Bobolas v Waverley Council (No 2)

[2020] NSWCA 315

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bobolas v Waverley Council (No 2) [2020] NSWCA 315
Hearing dates:	7 December 2020
Date of orders:	7 December 2020
Decision date:	07 December 2020
Before:	Macfarlan JA
Decision:	Summons seeking leave to appeal dismissed with costs.
Catchwords:	APPEALS – leave to appeal – summons seeking leave filed over three months earlier and no steps taken since – no identification of any ground upon which the proposed appeal might succeed – failure without adequate explanation to comply with Court’s directions – summons dismissed for want of prosecution
Category:	Procedural and other rulings
Parties:	Elena Bobolas (First Applicant) Liana Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	Counsel: Self-represented First and Second Applicant Ms J Reid (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2020/253297
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2020] NSWLEC 103; [2020] NSWLEC 127 Date of Decision: 31 July 2020; 31 August 2020; 1 September 2020 Before: Pain J File Number(s): 2020/91346

Judgment

1. This judgment concerns a summons seeking leave to appeal against a number of judgments of Pain J sitting in the Land and Environment Court, including Bobolas v Waverley Council(No 2) [2020] NSWLEC 127. The summons purported to, but did not in fact, attach a document said to be marked “A” and described as “Notice of Appeal”.

2. The return date of the summons was 12 October 2020. The applicants did not appear on that date and a direction was made in the following terms:

“Registry is to issue a notice under UCPR 13.6 directed to the Applicants to show cause why the Summons should not be dismissed or struck out for non-attendance today.”

3. The applicants were given notice by letter to Ms Elena Bobolas of 12 October 2020 of the making of that direction and of the fixing of 2 November 2020 as a date for further directions.

4. On 2 November 2020, Ms Elena Bobolas, apparently representing herself and the other applicants, appeared by telephone before the Registrar when orders were made as follows:

“(1)   Appellant’s White Folder and Summary of Argument to be filed and served by 30/11/2020.

(2)   Matter listed to show cause on 7/12/2020 at 9.00am, if the White Folder and Summary of Argument are not filed.

(3)   Registry notify parties.”

5. The making of these orders was duly notified by letter of 3 November 2020.

6. The White Folder and Summary of Argument were not filed, as required by the orders, by 30 November 2020. Nor have they or any other document which would indicate that the proposed appeals have merit since been filed.

7. At the further directions hearing of the matter today, the applicants sought two further weeks to comply with the directions made on 2 November 2020. They did not file any affidavit in support of that application, stating only that they had had difficulties complying with the timetable because they have a close relative who is very sick and they have other medical and personal issues. They did not proffer any medical certificates in support of their application.

8. In these circumstances, I do not consider that the applicants provided any adequate justification for an adjournment of today’s hearing, nor any adequate explanation for non-compliance with the directions of 2 November 2020.

9. Over three months have passed since the filing of the summons seeking leave to appeal and there has been no identification of any ground upon which the proposed appeal might succeed. Further, and most importantly, the applicants have taken no steps to advance their application and have failed, without adequate explanation, to comply with the Court’s directions. For these reasons, I consider that the summons seeking leave to appeal should be dismissed for want of prosecution, with costs. I order accordingly.

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Decision last updated: 07 December 2020