Waverley Council v Mary Bobolas and Ors. [No. 4] [2005] NSWLEC 714

Land and Environment Court of New South Wales

CITATION : Waverley Council v Mary Bobolas and Ors. [No. 4] [2005] NSWLEC 714

APPLICANT: Waverley Council

PARTIES : RESPONDENTS: Mary Bobolas and Ors.

FILE NUMBER(S) : 40328 of 2005

CORAM: Bignold J

Practice and Procedure :- Application to further suspend Court Order pursuant to liberty to apply KEY ISSUES:

DATES OF HEARING: 02/12/2005 EX TEMPORE JUDGMENT DATE : 12/02/2005

APPLICANT: Mr G Newport, Barrister

SOLICITORS Staunton and Beattie LEGAL REPRESENTATIVES:

RESPONDENTS: In person

SOLICITORS N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

2 December 2005

40328 of 2005 WAVERLEY COUNCIL v MARY BOBOLAS

JUDGMENT HIS HONOUR: 1 This morning I rejected an application for a stay of an order that I had made on 30 September this year directing the Council to carry out its functions in default of compliance by the Respondents with an order issued under the Local Government Act, s 124. That order directed the Council, pursuant to s 678(10) of the Act, to carry out the outstanding clean-up work required by the s 124 Order as it had been modified by the Court in its decision in July of this year. The order was stayed for a period of 61 days and the suspension or stay of the order expired yesterday. 2 Earlier today I entertained an application for a further stay or suspension of the order for another period of three weeks. I rejected the application for reasons that I extemporised in my judgment at 10.15 this morning. 3 Late in the afternoon an urgent application has been filed in the Court by the Respondents seeking a stay. The Motion has come before the Court late tonight and I have heard the matter over the last hour and a half. It is now 6.30pm. 4 The Motion indicates that the Respondents were appealing the decision of the Court, by which I assume they are referring to the decision that I made on 30 September this year and that power of suspension or stay conferred by the Land and Environment Court Act, s 59 is invoked. As it happens, the Respondents upon the hearing of their Motion at which the Council's legal representatives have also attended at very short notice, that no such appeal has yet been filed in the Court of Appeal and it follows that the power to order a stay vested in this Court by s 59 of the Court Act does not apply. That does not mean that the Court is bereft of power to order a stay if a case for a stay can be made out. The Court has implied power to regulate its own procedures and there is specific power conferred upon the Court by Pt 12 r 1 which states: At any stage of the proceedings the Court may on terms order that the proceedings be stayed. 5 The grounds for the stay are stated in the Motion. The first ground relies upon the Local Government Act, s 200 in a manner in which it is suggested that the separate power conferred by the Local Government Act, s 678 is somehow circumscribed by the earlier section. This was an argument that was raised on the hearing of the proceedings earlier in the piece which I rejected. It provides no basis for a stay. 6 The second ground relied upon is a reference to the fact that at an earlier stage in the proceedings the Respondents had sought an adjournment of the proceedings based upon the fact that they had appealed against the decision of the Legal Aid Commission not to grant them legal aid in the proceedings and the application for adjournment was made on the basis that they were entitled, as of right, to that adjournment. This was a matter that was fully argued when the matter was before me in September of this year. It was not ultimately adjudicated upon because of the decision reached in that case which rendered the question of mandatory or other adjournment of the proceedings irrelevant. That remains the position. 7 The third ground appears to complain on account of the fact that having indicated in my judgment of 30 September that recognition would be given to wet weather with the possibility of an allowance being given for wet weather in the carrying out of the work during the two months suspension of the Order that the Court gave to the Council. It is complained that that expectation has subsequently been disappointed. I take this to be a reference to my decision on 23 November declining a further suspension of the order directed to the Council which application had been made by the Respondents in counterpoise to an application by the Council to curtail the original suspension of the Order. All these matters are adverted to in my reasons for judgment delivered on 23 November and again earlier today. In any event the ground seems to be a ground of appeal in respect of a disappointment of some expectation that the Respondents apparently had formed on the basis of my earlier decision. In the absence of any appeal, the disappointment does not provide a basis for a stay. 8 The fourth ground raised for the stay application concerns the relationship between the existing class 4 proceedings and the related class 2 proceedings and the timing of the two proceedings and their respective prosecutions. This is a matter that has been dealt with in earlier decisions of mine. It is apparent that the two sets of proceedings were related and that the Court first determined the merit appeal against the s 124 Order and it was only in default of compliance by the Respondents with the Order as modified by the Court in July of this year (which gave the Respondents two months to undertake the work) that the Council reactivated and prosecuted the class 4 proceedings resulting in my decision on 30 September this year. This provides no basis for a stay. 9 The fifth ground seems to revert to the fact of the unconcluded legal aid appeal and the disadvantage that the Respondents have felt in not being legally represented in the proceedings. I do not believe they have suffered any relevant disadvantage in the manner in which the proceedings have been conducted. 10 In advancing the case for a stay the Respondents have essentially re-agitated their case which earlier today was heard and was dismissed for an extension of time of the stay and I am left in no doubt that the Respondents are profoundly disappointed with my decision not to extend the time as sought originally two weeks ago when a thirty day extension was refused in my judgment delivered on 23 November and again today when I rejected a further application for stay for twenty-one days. 11 The Respondents have exhibited a great apprehension and concern at the prospect of the Council undertaking the work in the manner that has been proposed in fulfilment of the Court's order addressed to the Council to undertake the work in default of compliance by the Respondents and they have referred at great length to their unfortunate and adverse experiences at times in the past when the Council has similarly had occasion to execute clean-up works at the property. 12 I am, of course, concerned that the Respondents are so deeply troubled at this prospect and it was because of that that in the course of argument I invited the Council to put forward a written protocol of the modus operandi for the clean-up operation that the Council will undertake (unless the present stay application is granted). 13 Such undertaking has been scheduled, as I mentioned in my judgment earlier today, for Monday morning next week. The Council's Solicitor has kindly undertaken to prepare the draft protocol on behalf of the Council and I expect that it will be delivered to the Respondents if and when the Council arrives at the property to carry out the work. 14 I have also been told that the Council's Solicitor will attend the subject land during the clean-up operations. This is done precautionarily and to ensure that no more and no less of what the Court order requires to be undertaken, will be undertaken. 15 I have been at pains in the course of argument to allay the concerns of Mrs Bobolas in particular but also of her daughters that the undertaking will somehow or other be demeaning, humiliating or otherwise degrading of their integrity and personality. Mrs Bobolas in particular has expressed concern at the prospect of the police accompanying the workforce because this indicates to her that she is being treated like a criminal. This is an unfortunate perception and again it is to he hoped that the operation if undertaken will be undertaken efficiently, reasonably and respectfully to the Respondents. 16 Mrs Bobolas has expressed concern that a bevy of Council officers are scheduled to attend the operation. If Mrs Bobolas is not being assisted by the attendance of Ms Campesi, the social worker of the Council, or the representatives of the mental health unit of the Department of Public Health whose attendance I have assumed is in the best interests of Mrs Bobolas, and if Mrs Bobolas contrary to that expectation finds their presence unhelpful I dare say any unwelcome and unwanted presence of those persons will not be persisted with. 17 Having expressed those cautionary notes, I have also been at pains to inform Mrs Bobolas that she must not interfere with the works program. That does not mean she is to be out of sight and out of mind but it does mean that whatever views she wishes to express she should express them perhaps to the Council's Solicitor or to the Council officer supervising so that her views can be properly considered and evaluated. 18 Doubtless, the occasion may arise when there is some dispute as to whether something is "rubbish" or something is not. I agree with Mr Newport's admonition that the process, because of its magnitude, cannot be undertaken by way of an item by item evaluation because the process will become unnecessarily protracted and unduly expensive. I have suggested to the Respondents that physical matters that they consider do not constitute rubbish to be removed should be identified and pointed out to the Council officer (or to the Council's Solicitor preferably) so that an objective and fair and simple evaluation of disputed matters can be readily resolved. 19 I have made it clear that in adjudicating upon this case I am acutely aware and sympathetic to the difficulties that the Respondents are experiencing in terms of psychological problems and the like suffered by Mrs Bobolas. The fact that the case has become a matter of intense public interest, including a certain amount of scornfulness, unfortunately appears to be inevitable given the unusual nature of the case. Nonetheless the reasonable sensibilities of Mrs Bobolas in particular, who is afflicted by the psychological problems, should be respected to the maximum extent possible. 20 The application for stay, in my view, cannot be justified on the grounds asserted in the Motion or any other grounds. 21 The decisions that are causing the Respondents particular grievance have been my incidental decisions on applications for extensions of time and the like, emanating from the principal proceedings which were decided by my Orders made on 30 September 2005. Now that those applications have failed the Respondents seek to attack the very decision from which they did not originally demur. In my opinion nothing has been said in support of the stay application that would reasonably require or justify a stay of the orders made on 30 September which have become activated by the expiry of the sixty-one day original suspension period and by the non-granting of any further stay. 22 For all of these reasons I am of the opinion that the justice of this case requires that the application for stay to be dismissed and I so order. 23 Costs of this afternoon's proceedings are to be costs in the cause.