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Bobolas v Waverley Council

Bobolas v Waverley Council

Case [2014] NSWCA 78 25 March 2014

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bobolas v Waverley Council [2014] NSWCA 78
Hearing dates: 17 March 2014
Decision date: 25 March 2014
Before: Ward JA
Decision:
1. Notice of motion dismissed with costs.
2. Stay ordered by Schmidt J on 14 March 2014, of the orders made by Biscoe J on 4 March 2013, be discharged with effect from 7am on Monday, 31 March 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.]

Catchwords: APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of the court
PROCEDURE - Court of Appeal procedure - stays
PROCEDURE - Court of Appeal procedure - interlocutory injunctions
PROCEDURE - courts and judges generally - judges - allegations of bias
PROCEDURE - courts and judges generally - judges - natural justice or procedural fairness in ex parte hearing
Legislation Cited: Land and Environment Court Act 1979
Legal Aid Commission Act 1979
Local Government Act 1993
Uniform Civil Procedure Rules 2005
Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685
Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 29 CLR 577
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Forster v Harvey [2006] NSWSC 1112
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Najjar v Haines (1991) 25 NSWLR 224
Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270
Re Middle Harbour Investments Ltd (In Liq) Court of Appeal 15 December 1976 unreported
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Warringah Council v Ulrich [2012] NSWLEC 234
Waverley Council v Bobolas [2013] NSWLEC 119
Waverley Council v Bobolas (No 3) [2014] NSWLEC 16
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Category: Interlocutory applications
Parties: Elena Bobolas (First Applicant/Appellant)
Liana Bobolas (Second Applicant/Appellant)
Mary Bobolas (Third Applicant/Appellant)
Waverley Council (Respondent)
Representation:
In Person (First Applicant/Appellant)
In Person (Second Applicant/Appellant)
In Person (Third Applicant/Appellant)
Counsel:
Mr P Clay SC (Respondent)
Solicitors:
Wilshire Webb…

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 [2014] NSWCA 78
Case: [2014] NSWCA 78
Decision Date: 25 March 2014

CaseChat Overview and Summary

Bobolas and Waverley Council were parties to proceedings before the Court of Appeal of New South Wales. The dispute concerned an appeal by Bobolas against orders made by Biscoe J, and a related application for a stay of those orders.

The Court of Appeal was required to determine whether to grant a stay of the primary judge's orders, and whether to uphold or set aside those orders. Central to the appeal were allegations of bias against the primary judge and claims of a denial of natural justice or procedural fairness during an ex parte hearing.

Ward JA dismissed Bobolas's notice of motion with costs. The Court ordered that the stay of the primary judge's orders, which had been granted by Schmidt J on 14 March 2014, be discharged. This discharge was to take effect from 7 am on Monday, 31 March 2014, meaning the original orders of Biscoe J would then be in full force and effect.

Orders

Orders of the court

1. Notice of motion dismissed with costs.

2. Stay ordered by Schmidt J on 14 March 2014, of the orders made by Biscoe J on 4 March 2013, be discharged with effect from 7am on Monday, 31 March 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Bobolas v Waverley Council [2014] NSWCA 78

Most Recent Citation

Waverley Council v Bobolas (No 4) [2014] NSWLEC 35

Cases citing this decision · 7 of 7 shown

LB v Secretary, NSW Department of Education (No 2)
[2025] NSWSC 939 Para 64

…; Bobolas v Waverley Council [2016] NSWCA 139, McColl JA at [220] (with whom Simpson JA and Sackville AJA agreed), quoting Bobolas v Waverley Council [2014] NSWCA 78, Ward JA at [68]–[69].…
Bobolas v Waverley Council
[2016] NSWCA 139

…s 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 Camero…
Croucher v Cachia
[2015] NSWCA 365 Para 16

…well known. They were recently considered by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 [10]-[13], and by Ward JA in Bobolas v Waverley Council [2014] NSWCA 78 [60]-[61]. Suffice it to say, a successful party is prima facie entitled to the fruits of his or her victory, but that a stay may be granted where an…
Bobolas v Waverley Council (No 4)
[2015] NSWCA 337 Para 22

…Bobolas v Waverley Council [2014] NSWCA 66. That stay was subsequently discharged with effect from 7 am on 31 March 2014: Bobolas v Waverley Council [2014] NSWCA 78. By that time, the time specified in the 4 March 2014 orders for the carrying out of the work had expired. The Council sought and obtained amendments…
Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd
[2015] NSWCA 150 Para 10

…td v Moubarak [2009] NSWCA 130, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7] and in Bobolas v Waverley Council [2014] NSWCA 78 at [61]. An application for review of the latter decision was dismissed: see Bobolas v Waverley Council [2014] NSWCA 131.…
Bobolas v Waverley Council
[2014] NSWCA 131 Para 1

…Ward JA delivered a comprehensive and careful judgment on 25 March 2014: Bobolas v Waverley Council [2014] NSWCA 78. Her Honour made the following orders:…
Waverley Council v Bobolas (No 4)
[2014] NSWLEC 35

…es 2005 r 12.11 Cases Cited: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 Bobalas v Waverley Council [2014] NSWCA 66 Bobolas v Waverley Council [2014] NSWCA 78 Category: Consequential orders Parties: Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas…

View all 7 citing cases →

Cases cited in this decision · 17 of 17 shown

Waverley Council v Bobolas (No 3)
[2014] NSWLEC 16 Para 1

…ex parte basis and gave ex tempore reasons for his decision to grant the relief sought by the Council on that day ( Waverley Council v Bobolas (No 3) [2014] NSWLEC 16). His Honour noted (at [7] to [30] of his reasons) the procedural history of the proceedings. His Honour was satisfied on the evidence before him tha…
Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan
[2013] NSWSC 1270 Para 1

…leged", citing an authority which I assume from the reference given by her to be Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270.…
Waverley Council v Bobolas
[2013] NSWLEC 119 Para 1

…the benefit of a transcript of the proceedings on that occasion. However, the reasons given by his Honour on that occasion Waverley Council v Bobolas [2013] NSWLEC 119 address the applications in the order in which the applicants now contend they should have been addressed. The order of filing applications for inter…
Warringah Council v Ulrich
[2012] NSWLEC 234 Para 1

…Reference was made by Ms Elena Bobolas to the decision in Warringah Council v Ulrich [2012] NSWLEC 234, where Pepper J was satisfied that Mr Ulrich had failed to comply with s 124 orders issued by Warringah Council but made orders requiring Mr Ulrich to remove items from particular areas within particular periods (t…
Bobolas v Waverley Council
[2012] NSWCA 126 Para 1

…rce compliance with those orders was considered by this Court (McColl JA, with whom Macfarlan JA and Tobias AJA agreed) in Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63. Those proceedings related to similar orders made by the Council in 2010 for the removal by the applicants of waste from the Bon…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 1

…r v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16], confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31]).…
Adeels Palace Pty Ltd v Moubarak
[2009] NSWCA 130 Para 1

…y of orders, pending an appeal, may be granted were confirmed by Hodgson JA in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130 as being those set out in Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685. There, the Court said that it is not necessary for the…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 1

…This passage was referred to with approval by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 29 CLR 577 at [111].…
Forster v Harvey
[2006] NSWSC 1112 Para 1

…Young J, as his Honour then was, noted in Forster v Harvey [2006] NSWSC 1112, a party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned. His Honour observed that "unfortunately medical certificates appear to be very easily obtained"…
Manly Council v Moffit
[2006] NSWLEC 184 Para 1

…was a lack of candour by the Council in not drawing his Honour's attention to those provisions) is not arguable. Biscoe J in Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 (at [54]-[56]) explained the interrelationship between s 678 and Part 2 of Chapter 8 of the Act, in which ss 193 and 200 are to…
Micallef v ICI Australia Operations Pty Ltd
[2001] NSWCA 274

…Johnson [2000] HCA 48; (2000) 201 CLR 488 Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Najjar v Haines (1991) 25 NSWLR 224 Prothonotary of the Supreme Court of N…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…matter identified and the feared deviation from the course of deciding the question other than on its merits ( Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16], confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31]).…
Johnson v Johnson
[2000] HCA 48 Para 1

…of bias. Nor does the mere fact that a judge may rule against a party of itself constitute evidence of bias or apprehended bias. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:…
Webb v the Queen
[1994] HCA 30 Para 1

…In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 47, the High Court emphasised that the principle behind the reasonable apprehension or suspicion test is that it is of "fundamental important that justice should not only be done, but should manifestly and undoubtedly be seen to be done".…
O'Toole v Charles David Pty Ltd
[1991] HCA 14 Para 1

…orming any firm apprehension) will be taken into account ( Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Rogers JA).…
Vakauta v Kelly
[1989] HCA 44 Para 1

…tters of which the observer would inform him or herself before reasonably forming any firm apprehension) will be taken into account ( Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Rogers JA).…
House v R
[1936] HCA 40

…ee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Forster v Harvey [2006] NSWSC 1112 Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 House v R [1936] HCA 40; (1936) 55 CLR 499 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 Micallef v ICI…

Legislation cited in this decision · 4

Local Government Act 1993 (TAS)
124 2 mentions (from Para 1)
Land and Environment Court Act 1979 (NSW)
1 mention (from Para 1)
Legal Aid Commission Act 1979 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Bobolas v Waverley Council [2014] NSWCA 78
Hearing dates:	17 March 2014
Decision date:	25 March 2014
Before:	Ward JA
Decision:	1. Notice of motion dismissed with costs. 2. Stay ordered by Schmidt J on 14 March 2014, of the orders made by Biscoe J on 4 March 2013, be discharged with effect from 7am on Monday, 31 March 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.]
Catchwords:	APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of the court PROCEDURE - Court of Appeal procedure - stays PROCEDURE - Court of Appeal procedure - interlocutory injunctions PROCEDURE - courts and judges generally - judges - allegations of bias PROCEDURE - courts and judges generally - judges - natural justice or procedural fairness in ex parte hearing
Legislation Cited:	Land and Environment Court Act 1979 Legal Aid Commission Act 1979 Local Government Act 1993 Uniform Civil Procedure Rules 2005
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685 Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 29 CLR 577 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Forster v Harvey [2006] NSWSC 1112 Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 House v R [1936] HCA 40; (1936) 55 CLR 499 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Najjar v Haines (1991) 25 NSWLR 224 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270 Re Middle Harbour Investments Ltd (In Liq) Court of Appeal 15 December 1976 unreported Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Warringah Council v Ulrich [2012] NSWLEC 234 Waverley Council v Bobolas [2013] NSWLEC 119 Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Category:	Interlocutory applications
Parties:	Elena Bobolas (First Applicant/Appellant) Liana Bobolas (Second Applicant/Appellant) Mary Bobolas (Third Applicant/Appellant) Waverley Council (Respondent)
Representation:	In Person (First Applicant/Appellant) In Person (Second Applicant/Appellant) In Person (Third Applicant/Appellant) Counsel: Mr P Clay SC (Respondent) Solicitors: Wilshire Webb…