Land and Environment Court of New South Wales CITATION : Jeray v Blue Mountains City Council [2008] NSWLEC 290 APPLICANT Ivan Jeray PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 40986 of 2008 CORAM: Sheahan J KEY ISSUES: Practice and Procedure :- Notice of Motion to seize Council files Environmental Planning and Assessment Act 1979 Local Government Act 1993 LEGISLATION CITED: State Records Act 1998 Land and Environment Court Rules 2007 Uniform Civil Prodedure Rules 2005 TEXTS CITED: Ritchie's Uniform Civil Procedure NSW DATES OF HEARING: 10 October 2008 EX TEMPORE JUDGMENT DATE : 10 October 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, Solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 10 October 2008 40986 of 2008 Jeray v Blue Mountains City Council EXTEMPORE JUDGMENT 1 His Honour: Mr Jeray has commenced Class 4 proceedings against the Council to have the Court declare invalid two (or perhaps three) decisions of the Council – (1) its decision to regulate his dealings with the Council by means of a "communications plan of management", and (2) its decision(s) to grant consent to a particular development and then modify that consent (Council DA files X/1075/2006 and X/1075/2006/A). 2 In the Class 4 proceedings, Mr Jeray also seeks interlocutory relief requiring that all works permitted by the consent "stop until a decision of the Court is made". At this stage only the Council has been named as a Respondent to the proceedings. 3 Mr Jeray contends that the communications management plan is "discriminatory and invalid", and that the development consent was granted and modified in breach of various Acts and Regulations, the list of which he seeks the opportunity to review once he has access to a range of Council information. 4 He has brought a notice of motion at this very early stage in the proceedings asking the Court to make a range of orders the thrust of which would be to have the Sheriff "seize and keep secure at Katoomba Court house … across the road from the Council headquarters" a number of development application files, which he fears the Council will tamper with before the first return date of the proceedings, namely 31 October. 5 He first sought these orders last Tuesday on an ex parte basis and prior to his service of the Class 4 application. He has so far been denied access to these files, the precise relevance of which he has not yet demonstrated to the Court, because he will not conform to the challenged communications plan. 6 On Tuesday and today Mr Jeray has made many complaints from the bar table about the Council's dealings with him over some years. He does not trust the Council's Executive Officer with whom the communications plan requires him to deal on all matters, so he will not follow that plan. 7 The plan is comprised of a series of letters from Council to Mr Jeray, notably detailed general letters dated 5 February 2007 and 11 February 2008. The Council is currently considering making a Policy on "Management of Unreasonable Complainant Conduct" as part of a comprehensive "Complaints Management System". The recently exhibited draft of that policy envisages Communications Management Plans of the type detailed in the letters, and the Council has been obtaining advice from the Ombudsman about both the plans and the policy. 8 The Council has appeared today to oppose the Notice of Motion and assure the Court that it will comply, in all respects, and at all times, with the requirements of relevant legislation (including the Local Government Act 1993, the Environmental Planning and Assessment Act 1979, and the State Records Act 1998), and with the Rules of this Court. The Council says the Notice of Motion should be dismissed, in the absence of any evidence at all that there is any risk of tampering, and that the Applicant should rely on the Court's usual processes in the substantive proceedings, by way of Notice to Produce, subpoena, and case management directions. 9 I adjourned the hearing on the Notice of Motion to allow for Mr Jeray and the Council's solicitor, Mr Seton, to confer. 10 Mr Jeray then told the Court he would withdraw the prayers for relief by way of seizure, if the Council would agree to disclose on affidavit, when the substantive matter comes before the Court on 31 October, the identities of all people who accessed the DA file after service of his application last Tuesday. The Council would not agree, so I now must rule on the motion. 11 Mr Jeray did not identify the Court's power to make a seizure order. Part 25 Rules 19 and 20 of the Uniform Civil Procedure Rules 2005 ("UCPR") envisage that courts covered by those Rules can make search or entry orders for the purpose of securing or preserving evidence. 12 Applications for such orders require (1) supportive affidavit evidence indicating the documents involved and the person to execute the order (as Mr Jeray has done here), and (2) an undertaking as to damages (which has not been given here). The Applicant has to satisfy the Court he has a strong prima facie case and that the Respondent exhibits "a real possibility" of destroying the material or causing it to be unavailable for use in evidence. This Applicant has not met either of those tests. 13 Mr Seton was not sure whether those Rules apply, but Ritchie's Civil Procedure NSW ("Ritchie") in Schedule 1 at page 9267, and Rule 4.1 of the Land and Environment Court Rules 2007, indicate that those Rules do apply to these Class 4 proceedings, despite UCPR 25.1 and the note in Ritchie at page 7333. 14 Even if they do not apply, I think the common law and the interests of justice would dictate that I should apply the same tests and principles, in any event, on the assumption that the Court has the requisite power. 15 Accordingly, I am not satisfied that Mr Jeray has made his case for the orders he seeks, and I dismiss his Notice of Motion. 16 The costs on the Motion will be costs in the cause. 17 The substantive matter is stood over to 9.15am on 31 October as specified in the Class 4 application. Mr Jeray will need to make his case for interlocutory relief at that time. 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.