Waverley Council v Bobolas

EX TEMPORE Judgment 1This is a motion by Waverley Council to amend orders 2 and 6 made by me in these proceedings on 4 March 2014: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16. The proposed amendments would extend the times for the Council to carry out clean-up works and for prior service for which those orders provide. Orders 1, 2, and 6 were in the following terms: (1) Pursuant to section 678(10) of the Local Government Act 1993 the applicant, Waverley Council, its servants and agents is ordered to execute the Council's functions under s 678 by carrying out work which was required to be carried out at the Premises at 19 Boonara Avenue, Bondi ("the Premises") under "Terms of the Orders" of the orders dated 5 December 2012 given to each of the respondents pursuant to s 124 of the Local Government Act 1993 ("the Works"), being removal of all accumulations of waste from the front and rear yards, the area between the house and side boundaries, the front verandah and side entrance of the house on the premises being work which each of the respondents was required to do but failed to do. (2) The applicant, its servants and agents for the purposes of these orders, now and until these orders have been carried out, shall be entitled to enter and remain on the premises to carry out these orders and between reasonable hours of the day during weekdays, being 7am to 3pm on Monday 17 March 2014, Tuesday 18 March 2014, Wednesday 19 March 2014, Thursday 20 March 2014 and Friday 21 March 2014. ... (6) Provided a sealed copy of these orders are served on the respondents by affixing the Orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 3 days before the works commence, the works may commence on the Premises on 17 March 2014. ... 2In addition, I made a number of ancillary or machinery orders including an order granting liberty to the Council to apply on 24 hours notice for the purpose of extending the times to clean up the property should that be required. The orders were entered on 5 March 2014. 3Pursuant to the orders, the Council arranged for the clean-up work to commence on Monday 17 March 2014. This was frustrated by the following developments initiated by the respondents in the Court of Appeal at close to the last moment, as a result of which the work has still not commenced and cannot commence within the timeframe for which orders 2 and 6 provide: (a)On Friday 14 March 2014, the respondents filed a notice of appeal against my judgment as well as a notice of motion in the Court of Appeal seeking a stay of my orders until their appeal was heard. On the same day, Schmidt J heard the motion ex parte, granted a stay until further order, and listed the motion for further hearing at 2pm on Monday 17 March 2014 when the Council would have the opportunity of appearing and being heard: Bobolas v Waverley Council [2014] NSWCA 66. (b)The orders made by Schmidt J were served on a Council legal representative at about 7am on Monday 17 March, 2014. At 2 pm that day the respondents' motion was heard by Ward JA. The Council appeared and contested the motion. Ward JA reserved judgment. On 25 March 2014 her Honour delivered judgment in which she dismissed the respondents' notice of motion with costs and discharged the stay ordered by Schmidt J with effect from 7am on Monday 31 March 2014: Bobolas v Waverley Council [2014] NSWCA 78. Her Honour held that the evidence did not disclose any arguable grounds of appeal, including grounds of appeal alleging bias or apprehended bias on my part: at [114]. Her Honour rejected a contention by one of the respondents that her Honour had also shown apprehended bias: at [151]. 4On 31 March 2014, the Council filed a notice of motion in this Court, which I am now hearing, seeking the following amendments to my orders 2 and 6: 1. Order 2 of the orders made on 4 March 2014 is to be substituted with the following: The Applicant, its, servants and agents for the purposes of these orders, now and until these orders have been carried out, shall be entitled to enter and remain on the Premises to carry out these orders and between reasonable hours of the day during weekdays, being 7am to 3pm on Friday 11 April 2014, Monday 14 April 2014, Tuesday 15 April 2014, Wednesday 16 April 2014 and Thursday 17 April 2014. 2.Order 6 of the orders made on 4 March 2014 is to be substituted with the following: Provided a sealed copy of these orders are served on the respondents by affixing the Orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises by 5.00pm on Wednesday 9 April 2014, the works may commence on the Premises on Friday 11 April 2014 at 7.00 am. 5The need for the proposed amendments arises because my orders could not be implemented in the timeframe for which they provided because of the temporary stay granted by the Court of Appeal on the respondents' motion, which ultimately was dismissed with costs. It is clear that Ward JA contemplated that the Council could carry out the works after 7 am on Monday 31 March 2014. 6The respondents appeared at the hearing this morning stating, as they usually do, that they appear under objection, protest and duress. The respondents make the following submissions or raise the following matters, some of which constitute impermissible canvassing of final orders. First, they assert that some orders including orders 3, 4, 5, 8, 9A and 10 made by me are no longer required, or are excessive and beyond what is reasonably required. I am not persuaded that it is open to them to now canvass those orders, but even if it is, I am not persuaded that they should be altered. 7Next, the respondents propose that they should now be given a month or two to carry out the work themselves, that this would not prejudice the Council, and that the fact that the Court of Appeal granted a stay for a limited time indicates that it was reasonable for more time to be allowed than I had provided for. There is some substance in the last point in that Ward JA was persuaded that there should be a stay for a limited period until 31 March 2014 to enable the respondents to remove any valuables: at [157]. However, I do not think it takes the matter any further than that. The respondents refer to an unrelated case where a respondent was given a period of months to carry out the work, to which I say that every case must be decided on its own facts. The proposition that they should now be given substantial time to carry out the work themselves was put to Ward JA who rejected it: at [134]-[136]. Given the extended history of the matter and the opportunity that the respondents have already had to carry out work and the public health risks, I do not accede to the proposition that the respondents should be given more time to carry out the works themselves. 8Next, the respondents refer to my order 9, which was in the following terms: "All objects located anywhere outside the dwelling house at the Premises at 7am on the day when the works commenced will be deemed to be waste and the applicant, its servants and agents are authorised to remove same". The respondents say from the bar table that there are some objects outside the dwelling house which should not be regarded as waste, including (as I understand it) a double-glazed glass panel stand and some bricks. I am not persuaded that order 9 should be varied. 9Next, the respondents allege that in 2009 there was fraud by a Mr Twigg, a process server for the Council, when he said in a September 2009 affidavit of service in earlier proceedings between the parties that he had served a statement of claim on one of the respondents, Mary Bobolas on 31 August 2009. The basis for this allegation is in an affidavit of one of the respondents, Liana Bobolas, sworn today, filed in Court and read, in which she says that in early August 2009 her mother Mary Bobolas was held in a psychiatric unit and was there beyond 31 August, 2009. As I understand it, the respondents say that therefore Mr Twigg lied when he said in his September 2009 affidavit of service that he served Mary Bobolas on 31 August 2009. Whatever be the truth of that matter back in 2009 in other proceedings, in my view it does not bear sufficiently on the matter with which I am now dealing. That is so, even if there were the necessary formal application to set aside a judgment on the basis of fraud, which there is not. Liana Bobolas now interrupts the delivery of these reasons for judgment to orally seek leave to file such an application now (as I understand it, to be heard instanter), which I decline to grant. To this she responds that I am showing bias: I will address that contention shortly. 10Next, a hearsay objection is taken to paragraph 3 of the affidavit of 27 March 2014 of Mr Webber, solicitor for the Council, read by the Council on its motion before me today where he recounts a telephone conversation with the solicitor for the Council with the carriage of this matter at about 7 am on 17 March 2014, who reported that the Council had been served with orders from the Court of Appeal granting a stay of my orders and that the notice of motion was listed for 2 pm that day in the Supreme Court. In my opinion, the evidence is admissible to record the fact of the communication and to explain Mr Webber's response to the other solicitor that: "No work can start until the stay has been lifted by the Court so you will have to send the contractors home for the day until we have had the hearing of the Notice of Motion". 11Next, the respondents say that if there really is a public health issue, then the Council should have sought expedition of the proceedings. I have made findings that there are serious public health issues (Waverly Council v Bobolas (No 3) at [33]), which Ward JA emphasised in her Honour's judgment: at [128]. 12Next, the respondents say that there may be prejudice to the them in terms of costs if the Council carries the work out and charges the respondents. That is true; but in the circumstances I do not think that is sufficient for me to accede to the proposition that the respondents should now be given time to carry out the work themselves. It is also said that there may be some psychological effect on the respondents if the Council carries out the work. That may or may not be so, but I do not regard the submission as of sufficient weight to accede to the respondents' proposal. 13Next, the respondents submit that I should not amend order 6 as proposed because it truncates the period of service prior to carrying out the works from three days to two days. That is true, nevertheless in the circumstances I think that is reasonable. 14I return to the allegation of apprehended bias made against me during the course of delivering these reasons, referred to at the end of [9] above. The principles and authorities pertaining to apprehended bias were analysed by Ward JA on the hearing of the respondents' motion by her Honour, to which I have earlier referred in the context of an unsuccessful contention by one of the respondents that Ward JA had demonstrated apprehended bias: at [142]-[151]. I respectfully adopt that analysis. The test of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. I am not persuaded that an informed fair-minded lay observer would reasonably have formed the view on hearing what I said that there was bias, or that there was a reasonable apprehension that as the decision maker I would not be able to bring an impartial mind to the determination of the issues. 15Finally, Liana Bobolas now applies orally during the course of my delivering reasons for judgment for an order protecting property and goods under 12.11 of the Uniform Civil Procedure Rules 2005. In my opinion, a case has not been made out for making such an order. 16The orders of the Court will be as sought in paras 1 and 2 of the Council's notice of motion filed on 31 March 2014, which are set out above at [4]. The respondents are to pay the applicant's costs of the notice of motion. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2014