Members of the Bobolas family (the Applicants) have commenced judicial review proceedings seeking to challenge a No 22A order issued under the table to s 124 of the Local Government Act 1993 (NSW) (LG Act) to Mary Bobolas (the Order) which is annexed to their summons. The Order issued by Waverley Council (the Council) requires the removal of specified waste from premises in Boonara Avenue Bondi (the Property) being areas around the residential house located on the Property. The Property is owned by Mary Bobolas. The proceedings have been set down for final hearing on 12-13 October 2020 and usual orders for the preparation of evidence and submissions were made by the Court on 5 June 2020. The basis on which Elena and Liana Bobolas are applicants is unclear. They argue they can apply for the relief sought as occupants of the Property to set aside the Order. The issue has been identified in call-overs and I note it here as a matter to be resolved in due course most likely at the final hearing. All the Applicants appeared in person. Mary Bobolas was represented by her daughter Elena Bobolas during the hearing.
An order can be issued under No 22A in the table to s 124 of the LG Act requiring the removal of waste on any residential premises if the waste is causing or likely to cause a threat to public health or the health of any individual. Such an order can be issued to any owner or occupier. The Order dated 29 January 2020 attached to the summons requires the removal of various kinds of putrescible and non-putrescible waste and refraining from collecting such waste on the Property. The reasons for issuing the Order identified in it include that the Property is residential and is adjoined by other similar properties, there is a large amount of waste on the Property in the outside areas and is likely to attract vermin, is combustible and therefore a fire hazard and has been issued to protect the threat to public health posed by the state of the Property. Compliance by no later than 26 February 2020 is specified. There is no appeal right against the Order under the LG Act as s 138(2) provides that no notice of a right to appeal against a No 22A order need be provided and s 180(5) provides that an appeal right under s 180(1) concerning s 124 orders does not apply to a No 22A order. The Order states that if it is not complied with, the Council will enter onto the Property and undertake the necessary waste removal.
Judicial review proceedings were commenced by the Applicants on 23 March 2020. The Council gave an undertaking to the Court on 27 March 2020 not to execute the Order by entering the Property until a final hearing of the matter or a discontinuance. The Council has filed a notice of motion on 22 July 2020 seeking leave to withdraw its undertaking so that the Order would cease to have effect seven days from the date of such leave being given. Alternatively, an earlier hearing date before October 2020 is sought. The notice of motion is supported by two affidavits of Mr Schilt council health officer sworn 4 June 2020 and 17 July 2020, the latter being sworn expressly in relation to the Council's notice of motion. I allowed that affidavit to be read in its entirety despite numerous hearsay objections made by the Applicant as this matter is an interlocutory procedural motion. The opportunity to cross-examine was offered. The affidavit of 4 June 2020 is to be relied on in the substantive proceedings. A further Council business record of a recent complaint about undesirable activity on the Property from a public health perspective was also tendered and marked Exhibit A. An affidavit of service of Mr Webber was also read.
The 17 July 2020 affidavit attests to various complaints received by the Council during April, May, June and July 2020 about the state of the Property due to excessive waste consisting of various materials accumulating, including on the public footpath and seepage of smelly liquid from the Property onto the footpath inter alia. Mr Schilt attests to attending the Property on 2 July 2020 taking photographs of the Property from the public footpath (attached to his affidavit) and gives his opinion that the amount of putrescible and non-putrescible waste on the Property is increasing, is attracting vermin and insects and impacting on neighbours to such an extent that the Council must take urgent action in the interests of public health and safety, as set out at pars 14-20. The affidavit of 4 June 2020 was also read. It is referred to in the second affidavit to enable a comparison of photographs taken of the premises over time. Mr Schilt concluded in his affidavit that there has been an increase in waste material on the Property.
Elena Bobolas gave oral evidence in which she disputed Mr Schilt's affidavit evidence, disagreeing that photographs attached to the second affidavit show an increase in items on the Property when compared to the first affidavit, asserting that water coming from the Property resulted from a problem at a nearby property which caused water to flow onto the subject Property, that items shown in photographs taken by Mr Schilt had already been removed from the public footpath and disagreeing with all of the opinions expressed by Mr Schilt in his second affidavit including in pars 14-20 of the affidavit.
Liana Bobolas gave oral evidence that (i) the Council has been obstructive of the Applicants' efforts to clear up the Property and should provide more bins and arrange for collections of sorted material left out; (ii) the 12 complaints referred to by Mr Schilt are unsubstantiated; (iii) requests of council rangers to remove items from the footpath have been complied with; (iv) rain has hampered efforts to clear the Property; (v) Mr Schilt could have told the Applicants of the neighbours' concerns so that these could be addressed; (vi) he could have given better notice of this notice of motion; (vii) the circumstances giving rise to the notice of motion, namely complaints, were known to the Council at the mention on 5 June 2020 and should have been raised on that occasion; (viii) on 26 and 27 July 2020 a large amount of material was removed from the Property including many bottles and cans and 20 large sacks of other items; (ix) the photographs taken of the side boundary as between the 4 June 2020 affidavit and 17 July 2020 affidavit do not show an increase in items being stored; (x) the backyard is in reasonable condition yet no photographs of that are attached to Mr Schilt's affidavit; and (xi) the photographs are generally misleading because they do not show that some areas on the Property have been improved by the removal of items.
At a continued hearing of the notice of motion at 5 pm on 30 July 2020 the Applicants tendered two bundles of photographs which were marked Exhibit 1. The Court was told that one set was taken the day before yesterday and one on 30 July 2020. These were tendered to show that in the Applicants' opinion the amount of waste was reduced or non-existent on part of the property.
[3]
Council's submissions on notice of motion
In the Council's view, if an earlier hearing date in August 2020 can be found it need not press its application to have leave to withdraw the undertaking given to the Court in March 2020. It relies on s 16(1A) of the Land and Environment Court Act 1979 (NSW) (LEC Act) to argue that the Court has an ancillary power to allow undertakings given to the Court to be withdrawn. The Court can consider releasing a party from such an undertaking where there has been a relevant change of circumstances and/or there is a cogent reason for doing so citing Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 (Holpitt) considering implied undertakings.
The affidavit of 17 July 2020 of Mr Schilt, a qualified council health officer, would be accepted as establishing the need for the matter to be dealt with earlier than 12-13 October 2020. Mr Schilt's affidavit should be accepted on an interlocutory basis without needing to resolve the many matters disputed by the Applicants that are more properly dealt with at the final hearing. Mr Schilt gives his considered opinion as a council health officer of the public health and safety concerns arising from increases in the amount of material stored on the Property, on the adjoining footpath and the impact on neighbours as identified in the number of complaints received by the Council.
[4]
Applicants' submission on notice of motion
The Council has delayed in seeking leave to withdraw its undertaking and in the alternative applying for vacation of the October hearing dates and change to an earlier hearing date. The Council was aware of four complaints as identified in par 10 of Mr Schilt's affidavit when the matter was before the Court for mention when hearing dates were set on 5 June 2020. The Council should have made this application much earlier and before hearing dates were set. The Applicants have conducted their affairs on the basis of the October dates in relation to efforts to clean up. A breach of an undertaking can give rise to contempt of court.
Giving an express undertaking to the Court is a serious matter and it should not be allowed to be withdrawn unless in very clear circumstances, which the Council has not provided. Cases such as Holpitt identify the importance of an undertaking, also McIlraith v Ilkin [2007] NSWCA 911 (McIlraith) at [37]-[38]. Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 318 on interference with the proper administration of justice was read out by the Applicants. Offering an undertaking with no intention to fulfil it is interference with the proper administration of justice. Undertakings can only be withdrawn by agreement and none is given. The undertaking is the pivot of the case and if removed the case is rendered nugatory. It cannot therefore be an ancillary matter to which s 16(1A) of the LEC Act can apply.
Mr Schilt's evidence is not accepted and does not show the Property as it currently appears. The Applicants tendered photographs taken on 30 July 2020 and 28 July 2020 which show cleared areas of the Property and that the backyard area was relatively free of any items. As the complainants in Mr Schilt's affidavit of 17 July 2020 are unnamed, they are not verifiable and should be disregarded. The complaints could all be from the same person.
The October hearing dates are important to enable the work required under the Order to be completed by the Applicants, which they are working away at. The Council should be doing more to facilitate the removal of items through the provision of bins and in arraying pick-up. Due to other commitments, the Applicants will have great difficulty preparing their affidavit evidence earlier than 31 August 2020 as required by the current timetable.
[5]
Consideration
I have an overriding obligation to ensure the just, quick and cheap dispatch of all matters before me under s 56 of the Civil Procedure Act 2005 (NSW) including in case management decisions. The objects of case management identified in s 57 include the just determination of matters and the efficient disposal of matters before the Court inter alia. Under s 58 the Court must act in accordance with the dictates of justice in making any order. The Council applies in its notice of motion as the entity responsible for the maintenance of public health in its local government area. The parties are well known to each other as is the issue of hoarding at the Property before the Court.
The Applicants' submissions about the significance of undertakings given to the Court can be accepted. Authorities such as McIlraith consider undertakings of solicitors to courts as does the LexisNexis material referred to by the Applicants. The Council seeks to be excused from the undertaking for rational reasons. As the Council submitted, the undertaking given to the Court can be withdrawn with leave of the Court, provided that the Council can demonstrate that a relevant change of circumstance has occurred since an undertaking was given or cogent reasons for doing so are provided. Section 16(1A) provides a basis for the Court considering the Council's application for leave to withdraw its undertaking to the Court given in March 2020.
I do not consider the Council has unduly delayed in making this application. The circumstances concerning the Property are not static and the Council acting responsibly must act if it considers it necessary to do so. It received a number of complaints over several months including very recently, the business record tendered as Exhibit A. While the basis for the complaint is disputed by the Applicants, it assists in explaining why the Council has acted, together with the other matters referred to in Mr Schilt's evidence.
The affidavit of Mr Schilt identifies that in his opinion as a health officer of the Council, the Property presents a health and safety issue in the neighbourhood and urgent action pursuant to the Order is warranted as soon as possible. The photographs attached to his affidavit show a large amount of waste on the Property. If sufficiently earlier hearing dates are obtained, the Council will not press its application for release from the undertaking it gave to the Court in March 2020. The Order was issued in January 2020 and required compliance by February 2020. No appeal right against such an order exists under the LG Act. The notice of motion deals essentially with a procedural matter and it is not in the overall interests of the efficient dispatch of proceedings that all matters sought to be put in issue by the Applicants be resolved finally now. Most of the matters in issue as referred to in the Applicant's evidence being the tendered photographs and submissions deal with issues that will on the Applicants' case be pressed at the final hearing, namely the volume and location of waste on the Property. Regardless of the Applicants' different views to those of Mr Schilt, the photographs they tendered show a very substantial amount of waste material in the front yard of the Property.
I observe that a large part of the Applicants' argument appears to be directed to having the Court timetable provide time to them to clear the Property on their own rather than the Council entering the Property under the Order. Hence their submission that the undertaking is the pivot of their case. While their efforts to do so are commendable, that is not relevant to the legality of the Order the subject of their judicial review application. Nor is it strictly relevant to the despatch of the judicial review proceedings they have commenced. That time is needed by them to comply with the Order is not relevant to whether an earlier hearing is appropriate.
The judicial review proceedings must be dealt with promptly in light of the public health considerations identified by Mr Schilt, which are also the same reasons the Order was issued in the first place. The same considerations which form a basis for giving the Council leave to withdraw its undertaking also informs a decision to vacate the current hearing dates and list the matter for earlier hearing, leaving in place the undertaking.
In terms of the state of the evidence, the Applicants have yet to file any despite being the Applicants. They would usually have put on their evidence by now in the usual way of litigation. The Applicants under the current timetable have until 31 August 2020 to do so. If the hearing dates of 31 August and 1 September 2020 are allocated, the Applicants could have until 25 August 2020 to prepare their evidence. That is three business days less than the current timetable for the filing of their evidence. The Council has filed its evidence. As is usual in such matters an affidavit updating the Court as to the state of the premises may well be relied on and should be permitted. With a truncated timetable allowing the Applicants until 25 August 2020 to file their evidence, giving the Council two days to file any evidence in reply and filing of submissions very close to the hearing on 28 August 2020 will enable a final hearing on 31 August and 1 September 2020 to proceed. As sufficiently earlier hearing dates are able to be allocated I understand that the Council does not press its application to be excused from its undertaking to the Court.
Balancing public interest and fairness considerations, I consider the October 2020 hearing dates and the pre-trial mention of 2 October 2020 should be vacated. New hearing dates of 31 August and 1 September 2020 can be allocated and an amended timetable for the filing of evidence and submissions can be made. I consider there are changed circumstances identified in the affidavit of Mr Schilt sufficient to justify this approach and in doing so the Applicants continue to have the certainty that the Council will not act contrary to the undertaking before the final hearing.
A number of orders to vacate the current hearing dates, pre-trial mention on 2 October 2020 and to make a new timetable for the filing of affidavits and submissions will be made.
I also note that the Applicants have requested that the final hearing be conducted in person.
[6]
Orders
The Court makes the following orders
1. Orders made by the Court on 5 June 2020 are vacated.
2. The pre-trial mention listed for 2 October 2020 is vacated.
3. The hearing listed for 12 and 13 October 2020 is vacated.
4. The Applicants are to file and serve any evidence they wish to rely upon by 25 August 2020.
5. The Council is to file and serve any evidence in reply by 27 August 2020.
6. The parties are to file and serve written submissions by 28 August 2020.
7. The Court notes that the Respondent Council's undertaking to the Court given on 27 March 2020 remains in effect.
8. The Court directs that all documents required to be served by the Council on the Applicants be by way of express post to 19 Boonara Avenue, Bondi.
9. The proceedings are listed for hearing on 31 August 2020 and 1 September 2020.
10. Liberty to apply on two days' notice.
[7]
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Decision last updated: 03 August 2020