Waverley Council v Bobolas
[2012] NSWLEC 245
•21 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Waverley Council v Bobolas [2012] NSWLEC 245 Hearing dates: 21 September 2012 Decision date: 21 September 2012 Jurisdiction: Class 4 Before: Pain J Decision: 1. The application for adjournment by the Third Respondent, Ms Liana Bobolas, is dismissed.
2. The remitter from the Court of Appeal on the question of costs of the Land and Environment Court proceedings is determined on the basis that proceedings are dismissed and each party bear its own costs.
Catchwords: COSTS - remitter on costs of first instance proceedings from Court of Appeal where respondents' appeal upheld - no appearance by successful respondents - no evidence of legal costs being incurred by the respondents - proceedings dismissed on the basis that each party pay its own costs Legislation Cited: Civil Procedure Act 2005 s 56 Cases Cited: Bobolas v Waverley Council [2012] NSWCA126; (2012) 187 LGERA 63
Waverley Council v Bobolas (No 2) [2009] NSWLEC 211Category: Costs Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)Representation: Ms A Pearman (applicant)
Wilshire Webb Staunton Beattie (applicant)
File Number(s): 40278 of 2009
EX TEMPORE Judgment
In Bobolas v Waverley Council [2012] NSWCA126; (2012) 187 LGERA 63 the Court of Appeal upheld the three Respondents' appeal against my decision in Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 handed down in December 2009. At [74] the Court of Appeal remitted the costs of the matter at first instance back to this Court.
The matter is before me today solely for determination of those costs. As submitted by Ms Pearman, I am not aware of any other outstanding issue in relation to these proceedings. There is no appearance by the three Respondents nor are they represented by an agent or solicitor today.
I have been provided with a chronology by Ms Pearman which sets out the very lengthy processes in this matter. Proceedings commenced in May 2009 and numerous interlocutory matters were before the Court in which no costs orders were made. There was a hearing before me on 9 and 10 December 2009 and judgment was delivered on 10 December 2009. There was further consideration of the matter on 11 December 2009 in relation to finalisation of orders and also to consider a late notice of motion in which the Respondents were represented by counsel acting pro bono. Waverley Council v Bobolas (No 2) in the addendum at p 18 identified the additional ground of challenge to the Council's order in the notice of motion, which I rejected. Counsel's appearance on behalf of the Respondents on 11 December 2009 is, I understand, the only time they have had legal representation before this Court.
I recite briefly that history as it appears that there have been no legal costs incurred by the Respondents. The appearance of counsel on 11 December 2009 was on a pro bono basis. Consequently if there were to be a determination of costs before me it could only be in relation to disbursements in any event. That is an important contextual matter, given the costs incurred by the Council to date in this matter and today.
I have before me a faxed unsigned notice of motion from an unidentified person seeking an adjournment of the matter for six weeks. In light of my ruling earlier this morning accepting an agreement between Ms Elena Bobolas and her mother, Ms Mary Bobolas, with the Council to settle this matter exists, I infer that this motion is pressed only by Ms Liana Bobolas and I proceed on that basis. I have before me a facsimile of a handwritten affidavit of Ms Liana Bobolas dated 21 September 2012 which appears relevant to the faxed unsigned notice of motion. I have already ruled on which parts of the affidavit can be read today and have highlighted them in green.
The Council opposes that motion seeking an adjournment. The Council has orally applied for, and I have granted leave, for the instanter return of its motion seeking an order that these proceedings be dismissed today on the basis that each party pay its own costs. That motion is only pressed in relation to Ms Liana Bobolas as she is the only remaining Respondent in these proceedings.
In relation to the notice of motion of Ms Liana Bobolas I note in the parts of her affidavit I have allowed to be read that she claims that she wishes to have the opportunity to obtain legal aid to answer what she perceives are the outstanding substantial issues remaining in the case. As I have already identified above in par 2 I am not aware that there are any remaining substantial issues in this case and she appears to be misinformed in that regard. At this stage there is only a very limited and discrete issue as to whether or not disbursements would be payable to her. She complains about the way in which the hearing date of today was allocated but no basis is presented in the affidavit which would suggest I should review the Registrar's allocation of the hearing date.
Ms Liana Bobolas also raises concerns about settlement offers that have been made by the Council. I note that exhibit A contains two letters tendered today by the Council's counsel indicating that the Council has offered to resolve the proceedings on the basis that each party bear its own costs. Those offers and the process of offering them seem entirely proper to me and are common steps taken in litigation of this nature.
There is no matter identified in Ms Liana Bobolas' affidavit that suggests that a six week adjournment of this matter is required or appropriate. I am being generous even considering the motion, given that it is unsigned, no one appeared to argue it and it has not been lodged with the Court in compliance with the Court's rules. I will exercise my discretion to dismiss that motion seeking an adjournment.
Turning to the Council's motion that the proceedings to be dismissed with each party paying its own costs, I essentially agree with Ms Pearman's submission made in her oral application this morning. I will endeavour to repeat these and adopt them as my reasons.
As Ms Pearman submitted and I have already noted, the only basis on which it would appear that costs or disbursements could be provided to Ms Liana Bobolas is on the basis of out of pocket expenses being disbursements relevant to these proceedings. The Council is incurring considerable costs in continuing to have to attend to deal with the costs remitter. It seems to me that costs of further prolonging this matter certainly must outweigh any likely award of disbursements that the Court might be minded to make, given that only one Respondent remains in the matter.
It would appear that ample opportunity has been provided to Ms Liana Bobolas to seek legal advice, to the extent that it is necessary at all in the limited matter still before the Court. The matter was previously before the Court on 13 June 2012 at which time the Respondents advised of their intention to obtain legal advice from Legal Aid NSW. On 13 July 2012 the matter was set down for hearing on 21 September then over two months away. As noted by Ms Pearman, on a previous occasion the Respondents were successful in obtaining pro bono legal advice and Ms Liana Bobolas could have pursued that avenue again given the time available to her.
In light of all these circumstances, the order for dismissal sought today by the Council is in the interests of all the parties. I think this matter needs to reach finality sooner rather than later. This order would achieve the just, cheap and quick resolution of the proceedings, as required by s 56 of the Civil Procedure Act 2005.
Orders
The Court makes the following orders:
(1) The application for adjournment by the Third Respondent, Ms Liana Bobolas, is dismissed.
(2) The remitter from the Court of Appeal on the question of costs of the Land and Environment Court proceedings is determined on the basis that proceedings are dismissed and each party bear its own costs.
Decision last updated: 14 November 2012
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