HIS HONOUR: Listed today before me for final hearing are matters involving four matters in various classes the Court's jurisdiction. Two of them, Matter No 41027 of 2014 and Matter No 50888 of 2018, are what might conveniently be regarded as being residual Class 4 matters. Matter No 177991 of 2019 is a Class 2 appeal in which the appellants are said to be both Ms Elena and Ms Liana Bobolas and their mother, Ms Mary Bobolas. The final matter number is 178004 of 2019, a Class 1 appeal said to have been initiated by the same Bobolas parties.
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Meaning no disrespect to the Bobolases, I propose to refer to them collectively, unless it is necessary to refer to them individually for a specific purpose.
All four matters were before Pepper J to be dealt with for procedural directions on 4 July 2019. On that occasion, during hearing for which the transcript occupies some 48 pages, Ms Elena Bobolas, Ms Liana Bobolas and Ms Mary Bobolas appeared representing themselves.
On that occasion, her Honour made nine orders. The first of them was a notation of an understanding offered by Waverley Council (the Council) that the Council would not take further action with respect to various orders that were the subject of the four sets of proceedings.
Her Honour then listed in (2) that the matter was set down for a final hearing on 24 and 25 September 2019 at 10.00 am before a judge of the Court. Orders (3) to (6) then set a timetable for matters that were to be complied with by both the Council and by the Bobolases concerning evidence, Statements of Facts and Contentions and written submissions prior to the hearing that was set down to commence today. Order (7) made by her Honour vacated a directions hearing on 9 July 2019. Order (8) reserved costs and, importantly, (9) granted liberty to the parties on both sides to relist the matter before the Duty Judge on two days' notice.
It is important to note a number of matters arising out of the transcript before her Honour on 4 July 2019. First, it is appropriate to note that at pages 5 and 11 of the transcript her Honour's attention was drawn to the fact that a barrister was said to be proposing to appear on behalf of the Bobolases on a pro bono basis. That is a matter to which I will need subsequently to return. It is also clear, commencing at page 33, line 38 of the transcript, that the question of timing of the substantive hearing of all four matters, as subsequently set down by her Honour in (2) made on 4 July 2019, was a matter of concern both to Ms Reid, barrister appearing for the Council on that occasion, and to the Bobolases.
Bobolas v Waverley Council [2019] NSWLEC 148 | Case summary | Zoe
The discussion of timing, including the potential availability of the pro bono counsel said to be representing the Bobolases, was discussed at some length in exchanges involving not only her Honour and Ms Reid, but also Ms Elena and Ms Liana Bobolas. Those exchanges continued from pages 33 to 45 of the transcript. It is important to note that, in that context, her Honour made it clear that she was listing the matter for final hearing on 24 and 25 September 2019. At line 34 on page 45, Ms Elena Bobolas is recorded as asking her Honour the following:
If there is, as I asked before, your Honour, just for clarity, if there is any issues with the timetable, then we can bring it back as you said on full liberty, then, isn't it, your Honour, and describe what's happen?
Importantly for the present proceedings, her Honour is then recorded as giving the following explanation to the Bobolases:
You will have liberty to restore. Obviously, as you know from previous experience in this Court, if you are going to make an application to vacate, you will have to do that by Notice of Motion with supporting evidence and so on, but you know that. You're familiar with the processes of this Court but the liberty to restore, you also know that the vacation of hearing dates is no small matter in this Court and are not always granted. It is a serious thing to vacate a hearing date, but nevertheless, it does occur. The liberty to restore is there really to bring the matter back if you have any problems. If there are any difficulties, bring the matter back, but you must do so in a timely fashion. You can't leave it to the very last minute to relist the matter and say there are all those problems. You may find the Courts saying that, 'Well, too bad, you should have notified us earlier'.
I will return to the nature of those remarks later in these reasons. The matter was subsequently relisted before Robson J on 12 August 2019. Various of the timetabling matters contained in (3), (4), (5) and (6) of the orders made by Pepper J on 4 July 2019 were amended. They varied the timetable contained in those former orders to extend the timetable so that the Council was to file and serve any evidence upon which it proposed to rely for these final hearings by 4 August 2019, and to provide that written submissions for the final hearing and proceedings in each of the matters were to be filed and served by 14 August 2019.
Order (4) was varied to provide that the Bobolases were to file and serve all evidence upon which they wished to rely, together with their Statements of Facts and Contentions and their written submissions, by 18 September 2019, a period of five weeks from the date upon which the Council was to be obliged to file and serve its material. The Council was then permitted to file and serve any submissions in reply by 19 September 2019. The Bobolases were to file and serve submissions in reply to the Council's submissions in reply, if any, by 23 September 2019.
Importantly in that context, the obligation upon the Bobolases to file and serve evidence, Statements of Facts and Contentions and submissions was some seven days prior to the final hearing. His Honour, on 12 August 2019, also confirmed that (1), that being the undertaking from the Council, (2), (7) and (9) inclusive of the orders made by Pepper J on 4 July 2019 remained as her Honour had ordered.
It therefore follows that throughout the period since her Honour made the orders on 4 July 2019, the liberty to relist on two days' notice before the Duty Judge has been available to both the Council and, importantly, to the Bobolases.
This morning, I had filed in court a Notice of Motion by the Bobolases seeking orders that I vacate/adjourn - those words being to the same effect - the hearing dates of 24 and 25 September for the reasons stated in an affidavit, being an affidavit of Ms Elena Bobolas, to which I will return. The second order that was sought were one which encompassed further time for the Bobolases to file evidence and documents, and there then follows a hortatory statement which plays no part in my consideration.
The processes and matters that are considered on an application to vacate were set out by Pepper J in unrelated proceedings, in her Honour's decision in UTSG Pty Limited v Sydney Metro (No 5) [2019] NSWLEC 107 at [35]-[40] inclusive:
35 The statutory scheme constituted by the Civil Procedure Act 2005 ("CPA") relevant to the vacation of hearing dates is contained in ss 56-60 and 66 of that Act. They include the following provisions relating expressly to delay:
59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
36 The content of s 56 are well known and not recited here.
37 The provisions of s 57 are matters that predominately relate to the efficient management of the Court's business, namely:
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
38 The CPA expressly deals with adjournments in s 66, which grants the Court the power to vacate hearings:
66 Adjournment of proceedings
(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
(2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.
39 But the discretion is not unfettered. An express mandatory consideration of the dictates of justice is referred to in s 58, which provides that:
58 Court to follow dictates of justice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
…
(ii) any order granting an adjournment or stay of proceedings,…
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
the court must seek to act in accordance with the dictates of justice.
40 In Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52, the Court said (at [6]):
6 The principles to apply to motions to vacate or adjourn hearings were pithily summarised by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (at [13], recently quoted by Sheahan J in Thaler v Cooma Monaro Shire council (No 2) [2014] NSWLEC 51 at [3]):
3 The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
I gratefully adopt the summary that her Honour set out on that occasion.
I turn to consider the matters that are now pressed before me as justifying this very late application to vacate. I consider them looking at them through the lens of the warning given by Pepper J to the Bobolases on 4 July, as I have noted, appearing at page 45, lines 38-49 of the transcript of that day.
Ms Elena Bobolas deposed an affidavit which was read on the motion to vacate without objection from Mr Lancaster SC, appearing for the Council. Ms Bobolas was required for cross-examination, a matter to which I will return briefly shortly.
Appended to Ms Bobolas' affidavit as attachment A were a range of internal Council emails concerning a development application at premises entirely unrelated to the premises that are the subject of all of the present proceedings.
Attachment B to the affidavit is a letter said to have been sent by Ms Elena Bobolas on behalf of herself, her sister and her mother dated 19 August 2019 to Mr Ede, the Council's solicitor who had appeared before Robson J on 12 September. The date, 19 August, is of some importance in these proceedings with which I am presently dealing.
In the affidavit of Ms Bobolas, she sets out a number of grounds why she says - and she says, I accept, on behalf of herself, her sister and her mother - that the proceedings should not go ahead today and tomorrow. The first two concern Mr Bolger, their pro bono counsel, the fact that he is not available on the hearing dates and that he has not been served with any documents by the Council. That it is said that evidence to be given by Mr Bolger is not available and that his affidavit is not currently ready, sits ill with the obligations of a barrister who is not permitted to give evidence in proceedings in which he is an advocate.
I am prepared to assume for the purposes of these proceedings, given that the Bobolases are self-represented before me today, that what is asserted by that paragraph is that Mr Bolger has not had sufficient time to prepare such submissions as he might wish to make on behalf of the Bobolases. In doing that, I am taking what that paragraph is capable of containing at its highest in favour of the Bobolases.
Ms Bobolas then complains that the Council has not complied with the timetabling of orders concerning the filing and service of evidence and other documents; that the dates were not met as required by the adjusted orders made by Robson J; that documents were not supplied or were wrong or unrelated; and that they had sent letters to the Council's solicitors, being a letter of 19 August to which I have referred, and another one on 22 August concerning deficiencies and the like; and that no documents had been given or served on Mr Bolger.
Finally, it is said that inclement weather, illness, school holidays and computer trouble have made it impossible to have their evidence and documents in on time, and an extension is requested.
I make the observation that it is difficult to understand how illness could conceivably impact on these matters, there being no relevant evidence of that, it being the general subject of her Honour's decision in UTSG dealing with the necessity for there to be a high degree of certainty of the nature of any medical condition upon which reliance was placed for the purposes of vacation of the hearing dates. I do not take that particular asserted factor into account in any fashion whatsoever.
In response, the Council read an affidavit of Mr Kendall Webber, a partner of the Council's firm of solicitors. That affidavit was read and Mr Webber was not required for cross-examination. Although Ms Liana Bobolas made several subsequent objections to elements of this affidavit, given that it is an affidavit in interlocutory proceedings, issues of hearsay and the like do not arise and I rejected each of the objections.
I also note, for the purpose of completeness, that at page 9 of the affidavit, being the second of the pages to Annexure C to which Mr Webber makes reference in [5] of his affidavit, there is a tracking document for a particular Express Post item. During the course of her closings submissions in reply, Ms Elena Bobolas recited to me what was obtainable from the Australian Post website as comprising an element that had been omitted in the transition from pages 8 to 9 of the document and I have incorporated that information reading, "Awaiting collection at Bondi LPO, Bondi, New South Wales," at the top of page 9 of the affidavit, "and I have signed it."
Mr Webber's affidavit sets out a variety of matters concerning the provision of documents to various members of the Bobolas family, including documents that were sent on 7 August to Ms Bobolas by letter, a copy of which is at Attachment A to the affidavit, and comprised Statements of Facts and Contentions in the first of the 2019 proceedings, statement of facts and contentions in the second of the 2019 proceedings, an affidavit by Mr Schilt of 7 August in all four proceedings and a copy of the folder of exhibits to the affidavit affirmed by Mr Schilt on 7 August.
On the same day, letters were sent to Ms Elena Bobolas and Ms Liana Bobolas in identical terms, containing the Statements of Facts and Contentions in each of the 2019 proceedings, and a copy of Mr Schilt's affidavit of 7 August, and noting that a copy of the folder of exhibits to the affidavit of Mr Schilt had been served by express post on Ms Mary Bobolas. It was not asserted in that letter or a letter in identical terms which is at page 6 of Mr Webber's affidavit, that the folder of exhibits had actually been sought to be served on Ms Elena or Ms Liana Bobolas.
That, I am satisfied, is a perfectly reasonable and adequate explanation for the size of the envelope tendered as Exhibit 1 by Ms Elena Bobolas as being the envelope that was delivered to her, one about which she complained that the folder could not have been inserted in it. It was not necessary for it to be so inserted and at no stage has the Council asserted that it was so inserted. The envelope which was sent to Ms Mary Bobolas, which had all of the material in it, was returned on 27 August 2019 to the Council as deposed by Mr Webber in his affidavit at [4], and a copy of that document, the front page of that envelope, is at Annexure B at page 7 to Mr Webber's affidavit.
It is clear from that page that that envelope used to send the material to Ms Mary Bobolas was not the envelope that was subsequently appended to the gate outside the Bobolases' premises, and that the envelope in Exhibit 3 which Ms Elena Bobolas has tendered and which she seeks to use the tracking on it to demonstrate that it could not have been served on Ms Mary Bobolas, is a matter of irrelevance as it is clear that that envelope was used by the Council's firm of solicitors - Wilshire Webb Staunton Beattie - to mail documents to Mr Schilt at the Council and that Mr Schilt, in an environmentally responsible fashion and not anticipating that this would become the matter of contest in court proceedings, used that large and oversized envelope as a convenient receptacle into which to place the material that he subsequently took to the Bobolas premises and affixed to its front gate. I am satisfied that there is no validity in the complaint about service of those documents.
Finally, it is to be observed that, on 14 August 2019, Mr Webber wrote to Ms Elena Bobolas, to Ms Liana Bobolas and to Ms Mary Bobolas - the letter to Ms Elena Bobolas being Exhibit A in the proceedings, the letters to the other two members of the family being Exhibits B and C - enclosing copies of two affidavits sworn by Mr Webber on 14 August, the Respondent's bundle of documents that is before me today as Exhibit A, and the Respondent's submissions.
I accept that the Respondent's submissions were filed as recorded by the Court's records at 4.59 pm on 14 August 2019 and I accept that the tracking document attached to Exhibit A - a similar document being attached to Exhibits B and C - discloses that delivery was not effected until shortly after midday on Thursday 15 August 2019, and that, at least to a minor extent, demonstrates that the Council did not comply, by a maximum of a day, with amended (3)(a) and (b) made by his Honour Robson J on 12 August 2019.
However, it is quite clear, despite Exhibits D and 2 being documents which evince an intention by Mr Bolger, the Bobolases' pro bono barrister, that he had some intention of participating in a final hearing if it was possible for him to do so, I have no evidence that he actually intended to appear today. He has certainly not appeared today and, of critical importance, the dates of the hearing of 24 and 25 September 2019 were expressly made clear to each of the Bobolases by her Honour on 4 July 2019.
To the extent that they had some concern that Mr Bolger might not be available today for the purposes of the hearing listed for today and for tomorrow, they had been on notice of those dates since 4 July 2019 and have done nothing about it, despite the express warning given by her Honour on page 45 of the transcript to which I have earlier referred.
Second, to the extent that the Council was a day late in some of the material required to be provided to the Bobolases, they have had since 15 August 2019; that is some nearly six weeks or so within which they could have brought complaint to this Court concerning that pursuant to the liberty to relist before the Duty Judge on two days' notice. They have not done so.
They have not come back to the Court on any basis with or without information provided by Mr Bolger as to details of his availability or otherwise, there being no information of that nature available to me today to say that the hearing dates should be vacated.
This application has been made "at the death", as it were.
It is entirely contrary to the objectives set out in s 56 of the Civil Procedure Act 2005 for the just, quick and cheap disposition of the issues genuinely in dispute between the parties.
There is no merit in the application for vacation of the proceedings and the Notice of Motion is dismissed.
[2]
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Decision last updated: 15 October 2019