Waverley Council v Bobolas

Fibre-Tek (Gold Coast) Pty Ltd (in liquidation) v Sky Bennett [2009] NSWSC 1100 CASES CITED: Lewis v Spencer [2007] NSWSC 1383 Waverley Council v Bobolas [2009] NSWLEC 131

APPLICANT Mr M Staunton SOLICITORS LEGAL REPRESENTATIVES: Willshire Webb Staunton Beattie FIRST RESPONDENT No appearance SECOND AND THIRD RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 Waverley Council (the Council) seeks court orders enforcing an order issued under s 124 of the Local Government Act 1993 (the LG Act), requiring the removal of waste from residential premises in Bondi. This matter is set down for hearing before me today. Ms Elena Bobolas and Ms Liana Bobolas, the Second and Third Respondents, appeared and advised the Court that Ms Mary Bobolas, the First Respondent, has been confined to a psychiatric institution. Her attitude and awareness of the proceedings are unknown.

2 At the outset of proceedings the Second Respondent advised that each of the Respondents seek an adjournment of the hearing because they had made an application to the Legal Aid Review Committee (the Review Committee) against the refusal of legal aid by the Legal Aid Commission (the Commission), relying on s 57 of the Legal Aid Commission Act 1979. That provision states: Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

3 The Respondents also seek an adjournment because they wish their mother, the First Respondent, to be present to give evidence and she is not otherwise represented. The Respondents ask that any hearing be delayed pending her availability.

4 The Respondents also seek a stay of the proceedings pending the determination of an appeal against an interlocutory decision of Lloyd J on 19 June 2009. It appears that an application for a stay of proceedings by the Respondents has already been made and was determined by Biscoe J on 24 July 2009 with the application being dismissed (Waverley Council v Bobolas [2009] NSWLEC 131). There is therefore no basis presented today which suggests I should entertain such an application and I decline to do so.

5 I note there is an issue as to whether an appeal against the refusal of legal aid has been filed as a letter dated 20 October 2009 to this Court from the Commission advises that no application for an appeal against a refusal of legal aid has been received from the Respondents. The Second Respondent provided sworn evidence in an affidavit dated 26 October 2009 to the effect that she has lodged an appeal. She also relies on a letter sent to the Court dated 25 September 2009 advising that an appeal against the refusal of legal aid has been lodged in a different Class 4 matter (40916 of 2009). The Second Respondent also tendered a letter dated 25 September 2009 addressed to the solicitors for the Council which refers to an application for an appeal against the refusal of legal aid being made but does not state what matter that is in relation to.

6 There is a dispute between the parties as to whether notice was given by the Respondents on or about 28 August 2009 of the intention of the Respondents to apply for an adjournment when the matter was before Lloyd J. The Respondents stated that notice was given of the intention to seek an adjournment today. In the absence of a transcript the Respondents' assertion that notice was given to his Honour on that occasion is not supported. I have not been provided with any written notice sent by the Respondents in relation to these proceedings which advised that an application for an adjournment would be made. 7 The Council stated that it had no notice of the application for adjournment and opposes such an application in any event. Because it had no notice that an application for adjournment was to be made it sought leave in Court to hand up and read two affidavits dated today, 26 October 2009, of Kendall Webber, solicitor for the Council, and Jacobus Schilt, Council officer. I gave the Council leave to do so given the circumstances

8 I have considered the submission of the Council that there are special circumstances as referred to in s 57 (c) of the Legal Aid Commission Act which suggest that the application for an adjournment ought not be granted, inter alia, on the assumption that an appeal for a refusal of legal aid has been filed (to which matter I shall return). The short affidavit of Mr Schilt attests to the current state of the property which the Respondents occupy in relation to the large volume of rubbish on the premises. This current state is compared with an inspection undertaken by Mr Schilt on 18 August 2009 which was referred to in an earlier affidavit dated 19 August 2009.

9 Mr Webber's affidavit attests to the number of times in other proceedings in this Court (40328 of 2005 and 40916 of 2006) that the Respondents have applied for legal aid and appealed unsuccessfully against the refusal of legal aid.

Finding 10 In Lewis v Spencer [2007] NSWSC 1383, Rothman J stated at [17] that s 57 of the Legal Aid Commission Act requires a court to adjourn proceedings if there is an appeal to the Review Committee or an intention to lodge such an appeal so that prima facie if these circumstances exist there should be an adjournment. Only if there are circumstances where the intention to appeal or the appeal is not bona fide, is frivolous or vexatious or is otherwise intended to improperly hinder or delay the conduct of the proceedings the adjournment may not be granted. The desire to avoid the conduct of proceedings until the person is represented, if an application for legal aid is genuine, is not an improper hindrance or delay in the conduct of the proceedings.

11 The Council relies particularly on subsections (b) and (c) of s 57. It bears the onus of establishing factors to resist an adjournment application being granted.

12 Concerning subsection (b), and whether the appeal is aimed at hindering the proceedings, in relation to the recitation by Mr Webber of the unsuccessful applications for legal aid by the Respondents in other proceedings I note that s 25 of the Legal Aid Commission Act emphasises that the relationship between an applicant for legal aid and the Legal Aid Commission staff is the same as a solicitor-client relationship so that the content of an application for legal aid and the reasons for the refusal are privileged. Only those matters set out in s 25(4) are not subject to such privilege, which includes a court being told whether a person has appealed against the refusal of such an application (s 25(4)(l)). The Court is not aware of the basis on which a grant of legal aid is made by the Respondents or the reasons for refusal, only that legal aid has been refused in the past on several occasions as is identified in Mr Webber's affidavit. I am not convinced it is appropriate in these circumstances to take into account my own view on whether legal aid is likely to be granted in light of the history presented by Mr Webber.

13 The letter of 20 October 2009 from the Commission to the Court states that no application for an appeal against the refusal of legal aid has been lodged. The sworn evidence of the Second Respondent is that she sent the form for an appeal to the Commission on 22 or 23 September 2009. I have been told that the application for legal aid was refused on 26 August 2009 and that the right to appeal expires 28 days later (s 56(2)(a)). The letter from the Commission dated 20 October 2009 does not necessarily contradict that of the Second Respondent's sworn evidence as it may be she has sent an appeal to the Commission which has been mislaid or not delivered. That she is now out of time for the filing of an appeal within 28 days as required by s 56(2) can be the subject of an application for an extension of time under s 56(2)(b) where the Review Committee considers that special circumstances exist.

14 I accept that a genuine and bona fide application for review has been made or is intended to be made by the Respondents, which is not vexatious or designed to improperly hinder or delay the conduct of the proceedings, to consider the words in s 57(b).

15 In relation s 57(c) "that there are no special circumstances that prevent it doing so" suggests that these must be very clearly established before s 57(c) can apply. The Council has essentially submitted that the regime for public health protection as set out in s 124 of the LG Act, order 22A, includes that there is no requirement to give notice before an order is issued, unlike other orders under s 124. Nor is there an appeal right against such an order. Pursuant to s 678 of the LG Act a council can usually enter onto property to undertake the work required in an order however in this case, by virtue of s 200 of the LG Act, a court order is needed because the order has been issued in relation to residential proceedings. These are submitted to be special circumstances which are relevant to s 57(c) of the Legal Aid Commission Act. I do not agree that they are special circumstances which prevent the Court granting an adjournment which is what s 57(c) specifies.

16 As identified in Lewis v Spencer and Fibre-Tek (Gold Coast) Pty Ltd (in liquidation) v Sky Bennett [2009] NSWSC 11000 the provision of legal aid and ensuring that parties are legally represented wherever attainable is an important consideration, hence s 57 of the Legal Aid Commission Act provides that the granting of an adjournment is mandatory unless the circumstances in the subsections are established.

17 While the matter is finally balanced I am minded to grant the application for an adjournment to the Second and Third Respondents. It is on condition that the appeal, which I have received sworn evidence about, has been sent to the Review Committee will be regularised as soon as possible. I will make orders requiring immediate attendance at, and/or a communication with, the Review Committee offices by the Respondents to establish the status of their legal aid appeal, with notification to this Court of what has occurred within a short time. 18 It is important that this appeal be expedited if at all possible in light of the important public health considerations raised by the Council's submissions and as detailed in the affidavit of Mr Schilt. I am not able to order the Review Committee to expedite that matter but have included these remarks in my judgment to stress the urgency of this matter. I note that had the appeal sent on 22 or 23 September 2009, as referred to by the Second Respondent, been received and processed six weeks would be up on 3 or 4 November 2009. Any delay beyond that date in dealing with the appeal would be extremely unfortunate.

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