[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Decisions under appeal
HEADNOTE
[This headnote is not to be read as part of the Judgment]
The appellants, Mary, Elena and Liana Bobolas, reside at 19 Boonara Avenue, Bondi (property). Mary Bobolas is the registered proprietor of the property. The appellants have been engaged in litigation with Waverley Council (Council) in respect of the state of the property, in particular concerning the removal of waste they have amassed on the property, since at least 2005. The Council served orders on the appellants requiring them variously to carry out works both to remove the waste, to demolish a garage on the premises (Demolition Order) and to rectify safety issues said to be affecting the property and neighbouring residences. The appellants did not comply with any of the orders.
On 5 December 2014 the Council commenced civil enforcement proceedings in the Land and Environment Court (LEC), seeking orders permitting it to carry out the safety, demolition and removal works the subject of the orders.
On 6 February 2015 the appellants filed a motion seeking to set aside the originating process on the basis that it had not been served upon them. They did not appear on the hearing of the motion. Pain J held that the Council had effected personal service of the originating process on the appellants and dismissed their motion.
The substantive proceedings came before Sheahan J for hearing on 23 April 2015. The appellants did not appear, but sought an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) on the grounds that they were intending to appeal, or had appealed from, the refusal of a grant of legal aid. Sheahan J dismissed the adjournment application. He held the appellants had no bona fide intention to appeal and their foreshadowed appeal was a deliberate device to delay the proceedings. Sheahan J made the orders sought by the Council on 24 April 2015.
Subsequently the appellants sought by notice of motion filed in the LEC to set aside Sheahan J's judgment and orders. Two of the appellants appeared on the hearing of this motion. Pain J dismissed that application.
The appellants appealed from each of the decisions referred to above and also sought to challenge numerous procedural steps taken in the course of the LEC proceedings.
The principal issues on appeal were:
(i) whether service of the originating process was effected in circumstances where the affidavit of service contained omissions such that the appellants contended it was invalid because it did not comply with provisions of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR");
(ii) in respect of the appellants' application for an adjournment pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW), whether:
a. Sheahan J erred in not holding that the Council, as the party opposing the adjournment application, bore the onus of proving that it was not bona fide; and
b. Sheahan J erred in dismissing the adjournment application as not being bona fide in fact.
(iii) In respect of the application to set aside Sheahan J's orders, whether:
a. Pain J erred in not holding that the Demolition Order was invalid because it was not issued to the owner of the garage; and
b. Pain J erred in rejecting the appellants' medical evidence that they were unfit to attend the hearing before Sheahan J.
Held, dismissing the appeal:
As to issue (i), per McColl JA (Simpson JA and Sackville AJA agreeing)
(1) Although the affidavit of service failed to comply with provisions of the UCPR, the information omitted did not go to substantial deficiencies which would mean it was not an "affidavit": [111]
Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 considered.
(2) The affidavit of service was prima facie a document to which s 63(1) of the Civil Procedure Act 2005 (NSW) ("CPA") applied. By virtue of s 63(2), the omissions were treated as irregularities which, subject to s 63(3), did not invalidate either the affidavit nor the service of the originating process: [113]
(3) The court would not set aside service of the originating process on the basis of the deficiencies identified because of the appellants' failure to comply with s 63(4) of the CPA. It could not be said to be a "reasonable time" for the purpose of s 63(4) for the appellants first to specify the basis of their complaints about the affidavit of service on appeal. Accordingly, the affidavit was effective to establish service of the originating process on the appellants: [116] - [118]
As to issue (ii)(a), per McColl JA (Simpson JA agreeing; Sackville AJA not deciding)
(4) The opponent of a s 57 adjournment application does not bear the onus of displacing the prima facie position that, an appeal having been lodged, the proceedings are adjourned. Rather, the court or tribunal considering the matter may have regard objectively to all relevant material before it, keeping in mind the policy objectives and procedural context of s 57: [184]; [188] - [189]
As to issue (ii)(b), per McColl JA (Simpson JA and Sackville AJA agreeing)
(5) Based on the information before Sheahan J, it was open to his Honour to conclude objectively that the appellants' foreshadowed appeal against the refusal of legal aid was a deliberate device to delay the proceedings. The appellants failed to establish any error in Sheahan J's rejection of the s 57 adjournment application: [190] - [196]; [249]
As to issue (iii)(a), per McColl JA (Simpson JA and Sackville AJA agreeing)
(6) The Demolition Order was correctly served on Mary Bobolas in accordance with s 121B of the Environmental Planning and Assessment Act 1979 (NSW): [216]
As to issue (iii)(b), per McColl JA (Simpson JA and Sackville AJA agreeing)
(7) Pain J correctly held that the appellants' medical certificates had no probative value. They failed to address the critical question as to whether, and if so why, the medical condition would prevent each of them from travelling to the Court and participating effectively in a court hearing: [220] - [222]