Waverley Council v Bobolas & Ors

[2006] NSWLEC 825

Land and Environment Court

of New South Wales

CITATION:

Waverley Council v Bobolas & Ors [2006] NSWLEC 825

PARTIES:

APPLICANT
Waverley Council

FIRST RESPONDENT
Mary Bobolas

SECOND RESPONDENT
Liana Bobolas

THIRD RESPONDENT
Elena Bobolas

FILE NUMBER(S):

40916 of 2006

CORAM:

Jagot J

KEY ISSUES:

Civil Enforcement :- no appearance by respondents at hearing - ex parte hearing

LEGISLATION CITED:

Local Government Act 1993 s 124, s 678

DATES OF HEARING:

15/12/2006

EX TEMPORE JUDGMENT DATE:

12/15/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Staunton (solicitor)
SOLICITORS
Staunton Beattie

RESPONDENTS
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

15 December 2006

40916 of 2006

WAVERLEY COUNCIL
Applicant

MARY BOBOLAS
First Respondent

LIANA BOBOLAS
Second Respondent

ELENA BOBOLAS
Third Respondent

JUDGMENT

Jagot J:

1 These are class 4 proceedings where Waverley Council seeks declarations and orders against the respondents relating to the Council’s contention that the respondents have failed to comply with an order served by the Council under s 124 of the Local Government Act 1993 as subsequently modified by the Court. The Council also seeks an order pursuant to s 678(10) of that Act that the Council in fact perform the functions required under the s 124 order as amended by the Court (namely, that rubbish be cleared from the subject premises).

2 It appears that the class 4 application was filed on 29 September 2006 and according to the Court record the respondents did appear in fact before me on 24 November 2006 at which time the matter was referred to the Registrar to be fixed for hearing and this hearing date was fixed.

3 It also appears from the file (and Mr Staunton has informed me) that the respondents have not filed and served any evidence in the proceedings.

4 I have provided to Mr Staunton this morning a copy of a facsimile that was forwarded to the Land and Environment Court (although the date of it being sent is not clear to me) attaching medical certificates for each of the respondents to the effect that each of them has a medical condition and is unable to attend the Court today and requesting that the hearing date be vacated for the matter with no order as to costs on the ground that it would be unjust and unfair to conduct a hearing without giving the respondents an opportunity to put their case.

5 The matter has been called this morning and consistent with what has been set out in their facsimile the respondents indeed have not appeared.

6 Mr Staunton has said to me that these proceedings involve a wider public interest - including that the condition of the property in respect of which the Council seeks orders involves both a fire risk and a health risk not only to the occupants of the property but also to neighbouring properties and emergency services.

7 In a context where there has been no evidence filed by the respondents and, given the nature of the order which the Council by these proceedings seeks to enforce, I am satisfied that I should proceed to hear the Council’s application today ex parte.

8 I should say that as a consequence of that, considerations will arise at the conclusion of the matter about the form of any orders that might be made today as a consequence of my decision to proceed ex parte.

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