By way of background I note that I gave a decision in Bobolas v Waverley Council (No 2) [2020] NSWLEC 127 (Bobolas No 2) on 1 September 2020. I dismissed the judicial review application lodged by the Applicants in relation to an order issued by the Council pursuant to No 22A in the table to s 124 of the Local Government Act 1993 (NSW) (LG Act) (No 22A Order).
The relevant background is set out at [2] of Bobolas No 2 where I stated:
An order can be issued under No 22A in the table to s 124 of the LG Act (No 22A Order) 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 (Order) 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.
Bobolas v Waverley Council [2020] NSWLEC 142 | Case summary | Zoe
As stated immediately above, it is important to stress that there is no merits appeal available for a No 22A Order issued under the LG Act. The Court's power is only to consider a judicial review application. I did determine that application ex parte for the reasons and the circumstances set out at [6]-[16] of Bobolas No 2. I then considered 14 purported grounds of judicial review in my judgment and I ultimately determined that the judicial review application should be dismissed. That means that the No 22A Order is in effect.
The Council has told me that they gave notice of their intention to enter onto the property on 6 October 2020 to Mary Bobolas by a notice placed on the front fence of the premises in Boonara Avenue Bondi on 22 September 2020. I note that the Applicants filed a notice of motion in the Court on 15 September 2020 in which they seek an order pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15 and 36.16, seeking to set aside the decision in Bobolas No 2.
An affidavit sworn by Elena Bobolas is attached to that notice of motion which states that the Applicants consider the Council did not provide full candour to the Court in the hearing on 1 September 2020 and the Applicants were unable to attend due to COVID-19 symptoms. That is a matter I referred to in my judgment, in Bobolas No 2 at [8], [12]. The Applicants wish to have a fair hearing to present evidence and they believe it is in the interests of equity and fairness that they have the notice of motion heard. Further, the Applicants allege that the terms of the No 22A Order were not addressed during the hearing and the structure of the No 22A Order issued by the Council was not addressed during the hearing. They allege bias on my part, and state that clean-up works by them continue in the yard.
Essentially today, I have before me as duty judge an urgent application heard by telephone because the Applicants are concerned that the Council intends to enter onto the premises tomorrow at 7am, as advised in the notice provided to them, and may remove personal items.
There are two bases for the injunction application. The first is that the Applicants wish to have certain personal items not removed by the Council tomorrow morning, if the Council proceeds with clean-up works. The second basis of the application is that they seek an interlocutory injunction stopping the Council entering their property to undertake clean-up works until their notice of motion is heard on 16 October 2020.
I have heard submissions from the Applicants, Elena and Liana Bobolas, and Ms Reid, counsel for the Respondent, for an hour and a half, and I am now giving judgment in relation to the interlocutory injunction application.
As advised by the Council, there are well-established principles to consider in relation to the granting of interlocutory injunction applications. These are set out by Biscoe J in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4] and [5] which I adopt. As the Council identified in its submissions, one of the considerations is whether or not there is a serious question to be tried, and the second is where the balance of convenience lies.
In relation to whether there is a serious question to be tried, I refer briefly to the requirements of r 36.15. It provides a general power to set aside judgments or orders under the UCPR, and states:
Part 36 Judgments and orders
…
Division 4 Setting aside and variation of judgments
36.15 General power to set aside judgment or order
(1) 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.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
As the Council submitted, there is no suggestion of irregularity, illegality or lack of good faith in Bobolas No 2 in the Applicants' oral submissions or in the affidavit of Ms Elena Bobolas filed in support of the notice of motion summarised above in [5].
Turning to r 36.16, "Further power to set aside or vary judgment or order", I note that under subr (3A) of r 36.16, any notice of motion seeking to rely on r 36.16 should be filed within 14 days and I accept that the relevant time period was complied with in that the motion was filed on 15 September 2020. The issue arises whether or not there is a serious question to be tried in relation to the Applicants' likelihood of success in relation to the setting aside of Bobolas No 2 within the terms of r 36.16.
In addition to the affidavit supporting their motion, the Applicants have stated that they believe the terms of the No 22A Order should be considered. They are concerned about the scope of work to be undertaken. They understand that there is a risk of personal items being removed and strongly assert that they have nearly finished complying with the requirements of the No 22A Order issued by the Council earlier this year.
The Council submits that no serious question to be tried is demonstrated by the Applicants' submissions. I agree. None of the matters address the findings of Bobolas No 2 which, as I stress again, was a judicial review proceeding, there being no merits appeal available to the Applicants in relation to an emergency the No 22A Order.
The exercise of the power in r 36.16 is not an "open slather" opportunity to have a rehearing. The Council referred to a large number of cases referred to in the annotated UCPR in Thomson Reuters, NSW Civil Procedure (online at October 2020) [36.16.20-36.16.260] which demonstrate to me the very limited circumstances in which a court is likely to be prepared to set aside an order otherwise properly made. I particularly consider that Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 (Autodesk) is relevant which states that there is to be no rehearing of a matter in an application under r 36.16. I make that observation and apply that case because the essential thrust of the Applicants' submission today has been that they wish to re-argue their judicial review application and include the merits of the No 22A Order. The latter is simply not a matter to which I can have regard. Therefore, I do not consider that in relation to the notice of motion filed by the Applicants listed to be heard on 16 October 2020 there is a sufficiently serious question to be tried to justify an interlocutory injunction application.
Similarly, on the balance of convenience, this matter has a long history as set out in Bobolas No 2. The original No 22A Order was issued on 29 January 2020 and was an emergency order issued by the Council on the grounds of public health concerns.
Ms Reid has outlined the substantial efforts made by the Council to ensure a proper conduct of the clean-up tomorrow, including reference being made to the attendance of council rangers having regard to traffic control, COVID-19 safety and pedestrian safety.
Although I am of course glad to hear the Applicants have been doing their best to try and clear the premises themselves, ultimately the fact that efforts are being made is irrelevant to this application.
It follows that the many matters put in reply by the Applicants are essentially on irrelevant issues and do not suggest to me that I should do other than refuse the interlocutory injunction application made this afternoon.
The oral interlocutory injunction application is dismissed. I note Ms Reid's observation that Mr Schilt, council ranger, understands that ladders and potted plants are personal items and are not to be removed.
[3]
Orders
The Court orders:
1. The Applicants' urgent oral interlocutory injunction application of 5 October 2020 made by telephone seeking that:
1. the Council not remove certain personal items at the clean-up commencing at 7am on 6 October 2020 at a property in Boonara Avenue Bondi; and
2. alternatively, the Council not enter the Boonara Avenue Bondi property to undertake the clean-up until the Applicants' notice of motion filed 15 September 2020 is heard on 16 October 2020
is dismissed.
1. The Applicants Elena Bobolas and Liana Bobolas are to pay the Council's costs.
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Decision last updated: 09 October 2020