Jeray v Blue Mountains City Council

Background 6Mr Jeray commenced these proceedings on 30 September 2008. He sought declarations that the Council had breached nominated provisions of the Local Government Act 1993, the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000. These breaches essentially arose by reason of four decisions of the Council that Mr Jeray seeks to impugn. Following some nine separate interlocutory applications made by Mr Jeray, the proceedings were listed for final hearing before Lloyd J in July 2009. 7On 16 July 2009, that being the fourth day of hearing, his Honour dismissed the proceedings with costs. An appeal by Mr Jeray to the Court of Appeal was upheld on 10 December 2010 ( Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367). The matter was remitted to this Court for rehearing. It is the endeavour to have the matter fixed for rehearing that gives rise to the present controversy. 8The remitted proceeding was first listed before Pepper J, as list judge, on 11 February 2011. Mr Jeray appeared at that time, as did the legal representatives of the respondents. Her Honour made orders and gave directions for the further conduct of the matter. They included a direction that Mr Jeray identify to the respondents, from the large number of documents that he had hitherto filed in the proceedings, those particular pleadings, documents and affidavits upon which he proposed to rely. He was required to do this by 25 March 2011. Her Honour also directed that the matter be listed for case management before the judge of the Court allocated to hear the matter. A case management hearing was fixed for 29 April 2011. 9The orders made by Pepper J were not observed by Mr Jeray. He requested that the matter be relisted in accordance with the general directions of the Court that any material slippage in a time table be notified to the Court. In response to his request, the proceedings came before Biscoe J on 15 April. Mr Jeray appeared on that occasion as did a legal representative of the respondents. His Honour vacated the case management hearing fixed for 29 April. He made the following orders and direction: "1. That on or before 4.30pm on 13 May 2011 the Applicant inform the Respondents:- (a) which of the declarations, orders and points of claim in the document styled Development Matters - Filed 7 July 2009 Replacement Declaration Additional Points of Claim Replacement Index to the Bundle of Documents filed 7 July 2009 he proposes to rely ; (b) which of the points of claim in the document styled Amended Declaration, Order and Points of Claim Development Matters dated 3 April 2009 he proposes to rely; (c) which of the declarations, orders and points of claim in the document styled Amended Declaration, Order and Points of Claim Communications Plan of Management, Policy and Form Matters dated 3 April 2009 he proposes to rely; (c1) in the alternative to a. - c. the Applicant is to file and serve any proposed amended points of claim, orders and declarations; (d) which Affidavits (including paragraphs if part) the Applicant proposes to rely in each of the Development Matters and Communication Matters; (e) which of the documents identified in the Index of Documents the Applicant proposes to rely in each of the Development Matters and Communication Matters. 2. The matter be listed for case management before the judge of the Court hearing the matter if possible. The Court directs:- 3. The parties to approach the Registrar forthwith to obtain a date for case management on 26 or 27 May 2011 if possible with an estimate of half a day." 10It is not suggested that either on 15 April or at the time at which the matter was before Pepper J in February last, an application by motion seeking orders of the kind presently being considered was foreshadowed by Mr Jeray. 11The case management hearing directed by Biscoe J was fixed for 27 May. It was then that this matter first came before me. At the commencement of the hearing, Mr Jeray requested that I recuse myself from hearing the matter. That request has been repeated on each subsequent occasion upon which the matter has been before me, namely on 1 July and again on 1 August. On each occasion, Mr Jeray stated that his application was made on the same basis as that which had founded a similar application made to me in other proceedings in which he is also an applicant seeking orders against the Council. 12In short, he indicated that I should recuse myself because counsel appearing for each of the respondents in the present proceedings were members of the same barristers' chambers as those of which I had been a member prior to my appointment to this Court in March 2010. On each occasion I refused Mr Jeray's request and stated that I did so for the same reasons as I had expressed when giving judgment in the other proceedings ( Jeray v Blue Mountains City Council [2011] NSWLEC 28 at [57] - [73]). 13In response to my enquiry of him, Mr Jeray acknowledged that he had not complied with the requirements of Order 1 made by Biscoe J on 15 April. When asked by me to address the matters that were the subject of that Order, he stated that "under the pressure" of my request for a response, he would nominate all of the documents identified in paragraphs (a), (b) (c) and (e) of that Order as being the matters upon which he relied. He also indicated that he would seek to rely upon all of the affidavits that he had filed in the proceedings in response to the requirement of paragraph (d) of Order 1. 14However, Mr Jeray pressed upon me that I should not address the matters arising from the orders of Pepper J and Biscoe J, but rather should attend to a notice of motion dated 25 May 2011 that he then sought to file in Court. It sought some 19 orders, the majority of which are similar to the orders sought in the Amended Notice of Motion. Mr Jeray requested that his notice of motion of 25 May be determined before he was required to address compliance with the earlier orders and before being required to address preparation of the substantive proceedings for hearing. The fixing of a hearing date was opposed. He stated that if the orders sought by him were made then, so significant was their impact upon the hearing of the matter, it would be premature to fix a date for hearing of the substantive proceedings. He sought only that his notice of motion be heard, including a direction for the filing of evidence in support of or in opposition to that motion. 15Mr Jeray's notice of motion dated 25 May had apparently been provided to the respondents only shortly prior to the commencement of the hearing on the morning of 27 May. Apart from one matter raised by that notice of motion, the respondents indicated that they opposed the making of any of the orders sought. In addition to identifying particular grounds of opposition that they were able to formulate in the time available to them, the respondents submitted that if Mr Jeray wished to agitate the kind of substantive matters identified in his notice of motion then that should be done, if otherwise justiciable in this Court, in separate proceedings. The latter submission needs to be given a context. 16As I understand the case sought to be made by Mr Jeray in the substantive proceedings, as ultimately framed before Lloyd J and remitted to this Court for rehearing by the Court of Appeal, there are four primary decisions of the Council that he seeks to challenge. Two of these relate to development consents that had been granted by the Council. These are the challenges identified in the orders of Biscoe J as the "Development Matters". Challenge is also made to the adoption by the Council of a Communications Plan of Management ( the Plan of Management ) and also its adoption of a Policy for the Management of Unreasonable Complainant Conduct ( the Policy ). These latter two challenges are referred to in the orders made by Biscoe J as the "Communication Matters". Other orders that he sought were consequential upon the success of these primary challenges. 17I was informed by Mr Hemmings who appeared for the Council that one of the two development consents under challenge had, since the hearing before Lloyd J, been modified by the Council. That was a consent referred to by Mr Jeray in his notice of motion dated 25 May as "file no. 549/2010". Mr Hemmings indicated that the Council did not oppose Mr Jeray having access to that file and, as a consequence, seeking to make any relevant amendment or addition to his present pleading. Mr Hemmings also indicated that each of the Plan of Management and Policy being challenged had been further considered by the Council and that the files pertaining to that further consideration would be made available to Mr Jeray for his further consideration. 18At that time, I indicated a tentative view to Mr Jeray that his notice of motion seemed inappropriate to be filed in the present proceedings, particularly having regard to the history of the matter. I also indicated that if he wished to make the claims identified in his notice of motion and if those claims were otherwise justiciable in this Court, it seemed more appropriate that they be the subject of separate proceedings. As these proceedings had already once been set down for hearing and determined, an appeal upheld from that determination and remitted to this Court for rehearing, I considered that an application having the effect of reconstituting the proceedings in a way that did not bear directly upon the decisions sought to be impugned should not now be contemplated. The making of orders of the kind sought by Mr Jeray not only seemed inconsistent with the rehearing of remitted proceedings but also inconsistent with Order 3 of the remitter from the Court of Appeal. Implicit in Order 3, that it would be a matter for this Court "to determine how to use the material already read before the Court", is that the course of evidence in the proceedings had already been set and, so far as possible, attention should be given by this Court to utilising that evidence upon the rehearing of the matter. 19Ultimately, I did not determine Mr Jeray's notice of motion dated 25 May. Rather, I stood over that notice of motion and the case management hearing to Friday 1 July. I gave directions for production of the further files that had been identified by Mr Hemmings and also directed Mr Jeray to file and serve any further amended points of claim upon which he sought to rely by 24 June. I also directed that if he intended to commence proceedings in this Court founded upon matters identified in his notice of motion, then such proceedings be commenced by 24 June. 20When the matter came before me on 1 July, Mr Jeray sought leave to rely upon further points of claim in which he sought to include in the substantive proceedings, a challenge to the modified development consent that had been granted by the Council in 2010. The respondents did not object to that claim being added to the substantive proceedings. 21Mr Jeray further indicated that he now proposed to seek orders in accordance with the Amended Notice of Motion, a copy of which had been served upon the respondents earlier that day. During the course of argument, I indicated to Mr Jeray that his notice of motion, if pressed, would need to be supported by some evidence, particularly in light of the serious allegations implicit in the orders that he sought, against both employees of the Council and the legal practitioners retained by it. To that point in time the only affidavit that had been filed by Mr Jeray, relevant to the notice of motion, was an affidavit sworn by him on 25 May 2011 which, apart from deposing to his lack of legal qualification, his inability to afford legal assistance, his interest in environmental matters and the fact that the present proceedings were brought "without any financial gain and at personal expense", he deposed to a conversation had with the solicitor acting for the Council to the effect that two persons whose conduct was the subject of orders sought in the Amended Notice of Motion were providing instructions to the solicitors acting for the Council in these proceedings. 22So as to afford Mr Jeray an opportunity to consider the filing of any further evidence upon which he might wish to rely, I adjourned the hearing of the Amended Notice of Motion and directed that he file and serve any further affidavit evidence upon which he proposed to rely in support of that notice of motion by 15 July 2011. No further affidavit has been filed.

The Amended Notice of Motion 23Although I have earlier summarised the effect of the principal orders sought in the Amended Notice of Motion, by reason of the submissions of the parties, it is necessary to quote the orders that Mr Jeray seeks. They are - "1. Prior to the remainder of this notice of motion 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 B. 2. Prior to the remainder of this notice of motion being heard, the applicant and the first respondent are to file and serve their affidavits and any other evidence in chief, in defence and in reply for this notice of motion. 3. 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. 2008/40986. In particular, the (past and present) General Managers of Blue Mountains City Council, (Mr Phil Pinyon and) Mr Robert Greenwood, delegating and permitting the delegation to continue without Council meeting approval, the Council's Executive/Public Officer, Ms Julie Bargenquast (and Ms Jasmine Cooper), to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives when (Mr Pinyon,) Mr Greenwood, Ms Bargenquast and Ms Jasmine Cooper are directly implicated in case no. 2008/40986. Further that Ms Bargenquast and Ms Cooper accepted and continued without question or complaint to appoint, instruct, seek and utilise legal advice and provide Council records to the Council's legal representatives in defiance of their conflicts of interest and/or reasonable apprehension of bias in case no. 2008/40986. In addition, Mr Greenwood deciding on the Council's behalf not to accept and failing to report Mr Ivan Jeray's offer of settlement in case no. 2008/40986 to Blue Mountains City Council for its consideration at the meetings of 5 and 19 April 2011 and 10 May 2011 when Mr Greenwood is directly implicated in case no. 2008/40986 and four conditions of Mr Jeray's offer of settlement require decisions by the Council in meeting. 4. A declaration that the past and present General Managers of Blue Mountains City Council, Mr. Phil Pinyon and Mr Robert Greenwood, have breached section 335 of the Local Govt. Act 1993 by permitting conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2008/40986, which have significantly and adversely affected the efficient and effective operation of the Council's organisation as a result of the judgment of this notice of motion. 5. A declaration that Blue Mountains City Council has breached section 23A of the Local Govt. Act 1993 by permitting conflicts of interest and/or reasonable apprehensions of bias to occur and continue in case no. 2008/40986 in defiance of the relevant guidelines issued by the Dept. of Local Government. 6. 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. 2008/40986 in defiance of the relevant guidelines issued by the NSW Ombudsman. 7. 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. 2008/40986. 8. All legal instructions and submissions, including orders and declarations sought, by and/or on behalf of Blue Mountains City Council in case no. 2008/40986 to the date of the judgement of this notice of motion are declared null and void. 9. A declaration that all the first respondent's legal representatives have committed professional misconduct by not advising the first respondent to remove the conflicts of interest and/or reasonable apprehensions of bias and/or withdrawing from case no. 2008/40986 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 first respondent's legal representatives have not acted as model legal representatives and undermined the proper administration of justice in case no. 2008/40986. 10. The professional misconduct of the first respondent's legal representatives will be reported to the NSW Legal Services Commissioner, the NSW Bar Association and the NSW Law Society. 11. That due to their professional misconduct, the first respondent's legal representatives must not take any further part in case no. 2008/40986. 12. Blue Mountains City Council must not permit any further conflicts of interest and/or reasonable apprehensions of bias to occur in case no. 2008/40986. In particular, Mr Philip Pinyon, Mr Robert Greenwood, Ms Julie Bargenquast and Ms Jasmine Cooper must not interfere in any way and remain properly separated at all times from case no. 2008/40986. 13. Blue Mountains City Council must properly inform the applicant in writing how the Council will carry out order no. 13 above including the ongoing disclosure of the full details of any breach of the order that occurs. 14. 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 and inform Wagga Wagga City Council of the judgement. 15. Blue Mountains City Council must report Mr Ivan Jeray's offer of settlement in case no. 2008/40986 to a council meeting for its consideration and provide members of the public, including Mr Jeray with an opportunity to address the Council on that item of council business. 16. Case no. 2008/40986 is to recommence but not proceed any further until the judgement for this notice of motion has been given and order nos. 13, 14 and 15 above have been properly carried out. 17. The first respondent must pay all its own costs from the commencement of case no. 2008/40986 to the date of judgment of this notice of motion, including all the first respondent's costs of this Notice of Motion. 18. The first respondent must pay all the applicant's costs from the commencement of case no. 2008/40986 to the date of judgment of this Notice of Motion, including all the applicant's costs of this Notice of Motion. 19. The applicant is not liable for all the second and third respondents' costs from the commencement of case no. 2008/40986 to the date of judgment of this Notice of Motion, including all their costs of this Notice of Motion." 24Appendix B to the notice of motion identifying the "facts in issue" are important to be noticed. These are the asserted facts by which Mr Jeray seeks to sustain an order for discovery. That Appendix is in the following terms - "Appendix B

1. The past and present General Managers of Blue Mountains City Council, Mr Phil Pinyon and Mr Robert Greenwood, delegating and permitting the delegation to continue without Council meeting approval, the Council's Executive/Public Officer, Ms Julie Bargenquast and Ms Jasmine Cooper, to appoint, instruct, seek and utilise legal advice and access and provide Council records to the Council's legal representatives when Mr Pinyon, Mr Greenwood, Ms Bargenquast and Ms Cooper are directly implicated in case no. 2008/40986.
2. Ms Bargenquast and Ms Cooper accepted and continued without question or complaint to appoint, instruct, seek and utilise legal advice and provide Council records to the Council's legal representatives in defiance of their conflicts of interest and/or reasonable apprehension of bias in case no. 2008/40986.
3. Mr Greenwood deciding on the Council's behalf not to accept and failing to report Mr. Ivan Jeray's offer of settlement in case no. 2008/40986 to Blue Mountains City Council for its consideration at the meetings of 5 and 19 April 2011 and 10 May 2011 when Mr Greenwood is directly implicated in case no. 2008/40986 and four conditions of Mr. Jeray's offer of settlement require decisions by the Council in meeting.
4. All the first respondent's legal representatives have committed professional misconduct by not advising the first respondent to remove the conflicts of interest and/or reasonable apprehensions of bias and/or withdrawing from case no. 2008/40986 when the conflicts of interest and/or reasonable apprehensions of bias continued throughout the case to the date of the judgment of this notice of motion.
5. The period of the facts in issue commences from the start of case no. 2008/40986 until the judgment date of this notice of motion."

The evidence 25It was admitted by the Council that Ms Bargenquast, as the Council's public officer (cf. s 343 Local Government Act ) was the staff member of the Council responsible for collating and providing evidence to the Council's solicitors who were conducting these proceedings on behalf of the Council. Evidence tendered by Mr Jeray comprised: (i) correspondence with the Council's solicitors concerning his offer to settle these proceedings; (ii) a copy of the "Model Litigant Policy for Civil Litigation" said to have been published on the Attorney General's website; (iii) a series of "Public Sector Agencies" fact sheets published by the New South Wales Ombudsman, addressing the topics of bad faith, bias and breach of duty by public officials; the provision of procedural fairness by public officials; the need for public sector officials to advise private sector lawyers retained on behalf of a public sector agency that the agency must act as a model litigant in the public interest and the fact sheet indicating that public officials must act transparently and be circumspect in withholding information from the public whom they serve; (iv) a circular dated 3 October 2008 from the Director General of the Department of Local Government, providing updated guidelines for the model code of conduct under s 444 of the Local Government Act , and relating to the material in that code concerning conflicts of interest.

Discovery 26Mr Jeray invokes the provisions of Uniform Civil Procedure Rule ( UCPR ) 21.2 as the basis of his application for discovery. He acknowledges that the purpose of the order that he seeks is to provide evidence necessary to sustain the making of the substantive orders that he otherwise seeks in his Amended Notice of Motion. 27UCPR 21.2 relevantly provides as follows - " 21.2 (1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. (3) Subject to subrule (2), a class of documents may be specified: (a) by relevance to one or more facts in issue, or ... (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue." 28There are two matters of present relevance to be noticed from these provisions. First, the making of a discovery order is discretionary, albeit a discretion that is to be exercised having regard to the purpose to be served by the making of such an order. Second, an order is not to be made unless the document or documents sought is "relevant to a fact in issue". 29While the expression "relevant to a fact in issue" is defined by UCPR 21.1(2), that subclause does not identify the "fact in issue" to which a document or matter relates. In the context of a rule that has the purpose of facilitating the provision of evidence relevant to the determination of an issue or issues in the proceedings, the identification of those issues is ordinarily to be undertaken by reference to the pleadings filed by the parties ( Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345). In this matter, the "pleadings" take the form of the points of claim and points of defence that have been filed by the parties. The identification of the issue or issues to which a fact might be relevant requires focus upon those issues that have been joined in the substantive proceedings: not upon issues created by orders sought in a notice of motion in which those orders, if made, do not bear upon issues so joined. 30Mr Jeray seeks to justify the making of the orders sought by identifying where, in his points of claim directed to the Communications Matters, reference is made to the actions of the Council employees whose conduct he now seeks to make the subject of orders in the Amended Notice of Motion. However, those references in his points of claim identify the nominated employees as persons who gave effect either to the Plan of Management or the Policy that are the subject of his substantive proceedings. 31It is the decision by the Council to make and adopt the impugned Plan of Management and Policy that is in issue between the parties. Documents relevant to those decisions could, provided the requirements of UCPR 21.2 were otherwise met, be the subject of a discovery order. Documents of that class are not the subject of Mr Jeray's Amended Notice of Motion. 32The documents identified by reference to paragraphs 1 and 2 of Appendix B to the Amended Notice of Motion are directed to the actions of the nominated employees of the Council in providing evidence and conveying instructions for the conduct of this litigation by the Council's legal representatives. Documents pertaining to those actions are not relevant to any issue of fact alleged or joined in the substantive proceedings. 33The difficulty that Mr Jeray's motion faces in addressing the requirements of UCPR 21.2 in this regard is exemplified by (but not confined to) paragraph 5 of Appendix B. The basis upon which the proceedings were commenced in 2008 is that prior to their commencement the Council had made decisions or taken action that is said to be contrary to law. Documents directed to the conduct of the kind alleged in Appendix B, confined by paragraph 5 to conduct undertaken after the proceedings were commenced, cannot be relevant to any fact or matter upon which issue has been joined. Joinder of issue occurred upon each of the respondents filing their points of defence in May 2009, following the grant of leave to Mr Jeray to rely upon Amended Points of Claim that were filed in Court on 3 April 2009. 34In addressing paragraphs 1 and 2 of Appendix B, I do not overlook the admission made on behalf of the Council as to the involvement of Ms Bargenquast in collating material, and providing evidence to the Council's legal representatives to enable them to conduct these proceedings on the Council's behalf. Nor do I overlook the documents tendered by Mr Jeray as I have earlier described them. However, the admission made and these further materials do not, to my mind, assist Mr Jeray in sustaining his Amended Notice of Motion. 35The statutory functions of the public officer of a council include dealing with requests from the public concerning the council's affairs, representing the council in any legal proceedings and performing such other functions as are "conferred or imposed" by the general manager: s343(1) Local Government Act . In this context, the admission that Ms Bargenquast, in her capacity as public officer, was performing the task of collating and providing evidence to the Council's solicitors for the conduct of this litigation, even if a potential witness in the substantive proceedings, does not self-evidently identify justiciable bias or conflict of interest either on the part of the Council or on her part. It is for the Council's legal representatives to determine, as a result of the advice they give to the Council, the appropriateness of evidence provided and the personnel appropriate to provide that evidence. It is also for the Council's legal advisors to determine the manner in which they use the material provided to them in the proceedings, consistent with their obligations as legal practitioners conducting this litigation on the Council's behalf. 36Nothing in the documents tendered by Mr Jeray alters this position. He did not identify how the material tendered demonstrated that, in acting in the manner admitted by the Council or described by him, either the nominated employees or the Council itself was potentially acting in breach of any obligation imposed upon either of them by law. 37Although a Council is required by s 440(3) of the Local Government Act to adopt a code of conduct that is consistent with the model code prescribed by regulation, s 440(8) expressly provides that nothing in a code of conduct "gives rise to, or can be taken into account, in any civil cause of action." Even if a breach of that part of the code that was the subject of the Director General's update was demonstrated (and it was not), it would not avail Mr Jeray's argument. 38No doubt the advice of the Ombudsman, reflected in the tendered "fact sheets" for Public Sector Agencies, identifies the manner in which such agencies are expected to conduct themselves in the public interest. However, it was not demonstrated that these documents, by their own force, imposed legal obligations upon such Agencies or their employees. 39Likewise, it can be accepted that instrumentalities of the State, as well as councils constituted under the Local Government Act , should act as model litigants ( Scott v Handley [1999] FCA 404 at [43] - [44]; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 per Mahoney JA (at 558 - 559). Without itself having legal force, that is the expectation expressed in the Attorney General's Model Litigant Policy. Once again it was not demonstrated how that policy was being breached by the Council or members of its staff. Nothing in the Attorney's Policy proscribes the actions of a State agency or local council "from acting firmly and properly to protect its interests". In terms, that Policy does not "prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made" (paragraph 3.3). 40Paragraph 3 of Appendix B, seeking to identify a class or description of document that is to be the subject of a discovery order, suffers a similar difficulty. Documents relevant to the manner in which Mr Jeray's offer of settlement of these proceedings has been dealt with by the Council or its employees have no relevance to issues to be determined in the substantive proceedings. Even if it be argued that they are directed to the credit of the named employees, the making of an order on that basis cannot be sustained. Documents that bear only upon the credibility of a witness are excluded from an order for discovery: UCPR 21.1(2). 41As I sought to explain to Mr Jeray, if the Council has unreasonably refused his offer of settlement, whether by deliberate decision or failure to provide a response to his offer, such action can only be relevant to costs, once the outcome of his substantive proceedings has been determined. There is no power of which I have been made aware that would enable this Court, by order, to compel the Council's general manager to submit Mr Jeray's offer of settlement to a meeting of councillors. 42The major premise of paragraph 4 in Appendix B is that the Council's legal representatives are guilty of professional misconduct by failing to give the advice there identified, being advice to be given pertaining to the conduct of this litigation. Documents relevant to facts said to support that premise could not "rationally affect the probability of the existence of [a] fact" relevant to the decisions sought to be impugned in the substantive proceedings (cf. UCPR 21.1(2)). 43It follows from this analysis of each paragraph of Appendix B to Mr Jeray's Amended Notice of Motion that the order for discovery should be refused. That refusal is required by UCPR 21.2(4) because there can be no document sought to be produced that is relevant to a fact in issue in the substantive proceedings. Appendix B to the Amended Notice of Motion does not identify any such fact or facts. 44Even if I have confined too narrowly my consideration of "facts in issue", there are further considerations that weigh against the making of the orders that Mr Jeray seeks. While an order for discovery is appropriately sought by notice of motion, the declaratory and prohibitory orders sought by Mr Jeray are not appropriate to be made utilising that procedure. Interlocutory applications are made by notice of motion (UCPR 18.1). Such applications are ordinarily confined to procedural applications or applications seeking orders intended to have only interim operation, such as an interlocutory injunction. The use of such a procedure is inappropriate to the making of declaratory orders or making final orders of a prohibitory nature. The orders sought by Mr Jeray are neither procedural nor interlocutory. 45The principles that inform the making of interlocutory applications by motion and their relationship to proceeding for principal relief are, with respect, usefully summarised by Campbell J (as his Honour then was) in Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818; (2004) 50 ACSR 565. As his Honour observed at [64], relief sought in such an application must serve the purpose "of advancing claims which either a plaintiff or a defendant makes in the principal proceedings." His Honour continued at [72]: "72 I should also say that whether the relief which is sought on an interlocutory application is for the purpose of advancing claims which either a plaintiff or defendant makes in the principal proceedings is not a matter of the subjective motivation of the person who brings the application. Rather, the application must be one of a kind which can be seen objectively to be of a type which advances those claims. If A brings an action for damages against B, it might be subjectively very useful for A, in deciding what steps to take concerning that action, to have a court determine that B is covered by a valid policy of insurance for the type of claim which A brings, but an application for a declaration to that effect could (apart from any other problems it has) not be brought by notice of motion in the action between A and B." 46Other examples were given by his Honour where courts have declined to entertain matters of a substantive nature by way of notice of motion. In Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, Handley JA indicated that the jurisdiction of a court to set aside a consent order, on the same grounds as an agreement to compromise proceedings can be set aside, was not a jurisdiction that could be invoked by notice of motion in the original proceedings. Such a claim was required to be the subject of new and separate proceedings. In Johnston v Australia and New Zealand Banking Group Ltd; Johnston v Richardson [2003] NSWSC 454 at [57], Davies AJ required an application to have a person declared a vexatious litigant to be brought in separate proceedings rather than by way of notice of motion in the original proceedings. These cases provide examples that are apposite to the present application. 47Viewed objectively, the application that Mr Jeray makes in the Amended Notice of Motion is not one that advances the claims made in the principal proceedings as to the validity of decisions of the Council either in granting the development consents sought to be impugned or adopting the Plan of Management or Policy that are the subject of challenge. A determination that the general manager or other nominated Council employee has, since the proceedings commenced, acted in breach of the Local Government Act in the manner claimed exemplifies this proposition. 48The next matter to be noticed, supporting refusal of the orders sought in the Amended Notice of Motion, is the agitation of matters by Mr Jeray that do not engage the Court's power or jurisdiction. Being a statutory Court of limited jurisdiction, it has no power to control, by order, the manner in which the Council through its staff provides instructions to legal advisors in conducting litigation on its behalf. Further, it has no jurisdiction to determine that instructions given by the Council to its legal advisors are "null and void" (cf. paragraph 8 of the orders sought). 49Further, the jurisdiction of this Court does not extend to determining, by order, that legal practitioners are guilty of professional misconduct and thereby disentitled from continuing to act in proceedings. 50These latter matters are principal examples of orders sought in the notice of motion that do not engage the power of this Court to act. As well as being of general relevance to the exercise of discretion to entertain the Amended Notice of Motion, they are particularly relevant to the exercise of discretion to order discovery. The requirement that a document the subject of such an order be relevant to a fact in issue must be qualified by a requirement that the issue to which the fact be relevant is a justiciable issue in the proceedings. 51For the reasons that I have given, these latter matters do not give rise to a justiciable issue. To allow matters of this kind to be agitated in these proceedings when the Court has no jurisdiction to make the orders sought would be tantamount to encouraging an abuse of process.

Discretion 52I have already adverted to the fact that the power to make an order for discovery is discretionary. Apart from the provisions of Pt 21 of the UCPR, the considerations identified in Div 1 of Pt 6 of the Civil Procedure Act must be addressed. By subsection (1) of s 56, the overriding purpose of the Act and rules as applied to a civil proceeding, such as the present, is to "facilitate the just, quick and cheap resolution of the real issues" in those proceedings. The Court is required to give effect to this overriding purpose when exercising a power such as that presently under consideration ( Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175). 53Section 58 of the Civil Procedure Act requires that in deciding whether to make an order of a procedural nature the Court "must seek to act in accordance with the dictates of justice." When determining the content of "the dictates of justice" in a particular case, one of the matters required to be considered by subsection (2)(b)(ii) is - "the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities". 54Section 59 of the Civil Procedure Act requires that the practice and procedure of the Court be implemented so as to eliminate the lapse of time between commencement of the proceedings and their final determination, subject to allowing such reasonable time as is required for "interlocutory activities" necessary for the just determination of the proceedings. Section 60 is directed to ensuring that when implementing the practice and procedure of the Court, the costs of so doing should be proportionate to "the importance and complexity of the subject-matter in dispute." The subject matter in dispute in the present case is no doubt important but it is not complex. 55The impact of these provisions upon the discretionary power that I am called upon to exercise is significant. In exercising that power I do not overlook the necessity to act in accordance with the dictates of justice but that requirement involves a consideration of the interests of all parties in providing "a fair hearing and equal justice" (cf Jeray v Blue Mountains City Council ( No 2) [2010] NSWCA 367 at [12]). 56Given that - (i) these proceedings were commenced in 2008; (ii) they were instituted to challenge the validity of two development consents and decisions by the Council to adopt a Plan of Management and Policy; (iii) the proceedings have once before been set down for hearing of the substantive issues, a hearing that proceeded over 4 days; (iv) a considerable volume of evidence has already been filed, said to be relevant to the decisions sought to be impugned; (v) following a successful appeal, the matter was remitted to this Court for rehearing in December 2010; (vi) orders made by judges of this Court both in February and April of this year have still not been addressed satisfactorily by Mr Jeray; (vii) matters of the kind ultimately identified in the Amended Notice of Motion were first sought to be raised by Mr Jeray when the matter came before me for case management only on 27 May last; (viii) those matters do not bear directly upon the determination of the validity of the decisions that are challenged in the substantive proceedings; and (ix) exploration of the matters raised in the Amended Notice of Motion will further delay the final determination of the real issues in the proceedings, it seems to me that the appropriate course is to dismiss the Amended Notice of Motion. Agitation of matters raised by that motion would not, on my assessment, facilitate the just, quick and cheap resolution of the real issues in dispute in these proceedings. 57I note that my conclusion in this regard accords with the conclusion reached by Sheahan J when his Honour determined a similar motion by Mr Jeray in other proceedings brought by him against the Council ( Jeray v Blue Mountains City Council (No 9) [2011] NSWLEC 123). While the facts informing the exercise of discretion in that case differed from those in the present case, the application of principle yielding a similar result does not differ between us. 58There is one further matter to which I should advert in addressing the question of discretion. This Court's Practice Note pertaining to proceedings in Class 4 of the Court's jurisdiction, being the class into which the present proceeding falls, states that orders for formal discovery will only be made "in exceptional cases". The Practice Note was made by the Chief Judge on 30 April 2007. Mr Jeray submitted that the Practice Note was invalid. 59As will be apparent, I have reached my conclusion independently of the Practice Note and therefore it becomes unnecessary to deal with Mr Jeray's arguments as to its invalidity. However, as will also be apparent, given the provisions of the Civil Procedure Act to which I have referred, the time that has elapsed and events that have occurred since the proceedings were commenced, it would require exceptional circumstances to be demonstrated to justify the making of a discovery order at this time. An exceptional case has not been made out for so doing. 60For all these reasons I propose to dismiss Mr Jeray's Amended Notice of motion. The dismissal of that motion does not diminish his capacity to challenge the validity of the Council decisions that the institution of his proceedings intended to address. However, the dismissal of the motion, coupled with appropriate case management directions, should ensure that his challenges are determined in a timely manner.

Further conduct of the proceedings 61Since February last, this Court has made orders and given directions in an attempt to have the rehearing of the matter undertaken. Case management has been commenced but not concluded. The process ought to be concluded promptly and a hearing date fixed. 62With this in mind, I propose to fix a date in the near future upon which to conclude the case management hearing. At its conclusion, hearing dates will be allocated for final determination of those issues that caused Mr Jeray to commence his proceedings in 2008.

Costs 63At the conclusion of the argument of the Amended Notice of Motion, I indicated that I would reserve the question of costs. If there is no agreement as to costs in respect of the Amended Notice of Motion, that question may be argued on the date fixed for the resumption of the case management hearing.

Orders 64The orders that I make are -

1. The applicant's Amended Notice of Motion dated 1 July 2011 is dismissed.
2. Costs reserved.
3. Case management of the proceedings is stood over to a date to be agreed among the parties or otherwise determined by the Court and to be fixed immediately following delivery of this judgment.
4. Exhibits may be returned.

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: 09 August 2011