(1) reasonable fears that his residence would be demolished, as occurred with the previous occupier of the allotment;
(2) reasonable fears that property would be stolen from his premises;
(3) reasonable fears that the property may face destruction by fire, particularly during the bushfire season, if there is no one in residence, and
(4) health issues personal to him.
15 The first matter must be disregarded. It is not known why the previous dwelling was demolished, but there is no suggestion it was done otherwise than by or with the authority of the Co-operative, for valid reasons. In any event, the undertaking disposes of the reasonableness of any such fear.
16 In relation to the second matter, the undertaking of the Co-operative is sufficient to dispose of any reasonable fear that it would interfere with his property in any way or would "permit" any other person so to interfere. That is obviously no guarantee against malicious persons taking advantage of the absence of the owner, nor could such a guarantee be expected. It may be that there is some basis for the applicant's concern in circumstances where emotions appear to have run high in the dispute between the Co-operative and the applicant. Further, the applicant relied upon evidence of two neighbours that items had been stolen from their homes during periods of absence. However, it is not easy to assess the significance of that evidence, nor does the applicant appear to have faced any such intrusion himself, although an affidavit filed on behalf of the Co-operative asserted that he had been absent overseas in or about 2006.
17 While such fears cannot be totally discounted, given the undertakings of the Co-operative I do not intend to place weight on them.
18 Thirdly, the applicant referred to the importance of being in his home during the bushfire season, to maintain the home site so as to minimise the danger from fire, as well as responding to any actual fire.
19 This is a matter of little weight. Members of the community comprising the Co-operative would have common interests in protecting the area from bushfire. Indeed, the Co-operative, which presently has a costs order in its favour, would have a direct financial interest in preserving the property of the applicant.
20 The fourth matter concerned health issues. The applicant tendered a medical certificate from his general practitioner which stated that he was suffering from "depression/anxiety". It further stated that he had been under the care of a psychiatrist and a social worker and the area mental health unit. Without providing any detail of the mental condition or any professional opinion, the general practitioner merely noted the applicant's beliefs that he believed leaving his home would exacerbate his mental condition, his feeling that he was incapable of relocating and his belief that remaining in his home would be beneficial therapeutically. As counsel for the Co-operative noted, such repetition of the applicant's own beliefs provided no medical support for this ground.
21 I am not, however, prepared to discount the ground entirely. The fact that the applicant has a disability pension, based upon his mental condition, suggests that it is not insignificant. Further, his general practitioner describes it as "depression/anxiety", which may be accepted. Given that the applicant is 60 years of age and has resided at the "Outback Village" for over 20 years, it may also be accepted for the purposes of the present application that removal will cause significant distress and may well exacerbate his mental condition. On the other hand, if the judgment and writ of possession require him to find other accommodation, it is arguable that he should confront that eventuality sooner rather than later. Nevertheless, I accept that there is a degree of hardship involved which would be avoided if the judgment below were not to be enforced.
22 Apart from the applicant's own beliefs and mental condition, there are three factors which weigh in favour of granting a stay until the determination of proceedings in this Court. First, it is likely the applicant will obtain a hearing in approximately six months time. Of that period, approximately six weeks results from the Court's summer vacation. Some allowance must also be made for a further period the pending delivery of judgment. Whilst the Co-operative and its members are entitled to enjoy the benefits of the judgment as soon as possible, approximately half of the likely period between the initial judgment and the determination of the appeal has already passed, with the applicant still in residence.
23 Secondly, the hardship to the Co-operative and its members is not easy to assess, and involves some history with which this Court is not familiar. There is no evidence in this Court which explains the background to the disputes which led to the expulsion of the applicant from the Co-operative. On the other hand, the applicant has remained on the land subject to strict constraints on his behaviour and communication with other members, without any suggestion that he has breached those conditions. In addition, he says, again without contradiction, that his allotment is approximately one acre in size and that he cannot see his neighbours' houses due to trees and sheds.
24 Ms Xerri, who has given an affidavit for the Co-operative, stated that the applicant's presence on Bundagen "causes me discomfort" and that it "makes me uneasy to know that he continues to live nearby". It does not appear that she is an immediate neighbour, but she quotes the words of those who apparently are neighbours, stating that the applicant's presence is a source of "great anxiety", creates "a very unpleasant feeling" and creates "a lot of anxiety and fear". The only identified source of the anxiety and discomfort is one statement to the effect that "I don't know what he can do or what he is up to bringing stuff such as a broken down van on to the land".
25 The difficulty with this evidence is that it leaves the Court quite uninformed as to the sources of the discomfort and anxiety, and the seriousness of the hardship which the neighbours claim. The concerns may arise from past behaviour and may not take into account the conditions under which the applicant continues to reside at the "Outback Village". Although the conditions were no doubt formulated by the Co-operative, they contain no reference to bringing unwanted 'stuff' onto the land. The evidence is of little weight.
26 Counsel for the Co-operative emphasised the need for this Court to be satisfied that there are reasonable grounds for appeal. Such an assessment is made more difficult by the fact that several of the grounds refer to contravention of rule 47 of the Co-operative's rules. That rule is summarised at [5], but not set out in terms in the judgment. Her Honour accepted that there is "some merit in the [applicant's] argument" in this respect: at [57]. Secondly, the applicant complains that her Honour did not correctly address the operation of rule 90. Although the rule is summarised at [59], it is difficult to assess the substance of the argument from the description given in those paragraphs of the judgment dealing with that issue.
27 Other complaints go to questions of procedural fairness, improper purpose and bad faith, which require an assessment of the evidence, none of which is yet before this Court.
28 Some of the grounds of appeal, such as (6) asserting Wednesbury unreasonableness, appear to misconceive the nature of the appeal, which is by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW). Other grounds bear an air of implausibility, but some are appropriately expressed in terms which would appear, on their face, to invite considered assessment by this Court. On the evidence before me, I am not prepared to refuse a stay on the basis that there are no reasonably arguable grounds of appeal.
29 The notice of appeal appears to have been drafted with professional assistance; the summary of argument, signed by the applicant himself, bears a different inference. Nevertheless, the applicant has had the benefit of counsel for the purposes of this application and I do not assume that he may not have further legal assistance in presenting argument on the appeal. If that were to be the case, it would be highly desirable that the summary of argument be replaced by proper written submissions. Indeed, there will need to be supplementation of the white folder by inclusion of the evidence before the trial judge.
Conclusion
30 I propose to continue the operation of the stay which was in force until yesterday, on the conditions imposed by Hidden J in June, which have been complied with so far. My reasons for making that order are in summary as follows: