Bobolas v Waverley Council [2012] NSWCA 126

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bobolas v Waverley Council [2012] NSWCA 126 Hearing dates: 14 December 2011 and on written submissions dated 12 March 2012 Decision date: 07 May 2012 Before: McColl JA at [1], Macfarlan JA at [78], Tobias AJA at [79] Decision: 1. Authorise Elena Bobolas to act in all respects concerning the present appeal as if she had been appointed Mary Bobolas' tutor pursuant to the Uniform Civil Procedure Rules 2005, such authority to operate from the date the Notice of Appeal was filed. 2. Appeal allowed. 3. Declare that the order dated 5 March 2009 issued by the respondent to each of the appellants pursuant to s 124 of the Local Government Act 1993 is not, and was not, a valid order. 4. Set aside the orders made by Pain J on 11 December 2009. 5. Set aside the costs orders of 29 April 2010 and 17 June 2010 made against the appellants. 6. Order the respondent to pay the appellants' costs of the written submissions prepared by pro bono counsel, out of pocket expenses and "deferred filing fees" in the event that the condition on which those fees were deferred falls in. 7. Pursuant to UCPR r 7.41, order that Mr J Doyle, being a barrister who has provided legal assistance to the appellants under the scheme for the provision of legal assistance to litigants under Division 9, Part 7 of the UCPR, is entitled to recover the amount of costs that the respondent is required to pay under order 6. 8. Remit the question of costs of the Land and Environment Court proceedings to Pain J for determination. 9. The respondent is granted an indemnity certificate under s 6 of the Suitor's Fund Act 1951 with respect to the costs payable under orders 6 and 7, provided that the respondent is otherwise entitled. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LOCAL GOVERNMENT - validity of orders for removal and disposition of waste on residential premises - Local Government Act 1993 s 124 (cl 22A) - where orders required entry onto premises whether or not owner consented - orders not clear and expressed in terms of futurity