Bobolas v Waverley Council

Procedural history of the litigation at first instance

1. The orders were not complied with. Rather than prosecuting for an offence contrary to s 628, the Council commenced civil enforcement proceedings in the Land and Environment Court in June 2013 against each of the appellants, seeking relief under s 678(10) of that Act. Standing to seek an order to remedy a breach of the Act (including breach of an order under Ch 7 Pt 2) is conferred on a Council by s 673. Section 678 relevantly provides: "678 Failure to comply with order - carrying out of work by the council (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. ... (6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned. ... (9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628. (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."
2. Subsection 10 was inserted in 1994 by the Local Government Legislation (Miscellaneous Amendments) Act 1994 (NSW). Of it the Minister said: "The proposed amendment to allow the Land and Environment Court to direct a council to carry out works where a person fails to comply with an order is intended to have the effect of avoiding contempt proceedings, which do not achieve the desired result" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 May 1994).
3. Council's summons sought three substantive orders: a declaration that its 22A order had not been complied with, an order that the Council enter the property and undertake such works as were reasonably required to comply with the 22A order, and an order that the appellants pay the reasonable expenses incurred by the Council in the execution of that order. It will be seen that the second order was supported by s 678(10). If such an order were made then s 678(6) would create a debt which the Council could recover. However, the third order sought by Council went beyond s 678(6), and sought an order from the Court that the appellants pay the Council's expenses.
4. The proceedings commenced by the Council were in Class 4 of the jurisdiction of the Land and Environment Court. Section 20(1)(d) of the Land and Environment Court Act 1979 (NSW) allocates proceedings under s 673 of the Local Government Act to that class. The consequence which is relevant for present purposes is that s 58 of the Land and Environment Court Act confers a right of appeal to this Court upon a party who is dissatisfied with an order or decision of the Land and Environment Court in such proceedings. Leave to appeal is required if the order be interlocutory, but it was not suggested that the orders made were interlocutory.
5. The matter came before Biscoe J on an application by the appellants. Among other relief, they sought orders pursuant to r 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) to set aside the Council's summons or its service. The Council in turn had filed a notice of motion seeking orders for substituted service of the summons.
6. On 26 July 2013, his Honour made a declaration that the summons had not been served on Elena or Liana (Waverley Council v Bobolas [2013] NSWLEC 119) and stood over the Council's notice of motion to enable the appellants to cross-examine the process server upon whose affidavit of service the Council had relied.
7. On 9 August 2013, there was a further hearing in relation to the Council's application for substituted service. There was no attendance by the appellants on that occasion. His Honour made orders for service of the summons by way of affixing it to the front gates of the property and by posting it to the address of the property, as well as an order that subsequent service of documents in the proceedings could be effected by posting the documents to the appellants at the property: Waverley Council v Bobolas (No 2) [2013] NSWLEC 130.
8. There were subsequent orders made by the Land and Environment Court extending the time for service of the summons (to 6 September 2013) and fixing a return date of 20 September 2013 and directions hearings took place on that date and on three occasions thereafter. The appellants seem to have attended only one of those directions hearings (on 22 November 2013). On 20 December 2013, the proceedings were listed for hearing on 4 March 2014 and an order was made for the appellants to file and serve any points of defence, cross-claim and affidavits by 3 February 2014. No defence or cross-claim was filed by them and the only affidavits they filed were those relating to the dispute as to service of the summons.
9. The appellants did not appear when the matter was listed for hearing on 4 March 2014. His Honour heard the matter in their absence and made the orders from which they now appeal on that day. His Honour gave ex tempore reasons for his decision to grant the relief sought by the Council: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16. His Honour noted (at [7] to [30] of his reasons) the procedural history of the proceedings.
10. His Honour was satisfied that the s 124 orders had been properly issued and served on the appellants, that when the orders were made the waste was causing or likely to cause a threat to public health or the health of any individual, and that the waste continued to cause or was likely to cause a threat to public health or the health of any individual: at [31]-[33]. At [33], his Honour said: "[T]he evidence establishes that at the time the orders were issued and continuing to the present time a large amount of waste, including putrid and offensive smelling waste, had accumulated at the premises. The waste has not been removed from the premises and has further accumulated. The premises are within a residential neighbourhood with residences on either side and opposite the premises."
11. His Honour noted that a senior Council officer (Mr Schilt) had attended the premises on 27 and 28 June 2012, 24 January 2013, 18 July 2013 and 25 February 2014, that Mr Schilt had observed that the waste and rubbish had increased significantly over this time and had said that in February 2014 it was the worst that he had seen since commencing employment with the Council in mid- 2006. His Honour continued (at [33]): "In the opinion of Mr Schilt, which I accept, at the time of issue of the orders and continuing to the present time waste and rubbish at the premises is causing or is likely to cause a threat to the health of the occupants of the premises and the neighbouring properties, is a potential public health risk generally, and is a potential fire risk both to the premises and neighbouring properties. On 27 and 28 June 2013 Mr Schilt observed pooling water and smelt stagnant water containing a slurry of decaying vegetation and on both occasions smelt an unpleasant odour coming from the premises. Ms Silver, a neighbour, attests to the accumulation of rubbish and garbage and to having smelt a disgusting odour of rotting garbage coming from the premises, particularly in the hot summer months."
12. As well as ordering that the Council execute its functions under s 678 of the Local Government Act by carrying out the work which was required under the s 124 orders, his Honour made various orders in relation to the manner in which the said works were to proceed. His Honour did not make the declaration or the costs order sought by Council in its summons, but did order that the appellants pay the Council's costs of the proceedings.

Procedural history of the appeal

1. On 14 March 2014 the appellants commenced proceedings in this Court seeking an injunction to restrain the Council from carrying out work on the property and a stay of the orders made on 4 March 2014. They denied that the orders had been served at the premises as required by the 4 March 2014 orders. The Council maintained that service of the orders had been effected at the premises on 11 March 2014.
2. A stay of the orders was granted on an interlocutory basis on 14 March 2014: Bobolas v Waverley Council [2014] NSWCA 66. That stay was subsequently discharged with effect from 7 am on 31 March 2014: Bobolas v Waverley Council [2014] NSWCA 78. By that time, the time specified in the 4 March 2014 orders for the carrying out of the work had expired. The Council sought and obtained amendments to the orders to permit the carrying out of the work at a later time: Waverley Council v Bobolas (No 4) [2014] NSWLEC 35.
3. The appellants are self-represented. The principal relief sought in the notice of appeal is for the orders and decisions of the Land and Environment Court on 4 March 2014 to be set aside and dismissed. As Council has noted, the order under s 678(10) has been performed. However, counsel for the Council acknowledged during the hearing that there was continuing utility of the appeal by reason of the debt created by s 678(6).
4. The notice of appeal includes 10 handwritten pages containing 78 numbered paragraphs purporting to state grounds. The 79th (and last) paragraph states "There are other grounds". The appellants have filed no written submissions in support of their appeal, despite the provisions of the rules, and directions made by the Court's Registrar on 21 May 2014, 25 March 2015, 22 April 2015, 20 May 2015, 8 July 2015 and 16 September 2015.
5. The Court issued notices on 15 October 2014, 11 March 2015, 22 June 2015 and 19 August 2015 requiring the appellants to show cause for the various non-compliances; the record does not disclose the outcome of those notices. The Court prepared the appeal books for the appellants, and directed them, on 8 July 2015, to advise if they had any objections or additions to the documents included. No such objections or additions were advised.
6. On or around 19 August 2015 an amicus was appointed. Ms Stephanie Patterson, of counsel, in accordance with directions made on that date, provided written submissions which may fairly be described as comprehensive and discerning. Those submissions summarised the grounds of appeal into categories. In relation to some categories, she advanced submissions, by reference to the evidence and authorities, in support of the grounds. In relation to other categories, indeed the majority, she either disavowed the grounds entirely (including that the primary judge was biased and that the process server had given perjured evidence), or simply referred to the material which related to the grounds.
7. The Council supplied written submissions on 13 October 2015 which responded to those of the amicus. In large measure, it adopted those aspects of the amicus' submissions which were neutral, and responded substantively where the amicus had made a positive submission.
8. In other circumstances an unexplained and persistent failure to take steps to prosecute an appeal, especially where the orders appealed from have been performed, would be apt to result in the appeal being dismissed summarily. In the circumstances of this case, where there has been an exchange of written submissions between the amicus and the Council, the appropriate course is to deal with the matter on its merits. The course taken in the unusual circumstances of this appeal should not be taken as precluding a more summary course being taken in other cases.
9. In the course of the hearing today we heard oral submissions from the amicus to which counsel for the Council responded. Thereafter for slightly more than an hour the Court heard oral submissions from both Ms Elena and Ms Liana Bobolas.
10. It would not assist to reproduce the 78 (or 79) grounds of appeal. The amicus has categorised the issues raised in the grounds of appeal as broadly falling within 12 categories (although she fairly observes that some grounds are expressed with such generality that it is not possible to identify to what particular issue or issues they go). The categories are as follows: 1. whether the s 124 orders were invalid, should not have been issued or were unreasonable (grounds 8, 21, 45, 47, 49, 50, 51, 54 and 68 to 69); 2. whether the s 124 orders were served on the appellants (ground 20); 3. whether there were errors in the manner in which the Court below dealt with the appellants' 12 July 2013 notice of motion (their complaint being that it was not "fully ruled on") (ground 32); 4. whether there were errors affecting the orders for substituted service made on 9 August 2013, including whether there was an error in relying on an affidavit of Ms Silver filed on 19 July 2013 (grounds 10, 11, 26 to 28, 40, 66, 67, 70, 77 and 78); 5. whether there was a denial of procedural fairness relating to the orders made extending time for service of the summons (grounds 12, 29 and 31); 6. whether service of the summons was effected and whether the summons was required to be accompanied by an affidavit (grounds 16 to 19 and 48); 7. whether there was error in proceeding to hear and determine the matter on 4 March 2014 in the absence of the appellants, including an issue as to whether the Council failed to comply with an obligation of candour at that hearing (grounds 1 and 2); 8. whether there was a denial of procedural fairness or some other error in permitting reliance by the Council at the final hearing on evidence that had only been filed on 26 February 2014, and on submissions and a chronology filed on 28 February 2014 (the appellants denying that they ever received an affidavit sworn 22 October 2013 by Mr Schilt and alleging that it was procedurally unfair for the Council to have been permitted to rely on an affidavit of Ms Silver filed 19 July 2013 because it had informed the Court on 26 July 2013 that it did not rely on that affidavit) (grounds 34 to 39, 41, 65 and 67); 9. whether the terms of the final orders made on 4 March 2014 were unreasonable, inappropriate or otherwise in error (grounds 6, 7, 13, 14, 33, 44, 52, 53, 55 to 56, 58 to 60, 64, 71 to 72 and 73 to 76), including various sub-issues; 10. whether the final orders made on 4 March 2014 were served on the appellants (ground 63); 11. whether the proceedings below were affected by bias or apprehended bias (ground 22); and 12. allegations of perjury in relation to the evidence of Mr Twigg, a process server (grounds 23 to 25, 30 and 61 to 62).
11. Ordinarily questions of bias and procedural fairness would be addressed first: see Drew v State of New South Wales [2015] NSWCA 159 at [21]. However, in the particular circumstances of this appeal, the most convenient course is to follow the order of issues adopted by the amicus and the Council dealing first with the issues where the amicus advanced positive submissions and then dealing with remaining issues.

Invalidity of 22A order (amicus' submissions paragraphs 26 - 35)

1. The amicus submits that the Court's order under s 678 could only properly be made if the original 22A order of the Council were valid. She properly acknowledges that this was not a submission advanced to the Court below. The submission may be accepted. However, if a party having had a reasonable opportunity to do so, offers no resistance, it would be a rare case where this Court will entertain an allegation of error in failing to address an issue not raised below.
2. Section 124 provided, at least from after 1 September 2012, that a 22A order can only be made if the following circumstances exist: "The waste is causing or is likely to cause a threat to public health or the health of any individual".
3. The amicus submits that the Council's Environmental Health Surveyor, Mr Schilt, who issued the order on 5 December 2012, had last inspected the property on 27 and 28 June 2012. She submits that "[i]f the only basis for an order was an inspection carried out more than five months earlier, then there was no basis for concluding that, at the time the order was issued, there was presently a threat to public health" (emphasis in original).
4. There is nothing in this ground, and it is not necessary to address all aspects of the submissions made in response to this submission by the Council. The evidence before the primary judge included Mr Schilt's affidavit that he had inspected the premises on 24 January 2013 when he "observed that the waste and rubbish had increased since my inspections on 27 and 28 June". The primary judge relied on that evidence to conclude that the power to issue the 22A order was available, notwithstanding that this point seems not to have been taken before him.
5. Either the matters in item 22A in the table contained in s 124 are a jurisdictional fact or they are not. If they are a jurisdictional fact, then, as the amicus conceded, there was no error in reliance upon what Mr Schilt had seen on 24 January 2013. But even if they are not a jurisdictional fact, it is plain not only that Mr Schilt formed the opinion that he did on 27 and 28 June, but also that he continued to hold that opinion in December when the order was issued. In either event, no error is shown in the primary judge's reasoning.

Service of 22A orders (amicus' submissions paragraphs 36 - 47)

1. The amicus submits, correctly, that this Court held in its 2012 decision at [41] that service of the 22A orders was an essential precondition of the power to make orders under s 678(10). There was evidence that a process server had affixed the orders to the front gate of the property. Section 710(2)(e) provides that service may be effected by "fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person". The amicus acknowledges, properly, that Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; 62 NSWLR 361 established that service is effected when the notice is so affixed, but submits that it was not established that the front gate was a "conspicuous part of the land".
2. It was open to the appellants to challenge the efficacy of the service of orders upon them before the primary judge. They declined to do so. There is no error in the primary judge relying on the uncontroverted evidence before him to conclude that affixing the orders to the front gate satisfied s 710(2)(e).

Procedural fairness (amicus' submissions paragraphs 83 - 106)

1. The amicus observes that on 26 February 2014, Council filed five additional affidavits. Three related to service of documents relating to interlocutory steps in the proceedings, one was an updating affidavit of Mr Schilt, and one was an affidavit of the process server, Mr Saad, relating to service of the 22A order. Copies of those affidavits were sent by express post that day, and so could not have been received before Thursday 27 February 2014. The matter was set down for hearing on Tuesday 4 March 2014. The Council had advised that its evidence was complete in November the previous year.
2. The amicus accepts that the three affidavits concerning service of documents relating to interlocutory steps "would perhaps raise no issue of procedural fairness". Despite the qualification in that written submission, it is plain that no issue capable of giving rise to appellable error arises from those three affidavits of service.
3. The supplementary affidavit of Mr Schilt and the affidavit of Mr Saad were material to the reasons of the primary judge. The amicus submits that "there is a basis for concluding that the appellants were denied procedural fairness in the manner in which the final hearing was conducted" by reason of those two affidavits. I would not accept this submission. There was, so far as the evidence discloses, no complaint at the time to the Council or to the primary judge, given that the appellants did not appear. It is difficult to see how there can be an issue of procedural fairness where the party who alleges such misfeasance fails, without explanation, to appear.
4. The amicus points to cases in which courts have taken objections where an unrepresented party has not done so, including National Australia Bank Ltd v Rusu [1999] NSWSC 539; 47 NSWLR 309. Aspects of Rusu are controversial (see Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 105 ACSR 116 at [93]-[94]). There is no occasion in this appeal to express a view as to its correctness. There was no evidence that the appellants had any difficulty in responding to the late evidence. There is no evidence, even today, of any such difficulty. Nor is there anything to suggest that there was anything controversial about any aspect of this evidence, or that there was any evidence that the appellants would have sought to have adduced in response. It follows that no error in the primary judge taking the course he did has been established by the appellants today.
5. The amicus makes a separate point in these paragraphs, by reference to ground 20, that the appellants claim never to have received copies of the 22A orders. She, very properly, observes, by reference to Kyogle Shire Council, that deemed service does not turn upon actual receipt, but submits that whether or not actual receipt was established would be relevant to the discretion to make orders under s 678(10). It follows that it could not be concluded that actual receipt of the orders could have made no difference.
6. Even accepting the whole of that submission so far as it goes, it does not follow that error has been demonstrated in the reasons of the primary judge. In circumstances where the appellants made no such submission below and did not apparently see it necessary to appear, it cannot be contended - on the basis of material not before his Honour - that there was error in the particular exercise of discretion taken by him.

Remaining grounds

1. What I have already said exhausts the positive submissions advanced in writing and supplemented orally by the amicus. I turn to the oral submissions made by Ms Elena and Ms Liana Bobolas. In support of what was put in ground 52, the Court was taken to s 200 of the Local Government Act, which is in the following terms: "The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except: (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or (c) under the authority conferred by a search warrant."
2. It was said on behalf of the appellants that s 200 qualified the right of entry that was conferred either by s 678 or orders made pursuant to s 678. They relied in particular upon the note following s 678(10) which is in the following terms: "Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so."
3. There are at least two answers to this submission. The first is that the note does not render the power conferred by or pursuant to s 678 subject to s 200. Section 200 in its terms is confined to powers of entry and inspection "conferred by this Part". The powers exercised by Council pursuant to an order made pursuant to s 678 do not fall within that description.
4. In any event, as was pointed out during the course of oral argument, this is a question of law which has already been raised and decided adversely to the appellants by this Court: see Bobolas v Waverley Council [2014] NSWCA 131 at [37]: "Finally, the applicants argued [before Ward JA] 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)."
5. Further submissions were made orally by the appellants, making complaints notably about the service of interlocutory processes. Even if anything were made out in relation to those complaints I cannot see how they could lead to the setting aside of the orders made on 4 March 2014.
6. I am not satisfied that it has been shown that the primary judge was in error in finding that there had been service or in concluding that there had been no procedural unfairness. The findings as to service were made at [25] of his Honour's reasons, which is as follows: "On 22 November 2013, the second and third respondents appeared and the timetable was again extended to allow the respondents further time to file and serve evidence and the matter was relisted for 20 December 2013. Pain J recorded on the Court file that when the second and third respondents appeared on 22 November 2013 they alleged that they had not been served with the Council's summons, points of claim and affidavit of Mr Schilt. The Council's solicitor said they had been sent by pre-paid post in accordance with orders made on 9 August 2013. He made copies available to the second and third respondents at the bar table; but they declined to pick them up."
7. I have also read the transcript of Council's application, heard by Biscoe J, on 4 March 2014. His Honour questioned the width of the orders sought repeatedly and on various occasions imposed limitations upon the terms of the orders sought: see pp 7, 8, 9, 10 and 11. After asking why the declaration sought in the first paragraph of the summons was necessary (p 5) instructions were obtained by Council not to press for it. His Honour expressed concern at the order seeking a payment of money in light of the debt created by s 678(6) (p 13) and again instructions were given not to press for that order: see p 14. The reason why I summarise what occurred is to make the point that there is nothing which suggests that there could have been any apprehension of bias on the part of the primary judge.
8. I have also read the whole of the lengthy handwritten grounds of appeal. There is nothing further that need be added to supplement what I have already said.
9. For those reasons, I propose that the appeal be dismissed. There is no reason why the appellants should not pay the Council's costs.
10. BASTEN JA: I agree with the reasons given by Leeming JA. The appeal from the orders and judgment of the Land and Environment Court must be dismissed with costs. I add the following observations with respect to four matters.

Utility of appeal

1. First, the respondent Council suggested that the appeal lacked utility because the orders made by the Land and Environment Court on 4 March 2014 have been carried out so that the only practical consequence resting on the outcome of the appeal was the order for costs in the Land and Environment Court.
2. Were that so there would be merit in the view that (a) the appellants required leave because it was in practical terms an appeal against a costs order only: Land and Environment Court Act 1979 (NSW), s 58(3); see also Dillon v Gosford City Council [2011] NSWCA 328; 184 LGERA 179 at [53]-[59], and (b) the Court should decline to enter into a controversy as to the merits of the substantive orders merely in order to determine the proper allocation of costs, by analogy with the reasoning of McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at 624. Such an approach would be supported by the mandate in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings and, pursuant to s 57(1)(b), for the efficient disposal of the business of the Court.
3. The appeal cannot be disposed in summary way, however, because, as the Council acknowledged in the course of the hearing, the effect of the carrying out of the orders leaves the appellants with a statutory debt for Council's expenses, pursuant to s 678(6) of the Local Government Act 1993 (NSW). If the Council did not have lawful authority to carry out the work because it required (but lacked) a valid order of the Land and Environment Court in order to enter the premises to do so, the expenses would not have been recoverable because not incurred under s 678 of the Local Government Act.

Service of originating process

1. The circumstances in which this matter comes before the Court have been significantly muddied in terms of transparency by the procedures adopted both in the Land and Environment Court and in this Court. As Leeming JA has explained, one, if not the, primary objection raised to the proceedings below was a challenge to the service of the originating process. There was, and it would seem remains, confusion in the minds of the appellants between (a) effective service as permitted or prescribed by the rules of Court and orders made by the Court, and (b) the physical receipt by the person to be served with the material required to be served.
2. That matter aside, there is a process by which a challenge can be made to what is said to be improper or inadequate service: Uniform Civil Procedure Rules 2005 (NSW), r 12.11. That challenge should then be properly disposed of in its terms, after which, assuming that the originating process has been duly served, the respondents to the application will be required to file a notice of appearance, giving an address for service, following which there will be little room for dispute as to where and how documents should be served upon them.
3. In this case it appears that there was no notice of appearance filed in the Land and Environment Court. That being so, it is difficult to understand how the appellants were able to file numerous documents in that Court.

Evidence at a hearing

1. A further confusion arose as to the effect of documents having been filed. The appellants asserted that documents (including affidavits) that had been filed should have been taken into account by the trial judge at the hearing. That is not so. There is a clear distinction between filing an affidavit in the Court registry and the affidavit becoming evidence in the case. As the appellants did not attend before the primary judge none of the affidavits which they had filed were in evidence because none were read.

Failure to comply with directions

1. The final matter concerns the attendance of the appellants in this Court. As Leeming JA has noted, there have been no written submissions filed by the appellants and an appropriate course for this Court to take in those circumstances would be to prevent the appellants from articulating submissions for the first time at the hearing of the appeal. Indeed, as Leeming JA has also noted, there were numerous occasions on which the appellants were required to show cause as to why they had not complied with either the rules of Court (which would have required submissions to be filed by 25 April 2014, that is some 16 months ago), or the directions for filing thereafter, permitted as a result of the indulgence of the Court in extending time.
2. Those matters are relevant to the appearance before the Court today of Ms Elena Bobolas and Ms Liana Bobolas. They have appeared on previous occasions before the Court and have spoken on behalf of themselves and their mother, Ms Mary Bobolas. The Court was advised at the outset of the hearing that their mother was present in the vicinity of the courtroom, having come up in the lifts with them, but was not willing to attend the Court hearing. It was suggested that she may have health reasons, but there was no medical evidence before the Court as to her state of health.
3. At the conclusion of the oral submissions presented by Ms Elena and Ms Liana Bobolas an opportunity was given to them to obtain an indication from their mother as to whether she wished to say anything in her own interest or as to whether she wished them to say anything on her behalf. When, after some little delay, Ms Elena Bobolas and Ms Liana Bobolas returned to the court they advised the Court that their mother was not in a state to attend and present argument and that she had not been able to provide to them any submissions to be made on her behalf.
4. All three appellants have been given more than ample opportunity to put their case in writing and then, through the indulgence of the Court today, to expand in oral submissions on the grounds of appeal, even though no written submissions had been supplied. No further opportunity is required.
5. In those circumstances, the Court has delivered its judgment in this matter without further adjourning the matter. The judgment and orders are as Leeming JA has indicated.
6. TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons that he has expressed. I also agree with the additional observations of the presiding judge.
7. LEEMING JA: I also agree with the observations of the presiding judge.

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: 29 October 2015