that its standing flows from it having to make payments provided by the Government Information (Public Access) Act, when it makes applications in order to pursue its objectives. They were submitted to be to serve, protect and pursue the public interest without profit.

57. Attached to Seek Justice’s submissions were two documents, copies of applications only made to Council after the hearing, for access to various documents, one which attracted a $30 fee and another which attracted no fee. They are not in evidence and do not establish that Seek Justice has the standing which it claims.

58. Pursuit of relief claimed to be in the public interest is not sufficient to give Seek Justice the necessary standing to bring or pursue these judicial review proceedings. Declaratory relief requiring as it does the existence of an interest beyond that of any other member of the public: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53.

59. In South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113 it was explained at [34] that “[t]he test now accepted as identifying the criterion for a person to commence proceedings in accordance with the general law is variously described as the existence of ‘special damage’, a ‘special interest’ or a ‘sufficient interest’.” But in this case there was no evidence which could establish an interest other than of the kind explained to be insufficient in Australian Conservation Foundation at 530.

60. Namely, “a belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented”, which “does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”: Australian Conservation Foundation at 530.

61. Seek Justice claims to be a not-for-profit organisation first incorporated in 2021. On the evidence Mr Jeray has been in frequent communication with the Council about a range of matters and has sought and been provided with much, but not all of the information and documents which he has sought from time to time. He relies on Seek Justice’s pursuit of proceedings in the Land and Environment Court, including one ongoing matter and one unsuccessful challenge to the validity of a consent granted for a running event in 2022: Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127. He also relies on his appeal from that decision, which was also refused, as evidencing Seek Justice’s sufficient interest in pursuing these kinds of proceedings: Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220.

62. It may sensibly be accepted that Mr Jeray is a member of the Blue Mountains community and that he and Seek Justice, of which he is the controlling mind, have an intellectual interest in the matters raised by its summons.

63. But that Seek Justice has the necessary "real" or "sufficient" interest in obtaining the relief it seeks in these proceedings is not apparent: Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [16].

64. The evidence does not establish that the declarations sought, if made, will produce the required foreseeable consequences for Seek Justice itself. If it had sought declarations in respect of its own rights, legal interests, or liabilities, it would have had a real and sufficient interest, that giving it standing to bring these proceedings: Unions NSW at [21]. But it does not seek such relief and there is no evidence which establishes that it has such an interest in the matters it pursues.

65. When a litigant does not pursue personal rights, it will not have a sufficient interest unless it is “likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [their] action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if [their] action fails”: Australian Conservation Foundation at 530. On Mr Jeray’s evidence, Seek Justice has no personal rights which it wishes to pursue in these proceedings. Nor does it seek to gain any advantage from the proceedings.

66. What is required is that success in the proceedings confers some benefit or advantage greater than that conferred on an ordinary member of the community. There must thus be more than a mere intellectual or emotional concern and more than a belief, however strongly held, that the law or the Constitution should be upheld: Unions NSW at [22].

67. The grounds advanced in Seek Justice’s summons include that the NSW legislature does not have jurisdiction to make identified provisions of the Public Access Act and Regulations; that the Council has breached specified provisions of that Act and the Regulations by failing to “proactively release” identified documents; that the Council had no jurisdiction to adopt the challenged Plans, given the proper construction of the legislative provisions and steps taken and not taken by the Council, before two of them were adopted and in the case of the Katoomba Falls Reserve Precinct Plan, the process being pursued before its creation and adoption.

68. These grounds do not suggest that Seek Justice itself has the required interest in the decisions with which the summons is concerned, or that the granting or refusal of the relief sought will have any consequences for it, other than potential costs consequences.

69. Seek Justice’s summons thus does not disclose that it has the necessary interest in the declaratory relief it pursues, let alone that there will be any consequences for it, different to those flowing to any other member of the community, from the grant or refusal of the relief it pursues.

70. In his April affidavit Mr Jeray deposed that Seek Justice was a not-for-profit organisation that seeks to serve, protect and pursue the public interest without profit; that its “objective is to seek justice in the public interest for the benefit of the community without profit”, and that neither it nor he would gain financially from the outcome of the proceedings. His opinions were not supported by any documents, but what he claimed did not establish that Seek Justice’s success in the proceedings would confer some benefit or advantage on it greater than that conferred on an ordinary member of the community. To the contrary, his evidence was that it would not obtain such a benefit.

71. The affidavit also explained why an amended summons had not been filed, given orders made in March 2024, which restricted the amendments which could be made. But the position appears to be that while Seek Justice has attempted to revisit those orders, it has been unsuccessful before the Registrar, whose orders have not been appealed.

72. It follows that Seek Justice’s approach to the conduct of these proceedings, in which it does not seek to pursue claimed personal rights, accords with it not having the required interest in the relief it seeks in the summons. On its pleadings and evidence it pursues matters it considers to be in the public interest, rather than because the relief it seeks will have any particular consequences for it.

73. It also follows that it must be accepted that Seek Justice, not having either a real or sufficient interest in these proceedings, has no standing to pursue any of the relief it seeks.

74. These conclusions provide a sufficient basis for the orders which the State and the Council sought by their motions. As do the conclusions I have arrived at in relation to the claims for summary dismissal.

Security

75. Had I not reached that conclusion, I would have made the order for security sought.

76. That is because of the response Seek Justice gave to a subpoena the Council served. There it was disclosed that Seek Justice had no bank statements or tax returns to produce. Nor could it provide any list of its assets or property. That it does not have the means to fund this litigation, or to meet any costs order made against it, may thus sensibly be inferred.

77. That being the case and given its lack of personal interest in the proceedings, it would plainly have been in Seek Justice’s interests and consistent with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), for it to either discontinue these proceedings, or to consent to the orders the defendants sought, rather than putting them to the time, trouble and expense of having to pursue their motions. Section 56 imposing as it does an obligation on the parties to assist the Court in furthering the overriding purpose of that Act, the just, quick and cheap resolution of the real issues in the proceedings.

78. Security for costs orders are not routinely made in judicial review proceedings, it being the role of costs orders, ordinarily, to indemnify rather than punish a party: Oshlack v Richmond River Council (1988) 193 CLR 72; [1998] HCA 11 at [67]. But there is no question that the Court has the power to make such an order: r 42.21 UCPR and s 1335 Corporations Act2001 (Cth). The relevant considerations specified in r 42.21(1A) being:

“(a)   the prospects of success or merits of the proceedings,

(b)   the genuineness of the proceedings,

(c)   the impecuniosity of the plaintiff,

(d)   whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e)   whether the plaintiff is effectively in the position of a defendant,

(f)   whether an order for security for costs would stifle the proceedings,

(g)   whether the proceedings involves a matter of public importance,

(h)   whether there has been an admission or payment in court,

(i)   whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j)   the costs of the proceedings,

(k)   whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l)   the timing of the application for security for costs,

...”.

79. While Seek Justice undoubtedly considers the matters it wishes to pursue to be of public importance, that cannot be decisive, especially given the problems with its standing. Its impecuniosity is not attributable to the defendants and they have made a timely application for security, in a case where the evidence is not only consistent with impecuniosity, but raises an obvious question about insolvent trading.

80. Seek Justice resisted the order sought, relying on r 59.11, which provides for security in judicial review proceedings only in exceptional circumstances and r 42.21(1A)(g), which provides that one of the relevant considerations on a costs application is “whether the proceedings involves a matter of public importance”. Given the conclusions I have reached in relation to the summary dismissal application, it cannot be accepted that the matters Seek Justice wishes to pursue involve matters of public importance.

81. “Exceptional circumstances” in r 59.11 were discussed in Baker v R (2004) 223 CLR 513; [2004] HCA 45, where reference was made to R v Kelly [2000] QB 198 at 208. There it was held that 'exceptional' must be construed “as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

82. So approached it must be accepted that the circumstances which arise to be considered fall within the Rule. Seek Justice is impecunious and still seeks to pursue relief, it claims in the public interest, for which it has no standing or necessary interest, which will involve significant costs which it has no capacity to meet, in the likely event that it will fail, given the relief that it wishes to pursue.

83. That is not a situation regularly, routinely, or normally encountered in proceedings brought in this Court and accordingly, it is one in which the Court has the discretion to deal with, by making a security for costs order.

79. Seek Justice has led no evidence to establish that it has the means to fund any adverse costs order made in these proceedings. It follows that the relevant factors which have to be taken into account, favour the making of the order sought.

80. The case Seek Justice seeks to advance does not raise any issue of discernible public importance, nor is it strong and still costs of the proceedings are likely to be significant. That Seek Justice is not legally represented can only reduce the efficiency with which any hearing is conducted.

81. Still there is no evidence that it is likely to be able to fund the other parties’ costs, if its case fails. It has not put on any evidence about its financial position or suggested that Mr Jeray or anyone else could fund the litigation it wishes to pursue. There is also no suggestion that anyone else who might conceivably benefit from the litigation, is prepared to fund it.

82. In the result, had I not concluded that Seek Justice has no standing and an order for summary dismissal has to be made, I would have made the order for security sought.

Summary dismissal

88. Summary dismissal may only be ordered under the Uniform Civil Procedure Rules in the clearest of cases: r 13.4.

89. The Council and the State rely on the unchallenged affidavit evidence of Mr Farrugia, a solicitor employed in the office of the Crown Solicitor and Mr Langevad, the Council’s Director Environment and Planning Services.

90. What Mr Langevad explained included how the Council had gone about meeting obligations imposed on it by the Environmental Planning and Assessment Act and other statutory and regulatory requirements. That included how it had prepared and reviewed challenged local strategic planning statements. He attached documents which evidenced decisions which had been made at Council meetings about their adoption, review and variation, including after public exhibition of drafts.

91. It is unnecessary to explain the detail of all of this unchallenged evidence.

The applicable principles

92. The principles applicable to a summary dismissal application are well settled and impose a high threshold for an applicant to meet. For summary dismissal to be ordered, there must be a high degree of certainty about the ultimate outcome, if the matter proceeded in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Batistatos v Roads and Traffic Authority(NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46].

93. That will be met if the claims pleaded are so obviously untenable that they cannot possibly succeed or are manifestly groundless, so that going to trial would involve useless expense: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69.

94. I am satisfied that this test has been met by the State and the Council, notwithstanding that what Seek Justice advances raises the construction of both the Commonwealth and State Constitutions, as well as legislation and regulations.

The statutory test has been met

95. I have already discussed Seek Justice’s lack of standing to pursue the relief it has pleaded, which it claims to be in the public interest. Despite its case having to be taken at its highest, I am satisfied that its claims must be summarily dismissed: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200].

96. Seek Justice has not been legally represented and did not put on any evidence directed to resisting the cases advanced against it. Being unrepresented helps explain obvious problems with its pleadings and the course it pursued, as does its financial circumstances.

97. But I am satisfied that the result is that it must also be accepted that the Council and the State have met the onus which falls on them to establish that summary dismissal must be ordered.

98. That is because Seek Justice’s pleadings do not pay necessary regard to relevant statutory provisions, including of:

1. the Land and Environment Court Act, which gives the Land and Environment Court, rather than this one, jurisdiction in respect of some of the matters it pursues;

2. the Public Access Act, which, for example, authorises the release of government information after an informal request, but does not require it. Further, it permits releasing such information “subject to any reasonable conditions that the agency thinks fit to impose”: s 8(2);

3. the Local Government Act, which establishes a planning and reporting framework for councils, as well as the guidelines they must comply with; and

4. the Environmental and Planning Assessment Act, which specifies plans which Councils are required to have.

99. It follows that even if Seek Justice did have standing, some of its claims are untenable, the Court not being empowered to grant the relief it wishes to pursue.

100. It is also relevant to the relief that Seek Justice wishes to pursue that it is settled that even a person who is given a statutory right to request information, or make a submission about a decision, is not thereby entitled to pursue a declaration that a decision is null and void, if the information is not provided or the opportunity is not given: Australian Conservation Foundation.

101. Seek Justice also seeks to attack the validity of aspects of legislative and regulatory schemes on the basis, for example, that they are “based on the false, misleading and deceptive premise that providing access to government information, which enables transparency and accountability of the NSW Government is a private expense”. It must be accepted that this is also misconceived.

102. It has been settled for over a century that the Legislature’s motive for legislating as it has is immaterial. “The question always is, what have they done?”: NSW v The Commonwealth (the Wheat Case) (1915) 20 CLR 54 at 98; [1915] HCA 17.

103. The attack on the validity of Regulations is not advanced on the basis of any invalidity of the regulation making power provided by s 129 of the Public Access Act, “with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act”. It also expressly empowers regulations to be made in respect of “the circumstances in which and the extent to which an agency must or may waive, reduce or refund any fee or charge payable under this Act”: s 129(2)(e).

104. What is sought to be attacked includes a scheme which imposes an application fee, processing charges and an internal review application fee. The setting of fees is dealt with in the applicable Regulations. Seek Justice contends that unhindered or free access to government information is a fundamental requirement of government comprehended in the State Constitution.

105. Further, that the NSW Legislature does not have power to make laws that “do not enable the NSW electorate to determine whether good government in NSW is taking place”. And that it “cannot make laws that hinder or charge for the NSW electorate’s access to government information”, it being “the mandatory responsibility of the government to provide free access to government information”.

106. But it is long settled that a State has power to enact legislation which imposes fees: Peterswald v Bartley (1904) 1 CLR 497; [1904] HCA 21. Notwithstanding Seek Justice’s case that what it seeks to advance is concerned with the Legislature’s jurisdiction to impose such fees, it follows that these claims are untenable.

107. Seek Justice’s reliance on Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 at [146]-[147] was misplaced, concerned as it was with the implied freedom of political communication arising from various provisions of the Constitution, in the context of the termination of a public servant’s employment. The discussion about responsible government as "the means by which Parliament brings the Executive to account" so that "the Executive's primary responsibility in its prosecution of government is owed to Parliament”, is not relevant to the State’s imposition of fees. Nor is the doctrine of ministerial responsibility under which a Minister or Ministers become responsible to Parliament for decisions made by the Governor in Council.

108. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; [1992] HCA 45, on which Mr Jeray also relied, was also concerned with the implied freedom of political communication in a case concerning Commonwealth regulation of broadcasting on television and radio of political advertisements and other matters. Reliance was placed on the observations of McHugh J about electors being able to communicate with the candidates for election concerning election issues and their arguments and opinions to other members of the community so that they can make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents: at 231.

109. But neither of these authorities were concerned with rights to government information granted by State legislatures, or with any constitutional right to unhindered, free access to government information held by State Governments or authorities.

110. Further, s 5 of the Constitution Act 1902 (NSW) empowers the State to make laws “for the peace, welfare and good government of the State”. They are not words of limitation and the exercise of this legislative power by the Parliament is not susceptible to judicial review, even on the basis that a challenged provision does not promote or secure peace, welfare and good government: Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55.

111. That broad State power is confined by the Commonwealth Constitution in only limited ways. State laws may be inconsistent with a valid Commonwealth law made in respect of matters specified in s 51 of the Constitution, in which case inconsistency arises to be determined in accordance with s 109. But that is not what Seek Justice seeks to pursue.

112. Seek Justice rather relies on ss 51 and 118 to claim that the challenged provisions breach the Constitution. That is also untenable.

113. Section 51 deals with powers conferred on the Commonwealth which are concurrent with those of the States, but Seek Justice does not pursue any claimed inconsistency, which would have to be approached in accordance with Spence v Queensland (2019) 268 CLR 355; [2019] HCA 15.

114. Section 118 is concerned with States’ recognition of the laws, public acts, records and judicial proceedings of other States: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61. It has nothing to say about a State’s power to legislate, including by imposing fees and charges in respect of public access to documents in the State. The Commonwealth itself has enacted laws granting access to certain documents, for example the Freedom of Information Act1982 (Cth). Such rights are not given by the Constitution itself.

115. That the summons thus discloses no reasonable cause of action in relation to the various challenged Acts and Regulations, must be accepted.

116. In the result, I am satisfied that this is one of those clear cases, where summary dismissal may justly be ordered at this early stage, given the problems with the relief Seek Justice wishes to pursue, which it must be accepted appears to be doomed to fail and its lack of standing to pursue it.

Costs

117. The usual order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that Seek Justice bear the defendants’ costs, as agreed or assessed.

118. The State and the Council sought a gross sum costs order, which Seek Justice indicated it would oppose, but it did not file any submissions on costs.

119. The State relied on the affidavit of Ms Mattes, a Director employed in the Crown Solicitor’s Office, who explained how the costs sought had been calculated, applying the October 2023 NSW "Costs Payable Between Parties under Court Orders Guideline”, which applies when agencies have to instruct the crown Solicitor. Five invoices had been issued, for work done up until shortly before the hearing. The hourly rates for work performed was explained, which in her experience, were lower than, and in some cases substantially lower than, rates for practitioners of equivalent seniority and experience in the private sector.

120. Ms Mattes also explained:

• how the majority of the work had been performed by Mr Farrugia, under supervision, and that Seek Justice’s approach had in her view, increased the costs which would have otherwise been incurred.

• that some costs were not sought to be recovered.

• that rates counsel had charged were below those specified in the CORC Guideline; her view they were wholly appropriate for the nature and complexity of the matter and her view that they would be recoverable in full on assessment; and

• the expense involved in a costs assessment process would likely be unnecessarily incurred as there was reason to believe the plaintiff does not have the funds to meet costs as assessed.

121. On the evidence this assessment must be accepted.

122. In its submissions the State thus sought an order under s 98(4)(c) of the Civil Procedure Act that Seek Justice pay its costs of the motion fixed in the sum of $22,558.93. It relied on principles discussed in Lin v Commissioner of Victims Rights (Costs) [2024] NSWSC 574 at [5]–[9]:

1. The principal purpose of a specified gross sum costs order under s 98(4)(c) is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process”: see also Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 at [15];

2. the discretion may appropriately be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment: see also Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21];

3. fixed costs orders provide an opportunity for ongoing litigation about “nonessential issues” to be resolved with as little technicality and expense as reasonably practicable; and

4. exercise of the discretion may be warranted where the Court considers that it has sufficient confidence in arriving at an appropriate sum on the materials and typically applying a discount to reflect the usual outcome of costs assessment, without undertaking a detailed examination of the kind that would be appropriate on taxation or formal costs assessment: see also Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6]; Ahern at [42].

123. The State also indicated that it would agree to an order for payment by instalments, but such an order has not been sought.

124. The Council sought a gross costs order of $31,000, which represented a 40% discount of costs and expenses incurred, explained in the affidavit of Mr Baird, who annexed invoices, including counsel’s fees and also explained cost invoices for work performed.

125. I am satisfied that the gross costs orders sought should be made.

126. The principal purpose of such an order is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process: Ahern at [15].

127. That can give effect to the overriding purpose of the Civil Procedure Act, the just, quick and cheap resolution of the real issues in the proceedings and the obligation to ensure that the issues between the parties are resolved in such a way that the cost to them is proportionate to the importance and complexity of the subject-matter in dispute: ss 56 and 60 discussed in James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 at [3]. Such orders providing an opportunity for ongoing litigation about “non-essential issues” to be resolved with as little technicality and expense as reasonably practicable.

128. The power to make such an order is discretionary and to be exercised whenever the circumstances warrant it. That is, when the Court considers that it can do so fairly between the parties, having sufficient confidence in arriving at an appropriate sum on the materials available and typically applying a discount. But without undertaking a detailed examination of the kind that would be appropriate on taxation or formal costs assessment: Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6].

129. Account is also to be taken of the fact that if assessed on the ordinary basis, the usual outcome is that the costs recovered represent a proportion in the range of 60 to 85% of the total costs incurred. With the result that the Court should apply an “impressionistic” or “broad brush” approach in applying a discount to reflect that reality: Ahern at [42].

130. It is also appropriate to exercise the discretion where it appears that the party who has to pay the costs would not be able to meet the liability of a costs order following assessment: Harrison v Schipp at [21], [28]-[30].

131. Given Seek Justice’s financial circumstances, the costs the State and the Council have each incurred, the discounts proposed and what is likely to be involved in any assessment of their costs, which Seek Justice does not have the means to pay, I am satisfied that the orders sought reflect a just exercise of the Court’s costs discretion and should thus be made.

Orders

132. For these reasons I order that:

1. The judgment given on 30 October 2024 in Seek Justice Pty Ltd v State of New South Wales [2024] NSWSC 1358 is set aside;

2. The first defendant is renamed “the State of NSW”;

3. The summons is dismissed; and

4. Seek Justice is to pay gross costs:

1. of $22,558.93 to the State; and

2. of $31,000 to the Council.

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Decision last updated: 11 November 2024