Bobolas v Waverley Council - [2011] NSWCA 242

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council [2011] NSWCA 242
Hearing dates: 8 August 2011
Decision date: 08 August 2011
Before: Basten JA at 1
Decision:
(1) Refer the applicants to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal on 7 October 2011 and any steps to be taken in preparation for that hearing.
(2) The costs of today are to be costs in the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
EVIDENCE -privilege - client legal privilege - not all communications between a client and Legal Aid Commission privileged

PROCEDURE - civil - parties - legal incapacity of one named applicant -no involvement of manager under NSW Trustee and Guardian Act 2009 (NSW) - whether party to the proceedings - application by occupiers of the premises
PROCEDURE - civil - parties - request for pro-bono representation- not likely to obtain legal assistance outside the scheme - delay on part of Legal Aid Review Committee - Uniform Civil Procedure Rules 2005(NSW) Rule 7.36
Legislation Cited: Legal Aid Commission Act 1979 (NSW), ss 25, 57
Local Government Act 1993 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 7.36; P 7, Div 9
Category: Procedural and other rulings
Parties:
Elena Bobolas - First Applicant
Liana Bobolas - Second Applicant
Mary Bobolas - Third Applicant
Waverley Council - Respondent
Representation:
Counsel:

Elena Bobolas and Liana Bobolas in person

Mr K Webber - Respondent
Solicitors:

Applicants self-represented
Wilshire Webb Staunton Beattie Lawyers - Respondent

File Number(s): CA 2010/9962
Decision under appeal

Citation:

Waverley Council v Bobolas (No 2) [2009] NSWLEC 211

Date of Decision:

2009-12-10 00:00:00

Before:

Pain J

File Number(s):

LEC 2009/40278

JUDGMENT

BASTEN JA : This matter involves an appeal from the Land and Environment Court which commenced in January 2010. A hearing date was fixed on at least one previous occasion which was vacated. There is presently a hearing date fixed for 7 October 2011. So far only draft written submissions have been filed by the appellants. The appellants say that their difficulty is that they are without funds and have not been able to obtain legal assistance for the preparation and presentation of their case. For that purpose they make an application for a court appointed referral for legal assistance pursuant to Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").

The application comes on this morning in circumstances where there has been a long outstanding issue as to whether or not legal aid will be available to the appellants.…

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.

Continue reading Bobolas v Waverley Council

Details

AGLC: Bobolas v Waverley Council [2011] NSWCA 242
Case: [2011] NSWCA 242
Decision Date: 08 August 2011

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Bobolas, sought to appeal a decision of the District Court of New South Wales concerning their property. Waverley Council was the respondent. The dispute involved issues of evidence and procedure, specifically concerning the legal capacity of one of the applicants and the extent of client legal privilege in communications with Legal Aid.

The Court of Appeal was required to determine whether all communications between a client and the Legal Aid Commission were privileged, and whether an applicant with legal incapacity, not represented by a manager under the NSW Trustee and Guardian Act 2009, was a proper party to the proceedings. Additionally, the Court considered an application for pro bono representation, assessing the likelihood of obtaining legal assistance outside the scheme and the delay by the Legal Aid Review Committee, in light of Uniform Civil Procedure Rules 2005 (NSW) Rule 7.36.

Basten JA noted that client legal privilege does not automatically extend to all communications with Legal Aid, particularly where the Legal Aid Commission is not acting in its capacity as a legal adviser. Regarding the legal incapacity of one applicant, the Court acknowledged the absence of a manager appointed under the relevant Act, but ultimately focused on the procedural aspects of the appeal and the need for legal representation. The Court recognised the applicants' difficulty in obtaining legal assistance and the potential for delay.

The Court ordered that the applicants be referred to the Registrar for referral to a barrister on the Pro Bono Panel to assist with the hearing of the appeal and related preparatory steps. The costs of the day were made costs in the appeal.

Orders

Orders of the court

(1) Refer the applicants to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal on 7 October 2011 and any steps to be taken in preparation for that hearing.

(2) The costs of today are to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bobolas v Waverley Council [2011] NSWCA 242
Hearing dates:	8 August 2011
Decision date:	08 August 2011
Before:	Basten JA at 1
Decision:	(1) Refer the applicants to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal on 7 October 2011 and any steps to be taken in preparation for that hearing. (2) The costs of today are to be costs in the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	EVIDENCE -privilege - client legal privilege - not all communications between a client and Legal Aid Commission privileged PROCEDURE - civil - parties - legal incapacity of one named applicant -no involvement of manager under NSW Trustee and Guardian Act 2009 (NSW) - whether party to the proceedings - application by occupiers of the premises PROCEDURE - civil - parties - request for pro-bono representation- not likely to obtain legal assistance outside the scheme - delay on part of Legal Aid Review Committee - Uniform Civil Procedure Rules 2005(NSW) Rule 7.36
Legislation Cited:	Legal Aid Commission Act 1979 (NSW), ss 25, 57 Local Government Act 1993 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 7.36; P 7, Div 9
Category:	Procedural and other rulings
Parties:	Elena Bobolas - First Applicant Liana Bobolas - Second Applicant Mary Bobolas - Third Applicant Waverley Council - Respondent
Representation:	Counsel: Elena Bobolas and Liana Bobolas in person Mr K Webber - Respondent Solicitors: Applicants self-represented Wilshire Webb Staunton Beattie Lawyers - Respondent
File Number(s):	CA 2010/9962
Decision under appeal	Citation: Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 Date of Decision: 2009-12-10 00:00:00 Before: Pain J File Number(s): LEC 2009/40278