Bobolas v Waverley Council

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council [2016] NSWCA 84
Hearing dates: 18 April 2016
Date of orders: 18 April 2016
Decision date: 18 April 2016
Before: McColl JA, Simpson JA, Sackville AJA
Decision:
Application for adjournment rejected.

Catchwords: PROCEDURE – application for adjournment at commencement of appeal – relevant documents said to be omitted from appeal books – application refused
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)
Wiltshire 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

Date of Decision:

20 March 2015; 24 April 2015

Before:

Pain J; Sheahan J

File Number(s):

41027 of 2014

Judgment

JUDGMENT OF THE COURT delivered by McCOLL JA: The appellants, Ms Mary Bobolas and her daughters, Elena and Liana Bobolas, appeal from orders made by Sheahan J on 24 April 2015 in the Land and Environment Court (“LEC”) permitting Waverley Council, the respondent, to carry out various safety, demolition and removal works at the appellants’ residence, located at 19 Boonara Avenue, Bondi.
At the commencement of the hearing the appellants applied for an adjournment on the basis that the respondent had failed to include relevant documents in the appeal books. The omissions identified were a facsimile said to have been sent by the appellants to Pain J prior to 20 March 2015 (the date on which her Honour delivered a decision from which the appellants also appeal) and transcripts said to relate to proceedings before Registrars and/or Assistant Registrars of the LEC. The omissions were said to have been communicated to the respondent's solicitor by a letter posted on or about 30 March 2016. The Court was informed by the respondent that no such letter has been received.
No copy of the facsimile said to have been omitted has been provided by the appellants, and no satisfactory explanation has been given as to how, in any event, the facsimile and/or the transcripts of the proceedings before any Registrar or Assistant Registrar could affect the substantive relief sought, which is to set aside the orders made by Pain J and Sheahan J. This is despite the fact that, since they are unrepresented, the Court gave the appellants an extended opportunity to explain how the documents said to have been omitted from the appeal books could affect the outcome of the appeal.
The Court is not satisfied that any of the documents said to be omitted from the appeal books are capable of casting any light on the issues identified in the notice of appeal. The application for an adjournment is rejected.

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CaseChat Overview and Summary

In the matter of *Bobolas v Waverley Council*, the appellant sought an adjournment of an appeal before the New South Wales Court of Appeal. The basis for this application was the alleged omission of relevant documents from the appeal books that had been prepared for the hearing.

The primary legal issue before the Court was whether to grant an adjournment of the appeal. This required the Court to consider the circumstances surrounding the alleged omission of documents and the potential prejudice to the appellant if the appeal proceeded without them, balanced against the interests of justice and the efficient administration of the court's business.

The Court refused the application for adjournment. While acknowledging the importance of complete appeal books, their Honours were not satisfied that the omissions were so significant as to warrant delaying the appeal. The Court implicitly applied the principle that adjournments are exceptional and should only be granted where necessary to prevent a miscarriage of justice, and that the onus is on the applicant to demonstrate such necessity. The Court's decision indicates that the appellant had not sufficiently established that the alleged omissions would prevent a fair hearing of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Bobolas v Waverley Council [2016] NSWCA 84
Hearing dates:	18 April 2016
Date of orders:	18 April 2016
Decision date:	18 April 2016
Before:	McColl JA, Simpson JA, Sackville AJA
Decision:	Application for adjournment rejected.
Catchwords:	PROCEDURE – application for adjournment at commencement of appeal – relevant documents said to be omitted from appeal books – application refused
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) Wiltshire 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 Date of Decision: 20 March 2015; 24 April 2015 Before: Pain J; Sheahan J File Number(s): 41027 of 2014