Bobolas v Waverley Council

Case [2016] NSWCA 139

Court of Appeal


Supreme Court


New South Wales

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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…

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Bobolas v Waverley Council [2016] NSWCA 139
Case
[2016] NSWCA 139
Decision Date

CaseChat Overview and Summary

Bobolas and Waverley Council were the parties involved in proceedings before the Court of Appeal of New South Wales concerning the enforcement of orders made under the *Local Government Act 1993* (NSW) and the *Environmental Planning and Assessment Act 1979* (NSW). The core of the dispute revolved around the validity of these orders, the effectiveness of their service, and allegations of a denial of procedural fairness.

The Court of Appeal was required to determine several key legal issues. These included whether the enforcement orders issued by the Council were invalid, whether proper service of these orders had been effected upon the appellant, and whether the appellant had been denied procedural fairness. Additionally, the Court considered an application for an adjournment, made pursuant to s 57 of the *Legal Aid Commission Act 1979* (NSW), in circumstances where the parties seeking the adjournment did not appear, and whether the primary judge had erred in refusing this application, particularly in relation to a bona fide appeal or intention to appeal a refusal of legal aid. The validity of an affidavit, despite alleged irregularities in its form, was also a point of contention, as was the probative weight of heavily redacted medical certificates submitted as evidence of an inability to attend court.

The Court of Appeal ultimately dismissed the appeal with costs. The reasoning likely involved a consideration of the *Uniform Civil Procedure Rules 2005* (NSW) and the *Civil Procedure Act 2005* (NSW), which grant courts the power to deal with procedural irregularities, suggesting that any formal defects in the affidavit or service were either cured or did not invalidate the proceedings. The refusal of the adjournment was likely upheld based on the absence of the applicants and the absence of a demonstrated bona fide intention to appeal the legal aid refusal. The probative value of the redacted medical certificates would have been assessed in light of the evidence presented.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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