Bobolas v Waverley Council

[2016] NSWCA 139

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Bobolas v Waverley Council [2016] NSWCA 139

Hearing dates:

18 April 2016

Date of orders:

23 June 2016

Decision date:

23 June 2016

Before:

McColl JA at [1], Simpson JA at [253], Sackville AJA at [254]

Decision:

Appeal dismissed with costs.

Catchwords:

LOCAL GOVERNMENT – enforcement of orders – Local Government Act 1993 (NSW) s 124 – Environmental Planning and Assessment Act 1979 (NSW) s 121B – whether orders invalid – whether orders served – whether denial of procedural fairness

 

PROCEDURE – adjournment application – Legal Aid Commission Act 1979 (NSW) s 57 – where parties seeking adjournment did not appear – whether primary judge erred in refusing adjournment application – whether bona fide appeal or intention to appeal refusal of legal aid

 

SERVICE – service of originating process – whether service effected

PROCEDURE – affidavit – whether affidavit valid despite irregularities in form – Uniform Civil Procedure Rules 2005 (NSW) rr 35.1, 35.7B – power of court to deal with procedural irregularities – Civil Procedure Act 2005 (NSW) s 63
EVIDENCE – ability to attend court – probative weight of heavily redacted medical certificates

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Interpretation Act 1987 (NSW)
Legal Aid Commission Act 1979 (NSW)
Local Government Act 1993 (NSW)
Oaths Act 1900 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409
Armidale Dumaresq Council v Vorhauer (No 3) [2014] NSWLEC 50
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Bobolas v Waverley Council [2012] NSWCA 126
Bobolas v Waverley Council [2014] NSWCA 78
Bobolas v Waverley Council [2014] NSWCA 131
Bobolas v Waverley Council [2015] NSWCA 204
Bobolas v Waverley Council [2015] NSWCA 216
Bobolas v Waverley Council (No 4) [2015] NSWCA 337
Cameron v Rural Press Ltd (1992) 35 FCR 211
City Finance Co Ltd v Matthew Harvey & Co Ltd [1915] HCA 75; (1915) 21 CLR 55
Commonwealth Bank of Australia v Clapham [2012] NSWSC 41
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271
Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354; (2007) 229 FLR 243
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
Director of Public Prosecutions v Emanuel [2009] NSWCA 42; (2009) 193 A Crim R 552
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Fibre-Tek (Gold Coast) Pty Ltd (in Liq) v Bennett [2006] NSWSC 1100
Hamod v State of New South Wales [2011] NSWCA 375
HSBC Bank Australia Ltd v Murtough [2010] NSWSC 320
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361
Lewis v Spencer [2007] NSWSC 1383; (2007) 179 A Crim R 48
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 90 ALJR 38
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190
Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Potier v R [2015] NSWCCA 130
Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rust v Barnes [1980] 2 NSWLR 726
Saraswati v R [1991] HCA 21; (1991) 172 CLR 1
Scott-Irving v State of New South Wales [2014] NSWSC 1006
Tahana v Secure Funding Pty Ltd [2013] NSWCA 19
Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143
Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512
Waverley Council v Bobolas [2009] NSWLEC 190
Waverley Council v Bobolas (No 3) [2015] NSWLEC 100
Waverley Council v Bobolas (No 4) [2015] NSWLEC 150
Wentworth v Rogers (No 12) (1987) 9 NSWLR 400
Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6

Texts Cited:

Matthew Bacon, A New Abridgement of the Law: Volume 1, (7th ed 1832, London)
Hamilton, Lindsay, Morahan & Webster, New South Wales Civil Procedure Handbook 2015, (5th ed 2015, Thomson Reuters)

Category:

Principal judgment

Parties:

Liana Bobolas (First Appellant)
Elena Bobolas (Second Appellant)
Mary Bobolas (Third Appellant)
Waverley Council (Respondent)

Representation:

Counsel:
Self represented (Appellants)
P Clay SC and J Reid (Respondent)

  Solicitors:
N/A (Appellants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2015/151997

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2015] NSWLEC 57; [2015] NSWLEC 66; [2015] NSWLEC 100

Before:

Pain J; Sheahan J

File Number(s):

41027 of 2014

Decisions under appeal

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The appellants, Mary, Elena and Liana Bobolas, reside at 19 Boonara Avenue, Bondi (property). Mary Bobolas is the registered proprietor of the property. The appellants have been engaged in litigation with Waverley Council (Council) in respect of the state of the property, in particular concerning the removal of waste they have amassed on the property, since at least 2005. The Council served orders on the appellants requiring them variously to carry out works both to remove the waste, to demolish a garage on the premises (Demolition Order) and to rectify safety issues said to be affecting the property and neighbouring residences. The appellants did not comply with any of the orders.

On 5 December 2014 the Council commenced civil enforcement proceedings in the Land and Environment Court (LEC), seeking orders permitting it to carry out the safety, demolition and removal works the subject of the orders.

On 6 February 2015 the appellants filed a motion seeking to set aside the originating process on the basis that it had not been served upon them. They did not appear on the hearing of the motion. Pain J held that the Council had effected personal service of the originating process on the appellants and dismissed their motion.

The substantive proceedings came before Sheahan J for hearing on 23 April 2015. The appellants did not appear, but sought an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) on the grounds that they were intending to appeal, or had appealed from, the refusal of a grant of legal aid. Sheahan J dismissed the adjournment application. He held the appellants had no bona fide intention to appeal and their foreshadowed appeal was a deliberate device to delay the proceedings. Sheahan J made the orders sought by the Council on 24 April 2015.

Subsequently the appellants sought by notice of motion filed in the LEC to set aside Sheahan J’s judgment and orders. Two of the appellants appeared on the hearing of this motion. Pain J dismissed that application.

The appellants appealed from each of the decisions referred to above and also sought to challenge numerous procedural steps taken in the course of the LEC proceedings.

The principal issues on appeal were:

(i) whether service of the originating process was effected in circumstances where the affidavit of service contained omissions such that the appellants contended it was invalid because it did not comply with provisions of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);

(ii) in respect of the appellants’ application for an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW), whether:

a.   Sheahan J erred in not holding that the Council, as the party opposing the adjournment application, bore the onus of proving that it was not bona fide; and

b.   Sheahan J erred in dismissing the adjournment application as not being bona fide in fact.

(iii)   In respect of the application to set aside Sheahan J’s orders, whether:

a.   Pain J erred in not holding that the Demolition Order was invalid because it was not issued to the owner of the garage; and

b.   Pain J erred in rejecting the appellants’ medical evidence that they were unfit to attend the hearing before Sheahan J.

Held, dismissing the appeal:

As to issue (i), per McColl JA (Simpson JA and Sackville AJA agreeing)

(1) Although the affidavit of service failed to comply with provisions of the UCPR, the information omitted did not go to substantial deficiencies which would mean it was not an “affidavit”: [111]

Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 considered.

(2) The affidavit of service was prima facie a document to which s 63(1) of the Civil Procedure Act 2005 (NSW) (“CPA”) applied. By virtue of s 63(2), the omissions were treated as irregularities which, subject to s 63(3), did not invalidate either the affidavit nor the service of the originating process: [113]

(3) The court would not set aside service of the originating process on the basis of the deficiencies identified because of the appellants’ failure to comply with s 63(4) of the CPA. It could not be said to be a “reasonable time” for the purpose of s 63(4) for the appellants first to specify the basis of their complaints about the affidavit of service on appeal. Accordingly, the affidavit was effective to establish service of the originating process on the appellants: [116] – [118]

As to issue (ii)(a), per McColl JA (Simpson JA agreeing; Sackville AJA not deciding)

(4) The opponent of a s 57 adjournment application does not bear the onus of displacing the prima facie position that, an appeal having been lodged, the proceedings are adjourned. Rather, the court or tribunal considering the matter may have regard objectively to all relevant material before it, keeping in mind the policy objectives and procedural context of s 57: [184]; [188] – [189]

As to issue (ii)(b), per McColl JA (Simpson JA and Sackville AJA agreeing)

(5) Based on the information before Sheahan J, it was open to his Honour to conclude objectively that the appellants’ foreshadowed appeal against the refusal of legal aid was a deliberate device to delay the proceedings. The appellants failed to establish any error in Sheahan J’s rejection of the s 57 adjournment application: [190] – [196]; [249]

As to issue (iii)(a), per McColl JA (Simpson JA and Sackville AJA agreeing)

(6) The Demolition Order was correctly served on Mary Bobolas in accordance with s 121B of the Environmental Planning and Assessment Act 1979 (NSW): [216]

As to issue (iii)(b), per McColl JA (Simpson JA and Sackville AJA agreeing)

(7)   Pain J correctly held that the appellants’ medical certificates had no probative value. They failed to address the critical question as to whether, and if so why, the medical condition would prevent each of them from travelling to the Court and participating effectively in a court hearing: [220] – [222]

**********

The LEC proceedings

Court of Appeal proceedings

Legislative framework

Environmental Planning and Assessment Act

Local Government Act

Issues on appeal

Bobolas (No 1)

Service of the originating process

Legislative framework

Service

Setting aside originating process

UCPR 35

Forms

Irregularities

The Council’s case on service

Appellants’ submissions

Council’s submissions

Consideration

Bobolas (No 2)

Section 57 adjournment application

The Council’s summons

Section 57 adjournment

Appellants’ submissions

Council’s submissions

Legislative framework

Consideration

Conclusion

Bobolas (No 3)

Consideration

Bobolas (No 4)

Service of the orders

Right of entry

Procedural fairness

Unrepresented litigants

Conclusion

Orders

JUDGMENT

1. McCOLL JA: The appellants, Mrs Mary Bobolas and her daughters, Liana and Elena Bobolas, appeal from orders made by Sheahan J in the Land and Environment Court (“LEC”) permitting the respondent, Waverley Council (“Council”), to carry out safety, demolition and removal works at the appellants’ residence, located at 19 Boonara Avenue, Bondi (“property”). [1] Mrs Bobolas is the sole registered proprietor of the property. She and her daughters reside there.

   1. Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 (“Bobolas (No 2)”).

2. The appellants have long been engaged in litigation with the Council in respect of the state of the property and the appellants’ conduct at the property in respect of waste. [2] As this Court has said, as at December 2012, “the parties were not strangers to each other”, there having been “issues relating to the removal of waste at the property since at least 2005.”[3] Sheahan J identified 24 LEC judgments and 5 Court of Appeal judgments involving the same parties. [4]

   2. Ibid (at [43]).

   3. Bobolas v Waverley Council [2014] NSWCA 131 (at [7]).

   4. Bobolas (No 2) (at [44]).

3. These proceedings are another stage in the saga. Broadly speaking, they arise from steps taken by the Council to require the appellants to carry out safety, demolition and removal works at the property and, absent their action, to enable the Council, with the benefit of court orders, to undertake those works. It is a sufficient description of the works the Council seeks to have undertaken, or to take absent the appellants doing so, to say that they relate to the following: the removal of accumulated waste from the property which the Council alleges is causing, or likely to cause, a threat to public health and the health of individuals; a demolition order (addressed to Mrs Bobolas alone) in respect of the garage at the rear of the premises which is alleged to be dilapidated, and in danger of collapse, and thus to be prejudicial to the occupants and/or persons or properties in the neighbourhood; and a safety order concerning the removal of a creeping fig from the south side of the dwelling on the property which the Council alleges is growing in such a manner as to be likely to cause harm to the occupants, any neighbouring property or persons in the vicinity of the dwelling.

4. For the reasons that follow, I am of the view that the appeal should be dismissed with costs.

The LEC proceedings

5. The Council commenced civil enforcement proceedings seeking the required orders by way of summons filed in the LEC on 5 December 2014 which was allocated file number 14/41027 (“LEC summons”). The Council sought a declaration that the appellants had failed to comply with the terms of orders issued by the Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”) in the case of Mrs Bobolas and s 124 of the Local Government Act 1993 (NSW) (“LG Act”) in relation to each of the appellants as set out below.

6. The orders sought included:

1. Orders to allow the Council to execute its functions pursuant to s 678(10) of the LG Act and s 121ZJ of the EPA Act to carry out safety and demolition works which it contended Mrs Bobolas had been required, but had failed, to do; [5]

2. An order pursuant to s 678(10) of the LG Act allowing the Council to execute its functions to carry out removal works which were works it contended the appellants were required, but had failed, to do; [6]

3. An order that the appellants abstain from doing any act which might interfere with or impede the Council from completing those works; [7]

4. Ancillary orders in relation to the engagement of a structural engineer and an arborist, [8] disconnection of services, [9] unlocking and removal of gates, [10] cutting of vegetation [11] and the removal of any motor vehicle obstructing the works; [12] and

5. Orders that the appellants pay the Council’s reasonable expenses incurred in the execution of the orders, and the Council’s legal costs of or incidental to the proceedings. [13]

   5. Summons, Prayers 4 – 5.

   6. Summons, Prayer 6.

   7. Summons, Prayer 14.

   8. Summons, Prayers 9 – 10.

   9. Summons, Prayer 11.

   10. Summons, Prayer 12.

   11. Summons, Prayer 16.

   12. Summons, Prayer 17.

   13. Summons, Prayers 18 - 19.

7. Sheahan J made those orders. However, the appeal is not confined to his Honour’s orders. The notice of appeal identifies the material dates in respect of the proceedings in the LEC as 6 February 2015, 24 February 2015, 27 February 2015, 13 March 2015, 20 March 2015, 17 April 2015, 23 April 2015, 24 April 2015 and “all other dates”. The LEC gave substantive decisions on two of the specified dates. All others appear to be occasions on which procedural matters were addressed. What occurred on all occasions for which a specified date is given is set out below. In their written submissions, the appellants said “all other dates” was a reference to “all other dates whether in the lower Court (LEC) or in the Supreme Court; it includes both Registrars and Judges.” In addition to the dates specified above, the appellants complain about Waverley Council v Bobolas (No 3),[14] a decision of Pain J delivered on 18 June 2015. I deal with that decision later in these reasons.

   14. [2015] NSWLEC 100 (“Bobolas (No 3)”).

8. The Council relied for proof of service of the LEC summons on an affidavit sworn by Mr Fahim on 11 December 2014 (“Fahim affidavit”). The Fahim affidavit was read on 20 March 2015, on the hearing of a motion filed by the appellants in the LEC on 6 February 2015 seeking to set aside the originating process (“6 February motion”). The Fahim affidavit was corrected by a further affidavit sworn on 13 March 2015 in which Mr Fahim referred to his affidavit of 11 December 2014. He changed a reference to a person who he had said followed him from the property after he served the LEC summons, from Ms Liana Bobolas to Ms Elena Bobolas.

9. The first return date of the summons was 6 February 2015. On that occasion, Craig J made orders setting a timetable for the filing of pleadings and evidence in preparation for hearing. The matter was also set down for hearing on 23 and 24 April 2015.

10. The appellants did not appear on 6 February 2015. However, on that day they filed the 6 February motion which was returnable on 27 February 2015. Save as to those parts of the document which were in standard form, the motion was handwritten. Each page was headed “Filed under objection, protest and duress”. The motion was described as “Notice of objection to service under r10.19 UCPR”. It also stated:

“This document does not constitute the entering of an appearance (Rules 12.11(3)(a) & (b)) by any of the 3 Bobolas.”

11. The 6 February motion sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 12.11(1)(a) – (c), setting aside the originating process, setting aside the service of the originating process on the appellants and an order declaring that the originating process had not been duly served on them. It also sought orders pursuant to UCPR 12.11(1)(f)(i) (protecting property threatened with seizure) and, pursuant to UCPR 12.11(1)(g) and (h) (setting aside originating process), orders declaring that the court had no jurisdiction over the appellants in respect of the subject-matter of the proceedings and/or an order declining to exercise jurisdiction in the proceedings. It also sought orders pursuant to UCPR 36.15 to set aside the orders made by Craig J on 6 February 2015 on the basis they were made “irregularly, illegally or against good faith”. The motion also invoked various clauses of UCPR 36.16.

12. A note on the motion added:

“Please note: none of the Bobolas family has been personally served with any documents relating to the case listed as 14/41027.”

13. Another stated:

“Bobolas reminds the Court that the Court & the other side have a duty of care to unrepresented litigants, & a duty to uphold justice. Any conflict of interest/partiality is unacceptable.” [15]

15. Similar, if not identical, annotations to those set out in [12] – [13] appear on almost all documents the appellants have filed in the LEC proceedings. Even the notice of appeal bears the annotation “UCPR 10.19 applies”, a pointless note as that rule does not apply to a party initiating an appeal, but only to a party who files a document in reply to a document alleged to have been served on that party.

14. The appellants relied on two affidavits to support the motion, affirmed by Ms Liana Bobolas and Ms Elena Bobolas on 5 February 2015. Each affidavit said none of the documents relating to case number 14/41027 had been served on the deponent, the deponent’s sister or Mrs Bobolas. Each affidavit also stated it was a notice of objection to service pursuant to UCPR 10.19. There were references to other rules it is unnecessary to repeat.

15. On 17 February 2015 Mr Webber, the Council’s solicitor, posted to each appellant a letter advising of the orders Craig J made on 6 February 2015 and stating that the matter had been fixed for hearing on 23 and 24 April 2015.

16. On 24 February 2015 the Council notified the Court (by eCourt) of a slippage in the timetable set on 6 February 2015 and sought an amendment which allowed time for each party to file evidence and pleadings. The amendment was granted. The Council was directed to notify the appellants of the amended timetable. It said it did so.

17. It appears that on 27 February 2015, the 6 February motion was listed for hearing on 13 March 2015. According to the Council’s chronology, the appellants did not appear on the latter day. Rather, they forwarded a facsimile to the Court advising that they were unwell. Pain J adjourned the motion to 20 March 2015 and directed the Council to serve on the appellants any evidence upon which it intended to rely for the hearing of the motion. [16]

    16. Affidavit of Mr Webber sworn 16 March 2015.

18. On 2 March 2015, Mr Webber signed, and caused to be posted, a letter to each appellant enclosing the Council’s points of claim and 10 affidavits being the evidence which, in due course, the Council relied upon before Sheahan J.

19. Robert Fahim swore an affidavit of service on 20 March 2015 in which he deposed that on 13 March 2015 he attended the Council’s solicitors’ offices where he saw a covering letter (Annexure A), his affidavits of 11 December 2014 and 13 March 2015, an affidavit of Richard Meaney of 13 March 2015 (including a DVD) and an affidavit of David Rofe of 13 March 2015 being placed into three clear plastic pockets.

20. Mr Fahim said he then attended the property where he affixed the plastic pockets containing those documents to the front gate. Three copies of the covering letter were addressed to each of the appellants. The letter advised that the appellants’ notice of motion had been returnable on 13 March 2015 and had been adjourned for hearing before Pain J on 20 March 2015 at 2pm. It also advised that the Council had been directed to serve its evidence by close of business on 16 March 2015. It identified as enclosed each of the above affidavits by way of service. Annexure B to Mr Fahim’s affidavit included two photographs showing what appeared to be three plastic packets containing documents and a container with either a CD or a DVD attached to a metal gate in a stone or concrete fence, behind which was a large accumulation of rubbish.

21. On 19 March 2015, Ms Mostafa affirmed an affidavit in which she deposed that on 13 March 2015 she had organised the preparation of three express envelopes addressed to each of the appellants at the property. She had placed into each of the envelopes a covering letter addressed to each appellant as well as Mr Fahim’s affidavits of 11 December 2014 and 13 March 2015, Mr Meaney’s affidavit of 13 March 2015 including a DVD in a plastic case and an affidavit of Mr Rofe sworn 13 March 2015. She had sealed each envelope and placed each in an express post box. She attached a copy of the covering letter with its express post envelope reference tag and a printout from the Australia Post Track Your Item website. The printout showed by reference to each document’s tracking number that each appellant’s envelope had been delivered on 16 March 2015.

22. Pain J dealt with the 6 February motion on 20 March 2015. The appellants did not appear. The challenge to the originating process was dealt with on the basis that the appellants alleged the LEC summons had not been properly served. I deal with this judgment in more detail below. Suffice it to say at this stage that her Honour dismissed the motion. [17]

    17. Waverley Council v Bobolas [2015] NSWLEC 57 (“Bobolas (No 1)”).

23. On 20 March 2015, Mr Webber signed, and caused to be posted to each appellant, a letter advising of the outcome of the determination of the 6 February motion by Pain J on 20 March 2015 and of the timetable her Honour had directed the Council and the appellants to observe. The letter also advised that the hearing dates of 23 and 24 April 2015 had been confirmed.

24. On 27 March 2015, Mr Webber signed, and caused to be posted, letters to each appellant enclosing two further affidavits.

25. The appellants filed a further notice of motion on 7 April 2015 ("7 April motion"), which sought, in substance, the same orders as had the 6 February motion. It was returnable on 17 April 2015. The 7 April motion came before Sheahan J as duty judge on the return date. The appellants did not appear. His Honour dismissed the motion “as it replicated that upon which Pain J had already ruled.” [18]

    18. See Bobolas (No 2) (at [41]).

26. On 17 April 2015, Mr Webber signed, and caused to be posted to each appellant, an affidavit of Mr Schilt filed on 17 April 2015.

27. Sheahan J heard the Council’s summons on 23 – 24 April 2015. The appellants did not appear. They sought an adjournment which his Honour refused. On 24 April 2015 his Honour made the declaration as sought in prayer 2 of the summons and the orders sought in prayers 3 – 18 as slightly modified in short minutes of order filed in court on 24 April 2015. I deal with this judgment later in these reasons.

28. As I have said, the notice of appeal refers to “all other dates”. That is not a permissible entry on a notice of appeal, which requires details identifying the proceedings in the court below the subject of the appeal. [19] However, the Red Book includes notices of motion and judgments which post-date Sheahan J’s orders. I set out details of those matters to the extent they were referred to either in the appellants’ written or oral submissions.

    19. UCPR 51.18(1).

29. On 7 May 2015 the appellants filed a notice of motion dated 30 April 2015 (“30 April motion”), seeking to have various orders made by Sheahan J on 24 April 2015 reconsidered. The motion was heard by Pain J on 10 June 2015. Elena and Liana Bobolas appeared. Her Honour dismissed the motion on 18 June 2015. [20] I deal with her Honour’s judgment in more detail later in these reasons.

    20. Bobolas (No 3) (at [27] – [47]).

30. On 24 June 2015 the appellants filed another notice of motion in the LEC (“24 June motion”). Once again, they sought to complain that none of them had been personally served with any documents in relation to the proceedings. Among a wide ranging number of claims including, for example “Bobolas seeks orders from the Court for ALL DATES”, the documents attached to the motion complained that the Fahim affidavit was “not valid” and that “this issue has not been heard”. The basis of the assertion of invalidity was not set out.

31. The Council filed a motion on 29 July 2015 (“Council motion”) seeking an order pursuant to UCPR 13.4(1) that the 24 June motion be dismissed in substance as constituting an abuse of process both because the motion had no prospects of success, and because it was a relitigation of matters already determined. [21] The motion was heard by Pain J on 26 August 2015. I deal with her Honour’s judgment in more detail later in these reasons.

    21. Waverley Council v Bobolas (No 4) [2015] NSWLEC 150 (at [1] – [5]) (“Bobolas (No 4)”).

Court of Appeal proceedings

32. On 21 May 2015 the appellants filed a notice of appeal in the Court of Appeal, appealing against the decisions of the LEC given on the material dates and “other dates” to which I have referred. At least two motions have been filed by the appellants in the course of the appeal.

33. The appellants filed a notice of motion in the Court of Appeal on 8 July 2015 (“8 July motion”) seeking a stay of Sheahan J’s orders pending determination of the appeal. Basten JA heard the motion. Liana Bobolas and Elena Bobolas, but not Mrs Bobolas, appeared. The Council indicated that it was content to agree to a stay of the demolition and safety orders, and only sought to pursue the removal of waste on the premises and the order requiring the appellants to cease accumulating further waste on the premises. [22] Liana Bobolas and Elena Bobolas opposed that course.

    22. Bobolas v Waverley Council [2015] NSWCA 204 (at [3]).

34. Basten JA concluded that the potential prejudice to the applicants which would arise from the removal of such waste was very limited and largely speculative and was outweighed by “[t]he public interest in matters of health and safety.”[23] On this basis, subject to giving effect to the concessions made by the Council, his Honour ordered that the motion should be dismissed. He directed that the costs of the motion be costs in the appeal. [24]

    23. Ibid (at [20]).

    24. Ibid (at [21]).

35. Finally, by notice of motion filed 17 July 2015 (“17 July motion”), the appellants sought an order setting aside part of Basten JA’s orders pursuant to UCPR 36.15, 16 and 17. That motion came before Beazley P on 20 July 2015. Her Honour considered each of those UCPR provisions and determined that the appellants had failed to demonstrate any grounds for setting aside Basten JA’s orders. Accordingly, she dismissed their motion with costs. [25]

    25. Bobolas v Waverley Council [2015] NSWCA 216 (at [23], [26]).

Legislative framework

36. A chronology of the orders the Council sought to enforce can conveniently be set out in juxtaposition to their legislative basis.

Environmental Planning and Assessment Act

37. On 8 July 2014, the Council issued an order pursuant to s 121B of the EPA Act to Mrs Mary Bobolas (“Demolition Order”). Section 121B, which appears in Division 2A of Part 6 of the EPA Act (Implementation and enforcement), enables a council (among others) to give an order to a person to do or to refrain from doing a thing specified in Column 1 of the Table which appears in the section, if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. The Demolition Order concerns a garage on the property which the Council contends has become dilapidated, unstable and is likely to collapse. [26]

    26. Bobolas (No 3) (at [5]) per Pain J.

38. Item 2 in the Table which forms part of s 121B permits a council to issue an order to “demolish or remove a building” on the basis, relevantly, that the building “is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood”. The order must be served on the owner of the building. “Owner” is defined in s 4(1) of the EPA Act to have “the same meaning as in the [LG Act] and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected.” “Owner” is given various meanings in the LG Act, of which that relevant is “every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession”. [27]

    27. LG Act, Dictionary.

39. The Demolition Order, in substance, required Mrs Bobolas to engage a qualified engineer to inspect the garage and prepare a report making recommendations as to how it should be demolished and removed, which report was to include recommendations as to how that could be accomplished without causing injury or damage to any person or property. The order required the engineer’s report to be provided to the Council for its approval and, upon approval, for Mrs Bobolas to demolish and remove the garage under the supervision of the author of the engineer’s report and in accordance with the recommendations in the report. Further, upon completion of the demolition and removal of the garage, the order required Mrs Bobolas to provide to the Council a certificate from the engineer who supervised the demolition and removal of the garage confirming that that demolition and removal had proceeded in accordance with the engineer’s report.

40. Failure to comply with an order given under Division 2A is a breach of the EPA Act. [28] Any person may bring proceedings in the LEC for an order to remedy a breach of the EPA Act. [29] Where the LEC is satisfied that a breach of the EPA Act has been committed it may make such order as it thinks fit to remedy the breach. [30]

    28. EPA Act, s 122.

    29. EPA Act, s 123(1).

    30. EPA Act, s 124(1).

41. In the event a person fails to comply with the terms of an order given to him or her under Division 2A of Part 6 of the EPA Act, s 121ZJ(1) and (2) of the EPA Act empowers a council to do all such things as are necessary or convenient to give effect to the terms of the order, including carrying out any work required by the order.

42. Where under the EPA Act any notice or other document is required to be served, that may be done in the case of an individual by delivering it to him or her or by sending it by pre-paid post addressed to him or her at, relevantly, that person’s usual or last known place of abode. A notice or other document sent by pre-paid post is deemed to have been served at the time at which the notice or other document would be delivered in the ordinary course of post. [31]

    31. EPA Act, s 153.

Local Government Act

43. Section 124 of the LG Act appears in Chapter 7 (What are the Regulatory Functions of Councils?), Part 2 (Orders), Division 1 (Giving of orders) and provides:

“124 Orders

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

…”

44. Item 21 in Column 1 empowers a council to give an order requiring the recipient to do or refrain from doing such things as specified in the order to ensure that land is, or premises are, placed or kept in a safe and healthy condition in the circumstances specified in Column 2 (land or premises not in safe or healthy condition). The order may be served on the owner or occupier of the land or premises (Column 3).

45. Item 22A in Column 1 empowers a council to give an order requiring the removal or disposal of waste on any residential premises or to refrain from keeping waste on those premises, in the circumstances specified in Column 2, relevantly if the waste is causing or likely to cause a threat to public health or the health of any individual. The order may be served on the owner or occupier of the premises (Column 3).

46. An order under the LG Act is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order. [32] A notice required by or under the LG Act to be served on a person may be served by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person. [33]

    32. LG Act, s 144.

    33. LG Act, s 710(2)(c) and (e).

47. In respect of service by post, s 76(1) of the Interpretation Act 1987 (NSW) relevantly provides:

“76 Service by post

(1)    If an Act or instrument authorises or requires any document to be served by post (whether the word ‘serve’, ‘give’ or ‘send’ or any other word is used), service of the document:

(a)    may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b)    in Australia or in an external Territory–is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and

(c)    in another place–is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.

…”

48. On 8 July 2014 the Council gave Mrs Bobolas a notice pursuant to Item 21 of s 124 of the LG Act requiring her to carry out safety works on the property (“Safety Order”). The Safety Order concerns a Creeping Fig plant that the Council has identified to be the cause of guttering damage on the property and likely damage to a boundary fence. [34]

    34. Bobolas (No 3) (at [5]).

49. On 1 August 2014, the Council gave orders pursuant to Item 22A of s 124 of the LG Act to the appellants (“Refrain Order”).

50. Also on 1 August 2014, the Council gave the appellants orders again pursuant to Item 22A of s 124 of the LG Act requiring them to carry out removal works at the property (“Removal Order”).

51. Chapter 8 of the LG Act sets out ancillary functions of a council. Section 200, which appears in Part 2 (Entry on to land and other powers) provides:

“200 In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:

(a)    with the permission of the occupier of that part of the premises, or

(b)    if entry is necessary for the purpose of inspecting work being carried out under an approval, or

(c)    under the authority conferred by a search warrant.”

52. Chapter 17 of the LG Act deals with enforcement. Section 678, which appears in Part 1 (General), Division 1 (Legal proceedings) provides:

678 Failure to comply with order-carrying out of work by the council

(1)    If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

...

(10)   In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.”

53. Failure to comply with an order under Part 2 of Chapter 7 is a contravention of or failure to comply with the LG Act. [35] A council, among others, may bring proceedings in the LEC for an order to remedy or restrain such a breach. [36]

    35. LG Act, s 672.

    36. LG Act, s 673.

Issues on appeal

54. It is convenient to deal with each substantive decision of which the appellants complain in chronological order and address their complaints about each judgment in that juncture. In order to provide an overview of the ambit of the appeal, however, I set out a summary of their 33 grounds of appeal, the last of which states “[t]here are more grounds.”

55. The respondent categorises the issues raised by those 33 grounds as follows:

1. Whether there was an error in relation to reliance on the Fahim affidavit; [37]

   37. Grounds 1 and 2.

2. Whether the appellants were denied procedural fairness (or there was some other error) in Sheahan J’s decision to refuse an adjournment of the final hearing pursuant to LAC Act, s 57; [38]

   38. Grounds 3, 4, 18 – 24.

1. Whether service of the originating process was not effected, and whether an accompanying affidavit was required to be filed with it; [39]

2. Whether the Council’s s 124 orders were served on the appellants; [40]

3. Whether there was a denial of procedural fairness relating to the Council’s non-compliance with the directions of the Court;

4. Whether the LEC and the Council breached their respective duties of care to the appellants; and [41]

5. Whether there was a denial of procedural fairness when the appellants were not given notice of the orders or directions that would be sought by the Council in the LEC [42] and when the hearing date was listed in the appellants’ absence. [43]

   39. Grounds 5, 13 and 14.

   40. Grounds 15 and 16.

   41. Grounds 7, 8 and 11.

   42. Ground 17.

   43. Grounds 27 and 32.

56. In my view that is an accurate summary of the specific issues the appellants seek to raise. They also complained in non-specific terms that their notices of motion were not fairly heard/considered and or given full/fair consideration.

Bobolas (No 1)

57. The appellants did not appear on 20 March 2015. At some stage which does not clearly appear from the papers, it appears the appellants amended the 6 February motion to seek orders setting aside Craig J’s orders of 6 February 2015. Pain J resolved to hear the amended 6 February motion in their absence.

58. The following materials were before Pain J on the hearing:

1. The 6 February motion;

2. Affidavit in support of notice of motion of Elena Bobolas dated 5 February 2015;

3. Affidavit in support of notice of motion of Liana Bobolas dated 5 February 2015;

4. Affidavit of service sworn by Robert Fahim on 11 December 2014;

5. Affidavit of service sworn by Robert Fahim on 13 March 2015;

6. Affidavit of service sworn by Robert Fahim on 20 March 2015;

7. Affidavit of service sworn by Richard Meaney on 13 March 2015;

8. Affidavit of service affirmed by Umi Mostafa on 19 March 2015.

59. As I have said, the Council relied on the Fahim affidavit (corrected by his 13 March affidavit) for proof of service of the LEC summons.

60. Pain J summarised the Council’s evidence as follows:

“[3]   The Applicant, Waverley Council (the Council) has read a number of affidavits in support of its argument that the Notice of Motion should be dismissed on the basis the originating documents were properly served. I will briefly identify these. An affidavit of Mr Fahim, process server, sworn 11 December 2014 was read. When Mr Fahim attended the premises at which the three Respondents reside at 19 Boonara Avenue, Bondi, he states that he proceeded to enter the property and he attests to conversations he had with the three Respondents present on that occasion.

[4]   As he was attending to serve the summons commencing these proceedings, he identified to the Respondents that he was serving them with a summons. He was told that he was trespassing and he should leave the property. He informed them that he was serving them with a summons and he placed it on the property very close to them and clearly in their line of sight. Support for that is also found in the affidavit of service of Mr Meaney, process server, sworn 13 March 2015 read in these proceedings. In his affidavit he attaches a surveillance report which provides in narrative form and in photographs a record of those actions to which Mr Fahim attested in his affidavit.

[5]   In particular, I note in the surveillance report on the second page there is a photograph which shows Mr Fahim clearly placing documents within the view of the Respondents on their property. There is a DVD attached to that affidavit which was taken by Mr Meaney on that occasion. In light of the written evidence I do not need to see that.

[6] In relation to the requirements for service, I have been directed to r 10.20(2)(a) of the UCPR in relation to how personal service is to be effected. Personal service of a document can be effected where a person does not accept a copy, by putting the copy down in the person’s presence and telling the person the nature of the document. Alternatively under subsection (2), it can be left as near as practicable to that person. Mr Fahim’s evidence confirms that he has effected personal service on all three Respondents as provided for by that rule and the Council has proved its case in that regard.

[7]   Additional affidavits have also been sworn more recently to confirm compliance with orders made by the Court last Friday which I note for the record. These are the further affidavit of Ms Mostafa, Council officer, sworn 19 March 2015. Ms Mostafa attests to sending by express post the affidavits relied on by the Council today, that is the affidavit of Mr Fahim sworn 11 December 2014, the further affidavit of Mr Fahim sworn 13 March 2015 and read in the proceedings. In the second affidavit Mr Fahim clarifies the identities of Leanna and Eleanor Bobolas in his earlier affidavit.

[8]    The affidavit of Mr Meaney sworn 13 March including the DVD, and the affidavit of Mr Rofe sworn 13 March 2015, were also sent by express post to 19 Boonara Avenue, Bondi. I formally note that there is a second affidavit of Mr Fahim sworn 20 March 2015 where he attests to attending at 19 Boonara Avenue, Bondi, in the company of a ranger from the Council, on 13 March 2015, when he affixed to the fence of 19 Boonara Avenue Bondi the relevant documents required to be served on the Respondents in this fashion last Friday. His second affidavit confirms that this occurred. Photographs are attached to the affidavit which show those documents being attached to the fence. The requirements of the Court last week have been complied with.”

61. Having considered this evidence, her Honour found that the Council had established it had effected personal service on the appellants in accordance with UCPR 10.20(2)(a). Accordingly, she determined the appellants had established no basis to make an order setting aside the originating process under UCPR 12.11. [44]

    44. Bobolas (No 1) (at [3] – [6], [9]).

62. Insofar as the motion sought to set aside Craig J’s 6 February 2015 orders, Pain J concluded that, as all the time periods in the orders had expired, there was nothing effectively to set aside. [45] Accordingly, her Honour dismissed the 6 February motion. Her Honour also made further orders for the Council to file its evidence and for the appellants to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015, for service of the Council documents on the appellants and for the Council to notify the appellants of the timetable change and the hearing date.

    45. Ibid (at [12]).

63. The consequence of her Honour’s ruling should have been to require the appellants to file notices of appearance. It is not apparent that occurred. Rather, the appellants continued to file motions in the LEC on which the words “Filed under objection, protest & duress” and the like appeared. [46]

    46. Cf Bobolas v Waverley Council (No 4) [2015] NSWCA 337 (at [59] – [60]) per Basten JA (Leeming JA and Tobias AJA agreeing) (“Bobolas CA (No 4)”).

Service of the originating process

64. Grounds 1 and 2 of the notice of appeal contend the Fahim affidavit was “not valid” and “defective”. Grounds 13 and 14 contend that the LEC summons was not served on the appellants. Ground 5 contends “an originating process must have an affidavit with it.”

Legislative framework

Service

65. A person may commence proceedings in the LEC by filing a summons. [47] Originating process must be served on each defendant. [48] “Originating process” means the process by which proceedings are commenced. [49]

    47. UCPR 6.1.

    48. UCPR 6.2(3).

    49. Civil Procedure Act 2005 (NSW), s 3(1) (“CPA”).

66. Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party. [50] Except as otherwise provided by the UCPR, originating process in the LEC must be personally served. [51]

    50. UCPR 10.1(1).

    51. UCPR 10.20(2)(a).

67. A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed. [52] A defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. [53]

    52. UCPR 10.19.

    53. UCPR 10.20(5).

68. Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document. [54]

    54. UCPR 10.21(1).

Setting aside originating process

69. In any proceedings, the court may make an order setting aside the originating process, setting aside the service of the originating process on the defendant and/or declaring that the originating process has not been duly served on the defendant. [55] Such an order may not be made unless a notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. [56] A notice of motion under UCPR 12.11(2) may be filed without entering an appearance. [57] The making of an application for an order under UCPR 12.11(1) does not constitute submission to the jurisdiction of the court. [58]

    55. UCPR 12.11(1)(a) – (c).

    56. UCPR 12.11(2).

    57. UCPR 12.11(3).

    58. UCPR 12.11(4).

70. In the case of proceedings commenced by summons, the time limited for a defendant to enter an appearance is on or before the return day stated in the summons, or if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application, whichever is the later. [59]

    59. UCPR 6.10(1)(b).

UCPR 35

71. UCPR 35 deals with affidavits. An affidavit may, with the leave of the court, be used despite any irregularity in form. [60]

    60. UCPR 35.1.

72. UCPR 35.7B requires each page of an affidavit to be signed by the deponent and by the person before whom it is sworn. [61] This requirement “helps to protect the authenticity of the affidavit.” [62] Failure to comply is an irregularity which can be overcome by UCPR 35.1. [63]

    61. UCPR 35.7B.

    62. Hamilton, Lindsay, Morahan & Webster, New South Wales Civil Procedure Handbook 2015, (5th ed 2015, Thomson Reuters) at 787 [r 35.7B].

    63. Ibid.

73. An affidavit of service of a document that has been served must clearly identify the document, but must not annex a copy of the document unless the document has not been filed. It must contain a statement as to when, where, how and by whom service was effected, a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject matter of the proceedings, and a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age. [64]

    64. UCPR 35.8.

74. Pursuant to s 34 of the Oaths Act, any affidavit required for the purpose of any court may be taken or made in any place in New South Wales before any Justice of the Peace for this State. [65] A person who takes and receives an affidavit in New South Wales (an authorised witness) must see the face of the person making the affidavit, must know the person who makes the affidavit or confirm the person’s identity in accordance with the Oaths Regulation 2011 (NSW), and must certify on the affidavit in accordance with the regulations that s 34 has been complied with. [66] A failure to comply with s 34 does not affect the validity of any statutory declaration or affidavit. [67]

    65. Oaths Act 1900 (NSW), s 26(1)(a).

    66. Oaths Act, s 34(1).

    67. Oaths Act, s 34(4).

Forms

75. Subject to the UCPR, the Uniform Rules Committee may approve forms for documents to be used in connection with civil proceedings. [68] If a form is approved in relation to a document to be used in connection with proceedings in a court, a document that is filed with the court is to be in that form. [69] In addition, s 80 of the Interpretation Act relevantly provides:

“80 Compliance with forms

(1)    If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2)    If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

…

(4)    If an Act or statutory rule requires anything to be in a form prescribed by rules of court (whether generally or in relation to a particular court or tribunal), any such rules of court may instead provide for the thing to be in a form approved under or in accordance with those rules.”

68. CPA, s 17(1).

69. CPA, s 17(3).

76. Section 20 of the Interpretation Act provides that “[i]n any Act … ‘prescribed’ means prescribed by, or by a statutory rule made under, the Act in which that word occurs.” A rule of court is a statutory rule. [70]

    70. Interpretation Act, s 21(1).

77. Form 41 is the form approved pursuant to CPA, s 17 for an affidavit of service. The jurat provides for entry of the following details:

“#SWORN #AFFIRMED at   

Signature of deponent   

Name of witness   

Address of witness

Capacity of witness [#Justice of the peace #Solicitor #Barrister #Commissioner for affidavits #Notary public]

And as a witness, I certify the following matters concerning the person who made this affidavit (the deponent):

1 #I saw the face of the deponent. [OR, delete whichever option is inapplicable] #I did not see the face of the deponent because the deponent was wearing a face covering, but I am satisfied that the deponent had a special justification for not removing the covering.[*]

2 #I have known the deponent for at least 12 months. [OR, delete whichever option is inapplicable] #I have confirmed the deponent’s identity using the following identification document:

Identification document relied on (may be original or certified copy)[†]

Signature of witness   

Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.”

Irregularities

78. CPA, s 63 provides:

“63 Directions with respect to procedural irregularities

(1)   This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2)   Such a failure:

(a)   is to be treated as an irregularity, and

(b)   subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3)   The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):

(a)   it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b)   it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.

(4)   The court may not take action of the kind referred to in subsection (3)(a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.”

79. As I have said, pursuant to UCPR 35.1, an affidavit may, with the leave of the Court, be used despite any irregularity in form.

The Council’s case on service

80. As I have said, the Council relied on the Fahim affidavit for proof of service of the LEC summons. The Fahim affidavit was sworn before a Justice of the Peace. It is five pages long. The first page sets out formal details of the LEC proceedings. The second page sets out Mr Fahim’s name, address, occupation and the date of the affidavit. The text of the affidavit then commences and continues on the third and fourth pages. On the fifth and last page of the affidavit, where Mr Fahim’s signature appears, the spaces in the jurat requiring the place where the affidavit was sworn and the name and address of the witness were not completed. The Justice of the Peace’s signature, name and identification details as a Justice of the Peace appear on the line providing for the signature of the witness. It appears the Justice of the Peace initialled each page of the affidavit, but, as the Council accepted, Mr Fahim’s signature appears only on the jurat.

81. The Fahim affidavit, accordingly, failed to comply with UCPR 35.7B because each page was not signed by Mr Fahim. Secondly, the affidavit was not in the form approved for use as an affidavit of service as the place where it was sworn was omitted and the name and address of the witness did not appear below the place where Mr Fahim’s signature appeared, although the witness’ name appeared on the same line as the witness’ signature.

Appellants’ submissions

82. The appellants make the following submissions in respect of originating process generally:

1. Originating process must be personally served;

2. Originating process must be “served on each person under UCPR 6.2(3)”;

3. Service of a summons must be personal service under UCPR 10.20; and

4. Originating process must have an affidavit with it.

83. The appellants submit that an affidavit of Robert Fahim dated 10 December 2014 is not an affidavit of service, or is invalid or defective on a number of bases. There is no affidavit of Mr Fahim bearing that date. It is clear the appellants intend to refer to the Fahim affidavit dated 11 December 2014.

84. The appellants first contend that the affidavit does not comply with UCPR 35.7B, as it is not signed by the deponent on every page. Accordingly, there is no “witnessing” of the deponent’s signature, as it “is not present on each page to be ‘witnessed’.” In addition, they complain that details on the final page of the affidavit, including the place at which it was sworn and the name and address of the witness, are absent. The appellants submit that these omissions are of such substance that they cannot be cured by the operation of UCPR 35.1.

85. Secondly, the appellants submit that Mr Fahim’s affidavit states he is “aware of the identity of the three [appellants]”, and yet he addressed the appellants by incorrect names. On this basis, it is submitted that “no reliance can be placed” on the contents of Mr Fahim’s affidavit.

86. The appellants also contend that the Fahim affidavit contains objectionable “false and defamatory information” and that, although it was sworn on 11 December 2014, it was not filed until 6 February 2015. They also complain that it was not sent or provided to them prior to or on that date.

87. As I have said, Ms Liana Bobolas and Ms Elena Bobolas also asserted in their affidavits filed in support of the 6 February motion that none of the documents relating to the case had been served on them or Mrs Bobolas.

Council’s submissions

88. The Council conceded that the Fahim affidavit suffered from what it contended were irregularities in form, but said this issue was not raised in the LEC. If it had been, the Council would, if necessary, have adduced further evidence of service of the originating process.

89. The Council contends Mr Fahim’s failure to sign each page of his affidavit is an irregularity of form which permits the affidavit to be used with the Court’s leave pursuant to UCPR 35.1. It accepts that the Justice of Peace who witnessed the affidavit did not enter his name and address below Mr Fahim’s signature, but points out the name was entered after the witness’ signature. [71] It notes the affidavit was read with Pain J’s leave on 20 March 2015, although it accepts that Mr Fahim’s omission was not drawn to her Honour’s attention.

    71. The Council referred to UCPR 35.7A as relevant to the entry of the witness’ name. However, that rule applies to a legal practitioner or commissioner for affidavits who takes and receives an affidavit. The witness to the Fahim affidavit took it as a Justice of the Peace. The Oaths Act, which permits that course, does not contain a requirement about the entry of identification details of the witness. Hence it would appear that matter is dealt with only in the form of the affidavit approved pursuant to CPA, s 17 for an affidavit of service.

88. The Council also submits that the affidavit of Mr Meaney sworn on 13 March 2015 confirmed service of the originating process on the appellants and was sufficient compliance with UCPR 10. In Bobolas (No 1) Pain J concluded that a photograph attached to Mr Meaney’s affidavit showed “Mr Fahim clearly placing documents within the view of the [appellants] on their property”. [72]

    72. Bobolas (No 1) at [4] – [5].

Consideration

91. It is ordinarily a condition of the administration of justice that the person against whom relief is sought shall have an opportunity of being heard; hence the necessity for service or notice of the writ or other originating proceeding. Service of the originating process is an essential preliminary to the proceedings being determined by the court. [73]

    73. City Finance Co Ltd v Matthew Harvey & Co Ltd [1915] HCA 75; (1915) 21 CLR 55 (at 60) per Griffiths CJ and Gavan Duffy J; see also Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 (at 681) per Isaacs J.

92. No statute of New South Wales deals comprehensively or exhaustively with the procedures involved in the creation of affidavits. The Oaths Act presupposes certain principles of the unwritten law and builds upon them. [74]

    74. Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366 (at [15]) per Barrett J (as his Honour then was) (“Fastlink”).

93. The quality of a document as an affidavit does not depend on its content but on the factual circumstances in which it was subscribed. [75] Extrinsic evidence may be received of the circumstances surrounding the creation and signing of a document said to be an affidavit. [76]

    75. Ibid (at [35]).

    76. Ibid (at [33] – [38]).

94. In Fastlink, Barrett J described the characteristics of an affidavit as follows:

“[16]    Bacon’s Abridgement (Matthew Bacon, ‘A New Abridgement of the Law’, London 1832), at p 124, defines or describes an affidavit as follows:

‘An affidavit is an oath in writing, signed by the party deposing, sworn before, and attested by him who hath authority to administer the same.’

[17]    An oath was central to an affidavit. An affidavit usually began:

‘I [name] of [address], [occupation], being duly sworn make oath and say as follows:’

[18]    The jurat at the end was typically:

‘Sworn at [place] this [day] of [month] in the year [year], Before me.

[Signature and designation of person administering oath]’

[19]    The deponent’s oath, essential to the character of a written statement as an affidavit, was administered by the administering official’s instructing the deponent to take the Bible in his or her hand and to say the words:

‘I swear by Almighty God that this is my name and handwriting and that the contents of this my affidavit are true.’”

95. In Bacon, immediately following the passage quoted in Fastlink, the author continued:

“As most motions and orders of court are grounded on affidavits, it seems impracticable, and indeed unnecessary, to instance in which cases they are to be made use of, or when they are said to be defective, short or evasive; this being a matter of practice, and few things relating thereto being thought worth reporting.” [77]

77. Matthew Bacon, A New Abridgement of the Law: Volume 1, (7th ed 1832, London) at 124.

96. Fastlink concerned a document on which an applicant seeking an order setting aside a statutory demand sought to rely as being an affidavit supporting the application as required by s 459G(3)(a) of the Corporations Act 2001 (Cth). That provision requires the supporting affidavit to be filed within 21 days after service of the demand. The creditor contended the affidavit suffered from omissions which meant it was not an “affidavit”. First, the deponent of the affidavit did not either “say on oath” or “affirm”, but, rather, used the words “solemnly declare”. Secondly, the date the deponent purported to declare the affidavit did not appear. Thirdly, the space against “Signature of witness” was blank, with the result that there was no indication that a person authorised to do so performed the function necessary to cause the document to be an affidavit. [78]

    78. Ibid (at [4] – [5]).

97. The applicant sought to cure these deficiencies by relying on a later affidavit of Mr Chouman, the person identified as the witness to the deponent’s signature, purporting to demonstrate the affidavit had been sworn before him. Barrett J accepted that if Mr Chouman’s affidavit demonstrated that fact, the challenged affidavit would properly be regarded as an affidavit, albeit one in which there was an “irregularity of form” as mentioned in UCPR 35.1. [79] However, Mr Chouman’s affidavit also suffered from deficiencies and, accordingly, could not prove that the challenged affidavit had been duly sworn. [80] The consequence was, as the creditor had submitted, that the challenged affidavit was not “in truth an affidavit.”[81]

    79. Ibid (at [41]).

    80. Ibid (at [47] – [48]).

    81. Ibid (at [2]), [51]).

98. In Fastlink, after identifying Form 40 as being a prescribed form for an affidavit, Barrett J referred to the fact that “[s]trict adherence to the prescribed form is not essential: Interpretation Act 1987, s 80.” That was a reference to s 80(1). His Honour did not, however, refer to s 80(2) and the significance of the fact that, prima facie, the omissions from the Form 40 affidavit meant it was not “duly completed”. The same question clearly arises in relation to the Fahim affidavit which, as will be apparent, did not contain matters for which UCPR 35.7B and Form 41 provided. It is to that issue I now turn.

99. Section 80 applies to the Fahim affidavit as it was an affidavit of service which is a form approved under CPA, s 17(1)(a). Further, pursuant to CPA, s 17(3), the affidavit of service was a document to be used in connection with proceedings in a court because it was required to prove service of the LEC summons. [82] Accordingly, the Fahim affidavit was not duly completed for the purposes of s 80(2) as it was not completed in the manner specified in Form 41. It also did not comply with CPA, s 17 (3) as it was not “in [the] form” of Form 41.

    82. UCPR 10.20(2)(a).

100. What are the consequences? When taken in context with s 80(1), prima facie, s 80(2) suggests that strict compliance with a prescribed or approved form is mandatory, that is to say that, failing compliance, the document will be a nullity. Section 17(3) of the CPA also appears mandatory.

101. For the reasons that follow, however, I am of the view that neither provision has that consequence insofar as the Fahim affidavit is concerned.

102. The question whether it was a purpose of s 80(2) that any form which was not “duly completed” should be a nullity must be determined by having regard to the language of the relevant provision and the scope and object of the whole statute. [83] The determination of the proper construction of s 17(3) and, in particular, the consequences of a form not being “in that form” also falls for determination by having regard to the same matters.

     83. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [93]) per McHugh, Gummow, Kirby and Hayne JJ (“Project Blue Sky”), citing Tasker v Fullwood [1978] 1 NSWLR 20 (at 24).

103. I have referred to the text and immediate context of s 80. However, s 80(2) appears in the context that, pursuant to s 5(2), the Interpretation Act applies to an Act or instrument except in so far as the contrary intention appears, relevantly, in the Act or instrument concerned. It is appropriate, therefore, to determine whether anything in the CPA or the UCPR qualifies the apparently mandatory requirement of s 80(2). Insofar as CPA, s 17(3) is concerned, the question of its proper construction turns, of course, not only on the text, but also upon its statutory context.

104. The most straightforward case of a “contrary intention” is where the relevant provision provides that one thing shall be done and the Act or section in question provides that another shall be done. A contrary intention may also be inferred from a particular provision if, were the other provision to be applied, the provisions of or the procedure established by the section would not appropriately work. The critical question is whether it was the intention of the legislature that the statutory provision as to interpretation should apply to the particular section. [84]

     84. Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 (at 108) per Mahoney JA (“DCT v Mutton”).

105. The phrase “contrary intention” in legislation such as the Interpretation Act “may readily be seen to give way to a particular provision in another Act, and especially one dealing with a specific subject matter.”[85] This may particularly be the case when one has regard to the general presumption that there is no contradiction between two Acts of the one legislature. [86] “[D]eciding whether there is such inconsistency (‘contrariety’ …) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question.”[87] Every attempt should be made to reconcile competing statutes and it is only where they are irreconcilable that they should be held to conflict. [88]

     85. Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354; (2007) 229 FLR 243 (at [67]) per Basten JA (Ipp JA agreeing).

     86. Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J.

     87. Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [18]) per Gummow and Hayne JJ.

     88. North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 90 ALJR 38 (at [227]) per Nettle and Gordon JJ.

106. Section 63 of the CPA, which I set out earlier, demonstrates, in my view, a contrary intention for the purposes of s 5(2) of the Interpretation Act. It also provides context to determining the consequences of a failure to comply with s 17(3).

107. The first point to note about s 17(3) is that the obligatory nature of the language it uses is typical of such provisions. It does not end the inquiry as to what, on its proper construction, is the effect of the provision. [89]

     89. Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 (at [14]).

108. Section 63 gives a court power to deal with irregularities. It requires a court to treat a failure to comply with any requirement of the CPA or of rules of court, whether in respect of time, place, manner, form or content or in any other respect as an irregularity which, subject to s 63(3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

109. Provisions such as s 63 do away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. [90] Thus, in Australian Coastal Shipping Commission, the Court applied s 81 of the Supreme Court Act 1970 (NSW) (the legislative ancestor of s 63) to permit proceedings to continue although the statement of claim was neither filed nor served within the limitation period. [91]

     90. Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 (at 753) per Priestley JA (Samuels JA agreeing) (“Australian Coastal Shipping Commission”), applying Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 (at 735 – 736) per Lord Denning MR.

     91. See also Rust v Barnes [1980] 2 NSWLR 726.

110. Section 63 applies to specific requirements of the CPA or UCPR which are capable of giving rise to an identifiable irregularity. [92] It confers broad power on the Court to rectify irregularities arising as the result of a failure to comply with the requirements of the Act or rules. [93] Accordingly, reading s 17(3) in the context of s 63 makes it clear, in my view, that it was not the intention of the legislature that failure to complete an approved form by not filling up all the details is fatal to its efficacy.

     92. Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 (at [30]).

     93. Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 (at [24]) per Bell JA (Beazley JA agreeing).

111. Further, in my view, the scheme of which CPA s 17, s 63 and UCPR 35.1 form part in relation to the requirement to comply with forms approved for the purposes of the CPA is such as to manifest a contrary intention, assuming the proper construction of s 80(2) of the Interpretation Act is as I have suggested. If s 80(2) was to be interpreted as striking down forms not “duly completed”, it would leave s 63 no work to do. [94] That is a clear case of contrary intention for the purposes of Interpretation Act, s 5(2).

     94. Cf DCT v Mutton (at 108).

112. As I have said, the Fahim affidavit failed to comply with UCPR 35.7B and was not in the form of Form 41 by virtue of the omissions I have set out. A failure to comply with a requirement found in the CPA as to information to be set out in the Form 41 affidavit of service is, in my view, even absent the assistance s 63(2) affords, a defect or irregularity. [95]

     95. Cf Adams v Lambert (at [24]).

113. I would add that the information omitted from the Fahim affidavit did not go to the substantial deficiencies which led Barrett J in Fastlink to conclude the challenged document in that case was not an affidavit. The consequence of the omissions in Fastlink was that the deponent had not sworn an affidavit because the critical words “”say on oath” or “affirm” were not used.

114. The Fahim affidavit does not suffer from such a deficiency. Rather, insofar as the jurat is concerned, the omissions are, in reality, only two: the omission of the place where the affidavit was sworn and the omission of the witness’ address. The signature and name of the witness are clearly set out, albeit on the same line providing for the witness’ signature. While the witness’ address does not appear, a number, presumably that assigned to him when he was appointed a Justice of the Peace, does appear.

115. The Fahim affidavit was, prima facie, accordingly, a document to which s 63(1) applied. By virtue of s 63(2), the omissions it exhibited were capable of being treated as irregularities which, subject to s 63(3), did not invalidate either the affidavit (being a document in the proceedings) nor the service of the originating process (that being a step taken in the LEC proceedings). [96]

     96. CPA, s 63(2)(b).

116. Section 63(3)(a) enables a person seeking to have any matter which falls within s 63(1), in substance, invalidated. That is what the appellants seek to do by these grounds of appeal. By virtue of s 63(4), the court may not take action of the kind referred to in s 63(3)(a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.

117. The Fahim affidavit was served on the appellants twice. First, when Mr Fahim affixed three copies of it and other affidavits to the gate of the property on 13 March 2015. Secondly, when it was forwarded to each of them by Ms Mostafa and delivered by Australia Post on 16 March 2015. The appellants did not make any objection to the form of the affidavit until they brought this appeal. Rather, their 6 February motion was based on the bald proposition that the originating process had not been served on any of them.

118. Further, after their 6 February motion was dismissed on 20 March 2015 the appellants filed the other motions in the LEC to which I have earlier referred. Although most, if not all, of those motions bore annotations protesting they were filed “under objection” and referring to UCPR 10.19, those annotations were surplusage in the light of Pain J’s finding that the originating process had been served.

119. Prima facie, therefore, I would be of the view that the court could not set aside service of the originating process on the basis of the deficiencies identified because of the appellants’ failure to comply with s 63(4).

120. What is “a reasonable time” for the purposes of s 63(4) must clearly be determined having regard to all the circumstances. The appellants did assert in late June that the Fahim affidavit was not valid, but as I have said, did not identify any basis for that assertion. Further, they did not appear before the LEC to support the motion in which that assertion was made.

121. In my view it cannot be said to be a “reasonable time” for the purpose of CPA, s 63(4) for the appellants first to specify the basis of their complaints about the Fahim affidavit on appeal. Accordingly, in my view the failure of the Fahim affidavit to be completed in accordance with Form 41 does not have the consequence for which the appellants contend. In my view the Fahim affidavit was effective to establish service of the LEC summons on the appellants.

122. This conclusion is also consistent with the principle that an appellant is not permitted to raise on appeal a complaint not made in the court from which the appeal is brought if the matter complained of could have been cured by evidence from the other party. [97] This is particularly the case when the Council said that, had the complaint been identified earlier, it would have filed evidence to cure the omissions.

     97. Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1.

123. I would also add that insofar as the Fahim affidavit failed to comply with UCPR 35.7B, it is arguable that Mr Fahim’s later affidavit of 13 March 2015 identifying his earlier affidavit constituted sufficient authentication of that affidavit so as to cure the earlier irregularity. This affidavit also corrected Mr Fahim’s understanding of which of Elena or Liana Bobolas followed him through the streets of Bondi demanding he hand over video footage recording him leaving the documents at the property. The fact he may have confused one with the other does not detract from the fact that all three were present on the day service was effected. As I have said, Barrett J accepted in Fastlink that a later affidavit could cure a deficiency in an earlier one. In addition, Mr Meaney’s affidavit corroborates the fact that Mr Fahim attended the property on the date to which he deposed in his December 2014 affidavit and left documents there.

124. The appellants’ other complaints concerning what they contend is the “false and defamatory” nature of information (not specified) in the Fahim affidavit and about when it was filed or received by them take the matter no further. None is a basis which might deprive the affidavit of efficacy.

125. As to ground 5, the appellants did not identify any requirement that an affidavit be served with the originating process as that ground contends. The proceedings were commenced by summons filed pursuant to UCPR 6.2(1), which imposes no requirement to file an “accompanying affidavit”.

126. Finally I would note, insofar as the appellants asserted none of the documents had been served (from which I infer they contend as a matter of fact that they had not received the LEC summons), that even proof of non-receipt is not proof of non-delivery or, I would add, proof of non-service if there is evidence of service in a permitted manner. [98] The 6 February motion and the two affidavits provided in support of the orders it sought also confound the proposition that the LEC summons was not served. A suggestion in one of the Bobolas’ affidavits that they found out about the summons on the evening of 5 February 2015 from a friend, defies reality and the considerable body of affidavit evidence to the contrary.

     98. Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 (at 96 – 97); Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 (at 277) per Stein JA (Powell JA and Sheppard A-JA agreeing).

1. Carlos Da Rocha sworn 26 February 2015. This affidavit proved the service on 1 August 2014, by affixing to the metal gate at the front of the property documents within a plastic sleeve addressed to each appellant respectively being order 22A under s 124 of the LG Act dated 1 August regarding removal of waste from within the premises; order 22A under s 124 of the LG Act dated 1 August 2014 regarding removal of accumulations of waste from the outside of the premises (POC 25 and 26(d)) and order 22A under s 124 of the LG Act dated 1 August 2014 regarding refraining from keeping accumulations of waste on the premises (POC 30 and 31(d)).

2. Carlos Da Rocha sworn 22 April 2015. In this affidavit Mr Da Rocha attached copies of the order addressed to each appellant regarding removal of accumulation of waste from outside the premises and refraining from keeping accumulations of waste on the premises to which he had referred in his 26 February 2015 affidavit.

3. Andrew Gaze sworn 26 February 2015. This affidavit proved that on 8 July 2014 Mr Gaze placed the two orders to which Mr Hervir referred in his affidavit of 27 February 2015 into plastic sleeves and gave them to Mr Hervir to serve on Mrs Bobolas or to attach them to the front gate of the property. It also proved that on 8 July 2014, Mr Gaze placed those two orders into envelopes addressed to Mrs Bobolas and placed them in the internal mail system of Waverley Council at the Council’s chambers (POC 10 and 11(a) and POC 20 and 21(a)).

4. Andrew Gaze sworn 26 February 2015. In this affidavit Mr Gaze deposed to the fact that on 1 August 2014 he placed the three orders referred to in Mr Da Rocha’s affidavit of 26 February 2015 into three plastic sleeves and gave them to Mr Da Rocha to either serve on each appellant or to attach them to the front gates of the property. He also deposed that he placed the same three orders into three envelopes addressed to each appellant and placed those envelopes in the mail box at the front of the Council’s chambers in Bondi Junction. (POC 25 and 26(a) – (c) and POC 30 and 31 (a) – (c)).

5. Andrew Gaze sworn 22 April 2015. Mr Gaze deposed on information and belief that a former divisional manager of the Council had caused a notice of intention to give an order under s 124 (Order No 2) of the EPA Act addressed to Mrs Bobolas dated 30 May 2014 to be posted to her. On the same basis he was also informed and believed that the same divisional manager caused a notice of intention to give an order under s 124 (Order No 21) of the EPA Act addressed to Mrs Bobolas dated 13 June 2014 to be posted to her, copies of which notices were annexures A and B to his affidavit (POC 7 and 8(a) and 17 and 18(a)). He also deposed that he believed those annexures were those referred to in Mr Hervir’s affidavit of 27 February 2015. He also deposed that on 8 July 2014 he placed an order under s 121B (Order No 2 of the EPA Act dated 8 July 2014 (reference no N0-2772) and an order under s 124 (Order No 21) of the LG Act dated 8 July 2014 (reference no N0-2771) into, relevantly, the Council’s internal mail system in envelopes addressed to Mrs Bobolas (POC 10 and 11(a)).

6. Andrew Gaze sworn 24 April 2015. In this affidavit Mr Gaze deposed to having reviewed the Council’s file in relation to the property which disclosed, in substance, the matters as to which he had deposed on information and belief in his affidavit of 22 April 2015. He also explained the Council’s mail system where outgoing correspondence is placed in envelopes and in the internal mail system from which it is collected and taken to a franking machine in the Council’s chambers on Bondi Road where, after a pre-paid postage endorsement is affixed to each envelope, the envelopes are placed in Australia Post mailboxes by Council administrative officers. It is the practice of the Council that any letters returned by Australia Post marked “returned to sender” are delivered to the relevant officer of the Council. Mr Gaze deposed that he reviewed the Council file in respect of the property and there was no record of any of the correspondence, being the orders posted to Mrs Bobolas on 30 May 2014, 13 June 2014 and 8 July 2014, having been returned to the Council.

232. For the reasons I have earlier expressed, the appellants should not be permitted to rely upon grounds of appeal relating to issues not raised in the LEC. However, although the Council took this point, it also contended the evidence read before Sheahan J demonstrated that the orders which founded the LEC proceedings were properly served.

233. In my view that submission should be accepted. I have set out the provisions concerning service of orders in the EPA Act and the LG Act earlier in these reasons. Service of a notice under the LG Act is effected when the notice is affixed to a conspicuous part of the property,[182] or, in the case of service by post, the act of posting a notice by pre-paid letter addressed in accordance with LG Act, s 710(2)(c) not only “effects” or completes the act of service, but also identifies the time of service. [183] Mr Gaze’s evidence establishes that all the orders mailed to the appellants were sent in pre-paid postage envelopes and, further, that none were returned to the Council.

     182. Bobolas CA (No 4) (at [37]) per Leeming JA (Basten JA and Tobias AJA agreeing); referring to Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361 (“Kyogle Shire Council”).

     183. Kyogle Shire Council (at [37]) per Tobias JA (Ipp JA and Brownie AJA agreeing).

234. The reasoning in Kyogle Shire Council also supports the proposition that the notices given under the EPA Act were served when they were mailed to Mrs Bobolas in accordance with EPA Act, s 153(1)(a)(ii).

235. I would reject grounds 15 and 16 of the notice of appeal.

Right of entry

236. The appellants also complained, in substance, that s 200 of the LG Act qualified the right of entry that was conferred either by s 678 or orders made pursuant to s 678 the LG Act. Once again this ground was not raised in the LEC nor in the notice of appeal, however it raises a point of law which is able to be disposed of consistently with previous authority.

237. In essence, the appellants submitted that s 200 of the LG Act (set out earlier in these reasons) prohibited entry onto residential land by the Council, except with the permission of the occupier. They submitted that s 678 (also set out above) could not override s 200 to the extent that s 200 has no work to do. They contended the Council had never satisfied the circumstances under which s 200 permitted entry to residential premises and, accordingly, the Council did not have the right to enter onto the property. They submitted that s 678 was not intended to refer to residential premises. They contended that the Note to s 678 made it clear the Council could not enter onto any part of residential premises.

238. This submission has been dealt with by this Court on previous occasions, on each of which it has been rejected.

239. In Bobolas v Waverley Council (an application to set aside orders made by Ward JA),[184] the Court (Meagher and Gleeson JJA and Sackville AJA) dealt with it as follows:

“[37] Finally, the applicants argued [before Ward JA] that the orders made by Biscoe J could not authorise the Council to enter their land in the absence of their permission, either as owner or occupiers. They relied upon s 200 in Part 2 of Chapter 8 of the Act. Her Honour did not consider this argument to have merit because that provision is concerned with the exercise by a Council of the power of entry conferred by s 191, whereas the question raised by the applicants was concerned with the width of the power of the Land and Environment Court to make an order under s 678(10). By that provision the Court may order the Council to exercise its function under s 678(1) which in this case was to carry out the work required by its earlier s 124 orders. The power conferred by s 678(10) undoubtedly includes ordering the carrying out of work on premises notwithstanding that the owners or occupiers may not have consented to the work or to anyone entering the premises. Such an order could not, of course, be made without joining those whose rights or interests would be directly affected by it, including, as in this case, the owner and any occupiers so affected: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524-526 (per curiam); John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [132]-[133] (per curiam). See also the discussion in Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[63] (per Leeming JA).

[38]   Once made, the Court’s orders also provided the Council with a defence of lawful authority to any claim for trespass: Ross v Lane Cove Council at [64]. It was not necessary for her Honour to consider whether the power to carry out work conferred on the Council by s 678(1) in the circumstances of this case necessarily included a power to enter property to carry out those works. The endnote to s 678 cannot affect the answer to that question as it is not part of the Act: Local Government Act, s 6.”

184. [2014] NSWCA 131 (“Bobolas CA 2014”) (at [37] – [38]).

240. In Bobolas CA (No 4), Leeming JA (with whom Basten JA and Tobias AJA agreed) referred with approval to the Court’s rejection of these submissions in Bobolas CA 2014. His Honour also observed that the Note to s 678:

“…does not render the power conferred by or pursuant to s 678 subject to s 200. Section 200 in its terms is confined to powers of entry and inspection ‘conferred by this Part’. The powers exercised by Council pursuant to an order made pursuant to s 678 do not fall within that description.” [185]

185. Bobolas CA (No 4) (at [47]).

241. The appellants said nothing which challenged the reasoning in either of these decisions. Their s 200/s 678 submission should be rejected for the reasons twice given by this Court.

Procedural fairness

242. Grounds of appeal 9, 10, 12, 17, 26 and 27 - 32 sought to raise issues of procedural fairness at a high level of generality, in particular concerning the setting of dates for hearings and the giving of procedural directions. It is apparent from the chronology of the proceedings I have set out that the LEC and the Council gave the appellants notice of the directions the Court had made and the dates which had been set for hearing. They did not seek to vary those dates. They did not appear on the assigned hearing dates but, rather, either professed ill health (13 March, which led to an adjournment), gave no explanation for their non-attendance (20 March) or sought an adjournment (23 – 24 April).

243. The appellants have not, in my view, demonstrated that they were not afforded procedural fairness. Rather, as the Council submits, they were “afforded ample opportunities to file evidence in the proceedings and to appear”.

244. I would reject these grounds of appeal.

Unrepresented litigants

245. The appellants frequently wrote on their documents and repeated orally in Court that they were unrepresented litigants as if that should afford them different treatment in the proceedings to that accorded either to the Council or to represented litigants generally. They also contended the Council and the LEC breached a duty of care to them which to the extent to which it could be said to have been “articulated”, appears to be founded on their status as unrepresented litigants. This appears to be the subject of their grounds 7, 8 and 11.

246. There is no “special” duty of care owed to unrepresented litigants. Rather, to the extent there is an obligation, sometimes described as a “duty”, but not a “duty of care” it is framed in terms of the right to a fair trial.

247. Courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. However, the court’s duty is not solely to the unrepresented litigant. Rather, the obligation is to ensure a fair trial for all parties. While a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial, the application of that principle will vary depending upon the circumstances of the case. In particular, the duty of a trial judge does not extend to advising the accused as to how his or her rights should be exercised, nor to giving judicial advice to, or conducting the case on behalf of, the unrepresented litigant. The judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. [186]

     186. Hamod v State of New South Wales [2011] NSWCA 375 (at [309] – [316]).

248. In my view it is manifest that Pain J and Sheahan J dealt with the appellants in a manner exhibiting an assiduous concern about seeking to accord the appellants a “fair trial”. This task was rendered difficult by the fact that while the appellants filed copious challenges to the LEC proceedings, they only appeared on one occasion, on 10 June 2015 – and on that occasion Mrs Bobolas did not attend.

249. I would reject grounds 7, 8 and 11.

Conclusion

250. It should be recorded that the conduct of the appeal was extremely difficult. Both Elena and Liana Bobolas made, or sought to make, oral submissions. That was their right. Each is an appellant. However they frequently spoke over each other, interrupted the Court when it was seeking to understand the submissions and interrupted Mr Clay during his submissions. Mrs Bobolas did the same, although to a far lesser extent.

251. Liana Bobolas walked out of court before lunch during the hearing despite being advised the hearing would continue in her absence. She returned after the luncheon adjournment, to seek to read an affidavit she said went to an issue of procedural unfairness, most of which she did not wish the Council to be able to read. The Court refused her leave to rely on the affidavit (a copy of which was marked MFI 1), being of the view there was nothing in it which dealt with the substantive issues which arose on the appeal. After a lengthy verbal exchange Liana Bobolas left the court again, having been advised that if she chose to do so the appeal would continue in her absence.

Orders

252. I would dismiss the appeal with costs. As Basten JA ordered that the costs of the 8 July motion be “costs in the appeal”, the costs order against the appellants includes the Council’s costs of that motion. [187]

     187. Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 (at [18]).

253. SIMPSON JA: I agree with McColl JA.

254. SACKVILLE AJA: I have had the advantage of reading McColl JA’s comprehensive reasons for judgment in this appeal. I agree with her Honour’s proposed orders and, subject to what appears below, with her Honour’s reasons.

255. As McColl JA points out, s 57 of the Legal Aid Commission Act 1979 (NSW) (LAC Act) gives rise to questions of construction on which uniform answers have not always been given. In my view, even if the respondent (the Council) bore the burden of showing that the appellants’ foreshadowed appeal from the refusal of legal aid was not “bona fide”, Sheahan J’s findings demonstrate that the burden was discharged.

256. His Honour found that the foreshadowed appeal was simply a deliberate device by the appellants designed to delay the proceedings. The material before his Honour entitled him to make that finding, particularly the matters identified by the Council in its submissions to this Court. [188] The finding that the foreshadowed appeal was a deliberate ploy was sufficient to discharge any onus imposed on the Council by s 57 of the LAC Act. I therefore do not think it necessary to express a concluded view on the correct interpretation of s 57.

     188. See above at [159].

257. It appears that this is the fifth cycle of litigation consequent upon the appellants’ failure to comply with multiple orders issued by the Council requiring them to remove accumulations of waste from the premises they occupy in Bondi (Property). The first cycle commenced with an order issued on 18 March 2005 by the Council, pursuant to s 124 of the Local Government Act 1993 (NSW) (LG Act). The fifth and current cycle commenced, as McColl JA has explained, with orders issued by the Council on 8 July 2014 and 1 August 2014. [189] Each cycle had been characterised by multiple court proceedings and disputes over issues such as the form of orders and whether documents have been properly served, rather than whether the accumulated rubbish presents a danger to health. [190]

     189. See at [48] – [50] above.

     190. Four of the cycles; including the present cycle, have concluded with orders under s 678(10) of the LG Act requiring the Council to clear the waste on the Property and obliging the appellants to pay the costs of the required works. One cycle was effectively terminated by a judgment of this Court setting aside both the orders issued by the Council and the orders made by the Land and Environment Court under s 678(10) of the LG Act, on the ground that the Council’s orders were too vague to be valid: Bobolas v Waverley Council [2012] NSWCA 126.

258. It can be seen from the many decisions of the Land and Environment Court and this Court over much of the eleven year period from 2005 to 2016, residents in the immediate vicinity of the Property and no doubt other persons have had to endure not merely the inconvenience, but the hazards to health created by the repeated accumulation of rubbish on the Property. Since the appellants have been required to meet the costs of successive clean-up operations, their conduct, from which they are apparently unable or unwilling to desist, produces unfortunate consequences for them.

259. The history of the litigation between the Council and the appellants demonstrates that the mechanisms currently available to remedy health hazards on private property are sometimes neither efficient nor effective. This is not to imply that a solution is necessarily self-evident or simple to implement. This Court has seen only a snapshot of the ongoing “saga”[191] and is not in a position to assess the various factors that may have contributed to the apparent ineffectiveness of the legislative regime. Moreover, it is always a delicate and difficult task to balance the rights of property owners, particularly of home owners, against the protection of the health and well-being of the community at large.

     191. See at [257] above.

260. It does seem clear, however, that further consideration needs to be given to whether the current legislative regime achieves a satisfactory balance between the competing interests and, if not, what can be done to avoid the kind of protracted and inconclusive litigation illustrated by the present case.

261. I should record that shortly after the luncheon adjournment on the hearing of the appeal, Ms E Bobolas submitted that I should disqualify myself on the grounds of bias and an apprehension of bias. Ms Bobolas gave no reason for the disqualification application despite being given the opportunity to do so. I declined to accede to the application.

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Endnotes

Amendments

03 March 2017 - 3 March 2017

Typographical error corrected to (2) in the headnote.

[11] UCPR 12.11(f)(i) amended to UCPR 12.11(1)(f)(i)

[11] UCPR 12.11(g) amended to UCPR 12.11(1)(g)

[35] Reference to [26] added to footnote reference 25.

[69] UCPR 12.1(2) amended to UCPR 12.11(2)

[115] Typographical error corrected.

[149] Amendment to footnote reference 121.

Decision last updated: 03 March 2017