Waverley Council v Bobolas
[2013] NSWLEC 119
•26 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Waverley Council v Bobolas [2013] NSWLEC 119 Hearing dates: 26 July 2013 Decision date: 26 July 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Order declaring that the originating process has not been served on the second and third respondents. (2) Order that the applicant pay the filing fee of the second and third respondents' notice of motion filed on 12 July 2013 when those respondents become liable to pay that filing fee. (3) Stand over the proceedings to Friday 9 August 2013 before Biscoe J.
Catchwords: PRACTICE AND PROCEDURE - service of originating process - respondents receive by mail from applicant copies of affidavits of service of summons on them but contend copy summons not enclosed and seek order declaring that they have not been served - applicant seeks orders for substituted service and extension of time for service, and resiles from affidavits of service. Legislation Cited: Local Government Act 1993 s 124
Uniform Civil Procedure Rules 2005 rr 10.6, 10.20(2), 12.11Cases Cited: Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154 Category: Procedural and other rulings Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)Representation: COUNSEL:
K Webber, solicitor (Applicant)
Elena Bobolas and Liana Bobolas in person (Respondents)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
N/A (Respondents)
File Number(s): 40466/13
EX TEMPORE Judgment
These civil enforcement proceedings are brought by Waverley Council against Mary Bobolas and her daughters Elena Bobolas and Liana Bobolas seeking a declaration that they have not complied with the terms of a council order pursuant to s 124 of the Local Government Act 1993, and seeking consequential orders relating to a property at Bondi.
Interlocutory issues have arisen from the fact that the summons has not yet been served. The summons was filed on 19 June 2013 and stated that it must be served by 26 June 2013. Affidavits of service of the summons on Elena and Liana Bobolas on 21 June 2013 were sworn by a licensed commercial agent, Mr James Twigg. On 4 July 2013 the council's solicitors sent a letter to each of them stating that a copy of his affidavit of service and the summons were enclosed. Those respondents appear in person today and each says that she received the copy letter and affidavit but that the copy summons was not enclosed. The council now resiles from the affidavits of service.
This background explains the motions that are before the Court today:
(a) Elena and Liana Bobolas filed a notice of motion on 12 July 2013 seeking, among other things, an order declaring that the summons has not been served on them, pursuant to r 12.11(1)(c) of the Uniform Civil Procedure Rules 2005 (UCPR). They also seek orders pursuant to r 12.11(1)(a), (f)(i) and (g) or (h). The notice of motion also claims an order pursuant to r 12.11(1)(b) but that is not pressed. The notice of motion states that it does not constitute the entry of an appearance, reference being made to r 12.11(3)(a) and (b). Elena and Liana Bobolas are self-represented on their notice of motion.
(b) There is a notice of motion filed by the council on 19 July 2013 seeking an order for substituted service of the summons; council also seeks an extension of time for service. Elena and Liana Bobolas appear in person to contest such relief.
Rule 12.11 provides:
12.11 Setting aside originating process etc
(1) In any proceedings, the court may make any of the following orders on the application of a defendant:
(a) an order setting aside the originating process,
(b) an order setting aside the service of the originating process on the defendant,
(c) an order declaring that the originating process has not been duly served on the defendant,
(d) an order discharging:
(i) any order giving leave to serve the originating process outside New South Wales, or
(ii) any order confirming service of the originating process outside New South Wales,
(e) an order discharging any order extending the validity for service of the originating process,
(f) an order protecting or releasing:
(i) property seized, or threatened with seizure, in the proceedings, or
(ii) property subject to an order restraining its disposal or in relation to which such an order is sought,
(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,
(h) an order declining to exercise jurisdiction in the proceedings,
(i) an order granting such other relief as the court thinks appropriate.
(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.
(3) Notice of motion under subrule (2):
(a) may be filed without entering an appearance, and
(b) must bear a note stating the applicant's address for service.
(4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.
The evidence on the respondents' motion comprises an affidavit by each of them. The evidence of the council on that motion comprises copies of the two letters dated 4 July 2013 addressed to each of those respondents and enclosures, to which I have earlier referred.
Those respondents claim under r 12.11(1)(c) for an order "declaring that the originating process has not been duly served" on them. Generally, where it is common ground that the originating process has not yet been served, it would be inappropriate to make such an order. However, in this case the affidavits of Mr Twigg sent to these respondents by mail assert that he did serve them with the summons, this prompted their notice of motion seeking this order, and the council now resiles from that evidence. In those unusual circumstances, I consider it appropriate to make this order, which the council does not oppose.
Next, the respondents claim an order under r 12.11(1)(a) setting aside the originating process. They submit that such an order should be made because the summons has not yet been served, although it was filed on 19 June 2013, and because r 10.20(2) of the UCPR provides that an originating process must be personally served. This submission does not allow for the opening words of r 10.20(2): "Except as otherwise provided by these rules". In this case there are pending applications by the council for substituted service and for an extension of time for service, on which I have not yet ruled. In the circumstances, it is inappropriate to make an order setting aside the originating process.
The next order sought by the respondents is under r 12.11(1)(f) for protection of property. I do not consider that any case has been made out for such an order.
The next order sought by the respondents is under r 12.11(1)(g) or (h) for orders declaring that the Court has no jurisdiction over them in respect of the subject matter of the proceedings or an order declining to exercise jurisdiction in the proceedings. The respondents say that they may seek legal advice on this aspect and intimate that there could be a constitutional problem because councils (they say) are not local governments and are not recognised in the Constitution. In passing, I note that I dismissed a challenge to the authority of local councils in Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154 at [25] - [27]. In my view, no case has been made out for any such order.
Finally, the respondents ask for costs. They have had a measure of success: see [6] above. They do not have legal representation and inform me that payment of the filing fee on their notice of motion has been postponed by the Registrar. I think it is reasonable that when they become liable to pay that fee, it should be paid by the council and I propose to so order.
I turn to the council's application for substituted service and extension of time for service. The council intends to read in support another affidavit of Mr Twigg. Such an application is normally heard ex parte, however the respondents Elena and Liana Bobolas appear in opposition, decline to agree to accept service of the summons (as they could do under r 10.6 of the UCPR), and wish to cross-examine Mr Twigg. He is not available for cross-examination today for the council says it did not receive prior notice that he was required for cross-examination. The respondents say that they sent such notice by ordinary mail two days ago to the council's solicitors. On balance, in the circumstances I propose to stand over the remaining matters, so that Mr Twigg can be cross-examined, to Friday 9 August 2013, which the parties have indicated is a suitable date.
The orders of the Court are as follows:
(1) Order declaring that the originating process has not been served on the second and third respondents.
(2) Order that the applicant pay the filing fee of the second and third respondents' notice of motion filed on 12 July 2013 when those respondents become liable to pay that filing fee.
(3) Stand over the proceedings to Friday 9 August 2013 before Biscoe J.
Decision last updated: 01 August 2013
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