Jeray v Blue Mountains City Council

Judgment 1ALLSOP P: On 10 December 2010 this Court (Macfarlan JA and myself, Young JA dissenting) allowed an appeal of Mr Jeray from orders made by a judge of the Land and Environment Court on 16 July 2009 dismissing proceedings in that Court. The matter was remitted to the Land and Environment Court: see Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367. Mr Jeray and the Council were participating in the fourth day of a scheduled ten day hearing. The events that led to the dismissal are set out at [2010] NSWCA 367 at [13]-[23]. Briefly, and without attempting to be complete, Mr Jeray refused to proceed with the hearing with the judge in question because he wanted another judge upon claims of bias. The dismissal of the proceeding and the subsequent appeal orders meant that the case had to be recommenced. 2By November 2011 there were two proceedings in the Land and Environment Court, matter 40986 of 2008 and matter 40517 of 2010. On 23 August 2011, Craig J listed the 2008 proceedings for hearing for ten days from 29 November 2011 to 12 December 2011. Procedural orders were made by Craig J to ensure that the matter was ready for hearing on those days. On 9 September 2011, Pain J listed the 2010 proceedings for hearing for four days from 13-16 December 2011. Procedural orders were made by Pain J to ensure that the matter was ready for hearing on those days. It is unnecessary at this point to describe the procedural history of those matters prior to August 2011. 3On 15 November 2011, Mr Jeray sent a letter by facsimile to the Registrar of the Land and Environment Court. The letter stated as follows: "I wish to inform the Court that I will be unable to attend the directions and main hearings scheduled for the above case, as I am suffering from a medical condition. Due to privacy reasons, I attach a redacted copy of my medical certificate for the Court's reference." 4The redacted medical certificate was in the following form: "Medical Certificate THIS IS TO CERTIFY THAT Mr Ivan Jeray has a xxxxxxxxxxxxxx and will be unfit for work and preparation and presentation of court cases from 12/09/2011 to 30/12/2011 inclusive." 5The 2008 proceedings were listed for directions (that is, "the directions" referred to in the letter) the following day on 16 November. The matter had been listed for directions to deal with any outstanding matters prior to hearing. Mr Jeray did not appear on 16 November. Counsel for the first and second respondents did. 6The first application before the Court now is an application for an extension of time to file and serve an application for leave to appeal, and an application for leave to appeal in respect of what happened on that day. It is therefore necessary to describe what happened. Before doing so, I note that that summons was one day out of time. On the last occasion when the summons in respect of 16 November was heard, counsel indicated that they took no point about time. 7Returning to the events in question. The judge, Moore AJ, provided the letter of the previous day (that had been sent to the Court) to Mr Hemmings and Ms McCullen for the first respondent, and to Mr McEwen SC who at that time appeared for the second respondent. The judge said that he would treat the letter as an application to vacate the hearing dates, referring compendiously during the course of the hearing to both matters. It will be recalled that, strictly speaking, the 2008 matter had been listed on that day. Mr Hemmings then addressed his Honour providing some procedural history. Mr Hemmings urged that his Honour not deal with the application then as an adjournment application in the absence of Mr Jeray. Mr Hemmings asked for directions to be made for Mr Jeray to deal with the matter in a more formal way, to put on a motion to vacate with evidence. Mr Hemmings then said that he would be content to treat the letter as a motion and thereby avoid the time and cost of formalising the matter into a notice of motion, but submitted that Mr Jeray should have the opportunity to file evidence because in his, that is Mr Hemmings' submission, the letter and medical certificate were an inadequate foundation to vacate the dates for two substantial hearings. The judge asked whether the doctor should be expected to put on an affidavit, to which Mr Hemmings replied in the affirmative and indicated that he might be required to appear and be cross-examined on any direct evidence that he gave. Mr McEwen supported Mr Hemmings' propositions. He also indicated that his solicitors had attempted to contact the doctor in question, Dr Coghill, the previous day or that morning, but to no avail. 8Mr Hemmings also informed Moore AJ of the 2010 proceedings. He noted that this was not mentioned in the letter of Mr Jeray. As I said, the 2010 proceedings were not listed on 16 November. The judge said that he was treating the letter as related to both sets of proceedings (a reasonable assumption given the range of dates in Dr Coghill's medical certificate, being to 30 December 2011, a point past the expected termination of the second proceeding). Mr Hemmings suggested that respectfully this was the proper course. Counsel then provided suggested orders and discussion ensued. The orders that were made in both proceedings were as follows (the bracketed material appears in the orders relating to the 2010 proceedings): "1. The letter dated 15 November 2011 from Mr Ivan Jeray to Ms Joanne Gray, Registrar of the Land and Environment Court [in matter number 40986 of 2008], together with the annexed Medical Certificate by Dr Chris Coghill dated 1 November 2011 is to be treated as a Notice of Motion to vacate the hearing dates of 29 November 2011 to 12 December 2011 [for 2010 proceedings read: 13 December 2011 to 16 December 2011] (the 'Notice of Motion'). 2. Mr Jeray is to file and serve an affidavit of Dr Chris Coghill in support of the Notice of Motion, and any other affidavits he intends to rely upon for the vacation of the hearing dates, by 4pm on Monday 21 November 2011. 3. The Notice of Motion to vacate the hearing dates is fixed for hearing at 9am on Wednesday 23 November 2011. 4. The deponent of any affidavit filed pursuant to Order 2 is required to attend for cross examination at the hearing of the motion, unless each of the Respondents informs the Applicant by 10am Tuesday 22 November 2011 that the deponent is not required to attend." 9Mr Jeray's complaints about these orders are set out in his summary of argument dated 12 February 2012 and are recorded from the last occasion. In broad summary, by way of substantive complaint he says, first, that he was denied procedural fairness in making the orders in his absence, without notice and without dispensation of the requirements for a notice of motion. 10Secondly, the letter was wrongly treated as an application to vacate the hearing dates of either or both matters. 11Thirdly, the Court should have acted on the letter and certificate that he had sent to adjourn the 2008 proceedings. 12Fourthly, that there was no power to make any orders in the 2010 matter, it not having been listed on the day. 13Fifthly, it was wrong to order Mr Jeray to serve an affidavit of a specific individual, Dr Coghill, and the required time for the evidence was unreasonable. It was also wrong to make any order that the deponent appear. 14Sixthly, the judge disregarded the medical certificate and the claim to personal privacy. 15Seventhly, there was a reasonable apprehension of bias based upon what had occurred. 16There was also a complaint about newspaper articles, but the substantive complaint about the operation of the court process does not turn on that. 17I will say something more about the 16 November application in due course but it is appropriate at this point to say the following. With one exception, the conduct of both counsel and the judge in the way they dealt with the circumstances was entirely appropriate. Two long cases were about to start. A pre-trial directions hearing for one had been listed. The day before the directions hearing a litigant sends what is a deeply uninformative and inadequate medical certificate, and seeks the adjournment of the first hearing without attending. Plainly the matter, if in contest, as it was, had to be resolved promptly. It was just and beneficial to Mr Jeray to treat the letter as a notice of motion to adjourn both. That is in substance what he was asking for because of his so-called unfitness until 30 December. There was no lack of power to treat the letter as a motion in the 2010 proceeding. The matter was not listed; Mr Jeray was not present; but the judge, correctly in my view, and at least reasonably, understood Mr Jeray's communication to be affecting the 2010 proceedings. 18Mr Jeray was given a week to support his application. In the circumstances of Mr Jeray's non-attendance on 16 November, it was both appropriate and necessary to take steps for the hearing of any application to vacate the dates that the letter plainly made with some expedition. At the hearing, counsel had asked for two days to prepare and that the matter be heard on the Friday. The judge, if I may respectfully say so, wisely and appropriately stood the matter over for a week. No procedural unfairness occurred. Mr Jeray was free to apply to vary any order that was made or to support the application that he was making. 19The exception to which I refer was the form of the order to require Mr Jeray to file an affidavit of a named person, Dr Coghill. If I may put it this way, to a lawyer it would plainly be read as filing any affidavit from Dr Coghill that Mr Jeray chose to file. That is, if he wanted to rely upon Dr Coghill's evidence, it had to be in affidavit form with the doctor available for cross-examination. It may be that a non-lawyer would have taken the order literally. I will deal with the lack of procedural consequences of that technical inappropriateness in the form of the order shortly. 20The day before the hearing on 23 November, Mr Jeray sent a letter by facsimile to the Registrar of the Land and Environment Court at 4.11 pm which stated as follows: "I note that I am forced to write this letter. I wish to inform the Court that I am unable to respond to the Court's orders of 16 November 2011 and attend the hearing of 23 November 2011 for the above cases, as I am suffering from a medical condition, which was indicated in my letter to the Court dated 15 November 2011." 21On 23 November, Mr Jeray did not appear. The respondents appeared by counsel. They opposed the vacation of the hearing dates. On that day, Moore AJ dismissed the application taken to be made through the letter of 15 November seeking to vacate the dates. His reasons were given extempore on that day and included the following: "[9] As order 1 (earlier set out) provided, I treat the 15 November 2011 letter as an application to vacate the hearing dates. I propose to dismiss the application. I do so for the following reasons. The evidence in support of the application is inadequate. Even assuming [that] the untested opinion of a medical practitioner in a two line medical certificate might, in other circumstances, provide sufficient evidence to justify the vacation of a hearing, in effect, fixed for 14 days, it does not in this case. As to medical reports of this type more generally: see Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]. Firstly, the factual foundation of the opinion (the medical condition) is not revealed in the certificate because of the redaction undertaken by Mr Jeray. This is destructive of the worth of the opinion as a piece of evidence. [10] Secondly, it is obvious that the certificate has not been written with any particular care about what is said. The certificate says Mr Jeray 'will be unfit' for a period which, in part, precedes the date on which the letter was written. In other words, the future tense is used, without qualification, in a way which was inappropriate. I do not make this observation motivated by lawyerly pedantry. There is more substance to my observation. I would have thought a medical practitioner would understand that it is no light matter for a court not to proceed to hear a case on dates fixed. One could expect a medical practitioner to apply some thought to the way in which a certificate directed to that objective might be expressed. This has obviously not been done. [11] There is of course the logical possibility that Mr Jeray does suffer from a medical condition that would have prevented him appearing at the hearing of the application to vacate the hearing date and might prevent him from appearing on 29 November 2011. However he has the benefit in this Court, unlike many other courts in this country, of being able to appear by an agent: s 63 of the Land and Environment Court Act 1979 (NSW). There has been no such appearance. [12] I propose to order that a copy of these reasons be served on Mr Jeray. He needs to understand that if he, or someone representing him, does not appear at 10 am on 29 November 2011 ready to present his case, there is a possibility that both proceedings will be dismissed for want of prosecution and cost orders made against Mr. Jeray. That is, if the proceedings are dismissed, Mr Jeray may be ordered to pay the legal costs of the respondents. Both proceedings might be dismissed for want of prosecution on 29 November 2011 even though the hearing of the second proceedings would, at that time, not be scheduled to commence for a few days. [13] That is not to say [that] Mr Jeray, or someone representing him, cannot appear in Court and make a fresh application to vacate the hearing dates at 10 am on 29 November 2011. However, Mr Jeray needs to understand that if such an application is made, it must be made by a person appearing in Court and the evidence supporting it needs to be of substance. If he wishes to continue to rely on the medical opinion of Dr Coghill, then the doctor will need to swear an affidavit and present himself for cross examination on the morning of 29 November 2011 if the affidavit is to be read and relied on that morning. If Dr Coghill is unwilling to swear an affidavit, he may have to be subpoenaed by Mr Jeray to attend to give evidence on 29 November 2011. Whether this is done is a matter for Mr Jeray. Either way, an opportunity needs to be afforded to the respondents to test the evidence of Dr Coghill by cross-examination, a course they have indicated they wish to follow and which is a reasonable one in the circumstances. [14] Also Mr Jeray needs to understand that if a fresh application to vacate the hearing dates is made and is unsuccessful, he (or someone acting for him) will need to be in a position to present his case. If this does not occur then again there will be a possibility the proceedings will be dismissed for want of prosecution as discussed in paragraph 12 above. [15] The application to vacate the hearing dates is dismissed with costs. I also make the directions sought by the Council concerning the preparation for trial and its application to dismiss the proceedings for want of prosecution. A copy of these reasons is to be served on Mr Jeray by 12.00 noon Thursday 24 November 2011 in the same manner as identified in order 5 of the orders of 16 November 2011." 22The orders made on that day were as follows: "1. The Applicant's Notice of Motion to vacate the hearing dates of 29 November 2011 to 12 December 2011 [for 2010 proceedings read: 13 December 2011 to 16 December 2011] is dismissed. 2. Any Notice of Motion that the proceedings be dismissed for want of prosecution, pursuant to Rule 12.7 of the UCPR, together with any affidavits in support must be filed and served by 12 noon on Friday 25 November 2011. 3. The hearing of any Notice of Motion to dismiss the proceedings for want of prosecution pursuant to Rule 12.7 of the UCPR is listed for hearing at 10am on Tuesday 29 November 2011. 4. A copy of these orders and the reasons for judgment delivered 23 November 2011 must be served on the Applicant by 12 noon Thursday 24 November 2011. 5. The service of documents required by Orders 2 and 4 is to be effected by placing a copy of those documents, marked to the attention of Mr Ivan Jeray in the letterbox at 34 Carlton Street, Katoomba. 6. Order 28 made by Craig J on 23/8/11 is vacated. [This order was not included in the orders dealing with the 2010 proceedings] 7. The Applicant is to pay the Respondent's costs of the motion to vacate the hearing dates." 23Before turning to Mr Jeray's complaints about this judgment and these orders, it is to be noted that the reasons of Moore AJ made clear the true nature of the order about Dr Coghill's affidavit. It was clear from those reasons that the Court was leaving open the opportunity for Mr Jeray to renew his application, or make it for the first time if that was the appropriate construction, and if he wanted to rely upon Dr Coghill's evidence, a two line certificate would be inadequate. The reasons made clear the steps available to Mr Jeray by himself or an agent to seek to vacate the hearing dates. From this it can be concluded at this point that no unfairness of any residual kind can be seen to flow from what might be thought to be the technically inappropriate form of the order made on 16 November 2011 concerning Dr Coghill and his evidence. 24In a separate summons dated 9 July 2012, Mr Jeray seeks an extension of time to file and serve the summons seeking leave to appeal from the orders made on 23 November. His complaints are contained in his summary of argument. Broadly and in summary they are, first, that since the orders of 16 November 2011 were invalid, so are the orders of 23 November. That is, the unfair orders of 16 November resulted in an unfair hearing of 23 November. 25Secondly, there was a complaint of denial of procedural fairness on 23 November. Orders were made when he was not present. He was given no prior notification. No orders were made dispensing with service. There was again, he submitted, the incorrect treatment of the medical certificate. There was the wrong consideration that he could be represented by an agent, and there was a wrong consideration that he could make a fresh application. 26Specific complaint was also made about orders 2, 3 and 6, that there were no reasons, that the proceedings had not been commenced, that there was no notice of motion, there was no power to deal with the order made by Craig J, and that order 3 denied Mr Jeray an opportunity to oppose any notice of motion to dismiss the proceedings for want of prosecution, and that there was no abridgement of time. There was also a parallel complaint about reasonable apprehension of bias from what had occurred. 27In my view, these arguments are without reasonable prospects of success. The orders of 16 November gave Mr Jeray an opportunity to vacate the dates. He did not take it. The reasons of 23 November made clear not only that he still had that opportunity but how he could go about it. The judge had been left in a position where Mr Jeray had not appeared twice in support of what the judge correctly considered, in my view, an inadequately based application to vacate over two weeks of hearing. That application was dismissed (that is, the application to vacate the dates). The dates remained. Clearly, the judge had to programme the possibility that Mr Jeray would continue to refuse to come. Orders 2-4 and 6 dealt with procedural matters necessary to implement a regime whereby Mr Jeray either appeared or faced the prospect, explained to him clearly in the reasons, of an application to dismiss his proceedings. The conduct of the matter on the day, and the clarity and completeness of the reasons as to the circumstances and the future, make an application based on an absence of procedural fairness or based on bias on the part of the judge lacking any prospects of success. 28The 2008 and 2010 proceedings were listed at 10.00 am on 29 November 2011. Mr Jeray did not appear. The judge was satisfied that there had been served not only the orders and reasons of 23 November but also the notices of motion and evidence in support of the dismissal of the proceedings on the assumption, or the contingency rather, that Mr Jeray did not appear on the 29th. There were affidavits of service to that effect. 29The primary judge set out at [6]-[24] of reasons he delivered the following day the detailed history of the matter. He recounted evidence that was before him of the considerable costs to date of the parties. The primary judge then dealt with the notices of motion. He directed himself to ss 56-60 of the Civil Procedure Act 2005. His Honour's reasons were in substance as follows at [29]-[42]: "[29] What emerges from the background discussed earlier is that Mr Jeray has commenced proceedings (and I am here referring to both proceedings though the position is more acute in 40986 of 2008) and conducted them in a way which has meant that the hearing of the issues he wishes to ventilate (and their determination) is probably now nearly as far removed into the future as it was at the time the proceedings were commenced. I do not, in making these comments, suggest that any prolongation of the time arising directly and immediately from the applicant's successful appeal to the Court of Appeal has any relevance. It does not. The same, however, cannot be said of the ancillary litigation in the Court of Appeal and the High Court. [30] Plainly enough Mr Jeray has exercised, at virtually every turn, legal rights conferred on him by our legal system. However, save for the successful appeal against the dismissal of proceedings 40986 of 2008 by Lloyd J, the exercise of those rights has been largely a barren exercise which has delayed the final resolution of the proceedings, increased, and probably increased substantially, the costs incurred by the respondents and exacerbated considerably the associated stresses and strains litigation almost necessarily imposes on litigants both personal and corporate. While there is no direct evidence of Mr Jeray's financial position, he said in his letter of 29 November 2011 that he could not afford legal representation and he was undertaking the proceedings 'with significantly limited means and resources'. I think I can reasonably infer that he is unlikely to have the capacity to meet any costs orders or at least to do so readily. [31] The general impression I have of Mr Jeray's conduct of the litigation is that while he is prepared to litigate ancillary issues with alacrity, perhaps even enthusiasm, though he sometimes hesitates at the threshold of the courtroom and seeks adjournments. However he is not prepared to take such steps as are necessary, including attending a hearing scheduled as a final hearing, which might actually determine the issues he seeks to raise in each proceedings. [32] I have not endeavoured to come to terms with what those issues might be in any detail. It is inappropriate for two reasons. The first is that directions have been given in both proceedings designed to elucidate what truly are the issues but this has not occurred. Thus the task of considering what those issues might be is a fraught one. The second is that a decision to dismiss these two proceedings because they are not being prosecuted with due dispatch does not, in the particular circumstances of this case, depend on the subject matter of the litigation other than in the most general sense. There is one qualification I should make to this last comment. [33] The qualification is this. In these proceedings Mr Jeray challenges the general conduct and workings of the Council but also challenges, amongst other things, two development consents and related consents given by the Council to a development project the Egans proposed and are now undertaking. A relevant consideration is whether orders dismissing both proceedings will prejudice Mr Jeray because time limits will preclude fresh proceedings mounting a similar challenge. They will because of the operation of s 101 of the Environmental Planning and Assessment Act 1979. However for reasons that will emerge shortly, Mr Jeray can avoid this outcome if he successfully follows a course I outline later in these reasons. [34] The CP Act has, as an overriding purpose, the facilitation of the just, quick and cheap resolution of the real issues in dispute in proceedings: s 56. This purpose infuses case management: s 57. That purpose also embodies an objective. Mr Jeray's conduct of the proceedings has, in the main, been antithetical to meeting that objective. In particular, his refusal to attend the hearing on 29 November 2011 or to demonstrate to the Court on a proper basis that the hearing (and the one to follow) should not proceed, brings about a circumstance where it is now clear (if it was not clear earlier) the two proceedings he commenced are not being conducted quickly or cheaply nor, having regard to his earlier conduct, are the real issues being identified. There will be no trial in November and December 2011 and one could not be confident there would be a trial in the months to follow. In my opinion, Mr Jeray has not prosecuted both proceedings with due dispatch and, for this reason, they should be dismissed. [35] I should conclude by noting that the orders I am making have been made in the absence of Mr Jeray. Senior Counsel for the Egans drew attention to rule 36.16(2)(b) of the Rules (and invited me to refer to it in these reasons). That provision enables the Court to set aside an order after it has been entered if it has been made in the absence of a party. So that rule will apply in the present case when the orders I will be making have been entered. Before the orders are entered, rule 36.16(1) enables the Court to set aside the orders. [36] In this Court an order is entered (unless the court otherwise orders) when a document embodying the order is first sealed by the Registrar: rule 7.6 of the Land and Environment Court Rules 2007. Mr Jeray should appreciate that when this occurs (the orders are entered) he will have only fourteen days to file a notice of motion making an application to set aside the orders under rule 36.16(2)(b) given that the orders have been made in his absence. There is no flexibility about this 14 day requirement or time limit. The time cannot be extended. This rigid time limit is imposed by the combined operation of rule 36.16(3A) and (3C) of the Rules. [37] If such an application is made by Mr Jeray (to set aside the orders I make today) it will be heard by a judge of this Court who will exercise a discretionary power when deciding whether or not to set aside the orders. I cannot and should not indicate in these reasons in any concluded way what factors might influence the judge in deciding whether or not to set aside the orders. However it is likely that Mr Jeray would need to establish an acceptable explanation for his non-appearance on 29 November 2011. If it is for a reason based on what he has repeatedly said in correspondence, namely that he is suffering from a 'medical condition', it is likely there would need to be evidence concerning that condition in a form acceptable to the judge. That would be likely to be an affidavit from a medical practitioner or oral evidence from a medical practitioner who Mr Jeray has subpoenaed to give evidence. I have discussed this topic in the reasons for judgment I published on 23 November 2011. [38] It may also be that the judge hearing any such application would wish to be satisfied that Mr Jeray has an arguable case or at least that there are serious questions to be tried. I would imagine there would be other matters about which the judge would need to be satisfied. They might include Mr Jeray's capacity to meet a costs order if he is unsuccessful which might, in turn, raise a question about whether the proceedings could properly be characterized as proceedings brought in the 'public interest', a characterization Mr Jeray has repeatedly advanced. [39] Mr Jeray needs to understand that: (i) Unless he applies within 14 days of the entry of the orders I will make today to have the orders set aside and that application is successful, the orders will stand including the costs orders. (ii) If the orders stand, each of the proceedings will remain dismissed. (iii) While it may be possible for him to commence fresh proceedings raising some of the issues raised in the present proceedings, s 101 of the Environmental Planning and Assessment Act 1979 creates a time limit for bringing proceedings questioning the development consents he challenges in the present proceedings. (iv) That time limit has passed and s 101 would create a legal barrier for questioning those consents in fresh proceedings. (v) If the orders stand, Mr Jeray will be liable to pay the Council and the Egans their legal costs of the dismissed proceedings on a party and party basis (which is probably going to be less than the actual costs). I have already referred to evidence which gives some indication of the magnitude of the costs he will be liable to pay on a party and party basis. In practical terms that is likely to be many tens of thousands of dollars and quite conceivably hundreds of thousands of dollars in aggregate. (vi) If the orders dismissing the proceedings stand, and Mr Jeray seeks to bring fresh proceedings, those proceedings will most likely be stayed until he has paid the respondents their costs of the dismissed proceedings. [40] If a respondent procures the entry of the orders I am about to make, those entered orders must be served on Mr Jeray within 24 hours of their entry together with a letter explaining that (and when) the orders have been entered and setting out (in the body of the letter or as an annexure) the text of the preceding five paragraphs of these reasons. Service can be effected in the same way as ordered in relation to the service of the reasons for judgment refusing to vacate the hearing dates. That is, by leaving them in the applicant's letterbox at the specified address. [41] I make the following orders in proceedings 40986 of 2008: (i) Proceedings 40986 of 2008 is dismissed. (ii) The applicant pay the respondents' costs of the proceedings including any reserved costs. (iii) The first respondent serve on the applicant a copy [of] these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders. (iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba. [42] I make the following orders in proceedings 40517 of 2010: (i) Proceedings 40517 of 2010 is dismissed. (ii) The applicant pay the respondent's costs of the proceedings including any reserved costs. (iii) The respondent serve on the applicant a copy of these orders together with a copy of these reasons and a letter of the type described in paragraph [40] of these reasons within 24 hours of entry of these orders. (iv) The service required by order (iii) is to be effected by placing a copy of those documents, marked to the attention of Mr Ivan Jeray, in the letterbox of 34 Carlton St, Katoomba." 30It is to be noted particularly that his Honour made reference to r 36.16(2)(b) as well as to r 36.16(1). The reasons also made clear the time limits involved in any application to set aside the orders. Mr Jeray was also told by the reasons what he would or may have to attend to at such a hearing. He was also told the consequences of not making the application. 31In a separate summons dated 9 July 2012, Mr Jeray seeks an extension of time for the filing and serving of a summons seeking leave to appeal against the orders of 30 November and an application for leave to appeal. His complaints are contained in his summary of argument which broadly are as follows. 32First, the invalidity of the orders of 30 November based on the invalidity of the orders of 16 and 23 November. 33Secondly, a denial of procedural fairness. 34Thirdly, the wrongful conclusion that the orders could be set aside. 35Fourthly, the reasonable apprehension of bias. 36Similar arguments were made concerning the permission given to the respondents to proceed in his absence, including written submissions and lists of authorities, and including any assistance to the judge immediately following the oral hearing. 37In my opinion, none of these arguments have any reasonable prospects of success. There was no denial of procedural fairness. Mr Jeray was given notice of the hearing. He was provided with the notices of motion and evidence that would be relied on should he not attend. He had previously been given an indication of what he had to do to vacate the hearing dates if he wanted to apply to do so. The matter was one requiring expedition. In my view, ample time was given for Mr Jeray to attend to and deal with the matters in a manner that the time permitted. Mr Jeray has failed to attend hearings, of all of which he had notice. The Court and the parties were faced with what can be seen to be accurately described by the primary judge at [31] of his reasons of 30 November 2011 as follows: "The general impression I have of Mr Jeray's conduct of the litigation is that he is prepared to litigate ancillary issues with alacrity, perhaps even enthusiasm, though he sometimes hesitates at the threshold of the courtroom and seeks adjournments. However he is not prepared to take such steps as are necessary, including attending a hearing scheduled as a final hearing, which might actually determine the issues he seeks to raise in each proceedings." 38The orders leading up to the hearing of 29 November gave Mr Jeray notice of: (a) what might occur; (b) what had to be done to participate; (c) what the consequences would be if he did not attend and participate; and (d) what steps he could take to remedy his position if he did not participate and the orders were made. Plainly, r 36.16(2)(b) applied and enabled Mr Jeray to move to set aside the orders made in his absence. He did not take that opportunity. He did, however, take the opportunity within that time to file a notice of intention to appeal. There has been, in my view, no injustice and no procedural unfairness, and no basis to consider that any error that may have been made in respect of the order had any effect, or that there was any other operative error. 39In my view, the orders that should be made are as follows.