Jeray v Blue Mountains City Council & 2 Ors

Land and Environment Court Act 1979 ss 20 58(1) 58(3) LEGISLATION CITED: Uniform Civil Procedure Rules 2005 rr 12.7 13.4(1)(c) 51.16 51.16(1)(c) (2)

Gallo v Dawson [1990] HCA 30 93 ALR 479 Hall v Nominal Defendant (1966) 117 CLR 423 Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 CASES CITED: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 84 FCR 438 Rajski v Scitec Corporation Pty Ltd (unreported NSW Court of Appeal 16 June 1986)

Ivan Jeray (Applicant) PARTIES: Blue Mountains City Council (First Respondent) Greg Egan (Second Respondent) John Egan (Third Respondent)

I. Jeray (Applicant - In Person) COUNSEL: I. Hemmings (First Respondent) P. Clay (Second & Third Respondents)

I. Jeray (Applicant - In Person) SOLICITORS: Marsdens Law Group (First Respondent) McIntosh McPhillamy & Co (Second & Third Respondents)

LOWER COURT JURISDICTION: Land & Environment Court

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298487

HANDLEY AJA SACKVILLE AJA

TUESDAY 6 JULY 2010 IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL, GREG EGAN & JOHN EGAN Judgment 1 SACKVILLE AJA: The applicant (as I shall describe him) is an unrepresented litigant. He seeks leave to appeal from a decision of a Judge of the Land and Environment Court (Lloyd J) dismissing proceedings brought by the applicant in that Court. 2 The proceedings were brought by the applicant against the first respondent to the present application ("the Council") and the second and third respondents ("the Egans"). The applicant sought declarations that certain development consents granted by the Council to the Egans were "null and void" and various forms of consequential relief. It appears to be common ground that the proceedings were within the Class 4 jurisdiction of the Court: Land and Environment Court Act 1979 ("L&E Court Act"), s 20. 3 A party who is dissatisfied with an order or decision made in proceedings in Class 4 of the Court's jurisdiction may appeal to the Supreme Court against the order or decision: L&E Court Act, s 58(1). However, in the case of an interlocutory order or decision an appeal does not lie except by leave of the Supreme Court: s 58(3). 4 The proceedings in the Land and Environment Court were listed before the primary Judge for a hearing apparently estimated to last for 10 days. The Council was represented by Mr Hemmings and the Egans by Mr Clay. 5 On the fourth day of the hearing, the applicant filed a motion seeking the disqualification of the primary Judge and an order that the proceedings be heard by a different judge. The applicant asked for further time to prepare an affidavit and stated that he did not wish the primary Judge to hear the motion because that "would be a conflict of interest". His Honour informed the applicant that he (the primary Judge) would hear the motion immediately. 6 The applicant declined to give reasons to the primary Judge as to why he should disqualify himself. His Honour said that the applicant's refusal to give reasons gave him no option but to dismiss the motion. However, the primary Judge then said that the applicant could renew the motion for disqualification at a later time if he wished to do so. 7 The transcript records the events that ultimately led the primary Judge to dismiss the application: "HIS HONOUR: Mr Jeray, you can renew your notice of motion when you've got time. In the meantime --

APPLICANT: Well, I'm going to appeal this notice of motion.

HIS HONOUR: In the meantime, we will proceed with the case.

HIS HONOUR: Then Mr Jeray, if you cannot proceed with the case, I have no option but to dismiss your action.

APPLICANT: Well, then I shall appeal. HIS HONOUR: Mr Jeray, that means we have wasted three and a half days.

APPLICANT: Well, what happened yesterday, your Honour, was inexcusable and I just, I just - it's wasted my time, maybe I should say that.

HIS HONOUR: What is it that happened yesterday that is inexcusable?

APPLICANT: Your Honour I will put that down in an affidavit when I've had the opportunity to do it.

HIS HONOUR: No, you don't need to put it in an affidavit. I'm waiving the need for -- APPLICANT: I would like to put in an affidavit once I've had the time to do that, sit down and do that.

HIS HONOUR: All right. I will hear what the other parties say.

HEMMINGS: I'd like to get on with the matter, your Honour. If Mr Jeray had his materials here - I don't know whether he doesn't have them in the room or doesn't have them in the building, if he has them somewhere else in the building we could get on the balance of the hearing and if he wants to re-agitate, I assume it's an apprehended bias application, re-agitate that this afternoon or tomorrow morning at some appropriate time, he can re-agitate it but the council would like to get on with it, your Honour. HIS HONOUR: What do you say, Mr Clay? CLAY: Your Honour, with respect, has considered the appropriate approach to the matter. Mr Jeray may not be aware that any application such as this must always be made before the officer hearing the matter, be it a judge, commissioner or otherwise and it is always that person to whom the application must be made. Mr Jeray may not be aware of that and your Honour, with respect, is quite right in ensuring that the application is heard by your Honour. Secondly, Mr Jeray ought be aware, as your Honour has indicated, that he can simply recite to your Honour the reasons for seeking to have your Honour recuse yourself from the case and if there are matters to which Mr Jeray wishes to refer then he should do so this morning. If he declines to do so, as a matter of legal principle, your Honour has no alternative but to dismiss the application which your Honour has done and the matter proceed. It is not open to, as I would understand the authorities, for a litigant simply decline to proceed with a case and expect the court to await its resumption at some other time. Mr Jeray has the rights of appeal of matters both of practice and procedure with leave or of finality if your Honour dismisses the application. But if Mr Jeray effectively says, 'I decline to take any further part in the proceedings', then it would seem your Honour would have no alternative but to treat the proceedings as being effectively discontinued and dismiss them. If, in another place, Mr Jeray wishes to agitate the opposing views, then he is perfectly entitled to do so. But it is inappropriate for litigants to hold the court to ransom, as it were, to insist that different judges hear matters and the like and the authorities are replete with statements that judges are to be reluctant to excuse themselves and second, that the exchanges between bench and bar, be it parties or representatives, are a normal part of the process even if strident observations are made, which in this case I don't suggest they have been at any point. The reluctance to excuse oneself at the request of a party is to ensure that there is no sense of forum shopping or judge shopping for the purpose of proceedings. Your Honour having dismissed the application, with respect your Honour is being put in only one situation and that is that the matter be dismissed and if Mr Jeray wishes to agitate those decisions in another place then he has his rights to do so. He can make such an application. But your Honour, with respect, can't be held to ransom in the sense of saying, 'I simply decline and I want another judge'. That's not the way in which the authorities of this and the High Court have dealt with such situations. May it please the court.

HIS HONOUR: Mr Jeray, do you want to respond to what has been said by Mr Hemmings and Mr Clay?

APPLICANT: I refute that I'm holding the court to ransom. I'm simply asking for a neutral adjudicator in this matter.

HIS HONOUR: I should simply record what happened. Upon the resumption of the hearing this morning, Mr Jeray sought an adjournment to file a notice of motion. I granted that adjournment and Mr Jeray has this morning filed in court a notice of motion which seeks the following orders:

'1. Leave of the court to have this notice of motion heard in the Supreme Court.

2. Request that this case, number 40986 of 2008, be reheard in the Supreme Court.

3. Request that this case, number 40986 of 2008, be reheard with a different judge if order number 2 is not granted.'

I have, on no less than three occasions, invited Mr Jeray to provide me orally with reasons in support of his notice of motion and he has declined to do so. I have then indicated to Mr Jeray that the case is now in its fourth day of hearing, that a considerable amount of evidence has been adduced and that the case should proceed. I invited him as he is still in his case to proceed with the matter and he has again declined to do so. In those circumstances, it would seem that Mr Jeray is, in substance, discontinuing the proceedings. In the light of Mr Jeray's refusal to continue to present his case it seems that there is nothing other than that I can do than simply dismiss the proceedings in the light of his effective discontinuance. Accordingly, the proceedings are dismissed with costs. APPLICANT: Can I just say something for the record, your Honour? I would like to proceed with these proceedings but with a different judge. But first of all I would like to go through the notice of motion heard by a different adjudicator. I just make that clear.

CLAY: Please the court." 8 As can be seen from the transcript, the primary Judge did not identify the source of the power he was exercising in dismissing the proceedings, beyond referring to the applicant as having effectively discontinued them. The Council, in its written submissions on the application, accepted that the orders made by the primary Judge finally disposed of the proceedings. Nonetheless the Council submitted that the decision was "more in the nature of a summary dismissal which is an interlocutory [o]rder: [s]ee Hall v Nominal Defendant (1966) 117 CLR 423, at 440". 9 The Egans submitted that the orders made by the primary Judge were interlocutory in character. They identified possible powers exercised by his Honour as Uniform Civil Procedure Rules ("UCPR") r 12.7 (failure of a plaintiff to prosecute proceedings with due despatch) and UCPR r 13.4(1)(c) (proceedings an abuse of process). Neither of these rules was referred to by the primary Judge. 10 It is perhaps of little moment whether the applicant requires leave to appeal from the orders made by the primary Judge. The applicant did not file a notice of appeal (or application for leave to appeal) within the period specified for the filing of such a notice: UCPR r 51.16. Accordingly, he requires an extension of time for the filing of a notice of appeal: r 51.16(1)(c), (2). The Court would not ordinarily grant an extension if an appeal would have no reasonable prospects of success and thus would be futile: Gallo v Dawson [1990] HCA 30; 93 ALR 479, at 480, per McHugh J. 11 Nonetheless I should indicate that, although the point was not argued at length, it is difficult to see how the orders made by the primary Judge could be anything other than final. His Honour made the order in the course of a hearing on the merits of the application. He did not make findings that were required to attract UCPR rr 12.7 or 13.4(1)(c) and, in any event, those rules do not appear to have been satisfied. 12 In my opinion, if the only issue was whether his Honour erred in not disqualifying himself, there would be no basis for granting the applicant an extension of time for the filing of a notice of appeal. A refusal of a judge to disqualify himself or herself, of itself, may not give any right of appeal or found an application for leave to appeal, depending on the precise wording of the relevant legislation: Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13, at [13]-[18], per Basten JA (with whom Bell JA agreed), and cases cited there. But a complaint of bias or apprehended bias may be relied on as a ground of challenge in respect of any final order, or of any interlocutory order which is susceptible to appeal by leave: Lee v Cha, at [19]. 13 Nothing said by the applicant casts any doubt on the correctness of the primary Judge's ruling on the motion for disqualification. His Honour made it clear that if the applicant did not give any reasons in support of the motion it would have to be dismissed. The applicant resolutely refused to do so. Even then, the primary Judge made it clear that the applicant could renew the application subsequently if he wished to do so. 14 There is, however, one issue and one issue only in respect of which, in my opinion, the applicant has an arguable case. I think that he has an arguable case that he was denied procedural fairness by the manner in which the proceedings were dismissed. It is neither necessary nor desirable to go into detail on this issue. It is sufficient to note that there are circumstances in which a trial judge may be obliged to provide an unrepresented litigant with sufficient information about the practice and procedure of the court to ensure that a fair trial takes place: Lee v Cha, at [48]; Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 June 1986), at 6 of the judgment of Samuels JA, cited in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438, at 445-446 [28], per curiam. 15 In the present case the primary Judge warned the applicant that if he could not proceed with the case his Honour would have no option but to dismiss. The applicant seemed to continue his recalcitrant attitude. However, after hearing from counsel for the present respondents (whose submissions to the primary Judge were helpful), his Honour proceeded to give judgment. Without expressing any firm view on the point, I think that it is arguable that his Honour, before dismissing the proceedings, should have taken further steps to ensure that the applicant understood what was to happen, what powers his Honour proposed to exercise and what the consequences of the orders proposed by his Honour would be for the proceedings instigated by the applicant. 16 In these circumstances, I think that the applicant should be granted an extension of time to file a Notice of Appeal raising the issue I have identified. I do not think it appropriate to grant an extension of time to the applicant to file a notice of appeal in the form of the draft "Amended Notice of Appeal" dated 21 April 2010 which was included in the papers. The draft contains thirty grounds, none of which, with the possible exception of Ground 24, is arguable. 17 I would grant an extension of time for the filing of a Notice of Appeal limited to a ground claiming that the applicant was denied procedural fairness by the making of the order dismissing the proceedings. Any relief sought in the Notice of Appeal filed pursuant to the extension of time should be confined to relief that would be appropriate if that ground were made out. 18 Ground 24 of the draft Amended Notice of Appeal comes closest to stating the ground that I think is arguable, but some modification of Ground 24 is required to raise the procedural fairness issue. I repeat that the grant of an extension of time does not extend to any other ground in the draft Amended Notice of Appeal. 19 The extension of time should be for seven days from the date of delivery of this judgment. The costs of the application for an extension of time for the filing of a Notice of Appeal should be costs in the cause. 20 In view of the conclusion I have reached, Handley AJA acquiesces in the orders that I propose. 21 Accordingly, the orders of the Court are as follows:

1. Subject to Order 2, extend the time for the filing of a notice of appeal to a date seven days from the date of these orders.

2. Direct that the notice of appeal referred to in Order 1 be limited to a ground claiming that the orders made by Lloyd J on 16 July 2009 dismissing the proceedings denied procedural fairness to the applicant.

3. Further direct that the relief claimed in the notice of appeal be limited to appropriate relief should the ground referred to in Order 2 be made out.

4. The costs of the application for an extension of time be costs in the cause.

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