Bobolas v Waverley Council

[2020] NSWCA 201

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bobolas v Waverley Council [2020] NSWCA 201
Hearing dates:	31 August 2020
Date of orders:	31 August 2020
Decision date:	31 August 2020
Before:	Macfarlan JA
Decision:	Application for stay dismissed with costs.
Catchwords:	APPEAL – application for order staying the hearing of judicial review proceedings in the Land and Environment Court – no basis demonstrated for appellate intervention in respect of a matter of practice and procedure
Category:	Procedural and other rulings
Parties:	Elena Bobolas (First Applicant) Liana Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	Counsel: Self-represented Applicants Mr R Lancaster SC / Ms J Reid (Respondent) Solicitors: Self-represented Applicants Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2020/253297
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2020] NSWLEC 103 Date of Decision: 31 July 2020 Before: Pain J File Number(s): 2020/91346

Judgment

1. This is an application by Elena, Liana and Mary Bobolas for an order staying the hearing of judicial review proceedings fixed for hearing this morning before Pain J of the Land and Environment Court (“the LEC”). The proceedings in the LEC relate to an order issued by the respondent, Waverley Council, requiring the removal of specified waste from a property owned by Mary Bobolas.

2. The LEC hearing was originally fixed for 12 and 13 October 2020 but after an interlocutory hearing before her Honour on 29 and 30 July 2020, her Honour, by judgment of 31 July 2020, re-fixed the final hearing for 31 August and 1 September 2020. Her Honour gave extensive reasons for taking that course ([2020] NSWLEC 103). The applicants seek leave to appeal against that decision and seek a stay pending determination of the application and any appeal that results.

3. Late last Friday, 28 August 2020, the applicants approached the Registrar of this Court indicating an intent to apply for an order staying the hearing to commence today in the LEC. That is, notwithstanding that Pain J’s decision was delivered over four weeks earlier, the applicants did not make any application to this Court until the afternoon of the last working day before the hearing was to commence.

4. I heard the application for a stay this morning and concluded that the stay should be refused for the following reasons.

5. First, the applicants waited until the very last moment before applying to this Court. They could have so applied at any time in the previous month. Their delay has prevented adequate notice being given to the respondent to address the application.

6. Secondly, if there has been any change in circumstances since Pain J’s decision of 31 July 2020, those circumstances could have been, and still can be, used as the basis of an application to Pain J for an adjournment. It is before her Honour, rather than this Court, that such matters should be raised.

7. Thirdly, there are significant public health issues at stake in the LEC proceedings which militate strongly in favour of an early hearing of the judicial review application. These are referred to in her Honour’s judgment.

8. Fourthly, nothing that was put to me in support of the stay application suggested that the applicants’ application for judicial review in the LEC has merit.

9. Fifthly, the issues whether the hearing should proceed and what directions should be made concerning preparation for that hearing are quintessentially matters of practice and procedure in relation to which this Court is reluctant to intervene. It would not do so in the absence of substantial grounds being demonstrated. This has not occurred. The applicants’ principal contention appears to be that at the 29 and 30 July 2020 hearing the respondent relied on circumstances which it said had changed but which had in fact been known to it when the hearing dates were first fixed. The applicants however brought this to Pain J’s attention, and Ms Elena Bobolas informed me today that her Honour dealt with the issue in her judgment. No error in her Honour’s judgment has been demonstrated.

10. For these reasons, the application of Elena, Liana and Mary Bobolas of a stay of the hearing in the LEC is dismissed with costs.

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Decision last updated: 31 August 2020