Bobolas v Waverley Council (No 4) - [2015] NSWCA 337

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council (No 4) [2015] NSWCA 337
Hearing dates: 23 October 2015
Decision date: 23 October 2015
Before: Basten JA at [54];
Leeming JA at [1], [68];
Tobias AJA at [67]
Decision:
Appeal dismissed, with costs.

Catchwords:
LOCAL GOVERNMENT - enforcement of order to remove waste - whether order invalid - whether order served - whether denial of procedural fairness - no error shown - Local Government Act 1993 (NSW) s 678
PRACTICE - appeal - adjournment - application for further adjournment refused where history of noncompliance with court directions and application unsupported by evidence
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57
Land and Environment Court Act 1979 (NSW), ss 20, 58
Local Government Act 1993 (NSW), ss 124, 200, 628, 673, 678, 710
Local Government Legislation (Miscellaneous Amendments) Act 1994 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 12.11
Cases Cited: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 105 ACSR 116
Bobolas v Waverley Council [2012] NSWCA 126; 187 LGERA 63
Bobolas v Waverley Council [2014] NSWCA 66
Bobolas v Waverley Council [2014] NSWCA 78
Bobolas v Waverley Council [2014] NSWCA 131
Drew v State of New South Wales [2015] NSWCA 159
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361
National Australia Bank Ltd v Rusu [1999] NSWSC 539; 47 NSWLR 309
Waverley Council v Bobolas (No 2) [2013] NSWLEC 130
Waverley Council v Bobolas (No 4) [2014] NSWLEC 35
Waverley Council v Bobolas [2013] NSWLEC 119
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1994
Category: Principal judgment
Parties: Elena Bobolas (First Appellant)
Liana Bobolas (Second Appellant)
Mary Bobolas (Third Appellant)
Waverley Council (Respondent)
Representation:
Counsel:
Appellants in person
A Pickles SC, J Reid (Respondent)
SAC Patterson (Amicus)
Solicitors:
Wilshire Webb Staunton Beattie, Lawyers (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:

04 March 2014

Before:

Biscoe J

File Number(s):

2013/40466

Ex tempore Judgment

LEEMING JA: The appellants, Ms Mary Bobolas and her daughters Elena and Liana, appeal from orders made by the Land and Environment Court pursuant to s 678(10) of the Local Government Act 1993 (NSW) for the carrying out by Waverley Council of works at premises in Boonara Avenue, Bondi, relating to the removal of “all accumulations of waste” from specified areas external to the house: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16.
Ms Elena and Ms Liana Bobolas have made submissions to this Court orally in support of their appeal for most of this morning. The Court briefly adjourned at 12.25 pm on their application to make inquiries as to whether their mother, Ms Mary Bobolas, who was said to be indisposed but in a room in the precincts of the…

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.

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Details

Case: [2015] NSWCA 337
Decision Date: 23 October 2015

CaseChat Overview and Summary

Basten and Leeming JJA, and Tobias AJA heard an appeal from a decision concerning the enforcement of an order made by Waverley Council requiring the removal of waste. The appellant, Bobolas, challenged the validity of the Council's order and the manner of its service, alleging a denial of procedural fairness.

The primary legal issues before the Court of Appeal were whether the order to remove waste was invalid, whether it had been validly served on the appellant, and whether the appellant had been denied procedural fairness in the making or enforcement of the order. The Court also considered an application for a further adjournment of the appeal.

The Court found no error in the primary judge's decision. It held that the Council's order was valid and had been properly served. Furthermore, the Court concluded that there had been no denial of procedural fairness to the appellant. The application for a further adjournment was refused, as it was unsupported by evidence and the appellant had a history of noncompliance with court directions.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed, with costs.

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

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Medium Neutral Citation:	Bobolas v Waverley Council (No 4) [2015] NSWCA 337
Hearing dates:	23 October 2015
Decision date:	23 October 2015
Before:	Basten JA at [54]; Leeming JA at [1], [68]; Tobias AJA at [67]
Decision:	Appeal dismissed, with costs.
Catchwords:	LOCAL GOVERNMENT - enforcement of order to remove waste - whether order invalid - whether order served - whether denial of procedural fairness - no error shown - Local Government Act 1993 (NSW) s 678 PRACTICE - appeal - adjournment - application for further adjournment refused where history of noncompliance with court directions and application unsupported by evidence
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57 Land and Environment Court Act 1979 (NSW), ss 20, 58 Local Government Act 1993 (NSW), ss 124, 200, 628, 673, 678, 710 Local Government Legislation (Miscellaneous Amendments) Act 1994 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 12.11
Cases Cited:	Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 105 ACSR 116 Bobolas v Waverley Council [2012] NSWCA 126; 187 LGERA 63 Bobolas v Waverley Council [2014] NSWCA 66 Bobolas v Waverley Council [2014] NSWCA 78 Bobolas v Waverley Council [2014] NSWCA 131 Drew v State of New South Wales [2015] NSWCA 159 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361 National Australia Bank Ltd v Rusu [1999] NSWSC 539; 47 NSWLR 309 Waverley Council v Bobolas (No 2) [2013] NSWLEC 130 Waverley Council v Bobolas (No 4) [2014] NSWLEC 35 Waverley Council v Bobolas [2013] NSWLEC 119
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1994
Category:	Principal judgment
Parties:	Elena Bobolas (First Appellant) Liana Bobolas (Second Appellant) Mary Bobolas (Third Appellant) Waverley Council (Respondent)
Representation:	Counsel: Appellants in person A Pickles SC, J Reid (Respondent) SAC Patterson (Amicus) Solicitors: Wilshire Webb Staunton Beattie, Lawyers (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: 04 March 2014 Before: Biscoe J File Number(s): 2013/40466