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

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.
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.
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.
I heard the application for a stay this morning and concluded that the stay should be refused for the following reasons.
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.
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.
Thirdly, there are significant public health issues at stake in the LEC proceedings which militate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 201
Decision Date: 31 August 2020

CaseChat Overview and Summary

The applicant, Bobolas, sought a stay of judicial review proceedings pending in the Land and Environment Court against the respondent, Waverley Council. The application for a stay was heard by Macfarlan JA in the Court of Appeal.

The central legal issue before the Court of Appeal was whether there was a sufficient basis to intervene in the practice and procedure of the Land and Environment Court by granting a stay of its proceedings.

Macfarlan JA determined that no such basis had been demonstrated by the applicant. The court applied the principle that appellate intervention in matters of practice and procedure within a lower court is generally reserved for exceptional circumstances, and the applicant had failed to establish the necessary threshold for such intervention.

Consequently, the application for a stay was dismissed, and the applicant was ordered to pay the costs of Waverley Council.

Orders

Orders of the court

Application for stay dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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