Land and Environment Court New South Wales Medium Neutral Citation: Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 Hearing dates: 23 and 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Class 4 Before: Sheahan J Decision: (a) The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed. (b) The Court adopts the "definitions of terms" in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it. (c) The Court makes the orders sought by the applicant in prayers 3 to 18 of the summons, as slightly modified in Short Minutes of Order filed in Court on 24 April 2015. (d) The respondents are ordered to pay the applicant's legal costs of or incidental to these proceedings, as agreed or assessed. (e) The applicant is to bring in by 4 pm today Short Minutes of Order to reflect orders (a) to (d) hereof, to be made in chambers. (f) Exhibit C1 is returned. (g) The parties are to have liberty to apply on two days' notice in respect of the "working out" of the Court's orders. Catchwords: INJUCTIONS AND DECLARATIONS: non-compliance with orders issued by Council, including to clean up waste unlawfully kept on premises – risks to public health and safety – order the respondents to refrain in future from keeping waste on the premises – order made enabling Council to clean up waste and attend to other health and safety issues – recovery of costs and expenses of works – costs of proceedings. PRACTICE AND PROCEDURE: application for adjournment pending an appeal from a decision of the Legal Aid Commission to refuse legal aid to the respondents – whether appeal "bona fide" – application refused. Legislation Cited: Environmental Planning and Assessment Act 1979 Legal Aid Commission Act 1979 Local Government Act 1993 Uniform Civil Procedure Rules 2005 Cases Cited: Lewis v Spencer [2007] NSWSC 1383 Manly Council v Moffit [2006] NSWLEC 184; 146 LGERA 215 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270 Scott-Irving v State of New South Wales [2014] NSWSC 1006 Waverley Council v Bobolas [2009] NSWLEC 190 Category: Principal judgment Parties: Waverley Council (Applicant) Mary Bobolas (1st Respondent) Elena Bobolas (2nd Respondent) Liana Bobolas (3rd Respondent) Representation: Counsel: Mr P Clay, SC with Mr M Staunton, barrister, and (on 24 April) Ms J Reid, barrister (Applicant) No appearance (Respondents) Solicitors: Wilshire Webb Staunton & Beattie (Applicant) Litigants in person (Respondents) File Number(s): 41027 of 2014 Judgment 1. The summons in this matter was filed on 5 December 2014 and seeks a declaration and a range of orders regarding waste deposited and kept on premises at 19 Boonara Ave, Bondi, and the state of those premises more generally. 2. The first respondent (Mary Bobolas) is the owner-occupier, and her daughters, the second respondent (Elena) and third respondent (Liana) also occupy, the premises. Mary Bobolas has been the registered proprietor since 1973. 3. On 6 February 2015, this matter was fixed for hearing on 23 – 24 April 2015. 4. The respondents have since filed no evidence on the substantive issues, despite specific directions given by Craig J on 6 February and Pain J on 20 March, but two Notices of Motion ("NOM") brought by them, contesting the service of the summons, have been dismissed by the Court. 5. When the matter was called on for hearing, at 10.00 am on 23 April there was no appearance by any of the respondents, and no response to three calls outside the Court. 6. Senior Counsel for the Council (Mr Clay) informed the Court that, at 6.30 pm on 22 April 2015, one of the respondents made contact with Council's solicitor (Mr Webber) to inform him that an application would be made to adjourn the hearing, pursuant to s 57 of the Legal Aid Commission Act 1979 ("LAC Act"), on the basis that the respondents would be appealing against the refusal of an application made by them for assistance with this matter. 7. The caller offered to mention the matter on Council's behalf on 23 April, but Mr Webber declined that offer, and advised the caller to attend Court on 23 April to make the adjournment application in person. Mr Webber later swore an affidavit (23 April 2015) verifying those facts. 8. At 8.32 am on 23 April, a four page document signed on page 2 of 4 by "E Bobolas" was faxed to my chambers from "OW Bondi Junction", which the Court has been informed would be an "Officeworks" shop. It was entitled "Short Minutes of Order" ("SMO"), and included (1) a draft order for a s 57 adjournment and (2) a draft notation of the call made to Mr Webber late on 22 April. 9. It then referred to Lewis v Spencer [2007] NSWSC 1383 and Waverley Council v Bobolas ("Bobolas") [2009] NSWLEC 190, and attached (at p3 of 4) a copy of a heavily redacted fax Coversheet headed "Legal Aid Commission of NSW", bearing the date "22 April 2015" and the title "Re: Refusal of Legal Aid – Land & Environment Court proceedings 41027 of 2014". Also attached (p4 of 4) was a copy of a document headed "Appealing a Legal Aid Decision". 10. At about 9.30 am on 23 April, my associate took a call from a female who (1) introduced herself as "Ms Bobolas", (2) enquired as to whether the 8.32am faxed "SMO" had been received in chambers, and (3) asked that the document be "brought to the Judge's attention". I then had the "SMO" document taken down to Registry for stamping. 11. Relevantly, the fax coversheet (p3 of the "SMO") said: Attached is refusal letter in relation to your application for legal aid for representation in Land & Environment Court proceedings 41027 brought against you by Waverley Council 1. However, no such letter of refusal was included in the "SMO" document. 2. The adjournment application not having been properly made, I made the following orders, in the absence of the respondents: 1. Orders that the document styled "Short Minutes of Order" dated 15 April 2015 delivered to the Court by facsimile at 8:32am today by or on behalf of the Respondents be treated as a Notice of Motion by the Respondents seeking the orders set out therein. 2. Orders that the Respondents' motion be adjourned for hearing at 10am 24 April 2015 before Sheahan J. 3. Adjourns the proceedings to 10am 24 April 2015. 4. Reserves the costs of today. 5. Directs that notice of these orders be given to the Respondents by delivery to the Respondents of a letter from the Registrar of the Court setting out these orders, such delivery to be effected by placing the letter in a plastic envelope and affixing it to the front gate of 19 Boonara Avenue, Bondi Beach by 2pm today. 6. Directs the Registrar to request the Legal Aid Commission to provide the information referred to in s25(4)(l) of the Legal Aid Commission Act in respect of any legal aid application made by any of the Respondents in relation to these proceedings. 1. I asked Mr Clay to have a Council officer or agent deliver the Registrar's letter (in Order 5), on the Court's behalf, and provide an affidavit of service. Council's Mr Schilt has now deposed (24 April 2015) to such service, and to the apparent removal of the document envelope from the gate of the subject property by this morning. 2. The Registrar's letter served with the orders I made yesterday said: Dear Mses Bobolas Re: Waverley Council v Bobolas, Mary (1st Respondent), Bobolas, Elena (2nd Respondent) & Bobolas, Liana (3rd Respondent) File number: 14/41027 I refer to the above proceedings and advise that His Honour, Justice Sheahan made the enclosed orders in court today. The hearing of the proceedings, together with your application for an adjournment, has been adjourned to 10am tomorrow Friday 24 April 2015. You should make yourself available to attend at that time. If you do not attend, the hearing may proceed and orders may be made in your absence. Yours sincerely Joanne Gray Registrar 1. Later yesterday, the Legal Aid Commission responded to the Registrar's inquiries I had ordered (in Order 6), and the Court now has a copy of the Commission's letter of refusal. It was dated 22 April 2015, and it noted that the respondents' "application for extension of legal aid [was] received 22 April 2015". I set out the text of the letter of refusal in full: Dear Ms Bobolas Legal Matter Other Civil (State) Court Sydney Land And Environment Crt EXTENSION OF AID REFUSED Your application for extension of legal aid received 22 April 2015 has been refused. Reasons for refusal Under Legal Aid NSW policies and guidelines, legal aid is not available for matters of this nature. Extension 1 was created by the Grants Division for the purpose of generating this refusal letter. Your (sic) can find information about availability of legal aid here: http://www.legalaid.nsw.gov.au/for-lawyers/policyonline/policies/6.-civil-law-matters-when- legal-aid-is-available As the application has been refused on guidelines, Legal Aid NSW has not considered whether the requirements of its means and merit tests have been satisfied. You should notify the Court of the outcome of your application for legal aid, though we note that Legal Aid NSW is able to provide limited information to the Court about your application if a request is received from the Registry. If it is proposed to appeal to the Legal Aid Review Committee as explained under the heading Appeal Rights towards the end of this letter, it is recommended that you provide the following additional information: A copy of all relevant court documents filed in proceedings for which legal aid is sought. For more information about eligibility for legal aid please go to our website www.leqalaid.nsw.gov.au and click on the link to Policy Online. APPEAL RIGHTS You may have a right of appeal to the Legal Aid Review Committee against the refusal of legal aid. You must lodge any appeal within 28 days of the date you receive this letter. In special circumstances the 28 day period may be extended. You may seek an adjournment of court proceedings under Section 57 of the Act if you appeal or intend to appeal to the Legal Aid Review Committee. A court or tribunal is required to adjourn the proceedings provided that it is satisfied that the appeal is genuine and that there are no special circumstances that prevent granting the adjournment. For more on appeals and the appeal form please read the information sheet enclosed. 1. As noted above ([9]), some of that "information sheet" was attached to the "SMO" document faxed to my chambers (p4 of 4). None of it needs to be included in this judgment. 2. As at 9.47 am this morning, no appeal had been lodged. 3. When I came on the bench at 10.10 am, the three respondents did not appear, nor respond to three calls outside the Court. I, therefore, granted leave to the Council to proceed in their absence – UCPR 29.7 – and I heard its submissions on the NOM. 4. Lewis v Spencer (2007) and Biscoe J's 2009 Bobolas judgment, mentioned by the respondents, are not the only, nor the latest, authorities on adjournments under s 57 of the LAC Act, which provides: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit. 1. Mr Clay referred me to two more recent Supreme Court decisions. 2. In Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270, Schmidt J said (at [8]): It would, of course, have been a simple matter, entirely within Mr Chan's own hands, either before the Registrar or on the adjournment application today, to tender the document which he says constitutes his appeal, suitably masked, if that was necessary, to preserve confidentiality in anything which might be privileged. Consideration must plainly be given to Mr Chan's position as an unrepresented litigant but that does not explain his failure to take the simple and available step of tendering his appeal document. 1. In Scott-Irving v State of New South Wales [2014] NSWSC 1006, Adamson J said (at [26] – [27]): 26 It does not appear to me that the appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. That the plaintiff would apply for legal aid after the matter had been set down for hearing and not propound it to the court as a reason why the date ought be vacated until the application had been finally determined (including an appeal) is telling. It is also significant that on 9 May 2014 the plaintiff was prepared to disclose the legal aid application but represent to the Court and the defendant (including by affidavit) that it did not affect his preparedness for the matter to proceed. 27 In these circumstances it was, in my view, incumbent on the plaintiff to provide some explanation to shed light on his conduct which on its face appears to be at least misleading towards the Court and to the defendant. Whether he is reluctant to face the final hearing of this matter is not a question that I am in a position to determine but his silence does not assist him to make the matters referred to in s 57(b) of the LAC Act appear to me. Indeed his silence allows me more readily to infer to the contrary. 1. Mr Clay formally tendered (Exhibit C1) the respondents' NOM dated 6 February 2015, and its supporting affidavit, upon which Pain J based her earlier decision in the present matter: Waverley Council v Bobolas [2015] NSWLEC 57 ([4] above). 2. Those documents make clear that the respondents were well aware of these proceedings on 6 February, yet the LAC confirms that they applied to it for assistance only on 22 April, the last day before this hearing was to commence. 3. The "SMO" document, which I accepted as a NOM for adjournment, said that the respondents "are appealing". They deliberately omitted to include the terms of the refusal letter. No grounds of appeal have been nominated, and the respondents have chosen not to appear, to explain their position, and to prove that their planned appeal is "competent" (s 57(a)(ii)), and/or "bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings" (s 57(b)). 4. On the basis of the authorities to which I have referred, I conclude, and find, in terms of s 57, that the respondents' intentions are not bona fide, and that the foreshadowed appeal is a deliberate device to delay these proceedings. 5. I, therefore, announced to the Court at 10.35 am that I dismissed the respondents' NOM, and would give my reasons later, which I have now done above ([16] – [27]). 6. I then invited Counsel for the applicant to "read" Council's evidence on the substantive issues, including several late "updating" affidavits from earlier deponents, and to hand up its written submissions, and I retired to consider my decision. I stood the matter down for judgment at 2 pm. 7. The declaration sought (in prayer 2 of the summons) concerns alleged non-compliance by the three Bobolas women with orders dated 1 August 2014, given to them pursuant to s 124 item 22A of the Local Government Act 1993 ("LG Act"), but the orders sought from the Court refer to other orders issued by Council, as well (I adopt the definitions of various terms in par 1 of Council's summons). 8. The order sought (in prayer 3) to "refrain from keeping waste" would apply to the whole of the premises comprised in the certificate of title. 9. There is a specific order sought (in prayer 8) as to service of any orders the Court might make in this matter. 10. Orders are also sought (in prayers 4 to 7), under s 678(10) of the LG Act and s 121ZJ of the Environmental Planning and Assessment Act 1979 ("EPA Act"), to allow the applicant Council to execute any orders made in these proceedings, by entering and remaining on the premises, and doing the required demolition and removal works, between 7 am and 3 pm on weekdays. 11. The Orders (in prayer 13) provide for the respondents to remove from the lands, verandah, and garage, by 7 am on the day the works commence, any objects of value which they wish to retain, but they also (in prayer 14) forbid the respondents from interfering with the Council's entry and works. 12. Prayer 15 seeks an order that "for the purposes of these orders under s 124 [LG Act] and s 121B [EPA Act] waste means all objects located anywhere outside the House at 7am on the day when the Works commence". 13. Various ancillary orders are also sought, including in regard to: (9 and 10) engagement of a structural engineer, and an arborist; (11) disconnection of services; (12) unlocking and removal of gates; (16) cutting of vegetation; (17) removal of any motor vehicle obstructing the works; 1. The Council also seeks orders for (19) costs and (18) reasonable execution expenses, and (20) "such further or other orders as the Court deems appropriate". 2. There have been a series of mentions since 6 February, and Council's Points of Claim ("POC") were filed on 2 March. 3. On 20 March, Pain J delivered her judgment on the NOM, filed by the respondents on 6 February (Exhibit C1, and [4] and [24] above). 4. Her Honour held that the Council's summons in this matter had been properly served, and she then made orders facilitating the efficient service of all other documents pre-trial. The evidence upon which Her Honour relied has not been read (again) before me today. 5. However, on 17 April, as Duty Judge, I dismissed a NOM filed by the respondents on 7 April, as it replicated that upon which Pain J had already ruled. 6. Costs of both those NOM proceedings were reserved, at Council's request. 7. There have been many earlier proceedings brought in this Court by Council, or by one or more of the present respondents against Council, regarding the state of the premises and the respondents' conduct at the premises in respect of waste (matters nos. 40328 of 2005, 20363 of 2005, 20267 – 9 of 2006, 40916 of 2006, 40278 of 2009, and 40466 of 2013). 8. I have found at least 24 published judgments of this Court, and also 5 of the Court of Appeal, covering the years from 2005 to date. I note from remarks made before me last week on the NOM I heard ([41] above), by Council's representative, that there have also been proceedings elsewhere, at least in the Local Court, between these present parties. 9. However, while the POC in the present proceedings refer to events from 2005, they deal, in particular, with those since May 2014, i.e. after an earlier Council clean-up operation, following earlier proceedings. 10. Council gave Mary Bobolas a "demolition" order in respect of the garage (EPA Act s 121B Order No 2) on 8 July 2014, but she failed to comply (POC 6 – 13). 11. Concerned about the condition of the house itself Council also gave Mary Bobolas a "safe and healthy condition" order (LG Act s 124 Order No 21) on 8 July 2014, but again she failed to comply (POC 14 to 23). 12. These failures to comply are alleged to constitute breaches of EPA Act s 122 and LG Act s 62, respectively (POC 13 and 23). 13. Since 1 August 2014, the three respondents have allegedly been keeping "waste" (see [??] above) on the premises. The elements of that "waste" are set out in POC 24(b), and in the opinion of expert Council officers it is "likely to afford harborage for insects and vermin" (POC 24(c) and (d)), and so poses a "serious health threat" to the occupants of the premises and neighbouring properties, as well as (24 (e)) a fire hazard. 14. In these respects, Council gave the three respondents (POC 24 to 28) "removal" orders, under LG Act s 124 No 22A, on 1 August 2014, concerning "the accumulations of waste from the outside areas of the premises, including ... the front verandah of the dwelling". 15. The three respondents have failed to comply with those orders, and so are alleged to be in breach of LG Act s 672. 16. The POC go on to assert (POC 29 – 33) that, "since at least 2005 and continuing", the three respondents "have been and are keeping" on the premises, waste (particularised in 29(b)) which poses a "threat to public health or the health of any individual", as well as a fire hazard. 17. On 1 August 2014, Council gave the three respondents orders under LG Act s 124 No 22A, requiring them to "refrain from keeping waste in the outside areas on the premises including ... the front verandah". 18. Again they have failed to comply, and so are alleged to be in breach of LG Act s 672. 19. These civil enforcement proceedings concern the failures to comply with orders under both Acts, but the declaration sought (prayer 2) refers specifically to only the "refrain" orders. The Evidence 1. The key assertions of the Council in respect of the LG Act orders are that the waste kept in the external areas of the premises around the house is causing, or likely to cause, a threat to public health, and the health of individuals, and that vines and vegetation growing on and into the roof and guttering have put the house in a condition which is not safe or healthy. 2. The EPA Act Orders concern the condition of the garage at the rear of the premises – it is alleged to be dilapidated, and in danger of collapse, and thus to be prejudicial to the occupants, and/or persons or properties in the neighbourhood. 3. There are many affidavits upon which the Council relies (19 in all), and I will briefly summarize their provenance. Many of them serve to satisfy the Court of some necessary technicalities: Solicitor Ken Webber deposed to his firm's mail and document procedures, and produced title searches which establish Mary Bobolas as the owner of the premises at all material times; Council officers "Fred" Schilt, Milos Hervir, Warren Banfield, and Anthony Quill depose to the circumstances leading to the issuing of orders by Council; Webber, and Council officers Carlos da Rocha and Andrew Gaze, depose to the service of documents from Council and the Court on the respondents. Gaze describes, in his late affidavit (24 April 2015), Council practices regarding correspondence. 1. On the substantive issues, Council officers Schilt, Gaze, Quill and Banfield give evidence of first-hand inspections of the waste on site, the vegetation issues, and the condition of the garage, and the roof and guttering of the house. 2. Council also employs arborist Malcolm Coote, and tree management officer David Petrie. Coote deposes, as an expert, to the state of the "worrying" vegetation (a ficus pumila creeper). Petrie provided advice to Schilt (annexure "B" to Schilt's affidavit, 2 March 2015) on the same subject. 3. Council also engaged two structural engineers from well-credentialed consultancy, Cardno, Cosmo Farinola and Doug McMillan, and both provided expert reports on the garage, which satisfy the Court. 4. Many deponents annex copies of the various notices and orders to which they refer, and many also annex explicit photographs. 5. Council's submissions of 23 April are very detailed, and include helpful cross-referencing and summaries of the evidence, and I adopt them. 6. I am entirely satisfied that the Court (1) has the necessary powers, and (2) should order demolition of the garage, removal of the roof vegetation, and removal of all the waste in the garage and external area, and that the Court (3) should order the respondents to refrain from continuing to collect and store waste. 7. Should the respondents not comply with my orders, Council must intervene to carry out the orders, including doing any necessary works, and it should recover its costs and expenses (see EPA Act ss 118, 118A, 121ZJ, 122, and 123, and LG Act ss 191, 672, 674, and 678; and Manly Council v Moffit [2006] NSWLEC 184; 146 LGERA 215). 8. The respondents were clearly on very detailed notice of what the Council required to be done, and they are clearly on detailed notice also, from the summons and POC, of what the Court has been asked to order. 9. They have chosen not to defend the proceedings. 10. The photographs and first-hand observations of the witnesses show not only the breaches, but continuous and substantial increases in the amount of waste, and continuous deterioration in the condition of the subject premises. That all serves as evidence of no effort being shown by the respondents to deal with the issues. 11. The Court should, and will, therefore, make the declaration and orders sought in the summons, as slightly varied in their terms by Short Minutes of Order handed up by Mr Clay at the end of the hearing. The Court Orders 1. The Orders of the Court are: 1. The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed. 2. The Court adopts the "definitions of terms" in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it. 3. The Court makes the orders sought by the applicant in prayers 3 to 18 of the summons, as slightly modified in Short Minutes of Order filed in Court on 24 April 2015. 4. The respondents are ordered to pay the applicant's legal costs of or incidental to these proceedings, as agreed or assessed. 5. The applicant is to bring in by 4 pm today Short Minutes of Order to reflect orders (a) to (d) hereof, to be made in chambers. 6. Exhibit C1 is returned. 7. The parties are to have liberty to apply on two days' notice in respect of the "working out" of the Court's orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2015