Waverley Council v Bobolas (No 2)

[2009] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION:	Waverley Council v Bobolas (No 2) [2009] NSWLEC 211
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:	CIVIL ENFORCEMENT :- orders sought permitting Council to enter on to residential premises to carry out work pursuant to clean-up orders issued by Council - validity of orders issued by Council -whether proper service - whether opinion of environmental health officer formed that waste causing or likely to cause threat to public or individual health - orders made
LEGISLATION CITED:	Civil Procedure Act 2005 s 10 NSW Trustee and Guardian Act 2009 Local Government Act 1993 s 124, 194, 200, 678(10), 697, 710 Uniform Civil Procedure Rules 2005 r 7.14,
CASES CITED:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Council of the City of Sydney v Estate of Sulligoi care of Public Trustee [2007] NSWLEC 778 Manly Council v Moffit (2006) 146 LGERA 215 Waverley Council v Bobolas [2006] NSWLEC 828 Waverley Council v Bobolas [2009] NSWLEC 188
DATES OF HEARING:	9 December 2009 10 December 2009
EX TEMPORE JUDGMENT DATE:	10 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Staunton SOLICITORS Wilshire Webb Staunton Beattie FIRST RESPONDENT Submitting appearance by Office of the Protective Commissioner SECOND RESPONDENT In person THIRD RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 December 2009

40278 of 2009 Waverley Council v Bobolas & Anor (No 2)

EX TEMPORE JUDGMENT

Waverley Council (the Council) seeks orders to enable it to enforce three orders issued under s 124 (cl 22A) the Local Government Act 1993 (the LG Act) for the clean up of premises at Bondi (the premises). Section 22A states that such an order can be made where an officer forms the opinion that:

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

2 Under s 678(10) of the LG Act the Council can enter onto premises to carry out work required by an order except in the case of residential premises by virtue of s 200 of the LG Act. As the orders sought against each Respondent by the Council require entry onto residential premises, orders from the Court under s 678(10) of the LG Act are necessary. That section states:

(10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

3 As held by Biscoe J in Manly Council v Moffit (2006) 146 LGERA 215 at [54]-[56], while s 191, 193 and 200 of the LG Act prevent a council entering residential premises there is no limit on the Court’s powers to make orders under s 678(10) to enable a council to enter residential premises. That is the section relied on in this application. Such orders have since been made by this Court in relation to these premises in proceedings concerning the same parties, see Waverley Council v Bobolas [2006] NSWLEC 828 per Jagot J. Orders have also been made in other cases such as Council of the City of Sydney v Estate of Sulligoi care of The Public Trustee [2007] NSWLEC 778. That suggests to me that I am also able to make an order such as the Council seeks.

4 The owner of the premises is Mary Bobolas, the First Respondent, as is clear from the property title search tendered by the Council as exhibit A. The Second and Third Respondents have advised the Court that she is confined to a psychiatric institution. They have not told the Court where. She has not appeared in the proceedings. Very recently, on 4 December 2009 the NSW Trustee was appointed as the manager of her estate under the NSW Trustee and Guardian Act 2009 (the NSW Guardian Act). Under r 7.14(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) a person under legal incapacity may not commence or carry on proceedings except by a tutor. Under r 7.15(3) for a person whose estate is subject to the management under the NSW Trustee and Guardian Act the tutor for that person is to be the person who has the management of the person’s estate under that Act. In a letter dated 8 December 2009 to the Council’s solicitors the NSW trustee stated:

We understand that you act for Waverley Council in proceedings against Mrs Bobolas and her property located at 19 Boonara Avenue, Bondi. We further understand that this matter is listed for hearing tomorrow morning and you will be seeking orders to allow clean up of the property and to restrain the client’s daughters from interfering with the clean up of the property.
We advise that the NSW Trustee and Guardian has the authority to deal with the property of Mrs Bobolas in accordance with Section 16 of the NSW Trustee and Guardian Act 2009 (NSW).
The NSW Trustee and Guardian neither opposes or consents to orders being made to allow Waverley Council to clean up the client’s property. We advise that we will abide by any clean up orders made by the Land and Environment Court in these proceedings.

5 By facsimile notice handed up in Court during the hearing by the Council’s counsel at the request of the NSW Trustee and Guardian, the NSW Trustee filed a submitting appearance on behalf of the First Respondent. In an email from the NSW Trustee also handed up in Court it agrees that it has power to do so by virtue of s 16(s) of the NSW Guardian Act which refers to the function of the trustee of defending suits.

6 Under r 7.15(1) of the UCPR a person becomes tutor for a person under legal incapacity without the need for any formal instrument of appointment or any order of a court, subject to Div 4 of the UCPR. Under r 7.16 a tutor may not carry on proceedings on behalf of a person under legal incapacity unless their consent has been filed. I ruled during the hearing that there was no necessity to declare a tutor for the First Respondent in accordance with the UCPR in view of these circumstances. As provided for under s 10 of the Civil Procedure Act 2005 a court can waive a rule if the particular circumstances warrant it.

7 The other recipients of the orders under s 124 (cl 22A) are the occupiers of the premises and are the First Respondent’s two daughters, the Second and Third Respondents in the proceedings. They oppose the orders sought by the Council.

8 I undertook a short view of the premises from outside it in the presence of the Second and Third Respondents and the Council’s legal representatives in order to have the affidavit evidence clarified.

9 At the hearing a defence and cross-claim and affidavits to be relied on were handed up by the Second and Third Respondents outside the timetable for case preparation. They also handed up a Notice of Motion without leave seeking that it be heard instanter by a judge other than me. It sought orders which would have essentially overturned the orders made by me on 9, 25, 27 November 2009 which set a new hearing date and made directions for the preparation for hearing. The Notice of Motion also raised an objection to service of the orders on several grounds, a matter already determined by Lloyd J on 19 June 2009.

10 The Notice of Motion sought to traverse numerous orders made by this Court. The appropriate mechanism to challenge these orders is to exercise a right of appeal, not to seek to have the same issues already determined reheard by another judge of the Court. The Notice of Motion was not filed in a timely manner being essentially in the middle of the hearing. Case management objectives as found in the UCPR and identified in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 by the High Court suggest that entertaining such a motion is not in the interests of the efficient and just dispatch of these proceedings. The original October 2009 hearing date was vacated by me to enable an appeal against the refusal of legal aid by the Second and Third Respondents; Waverley Council v Bobolas [2009] NSWLEC 188. Had I granted the orders sought in the Notice of Motion that would have inevitably resulted in a further delay of the hearing of the matter which is not in the overall interests of all the parties to these proceedings. Accordingly I dismissed the Notice of Motion and provide my reasons now as I said I would do during the hearing.

11 The Second and Third Respondents sought to hand up in Court without leave and without notice to the Council or the Court, a cross-claim. As this raised a number of additional issues, was not timely and was sought without notice, leave to file the cross-claim was refused.

12 In terms of the issues in the proceedings the Council’s Points of Claim identify that on 29 January 2009 Mr Schilt, the relevant Council officer, attended the premises and observed waste deposited in the front, side and back yards of the premises. He formed the opinion that the waste on the premises was causing or was likely to cause a threat to public health or the health of any individual including the occupants of the premises and adjoining neighbours. He caused three orders under s 124 (cl 22A) of the LG Act to be served on 5 March 2009 (one for each of the Respondents) requiring the removal of waste from the premises within 28 days. That waste has not been removed.

13 The defence filed at the hearing, refers to the fact that the First Respondent has a psychological problem and should not be punished or restrained from doing things as these are not done deliberately, that the Second and Third Respondents have not engaged in actions which cause the Council to take the proceedings, that the orders have not been issued against the Second and Third Respondents, only against the First Respondent, and that the Council has no jurisdiction as it is not a local government body but a private corporation. The Second and Third Respondents submitted there are only two arms of government identified in the Constitution of Australia Act 1900 (the Commonwealth Constitution), federal and state. The LG Act is null and void. Fraud is referred to. The basis of this alleged fraud is unclear in the defence. I gather from submissions, it is on the basis that the Council is fraudulently representing itself as local government. They submitted s 200 of the LG Act prohibits the entry onto residential premises without permission of the occupier as does s 194. The Court cannot override these acts and give permission to the Council to enter when the LG Act expressly forbids it. The Court has no jurisdiction to deal with trespass matters or constitutional matters.

Council’s evidence

14 A chronology from the Council was provided, marked MFI 1, which usefully identifies the steps taken during the proceedings.

15 Jacobus Schilt, senior environmental health surveyor at the Council for the previous three years, swore four affidavits which were read for the Council. He is an environmental health officer under the Public Health Act 1991.

16 In his first affidavit sworn 27 May 2009 Mr Schilt describes the location of the premises, a cottage, in Bondi. He states that it is bounded at the front by a fence approximately 1m high and at the side and rear by wooden paling fences approximately 2m high. There are private residences either side of the premises.

17 Mr Schilt inspected the premises on 29 January 2009 with another Council officer. He observed an accumulation of rubbish on all external parts of the premises which includes bed heads, bed frames, milk crates, chairs, tables, plastic containers, cushions, foam, cardboard, paper, metal, rags, bottles and old furniture. He smelt an unpleasant odour coming from the rubbish. Based on the presence of the rubbish and insects Mr Schilt formed the opinion that the premises was causing or was likely to cause a threat to the health of the occupants of the premises and to the health of the neighbouring residents.

18 As a result Mr Schilt signed the clean up orders the subject of these proceedings and caused the orders to be mailed to each of the Respondents. He understands that the orders were hand delivered by Council rangers to the Respondents’ letterbox and by affixing the orders to the front fence of the premises.

19 Mr Schilt attended the permises again on 7 April 2009 and observed the same rubbish and odour as at 29 January 2009, however this time there appeared to be more accumulated rubbish at the premises. He formed the opinion that the accumulation of the rubbish was likely to afford harbourage for insects and vermin and represented a potential public health risk. The rubbish also represented a much higher fire risk for the Respondents’ and the neighbouring properties.

20 Mr Schilt is of the belief that the Respondents have failed to comply with the orders made 29 January 2009 and requests that the Court make the orders sought by the Council.

21 Annexed to Mr Schilt’s affidavit were a number of photographs of the premises taken on 29 January 2009 and on 7 April 2009. These photographs show large amounts of material in the front and rear yards and on the verandah on the premises. Materials identifiable include books, boxes, clothes, blankets, old furniture, plastic bags, electronic items, planks of wood, mattresses, cushions, bottles and tins.

22 In his second affidavit sworn 25 June 2009 Mr Schilt attests to having attended the premises again on 24 June 2009 and again observed rubbish on the premises similar to that described in his first affidavit. He states that the height of the rubbish was at least 1m on parts of the premises and well in excess of 1m in other parts. An unpleasant odour was noted. Mr Schilt formed the opinion that the amount of rubbish on the site had steadily increased since January 2009. Annexed to Mr Schilt’s affidavit were a number of photographs taken 24 June 2009. Three photographs are taken from the street and show material piled up above the wall at the front of the premises which is approximately 1m high. Material visible includes boxes and plastic bags full of material. There is no access to the premises from the street due to the presence of the material. Another photograph shows the front verandah of the house has been screened off with a semi-transparent material. Various items are piled high on the verandah.

23 In his third affidavit sworn 19 August 2009 Mr Schilt refers to two further inspections of the premises on 4 August 2009 and 18 August 2009 and attests that since his previous inspection on 25 June 2009 there had been an appreciable increase in the amount of rubbish on the premises. He describes the height of the rubbish as generally 1.5m in height and in some places well above that. Mr Schilt also observed an increase in the amount of rubbish on the premises between 4 August 2009 and 18 August 2009. He is of the opinion that as the weather warms up in summer the risk to the health of the Respondents and the neighbours will increase. This is because decomposition of organic waste increases and this results in increased odours, insect activity and vermin activity including breeding. He states that as a matter of public safety the rubbish should, in his opinion, be removed from the site as soon as is practicable.

24 In his fourth affidavit sworn 17 November 2009 Mr Schilt describes how any works ordered by this Court are intended to be undertaken will be carried out. He states that Jay Transport, a contractor who was engaged by the Council to carry out work on the premises in December 2005 and January/February 2007, will use a bobcat and excavator/backhoe to clear the rubbish at the premises which will then be placed in dump trucks. A number of truck loads will be required. Mr Schilt estimates the work to take approximately 4-5 hours between the hours of 7am and 5pm. Referring to the affidavit of Antonio Da Rocha sworn 24 June 2009 (see par 26), Mr Schilt is of the opinion that if the works are carried out it will be necessary to restrain the Respondents from interfering with and obstructing the operating machinery and trucks. He states that the Waverley Police will be notified for the purpose of assisting with the management of the clean up and a senior community worker from the Council and a mental health representative from the local health services will be requested to attend. Mr Schilt states that road barriers will be erected in order to close the street to general traffic and local residents notified about the carrying out of any work. Relevant Council staff including the media/public relations unit will be advised. A camera operator will also be engaged to film the works from time to time. Should orders be made by the Court, the orders will be served on the Respondents as soon as possible and they will be given notice that works will commence within two days of that date. He was cross-examined by the Third Respondent in relation to various aspects of his affidavit evidence but I consider that his evidence continued to be credible.

25 Antonio Da Rocha, a ranger with the Council since about 1996, swore two affidavits which were read for the Council. In his first affidavit sworn 28 May 2009 Mr Da Rocha attests to having visited the premises on a number of occasions. He was involved in a clean up of the premises on 5 and 6 December 2005 which was carried out by the Council pursuant to an order of this Court. Mr Da Rocha attended the premises on 5 March 2009 and none of the Respondents appeared to be preent. Three letters addressed to each of the three Respondents and each containing an order pursuant to s 124 of the LG Act (dated 5 March 2009 and annexed to Mr Da Rocha’s affidavit) were left in the letterbox at the premises by another Council officer attending the premises with Mr Da Rocha. Mr Da Rocha returned to the premises later in the day and attached copies of the orders to the front gates of the premises. Mr Da Rocha was also informed that identical letters containing the orders were sent by registered post to each of the Respondents.

26 In his second affidavit sworn 24 June 2009 Mr Da Rocha refers to an affidavit he swore on 15 July 2008 which refers to the clean up of the premises that took place between 5-9 December 2005. Mr Da Rocha was present at the clean up on 5 and 6 December 2005 and was there to assist in preparing the premises for the clean up by placing barriers around the site, making road closures and ensuring only authorised persons were on the premises in the interests of safety. He recalls that on both days there were a number of people in the area of the premises in opposition to the Respondents and whom Mr Da Rocha was concerned would make the situation worse. He states that the Respondents were very distressed during the clean up and did not want the rubbish removed. Mr Da Rocha observed a bobcat and small excavator being used to remove rubbish from the premises. The size of the bobcat made the clean up progress slowly. He recalls that as the rubbish was removed a strong odour emanated from the piles of rubbish. He noticed large rats amongst the rubbish. Mr Da Rocha recalls that the Council had assumed that the work would take three days but it ended up taking five due to constant interruptions by the Respondents. The Second and Third Respondents would climb onto the rubbish and try to keep it away from the machines. All three of the Respondents would also attempt to pick up material from where the bobcat was operating. The Respondents would often indicate that they wanted to save something from the rubbish which caused further interruptions. The Respondents also suggested the bobcat had destroyed belongings of theirs. He held significant concerns for the safety of the Respondents and so the clean up was regularly interrupted. Mr Da Rocha recalls that damage was caused to a tap at the water main at the front of the premises by the bobcat or excavator. Someone from Council attended the premises to fix the water meter. He also states that some small weeds or shrubs were also damaged in the clean up. Some pavers were also damaged and the Council later on 19 December 2005 sent someone to fix the pavers.

27 In his affidavit of 24 June 2009 Mr Da Rocha states that he is of the belief that any future clean up of the premises will involve similar problems as those which occurred in December 2006. He was cross-examined by the Third Respondent who sought to challenge the truth of a number of statements made by him in his affidavit. Mr Da Rocha did not agree with the proposition put to him that he was lying in any part of his affidavit.

28 Luigi Guerra, a neighbour of the Respondents, sworn an affidavit on 19 August 2009 which was read for the Council. Mr Guerra and his wife purchased a block of four units directly to the north of the Respondents’ premises in 1975 and have always rented the units. Mr Guerra lives close by and attends the units to mow the lawns, tidy the garden area and tend to the rubbish bins. He states that he has observed that the rubbish at the Respondents’ premises has become particularly bad, is up to 1.5m high in places and consists of all types of rubbish including food scraps. Mr Guerrra states that he has observed rat droppings in the yard of his units and that as the weather warms up the smell and number of flies from the Respondents’ premises become unbearable. He is concerned about the health and enjoyment of his tenants and is also concerned that the rubbish presents a fire risk. He was cross-examined by the Second Respondent as to whether he prepared his affidavit and he maintained that he did.

29 In relation to the orders sought by the Council, as part of the Council’s case it handed up more detailed orders that it is seeking in order to give effect to the orders issued previously pursuant to s 124 (cl 22A) of the LG Act at the direction of Mr Schilt.

Respondents’ evidence

30 The Respondents relied on an affidavit of Liana Bobolas (the Third Respondent) sworn 2 December 2009. Ms Bobolas states that she is a practising artist and had numerous sculptures in the yard of the premises prior to the Council’s clean up of the site in December 2005. She states that these sculptures were either removed during the clean up or destroyed. More sculptures were either removed or destroyed by the Council in the clean up in January 2007.

31 Ms Bobolas states that during the clean ups in 2005 and 2007 neither she nor the other Respondents approached the machines while in operations. She also states that the machines did not stop work at the request of the Respondents on any occasion. They stopped work only to take breaks and when damage was caused including to an electrical line between the garage and the house, and to a tap and water main. Ms Bobolas attests that the tap was clearly visible. She states that the Respondents were all extremely cooperative during the clean ups.

32 Ms Bobolas states that she observed a Council officer assaulting the First Respondent. Ms Bobolas and her sister, the Second Respondent, were also assaulted by the police and removed by them at the instigation of the Council. She also states that she was assaulted by another Council officer and things were taken from her hands which were then broken. Ms Bobolas attests that she was told by a Council officer that any damaged caused during the clean up would be paid for and replaced by the Council. She states that this never occurred.

33 An affidavit of Stephen Vajda sworn 9 March 2009 was read for the Respondents. Mr Vajda is qualified as a Council ranger and parking officer. His current employment is not specified. He attests to having familiarity with the LG Act. He states that because of his training as a ranger he believes that a council does not have the right to enter a residential premises pursuant to the LG Act. He believes that the Council has not acted appropriately or professionally in having agents operating heavy machinery on a residential premises and in threatening and assaulting the Respondents. He attests to having seen damage caused to the premises by the Council.

34 An affidavit of Sally Couacaud sworn 1 May 2007 was read for the Respondents. Ms Couacaud resides in Tamarama Street, Bondi and states that she has been a neighbour of the First Respondent for approximately 10 years. She attests that the Respondents are all of good character. She states that she witnessed the clean up operations in December 2005 and saw the Council removing goods from the yard without the permission of the Respondents. Ms Couacaud protested the Council’s actions at the time and observed damage being caused including the removal of the gate, trees being knocked over and a water main being broken. This occurred because the Council’s machinery was inappropriately large. She did not observe the Respondents obstructing the works at any time in December 2005 or January 2007. Ms Couacaud is aware that the First Respondent has a stress-related psychological condition that causes her to collect materials and leave them in her yard. The action taken against the Respondents has been inappropriate and unnecessary. At the time of swearing her affidavit Ms Couacaud attests that there is no problem at the premises.

Finding

35 As identified above the Council is seeking orders under s 678(10) of the LG Act in relation to the three orders made by it under s 124 (cl 22A) of the LG Act on 29 January 2009. The Council is seeking orders as against the owner, the First Respondent, and the occupiers, the Second and Third Respondents, that the Council through its contractors enter the premises and remove a substantial amount of rubbish from the premises which has accumulated across the whole yard outside the premises on the ground, in an outside area which is the front verandah of the premises and in alcoves at the side of the house.

36 Mr Schilt’s evidence establishes the necessity for the order to be made and I note that there is some urgency to clean up before the summer season, due to odour from the rubbish. I note the matter was originally heard in October 2009 and the hearing delayed until 9 December 2009 to enable the Respondents’ appeal against the refusal of legal aid. Consequently, the Council now seeks orders as against each of the Respondents which will enable its contractors to commence work on the premises shortly, that is on Monday 14 December 2009.

37 In relation to whether the Council has established the need to have the orders made, the affidavit evidence of the Council’s officer, Mr Schilt, identifies that he has the relevant expertise to form the opinion required by s 124 (cl 22A) of an environmental health officer under the Public Health Act, given his role as an environmental health surveyor under that Act. He identifies the scale of the waste and rubbish collected across the entire front yard and rear yard of the premises. This is voluminous as shown in numerous photographs annexed to Mr Schilts’ affidavits.

38 There is evidence that the premises is residential which is one of the criteria referred to in s 124 (cl 22A). In relation to the decision to issue the orders made by Mr Schilt, his evidence confirms that he formed the appropriate opinion required under s 124 (cl 22A). This evidence was not affected by his cross-examination. The orders were validly issued by the Council.

39 I should also note that I think that the orders were validly issued both to the First Respondent, the owner of the premises, and also to the Second and Third Respondents as the occupiers of the premises. I note that under column 3 in s 124 (cl 22A) the orders may be issued to the owner or occupier of the premises and “or” in that case means that each of them can receive the order, as occurred in this case. I note that contrary to the broad terms of the s 124 (cl 22A) order sought by the Council, the orders before me seek only its enforcement in relation to the external areas of the premises.

40 In relation to service of the Council’s s 124 (cl 22A) orders, it is the evidence of Mr Da Rocha in his affidavit sworn 28 May 2009 that service of the orders was effected in accordance with s 710(c) and (e) of the LG Act through delivery to the premises by Council officers including himself, by mail being registered post, and affixing of the orders to the premises. This was further confirmed by his evidence in cross-examination, particularly in relation to service by personal delivery as he saw the relevant orders being placed in the envelopes that were then delivered to the premises.

41 The affidavit evidence of the Council’s officer, Mr Schilt, identifies the scale of the waste and rubbish collected across the entire front, side and rear yards of the premises. The additional affidavits of Mr Schilt confirmed that he has inspected the premises from outside on several occasions since the original three orders were to be complied with on 5 March 2009. In his opinion the amount of waste has increased, further supporting the need for orders to be made by the Court.

42 There is some urgency to clean up before the summer season, the Council has submitted, due to the odour and insects arising from the rubbish with the warmer weather to which Mr Schilts attests in his fourth affidavit. The affidavit of Mr Guerrera also raises similar concerns and I accept this evidence. I do not agree with the criticism of Mr Guerrera made by the Second and Third Respondents that he did not prepare his affidavit, and consider it does genuinely reflect his evidence.

43 The affidavit evidence of the Second and Third Respondents does not suggest to me I should not make the orders sought in some form. Mr Vajda’s affidavit, despite being sworn on 9 March 2009, was only handed up during the hearing and to the Council for the first time. There was no opportunity to deal with it adequately. His opinion concerning the previous clean up operations of the Council is of little assistance and I accord it little weight.

44 Similarly, the affidavit of Ms Couacard is dated 1 May 2007, but was not provided to the Court or the Council until the hearing, providing no opportunity for the Council to deal with it. I note that she saw the clean up at the premises in 2005. Her view of the Council’s actions in 2005, however, provide little assistance and I am according it little weight in the circumstances in which it was relied on.

45 It is clear from the affidavit of the Third Respondent that she disagrees with the affidavit of Mr Da Rocha in relation to the clean up in 2005. It is her evidence that the Respondents did not interfere with the clean up in 2005 and 2007. Her allegations of assault by Council officers and others on herself in her affidavit were difficult for the Council to deal with given the service of the affidavit at the hearing. To the extent that the Third Respondent’s evidence conflicts with that of Mr Da Rocha who gave clear and extensive evidence about the clean up process in 2005, I consider his evidence concerning what occurred at the 2005 clean up should be preferred as he was the Council officer seeking to carry out his duties in difficult circumstances and his evidence withstood strenuous cross-examination by the Third Respondent.

46 The Third Respondent also gave evidence that the Council damaged the premises during the previous clean up and has not repaired it. Exhibit C is a letter from the Council’s solicitors offering to repair any damage. Mr Da Rocas stated in oral evidence that the Council sent contractors to carry out repairs but was telephoned four times to be told that the contractors were refused entry. It is clear that the damage to the water main and tap in 2005 was repaired.

47 This matter was originally to be heard in October 2009 and the hearing delayed until 9 December 2009 to enable the Respondents’ legal aid appeal to be determined. The appeal was refused in November 2009. The Council seeks an order which will enable its contractors to commence on Monday 14 December 2009 so that work can be completed before the holiday period in December 2009/January 2010. That urgency is justified in the circumstances outlined in the affidavit of Mr Schilt and has resulted from the elongated time frame over which it has been necessary to consider the matter. Similar although not identical orders to those sought have been made by the Court previously in 2005 and 2007 for the Council to enter the premises and remove rubbish as referred to in the evidence.

48 I note that the Second and Third Respondents have sought the opportunity to do the clean up themselves and they showed me at the view a small pile of material on the nature strip which they have put out for collection by the Council. I have been informed in their submissions made to me this morning that they have put out more material, however given the very large volume of rubbish on the premises, it will take many months, possibly years, to clean up at that rate. I do not consider that is a viable option and it is too little too late. This was the only effort made to remove some of the material to which my attention has been drawn and the orders under s 124 (cl 22A) of the LG Act were supposed to have been complied with in March this year.

49 The Council also seeks orders restraining the Second and Third Respondents from hindering the clean up, relying on the evidence of Mr Da Rocha about what has occurred in the past on the same premises in terms of interference with the operations. There is substantial disagreement about what has occurred on previous occasions when the Council has entered the premises pursuant to court orders to undertake a clean up similar to the orders sought now. Mr Da Rocha was cross-examined by the Third Respondent about matters during the clean up in 2005 such as whether or not he or other Council officers assaulted one of the Respondents, which he denied firmly. He appeared to be a credible witness and I accept the contents of his affidavit concerning what occurred at the 2005 clean up. There is evidence establishing the necessity for this order also.

50 In relation to the issues raised in the defence, some are misconceived. For those concerning the existence of local government and the jurisdiction of the Court to determine this matter based on argument that local government does not exist because of the Commonwealth Constitution there is no legal basis to argue that local government cannot exist. Section 697 of the LG Act states:

In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following:
• the incorporation of the council

51 This Court can consider whether to make the orders sought under s 678(10) of the LG Act despite s 200 of the LG Act, per Moffitt as followed in Bobolas (2006) and Estate of Sulligoi care of The Public Trustee. In the interests of judicial comity and because I consider these decisions are correct, the Court does have power to make the orders sought under that provision of the LG Act. No issue of trespass is raised by the Council’s Class 4 application.

52 I otherwise agree with the Council’s submissions in relation to the balance of the matters in the defence to the effect that the issues cannot arise given the circumstances of this matter or are contrary to the evidence or lack evidence in support of them.

53 The final terms of the orders should now be discussed with the parties briefly before they are finalised. I note for completeness that the Council seeks that the orders for costs sought in the summons, being orders 3 and 4, be stood over. In light of the request to the New South Wales Trustee that this be done, an appropriate order will be made to that effect.

ADDENDUM - 11 DECEMBER 2009
1. I gave leave for a Notice of Motion returnable instanter, undated, to be filed in Court on 11 December 2009. In the Notice of Motion the Second and Third Respondents through their pro bono counsel sought leave to supplement their defence as follows:
Each of the purported Orders relied upon by the Applicant in these proceedings dated 5 March 2009 are not valid orders under Section 678 of the Local Government Act 1993 for the reason that the words “TERMS OF PROPOSED ORDER” appear before the actions described in each, and the words “The order will be given” appear before the “reasons” stated such that the documents do not (or might be reasonably understood not to) state a present order to do anything so as to satisfy Section 124 of the Act and do not (or might reasonably be understood not to) give any reasons for the order made as required by Section 136, and accordingly the Court has no jurisdiction to grant the relief sought.

2. Leave was granted to amend the defence. At the hearing of the Notice of Motion on 11 December 2009 that defence was rejected. After further discussion orders were made on 11 December 2009.