Bobolas v Waverley Council

Bobolas v Waverley Council - [2015] NSWCA 216 - NSWCA 2015 case summary — Zoe

Judgment

HER HONOUR: On 13 July 2015, Basten JA dismissed a notice of motion, filed by the applicants on 8 July 2015, and directed that the costs of the motion be costs in the appeal.
The notice of motion filed on 8 July 2015 contained nine paragraphs. Paragraph 2 sought a stay of orders made by Sheahan J in the Land and Environment Court on 24 April 2015.
During the course of the hearing before Basten JA, the parties came to an agreement that the respondent, Waverley Council (the Council), would not, prior to the determination of the appeal from Sheahan J's orders, pursue the demolition order and the safety order which dealt with the garage and with vegetation on the applicants' premises (the premises), apparently being an overgrowth of vegetation from a neighbouring property. What remained in contest before his Honour was that part of the orders made by Sheahan J relating to removal of waste on the premises and the order requiring the occupants to cease to accumulate further waste on the premises.
By notice of motion filed 17 July 2015 which was supported by an affidavit of Steve Bobolas sworn 16 July 2015 and Elena Bobolas, also sworn 16 July 2015, the applicants seek an order to set aside part of Basten JA's orders.
The notice of motion also makes reference to actions proposed to be taken by the Council in relation to the back verandah of the premises, which the applicants contend are not authorised pursuant to the orders made in the Land and Environment Court. I have been informed by counsel for the Council that nothing has been nor will be removed from the back verandah. I take that as a statement as to the present position pending the appeal. The issue of whether the orders made by Sheahan J extend to the back verandah therefore is not something that I presently need to be concerned with.
The present application was made pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15, 16 and 17. Rule 36.15(1) provides that: "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."
Nothing has been advanced that the orders of Basten JA were so made, except perhaps to the extent that the applicants seek to bring within that part of r 36.15, relating to an order or judgment irregularly made, parts of the notice of motion which the applicants contend were not dealt with by Basten JA. I return to that issue below.
UCPR, r 36.16 provides, relevantly, as follows: "36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. … (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
Rule 36.16(1) does not apply in the present circumstances. I presume that the applicants sought to proceed under r 36.16(3A).
UCPR, r 36.17 provides that: "36.17 Correction of judgment or order ('slip rule') If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."
No clerical error or accidental slip or mistake has been referred to and I see nothing in r 36.17 which applies to this case. The only question, therefore, is whether pursuant to either r 36.15 or r 36.16(3A) the orders made by Basten JA ought to be set aside.
I will deal first with the argument that it is possible that Basten JA's judgment and orders were irregularly made because they did not deal with each paragraph of the notice of motion filed on 8 July 2015. An application making those assertions would fall within either r 36.15 or r 36.16(3A).
The applicants contend that Basten JA did not deal with proposed order 4 sought in the notice of motion, being an order protecting their property from the Council until the appeal was heard under UCPR, r 12.11 and any other applicable law protecting property.
UCPR, r 12.11 is headed "Setting Aside Originating Process etc". It contains a number of subrules including, relevantly: "(1) In any proceedings, the court may make any of the following orders on the application of a defendant: … (f) an order protecting or releasing: (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought …"
Basten JA did not expressly deal with UCPR, r 12.11. However, in circumstances in which his Honour refused a stay, it would have been inconsistent for him to have made an order in favour of the applicants under r 12.11. The provision of that provision, therefore, would not have resulted in any favourable result to the applicants and, accordingly, I do not see that that is a basis upon which to reopen or to revisit Basten JA's orders.
Complaint was also made that his Honour did not deal with proposed order 3 of the notice of motion filed 8 July 2015, by which the applicants claimed relief pursuant to s 200 of the Local Government Act 1993 (NSW). However, as is apparent from [11]-[13] of his Honour's judgment, s 200 was dealt with.
The applicants also adduced evidence of their own attempts to clean up the premises. Ms Elena Bobolas gave evidence in her affidavit that she had made arrangements for the rubbish to be picked up by the Council's free pick up service and that despite having made those arrangements, the Council did not abide by them. I have been informed that the goods, which were placed for picking up upon the verge outside the applicants' premises, were greater in bulk than that which is allowed as part of the regular Council pick up and also included some items which did not comply with the Council's specifications for its service. That is not a matter upon which I have any evidence. In those circumstances, although I may have been able to take into account the work that has been done by the Bobolas' in seeking to remove rubbish from their premises, the matters raised were not sufficient to warrant revisiting Basten JA's judgment.
Complaint was also made about damage to heritage bricks on the driveway of the premises. I do not believe that was raised before Basten JA and it is therefore also not a reason to revisit his Honour's judgment.
The applicants further submitted that they had relied upon ss 193, 194 and 678 of the Local Government Act during the course of oral argument before Basten JA and that his Honour had failed to deal with their claims under those sections. Section 193 deals with notices of entry and requires notice to be given to the owner or occupier of premises prior to the exercise of a power of entry pursuant to the Local Government Act. These matters have all been covered by court order. If there is some error in the court's order and/or if the orders, if made, were not permitted by s 193 then that is a matter that can be raised on appeal.
Finally, I should also indicate that the applicants contend that the Council had not given proper notice in accordance with the orders made by Sheahan J. However, Mr Jacobus Fredericus Schilt in his affidavit sworn 20 July 2015 stated on oath that he had given notice on 14 July 2015, in compliance with the court's order, of the intention to take action today in relation to clearing rubbish from the premises.
Ms Elena Bobolas, who has appeared on her own behalf today, has also stated that she does not believe that Mr Schilt is telling the truth. She stated that the applicants did not receive the notice. Nevertheless, I accept the evidence of Mr Schilt.
I should perhaps mention that Ms Elena Bobolas has reminded me that she sought an adjournment of the notice of motion this morning because her sister has been arrested and her mother has remained on the premises whilst the Council is there so that she can witness what is occurring. I did not grant that adjournment. However, had I done so, the position today would have been that the orders of Basten JA would have remained in force.
In my opinion, Ms Elena Bobolas, by her notice of motion, which I might indicate has been filed on behalf of each of the applicants, has not demonstrated any grounds for setting aside Basten JA's judgment or orders.
That leaves the question of Ms Bobolas' complaint as to the costs order made. She has pointed out that the usual order for costs in the Rules is that costs follow the event and that the applicants were partially successful on their motion before his Honour because the Council agreed for a stay of two aspects of the order, and the only matter that remained in contest was in respect of the removal of the rubbish.
Costs are in the discretion of the court: s 98 of the Civil Procedure Act 2005 (NSW), and whilst s 42(1) provides that the usual order is that costs follow the event, that is subject to any other order of the court. I note that his Honour did not make an immediate order for costs, but directed that the costs of the motion be costs in the appeal. That thereby allows the question of the costs of the notice of motion before him to be determined on the hearing of the appeal. There was no error in the exercise of his Honour's judgment.
The order that I make today, therefore, is that the notice of motion filed on 17 July 2015 is dismissed with costs.

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