Bobolas v Waverley Council

[2014] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bobalas v Waverley Council [2014] NSWCA 66

Hearing dates:

14 March 2014

Decision date:

14 March 2014

Before:

Schmidt J

Decision:

Orders made by Biscoe J in the Land and Environment Court on 4 March 2014 in matter number 40466/13 - Waverley Council v Bobolas be stayed until further order of the Court. For that purpose, the matter is listed at 2pm on Monday, 17 March before the Court for further hearing of the motion

[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:

PROCEDURE - notice of motion - ex parte application - order restraining the Council from entering premises - order made in Land and Environment Court stayed until further order of the Court

Category:

Interlocutory applications

Parties:

Elena Bobalas (First Appellant)
Liana Bobalas (Second Appellant)
Mary Bobalas (Third Appellant)

Representation:

Solicitors:
Elena Bobalas, unrepresented
(First Appellant)
Liana Bobalas, unrepresented
(Second Appellant)
Mary Bobalas, unrepresented
(Third Appellant)

File Number(s):

2014/80335

Publication restriction:

None

 Decision under appeal 

Date of Decision:

2014-03-04 00:00:00

Before:

Biscoe J

File Number(s):

2014/40466

EX TEMPORE Judgment

1. HER HONOUR: This evening a notice of appeal has been filed by three appellants, Elena Bobalas, Liana Bobalas and Mary Bobalas. They seek to appeal a judgment given on 4 March 2014 by Biscoe J in the Land and Environment Court, in circumstances where they allege, due to ill health, they did not appear at a hearing before his Honour on that day, when orders were made pursuant to which Waverley Council has been given permission to enter into their home and undertake certain work described in the orders made by his Honour.

1. By notice of motion also filed today, the appellants seek an order restraining the Council from entering into their home in accordance with his Honour's orders and a stay of those orders until their appeal is heard.

1. The appellants have approached the Court ex parte, in circumstances which they have explained include having approached the Land and Environment Court on 11 March to enquire as to what had transpired at the hearing before Biscoe J. Registry staff provided them with a document containing 12 printed orders which they understand his Honour made.

1. Those orders contemplate that the Council have access to their home on 17, 18, 19, 20 March and 21 March to undertake certain works. Order 6 is in these terms:

"Provided a sealed copy of these orders are served on the respondents by affixing the orders in a sealed, clear, soft plastic pocket to the outside of the double front gates of the premises, three days before the works commence, the works may commence on the premises on 17 March 2014."

1. In supporting affidavits it was deposed by Ms Elena Bobalas that they have not been served with a copy of his Honour's orders. Nor did they have a copy of his Honour's judgment. In those circumstances, if that be correct, it appears that his Honour's orders won't permit the Council to commence the works contemplated by the orders which his Honour otherwise made.

1. Nevertheless, the stay is pressed by the appellants in circumstances where they say they have not approached Biscoe J for a stay of his orders, because of a concern on their part as to a denial of procedural fairness, as well as apprehended and actual bias, which they say in part is evidenced by the orders made on 4 March, which permit the proposed works to commence on 17 March, a timeframe insufficient for them even to exercise their ordinary statutory rights of appeal against his Honour's judgment.

1. It is a matter of obvious concern that the appellants have approached this Court so late for a stay and have done so ex parte. It is difficult to assess the prospects of the appeal, but apparent that it may prove abortive and that the appellants may suffer prejudice or damage if the stay is not granted. In all of those circumstances, I am not prepared to make all of the various orders sought in the motion, particularly to grant a stay of his Honour's orders until the appeal is heard. It seems to me that before that is entertained, the Council must be heard.

1. Accordingly, I order that the orders made by Biscoe J in the Land and Environment Court on 4 March 2014 in matter number 40466/13 - Waverley Council v Bobolas, a copy of which is attached be stayed until further order of the Court. For that purpose, the matter is listed at 2pm on Monday, 17 March before the Court for further hearing of the motion.

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40466/13 - Waverley Council v Bobolas (PDF)

Decision last updated: 17 March 2014