Bobolas v Waverley Council

Court of Appeal (NSW)|2014-04-10|Before: Meagher JA, Gleeson JA, Ward JA, Biscoe J, Schmidt J

Judgment 1THE COURT: The applicants (Mary Bobolas and her daughters, Elena and Liana) are the occupants of premises in Boonara Avenue, Bondi which are owned by Mary Bobolas. On 4 March 2014 Biscoe J made orders requiring the respondent Council to remove significant accumulations of waste stored in the outside areas of that property. The applicants have appealed from those orders. On 14 March 2014 Schmidt J made orders staying the operation of the orders of Biscoe J until further order. On 25 March 2014 Ward JA discharged those orders with effect on 31 March 2014. The applicants, by an amended notice of motion filed on 9 April 2014, sought to set aside the orders made by Ward JA. 2Their application was heard on 10 April 2004. It was expressed to be made pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2), r 36.15(1) and r 51.5(1). The Court also treated the application as made under s 46(4) of the Supreme Court Act 1970 (NSW) which permits the review of judgments and orders of a single Judge of Appeal. At the conclusion of the argument, the Court ordered that the application be dismissed with costs and reserved its reasons for doing so. These are those reasons.

Provisions of Supreme Court Act and Uniform Civil Procedure Rules 3Section 46(4) provides: "The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal or an order made or direction given by a Judge of Appeal." The orders made by Ward JA on 25 March 2014 were made under s 46(2)(b) and answer that description. 4The relevant provisions of the Rules referred to above are: "36.15(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith." "36.16(2) The court may set aside or vary a judgment or order after it has been entered if: ... (b) it has been given or made in the absence of party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order;" "51.5(1) Except by leave of the Court, a party may not take any step in proceedings in the Court (including an appearance before the Court) without entering an appearance in the proceedings."

Background 5On 5 December 2012 the respondent Council ordered that the applicants remove accumulations of waste in the outside areas of the property. Those orders were made under s 124 of the Local Government Act 1993 (NSW) (Act) and were not complied with. That section provides: "A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table." Item 22A in that Table specifies the "Owner or occupier of the premises" as persons to whom orders to "remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises" may be directed, in circumstances where the "waste is, in the opinion of the environmental health officer (within the meaning of Public Health Act 1991 (NSW)), causing or is likely to cause a threat to public health or the health of any individual". 6Section 124 is in Part 2 of Chapter 7 of the Act. Section 678 addresses the powers of the Council to carry out work if the person to whom the s 124 orders are directed does not do so. It also enables the Land and Environment Court to order that the Council carry out such work. It provides: "678 (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. ... (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings." 7As at December 2012 the parties were not strangers to each other. The evidence before this Court shows that there have been issues relating to the removal of waste at the property since at least 2005. The Council had also brought earlier proceedings against the applicants in relation to orders purportedly made pursuant to s 124. In December 2009 Pain J made orders under s 678(10) in relation to s 124 orders made in March 2009. The applicants successfully appealed to this Court (McColl and Macfarlan JJA and Tobias AJA) against those orders, on the ground that the original s 124 orders were invalid: Bobolas v Waverley Council [2012] NSWCA 126. 8In June 2013 the Council commenced proceedings in the Land and Environment Court to enforce the s 124 orders made by it in December 2012. The Council sought, among other things, an order pursuant to s 678(10) that it exercise its functions under s 678(1) by carrying out the work to remove the waste. The applicants were duly served with the initiating process and supporting affidavits. 9The procedural history of that action is set out in some detail in Biscoe J's judgment delivered on 4 March 2014: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 at [7]-[30]. On that day Biscoe J heard and determined the Council's claim. There was no appearance by any of the applicants at that hearing. 10The orders made by Biscoe J included an order that the Council carry out the works which were the subject of the s 124 orders (order 1); an order that the Council's servants and agents were entitled to enter the premises between 17 and 21 March 2014 to carry out those works (order 2); and an order that those works could commence on 17 March 2014 provided that a sealed copy of the order was served by affixing it in a clear plastic pocket to the outside of the front gate of the premises three days before works were to commence (order 6). An order was also made giving the Council liberty to apply to extend the time for cleaning up the property should that be required (order 12). 11A sealed copy of the orders was served on the applicants in accordance with order 6 on 11 March 2014 by Ms Mostafa, a secretary employed by the Council's solicitors. That fact of service was contested by the applicants before Ward JA, but was the subject of an express finding that service had been effected. 12The Council proposed to commence the works on 17 March 2014. On 14 March the applicants filed their notice of appeal. On the same day they filed a motion seeking an order restraining the respondent from entering the property or carrying out the removal works and an order staying the orders made by Biscoe J, in each case until the determination of the appeal. 13On 14 March 2014 Schmidt J, sitting as a Judge of Appeal, heard that application on an ex parte basis and stayed the orders made by Biscoe J until further order. Her Honour also stood the applicants' motion over for hearing on 17 March 2014. On that occasion the motion came before Ward JA. The Council was represented. It had not, however, filed a notice of appearance at the time that argument occurred. 14Ward JA delivered a comprehensive and careful judgment on 25 March 2014: Bobolas v Waverley Council [2014] NSWCA 78. Her Honour made the following orders: "1. Notice of motion dismissed with costs. 2. Stay ordered by Schmidt J on 14 March 2014, of the orders made by Biscoe J on 4 March 2014, be discharged with effect from 7am on Monday, 31 March 2014." The order that the stay be discharged with effect from 31 March 2014 was made so as to give the applicants a "final opportunity" to remove any items of value from the outside areas of the property before the Council commenced carrying out waste removal works: [129]. 15On 8 April 2014 Biscoe J, on the Council's application, varied orders 2 and 6 made on 4 March 2014 so as to permit the removal works to be carried out during reasonable hours on 11 April 2014 and between 14 and 17 April 2014. At the same time, his Honour amended order 6 to require that a sealed copy of the orders made on 8 April be served by 5.00pm on 9 April 2014 and in the same manner as the original orders: Waverley Council v Bobolas (No 4) [2014] NSWLEC 35.

The application for an injunction 16Ward JA dealt with the application to restrain the Council from commencing the removal works on the basis that the applicants contended that the proviso in order 6 made by Biscoe J, which required service of the orders before the works were commenced, had not been complied with. That was a question of fact and was the subject of the evidence given by Ms Mostafa, who was cross-examined before Ward JA. Her Honour accepted her evidence and held that the relevant documents had been served on 11 March 2014 and in the manner required. In the light of that conclusion her Honour was not persuaded that there was any serious question to be tried as to the lawfulness of the proposed entry onto the premises and accordingly rejected the application for an injunction.

The stay application 17The Court has a discretion whether or not to grant a stay of execution pending the hearing of an appeal. In the exercise of that discretion there must be taken into account the various factors in favour and against the granting of a stay including whether it can be granted on terms that fairly take account of the competing interests of the parties: Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 (Kirby P, Hope and McHugh JJA) at 694. As her Honour noted when referring to these principles, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, that will be a substantial factor in favour of the grant of a stay. 18Her Honour took this factor into account in refusing a stay. She observed at [62] that "the force of the applicants' position is that at least in some measure their appeal is likely to prove nugatory if a stay is not granted since it may be assumed that the Council will in the interim have carried out the works required and authorised by the orders made that are the subject of the appeal". Her Honour went on to observe that "the appeal may even in that case have utility insofar as the applicants seek to challenge the validity of the orders and, if the works proved to have been unauthorised, this would have an impact on any claim by the Council for recoupment of the costs of effecting the works": [62]. 19Ward JA then considered whether an arguable case was disclosed, where the balance of convenience lay in the making or refusing of a stay and whether a stay could be granted on terms that would fairly take account of the different interests of the parties. Her Honour concluded that the applicants did not have an arguable case on appeal: [114]; and that the balance of convenience did not favour the granting of a stay. The most powerful factor tending against the grant of a stay was the fact that the very considerable quantities of waste and rubbish at the premises involved potential public health and fire risks both to the premises and their occupants and to neighbouring properties and their occupants: [128], [152]. Biscoe J had made findings to that effect: [2014] NSWLEC 16 at [33]; and there was no evidence before her Honour suggesting otherwise. 20In addressing the balance of convenience, her Honour took into account that the applicants had offered to remove the waste (albeit in an uncertain timeframe); that there were likely to be adverse costs consequences to the applicants if the Council undertook the work and sought to recover the cost of doing so from them; that the applicants maintained, based upon past events, that it was likely, if the Council undertook the waste removal, that there would be damage to the property and that objects of value to them would be removed in that process; that the Council's being permitted to remove the waste might exacerbate Mary Bobolas' existing psychological condition; that the applicants complained that the Council had not engaged in dialogue with them and had excluded them from public meetings convened to discuss the question of removing the waste; that the applicants should be given a further opportunity to remove objects of value before any works commenced; and that the Council had been seeking to have the currently accumulating waste removed since as long ago as 2010: [116]-[127]. 21Her Honour's conclusions are expressed at [152]-[157]. They include at [152]: "In balancing the factors to which I have already referred, I consider that the prejudice to the applicants of not granting a stay are outweighed by the obvious public interest in the removal of the health and fire risk posed by the current state of the premises on the findings made by his Honour." 22Ward JA decided that the only way in which one could be confident that the clean-up works would happen was if they were undertaken by the Council. Her Honour was not satisfied having regard to the varying estimates made by each of the applicants as to the time it would take for the removal of various items (times ranging from within a month to at least two months) "that without the Council's intervention the property will be properly cleared up in the short term": [156]. 23When considering the likelihood that the applicants ultimately might have to bear the cost of removing the rubbish, her Honour observed at [155]: "However, that is a circumstance that the applicants have brought upon themselves - first, by the collection and storage of the items in question, including items of rubbish and vegetation apparently left to rot on the premises, and then by their disregard of the Council's requirement for them to clean up the property."

Relevant principles 24In hearing and disposing of the applicants' motion Ward JA was exercising the power of the Court of Appeal under s 46(2)(b) to make any order in an appeal other than one involving the determination or decision of the appeal. The Court of Appeal may discharge or vary such an order under s 46(4). 25An application under that subsection for review of the earlier order is neither an appeal nor a hearing de novo of the application which resulted in the order sought to be discharged or varied. In Donnelly v Australia & New Zealand Banking Group Ltd [2014] NSWCA 43 this Court (Emmett, Gleeson and Leeming JJA) said of that right of review at [13]-[14]: "At least ordinarily, a review will not succeed unless "the decision turns on an error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration, or unless the decision is so unreasonable as to suggest that one of these types of error has been committed even though it does not appear on the face of the reasoning": Patrick v Howorth [2002] NSWCA 285 at [10]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143 at [6]. For those reasons, it is well established that the applicant bears a heavy burden: see Rinehart v Welker [2011] NSWCA 403 at [48], Jaffari v Grabowski [2013] NSWCA 114 at [27] and Collier v Lancer [2013] NSWCA 185 at [20]." 26Although the application was not expressed to be made under s 46(4), the Court addressed it on the basis that it was. 27The application was expressed to be made under the three provisions of the Uniform Civil Procedure Rules referred to earlier. UCPR, r 36.15(1) permits a judgment or order of the Court to be set aside if the judgment was given or order made "irregularly, illegally or against good faith". Irregularity ordinarily requires some contravention of or failure to comply with the rules in relation to the entry of the judgment or order in issue and illegality or want of good faith usually involves wrongdoing or misconduct or dishonourable conduct which has occurred in relation to the obtaining of the relevant judgment or order. 28The second provision relied on is UCPR, r 36.16(2), which permits a judgment or order to be set aside if it is a default judgment or the judgment or order has been given or made in the absence of a party. Finally, the applicants rely on UCPR, r 51.5(1) which provides that a party to an appeal may not take any step in the appeal without first entering an appearance.

Disposition of the application 29The arguments made by the applicants to this Court did not identify any reviewable error of the kind to which s 46(4) is directed. Nor did they identify any irregularity, illegality or want of good faith which would justify the setting aside of the orders made by Ward JA. 30Oral submissions were made on behalf of the applicants by Elena and Liana Bobolas. An affidavit of Liana Bobolas sworn 8 April 2014 was also read and relied upon. That affidavit traversed a number of factual matters and issues which arose in the proceedings in the Land and Environment Court and, to a much lesser extent, in the proceedings before Ward JA. 31The matters dealt with in that affidavit include that Ms Mostafa's affidavit was not sufficient to prove service of Biscoe J's orders of 4 March 2014 because it did not attach a copy of what was allegedly served; that the applicants had not been properly served with the originating summons in those proceedings - in particular it was said that various affidavits of a process server, Mr Twigg, were false and could not be relied upon; that the Council relied upon an affidavit of Ms Silver in support of its application for substituted service, having previously indicated that it did not propose to do so; that the Council had not made serious attempts to negotiate a resolution of the current (longstanding) dispute; that the applicants have not been invited to residents' meetings called to discuss the subject of the removal of the waste; that there are objects in the outside areas of the property - such as bricks, hoses, garden tables and metal shelving as well as other items of sentimental or religious value - which are not waste; and that on earlier occasions in 2005 and 2009 when waste was removed, items of property - such as a Hills hoist and downpipes - were damaged. 32None of these matters reveals error on the part of Ward JA. To the extent that some were relevant to the exercise of the discretion whether or not to grant a stay, they were taken into account. The challenge to her Honour's finding as to the service by Ms Mostafa of a sealed copy of Biscoe J's orders is without any merit. So too is the suggestion that Biscoe J erred in finding that the summons in the underlying proceedings had been served in accordance with the orders for substituted service made on 9 August 2013, as extended by Pain J on 23 August 2013. That conclusion was made based on affidavits of Mr Twigg and Ms Mezinec, each sworn on 26 February 2014. Those affidavits proved that service had been effected in accordance with the orders for substituted service. They were read and relied upon at the final hearing before Biscoe J. The applicants did not attend and thus did not object to the tender of that evidence or challenge it, notwithstanding that the affidavits had been sent to them by express post on 26 February 2014. 33One of the grounds of appeal relied upon is that the applicants were denied procedural fairness before Biscoe J because he proceeded to determine the application in their absence. Ward JA considered, on the basis of the material before her, that an arguable case was not disclosed in relation to this ground. As her Honour observed, there was no evidence before Biscoe J that explained why the applicants had not appeared on 4 March 2014. Before her Honour the applicants maintained that there were unspecified medical reasons which explained their non-appearance before Biscoe J. It was not suggested that they had not appeared because they were not aware of the hearing date. Indeed, as her Honour records at [55], the course of the argument before her strongly suggested otherwise. On 20 December 2013 the applicants were sent by express post a letter advising that the hearing was fixed for 4 March 2014. On 26 February 2014 copies of the respondent's submissions and a chronology were served by affixing them to the front gate of the property. The letter enclosing those documents referred to the hearing on 4 March 2014. On 17 March, during the argument before Ward JA, it became apparent that the first applicant, Elena Bobolas, had a copy of the submissions and chronology because she addressed her Honour as to the correctness of the chronology and criticised some of the written submissions which had been made. 34The applicants' argument, in the various ways in which it is put, that the orders made by Ward JA were made "irregularly" is misconceived. First, it was said that Ward JA acted "irregularly" in not granting a stay in circumstances where the appeal "in some measure" was likely to prove nugatory if the stay was not granted. That outcome was said to be inconsistent with the correct application of the principles in Alexander v Cambridge Credit Corporation. That argument misunderstands the relevant principles, which are referred to above and which her Honour applied. 35Secondly, it was said that the orders were made "irregularly" because Ward JA had not fully considered the position of the applicants and in particular their potential liability for the cost of the clean-up, the risk of damage to their property in the course of the clean-up works and the fact that they had offered to undertake those works themselves. As the outline of her Honour's reasoning referred to above shows, contrary to this submission, each of those matters was taken into account. 36Thirdly, it was said that the proceedings before Ward JA were "irregular" because the Council had not filed an appearance at the time the oral argument before her Honour took place. That there may not have been compliance with UCPR, r 51.5(1) did not have the effect of invalidating any step taken by the Council in relation to that argument or, more significantly, the orders that her Honour made: see Civil Procedure Act 2005 (NSW), s 63(2). 37Finally, the applicants argued that the orders made by Biscoe J could not authorise the Council to enter their land in the absence of their permission, either as owner or occupiers. They relied upon s 200 in Part 2 of Chapter 8 of the Act. Her Honour did not consider this argument to have merit because that provision is concerned with the exercise by a Council of the power of entry conferred by s 191, whereas the question raised by the applicants was concerned with the width of the power of the Land and Environment Court to make an order under s 678(10). By that provision the Court may order the Council to exercise its function under s 678(1) which in this case was to carry out the work required by its earlier s 124 orders. The power conferred by s 678(10) undoubtedly includes ordering the carrying out of work on premises notwithstanding that the owners or occupiers may not have consented to the work or to anyone entering the premises. Such an order could not, of course, be made without joining those whose rights or interests would be directly affected by it, including, as in this case, the owner and any occupiers so affected: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524-526 (per curiam); John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [132]-[133] (per curiam). See also the discussion in Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[63] (per Leeming JA). 38Once made, the Court's orders also provided the Council with a defence of lawful authority to any claim for trespass: Ross v Lane Cove Council at [64]. It was not necessary for her Honour to consider whether the power to carry out work conferred on the Council by s 678(1) in the circumstances of this case necessarily included a power to enter property to carry out those works. The endnote to s 678 cannot affect the answer to that question as it is not part of the Act: Local Government Act, s 6. 39For these reasons we concluded that the application to discharge Ward JA's orders should be dismissed with costs.

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: 17 April 2014

Public Health Act 1991(NSW)

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