Consideration
28The touchstone for the exercise of the power to dismiss proceedings because an applicant has not prosecuted them with due dispatch is the Civil Procedure Act 2005 (NSW) ("CP Act") and particularly ss 56-60: see Bi v Mourad [2010] NSWCA 17. That is not to say the earlier exposition of considerations (in judgments predating the CP Act) which then might have informed the exercise of the power, no longer have any relevance. One such judgment apparently widely cited was Hoser v Hartcher [1999] NSWSC 527 in which Simpson J helpfully listed (in what her Honour described as a non-exhaustive list) eleven such possible considerations, some or all of which may be applicable having regard to the particular facts of the case. I have read this judgment. However while this judgment remains relevant it should not distract attention from the CP Act.
29What 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.
30Plainly 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.
31The 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.
32I 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.
33The 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.
34The 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.
35I 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.
36In 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.
37If 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.
38It 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.
39Mr 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 s101 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.
40If 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.
41I 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 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.
42I 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 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.