Jeray v Blue Mountains City Council

Judgment 1By his amended statement of claim, the applicant, Mr Ivan Jeray, seeks seven declarations to the effect that the respondent, Blue Mountains City Council, has breached a number of provisions of the Local Government Act 1993 by failing to provide access to documents which he claims an entitlement to inspect. The relief that he seeks is also directed to establishing breach on the part of the Council of provisions of the Local Government Act having regard to the manner in which it keeps and maintains its records. 2The matter presently before the Court is an amended notice of motion by the applicant, filed and served on 25 March 2011. He moves for orders that: (a)the orders made by Craig J on 4 March 2011 be set aside; (b)before that motion is heard, the Council provide him with certain information said to be relevant to the first order; and (c)the Council also provide him with other information said to be relevant to the proceedings. 3On 4 March 2011 Craig J determined Mr Jeray's motion that the Council be found guilty of contempt of court for failure to produce an email of 8 June 2010 from the Council's General Manager, Mr Greenwood, to the Council's Executive Officer, Ms Bargenquast, in response to a notice to produce issued by him on 16 September 2010. His Honour acquitted the Council of the charges; dismissed the notice of motion; and ordered Mr Jeray to pay the Council's costs insofar as the motion charged the Council with contempt: Jeray v Blue Mountains City Council [2011] NSWLEC 28. His Honour said at [5]: 5 As will appear, the contempt ultimately alleged by Mr Jeray is the failure by the Council to produce, in response to a notice to produce issued by him on 16 September 2010, an email dated 8 June 2010 from the Council's General Manager, Mr Greenwood, to the Council's Executive Officer, Ms Julie Bargenquast ( the 8 June email). That email attached a complaint from Mr Jeray dated 7 June 2010 which was, in turn, forwarded to the Council by way of email. A copy of the 8 June email was not produced to Mr Jeray until 3 February 2011, that is, during the hearing of the contempt motion. and at [52] - [54]: 52 The evidence given by Ms Bargenquast was clear. When called upon to respond to Mr Jeray's notice to produce on behalf of the Council, her source of reference was the Serious and Substantial Complaints File into which, so she understood, all documents relevant to enquiries seeking to respond to Mr Jeray's complaint had been placed. She also searched the Council electronic records management system for documents related to matters of that kind. The 8 June email was recorded in neither the file nor on that database. Moreover, the request from Mr Greenwood that she deal with the complaint was seen by her to be a work direction to commence the process rather than a document which, in itself, was part of that process. 53 As I have also recorded earlier, Ms Bargenquast did not recollect that she had received the 8 June email from Mr Greenwood. It was only in response to the request made by Mr Jeray following her cross-examination on 1 February that she had searched the email archives system enabling her to identify the document. 54 I am satisfied that Ms Bargenquast did use her best endeavours to locate the documents believed to be responsive to Mr Jeray's notice to produce. The failure to identify the 8 June email was clearly an oversight. Other than to record the fact that the initial step was taken by the General Manager on 8 June by referring the matter to Ms Bargenquast, the document does not otherwise provide any substantive information directed to the enquiries made into Mr Jeray's complaint. It is understandable that the email was not seen to be a record of enquiries made into his complaint. 4At the trial before Craig J, Mr Jeray cross-examined Ms Bargenquast on the email of 8 June 2010. 5Mr Jeray says that he wishes to see information referred to in his amended notice of motion in order to know whether the evidence given by Ms Bargenquast referred to at [52] and [53] of that judgment was false. Mr Jeray contends that if he can demonstrate that Ms Bargenquast's evidence was false, the falsity of that evidence constitutes a ground for setting aside Craig J's orders. Conversely, he says that if the documents are produced and satisfy him that the evidence was not false, he may withdraw his application to set aside those orders. He refers to publications of the NSW Ombudsman concerning transparency and accountability in government and the public sector and access to information. 6Three observations may be made at this point. First, the attempt to obtain additional information relating to the contempt proceedings is in my view a legally impermissible fishing expedition, with the object of seeing if it provides a reason for setting aside the orders. Secondly, it is a general principle that parties cannot in the same suit advance argument or adduce further evidence directed to showing that an issue was wrongly determined. Thirdly, the power to set aside orders is limited by rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 to which Mr Jeray does not refer.