Waverley Council v Bobolas (No 4)

[2015] NSWLEC 150

Land and Environment Court

New South Wales

Medium Neutral Citation:	Waverley Council v Bobolas (No 4) [2015] NSWLEC 150
Hearing dates:	26 August 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1)   The notice of motion filed by the Respondents on 24 June 2015 is dismissed.  (2)   The Respondents are to pay the Council’s costs of this motion.
Catchwords:	Practice and procedure – Council’s notice of motion to dismiss respondents’ notice of motion seeking to re-litigate issues already determined granted – abuse of process established – orders not made irregularly, illegally or against good faith
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	Counsel: Mr P Clay SC with Ms J Reid (Applicant) No appearance (Respondents)   Solicitors: Wilshire Webb Staunton Beattie (Applicant) Litigants in person (Respondents)
File Number(s):	41027 of 2014

EX TEMPORE Judgment

1. I have before me a notice of motion filed by Waverley Council (the Council), the Applicant, in these proceedings. I resolved earlier today to hear this motion ex parte. The motion was filed on 29 July 2015 and seeks an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the motion filed by the three Respondents on 24 June 2015 be dismissed.

2. The Council’s motion was supported by an affidavit of Mr Webber, solicitor, sworn 29 July 2015. Another affidavit also read in support by the Council is the affidavit of Ms Mostafa, solicitor, dated 5 August 2015. Ms Mostafa’s affidavit confirms the delivery by express post to all three Respondents at 19 Boonara Avenue, Bondi, of the Council’s motion and supporting affidavit of Mr Webber. Mr Webber’s affidavit helpfully sets out the processes undertaken in the proceedings to date. Most relevantly, in a useful table appended as Annexure A, a number of motions are identified which have been filed by the Respondents in this matter. I note particularly that Sheahan J on 24 April 2015 made substantive orders in the absence of the Respondents. I have been provided with very comprehensive written submissions by the Council. I adopt as a useful summary of the proceedings the chronology provided as Annexure A to those submissions and note that in particular they set out the judgment of Sheahan J of 24 April 2015 in Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 and the orders his Honour made on that occasion.

3. A motion was filed by the Respondents on 7 May 2015 which sought to set aside the orders of Sheahan J. I heard that matter on 10 June 2015 and on 18 June 2015 gave judgment in Waverley Council v Bobolas (No 3) [2015] NSWLEC 100 dismissing that motion. A further motion was subsequently filed by the Respondents on 24 June 2015, which is the subject of the Council's motion today.

4. In terms of the evidence before me, I have exhibit A, which comprises the motion filed 24 June 2015 by the Respondents and an affidavit in support of that motion sworn by Ms L Bobolas, the Third Respondent, dated 24 June 2015. I was also provided with a bundle of judgments, which is exhibit B in these proceedings.

5. In terms of the Court's powers which are sought to be relied on by the Council, r 13.4 is headed “Frivolous and Vexatious Proceedings”. The Council relies particularly on r 13.4(1)(c), that the proceedings are an abuse of process of the Court on two bases: that this motion has no prospect of success and it is a re-litigation of matters already determined.

6. In support of that application it is possible to compare the motion filed earlier by the Respondents and heard by me on 10 June 2015 and the subject of my judgment dated 18 June 2015. That appears in exhibit B at 3(b). It is possible to compare p 2 of 3 and 3 of 3 with the motion filed by the Respondents before me today in exhibit A. To a large extent p 3 and 4 of the motion before me today are the same as the motion filed 7 May 2015, which suggests that the argument that the matter is essentially an attempt to re-litigate matters already determined is a good one.

7. I should note for complete clarity that in the motion in exhibit A there are some additional dates added since the version of that motion filed 7 May 2015. These dates are 26 May 2015, 10 June 2015 and 18 June 2015, in relation to which orders are sought that any orders made on those dates be set aside under r 36.15 of the UCPR. That rule provides for the setting aside of an order where made irregularly, illegally or against good faith.

8. It appears therefore that, in relation to those parts of the motion in exhibit A which relate to dates that were before me in my judgment on 18 June 2015, the Council can quite properly identify that there are no prospects of success. There is no basis for suggesting that r 36.15 could apply to those matters, there being no irregularity, illegality or lack of good faith. Further, the motion is a repetition of matters that the Court has already dealt with.

9. In respect of the additional dates that I have just identified in relation to the motion in exhibit A, it appears that there are no prospects of success in relation to any application that could be made under r 36.15. None of the matters identified in the affidavit of Ms L Bobolas suggest that those orders were made irregularly, illegally or against good faith. The matters she raises are really matters which may be the subject of appeal.

10. The chronology provided in the bundle in exhibit B at tabs 4 and 5 includes a notice of appeal against the decision of Sheahan J filed in the Court of Appeal on 21 May 2015. There have been two interlocutory rulings in the Court of Appeal, the first by Basten JA in Bobolas v Waverley Council [2015] NSWCA 204, where he issued a stay of part of the orders made by Sheahan J on 24 April 2015. Secondly, a subsequent decision by Beazley P in Bobolas v Waverley Council [2015] NSWCA 216 did not overturn the decision of Basten JA. Apart from noting those matters, issues before the Court of Appeal do not alter my judgment today.

11. I have discretion under r 13.4 of the UCPR to dismiss the Respondents’ motion filed 24 June 2015. I am satisfied that, in the sense used in that particular rule, abuse of process is demonstrated here by the history of the matter and the nature of the issues sought to be re-agitated in the motion. I consider that the motion has no prospects of success.

12. It is therefore appropriate that I make the orders sought in the Council’s motion before me as follows:

1. The notice of motion filed by the Respondents on 24 June 2015 is dismissed.

2. The Respondents are to pay the Council’s costs of this motion.

**********

Decision last updated: 18 September 2015