Bobolas v Waverley Council (No 3)

[2015] NSWCA 336

Court of Appeal
Supreme Court

New South Wales

Case Name:	Bobolas v Waverley Council (No 3)
Medium Neutral Citation:	[2015] NSWCA 336
Hearing Date(s):	23 October 2015
Decision Date:	23 October 2015
Before:	Basten JA; Leeming JA; Tobias AJA
Decision:	Application for adjournment refused.
Catchwords:	PROCEDURE – adjournment of appeal – application made at commencement of hearing of appeal – no written submissions filed by appellants – legal aid sought but unavailable
Category:	Procedural and other rulings
Parties:	Elena Bobolas (First Applicant) Liana Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	Counsel: Applicants in person A Pickles SC, J Reid (Respondent) SAC Patterson (Amicus)   Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2014/80335
Decision under appeal:
Court or Tribunal:	Land and Environment Court of New South Wales
Jurisdiction:	Class 4
Citation:	[2014] NSWLEC 16
Date of Decision:	4 March 2014
Before:	Biscoe J
File Number(s):	2013/40466

[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.]

EX TEMPORE JUDGMENT

1. Judgment of THE COURT delivered by BASTEN JA: The appellants have applied for an adjournment of the hearing of the appeal this morning. The application is made for three primary purposes. One is to allow them to file written submissions in reply to the submissions which have been filed by the Council and also by amicus appointed by the Court; secondly, they have sought an opportunity to obtain legal advice in relation to the matters raised on the appeal by the respondent; and, thirdly, they seek an opportunity to amend their notice of appeal to add certain dates and details.

2. This is a matter in which the interlocutory steps have taken a not insignificant period of time. The written submissions which should have been filed by the appellants (but never were) were due in July last year. There have been numerous attendances before the Registrar and directions by the Registrar in relation to the filing of written submissions. It does not lie in the mouths of the appellants to complain that they have not had an opportunity to reply to written submissions filed by the Council, which were indeed only filed and served recently, but in circumstances where there was at that stage nothing to reply to from the appellants. It would not be appropriate to grant an adjournment based on the request for an opportunity to respond to those submissions.

3. One of the appellants alleges that she has had medical problems since July, approximately from 21 July 2015. There is no evidence of that before the Court in terms of the effect of any medical problems, but again, that is a date a year after the steps which are now sought to be taken should have been taken.

4. So far as the appellants seek an opportunity to obtain legal advice, the second matter raised, again, there has been an ample opportunity for the appellants to seek legal advice and it appears that they have actually sought legal aid for that purpose. There is no need to provide further time for that to happen.

5. Thirdly, in relation to the notice of appeal, it is far too late to seek leave to amend a notice of appeal. They have had adequate opportunity to do that.

6. In the circumstances, the application for the adjournment is refused.

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