Waverley Council v Bobolas

[2009] NSWLEC 190

Land and Environment Court

of New South Wales

CITATION:

Waverley Council v Bobolas & Ors [2009] NSWLEC 190

PARTIES:

APPLICANT:
Waverley Council

FIRST RESPONDENT:
Mary Bobolas

SECOND RESPONDENT:
Liana Bobolas

THIRD RESPONDENT:
Elena Bobolas

FILE NUMBER(S):

40916 of 2006

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application for adjournment of proceedings where s 57 Legal Aid Commission Act 1979 applies.

LEGISLATION CITED:

Legal Aid Commission Act 1979, ss 25, 57

CASES CITED:

Fibre-Tek (Gold Coast) Pty Ltd (in Liquidation) v Skye Bennett [2006] NSWSC 1100
Lewis v Spencer [2007] NSWSC 1383, (2007) 179 A Crim R 48

DATES OF HEARING:

27 August 2009

EX TEMPORE JUDGMENT DATE:

27 August 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M. Staunton (barrister)
SOLICITORS
Wilshire Webb Staunton Beattie

RESPONDENTS:
Ms L. & E. Bobolas (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

27 August 2009

40916 of 2009

WAVERLEY COUNCIL v MARY BOBOLAS & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: The matter listed for hearing this morning is a notice of motion by the applicant Waverley Council that the respondents pay the council’s costs of the proceedings, including a notice of motion heard on 25 January 2007.

2 Upon the matter being called, the respondents applied for an adjournment. They seek the following orders as set out in their document entitled Short Minutes of Order dated 26 August 2009 on which I will write the word “Draft” so that it is clear when it is seen on the Court file that it does not represent the orders of the Court:

“1. Pursuant to section 57 of the Legal Aid Commission Act (1979), the proceedings be adjourned, as the respondents are appealing the Legal Aid refusal. Section 57 of the Legal Aid Commission Act (1979) mandates an adjournment. Section 56 of the Legal Aid Commission Act allows at least twenty-eight days for the appeal to be lodged, and the Legal Aid appeal form indicates that the determination of the appeal may take 6-8 weeks (including redetermination) or longer in certain circumstances.

2. As Mrs Mary Bobolas was forced to go to psychiatric hospital and currently remains there as an involuntary patient (at the behest of Waverley Council) it is in the interests of a fair trial and natural justice to adjourn until such time as she is released, and the Legal Aid appeal has been determined.

3. The respondents are to inform the court when both of the above have occurred.

4. (a) The applicant (Waverley Council) bears the costs of today; or
(b) each party bears their own costs.”

3 The draft also contains the words “Special appearance under objection, protest & duress”. One of the documents attached to the draft is a copy of part of a determination by Legal Aid New South Wales dated yesterday, 26 August 2009, addressed to one of the respondents, which contains the words “Legal aid refused”. Under the heading “Reasons for refusal” in the copy, the respondents have obliterated the reasons on the ground that they are privileged under s 25 of the Legal Aid Commission Act 1979. That is not disputed by the council.

4 As regards paragraph 2 of the draft, there is no evidence before the Court to support the assertion therein. The council says that it is incorrect to allege that it was at the behest of the council that the respondent Mrs Mary Bobolas (if it be the case) went to a psychiatric hospital. In the absence of evidence, I do not propose to take that matter into account on this adjournment application.

5 I am satisfied that the applicants are entitled to an adjournment by reason of s 57 of the Legal Aid Commission Act 1979, which provides:

“ 57 Adjournment of certain proceedings
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.”

6 I am informed that the council was unaware that this adjournment application was to be made until this morning. Upon consideration during the course of the morning, the council concedes that there should be an adjournment on the basis of s 57. In Fibre-Tek (Gold Coast) Pty Ltd (in Liquidation) v Skye Bennett [2006] NSWSC 1100 at [25]-[27] Simpson J held:

“S57 of the Act operates to entitle the defendant to an adjournment unless:
§ the appeal is incompetent;
§ the appeal is not bona fide or is frivolous or vexatious or is otherwise intended improperly to hinder or improperly delay the conduct of the proceedings; or
§ there are special circumstances that prevent the court granting the adjournment.


In my opinion, having regard to the terms of s 57, the onus lies upon the party who opposes adjournment to establish one or more of the relevant circumstances that would justify refusal.

Here, the plaintiff accepts that the appeal is not incompetent, is bona fide, is not frivolous or vexatious or otherwise intended improperly to hinder or delay the conduct of the proceedings. The plaintiff has argued, however, that there are special circumstances that prevent an adjournment being granted.”

7 That decision was followed in Lewis v Spencer [2007] NSWSC 1383, 179 A Crim R 48 per Rothman J who held at [17] -[18]:

“It is for those asserting that an adjournment should not occur to establish that one of the circumstances exists that would overturn the prima facie position that, an appeal having been lodged, the proceedings are adjourned: Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100 at [26] per Simpson J.

Even if the onus did not rest upon those opposing the adjournment, there is no material upon which the court below could have decided that the intention to appeal and, at a later stage the appeal, were not bona fide or that any delay occasioned by an adjournment would be improper. The terms of s 57 of the Legal Aid Commission Act require an adjournment, subject only to the evaluation to be made by the judicial officer to which reference has already been made. Therefore it is a consequence of the intended operation of the legislation that there will be an adjournment and the Act requires that witnesses re-attend and that proceedings be re-organised. The fact that witnesses will have to re-attend and that proceedings will have to be re-organised is not and cannot be sufficient reason to find that there is an improper hindrance or improper delay in the proceeding or that the appeal or intention to appeal is not bona fide.”

8 In light of those authorities the onus would be on the council, if it wished to assert that there should not be an adjournment, to establish that circumstances exist that would overturn the prima facie position that, there being an intention to appeal, the proceedings shall be adjourned. This was acknowledged by the council.

9 The proceedings must be adjourned under s 57 to such dates on such terms and conditions as the court thinks fit. I have discussed the terms and conditions with the parties. The respondents have approximately twenty-eight days in which to lodge an appeal and the information before the Court indicates that it may be another six weeks (although possibly longer) before the appeal is decided. In the circumstances, I make the following orders:

(1) The proceedings are adjourned to 6 November 2009 before the list judge for directions.
(2) The respondents are to promptly give written notice to the applicant’s solicitors and the registrar of the Court when:
(a) their Legal Aid appeal has been lodged, and
(b) their Legal Aid appeal has been determined.
(3) Liberty to any party to restore the matter on three days written notice to the Court and the other parties.
(4) The costs of today are reserved.