Jeray v Blue Mountains City Council

ex tempore Judgment 1In a judgment delivered on 9 August 2011, I dismissed a notice of motion that had been filed by Mr Jeray in these proceedings. As the history recited in that judgment indicates, these proceedings were commenced in 2008 and relate, in substance, to challenges brought against decisions of the Council that fall into two broad categories. 2First, the orders seek to challenge the validity of two development consents that were granted by the Council. Challenge to a third consent has recently been added to Mr Jeray's claims. 3The second category seeks to challenge the validity of decisions made by the Council in adopting a plan of management and also adopting a policy or policies concerned with the manner in which it will deal with the complaints, in particular, so it seems, complaints made to the Council by Mr Jeray. 4The notice of motion that I dismissed was a notice of motion in which Mr Jeray sought some nineteen orders. Apart from an order for discovery and some orders directed to costs in the proceedings, the notice of motion sought declaratory as well as prohibitory orders directed to the conduct of both Council employees and also the Council's retained legal practitioners in the conduct of these proceedings. 5The notice of motion having been dismissed, I indicated in my judgment of 9 August that the question of costs was reserved. I afforded the opportunity for the parties to reach agreement as to any costs order, indicating that if that agreement was not reached I would determine the question when the matter was listed before me for the conclusion of the case management hearing that I had been conducting. Case management had commenced before for me on 27 May last. 6At the conclusion of the case management hearing today, Mr Hemmings of counsel, who appears for the first respondent, sought an order for costs as did Mr Clay of counsel, who appears for the second and third respondents. That order is opposed by Mr Jeray. 7In circumstances that are not entirely dissimilar from those that pertain in the present case, I made an order for costs when dismissing a notice of motion filed by Mr Jeray in other proceedings that are presently before this Court. My judgment in relation to that matter is recorded in Jeray v Blue Mountains City Council [2011] NSWLEC 28. At paragraph [82] - [89] I set out principles that informed the exercise of the costs discretion in that matter. Those principles seem to me to have relevance to the determination of the question in the present matter. 8In determining Mr Jeray's notice of motion in the present proceedings, I dismissed it on a number of grounds. Those grounds may be identified as: (i) a failure to demonstrate that the discretion available to be exercised to make orders, at least for discovery, was appropriate to be exercised in the circumstances identified; (ii) that I lacked jurisdiction to make almost all of the orders that were sought; (iii) that the proceedings seeking both injunctive and prohibitory orders were not properly the subject of a notice of motion filed in the proceedings; and (iv) that there was not a scintilla of evidence adduced providing a foundation for the serious misconduct implicit in the orders that were sought, notwithstanding the opportunity afforded Mr Jeray to provide any such evidence. 9As I have indicated, the serious misconduct implicit in the orders sought concerned bothy employees of the Council and the legal practitioners retained by the Council for the conduct of this litigation. Clearly, if there was some evidence that warranted investigation of those matters then the result may have been different, subject to the important qualification that the jurisdiction of the Court would need to be engaged on a proper basis in order for any of those matters to be considered. 10Mr Jeray informs me that my determination of his notice of motion will be the subject of appeal to the Court of Appeal. Notwithstanding that intention, he acknowledges, I think, that I must determine the question of costs based on my determination that his notice of motion should be dismissed. 11Mr Jeray resists an order for costs essentially on the basis that he brings the proceedings in the public interests. He submits that the issues raised were novel and in these circumstances I should apply the provisions of the Land and Environment Court Rules 2007( LECR) Pt 4, r 4.2. Application of that rule affords the Court a discretion to refrain from making an order for costs where proceedings are seen to have been brought in the public interest. 12Mr Jeray also submits that the matters raised by him were of such importance that their agitation was, itself, important and that there was a public interest in knowing the consequence of his agitation of those issues. In the context of this last submission, it is important to be noticed, as was indicated to Mr Jeray, that if the matters he raised were otherwise justiciable in this or any other court then the dismissal of his notice of motion would not prevent those matters from being further agitated by him. 13Critical to the determination of costs was not only the absence of jurisdiction of this Court to entertain matters sought to be agitated, but also the appropriateness of them being raised in these proceedings, particularly having regard to the point in the proceedings at which they were raised. The context of this observation is the fact that the proceedings involve challenges to the decisions of the Council that I have earlier identified. Also relevant to that observation is the fact that these proceedings were commenced in 2008; they have once be heard before this Court; there has been an appeal to the Court of Appeal and the matter remitted to this Court for rehearing. 14I accept without qualification, that Mr Jeray does not bring these proceedings for personal gain but does so in an endeavour to correct what he regards as a wrong occasioned to him, if not to others. However, that circumstance does not, of itself, determine that these proceedings should attract the discretion afforded by LECR 4.2 to refrain from ordering the payment of costs in an unsuccessful application where nothing more than the assertion of public interest is made. 15Although Mr Jeray was afforded the opportunity to lead any evidence directed to the question of costs, no evidence was adduced by him. In particular, no evidence was adduced indicating the community that he might represent, the number of those who have an interest in his cause or his membership having an interest in matters of the kind that he seeks to agitate. Those matters are important, although not decisive, when determining the question of costs by reference to the rule I have identified. The matters to which I have made reference are consistent with the considerations identified by the Chief Judge in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources [2010] NSWLEC 59; (2010) 173 LGERA 280, his Honour's seminal decision addressing the entitlement to have the public interest discretion exercised. 16It seems to me that this is a matter in which costs should follow the event. The matters raised were discrete in that they did not impinge upon or were not directed to the advancement of claims made in the principal proceedings. They did raise matters that were novel, but only in the sense that they did not bear directly upon the issues that required determination in those proceedings. For all these reasons, I have determined that an order for costs should be made. 17Before I come to make the orders I should add this. A matter that has exercised my mind is whether the second and third respondents should have the benefit of an order, given that the matters agitated in the course of Mr Jeray's notice of motion did not appear to impinge directly upon the claim made against those respondents. The claim against them had proceeded under the rubric of the "development matters". 18However, there are three matters that need to be noticed in that regard. First, the notice of motion that I determined was, by the orders sought, directed to the entirety of the proceedings. Second, had Mr Jeray been successful, his notice of motion would have caused the entire proceedings to be "restarted" (to use the word that Mr Jeray used). That would have had a direct effect upon the claims being advanced in respect of the development matters. 19The third matter to be noticed arises from the concession that Mr Jeray himself made at the outset of his submissions. He said that the conduct that was the subject of most of the orders that he sought affected the "entire case" and was not limited to the prosecution of his claim dealing with communication matters. That being so, it was clearly appropriate for the second and third respondents to be represented in order to resist the challenge to the development consents that they hold being further delayed. It follows that an order for costs in their favour is appropriate.