I have heard an amended Notice of Motion filed on 6 February 2015 by the three Respondents in their absence. I resolved earlier this afternoon to proceed ex parte. The amended Notice of Motion states in part:
1. Bobolas seeks orders for the Court pursuant to UCPR Rules 12.11(1)(a)(b) and for (c), f(i) protecting (g) and or (h) and if any extension/s is/are claimed or to be claimed or if it is claimed that any extension/s was/were given, rule 12.11(e).
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Please note: None of the Bobolas family have been personally served with any documents relating to the case listed as 14/41027.
Rule 12.11(1) of the Uniform Civil Procedure Rules 2005 (UCPR) provides:
12.11 Setting aside originating process etc
(1) In any proceedings, the court may make any of the following orders on the application of a defendant:
(a) an order setting aside the originating process,
(b) an order setting aside the service of the originating process on the defendant,
(c) an order declaring that the originating process has not been duly served on the defendant,
(d) an order discharging:
(i) any order giving leave to serve the originating process outside New South Wales, or
(ii) any order confirming service of the originating process outside New South Wales,
(e) an order discharging any order extending the validity for service of the originating process,
(f) an order protecting or releasing:
(i) property seized, or threatened with seizure, in the proceedings, or
(ii) property subject to an order restraining its disposal or in relation to which such an order is sought,
(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,
(h) an order declining to exercise jurisdiction in the proceedings,
(i) an order granting such other relief as the court thinks appropriate.
The Applicant, Waverley Council (the Council) has read a number of affidavits in support of its argument that the Notice of Motion should be dismissed on the basis the originating documents were properly served. I will briefly identify these. An affidavit of Mr Fahim, process server, sworn 11 December 2014 was read. When Mr Fahim attended the premises at which the three Respondents reside at 19 Boonara Avenue, Bondi, he states that he proceeded to enter the property and he attests to conversations he had with the three Respondents present on that occasion.
As he was attending to serve the summons commencing these proceedings, he identified to the Respondents that he was serving them with a summons. He was told that he was trespassing and he should leave the property. He informed them that he was serving them with a summons and he placed it on the property very close to them and clearly in their line of sight. Support for that is also found in the affidavit of service of Mr Meaney, process server, sworn 13 March 2015 read in these proceedings. In his affidavit he attaches a surveillance report which provides in narrative form and in photographs a record of those actions to which Mr Fahim attested in his affidavit.
In particular, I note in the surveillance report on the second page there is a photograph which shows Mr Fahim clearly placing documents within the view of the Respondents on their property. There is a DVD attached to that affidavit which was taken by Mr Meaney on that occasion. In light of the written evidence I do not need to see that.
In relation to the requirements for service, I have been directed to r 10.20(2)(a) of the UCPR in relation to how personal service is to be effected. Personal service of a document can be effected where a person does not accept a copy, by putting the copy down in the person's presence and telling the person the nature of the document. Alternatively under subsection (2), it can be left as near as practicable to that person. Mr Fahim's evidence confirms that he has effected personal service on all three Respondents as provided for by that rule and the Council has proved its case in that regard.
Additional affidavits have also been sworn more recently to confirm compliance with orders made by the Court last Friday which I note for the record. These are the further affidavit of Ms Mostafa, Council officer, sworn 19 March 2015. Ms Mostafa attests to sending by express post the affidavits relied on by the Council today, that is the affidavit of Mr Fahim sworn 11 December 2014, the further affidavit of Mr Fahim sworn 13 March 2015 and read in the proceedings. In the second affidavit Mr Fahim clarifies the identities of Leanna and Eleanor Bobolas in his earlier affidavit.
The affidavit of Mr Meaney sworn 13 March including the DVD, and the affidavit of Mr Rofe sworn 13 March 2015, were also sent by express post to 19 Boonara Avenue, Bondi. I formally note that there is a second affidavit of Mr Fahim sworn 20 March 2015 where he attests to attending at 19 Boonara Avenue, Bondi, in the company of a ranger from the Council, on 13 March 2015, when he affixed to the fence of 19 Boonara Avenue Bondi the relevant documents required to be served on the Respondents in this fashion last Friday. His second affidavit confirms that this occurred. Photographs are attached to the affidavit which show those documents being attached to the fence. The requirements of the Court last week have been complied with.
I agree with the Council that the substance of the amended Notice of Motion filed by the Respondents appears to be the issue of personal service. No basis is established to make the order sought in prayer 1 as personal service of the originating summons was effected according to the Council's evidence.
Some other matters are also referred to in the motion. Prayer 2 refers to seeking procedural fairness, impartiality, fairness, justice, equity, lack of predetermination, prejudgment and discrimination and lack of bias. There is no need for me to make an order in those terms. That is the Court's approach to all matters before it.
An unmarked prayer relates specifically to the manner of service, seeking that all originating documents should be personally served and service by post for other documents. Court rules provide for service in a particular manner but in any event the Council informs me that it is content to be required to serve documents by normal mail. I do not think I need to make an order in those terms.
Prayer 3 seeks orders setting aside orders made by Craig J on 6 February 2015. Given that all the time periods in those orders have expired in any event, there is nothing effectively to set aside. Those orders were setting a timetable in the preparation for this matter for hearing on 23 and 24 April 2015. I will make additional orders today for a further timetable in the matter. There is no need to set aside Craig J's orders. The orders sought in prayer 4 essentially relate to the same matter as prayer 3 and I do not need to spend more time on that.
It follows that given the Council's evidence, I consider it has established a basis for dismissal of the amended Notice of Motion. I therefore dismiss the amended Notice of Motion and I note the Council's wish to have costs reserved. I will so order.
The Applicant is to serve all documents required to be served on the Respondents in these proceedings, other than documents that are required to be personally served, by posting them in a prepaid envelope to each Respondent at 19 Boonara Avenue, Bondi, New South Wales, 2026.
[3]
Orders
The Court makes the following orders:
1. The Respondents' amended Notice of Motion filed 6 February 2015 is dismissed.
2. The Applicant is to file and serve affidavits in chief including any expert evidence by an arborist and engineer by 27 March 2015.
3. The Respondents are to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015.
4. The Applicant is to file any affidavits in reply by 20 April 2015.
5. The Applicant is to serve all documents required be served on the Respondents in these proceedings other than documents that are required to be personally served by posting them in a prepaid envelope to each Respondent, at the address 19 Boonara Avenue, Bondi NSW 2026.
6. The Applicant is to notify the Respondents of the timetable change and the hearing date in accordance with Order 5.
7. Costs reserved.
[4]
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Decision last updated: 20 April 2015