NSW Caselaw
New South Wales Court of Appeal
CITATION: Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367
HEARING DATE(S): 10 December 2010
JUDGMENT DATE: 10 December 2010
JUDGMENT OF: Allsop P at 1; Macfarlan JA at 34; Young JA at 40
EX TEMPORE JUDGMENT DATE: 10 December 2010
The orders of the Court are: 1. Appeal allowed. 2. Set aside orders of the Land and Environment Court made on 16 July 2009, dismissing with costs proceeding 40986 of 2008. DECISION: 3. Remit the matter to the Land and Environment Court for rehearing. It will be a matter for the Land and Environment Court to determine how to use the material already read before the Court. 4. Costs of the proceeding in the Land and Environment Court to date be dealt with by the judge of the Land and Environment Court at the resolution of the instant proceeding. 5. Save for the application to vacate, the hearing date heard on 13 December 2010 and save for the order for costs made on 27 October 2010, by Justices Handley and Sackville, which order is not disturbed, the respondents pay any out of pocket expenses of the appellant in the application for leave to appeal and in the appeal. 6. There be no order as to costs of the application to vacate the appeal, heard on 13 December 2010. 7. Each of the respondents have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
CATCHWORDS: PRACTICE AND PROCEDURE - procedural fairness - whether the primary judge denied the appellant procedural fairness - primary judge dismissed appellant's case for "implied discontinuance" by appellant - where appellant indicated he could not proceed after primary judge dismissed appellant's motion for the judge to recuse himself - consideration of duty of primary judge to unrepresented litigants to ensure litigant's proper understanding of proceedings and adequate opportunity to vindicate rights in court - duty to warn of consequences of dismissal and to ascertain whether intention to discontinue in circumstances.
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