Waverley Council v Bobolas - [2009] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Bobolas [2009] NSWLEC 131

PARTIES:
APPLICANT:
Waverley Council
FIRST RESPONDENT:
Mary Bobolas
SECOND RESPONDENT:
Elena Bobolas
THIRD RESPONDENT:
Liana Bobolas

FILE NUMBER(S): 40278 of 2009

CORAM: Biscoe J

KEY ISSUES: PRACTICE AND PROCEDURE :- application for stay of proceedings until determination of appeal.

LEGISLATION CITED: Local Government Act 1993, ss 124, 678
Public Health Act 1991

DATES OF HEARING: 24 July 2009

EX TEMPORE JUDGMENT DATE: 24 July 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr M Staunton, barrister
SOLICITORS
Wilshire Webb Staunton Beattie
RESPONDENTS
Elena and Liana Bobolas in person
SOLICITORS
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 July 2009

40278 of 2009

WAVERLEY COUNCIL v MARY BOBOLAS & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an oral motion by the respondents for a stay of the proceedings until determination of their appeal to the Court of Appeal against an interlocutory decision. The applicant, Waverley Council, on the other hand, seeks to have the proceedings set down for final hearing.

2 The council instituted the proceedings on 4 May 2009 seeking a declaration that the respondents have not complied with the terms of an Order 22A pursuant to s 124 of the Local Government Act 1993, dated and served on 5 March 2009; and an order that the council, including its employees, agents and contractors, enter premises at 19 Boonara Avenue, Bondi and undertake such works as are reasonably required to comply with the terms of that order.

3 Order 22A referred to in s 124 is an order to remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises. Section 124 provides that the council may issue such an order to the owner or occupier of the premises in circumstances where the waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), causing or is likely to cause a threat to public health or the health of any individual. The council says that the first respondent is the owner of the subject residential premises and that all three respondents are occupiers.

4 Section 678 of the Local Government Act 1993 provides that if a person fails to comply with the terms of such an order the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. The council proceeds on the basis that, in order to give effect to the terms of the order, it is necessary to enter these residential premises, which requires either the consent of the owner or occupier or leave of the court.

5 The summons was first returnable before the court on 29 May 2009 when the council unsuccessfully sought an order for substituted service. On 1 June 2009 the registrar extended the time…

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 Waverley Council v Bobolas

Details

AGLC: Waverley Council v Bobolas [2009] NSWLEC 131
Case: [2009] NSWLEC 131
Decision Date: 24 July 2009

CaseChat Overview and Summary

The case of Waverley Council v Bobolas involves the Waverley Council as the applicant, seeking to enforce a waste removal order against Mary Bobolas, the first respondent, and the other two respondents, Elena Bobolas and Liana Bobolas, who are also occupiers of the premises in question. The respondents have applied for a stay of the proceedings pending their appeal to the Court of Appeal, which the applicant, Waverley Council, opposes. The matter was heard by Biscoe J in the Land and Environment Court of New South Wales. The primary legal issue before the court was whether to grant the respondents' application for a stay of proceedings until their appeal to the Court of Appeal is determined. The court had to consider the respondents' arguments concerning service, jurisdiction, and the merits of the appeal, as well as the absence of formal leave to appeal and defined grounds of appeal.

The court, Biscoe J, considered the respondents' arguments and found that there was no basis for a right to a jury trial or a challenge to the court's jurisdiction. The absence of an application for leave to appeal, defined grounds of appeal, and submissions concerning the merits of the appeal led the court to believe that the respondents' motion for a stay should be dismissed. The court was also not convinced by the respondents' allegations of past misconduct by the council, as these were not supported by evidence or submissions. Given these circumstances, the court decided to dismiss the application for a stay and ordered that the matter proceed to a final hearing, allowing the respondents an opportunity to file and serve evidence. The final orders of the court were to dismiss the respondents' application for a stay, set deadlines for the filing and serving of evidence, and schedule a hearing date not earlier than 7 September 2009.

Orders