Jeray v Blue Mountains City Council & Ors; Jeray v Blue Mountains City Council

Judgment 1This judgment concerns an application by Mr Jeray to vacate hearing dates set for the hearing of two proceedings he brings in this Court. I have been assigned the task by the Chief Judge to hear the proceedings on the dates presently fixed. 2The more recently filed proceedings (40517 of 2010) were listed for hearing for four days from 13 to 16 December 2011 by Pain J on 9 September 2011. A number of procedural orders were made on the same day to ensure the matter was ready for hearing on the dates fixed. The older proceedings (40986 of 2008) were listed for hearing for 10 days from 29 November 2011 to 12 December 2011 by Craig J on 23 August 2011. Again a number of procedural orders were made on the same day to ensure the matter was ready for hearing on the dates fixed. It is clear from the orders of Craig J, that his Honour had in mind the Court hearing the matters involving Mr Jeray in a period commencing 29 November 2011 and concluding 16 December 2011. 3There has been much activity in this Court concerning the proceedings of Mr Jeray. There have also been proceedings in the Court of Appeal and the High Court. Some of this history is recounted in a judgment of Sheahan J of 14 July 2011: [2011] NSWLEC 123. It is sufficient to note that, in my opinion, having regard to this history and more generally, it is desirable that the hearing proceed in the period commencing 29 November 2011 unless there is a proper basis for vacating these hearing dates. 4On 15 November 2011, Mr Jeray sent a letter to the Registrar of the Court by facsimile. Mr. Jeray said in the letter he was unable to attend "the directions and main hearings scheduled for the above case" because he was suffering from a medical condition. He attached to the letter a medical certificate from a Dr Chris Coghill. The certificate is dated 1 November 2011 and the body of the letter reads " Mr Ivan Jeray has a [BLACK LINE] and will be unfit for work and preparation and presentation of court cases from 12/09/2011 to 30/12/2011 inclusive." The black line was a redaction of the text by, I infer, Mr Jeray who explained in his letter that the certificate was redacted "[d]ue to privacy reasons". It obliterated what the certificate said about his medical condition. 5The reference in the letter to "the directions" was probably to a hearing on 16 November 2011, a hearing which I had earlier scheduled with a view to exploring with the parties how the hearing time might most productively and efficiently be used. The directions hearing proceeded on 16 November 2011. Not unsurprisingly, Mr Jeray did not appear, perhaps on the basis that he thought it was unnecessary having regard to the letter he had sent to the Court the preceding day. 6On 16 November 2011, I made the following orders: "40986 of 2008 (1) The letter dated 15 November 2011 from Mr Ivan Jeray to Ms Joanne Gray, Registrar of the Land and Environment Court, 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 (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 for cross examination at the hearing of the motion unless each of the Respondents inform the Applicant by 10am Tuesday 22 November 2011 that the deponent is not required to attend. (5) The Council will cause a copy of these Orders to be served on Mr Jeray. Service is to be effected by placing a copy of these Orders in the letterbox at 34 Carlton Street, Katoomba, by 6pm on Wednesday 16 November 2011". I made orders in similar terms in proceedings 40517 of 2010. 7Mr Jeray did not appear at the hearing today, 23 November 2011. He sent by facsimile to the Registrar of the Court at 4.11 pm on 22 November 2011 a letter in the following terms: "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". 8The respondents opposed the vacation of the hearing dates. 9As 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 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. 10Secondly 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. 11There 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. 12I 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. 13That is not to say 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. 14Also 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. 15The 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. 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: 23 November 2011