Waverley Council v Bobolas

Waverley Council v Bobolas - [2009] NSWLEC 211 - NSWLEC 2009 case summary — Zoe

[12]

4 The owner of the premises is Mary Bobolas, the First Respondent, as is clear from the property title search tendered by the Council as exhibit A. The Second and Third Respondents have advised the Court that she is confined to a psychiatric institution. They have not told the Court where. She has not appeared in the proceedings. Very recently, on 4 December 2009 the NSW Trustee was appointed as the manager of her estate under the NSW Trustee and Guardian Act 2009 (the NSW Guardian Act). Under r 7.14(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) a person under legal incapacity may not commence or carry on proceedings except by a tutor. Under r 7.15(3) for a person whose estate is subject to the management under the NSW Trustee and Guardian Act the tutor for that person is to be the person who has the management of the person's estate under that Act. In a letter dated 8 December 2009 to the Council's solicitors the NSW trustee stated: We understand that you act for Waverley Council in proceedings against Mrs Bobolas and her property located at 19 Boonara Avenue, Bondi. We further understand that this matter is listed for hearing tomorrow morning and you will be seeking orders to allow clean up of the property and to restrain the client's daughters from interfering with the clean up of the property. We advise that the NSW Trustee and Guardian has the authority to deal with the property of Mrs Bobolas in accordance with Section 16 of the NSW Trustee and Guardian Act 2009 (NSW). The NSW Trustee and Guardian neither opposes or consents to orders being made to allow Waverley Council to clean up the client's property. We advise that we will abide by any clean up orders made by the Land and Environment Court in these proceedings. 5 By facsimile notice handed up in Court during the hearing by the Council's counsel at the request of the NSW Trustee and Guardian, the NSW Trustee filed a submitting appearance on behalf of the First Respondent. In an email from the NSW Trustee also handed up in Court it agrees that it has power to do so by virtue of s 16(s) of the NSW Guardian Act which refers to the function of the trustee of defending suits. 6 Under r 7.15(1) of the UCPR a person becomes tutor for a person under legal incapacity without the need for any formal instrument of appointment or any order of a court, subject to Div 4 of the UCPR. Under r 7.16 a tutor may not carry on proceedings on behalf of a person under legal incapacity unless their consent has been filed. I ruled during the hearing that there was no necessity to declare a tutor for the First Respondent in accordance with the UCPR in view of these circumstances. As provided for under s 10 of the Civil Procedure Act 2005 a court can waive a rule if the particular circumstances warrant it.

[30]

26 In his second affidavit sworn 24 June 2009 Mr Da Rocha refers to an affidavit he swore on 15 July 2008 which refers to the clean up of the premises that took place between 5-9 December 2005. Mr Da Rocha was present at the clean up on 5 and 6 December 2005 and was there to assist in preparing the premises for the clean up by placing barriers around the site, making road closures and ensuring only authorised persons were on the premises in the interests of safety. He recalls that on both days there were a number of people in the area of the premises in opposition to the Respondents and whom Mr Da Rocha was concerned would make the situation worse. He states that the Respondents were very distressed during the clean up and did not want the rubbish removed. Mr Da Rocha observed a bobcat and small excavator being used to remove rubbish from the premises. The size of the bobcat made the clean up progress slowly. He recalls that as the rubbish was removed a strong odour emanated from the piles of rubbish. He noticed large rats amongst the rubbish. Mr Da Rocha recalls that the Council had assumed that the work would take three days but it ended up taking five due to constant interruptions by the Respondents. The Second and Third Respondents would climb onto the rubbish and try to keep it away from the machines. All three of the Respondents would also attempt to pick up material from where the bobcat was operating. The Respondents would often indicate that they wanted to save something from the rubbish which caused further interruptions. The Respondents also suggested the bobcat had destroyed belongings of theirs. He held significant concerns for the safety of the Respondents and so the clean up was regularly interrupted. Mr Da Rocha recalls that damage was caused to a tap at the water main at the front of the premises by the bobcat or excavator. Someone from Council attended the premises to fix the water meter. He also states that some small weeds or shrubs were also damaged in the clean up. Some pavers were also damaged and the Council later on 19 December 2005 sent someone to fix the pavers.

[37]

34 An affidavit of Sally Couacaud sworn 1 May 2007 was read for the Respondents. Ms Couacaud resides in Tamarama Street, Bondi and states that she has been a neighbour of the First Respondent for approximately 10 years. She attests that the Respondents are all of good character. She states that she witnessed the clean up operations in December 2005 and saw the Council removing goods from the yard without the permission of the Respondents. Ms Couacaud protested the Council's actions at the time and observed damage being caused including the removal of the gate, trees being knocked over and a water main being broken. This occurred because the Council's machinery was inappropriately large. She did not observe the Respondents obstructing the works at any time in December 2005 or January 2007. Ms Couacaud is aware that the First Respondent has a stress-related psychological condition that causes her to collect materials and leave them in her yard. The action taken against the Respondents has been inappropriate and unnecessary. At the time of swearing her affidavit Ms Couacaud attests that there is no problem at the premises. Finding 35 As identified above the Council is seeking orders under s 678(10) of the LG Act in relation to the three orders made by it under s 124 (cl 22A) of the LG Act on 29 January 2009. The Council is seeking orders as against the owner, the First Respondent, and the occupiers, the Second and Third Respondents, that the Council through its contractors enter the premises and remove a substantial amount of rubbish from the premises which has accumulated across the whole yard outside the premises on the ground, in an outside area which is the front verandah of the premises and in alcoves at the side of the house. 36 Mr Schilt's evidence establishes the necessity for the order to be made and I note that there is some urgency to clean up before the summer season, due to odour from the rubbish. I note the matter was originally heard in October 2009 and the hearing delayed until 9 December 2009 to enable the Respondents' appeal against the refusal of legal aid. Consequently, the Council now seeks orders as against each of the Respondents which will enable its contractors to commence work on the premises shortly, that is on Monday 14 December 2009. 37 In relation to whether the Council has established the need to have the orders made, the affidavit evidence of the Council's officer, Mr Schilt, identifies that he has the relevant expertise to form the opinion required by s 124 (cl 22A) of an environmental health officer under the Public Health Act, given his role as an environmental health surveyor under that Act. He identifies the scale of the waste and rubbish collected across the entire front yard and rear yard of the premises. This is voluminous as shown in numerous photographs annexed to Mr Schilts' affidavits. 38 There is evidence that the premises is residential which is one of the criteria referred to in s 124 (cl 22A). In relation to the decision to issue the orders made by Mr Schilt, his evidence confirms that he formed the appropriate opinion required under s 124 (cl 22A). This evidence was not affected by his cross-examination. The orders were validly issued by the Council. 39 I should also note that I think that the orders were validly issued both to the First Respondent, the owner of the premises, and also to the Second and Third Respondents as the occupiers of the premises. I note that under column 3 in s 124 (cl 22A) the orders may be issued to the owner or occupier of the premises and "or" in that case means that each of them can receive the order, as occurred in this case. I note that contrary to the broad terms of the s 124 (cl 22A) order sought by the Council, the orders before me seek only its enforcement in relation to the external areas of the premises. 40 In relation to service of the Council's s 124 (cl 22A) orders, it is the evidence of Mr Da Rocha in his affidavit sworn 28 May 2009 that service of the orders was effected in accordance with s 710(c) and (e) of the LG Act through delivery to the premises by Council officers including himself, by mail being registered post, and affixing of the orders to the premises. This was further confirmed by his evidence in cross-examination, particularly in relation to service by personal delivery as he saw the relevant orders being placed in the envelopes that were then delivered to the premises.

[42]

45 It is clear from the affidavit of the Third Respondent that she disagrees with the affidavit of Mr Da Rocha in relation to the clean up in 2005. It is her evidence that the Respondents did not interfere with the clean up in 2005 and 2007. Her allegations of assault by Council officers and others on herself in her affidavit were difficult for the Council to deal with given the service of the affidavit at the hearing. To the extent that the Third Respondent's evidence conflicts with that of Mr Da Rocha who gave clear and extensive evidence about the clean up process in 2005, I consider his evidence concerning what occurred at the 2005 clean up should be preferred as he was the Council officer seeking to carry out his duties in difficult circumstances and his evidence withstood strenuous cross-examination by the Third Respondent. 46 The Third Respondent also gave evidence that the Council damaged the premises during the previous clean up and has not repaired it. Exhibit C is a letter from the Council's solicitors offering to repair any damage. Mr Da Rocas stated in oral evidence that the Council sent contractors to carry out repairs but was telephoned four times to be told that the contractors were refused entry. It is clear that the damage to the water main and tap in 2005 was repaired. 47 This matter was originally to be heard in October 2009 and the hearing delayed until 9 December 2009 to enable the Respondents' legal aid appeal to be determined. The appeal was refused in November 2009. The Council seeks an order which will enable its contractors to commence on Monday 14 December 2009 so that work can be completed before the holiday period in December 2009/January 2010. That urgency is justified in the circumstances outlined in the affidavit of Mr Schilt and has resulted from the elongated time frame over which it has been necessary to consider the matter. Similar although not identical orders to those sought have been made by the Court previously in 2005 and 2007 for the Council to enter the premises and remove rubbish as referred to in the evidence. 48 I note that the Second and Third Respondents have sought the opportunity to do the clean up themselves and they showed me at the view a small pile of material on the nature strip which they have put out for collection by the Council. I have been informed in their submissions made to me this morning that they have put out more material, however given the very large volume of rubbish on the premises, it will take many months, possibly years, to clean up at that rate. I do not consider that is a viable option and it is too little too late. This was the only effort made to remove some of the material to which my attention has been drawn and the orders under s 124 (cl 22A) of the LG Act were supposed to have been complied with in March this year. 49 The Council also seeks orders restraining the Second and Third Respondents from hindering the clean up, relying on the evidence of Mr Da Rocha about what has occurred in the past on the same premises in terms of interference with the operations. There is substantial disagreement about what has occurred on previous occasions when the Council has entered the premises pursuant to court orders to undertake a clean up similar to the orders sought now. Mr Da Rocha was cross-examined by the Third Respondent about matters during the clean up in 2005 such as whether or not he or other Council officers assaulted one of the Respondents, which he denied firmly. He appeared to be a credible witness and I accept the contents of his affidavit concerning what occurred at the 2005 clean up. There is evidence establishing the necessity for this order also.

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