(1992) 177 CLR 292
Lewis v Spencer [2007] NSWSC 1383
Source
Original judgment source is linked above.
Catchwords
(1992) 177 CLR 292
Lewis v Spencer [2007] NSWSC 1383
Judgment (5 paragraphs)
[1]
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
Litigants in person (Respondents)
File Number(s): 41027 of 2014
[2]
Judgment
Waverley Council (the Council) commenced Class 4 civil enforcement proceedings seeking orders for the removal of waste inter alia from a residential property in Waverley occupied by, Ms M Bobolas, Ms E Bobolas and Ms L Bobolas, the First, Second and Third Respondents. Final judgment was delivered and orders made on 24 April 2015. Ms E Bobolas and Ms L Bobolas (the Respondents) filed on 7 May 2015 a Notice of Motion dated 30 April 2015. The main purpose of the motion is to seek an order to set aside the judgment and orders of the Court on 24 April 2015. The Respondents were not present at the hearing on 23 and 24 April or when judgment was delivered and orders made on 24 April 2015. They rely on Uniform Civil Procedure Rules 2005 (UCPR) rr 36.15 and 36.16 in their Notice of Motion.
These rules relevantly state that the court may set aside or vary a judgment or order if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith (r 36.15(1)) or if the judgment or order was made in the absence of a party, whether or not the absent party had notice of the relevant hearing (r 36.16(2)(b)).
It is necessary to summarise the judgment of Sheahan J in Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 delivered on 24 April 2015. His Honour identified that there was no appearance by any of the Respondents on the first day of the substantive hearing on 23 April 2015 at [5]. His Honour then dealt with two matters. The first was an (implied) application to adjourn the hearing by the Respondents on the basis that an application for legal aid was being made. The receipt of the application by the Court in unorthodox circumstances is outlined in the judgment at [6]-[12]. His Honour made orders outlined in [13] and adjourned the Respondents' application to 10 am on 24 April 2015 and made orders for the Respondents to be notified immediately. A letter received by the Court from the Legal Aid Commission (LAC) dated 22 April 2015 advising of the refusal of legal aid to the Respondents is set out at [16]. The letter states that legal aid is not available in matters of this kind. The letter refers to the right of appeal under s 57 of the Legal Aid Commission Act 1979 (NSW) (LAC Act) to the Legal Aid Review Committee. His Honour referred to a document headed "SMO" received by facsimile in chambers from the Respondents (identified as MFI-1 before me). No appearance by the Respondents on 24 April 2015 is recorded in the judgment at [19]. His Honour gave leave to the Council to proceed ex parte under UCPR r 29.7. His Honour considered whether any appeal under s 57 was bona fide and concluded that it was not, at [27]. He dismissed the Respondents' motion at [28]. His Honour then considered the second matter, being the substantive issues in the Class 4 summons at [45]-[55] and summarised the Council's evidence at [56]-[62]. His Honour resolved to make the orders sought at [69].
The orders made 24 April 2015 provide :
1 The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015 is dismissed.
2 orders that in these orders:
"Demolition Order" means the order no. 2 dated 8 July 2014 given by the applicant to the first respondent pursuant to Section 121B of the Environmental Planning and Assessment Act 1979 requiring the first respondent to carry out the Demolition Works;
"Demolition Works" means the works required to be carried out at the Premises by the Demolition Order;
"House" means the dwelling house erected on the Premises;
"Premises" means the premises at 19 Boonara Avenue, Bondi;
"Refrain Order" means the orders no. 22A dated 1 August 2014 given by the applicant to each of the respondents pursuant to section 124 of the Local Government Act 1993 requiring each of the respondents to refrain from keeping waste on the Premises;
"Removal Order" means the orders no. 22A dated 1 August 2014 given by the applicant to each of the respondents pursuant to section 124 of the Local Government Act 1979 requiring each of the respondents to carry out the Removal Works;
"Removal Works" means the works required to be carried out at the Premises by the Removal Order;
"Safety Order" means the order no. 21 dated 8 July 2014 given by the applicant to the first respondent pursuant to section 124 of the Local Government Act 1993 requiring the first respondent to carry out the Safety Works;
"Safety Works" means the works required to be carried out at the Premises by the Safety Order;
"Works" means the Demolition Works, the Removal Works and the Safety Works.
3 declares that the Respondents have not complied with the terms of the orders no. 22A dated 1 August 2014 given by the applicant to each of the respondents pursuant to section 124 of the Local Government Act 1993 requiring each of the respondents to refrain from keeping waste on the Premises.
4 orders that from the date of these orders the Respondents and each of them refrain from keeping waste on the Premises, including the front and rear yards, the area between the House and side boundaries and on the front verandah of the House.
5 orders that pursuant to section 678(10) of the Local Government Act 1993 the applicant, its servants and agents execute the Council's functions under s 678 by carrying out the Safety Works which were required to be carried out at the Premises by the Safety Order being works which the first respondent was required to do but failed to do.
6 orders that pursuant to section 121ZJ of the Environmental Planning and Assessment Act 1979 the applicant, its servants and agents execute the Council's functions under s 121ZJ by carrying out the Demolition Works which were required to be carried out at the Premises by the Demolition Order being work which the first respondent was required to do but failed to do.
7 orders that pursuant to section 678(10) of the Local Government Act 1993 the applicant, its servants and agents execute the Council's functions under s 678 by carrying out the Removal Works which were required to be carried out at the Premises by the Removal Order being works which each of the respondents was required to do but failed to do.
8 orders that subject to compliance with order 9 below, the applicant, its servants and agents, shall be entitled to commence the Works and for the purposes of these orders, now and until these orders have been carried out, to enter and remain on the Premises to carry out the Works during weekdays between the hours of 7am to 3pm.
9 a. orders that a sealed copy of these orders be served on each of the respondents by affixing the orders in sealed clear soft plastic pockets to the outside of the double front gates of the Premises within 3 working days of the date of these orders,
b. further orders that not less than 3 days before the Works commence, the Applicant shall give notice in writing to each of the respondents of the date of intended commencement of the works by affixing such notice in sealed clear soft plastic pockets to the outside of the double front gates of the Premises.
10 orders that a structural engineer employed by the applicant shall be entitled to enter and remain on the Premises whilst the Works are carried out in order to assess the structural integrity of the House, garage and driveway and make any recommendations to the applicant, its servants and agents as to the carrying out of Works in a safe and effective manner.
11 orders that the applicant its servants and agents be permitted during the Works, if in their opinion it is prudent to do so, to disconnect the electricity or other utility services to the Premises. Where such a disconnection has occurred it must be reconnected as soon as reasonably practicable and in any event at the conclusion of the day's work.
12 orders that the applicant its servants and agents be permitted during the Works, to forcefully unlock and remove any gates on the Premises including the gates located at the side boundaries of the Premises and the front of the Premises in order to gain access to the front and rear yards, the areas between the House and side boundaries and the front verandah of the House on the Premises. Any locks or gates removed shall be replaced by the applicant so as to restore the locks and gates to the condition prior to removal by applicant or its servants and agents.
13 orders that the respondents may remove from the front and rear yards, the area between the House and the side boundaries, the front verandah of the House and the garage any object of value which they do not wish to be removed by the applicant, its servants and agents by 7am on the day when the works commence.
14 orders that the respondents, their servants and agents abstain from doing any act which might interfere with or impede the entry by the applicant, its servants and agents onto the Premises and then remaining on the Premises pursuant to these orders and which might interfere with and impede the applicant, its servants and agents in complying with these orders, and that the respondents, their servants and agents stay a safe distance of at least 10 metres from any operating machinery and trucks on or in the vicinity of the Premises.
15 orders that for the purposes of these orders and the orders under s 124 Local Government Act and s 121B Environmental Planning & Assessment Act waste means all objects located anywhere on the premises and outside the House at 7am on the day when the Works commence.
16 orders that the applicant its servants and agents may cut vegetation at the Premises if that is reasonably required to facilitate the Works.
17 orders that any motor vehicle (registered or otherwise) which is parked in the driveway in front of the Premises or on the road in front of the driveway and which impedes or poses a danger to the Works may be removed by an appropriate towing company a sufficient distance from the Premises to allow the Works to proceed in an efficient and safe manner.
18 orders that the Respondents pay the Council's reasonable expenses incurred by Council in its execution of these orders
19 orders that the Respondents pay the Council's legal costs of or incidental to these proceedings as agreed or assessed;
20 the parties are to have liberty to apply on two days' notice in respect of the "working out" of the Court's orders.
The "Safety Order" identified (above in par 4) in Order 2 concerns a Creeping Fig plant that the Council has identified to be the cause of guttering damage on the property and likely damage to a boundary fence. The "Demolition Order" also identified in Order 2 concerns a garage building on the property that has become dilapidated, unstable and is likely to collapse.
At the outset of the Notice of Motion hearing before me I told the parties of an email from the LAC to the Court advising that the Respondents' application for review of the refusal of legal aid considered by the Legal Aid Review Committee at its meeting on 3 June 2015 had not been successful. I did not allow the Respondents' application for adjournment on the basis that they needed time to respond to the Council's affidavit evidence in reply as the Council did not read that material before me.
The Respondents read the affidavits of Ms L Bobolas affirmed 30 April 2015, 17 May 2015 and 21 May 2015 and the affidavit of Ms E Bobolas affirmed 14 May 2015. Ms L Bobolas' affidavit of 30 April 2015 details her and Ms E Bobolas' attempts to obtain legal aid. She discovered on 16 April 2015 that the LAC had misplaced their application and found out on 22 April 2015 that the LAC had refused their application. Ms L Bobolas details her concerns with the plant the subject of Council order no 21 dated 8 July 2014 that she states belongs to their neighbour. She also states that the garage on the property does not belong to Ms M Bobolas but to herself and Ms E Bobolas. Ms L Bobolas also extensively criticises Council officer Mr Schilt's behaviour. It is unnecessary to set out all of that criticism.
Ms E Bobolas' affidavit of 14 May 2015 documents her attempts to obtain legal advice, first by sending an application for legal aid to the LAC on or before 6 March 2015 and subsequently contacting the NSW Bar Association, the Law Society of NSW and the Inner City Legal Centre Division of Legal Aid. Ms E Bobolas details her concerns with the lengthy duration of the determination of her legal aid application. Ms E Bobolas states that when she visited the LAC on 16 April 2015 she discovered that her application was lost. She resubmitted her application, which was stamped with the date 16 April 2015. Pages 1 and 3 of Ms E Bobolas' application became annexure A to her affidavit. Ms E Bobolas explains that on 22 April 2015 her application was extended not submitted. Ms E Bobolas also annexed to her affidavit a number of documents purporting to be medical certificates.
Ms L Bobolas' affidavit of 17 May 2015 annexed 65 photographs of the back yard and side of the property. Her affidavit of 21 May 2015 details injuries to her foot and hand sustained after falling over on 16 April 2015, photographs of which are annexed to her affidavit.
Before me the Respondents submitted that they wished to make a s 57 application to review the decision of the Legal Aid Review Committee on the grounds of procedural unfairness, and the matter should be adjourned to allow them to do so (prayer 7 of the Notice of Motion). Such an application falls outside the terms of s 57(1) so that there is no basis for an adjournment in these circumstances provided in the LAC Act.
The following submissions were made. Justice Sheahan erred in finding that the legal aid application was lodged the day before the hearing on 22 April 2015. The affidavit of Ms E Bobolas dated 14 May 2015 identifies the steps taken from March 2015 to lodge an application for legal aid, her statement that she was told that her application had been lost and her further application in April 2015.
The judge was biased as he made references to the history of the matter. His bias can be seen in the transcript of the hearing as well as the judgment.
The judge was in error because the cases of Scott-Irving v State of New South Wales [2014] NSWSC 1006 and Lewis v Spencer [2007] NSWSC 1383; (2007) 179 A Crim R 48 referred to at [20]-[23] do not apply or had different circumstances.
The Respondents submitted they were too sick to attend Court for the hearing. The fact they did not attend confirms that they were unwell. Ms E Bobolas submitted that her affidavit dated 14 May 2015 showed that she suffered from on-going illness and this is confirmed in medical certificates attached to her affidavit dated 30 April 2015. The certificates do refer to absence of fitness to work and are relevant to rr 36.15 and 36.16. Ms L Bobolas relied on her affidavit dated 21 May 2015 to submit that due to her ankle and foot injury she was unable to attend Court on 23 and 24 April 2015.
The plant the subject of the "Safety Order" under s 124 of the Local Government Act 1993 (NSW) (LG Act) referred to in the Court's orders (extracted above at par 4) does not belong to the Respondents but is their neighbour's plant which the Council is well aware of.
The garage the subject of the "Demolition Order" under s 121B of the Environmental Planning and Assessment Act 1979 (EPA Act) referred to in the Court orders (extracted above at par 4) does not belong to Ms M Bobolas to whom the order is addressed but to the other Respondents.
Ms L Bobolas read her affidavit dated 17 May 2015 which shows in the 65 photographs attached that areas of the property are cleared in the backyard and at the side of the house. The Council officers failed to take realistic photographs of the property in their evidence to the Court on 23 and 24 April 2015. If realistic photos had been taken the Court would not have made the orders that it did. Efforts to maintain the premises have been made since 2014. This kind of material should have been before the Court.
The original orders under s 121B of the EPA Act and s 124 of the LG Act were invalidly issued and not served.
Numerous authorities were referred to which considered the importance of vacating hearing dates where legal aid was to be applied for, such as Liristis v Gadelrabb [2012] NSWCA 137 and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.
The orders made by Sheahan J are unclear. Further they provide no time to enable the Respondents to respond such as the 42 days provided in the original orders under s 121B of the EPA Act and s 124 of the LG Act.
Orders should not be made restraining an activity in relation to a person who has a mental health disorder such as Ms M Bobolas, who is diagnosed with obsessive compulsive disorder.
Everything outside on the property is not waste including pot plants which cannot be moved inside. The orders made are too wide and therefore unreasonable.
The evidence of Mr Schilt should not be accepted given the evidence in the affidavit of Ms L Bobolas dated 30 April 2015.
Paragraph 60 and 61 of the judgment refer to experts used by the Council and the Respondents should have had the opportunity to engage with them.
Sheahan J was unduly influenced by the matter getting a special fixture for hearing on 6 February 2015 by the Assistant Registrar. The Respondents should have the opportunity to respond.
When they offered to Mr Webber, Council's solicitor, to mention the matter for the Council, as stated in MFI-1, this was not intended to be done in person but by administrative orders sent to the Court. UCPR r 36.16(2)(b) can apply whether the Respondents had notice or not at the hearing.
[3]
Consideration
No basis for the application of r 36.15 has been established as there is no irregularity or fraud identified by the Respondents. An important consideration in the Court's exercise of discretion in determining whether to set aside a judgment and orders under r 36.16(2)(b) is fairness and whether such an order is in the interest of justice, see Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4, cited in numerous cases. Another consideration is the importance of the finality of litigation as identified in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3 cited in Northey v Bega Valley Shire Council [2012] NSWCA 28 at [14].
I agree with and largely adopt, the Council's submissions together with additional reasons in concluding that no basis is demonstrated to make the orders sought by the Respondents. In Vacuum Oil at 243 Jordan CJ stated that where a plaintiff is not in default, only in very special circumstances will a new trial be granted. In the exercise of discretion a court will consider whether any useful purpose would be served by setting aside a judgment and how the absence of a defendant came about.
The Respondents' submissions were directed in part to finding error by Sheahan J. In the interests of fairness I have as far as possible dealt with the Respondents' submissions and do not find any relevant error in the judgment, but that is not the appropriate approach to this matter. Relevant considerations are those directed to the principles identified in the authorities referred to in pars 27 and 28.
The importance of providing an opportunity to an accused to obtain legal aid is well established in criminal proceedings as held in Dietrich and other authorities. These are civil proceedings in which an application for legal aid was refused on the basis that legal aid is not available for matters of this type. None of the authorities emphasising the importance of legal aid being available referred to by the Respondents are relevant in the circumstances. Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [41]-[42] was relied on by the Respondents. However that case was directed to the duty of a represented party in proceedings with an unrepresented litigant to assist the court to understand and give full and fair consideration to the submissions of the litigant in person in quite different circumstances.
The decision of Sheahan J not to adjourn the matter was an interlocutory order which as a practical matter cannot be undone in that a final hearing has now occurred. Further, no error or unfairness in the exercise of the Court's discretion not to grant the adjournment has been identified. The Respondents were aware of the proceedings and were told by Mr Webber that they should attend and make the application for an adjournment themselves. The process for considering the unusual application made by facsimile to the Court as detailed in the judgment was fair. The LAC letter received by the Court referred to the date of the application as 22 April 2015. That Ms E Bobolas' evidence is that the application was made on 16 April 2015 can be accepted but does not suggest any material error in the judgment. Her evidence that she had to lodge an additional application to the LAC because the first application lodged was lost does not advance a case that there is any relevant error in the judgment. Further, the opportunity was afforded to the Respondents to apply for an adjournment to make an application to the Legal Aid Review Committee and despite their non-attendance to make the application in person. Their application was rejected as not being bona fide for his Honour's reasons at [20]-[27]. The authorities referred to at [20]-[23] appear relevant, contrary to the Respondent's submission.
No medical evidence from the Respondents was before Sheahan J on 23 April 2015. The medical certificates in evidence are unhelpful as relevant details such as the name of the provider and his or her location are blacked out. They are also directed to fitness to work which is not helpful in gaining an understanding of whether the Respondents were able to attend court. A properly identified medical opinion directed to the ability to attend and participate at a court hearing is the minimum needed to satisfy the Court that this could be a basis to set aside the final judgment. The material faxed to the Court on 23 April 2015, as found in MFI-1, and the telephone conversations to the Court referred to in the judgment suggest the Respondents were able to deal with the requirements of a hearing.
As outlined in the judgment, considerable effort was made to provide the opportunity to the Respondents to attend on their (implied) application to adjourn on the second day of the hearing. There was no failure to accord procedural fairness to the Respondents. No basis for setting aside the determination of the interlocutory application is established.
No error of any kind in the judgment has been demonstrated in relation to the substantive issues in the Council's summons and the orders made in relation to these. It was reasonable for Sheahan J to consider the lengthy history before the Court in relation to the Respondents' property in similar circumstances.
The LG Act order relating to the Creeping Fig is addressed to the owner/occupier of the property where the plant is located. It is irrelevant to the validity of the order that the plant comes from the next door neighbour's land.
As to whether the definition of "waste" in the orders is too broad, there is provision in the orders for individual items of value to the Respondents to be moved as the Council must give three days' notice before entering the property to undertake the work.
The garage is part of the land owned by Ms M Bobolas, and it is difficult to see legally how ownership of the garage can be transferred to Ms E Bobolas and Ms L Bobolas as is asserted. An order to the owner of a property under s 121B of the EPA Act generally includes the buildings on it. Ms M Bobolas remains the owner of the garage and the house on the land.
That no appeal is available in relation to a 22A order under s 124 of the LG Act is immaterial. That is the statutory scheme under which the order was made: see s 180(5) LG Act. The time for compliance with these two orders has long passed.
The Respondents complain that they are not given time to comply with the orders made by Sheahan J as the orders take effect immediately. The Respondents did not come to Court with any proposed timetable for doing the work required by the orders and this remains undone from July 2014. It was reasonable to make the orders in their terms on 24 April 2015.
There is no evidence before the Court of Ms M Bobolas' psychological condition and she is not a party to the motion.
Sheahan J was taken to evidence beyond that of Mr Schilt, such as photographic evidence and first-hand observations. The orders were made on the basis of the evidence as outlined in [68] and his Honour was clearly satisfied that there was waste. The criticisms of Mr Schilt in Ms L Bobolas' affidavit dated 30 April 2015 are irrelevant.
The complaint that the orders of Sheahan J were unclear appeared to be based on the absence of knowledge of the four orders under the LG Act and the EPA Act, the basis for Orders 3, 5, 6 and 7 of the orders of Sheahan J. According to his Honour's summary of the evidence at [58], he was satisfied that all procedural requirements had been met, suggesting that he was satisfied of proof of service of these orders.
In relation to the Respondents' complaint that they had not had the opportunity to respond to the Council's expert reports, directions were made which provided this opportunity to the Respondents in the course of preparation for the hearing. There is no evidence of procedural unfairness.
The photographs attached to the affidavit of Ms L Bobolas dated 17 May 2015 are not of the whole property. To the extent that cleared areas of the property exist then there is obviously less work required under the terms of the orders made by Sheahan J. There is nothing before the Court to suggest that were a new hearing to be ordered a different result would be likely.
For completeness, I note that the Respondents said at the end of their submissions that they relied on all the numerous paragraphs in the current Notice of Motion. In Waverley Council v Bobolas [2015] NSWLEC 57 delivered on 20 March 2015 I considered an earlier Notice of Motion disputing service of the originating summons filed by the Respondents on 6 February 2015, which contained substantially the same paragraphs as those found in prayers 1, 2 and 4 of the current Notice of Motion. I found in the absence of the Respondents who did not appear to argue their Notice of Motion that service of the originating summons had been effected. In the interests of finality of litigation, this judgment cannot now be reopened, so long after that decision in this Notice of Motion. It follows that prayer 6 in the current Notice of Motion cannot be considered as it appears to be an attempt to challenge an affidavit sworn by a process server dated 11 December 2014.
Further, any attempt to review the decision of the Assistant Registrar on 6 February 2015 to set the matter down for hearing in April 2015, as referred to in prayer 3 of the Notice of Motion, is also too late for the same reason. In addition, no basis for doing so because of unfairness is identified in the evidence before me. That there has been a consistent failure of the Respondents to appear before the Court for interlocutory applications and directions hearings does not give rise to a meritorious application under r 36.16(2)(b) after proceedings have been concluded.
The Respondents' Notice of Motion dated 30 April 2015 is dismissed.
[4]
Order
The Court orders:
1. The Respondents' Notice of Motion dated 30 April 2015 is dismissed.
[5]
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: 19 June 2015