Waverley Council v Mary Bobolas

[2017] NSWLEC 112

Land and Environment Court

New South Wales

Medium Neutral Citation:	Waverley Council v Mary Bobolas [2017] NSWLEC 112
Hearing dates:	24 and 25 August 2017
Date of orders:	25 August 2017
Decision date:	25 August 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See [27]
Catchwords:	AMENDED NOTICE OF MOTION – Council files Notice of Motion charging each Respondent with contempt of court – first return date in February 2017 – subsequent mentions – on 7 April, timetable set for Respondents to file and serve Notice of Motion challenging service – no Notice of Motion by the Respondents was filed and served – on 7 April, the Council’s Notice of Motion was set down for further hearing on 23 June – on 26 May, a further opportunity was afforded to the Respondents by setting a new timetable set for Respondents to file and serve Notice of Motion challenging service – on 26 May, the listed date of 23 June was confirmed – no Notice of Motion by the Respondents was filed and served pursuant to new timetable – on 23 June, none the Respondents attended the Court – a faxed application for an adjournment was rejected – by leave, the Council’s Notice of Motion was amended to name each Respondent individually and the Council’s Notice of Motion set down for hearing on 24, 25 and 28 August – on 24 August, the Respondents raised objection to Amended Notice of Motion – hearing on the objection on 24 and 25 August – objection rejected
Legislation Cited:	Civil Procedure Act 2005, s 64(1)(b) and (3) Uniform Civil Procedure Rules 2005, Pt 7 r 33
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/Ms J Reid, barrister (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)   Solicitors: Wilshire Webb Staunton Beattie (Applicant)
File Number(s):	33525 of 2017
Publication restriction:	No

Judgment

1. HIS HONOUR: On 2 February 2017, Waverley Council (the Council) filed a Notice of Motion in this matter. The first order sought in the Notice of Motion was in the following terms:

The Respondents be found guilty of civil contempt of court by failing to comply with Order 4 of the orders made by Sheahan J on 24 April 2015 in that the Respondents have failed to refrain from keeping waste on the premises known at 19 Boonara Avenue, Bondi.

The Notice of Motion also proposed three further elements that do not require consideration at this time.

2. The First Respondent named in the Notice of Motion was Mary Bobolas. The Second Respondent named in the Notice of Motion was Elena Bobolas. The Third Respondent named in the Notice of Motion was Liana Bobolas.

3. The motion was made returnable before the Court on 17 February 2017. On that day, the matter came before Robson J as the List Judge. The court file records that Mary Bobolas was not present, but that Elena and Liana Bobolas were present.

4. Robson J made two orders on that day. The first was that the Council was to file and serve any affidavits, including proof of service of the Notice of Motion and all affidavits it intended to rely upon by 10 March 2017. The Notice of Motion was also ordered to be relisted for further directions on Friday, 17 March 2017.

5. When the matter came before his Honour, Sheahan J, on 17 March 2017, Mary Bobolas was not present, but the court file records that Elena and Liana Bobolas were present. Relevantly for the present purposes, the court file notes that Liana and Elena Bobolas wanted more time to seek advice. The matter was adjourned until 7 April 2017.

6. On 7 April 2017, the matter was dealt with by Pain J, as the List Judge. The court file records, as with the two earlier occasions, Mary Bobolas was not present, but Elena and Liana Bobolas were present.

7. Her Honour made a series of orders contained in a Short Minutes of Order document signed by her Honour and dated 7 April 2017. The document contains a number of handwritten alterations made by her Honour.

8. On that day, the first order that her Honour made was that the Respondents were to file and serve any Motion relating to service (and affidavits in support) by 5 May 2017. The second order made by her Honour was that the Applicant, that is, the Council, was to file and serve any affidavits in reply by 19 May 2017.

9. On 7 April 2017, the matter was also dealt with by the Court's Assistant Registrar. The court file records that Mr P Clay SC, appearing as counsel for the Council, and Ms Elena Bobolas attended before the Assistant Registrar. Ms Liana Bobolas did not attend to that appearance before the Assistant Registrar. The Council’s Notice of Motion was listed for further hearing on 23 June 2017 at 10.00 am.

10. The Short Minutes of Order note that:

If no motion is filed by the Respondents, the Council is to exercise the liberty to restore by 12 May 2017.

11. It is to be understood that no such Notice of Motion relating to service, nor supporting affidavits, was filed and served in accordance with the orders made on 7 April 2017. This inference is to be drawn from the fact that the liberty to relist was exercised, and the matter returned before Pain J, as the List Judge, on 26 May 2017.

12. On 26 May 2017, Mary Bobolas did not appear before Pain J, but Elena and Liana Bobolas did so appear. Further Short Minutes of Order were made by her Honour on that occasion. Those Short Minutes of Order also included amendments in handwriting made by her Honour. The first of those orders was an order vacating Orders 1 and 2 made on 7 April 2017. The orders that were vacated were those to which I have earlier referred, relating to any motion by the Respondents relating to service.

13. Having vacated those orders, her Honour made further orders dealing with the ability of the Respondents to continue to raise the question of service. Those orders directed that any motion and affidavits concerning the question of service were now required to be filed by 14 June 2017. Her Honour also directed that the Applicant file and serve any affidavits in reply on that point by 19 June 2017. Her Honour noted that the hearing date for the Notice of Motion of 23 June 2017 was confirmed.

14. On 23 June 2017, the matter came before me. Short Minutes of Order were proposed by the solicitor for the Council and presented to me by Mr Clay on that occasion. There was no appearance by the Respondents on that occasion - that is, there was no appearance by Mary, Elena or Liana Bobolas. At 10.33 am, a handwritten note had been conveyed by facsimile to the Court, addressed to the judge dealing with the Bobolas case, and signed by Ms Elena Bobolas. It conveyed that Ms Liana Bobolas was ill, was to go to hospital, and was unable to attend. An adjournment for two weeks was sought.

15. In the absence of any proper medical advice in support of such an application, no adjournment was permitted, as I recollect. The question, however, was raised by me with Mr Clay as to the fact that the motion, as then before the Court, contained Order 1 proposed by the Council in the terms to which I have earlier referred. Yesterday, the matter of how that amendment to the motion came into being, having been raised by Ms Elena Bobolas and by Ms Liana Bobolas, I gave the following explanation (that appears on page 57 of the transcript between lines 1 and 16):

On the morning of 23 June this matter was before me as the List Judge. I expressed concern to Mr Clay that the Notice of Motion of 2 February proposes in its first order that all three of you, as a single group of people, be found guilty of contempt. I indicated to Mr Clay that I considered that that was an inappropriate way for the charge to be laid, because it involved a proposal that I find what amounted to collective guilt. And I did indicate that that was not, in my view, an appropriate way to deal with it, and that is the reason why I granted leave to the counsel to amend its application so that I could deal with each of you separately by name.

16. I interpolate that I was, at that time, addressing the three Respondents collectively. I continued by saying:

Doing so in that fashion would permit whoever was the trial judge - and I did not know at that time that I would be the trial judge - would be able to make different findings with respect to each of the members of the Bobolas’ family, if that was the appropriate outcome of the trial. My intervention was, in that respect, protective of the interests of those against whom the allegation of contempt was being made.

17. I do not have access to a transcript of what took place on that day. It is my recollection that the matter came before me on two occasions that day - once in Court and, secondly, when I made the amended Short Minutes of Order later that day, splitting the first order into three separate parts.

18. The first part of the new split order was directed to Mary Bobolas, otherwise replicating the terms of the original first order in the Council's motion. The second split order similarly nominated Ms Elena Bobolas, but otherwise replicated the terms of the 2 February 2017 motion's first order. Finally, the third split order nominated Ms Liana Bobolas, similarly.

19. Given that that which I have just recited about the procedural process that day is derived from memory, my memory as to timing and process may be imperfect, but, nonetheless, the documents expressly record the outcome of what took place. Order 8 in those Short Minutes of Order was in the following terms,

The Applicant is to serve a copy of these orders and the Amended Notice of Motion referred to in order 7 on each of the Respondents by posting the documents in a prepaid envelope to each respondent at the address 19 Boonara Avenue, Bondi NSW 2056 by 27 June 2017.

20. There are two further elements of the orders that warrant being recorded and there is also an annotation to the orders that warrants being recorded. The annotation is, and I quote:

The Court notes that the Respondents failed to file and serve a Notice of Motion and any affidavits in accordance with the directions of the Court made on 7 April 2017 and 26 May 2017.

21. The two orders that were made that warrant being recorded are Order 1, that the proceedings were fixed for a hearing on 24, 25 and 28 August 2017. It is clear by their presence in Court today that Mary, Elena and Liana Bobolas were aware of the terms of that order as they attended at the commencement of the hearing on 24 August 2017.

22. The second order that warrants being recorded is Order 6, the first element of which records that:

The parties have liberty to restore on 5 days’ notice.

23. I am satisfied, without the necessity for evidence from the Council that it had satisfied Order 8 as to the service of these orders and the Amended Notice of Motion, that by their presence yesterday it is appropriate to conclude that each of the three Respondents was aware of the liberty that they had to restore the proceeding if they wished to do so.

24. At no time during the intervening two months has that liberty been exercised. These proceedings arise in Class 4 of the Court's jurisdiction. They are civil enforcement proceedings to which the Civil Procedure Act 2005 (the Civil Procedure Act) and the Uniform Civil Procedure Rules 2005 apply. Section 64(1)(b) of the Civil Procedure Act provides, and I quote:

At any stage of proceedings, the Court may order that leave be granted to a party to amend any document in the proceedings.

25. Section 64(3) provides, and again I quote:

An order under this section may be made even if the amendment would have had the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings,

26. Also, to the extent that it might be said that there was some defect in the cause of action in the 2 February 2017 Notice of Motion, that provision would permit correction by the substitution of what might be regarded as the three separate causes of action provided for in proposed Order 1, being 1A, 1B and 1C of the Amended Notice of Motion.

27. I am satisfied that the Respondents were aware of the terms of the Amended Motion, had had ample opportunity between the provision of that document to them and the commencement of the hearing yesterday to seek to have the matter returned to raise some objection to the Amended Notice of Motion had they wished to do so; that there is no defect in my ordering of the amendment of the Notice of Motion, and that the complaint against the Amended Notice of Motion is therefore dismissed.

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Decision last updated: 29 August 2017