Waverley Council v Bobolas - [2009] NSWLEC 188

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Bobolas [2009] NSWLEC 188

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

FILE NUMBER(S): 40278 of 2009

CORAM: Pain J

KEY ISSUES: PRACTICE AND PROCEDURE :- application for adjournment of proceedings at commencement of hearing - whether to grant adjournment pending appeal of refusal of legal aid - adjournment granted

LEGISLATION CITED: Legal Aid Commission Act 1979 s 25, 56, 57
Local Government Act 1993 s 124, 200, 678

CASES CITED: Fibre-Tek (Gold Coast) Pty Ltd (in liquidation) v Sky Bennett [2009] NSWSC 1100
Lewis v Spencer [2007] NSWSC 1383
Waverley Council v Bobolas [2009] NSWLEC 131

DATES OF HEARING: 26 October 2009

EX TEMPORE JUDGMENT DATE: 26 October 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr M Staunton
SOLICITORS
Willshire Webb Staunton Beattie
FIRST RESPONDENT
No appearance
SECOND AND THIRD RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

26 October 2009

40278 of 2009 Waverley Council v Bobolas
EX TEMPORE JUDGMENT

1 Waverley Council (the Council) seeks court orders enforcing an order issued under s 124 of the Local Government Act 1993 (the LG Act), requiring the removal of waste from residential premises in Bondi. This matter is set down for hearing before me today. Ms Elena Bobolas and Ms Liana Bobolas, the Second and Third Respondents, appeared and advised the Court that Ms Mary Bobolas, the First Respondent, has been confined to a psychiatric institution. Her attitude and awareness of the proceedings are unknown.

2 At the outset of proceedings the Second Respondent advised that each of the Respondents seek an adjournment of the hearing because they had made an application to the Legal Aid Review Committee (the Review Committee) against the refusal of legal aid by the Legal Aid Commission (the Commission), relying on s 57 of the Legal Aid Commission Act 1979. That provision states:

Where it appears to a court or tribunal, on any information

before it:

(a) that a party to any proceedings before the court or tribunal:

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

3 The Respondents also seek an adjournment because they wish their mother, the First Respondent, to be present to give evidence and she is not otherwise represented. The Respondents ask that any hearing be delayed pending her availability.

4 The Respondents also seek…

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 188
Case: [2009] NSWLEC 188
Decision Date: 26 October 2009

CaseChat Overview and Summary

In Waverley Council v Bobolas, the Waverley Council sought an enforcement order under the Local Government Act 1993 for the removal of waste from residential premises in Bondi. The matter was set down for hearing before Pain J in the Land and Environment Court of New South Wales. The first respondent, Mary Bobolas, was absent due to her confinement in a psychiatric institution. The second and third respondents, Elena and Liana Bobolas, sought an adjournment of the hearing due to the refusal of legal aid by the Legal Aid Commission and their wish for their mother to be present to give evidence.

The court had to decide whether to grant an adjournment of the hearing pending the appeal of the refusal of legal aid and if there were any special circumstances preventing the adjournment. The Legal Aid Commission Act 1979 provided that if a party had appealed or intended to appeal the refusal of legal aid and the appeal was bona fide and not frivolous or vexatious, the court or tribunal must adjourn the proceedings. The court also considered if there were special circumstances that prevented it from doing so.

The court found that the appeal or intention to appeal was bona fide and not frivolous or vexatious. It also found that there were no special circumstances that prevented it from granting the adjournment. Pain J granted the application for an adjournment, on condition that the appeal against the refusal of legal aid be regularised as soon as possible. The court made orders requiring immediate attendance at, and/or a communication with, the Review Committee offices by the respondents to establish the status of their legal aid appeal, with notification to this Court of what has occurred within a short time. The court stressed the urgency of this matter due to the important public health considerations raised by the Council’s submissions.

The final orders included an adjournment of the hearing and the requirement for the respondents to establish the status of their legal aid appeal and notify the court within a short time.

Orders