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 for service. The council says that personal service was effected within that time. On 19 June 2009 the matter was before Lloyd J. I am informed that on that day the respondents challenged the power of the registrar to extend the time for service and that they also had an issue concerning service.

6 Lloyd J did not uphold any such challenge or resolve any such issue in favour of the respondents and proceeded to fix a timetable for procedural steps, which are recorded in short minutes of order of that date. One of the directions in the timetable was that, following the filing and service of evidence by both parties and points of claim by the applicant, the matter be fixed for a further directions hearing today.

7 Today the matter was before the list judge who referred the matter to me as the duty judge. The respondents, who are represented by the second and third respondents, handed me a document entitled “Short Minutes of Order”, dated 23 July 2009, which sets out the orders that they now seek:

“1) Pursuant to section 59(1) and section 61(2) of the Land and Environment Court Act 1979, there be a stop to proceedings (stay) until the determination of the appeal in the Supreme Court.
2) In the interests of natural justice, the time for the defendants/respondents (appearing under special appearance and objection, protest and duress) to file the appeal in the Supreme Court should not be truncated/abbreviated, as the defendants/respondents are unrepresented litigants and the law is available to file Notice of Intention of Appeal in order to preserve the rights of the persons. Abbreviation of time truncates rights of persons, both to fair hearing and natural justice, and perverts the course of justice.
3) (a) The applicant (Waverley Council) bears the costs of today or
(b) Each party bears their own costs.”

8 The respondents also handed me a copy of a Notice of Intention to Appeal filed on 17 July 2009 by them in the Court of Appeal. It identifies under the heading, “Proceedings in the court below”, the following:

“29/5/09 (before Sheahan J, Acting Registrar Gray (twice), Lloyd J) and on 19/6/09 (before Sheahan J) and Lloyd J 19/6/09.”

This document also indicates that the decision to which the appeal relates is that of Lloyd J.

9 Before me the respondents indicated that it is a decision of Lloyd J on 19 June 2009 that is intended to be the subject of the appeal. Notwithstanding that any such decision was interlocutory, it appears that no application for leave to appeal to the Court of Appeal has been filed. No draft notice of appeal setting out any proposed grounds of appeal are before me.

10 The respondents say that they wish the proceedings to be stayed for the following reasons:

(a) they contend that they have not been properly served;
(b) they wish to challenge in the Court of Appeal the orders made by Lloyd J on 19 June 2009;
(c) there are other matters that they do not wish to detail at this time;
(d) they allege that on an earlier occasion when the council entered their property to give effect to an order such as this, the council caused damage; engaged in theft; took goods for their own use and on-sold goods; behaved badly; assaulted them; behaved as if it were a military campaign; engaged in contempt of court in that it did not observe procedures prescribed by the court; did not follow occupational, health and safety procedures; committed perjury; engaged in trespass and did many other things which the respondents do not wish to detail at this time.

11 The respondents have also told me that they appear today under objection, that they object to the jurisdiction of the court, and that they are entitled to a jury to hear the matter.

12 I am not aware of any basis upon which it might arguably be said that there is any right to a jury trial in this Court or that the Court does not have jurisdiction. The absence of any application for leave to appeal, the absence of definition as to the proposed grounds of appeal, the absence of submissions concerning the merits of the appeal, and the absence of evidence or submissions concerning the other matters that the respondents have raised or alleged from the bar table, incline me to think that the respondents’ oral motion for a stay should be dismissed and that the matter should be fixed for hearing.

13 I propose to fix the matter for hearing in not less than six weeks time in order to give the respondents a further opportunity to file and serve evidence. The orders of the Court are as follows:

(1) The respondents’ oral motion for a stay of the proceedings is dismissed.
(2) The respondents are to file and serve any affidavits or documents on which they intend to rely on or before 14 August 2009.
(3) The applicant is to file and serve any affidavits or documents in reply on or before 28 August 2009.

(4) The matter is fixed for hearing for one day not earlier than 7 September 2009.
(5) The parties are to approach the registry forthwith to obtain a hearing date.