Jeray v Blue Mountains City Council & 2 Ors [2010] NSWCA 281

New South Wales Court of Appeal

CITATION: Jeray v Blue Mountains City Council & 2 Ors [2010] NSWCA 281

HEARING DATE(S): 27/10/2010 JUDGMENT OF: Handley AJA at 1; Sackville AJA at 20

EX TEMPORE JUDGMENT DATE: 27 October 2010

DECISION: Notice of Motion dismissed with costs.

LEGISLATION CITED: Land and Environment Court Act, s 58(1)

CATEGORY: Consequential orders

CASES CITED: Burrell v The Queen [2008] HCA 34, 238 CLR 218 Commonwealth of Australia v Bank of New South Wales [1950] AC 235

Ivan Jeray (Applicant) PARTIES: Blue Mountains City Council (First Respondent) Greg Egan (Second Respondent) John Egan (Third Respondent)

FILE NUMBER(S): CA 2009/298487

I. Jeray (Applicant - In Person) COUNSEL: I. Hemmings (First Respondent) P. Clay (Second & Third Respondents)

I. Jeray (Applicant - In Person) SOLICITORS: Marsdens Law Group (First Respondent) McIntosh McPhillamy & Co (Second & Third Respondents)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 09/298487

HANDLEY AJA SACKVILLE AJA

Wednesday 27 October 2010 IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL Judgment

1 HANDLEY AJA: Mr Jeray has applied by notice of motion filed on 7 September this year, since amended, to vary the orders of this Court as presently constituted, pronounced on 6 July 2010. 2 The Court granted Mr Jeray limited leave to appeal from the dismissal by Lloyd J, on 16 July 2009, of Class 4 proceedings brought by Mr Jeray in the Land and Environment Court. Mr Jeray's judicial review proceedings had challenged a development consent granted by the Council to the second and third respondents. 3 The Court in granting limited leave to appeal considered and deliberately rejected all the other grounds of appeal for which leave was sought because they were unarguable. The Court said his in clear and unambiguous terms in paras 14, 16, 17 and 18 of its reasons. 4 The principal purpose of the notice of motion is to enlarge the grounds of appeal available to Mr Jeray by including many of those which were disallowed by the Court in its decision of 6 July. 5 The application is misconceived for more than one reason. An appeal to a higher Court is a remedy which enables the disappointed litigant to challenge the orders of the Court below: Commonwealth of Australia v Bank of New South Wales [1950] AC 235 at 294. 6 Section 58(1) of the Land and Environment Court Act, which confers the right of appeal Mr Jeray is exercising, reflects this established principle. It allows appeals from final or interlocutory orders or decisions of the Court. In such a context the natural meaning of decision as the Privy Council held in Commonwealth of Australia v Bank of New South Wales [1950] AC at 294 is: "The formal expression or adjudication in a Court case or the tatement of the grounds of a judgment or order." 7 The only order made by Lloyd J was to dismiss Mr Jeray's Class 4 case on 16 July for the reasons he then gave. Mr Jeray's complaints about the Judge's statements during the first three days of the hearing are not complaints about orders or decision in this sense. There is simply no basis on which the Court can properly entertain complaints based on the first three days of the hearing. 8 Even if we disagreed with some of the statements of Lloyd J, and I express no opinion whatever on that question, our opinions would have no legal effect. They would not enable the Court to reverse the order of dismissal of 16 July. Legal argument on such grounds would be a complete waste of time and money. 9 Mr Jeray wants to allege that Lloyd J evinced ostensible bias during those days but he did not ask the Judge to disqualify himself. He thought, wrongly, that he could and should make that application to another Court. He was told that he had to make it to Lloyd J and he declined to do so. Since no application for disqualification was made to Lloyd J, and Mr Jeray refused more than once to make that application, the Judge did not decide that question and made no relevant order. Since there is neither a decision nor an order there is no basis for an appeal on the ostensible bias ground and grounds of appeal directed to that question would be a complete waste of everyone's time. 10 The limited leave granted on 6 July 2010 enables Mr Jeray to rely on the evidence recorded in the transcript of 16 July leading up to the dismissal of his Class 4 proceedings. 11 There is a long established and deeply rooted principle that there must be an end to litigation. In Burrell v The Queen [2008] HCA 34, 238 CLR 218 at 223 five Judges said in their joint judgment: "A central and pervading tenet of the judicial system is that controversies once resolved are not to be re-opened except in a few narrowly defined circumstances." 12 As a general rule parties are entitled to only one hearing in the Court and must bring forward their whole case at that hearing. This is known as the principle of finality. There are exceptions. The right of appeal is one. Interlocutory orders are another. The order made by this Court on 6 July granting limited leave to appeal was an interlocutory and not a final order. 13 Although the Court has the power to re-visit and reconsider its interlocutory orders the principle of finality is still relevant. The Court's power of reconsideration will only be exercised on proper grounds. It is not available simply for the purpose of advancing for a second time arguments about fact or law which the Court rejected the first time. 14 An applicant who makes a second application for orders which were previously refused or who seeks to otherwise vary orders previously made must show proper grounds. 15 As a general rule this requires the applicant either to bring forward new evidence or a new argument that were not considered in the earlier hearing or to establish a material change of circumstances since the earlier decision. 16 For that reason on 20 September the Court ordered Mr Jeray to file and serve a document which identified the facts and matters relied on to support his notice of motion which were not known to him at the time of the earlier hearing. 17 The document filed by Mr Jeray does not disclose any fact or matter relied on which came to his attention after 22 April. The present application is not supported by evidence of a change of circumstances since that date or by the discovery of relevant new material or by a new argument of fact or law. 18 The motion is simply an attempt to re-agitate arguments in support of the additional grounds of appeal which the Court considered and rejected as unarguable in its earlier decision. 19 The application is therefore misconceived and the notice of motion should be dismissed with costs. 20 SACKVILLE AJA: I agree with the orders proposed by the presiding Judge and with his Honour's reasons. 21 HANDLEY AA: The order of the Court therefore is motion dismissed with costs. 22 Mr Jeray, Sackville AJA and I will not be sitting on your appeal in December.