Stay
60The principles on which a stay of orders, pending an appeal, may be granted were confirmed by Hodgson JA in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130 as being those set out in Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685. There, the Court said that it is not necessary for the grant of stay that special circumstances be made out; rather, it is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in the applicant's favour (p 694). The Court noted that, prima facie, a successful party is entitled to the benefit of the judgment obtained and is entitled to commence with the presumption that the judgment is correct (citing with apparent approval what was said by Mahoney JA, with whom Moffitt P and Glass JA agreed, in Re Middle Harbour Investments Ltd (In Liq) Court of Appeal 15 December 1976 unreported at 2).
61In Alexander v Cambridge Credit Corporation, the Court (Kirby P, as his Honour then was, Hope JA and McHugh JA, as his Honour then was) noted that the onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all parties and that, in the exercise of its discretion whether or not to grant the stay, and if so as to the terms that would be fair, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. The Court noted that where there is a risk that the appeal will prove abortive if the appellants succeeds and the stay is not granted, courts will normally (my emphasis) exercise their discretion in favour of granting a stay and that where it is apparent that unless a stay is granted an appeal will be render nugatory, this will be a substantial factor in the favour of the grant of the stay. Further, the Court noted that, although courts approaching applications for a stay will not generally speculate about the applicant's prospects of success, this does not prevent a preliminary assessment as to whether the applicant has an arguable case, when considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties.
62In the present case, 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. That said, 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. What must also be taken into account are the grounds of appeal, the balance of convenience, and the terms on which any stay would be fair to all the parties.
Arguable grounds of appeal?
63The applicants contend that there are arguable grounds of appeal. In this regard, Ms Elena Bobolas placed reliance on the fact that, in her affidavit of 12 March 2014, she has affirmed that everything in the notice of appeal is true. That, however, is no more than an affirmation of her belief in the assertions of fact or opinions there espoused, akin to the verification of a pleading. It does not substitute for evidence of the particular facts by reference to which any one or more of the grounds of appeal are premised. This is particularly evident where some of the paragraphs in the grounds of appeal amount to no more than asserted conclusions.
64It must be noted that on an application for a stay, such as the present, it is not appropriate to make any final or conclusive finding in relation to the merits of the appeal but, as noted above, the court may take into account whether an arguable case is disclosed. I have already summarised the broad contentions on which the appeal is founded. I consider those below.
65As to the claims based on a denial of natural justice or procedural unfairness in the court proceeding to hear and determine the matter in the absence of the applicants on 4 March 2014, the evidence does not in my opinion disclose an arguable case.
66There was nothing before his Honour to explain the absence of the applicants, as Ms Elena Bobolas concedes (T 15.50). His Honour set out the procedural history of the matter before him, referring among other things to the sending by the Council by express post of the orders fixing the hearing date for 4 March 2014. His Honour further noted that, on 28 February 2014, the Council's chronology of events, list of documents, list of authorities and submissions in relation to the hearing were served on the applicants by the affixing of those documents in plastic pockets on the front gate of the premises.
67There had been appearances by the applicants on earlier occasions in the proceedings and it may well have been inferred that the applicants (who had made it clear that they had filed affidavits in the proceedings in relation to the issue of service under protest and without being taken to have entered an appearance in the proceedings) had chosen not to participate in the hearing of the matter.
68The medical certificates tendered by the applicants were not before Biscoe J at the time his Honour proceeded to hear the matter, so his Honour cannot have erred in failing to take them into account. Furthermore, the certificates are in such general terms as to deprive them of any real weight. Leaving aside the fact that the identity of the doctor is redacted (which would have made it difficult for the doctors' opinion to have been tested had the Council sought to have challenged any adjournment application based on the certificates), and leaving aside discrepancies in the dates of those certificates, the certificates are in very vague terms.
69Young J, as his Honour then was, noted in Forster v Harvey [2006] NSWSC 1112, a party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned. His Honour observed that "unfortunately medical certificates appear to be very easily obtained" and that it was "quite useless" for a person in effect to enclose a "common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination". Although that was a case in which there had been various delays based on such certificates, his Honour's comments indicate why little weight can be placed on an untested medical certificate of the kind now tendered by the applicants.
70In any event, as already noted, there can have been no denial of procedural fairness in his Honour proceeding to hear the matter in the applicants' absence when the position was that there was no explanation for their absence and his Honour could fairly have assumed that they were on notice of the hearing date (and it is not here suggested otherwise).
71Ms Elena Bobolas claims that the family was denied procedural fairness because it was denied the opportunity of putting forward information, submissions and evidence that would have had a bearing on the decision and/or orders of 4 March 2014. Ground 2 of the grounds of appeal refers in this regard to the Judicial Commission bench book and authorities concerning applications to set aside default or summary judgment on grounds including that judgment was obtained in the absence of a party.
72However, no application was made to Biscoe J to set aside the judgment and orders made in the absence of the applicants. (Ms Bobolas submits that this is because of the perception of bias on the part of Biscoe J, which I will deal with in due course.)
73The reference to part 36 r 16 of the Uniform Civil Procedure Rules in ground 2 of the notice of appeal was said by Ms Elena Bobolas as going to the application for a stay of the judgment. As I understand it, the applicants' submission in this regard is that the principles applicable in applications for relief under part 36 r 16 should be applied when considering the application for a stay. The applications are, however, of a different nature: the one, seeking to set aside a judgment so as to permit the claim to be contested; the other, seeking to stay the orders that have been made pending an appeal from the judgment.
74Had there been an application made to Biscoe J to set aside the judgment of 4 March 2014, the factors relevant to his Honour's consideration of that question would have included the reasons for the applicants' absence at the hearing on 4 March 2014 and the prospects of success for the applicants' defence of the Council's claim for relief.
75As to the reasons for the applicants' absence on 4 March 2014, more would have been required in my opinion than the vague certification of an unspecified medical condition (in the case of Elena and Mary Bobolas) and chest pain (in the case of Liana Bobolas), particularly if the Council sought to test the medical certificates by requiring the unidentified doctor for cross-examination.
76As to the apparent prospects of success in the defence of the Council's claim for relief, the evidence that Ms Elena Bobolas informed me, from the bar table, would have been able to be adduced was not evidence that went to whether there had been a failure to comply with the December 2012 orders. Indeed, it seems implicit in the submissions on the present application that the work required to comply with those orders has not yet been effected (though it is said that considerable work has now been done to clean up the property). Rather, the evidence that Ms Elena Bobolas said would have been induced included evidence as to the steps that had been taken to remove items from the back yard and as to the arrangements that have now been made, it is said, for the removal and/or storage of items from the property; as to the lack of responsibility of Ms Mary Bobolas for the storage the subject of the notices; as well as submissions as to the orders sought by the Council and as to the costs of the proceedings.
77In circumstances where the Council orders were issued in December 2012 and where the evidence before his Honour was that as at March 2014 there was an increasing (not decreasing) amount of material on the property (and the orders had not been fully complied with on any view of the matter), it is by no means apparent that if the Bobolas family had put forward evidence before his Honour to the above effect, there would have been any different result. In any event, the fact that this material was not before his Honour does not support an allegation that there was a denial of procedural fairness. I also note that the applicants appeared to have been in default of directions for the filing of evidence in defence of the claim at that time.
Disentitling conduct
78This ground of appeal, as I understand it, is predicated on a belief that the Council failed, or must have failed, to comply with the high duty of candour required of a "moving party" on an ex parte application (Ms Bobolas citing Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 to this effect).
79Ms Bobolas submits that the Council did not comply with this requirement because it cannot have drawn to his Honour's attention factual matters, such as the lack of an impediment if the applicants were to be closer than 10 metres from any operating machinery and trucks (which Ms Elena Bobolas maintained she had been told both by the Council's own subcontractor and by another contractor on the way to Court on 17 March 2014 was not dangerous), or legal matters such as the import of s 200 and s 193 of the Local Government Act (which it is submitted made the order for entry onto the premises and the use of force in unlocking or removing gates invalid). As to the latter, I consider this in the context of the challenge to the validity of orders below.
80As to the former, it by no means follows from what Ms Bobolas says was conveyed to her in discussions with unidentified contractors (as to the safety of being within 10 metres of operating machinery) that the Council must have failed in any relevant sense to comply with a duty of candour. There is nothing to suggest that the Council misled the primary judge as to the basis on which such an order was sought. There may well have been reasons why Council wished to ensure such a distance from the machinery in the present case. In any event, I was informed during the submissions by the Council that the Council does not intend to use machinery to effect the clean-up works (and gave those instructions on the basis that it would be bound by them), so it is difficult to see how this complaint would give rise to any basis for setting aside the judgment or orders that were made by his Honour.
81The applicants also make allegations relating to a particular affidavit from a process-server that the Council ultimately did not rely upon in seeking the relief from the primary judge. As to this, it cannot be said that the complaint by the applicants in relation to this affidavit was a matter not known to his Honour, since it was the requirement for cross-examination of the deponent of that affidavit had led to the adjournment to 9 August 2013. Moreover, it is not clear how the earlier reliance on such an affidavit would have deprived the Council from later maintaining its claims at the hearing on 4 March 2014.
82Complaint was also made that his Honour did not deal with the application by the applicants in their notice of motion heard on 26 July 2013 for an order under r 12.11(1)(f) for the protection of their property. Ms Elena Bobolas says that on 26 July 2013 his Honour had said "not yet" to that application but that his Honour did not address this in his final orders on 4 March 2014 and hence it is submitted that this issue cannot have been brought to his Honour's attention by the Council during the hearing on 4 March 2014. (As I understand it, reliance is also placed on this as indicating bias on the part of the primary judge.)
83In that regard, his Honour's ex tempore reasons on 26 July 2013, though brief, make it clear that his Honour did address the application for an order under r 12.11(1)(f) at that stage and that his Honour was not satisfied that any case had been made out for such an order ([8]). It is not the case, therefore, that there remained, as at 4 March 2014, any outstanding application for such an order.
84The allegations based on disentitling conduct therefore do not give rise to an arguable case on appeal for the setting aside of the judgment and orders made by his Honour.
Validity of orders/exercise of discretion in relation to content and scope of orders
85Complaint was made almost seriatim as to the orders made by his Honour. Ms Elena Bobolas submitted that the orders made were beyond the scope of the Council and beyond the jurisdiction of the Land and Environment Court; and that they were too broad, too general, oppressive and excessive. Ms Liana Bobolas made similar submissions.
For the most part, the complaint went to the perceived inappropriateness, oppressive or excessive nature, or vagueness of the orders made, the appeal from which would require that there had been a miscarriage of his Honour's discretion in the House v R [1936] HCA 40; (1936) 55 CLR 499 sense. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], it was noted that an appeal from a discretionary decision of the primary judge lies where it is established that the decision maker has made an error of legal principle or has made a material error of fact, has taken into account some irrelevant matter or failed to take into account, or has given insufficient weight to, some relevant matter, or hasarrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
86I am not persuaded that the criticisms or complaint made as to the relevant orders discloses an arguable case for appellate intervention on the exercise of his Honour's discretion as to the particular relief granted by his Honour.
87Complaint was made as to the order permitting a structural engineer employed by the Council to enter and remain on the premises (order 3), said to be indicative of the likelihood of structural damage from the proposed works and because it did not identify the particular person nor state that the person be a licensed contractor or one of "good record". It was submitted that orders 7 and 9 were excessive, in that insufficient time had been allowed for the applicants to remove the items; no safe place had been stipulated in the yard as storage for pot plants; the works would require the digging up of glass platforms embedded in the ground; and that not all items in the front yard could be deemed to be waste. Ms Liana Bobolas made reference to works of art (sculptures) and other items on the premises that were of value and submitted that not all of those could be expected to be stored inside the house. Complaint was made that the orders required the removal of immoveable items.
88Complaint was made as to order 9A (which permitted the cutting of vegetation of the premises, if reasonably required to facilitate the clean up works) on the basis that it was vague. Complaint was made as to order 10 (which permitted the removal of motor vehicles outside the premises in certain circumstances) on the basis that the applicants have no motor vehicle and this would put them to expense in notifying their neighbours as to the restriction or in otherwise having to bear costs related thereto. Complaint was made as to the order requiring the applicants not to impede or obstruct the works on the basis that it was vague (Ms Elena Bobolas suggested that this order might preclude, or be said by Council to preclude, even the making of oral communications by the applicants with the Council workers on the premises.)
89Complaint was made as to the granting of liberty (order 11) to the Council to apply on 24 hours' notice for the purpose of extending the time to clean up the property as being evidence of bias because there was no similar liberty granted to the applicants to seek an order confining the time for the cleanup of the property. Bias was also said to be evident from the fact that the Council had been permitted 5 days in order to clean up the works in order 2 but that the applicants had only been allowed, in effect, 3 days in order to remove items of value.
90Insofar as the complaints made by the applicants, as to the relief that had been granted, went to the exercise of discretion on the part of his Honour, it is difficult to see that there are any real prospects of success.
91The other kind of complaint as to the orders went to their validity. In particular, complaint was made as to order 5 as permitting the Council and agents during the clean up works "to forcefully unlock and remove any gates on the premises", as being inconsistent with ss 200 and 193 of the Local Government Act. (This was also said to be evidence that the Council had not properly drawn to his Honour's attention those matters or of a lack of awareness of those provisions or bias by his Honour.) Complaint was also made that the orders following order 1 went beyond the power of the Court as extending to works not required to be done by the s 124 notices themselves.
92Insofar as this complaint relates to the effect of the orders operating from 17 March 2013 being to "truncate" the 28-day time for an appeal, there is no basis for a suggestion that his Honour did not have power to make orders operating from the time that his did. As to the submission that order 1 only permitted work that each of the applicants was required to do and that subsequent orders went beyond this and therefore were beyond the jurisdiction of the council order, the ancillary orders were in my opinion intended to address issues that might arise in the carrying out of the works and it is not reasonably arguable that they were beyond power.
93It is submitted that bias is evident from the orders being "pro Council's point of view" and from the fact that there was not compliance with Court rules on service and extension of time (in that his Honour "did not seem to understand that an extension of time must be sought by way of notice of motion").
94As to the criticism of the form of the orders and the timing of the notice of orders before the work, the Council submits that it can be seen from his Honour's reasons that his Honour had a significant concern in relation to occupants and neighbouring properties in relation to the health and fire risk caused by the state of the premises. I agree. As to the criticism of the ancillary orders that related to the use of machinery, the Council informed this Court, through its senior counsel, that it had no intention to use machinery; would do all of the works by hand; and that it regarded itself as bound by that intimation or undertaking.
95As to the validity of the order on Mary Bobolas, the Council notes, and I accept, that the legislative table identifies the recipient of a 22A order as an owner or occupier, and should be read as using "or" in the conjunctive sense, such that there can be orders directed to each family member in her respective capacity as owner or occupier (or both). Insofar as it is asserted that Ms Mary Bobolas is not "storing" anything on the premises, but it was conceded that she was the owner of half of the premises, that in my opinion is sufficient to permit an order to be served on her. As an owner or part-owner of the premises, it would be open to her to have required the removal of property if brought there by others. (Moreover, this submission is inconsistent with the submission that the Council had exacerbated her psychological problem by removing items from the property, which implicitly recognises an involvement by Ms Mary Bobolas in the collection and/or storage of the items).
96The submission that the orders made are invalid by reference to ss 200 or 193 of the Act or that his Honour misunderstood or was not aware of those provisions; or that there was a lack of candour by the Council in not drawing his Honour's attention to those provisions) is not arguable. Biscoe J in Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 (at [54]-[56]) explained the interrelationship between s 678 and Part 2 of Chapter 8 of the Act, in which ss 193 and 200 are to be found, and noted that those provisions did not limit the power of the Land and Environment Court to make an order under s 678(10), concluding at [56] that:
In the result, if a council wishes to enforce an order that it has made under the Local Government Act 1993 s 124 in the way prescribed by s 678(1) and if enforcement requires entry onto premises being used for residential purposes, then, unless one of the specified exceptions to s 200 applies, council can only do so by obtaining an order of this Court. The legislative intention is to provide special protection in this way in the case of residential premises.
97Reliance on this passage by Pain J, in the previous Bobolas proceedings in the Land and Environment Court, was noted by McColl JA, without any apparent disapproval at [18] of her Honour's decisions. There is no basis for the assertion that his Honour misunderstood the relevant provisions.
Bias
98As to the grounds of appeal based on allegations of bias (or the like) on the part of the primary judge, which bias is said to have been from "the first instance", again I am not persuaded that there is any arguable case shown on the material before me.
99The applicants point to the following: the decision of his Honour to hear the matter in their absence (explicable in my opinion by their lack of attendance, in circumstances where they had previously attended court proceedings on 26 July in connection with their own application for declaratory relief as to the lack of service, and lack of any explanation for their lack of attendance); that in his Honour's reasons his Honour referred to there having been "no evidence" filed by the respondents (whereas Elena and Liana had affirmed the 2013 affidavits referred to above, which had been filed in the proceedings); that his Honour on 26 July 2013 had dealt with the Council's application before their own, although theirs had been filed first; that his Honour had permitted weight to be placed on an affidavit of service sworn by a Ng Saad on 26 February 2014, almost one and half or two years after service of the documents (and thus said not to have been "fresh" or "current"); and the terms of the orders themselves, which the Bobolas family maintain are vague, excessive, inappropriate, unfair and which the applicants submit were "pro" the Council's position.
100None of those matters seems an available basis for a finding of apprehended or actual bias on the basis of the primary judge. I summarise the test in that regard later in these reasons, in connection with the submission made at the conclusion of the submissions in reply by Ms Elena Bobolas of apprehended bias on my part.
101As to the applicants' unexplained absence on 4 March 2014, his Honour's recitation of the procedural history discloses the steps taken by the Council and the Court to notify the applicants of dates on which matters were to be before the Court. It is not the case, as Ms Elena Bobolas suggested on this application (T 20.40), that on every occasion when there was no appearance by the applicants, they had not been notified of the relevant court date.
102On 26 July 2013, Biscoe J (having dealt with the applicants' notice of motion seeking a declaration that the summons had not been served on them) stood the matter over to 9 August 2013 in order to permit the applicants the opportunity to cross-examine a process-server on whose evidence the Council had relied in support of its substituted service application. There was no appearance by the applicants on 9 August 2013 and I can find no explanation for that in the evidence before the Court on this occasion.
103Similarly, it appears that there was an appearance by the applicants at a directions hearing on 22 November 2013 at which the timetable for the proceedings was again extended in circumstances where the applicants said that they had not been served with the relevant documents. This directions hearing apparently followed service by express post by the Council of notification of the orders; a procedure also apparently followed in relation to the 4 March hearing.
104His Honour's decision to proceed in the absence of the applicants on 4 March 2014, when the history of the matter is taken into account, does not disclose bias nor would an informed fair-minded lay observer reasonably apprehend bias from that fact.
105As to the statement by his Honour that "no evidence" had been filed by the applicants (at [30] of his Honour's reasons), read in context of his Honour's reasons as a whole this appears to be a (correct) statement that no evidence had been filed in response to the directions made in November 2013 for the filing of evidence, to which directions his Honour had earlier referred when recounting the procedural history of the matter.
106The affidavits to which the applicants point as having been filed in the proceedings were not affidavits that went to the issue of compliance or otherwise with the s 124 orders; they were affidavits (filed under "objection" "protest" and "duress") deposing to the lack of personal service of the summons and alleging fraud and perjury by the process-server on whose evidence the Council was relying for its application for an order for substituted service. No finding of bias or apprehended bias could reasonably be made based on the reference in his Honour's reasons to "no evidence" having been filed.
107As to the order in which matters were heard by his Honour on 26 July 2013, I do not have the benefit of a transcript of the proceedings on that occasion. However, the reasons given by his Honour on that occasion Waverley Council v Bobolas [2013] NSWLEC 119 address the applications in the order in which the applicants now contend they should have been addressed. The order of filing applications for interlocutory steps in the proceedings does not determine how a judge, in the conduct of the hearing of those applications, should hear the matters then before him or her; and a case management decision of that kind could not reasonably give rise to an apprehension of bias on the part of his Honour.
108As to the submission that reliance on Mr Saad's affidavit of service demonstrated bias (because there was nothing in the reasons to indicate that his Honour had considered that less weight should be accorded to it having regard to it having been sworn some time after the event - see T 42.2), it was not necessary for his Honour to include in the reasons every argument that might have been addressed by the applicants had they been in attendance at the hearing. The mere fact that the affidavit was sworn after, even some time after, the event would not require his Honour to reject or disbelieve that evidence. It was evidence that, in the circumstances in which his Honour came to deal with the matter, was unchallenged.
109As to the submission that the terms of the orders themselves evidence bias on the part of the primary judge, such a submission is not arguable in circumstances where the primary judge did not have the benefit of any submissions by the applicants as to the proposed orders and, on the face of the orders, they are not unreasonable orders to make in anticipation of issues that might arise in effecting the works required in compliance with the s 124 orders.
110Complaint was also made that the Council's summons had been served out of time (to which it is said objection was made on 26 July 2013 when the applicants were present before his Honour) and that an extension of time was later granted without any notification to the applicants (it being suggested that no notice of motion seeking that extension may ever have been filed and that this was also evidence of bias by his Honour).
111This complaint relates to the principal issue raised by the applicants at the 26 July 2013 hearing of their notice of motion: their contention that they had not been personally served with the summons by the date specified on the summons. According to the procedural history of the matter set out in his Honour's reasons, on 23 August 2013, Pain J extended the date for service of the summons to 6 September 2013 and the return date for the summons to 20 September 2013. This followed the non-appearance of the applicants at the 9 August 2013 resumption of the hearing of the Council's motion for substituted service.
112The making of orders by Pain J on 23 August 2013 can hardly demonstrate bias on the part of Biscoe J. In any event, the making of orders for an extension of time for service of the summons (particularly in light of the history of the matter at that point) without the requirement for a notice of motion to be filed cannot arguably be said to give rise to a reasonable apprehension of bias on the part of an informed fair-minded observer. Orders of that kind are matters within the discretion of the court in its day to day case management.
113In essence, Ms Elena Bobolas submits that paragraph [33] of his Honour's reasons establishes that his Honour was biased because there was no input from the family as to what was and was not relevant in relation to the making of the orders. That submission broadly encompasses the various matters to which I have already referred. I am unable to conclude that there is an arguable case that the findings of his Honour at [33] indicate actual bias or any basis for a reasonable apprehension of bias.
Conclusion as to arguable case
114For the reasons set out above, I consider that there not is an arguable case on appeal. Indeed, if I were to assess the prospects of the appeal I would rate them as very slim. I turn then to consider the balance of convenience.
Balance of convenience
115Ms Elena Bobolas asserts that it is unfair to obstruct her family from the 28 day period allowed for an appeal from the orders of the Land and Environment Court, which she maintains is the effect of the terms of the Land and Environment Court orders by permitting the works to commence on 17 March 2014 (within 28 days of the orders).
116As any prejudice that will be suffered if a stay is not granted, Ms Elena Bobolas refers to the costs for which the Council may seek to hold the applicants liable for effecting the works. Ms Elena Bobolas submits that there will be no prejudice to the Council if the stay is granted, on the basis that she maintains that the Bobolas family will undertake to remove the items within a month (although this timeframe was variously put by her as a month, by Ms Liana Bobolas as "within a month" or about a month, or a month to two months; and by Ms Mary Bobolas as two months). Ms Elena Bobolas also referred (from the bar table) to discussions she said she had had with the general manager of the Council in which she said that he had agreed to a one month time frame not being excessive for the removal of the items on the property. The Council cannot be said to have accepted that proposition.
117Much weight was placed in oral submissions on the "massive" or "extensive" damage that it is said was sustained on the last occasion when the Council removed materials from the premises and the manner in which the Council had done so; those submissions including that the Council had itself exacerbated Ms Mary Bobolas' psychological problem in relation to the storage of the items on the premises by having "taunted" her when materials were last removed by the Council.
118Complaint was also made that the Council had convened public meetings about the Bobolas family and had deliberately excluded them from those public meetings; and that Council had obstructed arrangements made by the Bobolas family for the removal of the items to a storage container.
119Reference was made by Ms Elena Bobolas to the decision in Warringah Council v Ulrich [2012] NSWLEC 234, where Pepper J was satisfied that Mr Ulrich had failed to comply with s 124 orders issued by Warringah Council but made orders requiring Mr Ulrich to remove items from particular areas within particular periods (three months in most cases but six months in the case of a fallen dead tree and its limbs). In that case, her Honour also ordered that, if there was non compliance with certain orders, within the times specified, then the council was to enter the land and give effect to those orders or parts thereof that had not been complied with by the respondent. It should be noted that in that case, there were also orders made requiring Mr Ulrich during the three month period to carry out repair and other works at the premises, to maintain cleared paths at designated areas of the premises, and restraining Mr Ulrich from, among other things, storing or putting or placing articles in designated areas. Relevantly, her Honour noted that the orders that had been proposed by the council in that case had been (albeit reluctantly) agreed to by Mr Ulrich ([89]), though there were some further submissions by each of Mr Ulrich and the council as to the final form of the orders to be made.
120The longer period of time thus effectively allowed for the removal by Mr Ulrich (under compulsion) of items from the premises does not assist the Bobolas family in that the kinds of orders considered appropriate in order to effect compliance with s 124 orders may vary from case to case. The precise orders to be made will fall within the exercise of the particular judge's discretion. In Mr Ulrich's case, there had been at least a measure of agreement with council as to the particular orders. In the present case, there has been no such agreement.
121The applicants maintain that they want an opportunity to remove the items themselves. In the Ulrich case, the orders for removal of items were made even though it was agreed between the parties that Mr Ulrich had made some recent progress in cleaning up the premises ([24]), her Honour being satisfied on the evidence before her (and from a site visit) that the state of the premises was causing, and likely to cause, a threat to public health (there referring to the emission periodically of foul odours, the presence of rats and mosquitos and the presence of material that amounted to a demonstrable fire hazard ([93]).)
122Ms Elena Bobolas submits that the prejudice to the applicants if the Council carries out does the work is that this will exacerbate the psychiatric problems suffered by her mother; that it will not resolve the problem in the long term (as opposed to the resolution that it is submitted will be achieved if the family is permitted to remove the items itself); and that they will be prejudiced as they will incur the costs of the Council doing the work.
123When pressed as to the estimate of time that it would take to remove items of value from the premises (as opposed to the time for completion of the whole of the works), Ms Elena Bobolas informed the Court that it would take more time if all that were to be removed were items of value (apparently because of the time required to be taken in order for Ms Mary Bobolas to be consulted and to determine whether she wanted to keep particular items or not; and because some items of value may have been hidden under boxes).
124As to the balance of convenience, Council places emphasis on the finding that this is a public health issue and notes that the Bobolas family has in effect already been allowed time to retrieve items of value, though no submission was made against the prospect that a further limited period of time might be allowed.
125Ms Bobolas submits that the there could not be urgency in relation to any public health issues since the Council had served the notices in December 2012 but not filed proceedings until 19 June 2013, some 5 months after the time for compliance and that this was not indicative of the belief by the Council of any urgency.
126In that regard, the procedural history of the matter and the previous proceedings indicates that the Council has been attempting to obtain orders permitting it to remove items of waste from the premises from as long ago as 2010. Some of the delays in that process have not been due to fault on its part (see for example, the delays to which McColl JA referred in the previous appeal proceedings). In my opinion, it cannot be inferred, from the timing of commencement of the proceedings or from delays in the conduct of the proceedings, that the Council does not perceive there to be a significant ongoing risk to public health that needs to be addressed. Biscoe J was of a similar view having regard to the findings in his judgment.
127As to placing value on the cessation of the problem, it was submitted by Ms Bobolas that a much better solution from a long term point of view would be to permit the Bobolas family to remove the items, since that would resolve the problem for the future. Each of the applicants claimed that the items could be removed within one or two months. When I asked how long it was estimated it would take for the applicants to remove items of value, I was informed that this would take longer (in effect, as it would be necessary to go through everything for it to be determined what was of value). The difficulty with such a submission is that there is no basis on which I could conclude that if the Bobolas family were now to comply with the s 124 orders this would have the consequence that there would be no further problems with storage of items on the premises of the kind that has been experienced to date.
Conclusion as to balance of convenience
128His Honour made clear findings as to the public health risk of the premises in their present state. That is a powerful factor tending against the grant of a stay. The prejudice to which the applicants point as to potential damage to the property can be met by appropriate relief if the damage eventuates. The family has had ample opportunity to remove items of value.
129Furthermore, the onus is on the applicant for a stay to demonstrate that it will operate fairly to all parties. In the present context, I am of the view that this requires that any stay must be on terms that it meets adequately the public health interest in not having a continuing health risk at the premises. There are two ways in which this factor might be addressed: imposing as a condition of the stay a requirement that the works be carried out within a particular time (which is in effect what the applicants urge me to do) or discharging the stay with effect from a date in the near future such that the carrying out of the clean-up works is not in doubt but there is a final opportunity for the applicants to remove any items of value.
130In view of the history of the matter, to which I have been taken by Ms Bobolas briefly and which is apparent from the reasons of the primary judge and the previous proceedings in this Court, I consider that the latter is the appropriate course.