(2008) 72 NSWLR 504
Melbourne Steam Ship Co Ltd v Moorehead [1912] HCA 69
Source
Original judgment source is linked above.
Catchwords
(2008) 72 NSWLR 504
Melbourne Steam Ship Co Ltd v Moorehead [1912] HCA 69
Judgment (9 paragraphs)
[1]
ty Ltd v Bannerman (1980) 30 ALR 559
Category: Procedural and other rulings
Parties: Ivan Jeray (Applicant)
Blue Mountains City Council (Respondent)
Representation: Mr I Jeray - in person (Applicant)
Mr I Hemmings, Barrister
Marsdens Law Group (Respondent)
File Number(s): 40517 of 2010
[2]
Introduction
1The hearing of this class 4 matter was fixed on 8 April 2011 for hearing over five days this week, 11 to 15 July.
2Mr Jeray has never wanted this substantive hearing to proceed while some interlocutory judgments are under appeal, and he has been seeking since 10 June to have the hearing vacated. He also wants an order for discovery to be satisfied before he puts on his evidence, and foreshadowed, in passing, that he may seek to again amend his claim.
3After 8 April, indeed on 17 and 30 June, the Court listed for hearing during this same week, but ahead of the substantive matter, most of the prayers for relief included in two Notices of Motion (' NOM '), which were filed by Mr Jeray on 10 and 20 June 2011.
4There being some overlap between those two NOMs, the Court granted Mr Jeray leave on 11 July to withdraw them and file a third NOM (' the ANOM' ), which embraced all of the prayers outstanding from the earlier two, and added a prayer for discovery. Prayers for an order to produce (in NOM 10 June), and for discovery under Uniform Civil Procedure Rules 2005 (' UCPR ') Part 21 (in NOM 20 June), had been dismissed by the Court on 17 and 30 June respectively.
5After two days of hearing, the parties, for their respective reasons and in differing ways, asked the Court to rule on those parts of the ANOM upon which it had heard argument. That is the purpose of this judgment, but yesterday morning Mr Jeray telephoned my chambers seeking leave to make a further submission before it was delivered. Leave was granted and Mr Hemmings, counsel for the Council, given the opportunity to respond before I again reserved judgment until this morning.
6Before I deal with the ANOM it is important to recount some of the background to, and history of, the substantive proceedings, in which the central allegation is that Council officers removed from official Council files, and/or denied the applicant access to, non-confidential Council records. I will also record the relief sought in the ANOM.
[3]
Background
7Mr Jeray is a self represented litigant, who has deferred his university studies to pursue somewhat of a campaign against the management practices and policies of the Blue Mountains City Council, especially regarding public access to Council information. He describes himself as an environmentalist and an " advocate for public participation, transparency and accountability in local government matters ".
8This is not his only class 4 claim against the Council, and the court file in this matter contains copies of some judgments and other documents from matter no.40517 of 2010.
9Mr Jeray filed his Statement of Claim commencing these proceedings on 30 June 2010, and amended it, by leave, on 18 October 2010 (' the ASOC '). In final form the ASOC alleges the following breaches of the Local Government Act 1993 (' LG Act ') (as it stood at the relevant time, and prior to the repeal of the pleaded sections):
a.The Blue Mountains City Council has breached section 12 by removing/denying access to non-confidential records prior to the applicant's viewing of the following records:
Development application files, inclusive of development related records for 108-120 Narrow Neck Road, Katoomba;
Development application files, inclusive of development related records for 85-99 Burrawang Street, Katoomba .
b.The Blue Mountains City Council has breached section 12 by denying access to the following non-confidential records:
All records including minutes of all meetings held by the Council with The Gully Traditional Owners Incorporated prior to the Council's adoption of The Gully Co-operative Management Committee on 5 August 2008.
All records including presentations, reports and minutes of the Council's Environment and Planning Working Party regarding the management of Upper Kedumba River Valley, Katoomba.
All records of briefings held with the council's: (i) General Manager; (ii) Group Manager of Community and Corporate; and (iii) Mayor regarding the management of Upper Kedumba River Valley, Katoomba.
c.The Blue Mountains City Council has breached section 12 by denying the applicant's access to the recommendations endorsed at minute no. 178 for the Council meeting of 27 April 2010.
2The Blue Mountains City Council has breached section 12A by not providing the applicant with reasons for denying him access to the non-confidential records indicated at allegation no. 1 above.
3The Blue Mountains City Council has breached section 12B by not allowing the applicant to use a camera to copy records indicated at allegation no. 1 above.
4The Blue Mountains City Council has breached section 13 by not retaining its records (i.e. those records indicated at allegation no. 1 above) in accordance with the standards required by the State Records Act 1998.
5The General Manager of Blue Mountains City Council has breached section 335 by not performing his function to allow access to the records indicated at allegation no. 1 above. He has also not provided reasons for denying access to these records.
6The Public/Executive Officer of the Blue Mountains City Council has breached section 343 by not assisting the applicant to gain access to records indicated at allegation no. 1 above.
7The Blue Mountains City Council has breached section 375 by not keeping full and accurate minutes of the proceedings of its meetings regarding minute no. 178 for the Council meeting on 27 April 2010.
10The Council filed its Points of Defence on 6 June 2011 and written submissions on the substantive matter on 6 July. The Points of Defence deny the allegations in pars 2 to 7 of the ASOC, and assert (in par 8) that " the applicant is not entitled to relief sought or at all ". In answer to par 1 of the ASOC, the respondent specifically pleads as follows:
" a. Denies paragraph [1a] of the Amended Statement of Claim;
b. Denies paragraph [1b] of the Amended Statement of Claim; and
c. Denies paragraph [1c] of the Amended Statement of Claim and further says that this allegation is already the subject of a determination of the Court in Jeray v Blue Mountains City Council (No 3) [2010] NSWLEC 187, see in particular paragraph [21].
11The ANOM filed on 11 July 2011 seeks the following relief (emphasis mine):
Vacate the scheduled hearing dates of 11-15 July 2011 in case no. 2010/40517.
(Deleted by applicant).
Prior to the remainder of the applicant's Notice of Motion filed on 10 June 2011 being heard, the respondent is to provide discovery in accordance with Part 21 of the Uniform Civil Procedure Rules 2005 for all records that it possesses that are relevant to the facts in issue indicated in Appendix A.
Prior the remainder of this Notice of Motion being heard, the applicant and the respondent are to file and serve their affidavits and any other evidence in chief, in defence and in reply for this notice of motion.
A declaration that the respondent, Blue Mountains City Council, permitted conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2010/40517. In particular, the General Manager of Blue Mountains City Council, Mr Robert Greenwood , delegating and permitting the delegation to continue without Council meeting approval, the Council's Executive/Public Officer, Ms Julie Bargenquast , to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives when Mr Greenwood and Ms Bargenquast are directly implicated in case no. 2010/40517. Further, that Ms Julie Bargenquast accepted and continued without question or complaint to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives in defiance of her conflict of interest and/or reasonable apprehensions of bias in case no. 2010/40517.
A declaration that the present General Manager of Blue Mountains City Council, Mr Robert Greenwood, has breached section 335 of the Local Government Act 1993 by permitting conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2010/40517, which have significantly and adversely affected the efficient and effective operation of the council's organisation as a result of the judgement of this notice of motion.
A declaration that Blue Mountains City Council, a local government authority, has consequently not acted as a model litigant and undermined the proper administration of justice in case no. 2010/40517.
All legal instructions and submissions, including orders and declarations sought, by and/or on behalf of Blue Mountains City Council in case no. 2010/40517 to the date of the judgement of this notice of motion are declared null and void.
A declaration that all the respondent's legal representatives have committed professional misconduct by not advising the respondent to remove the conflicts of interest and/or reasonable apprehensions of bias and/or withdrawing from case no. 2010/40517 when the conflicts of interest and/or reasonable apprehensions of bias continued throughout the case to the date of the judgement of this notice of motion. Consequently, the respondent's legal representatives have not acted as model legal representatives and undermined the proper administration of justice in case no. 2010/40517.
[4]
The hearing his week
21Given that the Court and the Council have proceeded this week on the basis, rightly or wrongly, that the ANOM should be dealt in full with before the substantive matter is tried, the first question to be addressed in this week's hearing was prayer 1 of the ANOM, the question of vacating the hearing dates set for disposition of the substantive matter.
22In making his submissions on that topic over more than the whole of the first day, Mr Jeray argued, in detail, issues of relevance to many of the other prayers for relief in the ANOM. The parties and the Court agreed upon an informal grouping of those prayers, where possible, in order to expedite the hearing of them. The applicant chose to read all paragraphs and annexures of his affidavits of 10 and 20 June 2011 in support of the ANOM, and he tendered several exhibits during more than two days of argument, the length of which virtually ensured that the substantive hearing could not be concluded this week, even if it were ready to proceed, and actually commenced. The hearing this week of the substantive proceedings should, therefore, be vacated.
[5]
Conflict of Interest and Bias
23Mr Jeray's primary contention to the Court during this week's hearing is that, as Council's public/executive officer, Julie Bargenquast, and also the General Manager, Robert Greenwood, are " implicated " in the applicant's case, they have a conflict of interest, which would gives rise, in a fair-minded observer, to an apprehension of bias, as a result of which (1) they should remain " independent ", and take no active part in the conduct of the litigation by Council's legal representatives, and (2) they should not access, and deal with, relevant Council documents (as seen, he says, in Exhibits J2 and C1 ). Council should be a " model litigant ", and the involvement of those " implicated " and " conflicted " officers in the preparation and running of its case is inconsistent with what the public is entitled to expect of one. This failure on Council's part affects the whole case, denies Mr Jeray procedural fairness, and should be dealt with before the hearing. " Rushing " to trial also denies him procedural fairness, any undue delay in the matter being caused by Council's obstinacy over documents.
24In support of his submissions, Mr Jeray invoked (a) a " model litigant " policy taken from a State Government website ( Exhibit J1 ), (b) the requirements of s 440 of the LG Act that each Council must adopt a code of conduct which includes some model provisions, and (c) the guidelines published by the " department " of local government (under s 23A of the LG Act ), one of which points out the negative impact even only a " perceived " conflict of interest can have on public confidence in the integrity of local government, and by the NSW Ombudsman ( Exhibits J4 and J5 ). As an example of the tenor of such documents, Mr Jeray drew particular attention to the provisions in Exhibit J1 , including the following:
3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards.
3.2 The obligation requires that the State and its agencies, act honestly and fairly in handling claims and litigation by:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;
...
(c) acting consistently in the handling of claims and litigation;
...
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim;
(g) not relying on technical defences unless the interest of the State or an agency would be prejudiced by the failure to comply with a particular requirement and there has been compliance with Premier's Memorandum 97-26;
...
(i) apologising where the State or an agency is aware that it or its lawyers have acted wrongfully or improperly.
25The Court agrees that Councils must behave as model litigants, but notes that the policy document principally relied upon by Mr Jeray goes on to provide:
3.3 The obligation does not require that the State or an agency be prevented from acting firmly and properly to protect its interests. It does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made.
3.4 In particular, the obligation does not prevent the State or an agency from:
(a) enforcing costs orders or seeking to recover costs;
(b) relying on claims of legal professional privilege or other forms of privilege and claims for public interest immunity;
(c) pleading limitation periods;
(d) seeking security for costs;
(e) opposing unreasonable or oppressive claims or processes;
(f) requiring opposing litigants to comply with procedural obligations; or
(g) moving to strike out untenable claims or proceedings.
26The Council has a duty to its ratepayers to defend any proceedings it considers unfounded, and to do so in accordance with model litigant principles, but Mr Jeray has produced no evidence of any non-compliance with those principles. In this regard it should also be noted that s 440(8) makes clear that the code of conduct that section requires gives rise to no causes of action.
27On earlier occasions during this case Mr Jeray has placed before the Court various Council policy and practice documents, but he did not tender or refer to them in this week's hearing. He did, however, cite statements of relevant principle from cases such as Melbourne Steam Ship Co Ltd v Moorehead (" Melbourne ") [1912] HCA 69; (1912) 15 CLR 333, Hughes Aircraft Systems International v Airservices Australia ("Hughes") (1997) 146 ALR 1, Scott v Handley ("Scott") [1999] FCA 404; (1999) 58 ALD 373, McGovern v Ku-ring-gai Council ("McGovern") [2008] NSWCA 209; (2008) 72 NSWLR 504, and, most recently in this court, Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No4) (" Hill Top") [2011] NSWLEC 6.
28All these cases emphasise that public bodies have no " private or self-interest ", but have a duty of " fair dealing ". They must exercise their powers and carry out their functions " for the public good ", and " lead by example" (Hill Top ), e.g. by not taking technical points ( Melbourne). It is from this " fair dealing " principle that " model litigant " policies and principles flow ( Hughes ). Scott emphasises the duties a model litigant policy imposes on a public body facing a self-represented litigant like Mr Jeray. It also (at [45]) gives some illustrations of the insistence by courts on " fair dealing ". Spigelman CJ noted, in McGovern (at [25ff]), that establishment of a conflict of interest almost " as of course " generates a " reasonable apprehension of bias ".
29The functions of Council's General Manager ( LG Act , s 335) are very broad and general. Those of Council's public officer ( LG Act , s 343) include not only dealing with public requests for information or access to documents, but also representing the Council in " any legal or other proceedings ", and performing any functions " conferred or imposed " by the General Manager.
30Given the way the substantive matter is pleaded, the public officer (Bargenquast) is obviously a key Council figure in the litigation, and as a likely witness she is in no way barred from an executive or administrative role in the conduct of the case, in the course of her duties. The same applies to the General Manager (Greenwood). I simply cannot accept the applicant's contention that, as he argues in the case of those senior administrative officers in this case, a Council compliance inspector should be similarly restricted to remain " independent ", so as to ensure " integrity of the process " in any legal proceedings involving his/her duties.
31Our local government system could not function if such restrictions were to apply, as being a model litigant would, if they did apply, often put a council at a significant disadvantage when facing a well-resourced private sector litigant, as often occurs in this and other courts.
32There is absolutely no basis for the Court to find that the relevant Council officers have a conflict of interest, as properly understood, or are responsible for a reasonable apprehension of bias.
[6]
Documents and Discovery
33Turning now to the question of discovery ( prayer 3 of the ANOM), but first to prayer 20 of it, I note that, further to what the Court was told on 30 June, the position now is that there has been a correction to the transcript of the contempt hearing, and, on the basis of what is now accepted as the evidence given by the witness Marlene Jones, the Council confirmed to the Court that it has no documents to produce in response to par (a) . Mr Jeray has, however, not yet heard the audio of the evidence, and so has not yet accepted the correction of the transcript.
34In compliance with par (b) of prayer 20 , the Council has now, following a further search, produced to Mr Jeray one further email, and Council has tendered to the Court (as Exhibit C1 ) a copy of Marsdens' letter of 4 July 2011, a copy of the relevant email exchange of 7-10 June 2010, and a copy of a letter sent to Mr Jeray by the General Manager of the Council on 11 June 2010. (Some of the email exchange is also in Mr Jeray's Exhibit J2 ). Mr Jeray complains that it should have been produced earlier, and that its lateness and the involvement of Council's Julie Bargenquast in its production add " further impetus " to the contempt charge, to his complaints about Ms Bargenquast and the General Manager, and to his request, in prayer 3 of the ANOM, for an order for (formal) discovery.
35Mr Hemmings assured the Court that the Council acknowledges its ongoing obligation to produce every document relevant to the case, and the Court accepts that assurance. This assurance is consistent with the spirit of UCPR 21.6 in cases where formal discovery is ordered.
36This Court's practice note for class 4 proceedings (in par 14(a)) requires the respective public body responding to proceedings to make available to the applicant, usually via the Court, relevant documents within 14 days of filing its appearance. The Court does, in addition, have the power " in appropriate cases " to order formal discovery (par 14(c)), but will use the power only " in exceptional cases ", and generally " confined to particular issues " (par 15).
37These provisions of the practice note were considered in depth by Craig J in Ralph Lauren 57 Pty Ltd v Byron Shire Council ("Lauren") [2010] NSWLEC 207. Extensive documentation had been produced in response to a Notice to Produce (as here), but an " oversight " was identified and a further document produced (as here). His Honour emphasised that the ordering of discovery was discretionary, but accepted that the circumstances of that case were, indeed " exceptional ". His Honour considered his decision against the background of all the principles now enshrined in ss 56-60 of the Civil Procedure Act 2005 (' CP Act' ), and the requirements of UCPR 21, in deciding to exercise his discretion and make the order.
38It is timely to note at this point, for the purposes generally of this case, the thrust of those relevant provisions of the CP Act (Part 6, Division 1, ss 56-60). The overriding purpose of the Act, and court rules aligned with it, is to " facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings ". The Court, the parties, legal representatives and persons " with a relevant interest " in civil proceedings, are all charged with a duty to act accordingly. Section 58 charges the " court to follow the dictates of justice " in each particular case, and ss 59 and 60 deal specifically with elimination of delay not " reasonably required " between filing and determination, and with maintaining a " proportionality " in the costs to the parties. UCPR 21.1--21.8 provide for discovery, and 21.9--21.13 for notices of produce. UCPR 21.2 requires that when ordering discovery, in its discretion, the Court will specify class(es) of documents to be discovered, but " not ... in more general terms than the Court considers to be justified in the circumstances ", and only documents which are " relevant to a fact in issue " in the proceedings.
39In the present case, over a 12 month period, Biscoe J declined a search order, then Pepper J indicated the correct approach was a Notice to Produce. Mr Jeray has issued four such notices. In the dispute about documents which was listed before me last September, most documents Mr Jeray sought were agreed upon, and I ordered appropriate confidentiality of one other. Mr Jeray then charged the Council with contempt, but persisted with that charge only in respect of one document, and failed. Further documentation has been found and produced. Biscoe J then, after a thorough review of the documents requested, declined to make an order. (Mr Jeray intends to appeal Biscoe J's judgment, and wants his case delayed until the appeal is concluded).
40Mr Jeray then included in both his 10 and 20 June NOMs, prayers for document production or discovery, and the Registrar and I respectively rejected those prayers as " too wide ". Mr Jeray in his ANOM (prayer 3) has again sought an order for discovery, to be satisfied " prior to the remainder " of his NOM being dealt with. He seeks to identify the documents he requires in Schedule A to the NOM, in terms of three " facts " expressed as follows:
The General Manager of Blue Mountains City Council, Mr Robert Greenwood, delegating and permitting the delegation to continue without Council meeting approval, the Council's Executive/Public Officer, Ms Julie Bargenquast, to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives when Mr Greenwood and Ms Bargenquast are directly implicated in case no. 2010/40517.
Ms Julie Bargenquast accepted and continued without question or complaint to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives in defiance of her conflict of interest and/or reasonable apprehensions of bias in case no. 2010/40517.
All the respondent's legal representatives have committed professional misconduct by not advising the respondent to remove the conflicts of interest and/or reasonable apprehensions of bias and/or withdrawing from case no. 2010/40517 when the conflicts of interest and/or reasonable apprehensions of bias continued throughout the case to the date of the judgement of the applicant's amended notice of motion dated 11 July 2011.
41Paragraph 4 of Appendix A indicates the relevant time period as " from the start of case 2010/40517 until the judgement date of the " ANOM.
42Mr Jeray submits that his formulation in Appendix A satisfies the restrictions in UCPR 21, and that the evidence given by Council officers before Craig J, and the production by Council of relevant documents since that hearing, indicate that formal discovery should be ordered. He referred the court to decisions in Mulley & Marney v Manifold (1959) 103 CLR 341, WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559, Alister v R (1983) 154 CLR 404, Re Nestle Australia Limited v The Commissioner of Taxation of the Commonwealth of Australia [1986] FCA 26, and Commonwealth v Northern Lands Council [1993] HCA 1; (1993) 176 CLR 604, which the Court has reviewed.
43He has ignored all directions for the filing of his evidence in support of his case and/or his ANOM, but claims Council is continuing to keep from him the evidence he needs to make good his claims.
44As this substantive case is framed in terms of events prior to the date of the Statement of Claim, 30 June 2010, but Appendix A makes clear Mr Jeray wants documents post that date, the documents sought have nothing to do with facts in issue in the proceedings, even if they might seem relevant to facts which may underlie the allegations in his ANOM.
45Mr Jeray's only responses, before I adjourned on Tuesday afternoon to prepare this judgment, were to say:
(1) that, as these were not " normal proceedings ", it was unreasonable for the Court to expect him to follow the usual practices;
(2) that Council had breached undertakings to comply with Notices to Produce; and
(3) that he is in no position to nominate what relevant documents the Council might hold; and
(4) that the objectives of the CP Act are not offended by focussing on his " just " claim for such an order.
46When given the opportunity to make an additional submission yesterday, Mr Jeray argued that the practice note, which he sees as imposing on him the need to prove his is an " exceptional " case, in order to secure a discovery order, is invalid, because it does not, unlike the delegation of powers to the Registrar ( Exhibit J6 ), bear/disclose on its face the source of the Chief Judge's power to make it. He also submitted (1) that it should not be followed, because " exceptional " is not defined in it or elsewhere, and the UCPRs don't require it, and (2) that Lauren should not be followed, because it is infected by these faults with the practice note.
47The delegation is made under s 13 of the CP Act , and practice notes are issued under s 15 of the CP Act , and (in the case of non-civil proceedings) under s 76 of the LEC Act . The delegation must be made " by instrument in writing ", and apply to the formal exercise by the court of any of its functions under the Act or the UCPR, while practice notes are published documents designed to inform practitioners and the public of the approach the Court will take in matters of case management, in order to achieve the " just, quick and cheap resolution " of civil proceedings, as required by the CP Act.
48I reject these late submissions, but I note that Mr Jeray affirmed, during his submissions yesterday, that he accepts that orders for discovery are at the Court's discretion.
49There is no duty on the Council, nor on any " model litigant ", to ensure that a challenger can make good its case, but such respondents must comply with the law, court rules, court directions, practice notes, notices, subpoenas etc, including, especially, any requirements on them to produce documents.
50Mr Jeray has not yet brought forward any evidence to support his allegations, which underpin the ASOC, and he will have to make them good at trial.
51I have come to the clear view that this is not a case for the exercise of the Court's discretion to order discovery.
[7]
Other issued argued out
52Late on the second day of hearing Mr Jeray made clear to the Court that he wanted me to make only the order for discovery, and vacate the hearing, to facilitate his developing further arguments on the ANOM, including those prayers such as 12 and 13 which, he submitted, spoke for themselves, and some on which there is no clear power, apart from the Court's duty to act in the public interest, for the Court to grant (eg prayers 10 and 14).
53Mr Hemmings argued that, contrary to the public interest served by expeditiously concluding adversarial proceedings, Mr Jeray had designed the ANOM to preclude that outcome and fragment the overdue trial, contrary to the spirit and the terms of the CP Act . The Court had clearly decided that the five hearing days this week should be taken up with concluding the proceedings altogether, and Mr Jeray allowed three deadlines for filing of his evidence on the substantive matter, and two regarding the ANOM, to pass without response.
54Mr Jeray submitted that the fact that UCPR 51.6 allows an effective three months for launching appeal to the Court of Appeal means that Biscoe J should have not set down the hearing as he did on 8 April until appeals were exhausted or concluded. The Court notes:
(1) that 11 July is more than three months after 8 April;
(2) that Mr Jeray's appeal against Biscoe J's judgment has still not been filed;
(3) that most applicants are anxious to bring their cases to trial;
(4) that Mr Jeray has ignored all the Court's directions and spent the 3 months since 8 April making repeated attempts to have the hearing vacated and to obtain documents he hopes might make good his case;
(5) that UCPR 51.44 makes clear that the filing of the appeal does not stay the proceedings below; and
(6) Giles JA has already refused to intervene, on behalf of the Court of Appeal.
55Mr Jeray also argued that the Court had the power, and it is appropriate, to make the declarations sought in the ANOM, without more usual interlocutory relief such as an order of some sort. The only authority he quoted in support of that submission was a judgment of Grove J in The Law Society of New South Wales v Holt [2005] NSWSC 152, a rather unusual case, in which the receiver appointed by the Society to the property of the defendant solicitor challenged the retainer of the solicitor for the defendant who had issued a subpoena to the receiver. No declaration was sought or made, and His Honour declined, in an interlocutory proceeding, to make the order sought. Clearly this case has no relevance whatever to the present proceedings.
56The authorities express clear reservations about "bare " declarations being made in any circumstances, and I know of no authority supporting the making of them on an interlocutory basis, and/or in respect of issues not joined between the claim and the defence in the substantive proceedings. In any event, there is little evidence before the Court regarding the ANOM, and none at all indicating any reason for the Court to make any of the declarations sought.
[8]
Conclusions on the Prayers for Relief
57I have come to the following conclusions.
58Mr Jeray has every right to bring and pursue his proceedings, as has the Council to resist them, and both share with the Court the responsibility to bring them expeditiously to a conclusion, without allowing them to be fragmented.
59All the declaratory relief sought (in prayers 5, 6, 7, 8, 9, 18 and 19) must be refused, especially, as noted in [32] above, those upholding allegations of conflict and bias, in the absence of evidence.
60There is no known power to make, nor any authority to support the making of, the unusual orders sought in prayers 10, 12, 13 and 14.
61As there is no evidence of any professional misconduct on the part of the legal representatives of the Council, the Court must decline to make the report sought in prayer 11.
62As noted in [22] above, regarding prayer 1, the hearing fixed for 11-15 July should be vacated, largely because the applicant's strategy in conducting the proceedings has left no time for the substantive proceedings to be heard at all this week.
63As noted in [51] above, regarding prayer 3, no order for discovery has been justified.
64In respect of prayer 20, as noted in [35] above, the Court accepts the respondent's assurance regarding " late " documents, as an undertaking to the Court.
65In my view all questions of costs (prayers 16 and 17), should be reserved at this stage.
66Prayer 15 seeks an order that the case "recommence " after this judgment is delivered, and " order nos 13 and 14 have been properly carried out ". Prayers 13 and 14 must and will be refused for lack of power, but the Court must do its duty under the CP Act ([38] above), and ensure that the substantive matter now proceeds to trial.
67Prayer 4 envisages the making of directions for the filing of evidence for the hearing of " the remainder of " the ANOM. The orders I propose to make will dispose of all elements of the ANOM, but I am prepared, with some hesitation, to grant the applicant one final opportunity to put on his evidence for an early hearing of the substantive proceedings.
[9]
Orders and Directions
68The Court, therefore, makes the following orders:
(1) The Hearing dates 11 to 15 July 2011 (incl) for matter 40517 of 2010 are vacated.
(2) Prayers 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18 and 19 of the Applicant's Amended Notice of Motion filed 11 July 2011 are refused.
(3) The Court notes the Respondent's undertaking to the Court in response to Prayer 20 of the Amended Notice of Motion.
(4) The substantive proceedings are stood over to the List Judge's list on Friday 9 September 2011 for the setting of new hearing dates.
(5) All questions of costs in the substantive proceedings and on the Amended Notice of Motion, other than those the subject to orders already made, are reserved.
(6) The Amended Notice of Motion dated 11 July 2011 is otherwise dismissed.
(7) All Exhibits are returned.
69The Court makes the following directions:
(A) The Applicant is to file and serve all evidence upon which he intends to rely in the substantive proceedings by Friday 12 August 2011 .
(B) The Respondent is to file and serve all evidence upon which it intends to rely in the substantive proceedings by Friday 26 August 2011.
(C) The Applicant is to file and serve all his evidence in reply to the Respondent's evidence by Thursday 8 September 2011 .
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 July 2011
That due to their professional misconduct , the respondent's legal representatives must not take any further part in case no. 2010/40517.
The Court will report the professional misconduct of the respondent's legal representatives to the NSW Legal Services Commissioner, the NSW Bar Association and the NSW Law Society.
Blue Mountains City Council must not permit any further conflicts of interest and/or reasonable apprehensions of bias to occur in case no. 2010/40517. In particular, Mr Robert Greenwood and Ms Julie Bargenquast must not interfere in any way and remain properly separated at all times from case no. 2010/40517.
Blue Mountains City Council must properly inform the applicant in writing how the Council will carry out order no. 12 above including the ongoing disclosure of the full details of any breach of the order that occurs.
Blue Mountains City Council must report and provide a full copy of the judgement of this notice of motion to Blue Mountains City Council in an open meeting .
Case no. 2010/40517 is to recommence after the judgement for the applicant's Notice of Motion filed on 10 June 2011 has been given and order nos. 13 and 14 have been properly carried out.
The respondent must pay all its own costs from the commencement of case no. 2010/40517 to the date of judgment of this Notice of Motion, including all the respondent's costs of this Notice of Motion.
The respondent must pay all the applicant's costs from the commencement of case no. 2010/40517 to the date of judgment of this Notice of Motion, including all the applicant's costs of this Notice of Motion.
A declaration that Blue Mountains City Council has breached section 23A of the Local Government Act 1993 by permitting conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2010/40517 in defiance of the relevant guidelines issued by the Department of Local Government.
A declaration that Blue Mountains City Council has permitted conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2010/40517 in defiance of the relevant guidelines issued by the NSW Ombudsman.
The respondent must provide copies of the following records to the applicant, as required by the applicant's Notice to Produce to the Court dated 16 September 2010, the subject of the contempt of court proceedings in case no. 2010/40517 (see pages 21-22 and 38-39 of the Court's transcript of 1 February 2011):
a. All written communications between Ms Marlene Jones, Mr Paul Koen and Mr Rodney Bless regarding her queries of any missing records from the files they were managing;
b. All written communications between ms Julie Bargenquast and Mr Robert Greenwood that Mr Greenwood should send an informal response to the applicant regarding his complaint of missing documents from files.
12It is important to note two principal matters regarding the ANOM:
(1) There are no allegations of conflict of interest or apprehended bias in any of the prayers for relief in the substantive proceedings, including those alleging breaches of statutory duty on the part of Mr Greenwood and Ms Bargenquast (pars 5 and 6 of the ASOC); and
(2) In respect of what is now par 20 of the ANOM, and was par 8 of the 20 June NOM, I note at this point that Council told the Court on 30 June that (1) there are no documents to produce in respect of par 8(a), and (2) it would comply with par 8(b). On that day I referred the question of Council's compliance to this hearing. (I will return to this question when I deal with par 20).
13For completeness, I now record that the following events have occurred, and the following judgments have been delivered, between the filing to the original Statement of Claim and 11 July 2011:
(1)On the 30 June 2010 , the day on which the Statement of Claim was filed, Biscoe J refused to grant an ex parte Anton Piller order. The NOM seeking that order was filed with the Statement of Claim. [2010] NSWLEC 139
(2)On 9 July 2010 , Pepper J allowed the amendment of the 30 June 2010 NOM, then dismissed the ANOM, in which Mr Jeray sought the production of documents by the Council, which he believed the Council had removed from the relevant files concerning properties at 85-99 Burrawang Street and 108-120 Narrow Neck Road, Katoomba. Particular reference was made to s12A of the LG Act and Mr Jeray also wanted an order that he be provided with a list of the names of officers of the Council who had access to the relevant file. In the court file there is a transcript of that hearing, and a draft of Her Honour's judgment. Her Honour directed, by consent, that the applicant file his evidence in chief by 31 August 2010 . [2010] NSWLEC 123.
(3) On 27 September 2010 , I heard a dispute between the parties concerning documents the subject of a Notice to Produce dated 13 July 2010. The Council having agreed to produce many of the documents sought, it pressed for confidentiality to be respected in respect of one item in it, namely item 4, which concerned the performance review and the salary etc of the general manager. I ruled that Mr Jeray had failed the test in UCPR 21.9 and 21.10, and I upheld the Council's confidentiality claim. [2010] NSWLEC 187.
(4) On 8 October 2010 , the Court granted leave to Mr Jeray to file his ASOC, and fixed 5 November as the date on which his NOM dated 1 October 2010, charging the Council with contempt, would be heard. On 1 November 2010 , Craig J dismissed an application by Mr Jeray to vacate the 5 November hearing date on the grounds that the Council had not filed its evidence in time. [2010] NSWLEC 261.
(5) On 5 November 2010, the contempt motion came on for hearing before Craig J, but Mr Jeray did not appear. On the previous day he had sent a letter to the Court, accompanied by a medical certificate saying that he had a " medical condition " that rendered him unfit " for work " from 4 November to 3 December. Craig J declined to dismiss the Notice of Motion (' NOM ') in his absence, but noted the cost implications of an adjournment, as various Council officers had been subpoena'd to attend and were present. His Honour listed the motion for mention on 19 November with a view to setting a new hearing date. [2010] NSWLEC 229.
(6) On 19 November 2010 , Craig J referred the respondent to the Registrar, in the absence of the applicant, to fix a new hearing date for the contempt motion, not before 6 December, and directed the Council to notify the applicant of the date. The Registrar fixed the matter for hearing on 31 January 2011. Directions were subsequently given by Craig J on 17 December.
(7) On 31 January and 1 and 4 February 2011 , Craig J heard the NOM charging contempt, after rejecting an application made by Mr Jeray on the first day for a further adjournment. There is a full transcript of the three days of hearing in the court file. During the course of the hearing Craig J also rejected two applications for him to recuse himself on the basis of an alleged close personal association with counsel for the Council. On the last day of hearing the applicant dropped one of the two charges.
(8) On 18 February 2011 , further directions were given for the hearing of the substantive matter, requiring the applicant to file his evidence by 8 March, and agree on a bundle of documents by 27 April.
(9) On 4 March 2011 Craig J delivered his judgment on the contempt NOM, dismissing the remaining charge. [2011] NSWLEC 28.
(10) On 8 April 2011 , after a hearing which took place on 25 March and 1 April, Biscoe J dismissed an ANOM dated 25 March, in which Mr Jeray sought to set aside Craig J's orders of the 4 March. Mr Jeray sought to have the Council produce further documents and information to him before the NOM was heard. He believed that that information might show that Craig J had relied on false evidence given by the Council witness Bargenquast. Biscoe J found the request for information constituted unacceptable " fishing ", but gave Mr Jeray a long hearing, and went through all the relevant documents in detail in his judgment. He specifically rejected Mr Jeray's allegations that the Council had removed any documents from the appropriate files or from its computer system, as there was no evidence to support those allegations. His Honour commented that, as the matter had been on foot for a long time, it should be listed for an early hearing. He gave new directions for the filing of material, requiring the applicant to file his evidence by 21 May . The hearing dates 11-15 July were set later that day. [2011] NSWLEC 54.
(11) On 6 May 2011 Mr Jeray filed a Notice of Intention to Appeal against the judgment of Biscoe J.
(12) On 3 June 2011 , Mr Jeray filed his Draft Notice of Appeal to the Court of Appeal against the judgment of Craig J (see pp 8-11 of Mr Jeray's affidavit of 20 June 2011).
(13) On 10 June 2011 Mr Jeray filed a NOM, and on 17 June 2011 , the Registrar dealt with it. It included 17 prayers for relief. She dismissed two of the prayers, namely No.2 (which sought a " no tamper or destroy " order), and No.3 (which sought production of all records relevant to prayers 5 to 9 of the NOM). The Registrar ordered that the other 15 prayers for relief be held over to the first day of the trial, to be determined by the trial judge before the substantive matter. Those 15 prayers included one seeking a " stay " of the hearing set for 11-15 July. She gave directions for the filing of material in respect of the NOM, requiring the applicant to file his evidence on the NOM by 29 June .
(14) On 20 June 2011 , Mr Jeray filed a further NOM, which sought a review of the Registrar's decision, and sought also to amend some of the prayers for relief in the 10 June NOM, and to add some new prayers for relief. Again the prayers included one seeking vacation of the 11-15 July hearing. Prayer 5 sought to amend prayer 3 of the 10 June NOM, which the Registrar had dismissed, and to thereby require discovery of all records relevant to facts in issue regarding prayers 5-9, 16, 18, and 19 of the 20 June NOM.
(15) On 30 June 2011 , I upheld the Registrar's decision, including her dismissal of the two prayers and her adjournment of the others to the trial judge. I dismissed prayer 5 for discovery, but stood the others over to 11 July (including the new prayer to vacate the hearing). Mr Jeray told the court he was about to file in the Court of Appeal a Notice of Appeal against Biscoe J's judgment of 8 April. I amended some of the Registrar's directions of 17 June, and so required the applicant to file any evidence on his NOM by 6 July . The respondent was to file evidence in reply by 8 July, and the applicant any evidence in reply to that by 11 July. [2011] NSWLEC 113.
(16) On 5 July 2011 , Mr Jeray made an application to Giles JA in the Court of Appeal for an order staying the hearing of these proceedings until the appeal from Craig J's decision had been decided. His Honour's judgment does not mention any appeal or intended appeal against Biscoe J's judgment. Giles JA could see no reason any question of contempt involving any failure by the Council to produce one email could possibly affect the course of the main hearing so as to found an order that it not proceed.
14Biscoe J's directions of 8 April 2011 in regard to the substantive proceedings now before the Court replaced those in usual form given on 18 February 2011 by Pain J, which, in turn replaced those given by Pepper J on 9 July 2010. Biscoe J's directions have not been varied in any way, and Mr Jeray has now missed three deadlines for the filing of his evidence (31 August, 8 March, and 21 May).
15Mr Jeray has filed 13 affidavits during the course of the proceedings, including one each in support of the 10 and 20 June NOMs. Those last two represent the only evidence he has filed since the directions on 8 April, and they are specific to those NOMs, not the substantive proceedings. They have been read again in the present hearing of the ANOM.
16The Council has filed three affidavits (on 19 October, 21 October, and 11 November 2010). Two of those concerned the breadth or relevance of the applicant's Notices to Produce dated 15 October 2010 and 1 November 2010, and the other, dated 19 October (by Council's Julie Bargenquast), gave evidence in response to the contempt charge, and was read by Craig J on 1 February 2011 during the hearing of that charge.
17The directions given to Mr Jeray on 17 and 30 June, regarding the filing of his evidence in support of his two NOMs stood over for hearing on 11 July, have also not been satisfied. They set deadlines of 29 June and 6 July respectively.
18The Court is, therefore, faced with the fact that Mr Jeray had filed no evidence or written submissions to support the prayers for relief in either the ANOM or the ASOC, both of which are listed for hearing this week.
19In those circumstances, Council's written submissions dated 6 July 2011 asked the Court to dismiss all aspects of the applicant's case, with costs. Council also submitted that the Court, in any event, lacks jurisdiction to grant the applicant any declaratory relief in the substantive proceedings, as the statutory provisions he invoked, now repealed, were not in those parts of the LG Act which are " planning and environmental laws ", as required by the terms of s 20 of the Land and Environment Court Act 1979 (' LEC Act' ). Council further submitted that:
(1) as no " order " is sought in the ASOC, only declarations, the Court should, in its discretion, if it believes it does have jurisdiction to entertain the matter, refuse to make such " bare " declarations, and
(2) should the applicant seek to amend to overcome some of these issues, after all this time and in the absence of any evidence having been filed, leave to amend should be declined.
20In considering those submissions I am mindful of what the Court of Appeal said on 6 July 2010, in Mr Jeray's other case against the Council, ([2010] NSWCA 367), regarding the need to find the " fine balance " in the search for procedural fairness for all parties, before summarily dismissing proceedings of this kind. In any event, Council was content for the hearing this week to deal with the ANOM first, and has not pressed before me any application for dismissal of the proceedings. However, Mr Hemmings strongly submitted that the Court should not make, on an interlocutory basis, any of the declarations or orders sought by Mr Jeray in the ANOM.