ex tempore JUDGMENT ON procedural notice of motion
The director of the Applicant Mr Jeray was given leave to rely on an amended notice of motion dated 18 October 2024 which he filed in court today and which I am determining promptly as list judge as this matter has hearing dates in November 2024. This course was not opposed by the First Respondent the Minister for Lands and Water, the Second Respondent Blue Mountains City Council (the Council) and the Fourth Respondent the Minister for Local Government. The Applicant's summons has been set down for hearing on 26-27 November 2024 with a pre-trial mention on 20 October 2024. The matter was set down for hearing on 5 July 2024. I therefore made prayer 1 of the amended notice of motion at the outset. Prayer 1 provided as follows:
1 Leave to file this amended notice of motion in court. which is supported by the affidavits of [Mr] Jeray dated 8 and 17 October 2024.
The Applicant relied on affidavits of its director dated 8 October and 17 October 2024.
I will now consider the balance of the amended notice of motion which seeks the following relief:
2 Set aside the judgment and orders made by Justice Duggan on 25 September 2024 in case no. 2023/26482 in Seek Justice Pty Ltd v Minister for Lands and Water & 3 Others [2024] NSWLEC 96.
3 Set aside the applicant's further amended summons. which was filed on 2 October 2024 in accordance with order 3 made by Justice Duggan on 25 September 2024.
4 The second respondent must provide the applicant with a complete and legible copy of all 26 electronic .msg documents and all their attachments that are contained within the folder called "F11794." which is contained within the folder called "Point 7-9" on the USB drive it produced to the court on 14 June 2024.
5 The second respondent must provide the applicant with a list/table of all plans of management it has adopted from 4 June 2021 to the date this motion is order is made where the categorisation of crown lands that are covered by the plan of management were not considered at a public hearing because of clause 70A of the Crown Land Management Regulation 2018. The list/table must include the name of the plan of management, the crown lands (including 1ot and deposited plan numbers) covered by the plan of management and the date the second respondent adopted the plan of management.
6 Leave to file _and serve a further amended summons three weeks after the applicant has received the further information requested by orders 4 and 5 above.
7 That the balance of this notice of motion be dealt with after the applicant files its further amended summons.
8 Leave to transfer case no. 2023/26482 and all jurisdiction of the Land and Environment Court of NSW to the Supreme Court of NSW.
9 Should order 4 8 above not be granted, a declaration that the Land and Environment Court of NSW has the jurisdiction to hear and determine all matters in the applicant's further amended summons that includes the specific legislation that enables the Court to do so, noting sections 16 and 20 of the Land and Environment Court Act 1979, the Roads Act 1993, the Government Information (Public Access) Act 2009 and the Crown Lands Management Act 2016 do not provide the Court with the jurisdiction to do so.
10 That the pre-trial mention of 21 October 2024 be vacated.
11 That the hearing dates of 26 and 27 November 2024 for case no 2023/26482 be vacated.
12 The applicant's costs, including court filing fees and photocopying, printing, scanning, postage and the applicant's travelling costs associated with this notice of motion.
Importantly in Seek Justice Pty Ltd v Minister for Lands and Water [2024] NSWLEC 96 Justice Duggan dealt with a notice of motion dated 6 September 2024 filed by the Applicant which was in similar terms to the amended notice of motion I am determining today. Her Honour heard argument on one day and gave a considered judgment some days later. Justice Duggan made various orders including granting leave to the Applicant to file a further amended summons as identified in prayer 2 of her Honour's orders. The Applicant has filed a further amended summons dated 2 October 2024 which complies with those orders. Its prayer 3 seeks to set aside that amended summons.
The Applicant relies on rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to submit that the court can make the orders it seeks because the judgment of Justice Duggan was made in bad faith and with misapprehension of relevant facts. The Applicant's amended notice of motion was filed within the 14 days identified in r 36.16. Under r 36.15 a court can set aside an order or judgment given if made irregularly, illegally or against good faith.
As identified in Fokas v Kogarah Council [2008] NSWCA 145 (Allsop P, Tobias JA) at [18] citing De L v Director-General, NSW Dept of Community Services (No 2) (1997) 190 CLR 207 (Toohey, Gaudron, McHugh, Gummow and Kirby JJ, Brennan CJ and Dawson J agreeing) at 215 that while the power of a court to reopen judgments or orders is not in doubt, an applicant has a heavy burden to show that such an exceptional course is required.
I was unable to identify from Mr Jeray's arguments which sought to canvas again submissions made to Justice Duggan any basis for finding that her Honour acted in bad faith or under a misapprehension of the facts. Mr Jeray largely drew my attention to matters in the amended summons which Justice Duggan has not allowed to be pressed and submitted again that these should be permitted as they are the case which the Applicant seeks to make. The submissions were essentially based on Mr Jeray's view that the decision of Justice Duggan was wrong in that he did not agree with it. Mr Jeray also submitted that her Honour did not find that there was any prejudice to the Respondents in making the case he seeks. It is apparent from the judgment, which deals with procedural matters in a case where the hearing dates have been fixed for some time, that the need to ensure the just, quick and cheap resolution of appropriate issues was part of her honour's consideration as it must be. Procedural decisions must ensure that a matter is conducted justly in relation to all parties. No basis was provided by Mr Jeray for any finding of bad faith, misapprehension of facts or of law in her Honour's judgment.
Further the submissions of Mr Jeray did not identify any change in circumstances, or new factual material or new legal arguments which have come to light since Justice Duggan's judgment which would warrant reconsideration of the matters dealt with.
This leads me to conclude that no basis has been established under r 36.15 or r 36.16 of the UCPR to reconsider Justice Duggan's judgment or the orders she made. I decline to make the prayer for relief in prayer 2. Consequently, that judgment stands. It also follows that prayer 3 seeking to set aside the amended summons dated 2 October 2024 should not be made.
That finding on prayers 2 and 3 has consequences for much of the other relief sought by the Applicant's amended notice of motion today because Justice Duggan has largely dealt with the substantive relief sought again by the Applicant's amended notice of motion before me.
As her Honour's judgment stands and I am unable to exercise any appellate role in relation to it, her Honour's findings on the procedural matters also before me continue to apply. There is simply no legal basis on which I can consider matters which her Honour has already determined.
This finding affects prayers 5, 8, 9,10 and 11 as these are identical to or largely repeat matters that have already been determined by Justice Duggan.
Prayer 5 is virtually identical to prayer 2 of the notice of motion before Justice Duggan which her Honour dealt with at [10]-[16] and declined to make.
Prayer 8 seeks transfer of matters to the Supreme Court, mirroring prayer 5 of the notice of motion before Justice Duggan.
Prayer 9 is an expanded version of prayer 6 concerning the exercise of jurisdiction by the Court before Justice Duggan.
Prayers 10 and 11 seek vacation of the pre-trial mention and the hearing dates in November 2024, mirroring prayers 7 and 8 before Justice Duggan.
Justice Duggan ruled substantively at [32]-[39] to the effect that issues of jurisdiction can be determined at the substantive hearing, rejected the application to transfer all matters to the Supreme Court, declined to make a declaration concerning jurisdiction of the Court and declined to vacate the pre-trial mention and hearing dates for the reasons she provided.
I also observe that making a declaration of jurisdiction as sought in prayer 9 without any argument is an entirely inappropriate use of the declaratory power of the Court and I agree with Justice Duggan it is best ventilated in full at the substantive hearing.
I must decline to make prayers 5, 8, 9,10 and 11 given these circumstances.
Prayer 4 concerning provision of copies of documents was raised today for the first time in the Applicant's amended notice of motion. Mr Jeray's affidavit dated 17 October 2024 was directed to that prayer and set out the circumstances which have caused him to seek this relief. As the Council had no notice of the relief being sought until today it will advise the Court of what it can provide when its solicitor has been able to get instructions. I will delay making any order in relation to this prayer until the Council's advice is available.
Prayer 6 seeks leave to file a further amended summons once certain information is provided. One basis concerns prayer 5 which I will not be making. In any event seeking an order now for the amendment of a summons in the future is not an appropriately certain order. Any application to amend must be made with the amendments clearly identified in a document.
Prayer 7 asks that the amended notice of motion heard today be split but the Applicant sensibly did not press that relief, which I would have declined in any event given the need for final preparations for the allocated hearing to be undertaken by all parties.
Prayer 12 seeks payment of the Applicant's disbursements. No basis to award these is established, and that relief is dismissed.
The Applicant is unsuccessful on prayers 2, 3, 5, 6, 8-12. Only prayer 4 remains to be considered.
[2]
Orders
The Court orders in amended notice of motion filed in Court 18 October 2024:
1. Prayer 1 is granted.
2. Prayers 2, 3, 5, 6, 8-12 are dismissed.
3. Prayer 4 is stood over to 21 October 2024 at the pre-trial mention before Pepper J.
4. Costs are reserved.
[3]
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Decision last updated: 24 October 2024