Waverley Council v Bobolas

RESPONDENTS' APPLICATION TO ADJOURN THE COSTS HEARING 3Shortly after the applicant's notice of motion for costs was called on for hearing this morning, the three respondents orally applied for an adjournment of the hearing on the basis of the following matters put from the bar table without supporting evidence. First, although they have not obtained substantive legal advice, they have obtained advice of some sort to seek to re-open the substantive proceedings. Secondly, they have been suffering from ill health over the last two months. Thirdly, they are seeking legal aid. Fourthly, there is procedural unfairness in that at the hearing this morning the applicant provided them with a folder of documents which the respondents say should have been provided earlier. During the hearing, I dismissed the oral adjournment application for the following reasons. 4The proceedings have an extraordinarily long history. As I have indicated, the applicant obtained substantive orders in 2006, the respondents' 2007 attempt to injunct enforcement of those orders was unsuccessful, and in 2009 the applicant filed its notice of motion for costs. 5Regrettably, over the next three years there were many adjournments of the applicant's notice of motion for costs and delays, including for reasons to do with awaiting a decision on the respondents' appeal against refusal of legal aid (Waverley Council v Bobolas [2009] NSWLEC 190), challenges to the position of the NSW Trustee and Guardian as the tutor of Mary Bobolas (Waverley Council v Bobolas (LEC of NSW, 30 June 2010, unreported); Waverley Council v Bobolas [2010] NSWLEC 157; and Waverley Council v Bobolas [2010] NSWLEC 165), legal skirmishes in the Supreme Court and in the Guardianship Tribunal, and unsuccessful attempts by the applicant to settle costs issues in these and other proceedings with Mary Bobolas' tutor. Ultimately, on 27 April 2012, the NSW Trustee and Guardian was removed as Mary Bobolas' tutor in the proceedings, directions were given for the filing and service of evidence, and today's hearing date was fixed. The respondents have not filed or served any evidence. There was also a direction that the applicant provide in writing the precise amount of costs it seeks. The applicant's solicitors wrote to the respondents estimating that costs to that time totalled approximately $34,000. 6Given the history of the proceedings, I did not regard the matters put by the respondents in support of an adjournment as persuasive (see [3] above) even if it were to be assumed that the first three matters are factually correct. 7As regards the fourth matter, the allegation of procedural unfairness by not providing the folder of documents (Exhibit A) earlier than today, there were no directions to serve the documents earlier. More importantly, scrutiny of the documents in the folder satisfied me that there was no procedural unfairness. The documents comprise a chronology of the proceedings; copies of three 2009 affidavits of service on each of the respondents of the applicant's costs notice of motion and a supporting affidavit; a short letter from the NSW Trustee and Guardian to the applicant's solicitors of 17 August 2010 concerning costs; a letter from the applicant's solicitors to the respondents of 6 June 2012 relating to the quantum of costs to which I have referred above at [5]; a copy of a number of judgments against the respondents in these proceedings; and a copy of one further judgment relating to costs principles (Pittwater Council v Varney [2005] NSWLEC 651). The respondents must be familiar with the contents of most of these documents. The respondents had adequate opportunity to look through the documents during the course of the hearing today. I did not regard the documents individually or collectively as being sufficient reason to adjourn the costs motion yet again. 8The respondents also alleged from the bar table that the hearing date today was not set by mutual agreement. That was contrary to the applicant's contention. In any event, the hearing date had been fixed since 27 April 2012 and this was the first time that this allegation was made. It was not a sound reason for an adjournment. 9For these reasons, during the hearing I dismissed the respondents' oral application for an adjournment and proceeded to hear the applicant's costs motion. Later during the hearing, I gave leave to the respondents to file and read a short affidavit made by one of them during the hearing relating to some of the matters raised during the adjournment application and I indicated that it did not affect my decision to refuse that application.

APPLICANT'S COSTS MOTION 10In proceedings such as these in Class 4 of the Court's jurisdiction, the usual order is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or part of any costs: s 98 Civil Procedure Act 2005, r 42.1 Uniform Civil Procedure Rules 2005. 11The relevant event in the substantive proceedings was the making of the 2006 orders against the respondents, followed by the 2007 dismissal of their notice of motion seeking injunctive relief. 12The respondents submit that each party should bear its or her own costs because, for numerous reasons, there has been disentitling conduct by the applicant or because of other circumstances, as follows. Insofar as they comprise allegations of fact they are mostly made without supporting evidence. 13The first allegation is that the respondents were not served with the originating process. Given that the 2006 orders have not been set aside, there is no evidence to support the allegation and it is the first time that it appears to have been made, I do not accept that this can be canvassed on costs. 14Next, the respondents contend that the applicant expended costs in seeking to reach a settlement with the NSW Trustee and Guardian as the statutory financial manager of Mary Bobolas in this and other proceedings which may have led to termination of the proceedings against the second and third respondents, and that the respondents should not have to bear the costs thereof. In my view, this point has substance. Ultimately, it was conceded by the applicant that any costs order should exclude the costs of negotiation with the NSW Trustee and Guardian in respect of the settlement of costs and preparation of documents for the Court to approve settlement of costs for these proceedings and other proceedings. I propose to adopt that exclusion. 15Next, the respondents submit that the applicant's written submissions provided today should have been provided to them earlier. There was no direction that they be provided earlier. Those written submissions recount the history of the proceedings, identify relevant legal costs principles and shortly apply them to the facts. The respondents have had until this afternoon to consider them, and I have taken additional short adjournments during the day to give them more time to consider them. In my view, they have had a reasonable time to consider them and this matter does not affect costs. 16Next, the respondents submit that the original substantive proceedings determined in 2006 by Jagot J were not heard on the merits because they were ex parte, and therefore there should be no order for costs. In my view, the hearing before Jagot J was a hearing on the merits notwithstanding that the respondents did not appear. 17Next, the respondents say that in the proceedings determined in 2006 new evidence was put before the Court that they did not know about until later. There is no evidence to support this, but even if it is correct, there has been no appeal allowed against the 2006 orders and I know nothing about what the alleged new evidence was or the circumstances in which it may have been adduced. In the circumstances, this should not bear on costs. 18Next, the respondents allege that they sought advice from the applicant's then barrister some years ago as to how to proceed, which led to their unsuccessful 2007 motion seeking injunctive relief and they referred to a decision of the High Court concerning professional negligence. There is no evidence to support this allegation and I know insufficient about it, assuming it to be true, as to lead me to characterise it as disentitling conduct. 19Next, the respondents assert that in relation to a number of directions hearings when the proceedings were adjourned, the applicant failed to accept the respondents' offer to mention the proceedings on the applicant's behalf, which would have avoided costs. In my view, assuming this to be correct, the applicant did not thereby engage in disentitling conduct. 20Next, the respondents contend that at least one large affidavit filed by the applicant was never read and therefore the respondents should not have to pay the costs relating to it or relating to any other document which might fall into this category. In my view, this is a matter for the costs assessor. 21Next, the respondents say that they offered to settle with the applicant. They tendered a bundle of correspondence between the parties, which had been handed to the Court at a directions hearing on 27 April 2012 (Exhibit 1). Having looked at that material, I do not think that it is such as to attract a different costs order from the usual costs order. 22Next, the respondents contend that the 2006 orders are invalid. There has been no order by an appellate court making any such finding or setting aside those orders. Their validity cannot be questioned on this costs motion. 23Next, the respondents say that Mary Bobolas has a psychological condition and that if any costs order is made then it should be against her daughters only and not against her. It appears that the house the subject of these proceedings is owned by Mary Bobolas and that her daughters are only residents. Consequently, a costs order which excludes her conceivably may be significant in terms of its enforceability. I do not think that the reason that has been advanced is sufficient not to make a costs order, if one is to be made, against all three respondents. 24Next, the respondents allege that the conduct of council officers who attended the premises in 2007 exceeded the bounds of propriety and constituted misconduct, including assault. The evidence before me does not support the allegation. There is also an allegation of misconduct by legal representatives of the applicant. No particulars or evidence were provided. I am not prepared to act on this bare allegation. 25Next, the respondents allege that since the 2006 orders, new evidence has become available that was not available at that time. If this is correct, I am not aware of what it is. In any event, it seems to me that, if it is relevant at all, then it is relevant in an appeal against the 2006 orders rather than to costs. 26Next, the respondents submit that there was disentitling conduct by the applicant in seeking substituted service against them and (as I understand it) also in not providing some particulars which the applicant was directed to provide at some point. On the material before me, I cannot see anything sufficient in this contention as to affect costs. The respondents also say that they did not know of the applicant's motion for substituted service until after the order was made. It seems to me that that is often the case in substituted service applications. 27Next, the respondents submit that there was a referendum which decided against inclusion of reference to local governments in the Commonwealth of Australia Constitution Act and therefore the people do not recognise local councils as governments. In my view, the fact that a referendum did not decide to refer to local government in the Constitution is neither here nor there on this costs application. 28Next, the respondents submit that they should not have to pay the applicant's costs of attending directions hearings that were adjourned because they were awaiting a decision on their appeal against refusal of legal aid. They say the delay was the Legal Aid Review Committee's fault. They refer to Bobolas v Waverley Council [2011] NSWCA 242 where there was reference to exorbitant delay on the part of the Legal Aid Review Committee in determining whether legal aid would be available to the appellants. However, that was in other proceedings and was not in relation to costs. They also refer to Lewis v Spencer [2007] NSWSC 1383, 179 A Crim R 48 where it was said at [16] that an adjournment for the purpose of obtaining legal aid and being represented is not an improper hindrance or delay. This principle can be readily accepted, but Lewis was not a costs case and I do not think that the principle significantly bears on costs in the circumstances of this case. Although there does seem to have been considerable delay in determining the appeal against refusal of legal aid in these proceedings, I am not aware of the reasons and ultimately the appeal was dismissed. I accept that neither the respondents nor the applicant were at fault over this delay. However, given that the appeal was unsuccessful, it seems to me that I should not exclude this category of costs from any costs order that might otherwise be made against the respondents. 29Next, the respondents assert that the applicant protracted the proceedings. I am unable, on the material before me, to accept that submission. 30Next, the respondents submit that the applicant delayed too long in seeking costs. I assume that this is referable to the fact that the costs motion was not filed until 2009. I cannot see any prejudice to the respondents from this fact. It seems to be to their advantage that any costs order against them is made later rather than sooner. 31The applicant says that it has had difficulty in communicating with the respondents throughout the proceedings because they have provided no telephone number or email address and have no letterbox, and therefore often it was necessary to come to directions hearings to communicate with them. The respondents reply that they made clear to the applicant at an early stage that communications should be by post. It appears that, as the applicant says, there have been difficulties in communications compared with the usual case. 32In the end I am not satisfied that there has been any disentitling conduct by the applicant nor that there should be any departure from the usual costs orders except in relation to the costs of negotiations with the NSW Trustee and Guardian along the lines I have earlier indicated.

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