Jeray v Blue Mountains City Council (No 10) [2011] NSWLEC 161

Land and Environment Court New South Wales

Medium Neutral Citation: Jeray v Blue Mountains City Council (No 10) [2011] NSWLEC 161 Hearing dates: 9 September 2011 Decision date: 09 September 2011 Jurisdiction: Class 4 Before: Pain J Decision: The oral application by the Applicant for a stay of proceedings under r 51.44 of the Uniform Civil Procedure Rules 2005 is refused. Catchwords: PROCEDURE - whether stay of proceedings should be granted until hearing of three appeals in Court of Appeal in relation to two interlocutory orders and a contempt finding Legislation Cited: Uniform Civil Procedure Rules 2005 r 51.44 Cases Cited: Jeray v Blue Mountains City Council [2011] NSWLEC 28 Jeray v Blue Mountains City Council [2011] NSWLEC 54 Jeray v Blue Mountains City Council (No 9) [2011] NSWLEC 123 Partnership Pacific Ltd v Killen (NSWCA, Moffitt P, Reynolds and Hutley JJA, 10 April 1979, unreported) Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 Category: Procedural and other rulings Parties: Ivan Jeray (Applicant) Blue Mountains City Council (Respondent) Representation: Mr I Jeray (Applicant - in person) Mr D Baird (solicitor) (Respondent) Marsdens Law Group (Respondent) File Number(s): 40517 of 2010

EX TEMPORE Judgment 1This matter is listed before me as list judge to obtain a new hearing date. The Applicant, Mr Jeray, has made an oral application for a stay of these proceedings under r 51.44 of the Uniform Civil Procedure Rules 2005 generally because he filed on 11 August 2011 a notice of intention to appeal the decision of Sheahan J of 14 July 2011, Jeray v Blue Mountains City Council (No 9 ) [2011] NSWLEC 123. Further, Mr Jeray filed on 21 July 2011 a summons seeking leave to appeal Biscoe J's decision of 8 April 2011, Jeray v Blue Mountains City Council [2011] NSWLEC 54. 2Rule 51.44 states: Appeal proceedings do not operate as stay unless Court or court below directs (1) Subject to the filing of a relevant originating process, the Court may order that the decision below or the proceedings under the decision be stayed. (2) The filing of a relevant originating process does not: (a) operate as a stay of proceedings under the decision below, or (b) invalidate any intermediate act or proceedings. 3Sheahan J refused declaratory relief sought in prayers 5, 6, 7, 8, 9, 18 and 19 of the amended Notice of Motion filed on 11 July 2011 by Mr Jeray which related to conflict of interest and bias allegations at [59] and otherwise dismissed that motion. Biscoe J made the following orders and directions: 1.The applicant's amended notice of motion filed on 25 March 2011 is dismissed. 2.The applicant is to pay the respondent's costs of that notice of motion. 3.The exhibits may be returned. 4.Direct that: (a) The directions made on 18 February 2011 are vacated. (b) The applicant is to file and serve any evidence and (if he wishes) any amended statement of claim on which he intends to rely by 21 May 2011. (c) The respondent is to file and serve points of defence and any evidence on which it intends to rely by 7 June 2011. (d) The matter is to be fixed for final hearing for five days as soon as practicable after 21 June 2011. The parties are to approach the Registrar forthwith to obtain hearing dates. (e) By no later than six working days before the hearing the applicant is to file and serve his written submissions. (f) By no later than three working days before the hearing the Council is to file and serve its written submissions. 4Mr Jeray submits that these appeals must be heard and determined before the final hearing in this matter as the outcome affects the preparation of his case in this Court. 5He argued that his points of claim might need to be amended because he would be seeking further evidence from the Council. Mr Jeray was unwilling to disclose what documentation and/or evidence he required because he perceived the conflict issue dealt with by Sheahan J is still outstanding (that is, that the people involved are those instructing the Council's legal representatives in this matter). Mr Jeray also argued that he required a stay because the appeal periods have not yet expired and he would be prejudiced in the appeal proceedings. Further, he would not be able to file any further evidence in these proceedings until the appeals were heard. 6A further summons seeking leave to appeal, I have just been informed, was filed on 3 June 2011 in relation to a decision of Craig J delivered on 4 March 2011 Jeray v Blue Mountains City Council [2011] NSWLEC 28, in which his Honour dismissed a charge of contempt brought by Mr Jeray. I cannot see how that judgment can have any relevance to the preparation of this matter for hearing. As a contempt matter it was quite discrete from the issues that otherwise arise in the preparation of this case. There is no demonstrated basis to grant a stay because of the need to await the outcome of that appeal. 7The orders of Biscoe J and Sheahan J are interlocutory. Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 states in relation to interlocutory orders at [51.44.40] that a stay will not normally be granted (nor will expedition be ordered) where it is sought to appeal against interlocutory orders in civil proceedings where the main hearing of the proceedings will be delayed. In support, there is reference to the decision of Partnership Pacific Ltd v Killen (NSWCA, Moffitt P, Reynolds and Hutley JJA, 10 April 1979, unreported). This suggests the stay application should not be granted as clearly the hearing date will be delayed. I note that the matter has already been delayed because the hearing dates of 11 to 15 July 2011 were vacated. 8Another relevant consideration in stay applications is whether there appear to be reasonable prospects of success in an appeal. I have looked at the particular part of Sheahan J's judgment which Mr Jeray seeks to take issue with on appeal, that is at [23] - [32]. This deals with allegations of conflict of interest and bias in relation to Council officers who are, I gather, instructing the Council's legal representatives in this matter. Sheahan J made a finding that he sees no basis for any conflict of interest being established and no basis for there being a reasonable apprehension of bias. Looking at his reasoning there appears to be no reason why an appeal against that finding would be likely to succeed and for that reason also, I would not grant the oral application made by Mr Jeray for a stay of proceedings. 9Biscoe J considered an application by Mr Jeray to rely on further documents and information and made a finding that the request for information by Mr Jeray was "fishing". His Honour found there was no evidence to support the allegations of Mr Jeray supporting his application for information. Reading the summary of Biscoe J's findings at [13(10)] in Sheahan J's judgment, once again there appear to be no reasonable prospects of success, suggesting that a stay of proceedings should not be granted.