Bobolas v Waverley Council - [2015] NSWCA 216

Court of Appeal
Supreme Court

New South Wales

Case Name:	Bobolas v Waverley Council
Medium Neutral Citation:	[2015] NSWCA 216
Hearing Date(s):	20 July 2015
Decision Date:	20 July 2015
Before:	Beazley P
Decision:	Notice of motion filed 17 July 2015 dismissed with costs.
Catchwords:	APPLICATION TO SET ASIDE ORDERS – where appeal against application for stay and other orders dismissed – UCPR, r 36.16(3a) – UCPR, r 12.11
Legislation Cited:	Civil Procedure Act 2005 (NSW) Local Government Act 1993 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	Mary Bobolas (Applicant) Elena Bobolas (Applicant) Liana Bobolas (Applicant) Waverley Council (Respondent)
Representation:	Counsel: In person (Elena Bobolas) (Applicant) P Clay SC; J Reid (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2015/151997
Decision under appeal:
Court or Tribunal:	Land and Environment Court
Citation:	Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Date of Decision:	24 April 2015
Before:	Sheahan J
File Number(s):	41027 of 2014

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

JUDGMENT

HER HONOUR: On 13 July 2015, Basten JA dismissed a notice of motion, filed by the applicants on 8 July 2015, and directed that the costs of the motion be costs in the appeal.
The notice of motion filed on 8 July 2015 contained nine paragraphs. Paragraph 2 sought a stay of orders made by Sheahan J in the Land and Environment Court on 24 April 2015.
During the course of the hearing before Basten JA, the parties came to an agreement that the respondent, Waverley Council (the Council), would not, prior to the determination of the appeal from Sheahan J’s orders, pursue the demolition order and the safety order which dealt with the garage and with vegetation on the applicants’ premises (the premises), apparently being an overgrowth of vegetation from a neighbouring property. What remained in contest before his Honour was that part of the orders made by Sheahan J relating to removal of waste on the premises and the order requiring the occupants to cease to accumulate further waste on the premises.
By notice of motion filed 17 July 2015 which was supported by an affidavit of Steve Bobolas sworn 16 July 2015 and Elena Bobolas, also sworn 16 July 2015, the applicants seek an order to set aside part of Basten JA’s orders.
The notice of motion also makes reference to actions proposed to be taken by the Council in relation to the back verandah of the premises, which the applicants contend are not authorised pursuant to the orders made in the Land and Environment Court. I have been informed by counsel for the Council that nothing has…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bobolas v Waverley Council

Details

AGLC: Bobolas v Waverley Council [2015] NSWCA 216
Case: [2015] NSWCA 216
Decision Date: 20 July 2015

CaseChat Overview and Summary

The case of Bobolas v Waverley Council concerned an application to set aside orders previously made by Basten JA. The applicants, the Bobolas, sought to challenge the dismissal of their application for a stay and other orders. The matter came before Beazley P in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the orders made by Basten JA were irregularly made, thereby justifying their being set aside under rule 36.15 or 36.16(3A) of the Uniform Civil Procedure Rules (UCPR), or whether the orders could be corrected under the "slip rule" pursuant to UCPR, r 36.17. Specifically, the applicants argued that Basten JA failed to address proposed orders relating to the protection of their property under UCPR, r 12.11 and relief sought under s 200 of the Local Government Act 1993 (NSW).

Beazley P found that the "slip rule" under r 36.17 was not applicable as there was no clerical mistake or accidental slip. Regarding the alleged failure to address specific paragraphs of the notice of motion, his Honour reasoned that an order protecting property under r 12.11 would have been inconsistent with the refusal of a stay, and therefore its omission did not provide a basis to revisit the orders. While s 200 of the Local Government Act 1993 (NSW) was raised, the judgment indicated it had been dealt with. The court also considered evidence of the applicants' own efforts to clean up their premises, but concluded these efforts were insufficient to warrant revisiting the previous judgment.

The notice of motion filed on 17 July 2015 was dismissed with costs.

Orders

Orders of the court

Notice of motion filed 17 July 2015 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

UCPR, r 36.17 provides that:“36.17 Correction of judgment or order (‘slip rule’)If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.” No clerical error or accidental slip or mistake has been referred to and I see nothing in r 36.17 which applies to this case. The only question, therefore, is whether pursuant to either r 36.15 or r 36.16(3A) the orders made by Basten JA ought to be set aside. I will deal first with the argument that it is possible that Basten JA’s judgment and orders were irregularly made because they did not deal with each paragraph of the notice of motion filed on 8 July 2015. An application making those assertions would fall within either r 36.15 or r 36.16(3A). The applicants contend that Basten JA did not deal with proposed order 4 sought in the notice of motion, being an order protecting their property from the Council until the appeal was heard under UCPR, r 12.11 and any other applicable law protecting property. UCPR, r 12.11 is headed “Setting Aside Originating Process etc”. It contains a number of subrules including, relevantly:“(1) In any proceedings, the court may make any of the following orders on the application of a defendant:…(f) an order protecting or releasing:(i) property seized, or threatened with seizure, in the proceedings, or(ii) property subject to an order restraining its disposal or in relation to which such an order is sought …” Basten JA did not expressly deal with UCPR, r 12.11. However, in circumstances in which his Honour refused a stay, it would have been inconsistent for him to have made an order in favour of the applicants under r 12.11. The provision of that provision, therefore, would not have resulted in any favourable result to the applicants and, accordingly, I do not see that that is a basis upon which to reopen or to revisit Basten JA's orders. Complaint was also made that his Honour did not deal with proposed order 3 of the notice of motion filed 8 July 2015, by which the applicants claimed relief pursuant to s 200 of the Local Government Act 1993 (NSW). However, as is apparent from [11]-[13] of his Honour’s judgment, s 200 was dealt with. The applicants also adduced evidence of their own attempts to clean up the premises. Ms Elena Bobolas gave evidence in her affidavit that she had made arrangements for the rubbish to be picked up by the Council’s free pick up service and that despite having made those arrangements, the Council did not abide by them. I have been informed that the goods, which were placed for picking up upon the verge outside the applicants’ premises, were greater in bulk than that which is allowed as part of the regular Council pick up and also included some items which did not comply with the Council’s specifications for its service. That is not a matter upon which I have any evidence. In those circumstances, although I may have been able to take into account the work that has been done by the Bobolas’ in seeking to remove rubbish from their premises, the matters raised were not sufficient to warrant revisiting Basten JA’s judgment.

Ratio Decidendi

Legal Principle Established

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