Bobolas v Waverley Council

1. [1]

   McCOLL JA: The appellants, Mrs Mary Bobolas and her daughters, Liana and Elena Bobolas, appeal from orders made by Sheahan J in the Land and Environment Court (“LEC”) permitting the respondent, Waverley Council (“Council”), to carry out safety, demolition and removal works at the appellants’ residence, located at 19 Boonara Avenue, Bondi (“property”). [1] Mrs Bobolas is the sole registered proprietor of the property. She and her daughters reside there.

2. [2]

   The appellants have long been engaged in litigation with the Council in respect of the state of the property and the appellants’ conduct at the property in respect of waste. [2] As this Court has said, as at December 2012, “the parties were not strangers to each other”, there having been “issues relating to the removal of waste at the property since at least 2005.” [3] Sheahan J identified 24 LEC judgments and 5 Court of Appeal judgments involving the same parties. [4]

3. [3]

   These proceedings are another stage in the saga. Broadly speaking, they arise from steps taken by the Council to require the appellants to carry out safety, demolition and removal works at the property and, absent their action, to enable the Council, with the benefit of court orders, to undertake those works. It is a sufficient description of the works the Council seeks to have undertaken, or to take absent the appellants doing so, to say that they relate to the following: the removal of accumulated waste from the property which the Council alleges is causing, or likely to cause, a threat to public health and the health of individuals; a demolition order (addressed to Mrs Bobolas alone) in respect of the garage at the rear of the premises which is alleged to be dilapidated, and in danger of collapse, and thus to be prejudicial to the occupants and/or persons or properties in the neighbourhood; and a safety order concerning the removal of a creeping fig from the south side of the dwelling on the property which the Council alleges is growing in such a manner as to be likely to cause harm to the occupants, any neighbouring property or persons in the vicinity of the dwelling.

4. [4]

   For the reasons that follow, I am of the view that the appeal should be dismissed with costs.

5. [5]

   The Council commenced civil enforcement proceedings seeking the required orders by way of summons filed in the LEC on 5 December 2014 which was allocated file number 14/41027 (“LEC summons”). The Council sought a declaration that the appellants had failed to comply with the terms of orders issued by the Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”) in the case of Mrs Bobolas and s 124 of the Local Government Act 1993 (NSW) (“LG Act”) in relation to each of the appellants as set out below.

6. [6]

   The orders sought included:

   1. (1)

      Orders to allow the Council to execute its functions pursuant to s 678(10) of the LG Act and s 121ZJ of the EPA Act to carry out safety and demolition works which it contended Mrs Bobolas had been required, but had failed, to do; [5]

   2. (2)

      An order pursuant to s 678(10) of the LG Act allowing the Council to execute its functions to carry out removal works which were works it contended the appellants were required, but had failed, to do; [6]

   3. (3)

      An order that the appellants abstain from doing any act which might interfere with or impede the Council from completing those works; [7]

   4. (4)

      Ancillary orders in relation to the engagement of a structural engineer and an arborist, [8] disconnection of services, [9] unlocking and removal of gates, [10] cutting of vegetation [11] and the removal of any motor vehicle obstructing the works; [12] and

   5. (5)

      Orders that the appellants pay the Council’s reasonable expenses incurred in the execution of the orders, and the Council’s legal costs of or incidental to the proceedings. [13]

7. [7]

   Sheahan J made those orders. However, the appeal is not confined to his Honour’s orders. The notice of appeal identifies the material dates in respect of the proceedings in the LEC as 6 February 2015, 24 February 2015, 27 February 2015, 13 March 2015, 20 March 2015, 17 April 2015, 23 April 2015, 24 April 2015 and “all other dates”. The LEC gave substantive decisions on two of the specified dates. All others appear to be occasions on which procedural matters were addressed. What occurred on all occasions for which a specified date is given is set out below. In their written submissions, the appellants said “all other dates” was a reference to “all other dates whether in the lower Court (LEC) or in the Supreme Court; it includes both Registrars and Judges.” In addition to the dates specified above, the appellants complain about Waverley Council v Bobolas (No 3), [14] a decision of Pain J delivered on 18 June 2015. I deal with that decision later in these reasons.

8. [8]

   The Council relied for proof of service of the LEC summons on an affidavit sworn by Mr Fahim on 11 December 2014 (“Fahim affidavit”). The Fahim affidavit was read on 20 March 2015, on the hearing of a motion filed by the appellants in the LEC on 6 February 2015 seeking to set aside the originating process (“6 February motion”). The Fahim affidavit was corrected by a further affidavit sworn on 13 March 2015 in which Mr Fahim referred to his affidavit of 11 December 2014. He changed a reference to a person who he had said followed him from the property after he served the LEC summons, from Ms Liana Bobolas to Ms Elena Bobolas.

9. [9]

   The first return date of the summons was 6 February 2015. On that occasion, Craig J made orders setting a timetable for the filing of pleadings and evidence in preparation for hearing. The matter was also set down for hearing on 23 and 24 April 2015.

10. [10]

    The appellants did not appear on 6 February 2015. However, on that day they filed the 6 February motion which was returnable on 27 February 2015. Save as to those parts of the document which were in standard form, the motion was handwritten. Each page was headed “Filed under objection, protest and duress”. The motion was described as “Notice of objection to service under r10.19 UCPR”. It also stated:

11. [11]

    The 6 February motion sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 12.11(1)(a) – (c), setting aside the originating process, setting aside the service of the originating process on the appellants and an order declaring that the originating process had not been duly served on them. It also sought orders pursuant to UCPR 12.11(1)(f)(i) (protecting property threatened with seizure) and, pursuant to UCPR 12.11(1)(g) and (h) (setting aside originating process), orders declaring that the court had no jurisdiction over the appellants in respect of the subject-matter of the proceedings and/or an order declining to exercise jurisdiction in the proceedings. It also sought orders pursuant to UCPR 36.15 to set aside the orders made by Craig J on 6 February 2015 on the basis they were made “irregularly, illegally or against good faith”. The motion also invoked various clauses of UCPR 36.16.

12. [12]

    A note on the motion added:

13. [13]

    Another stated:

14. [14]

    The appellants relied on two affidavits to support the motion, affirmed by Ms Liana Bobolas and Ms Elena Bobolas on 5 February 2015. Each affidavit said none of the documents relating to case number 14/41027 had been served on the deponent, the deponent’s sister or Mrs Bobolas. Each affidavit also stated it was a notice of objection to service pursuant to UCPR 10.19. There were references to other rules it is unnecessary to repeat.

15. [15]

    On 17 February 2015 Mr Webber, the Council’s solicitor, posted to each appellant a letter advising of the orders Craig J made on 6 February 2015 and stating that the matter had been fixed for hearing on 23 and 24 April 2015.

16. [16]

    On 24 February 2015 the Council notified the Court (by eCourt) of a slippage in the timetable set on 6 February 2015 and sought an amendment which allowed time for each party to file evidence and pleadings. The amendment was granted. The Council was directed to notify the appellants of the amended timetable. It said it did so.

17. [17]

    It appears that on 27 February 2015, the 6 February motion was listed for hearing on 13 March 2015. According to the Council’s chronology, the appellants did not appear on the latter day. Rather, they forwarded a facsimile to the Court advising that they were unwell. Pain J adjourned the motion to 20 March 2015 and directed the Council to serve on the appellants any evidence upon which it intended to rely for the hearing of the motion. [16]

18. [18]

    On 2 March 2015, Mr Webber signed, and caused to be posted, a letter to each appellant enclosing the Council’s points of claim and 10 affidavits being the evidence which, in due course, the Council relied upon before Sheahan J.

19. [19]

    Robert Fahim swore an affidavit of service on 20 March 2015 in which he deposed that on 13 March 2015 he attended the Council’s solicitors’ offices where he saw a covering letter (Annexure A), his affidavits of 11 December 2014 and 13 March 2015, an affidavit of Richard Meaney of 13 March 2015 (including a DVD) and an affidavit of David Rofe of 13 March 2015 being placed into three clear plastic pockets.

20. [20]

    Mr Fahim said he then attended the property where he affixed the plastic pockets containing those documents to the front gate. Three copies of the covering letter were addressed to each of the appellants. The letter advised that the appellants’ notice of motion had been returnable on 13 March 2015 and had been adjourned for hearing before Pain J on 20 March 2015 at 2pm. It also advised that the Council had been directed to serve its evidence by close of business on 16 March 2015. It identified as enclosed each of the above affidavits by way of service. Annexure B to Mr Fahim’s affidavit included two photographs showing what appeared to be three plastic packets containing documents and a container with either a CD or a DVD attached to a metal gate in a stone or concrete fence, behind which was a large accumulation of rubbish.

21. [21]

    On 19 March 2015, Ms Mostafa affirmed an affidavit in which she deposed that on 13 March 2015 she had organised the preparation of three express envelopes addressed to each of the appellants at the property. She had placed into each of the envelopes a covering letter addressed to each appellant as well as Mr Fahim’s affidavits of 11 December 2014 and 13 March 2015, Mr Meaney’s affidavit of 13 March 2015 including a DVD in a plastic case and an affidavit of Mr Rofe sworn 13 March 2015. She had sealed each envelope and placed each in an express post box. She attached a copy of the covering letter with its express post envelope reference tag and a printout from the Australia Post Track Your Item website. The printout showed by reference to each document’s tracking number that each appellant’s envelope had been delivered on 16 March 2015.

22. [22]

    Pain J dealt with the 6 February motion on 20 March 2015. The appellants did not appear. The challenge to the originating process was dealt with on the basis that the appellants alleged the LEC summons had not been properly served. I deal with this judgment in more detail below. Suffice it to say at this stage that her Honour dismissed the motion. [17]

23. [23]

    On 20 March 2015, Mr Webber signed, and caused to be posted to each appellant, a letter advising of the outcome of the determination of the 6 February motion by Pain J on 20 March 2015 and of the timetable her Honour had directed the Council and the appellants to observe. The letter also advised that the hearing dates of 23 and 24 April 2015 had been confirmed.

24. [24]

    On 27 March 2015, Mr Webber signed, and caused to be posted, letters to each appellant enclosing two further affidavits.

25. [25]

    The appellants filed a further notice of motion on 7 April 2015 ("7 April motion"), which sought, in substance, the same orders as had the 6 February motion. It was returnable on 17 April 2015. The 7 April motion came before Sheahan J as duty judge on the return date. The appellants did not appear. His Honour dismissed the motion “as it replicated that upon which Pain J had already ruled.” [18]

26. [26]

    On 17 April 2015, Mr Webber signed, and caused to be posted to each appellant, an affidavit of Mr Schilt filed on 17 April 2015.

27. [27]

    Sheahan J heard the Council’s summons on 23 – 24 April 2015. The appellants did not appear. They sought an adjournment which his Honour refused. On 24 April 2015 his Honour made the declaration as sought in prayer 2 of the summons and the orders sought in prayers 3 – 18 as slightly modified in short minutes of order filed in court on 24 April 2015. I deal with this judgment later in these reasons.

28. [28]

    As I have said, the notice of appeal refers to “all other dates”. That is not a permissible entry on a notice of appeal, which requires details identifying the proceedings in the court below the subject of the appeal. [19] However, the Red Book includes notices of motion and judgments which post-date Sheahan J’s orders. I set out details of those matters to the extent they were referred to either in the appellants’ written or oral submissions.

29. [29]

    On 7 May 2015 the appellants filed a notice of motion dated 30 April 2015 (“30 April motion”), seeking to have various orders made by Sheahan J on 24 April 2015 reconsidered. The motion was heard by Pain J on 10 June 2015. Elena and Liana Bobolas appeared. Her Honour dismissed the motion on 18 June 2015. [20] I deal with her Honour’s judgment in more detail later in these reasons.

30. [30]

    On 24 June 2015 the appellants filed another notice of motion in the LEC (“24 June motion”). Once again, they sought to complain that none of them had been personally served with any documents in relation to the proceedings. Among a wide ranging number of claims including, for example “Bobolas seeks orders from the Court for ALL DATES”, the documents attached to the motion complained that the Fahim affidavit was “not valid” and that “this issue has not been heard”. The basis of the assertion of invalidity was not set out.

31. [31]

    The Council filed a motion on 29 July 2015 (“Council motion”) seeking an order pursuant to UCPR 13.4(1) that the 24 June motion be dismissed in substance as constituting an abuse of process both because the motion had no prospects of success, and because it was a relitigation of matters already determined. [21] The motion was heard by Pain J on 26 August 2015. I deal with her Honour’s judgment in more detail later in these reasons.

32. [32]

    On 21 May 2015 the appellants filed a notice of appeal in the Court of Appeal, appealing against the decisions of the LEC given on the material dates and “other dates” to which I have referred. At least two motions have been filed by the appellants in the course of the appeal.

33. [33]

    The appellants filed a notice of motion in the Court of Appeal on 8 July 2015 (“8 July motion”) seeking a stay of Sheahan J’s orders pending determination of the appeal. Basten JA heard the motion. Liana Bobolas and Elena Bobolas, but not Mrs Bobolas, appeared. The Council indicated that it was content to agree to a stay of the demolition and safety orders, and only sought to pursue the removal of waste on the premises and the order requiring the appellants to cease accumulating further waste on the premises. [22] Liana Bobolas and Elena Bobolas opposed that course.

34. [34]

    Basten JA concluded that the potential prejudice to the applicants which would arise from the removal of such waste was very limited and largely speculative and was outweighed by “[t]he public interest in matters of health and safety.” [23] On this basis, subject to giving effect to the concessions made by the Council, his Honour ordered that the motion should be dismissed. He directed that the costs of the motion be costs in the appeal. [24]

35. [35]

    Finally, by notice of motion filed 17 July 2015 (“17 July motion”), the appellants sought an order setting aside part of Basten JA’s orders pursuant to UCPR 36.15, 16 and 17. That motion came before Beazley P on 20 July 2015. Her Honour considered each of those UCPR provisions and determined that the appellants had failed to demonstrate any grounds for setting aside Basten JA’s orders. Accordingly, she dismissed their motion with costs. [25]

36. [36]

    A chronology of the orders the Council sought to enforce can conveniently be set out in juxtaposition to their legislative basis.

Environmental Planning and Assessment Act

1. [37]

   On 8 July 2014, the Council issued an order pursuant to s 121B of the EPA Act to Mrs Mary Bobolas (“Demolition Order”). Section 121B, which appears in Division 2A of Part 6 of the EPA Act (Implementation and enforcement), enables a council (among others) to give an order to a person to do or to refrain from doing a thing specified in Column 1 of the Table which appears in the section, if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. The Demolition Order concerns a garage on the property which the Council contends has become dilapidated, unstable and is likely to collapse. [26]

2. [38]

   Item 2 in the Table which forms part of s 121B permits a council to issue an order to “demolish or remove a building” on the basis, relevantly, that the building “is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood”. The order must be served on the owner of the building. “Owner” is defined in s 4(1) of the EPA Act to have “the same meaning as in the [LG Act] and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected.” “Owner” is given various meanings in the LG Act, of which that relevant is “every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession”. [27]

3. [39]

   The Demolition Order, in substance, required Mrs Bobolas to engage a qualified engineer to inspect the garage and prepare a report making recommendations as to how it should be demolished and removed, which report was to include recommendations as to how that could be accomplished without causing injury or damage to any person or property. The order required the engineer’s report to be provided to the Council for its approval and, upon approval, for Mrs Bobolas to demolish and remove the garage under the supervision of the author of the engineer’s report and in accordance with the recommendations in the report. Further, upon completion of the demolition and removal of the garage, the order required Mrs Bobolas to provide to the Council a certificate from the engineer who supervised the demolition and removal of the garage confirming that that demolition and removal had proceeded in accordance with the engineer’s report.

4. [40]

   Failure to comply with an order given under Division 2A is a breach of the EPA Act. [28] Any person may bring proceedings in the LEC for an order to remedy a breach of the EPA Act. [29] Where the LEC is satisfied that a breach of the EPA Act has been committed it may make such order as it thinks fit to remedy the breach. [30]

5. [41]

   In the event a person fails to comply with the terms of an order given to him or her under Division 2A of Part 6 of the EPA Act, s 121ZJ(1) and (2) of the EPA Act empowers a council to do all such things as are necessary or convenient to give effect to the terms of the order, including carrying out any work required by the order.

6. [42]

   Where under the EPA Act any notice or other document is required to be served, that may be done in the case of an individual by delivering it to him or her or by sending it by pre-paid post addressed to him or her at, relevantly, that person’s usual or last known place of abode. A notice or other document sent by pre-paid post is deemed to have been served at the time at which the notice or other document would be delivered in the ordinary course of post. [31]

Local Government Act

1. [43]

   Section 124 of the LG Act appears in Chapter 7 (What are the Regulatory Functions of Councils?), Part 2 (Orders), Division 1 (Giving of orders) and provides:

2. [44]

   Item 21 in Column 1 empowers a council to give an order requiring the recipient to do or refrain from doing such things as specified in the order to ensure that land is, or premises are, placed or kept in a safe and healthy condition in the circumstances specified in Column 2 (land or premises not in safe or healthy condition). The order may be served on the owner or occupier of the land or premises (Column 3).

3. [45]

   Item 22A in Column 1 empowers a council to give an order requiring the removal or disposal of waste on any residential premises or to refrain from keeping waste on those premises, in the circumstances specified in Column 2, relevantly if the waste is causing or likely to cause a threat to public health or the health of any individual. The order may be served on the owner or occupier of the premises (Column 3).

4. [46]

   An order under the LG Act is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order. [32] A notice required by or under the LG Act to be served on a person may be served by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person. [33]

5. [47]

   In respect of service by post, s 76(1) of the Interpretation Act 1987 (NSW) relevantly provides:

6. [48]

   On 8 July 2014 the Council gave Mrs Bobolas a notice pursuant to Item 21 of s 124 of the LG Act requiring her to carry out safety works on the property (“Safety Order”). The Safety Order 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. [34]

7. [49]

   On 1 August 2014, the Council gave orders pursuant to Item 22A of s 124 of the LG Act to the appellants (“Refrain Order”).

8. [50]

   Also on 1 August 2014, the Council gave the appellants orders again pursuant to Item 22A of s 124 of the LG Act requiring them to carry out removal works at the property (“Removal Order”).

9. [51]

   Chapter 8 of the LG Act sets out ancillary functions of a council. Section 200, which appears in Part 2 (Entry on to land and other powers) provides:

10. [52]

    Chapter 17 of the LG Act deals with enforcement. Section 678, which appears in Part 1 (General), Division 1 (Legal proceedings) provides:

11. [53]

    Failure to comply with an order under Part 2 of Chapter 7 is a contravention of or failure to comply with the LG Act. [35] A council, among others, may bring proceedings in the LEC for an order to remedy or restrain such a breach. [36]

12. [54]

    It is convenient to deal with each substantive decision of which the appellants complain in chronological order and address their complaints about each judgment in that juncture. In order to provide an overview of the ambit of the appeal, however, I set out a summary of their 33 grounds of appeal, the last of which states “[t]here are more grounds.”

13. [55]

    The respondent categorises the issues raised by those 33 grounds as follows:

14. [56]

    In my view that is an accurate summary of the specific issues the appellants seek to raise. They also complained in non-specific terms that their notices of motion were not fairly heard/considered and or given full/fair consideration.

15. [57]

    The appellants did not appear on 20 March 2015. At some stage which does not clearly appear from the papers, it appears the appellants amended the 6 February motion to seek orders setting aside Craig J’s orders of 6 February 2015. Pain J resolved to hear the amended 6 February motion in their absence.

16. [58]

    The following materials were before Pain J on the hearing:

17. [59]

    As I have said, the Council relied on the Fahim affidavit (corrected by his 13 March affidavit) for proof of service of the LEC summons.

18. [60]

    Pain J summarised the Council’s evidence as follows:

19. [61]

    Having considered this evidence, her Honour found that the Council had established it had effected personal service on the appellants in accordance with UCPR 10.20(2)(a). Accordingly, she determined the appellants had established no basis to make an order setting aside the originating process under UCPR 12.11. [44]

20. [62]

    Insofar as the motion sought to set aside Craig J’s 6 February 2015 orders, Pain J concluded that, as all the time periods in the orders had expired, there was nothing effectively to set aside. [45] Accordingly, her Honour dismissed the 6 February motion. Her Honour also made further orders for the Council to file its evidence and for the appellants to file and serve their points of defence, any cross-claim and any affidavits in chief by 16 April 2015, for service of the Council documents on the appellants and for the Council to notify the appellants of the timetable change and the hearing date.

21. [63]

    The consequence of her Honour’s ruling should have been to require the appellants to file notices of appearance. It is not apparent that occurred. Rather, the appellants continued to file motions in the LEC on which the words “Filed under objection, protest & duress” and the like appeared. [46]

22. [64]

    Grounds 1 and 2 of the notice of appeal contend the Fahim affidavit was “not valid” and “defective”. Grounds 13 and 14 contend that the LEC summons was not served on the appellants. Ground 5 contends “an originating process must have an affidavit with it.”

Legislative framework

1. [65]

   A person may commence proceedings in the LEC by filing a summons. [47] Originating process must be served on each defendant. [48] “Originating process” means the process by which proceedings are commenced. [49]

2. [66]

   Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party. [50] Except as otherwise provided by the UCPR, originating process in the LEC must be personally served. [51]

3. [67]

   A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed. [52] A defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered. [53]

4. [68]

   Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document. [54]

5. [69]

   In any proceedings, the court may make an order setting aside the originating process, setting aside the service of the originating process on the defendant and/or declaring that the originating process has not been duly served on the defendant. [55] Such an order may not be made unless a notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. [56] A notice of motion under UCPR 12.11(2) may be filed without entering an appearance. [57] The making of an application for an order under UCPR 12.11(1) does not constitute submission to the jurisdiction of the court. [58]

6. [70]

   In the case of proceedings commenced by summons, the time limited for a defendant to enter an appearance is on or before the return day stated in the summons, or if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application, whichever is the later. [59]

7. [71]

   UCPR 35 deals with affidavits. An affidavit may, with the leave of the court, be used despite any irregularity in form. [60]

8. [72]

   UCPR 35.7B requires each page of an affidavit to be signed by the deponent and by the person before whom it is sworn. [61] This requirement “helps to protect the authenticity of the affidavit.” [62] Failure to comply is an irregularity which can be overcome by UCPR 35.1. [63]

9. [73]

   An affidavit of service of a document that has been served must clearly identify the document, but must not annex a copy of the document unless the document has not been filed. It must contain a statement as to when, where, how and by whom service was effected, a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject matter of the proceedings, and a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age. [64]

10. [74]

    Pursuant to s 34 of the Oaths Act, any affidavit required for the purpose of any court may be taken or made in any place in New South Wales before any Justice of the Peace for this State. [65] A person who takes and receives an affidavit in New South Wales (an authorised witness) must see the face of the person making the affidavit, must know the person who makes the affidavit or confirm the person’s identity in accordance with the Oaths Regulation 2011 (NSW), and must certify on the affidavit in accordance with the regulations that s 34 has been complied with. [66] A failure to comply with s 34 does not affect the validity of any statutory declaration or affidavit. [67]

11. [75]

    Subject to the UCPR, the Uniform Rules Committee may approve forms for documents to be used in connection with civil proceedings. [68] If a form is approved in relation to a document to be used in connection with proceedings in a court, a document that is filed with the court is to be in that form. [69] In addition, s 80 of the Interpretation Act relevantly provides:

12. [76]

    Section 20 of the Interpretation Act provides that “[i]n any Act … ‘prescribed’ means prescribed by, or by a statutory rule made under, the Act in which that word occurs.” A rule of court is a statutory rule. [70]

13. [77]

    Form 41 is the form approved pursuant to CPA, s 17 for an affidavit of service. The jurat provides for entry of the following details:

14. [78]

    CPA, s 63 provides:

15. [79]

    As I have said, pursuant to UCPR 35.1, an affidavit may, with the leave of the Court, be used despite any irregularity in form.

The Council’s case on service

1. [80]

   As I have said, the Council relied on the Fahim affidavit for proof of service of the LEC summons. The Fahim affidavit was sworn before a Justice of the Peace. It is five pages long. The first page sets out formal details of the LEC proceedings. The second page sets out Mr Fahim’s name, address, occupation and the date of the affidavit. The text of the affidavit then commences and continues on the third and fourth pages. On the fifth and last page of the affidavit, where Mr Fahim’s signature appears, the spaces in the jurat requiring the place where the affidavit was sworn and the name and address of the witness were not completed. The Justice of the Peace’s signature, name and identification details as a Justice of the Peace appear on the line providing for the signature of the witness. It appears the Justice of the Peace initialled each page of the affidavit, but, as the Council accepted, Mr Fahim’s signature appears only on the jurat.

2. [81]

   The Fahim affidavit, accordingly, failed to comply with UCPR 35.7B because each page was not signed by Mr Fahim. Secondly, the affidavit was not in the form approved for use as an affidavit of service as the place where it was sworn was omitted and the name and address of the witness did not appear below the place where Mr Fahim’s signature appeared, although the witness’ name appeared on the same line as the witness’ signature.

Appellants’ submissions

1. [82]

   The appellants make the following submissions in respect of originating process generally:

   1. (1)

      Originating process must be personally served;

   2. (2)

      Originating process must be “served on each person under UCPR 6.2(3)”;

   3. (3)

      Service of a summons must be personal service under UCPR 10.20; and

   4. (4)

      Originating process must have an affidavit with it.

2. [83]

   The appellants submit that an affidavit of Robert Fahim dated 10 December 2014 is not an affidavit of service, or is invalid or defective on a number of bases. There is no affidavit of Mr Fahim bearing that date. It is clear the appellants intend to refer to the Fahim affidavit dated 11 December 2014.

3. [84]

   The appellants first contend that the affidavit does not comply with UCPR 35.7B, as it is not signed by the deponent on every page. Accordingly, there is no “witnessing” of the deponent’s signature, as it “is not present on each page to be ‘witnessed’.” In addition, they complain that details on the final page of the affidavit, including the place at which it was sworn and the name and address of the witness, are absent. The appellants submit that these omissions are of such substance that they cannot be cured by the operation of UCPR 35.1.

4. [85]

   Secondly, the appellants submit that Mr Fahim’s affidavit states he is “aware of the identity of the three [appellants]”, and yet he addressed the appellants by incorrect names. On this basis, it is submitted that “no reliance can be placed” on the contents of Mr Fahim’s affidavit.

5. [86]

   The appellants also contend that the Fahim affidavit contains objectionable “false and defamatory information” and that, although it was sworn on 11 December 2014, it was not filed until 6 February 2015. They also complain that it was not sent or provided to them prior to or on that date.

6. [87]

   As I have said, Ms Liana Bobolas and Ms Elena Bobolas also asserted in their affidavits filed in support of the 6 February motion that none of the documents relating to the case had been served on them or Mrs Bobolas.

Council’s submissions

1. [88]

   The Council conceded that the Fahim affidavit suffered from what it contended were irregularities in form, but said this issue was not raised in the LEC. If it had been, the Council would, if necessary, have adduced further evidence of service of the originating process.

2. [89]

   The Council contends Mr Fahim’s failure to sign each page of his affidavit is an irregularity of form which permits the affidavit to be used with the Court’s leave pursuant to UCPR 35.1. It accepts that the Justice of Peace who witnessed the affidavit did not enter his name and address below Mr Fahim’s signature, but points out the name was entered after the witness’ signature. [71] It notes the affidavit was read with Pain J’s leave on 20 March 2015, although it accepts that Mr Fahim’s omission was not drawn to her Honour’s attention.

3. [90]

   The Council also submits that the affidavit of Mr Meaney sworn on 13 March 2015 confirmed service of the originating process on the appellants and was sufficient compliance with UCPR 10. In Bobolas (No 1) Pain J concluded that a photograph attached to Mr Meaney’s affidavit showed “Mr Fahim clearly placing documents within the view of the [appellants] on their property”. [72]

Consideration

1. [91]

   It is ordinarily a condition of the administration of justice that the person against whom relief is sought shall have an opportunity of being heard; hence the necessity for service or notice of the writ or other originating proceeding. Service of the originating process is an essential preliminary to the proceedings being determined by the court. [73]

2. [92]

   No statute of New South Wales deals comprehensively or exhaustively with the procedures involved in the creation of affidavits. The Oaths Act presupposes certain principles of the unwritten law and builds upon them. [74]

3. [93]

   The quality of a document as an affidavit does not depend on its content but on the factual circumstances in which it was subscribed. [75] Extrinsic evidence may be received of the circumstances surrounding the creation and signing of a document said to be an affidavit. [76]

4. [94]

   In Fastlink, Barrett J described the characteristics of an affidavit as follows:

5. [95]

   In Bacon, immediately following the passage quoted in Fastlink, the author continued:

6. [96]

   Fastlink concerned a document on which an applicant seeking an order setting aside a statutory demand sought to rely as being an affidavit supporting the application as required by s 459G(3)(a) of the Corporations Act 2001 (Cth). That provision requires the supporting affidavit to be filed within 21 days after service of the demand. The creditor contended the affidavit suffered from omissions which meant it was not an “affidavit”. First, the deponent of the affidavit did not either “say on oath” or “affirm”, but, rather, used the words “solemnly declare”. Secondly, the date the deponent purported to declare the affidavit did not appear. Thirdly, the space against “Signature of witness” was blank, with the result that there was no indication that a person authorised to do so performed the function necessary to cause the document to be an affidavit. [78]

7. [97]

   The applicant sought to cure these deficiencies by relying on a later affidavit of Mr Chouman, the person identified as the witness to the deponent’s signature, purporting to demonstrate the affidavit had been sworn before him. Barrett J accepted that if Mr Chouman’s affidavit demonstrated that fact, the challenged affidavit would properly be regarded as an affidavit, albeit one in which there was an “irregularity of form” as mentioned in UCPR 35.1. [79] However, Mr Chouman’s affidavit also suffered from deficiencies and, accordingly, could not prove that the challenged affidavit had been duly sworn. [80] The consequence was, as the creditor had submitted, that the challenged affidavit was not “in truth an affidavit.” [81]

8. [98]

   In Fastlink, after identifying Form 40 as being a prescribed form for an affidavit, Barrett J referred to the fact that “[s]trict adherence to the prescribed form is not essential: Interpretation Act 1987, s 80.” That was a reference to s 80(1). His Honour did not, however, refer to s 80(2) and the significance of the fact that, prima facie, the omissions from the Form 40 affidavit meant it was not “duly completed”. The same question clearly arises in relation to the Fahim affidavit which, as will be apparent, did not contain matters for which UCPR 35.7B and Form 41 provided. It is to that issue I now turn.

9. [99]

   Section 80 applies to the Fahim affidavit as it was an affidavit of service which is a form approved under CPA, s 17(1)(a). Further, pursuant to CPA, s 17(3), the affidavit of service was a document to be used in connection with proceedings in a court because it was required to prove service of the LEC summons. [82] Accordingly, the Fahim affidavit was not duly completed for the purposes of s 80(2) as it was not completed in the manner specified in Form 41. It also did not comply with CPA, s 17 (3) as it was not “in [the] form” of Form 41.

10. [100]

    What are the consequences? When taken in context with s 80(1), prima facie, s 80(2) suggests that strict compliance with a prescribed or approved form is mandatory, that is to say that, failing compliance, the document will be a nullity. Section 17(3) of the CPA also appears mandatory.

11. [101]

    For the reasons that follow, however, I am of the view that neither provision has that consequence insofar as the Fahim affidavit is concerned.

12. [102]

    The question whether it was a purpose of s 80(2) that any form which was not “duly completed” should be a nullity must be determined by having regard to the language of the relevant provision and the scope and object of the whole statute. [83] The determination of the proper construction of s 17(3) and, in particular, the consequences of a form not being “in that form” also falls for determination by having regard to the same matters.

13. [103]

    I have referred to the text and immediate context of s 80. However, s 80(2) appears in the context that, pursuant to s 5(2), the Interpretation Act applies to an Act or instrument except in so far as the contrary intention appears, relevantly, in the Act or instrument concerned. It is appropriate, therefore, to determine whether anything in the CPA or the UCPR qualifies the apparently mandatory requirement of s 80(2). Insofar as CPA, s 17(3) is concerned, the question of its proper construction turns, of course, not only on the text, but also upon its statutory context.

14. [104]

    The most straightforward case of a “contrary intention” is where the relevant provision provides that one thing shall be done and the Act or section in question provides that another shall be done. A contrary intention may also be inferred from a particular provision if, were the other provision to be applied, the provisions of or the procedure established by the section would not appropriately work. The critical question is whether it was the intention of the legislature that the statutory provision as to interpretation should apply to the particular section. [84]

15. [105]

    The phrase “contrary intention” in legislation such as the Interpretation Act “may readily be seen to give way to a particular provision in another Act, and especially one dealing with a specific subject matter.” [85] This may particularly be the case when one has regard to the general presumption that there is no contradiction between two Acts of the one legislature. [86] “[D]eciding whether there is such inconsistency (‘contrariety’ …) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question.” [87] Every attempt should be made to reconcile competing statutes and it is only where they are irreconcilable that they should be held to conflict. [88]

16. [106]

    Section 63 of the CPA, which I set out earlier, demonstrates, in my view, a contrary intention for the purposes of s 5(2) of the Interpretation Act. It also provides context to determining the consequences of a failure to comply with s 17(3).

17. [107]

    The first point to note about s 17(3) is that the obligatory nature of the language it uses is typical of such provisions. It does not end the inquiry as to what, on its proper construction, is the effect of the provision. [89]

18. [108]

    Section 63 gives a court power to deal with irregularities. It requires a court to treat a failure to comply with any requirement of the CPA or of rules of court, whether in respect of time, place, manner, form or content or in any other respect as an irregularity which, subject to s 63(3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

19. [109]

    Provisions such as s 63 do away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. [90] Thus, in Australian Coastal Shipping Commission, the Court applied s 81 of the Supreme Court Act 1970 (NSW) (the legislative ancestor of s 63) to permit proceedings to continue although the statement of claim was neither filed nor served within the limitation period. [91]

20. [110]

    Section 63 applies to specific requirements of the CPA or UCPR which are capable of giving rise to an identifiable irregularity. [92] It confers broad power on the Court to rectify irregularities arising as the result of a failure to comply with the requirements of the Act or rules. [93] Accordingly, reading s 17(3) in the context of s 63 makes it clear, in my view, that it was not the intention of the legislature that failure to complete an approved form by not filling up all the details is fatal to its efficacy.

21. [111]

    Further, in my view, the scheme of which CPA s 17, s 63 and UCPR 35.1 form part in relation to the requirement to comply with forms approved for the purposes of the CPA is such as to manifest a contrary intention, assuming the proper construction of s 80(2) of the Interpretation Act is as I have suggested. If s 80(2) was to be interpreted as striking down forms not “duly completed”, it would leave s 63 no work to do. [94] That is a clear case of contrary intention for the purposes of Interpretation Act, s 5(2).

22. [112]

    As I have said, the Fahim affidavit failed to comply with UCPR 35.7B and was not in the form of Form 41 by virtue of the omissions I have set out. A failure to comply with a requirement found in the CPA as to information to be set out in the Form 41 affidavit of service is, in my view, even absent the assistance s 63(2) affords, a defect or irregularity. [95]

23. [113]

    I would add that the information omitted from the Fahim affidavit did not go to the substantial deficiencies which led Barrett J in Fastlink to conclude the challenged document in that case was not an affidavit. The consequence of the omissions in Fastlink was that the deponent had not sworn an affidavit because the critical words “”say on oath” or “affirm” were not used.

24. [114]

    The Fahim affidavit does not suffer from such a deficiency. Rather, insofar as the jurat is concerned, the omissions are, in reality, only two: the omission of the place where the affidavit was sworn and the omission of the witness’ address. The signature and name of the witness are clearly set out, albeit on the same line providing for the witness’ signature. While the witness’ address does not appear, a number, presumably that assigned to him when he was appointed a Justice of the Peace, does appear.

25. [115]

    The Fahim affidavit was, prima facie, accordingly, a document to which s 63(1) applied. By virtue of s 63(2), the omissions it exhibited were capable of being treated as irregularities which, subject to s 63(3), did not invalidate either the affidavit (being a document in the proceedings) nor the service of the originating process (that being a step taken in the LEC proceedings). [96]

26. [116]

    Section 63(3)(a) enables a person seeking to have any matter which falls within s 63(1), in substance, invalidated. That is what the appellants seek to do by these grounds of appeal. By virtue of s 63(4), the court may not take action of the kind referred to in s 63(3)(a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.

27. [117]

    The Fahim affidavit was served on the appellants twice. First, when Mr Fahim affixed three copies of it and other affidavits to the gate of the property on 13 March 2015. Secondly, when it was forwarded to each of them by Ms Mostafa and delivered by Australia Post on 16 March 2015. The appellants did not make any objection to the form of the affidavit until they brought this appeal. Rather, their 6 February motion was based on the bald proposition that the originating process had not been served on any of them.

28. [118]

    Further, after their 6 February motion was dismissed on 20 March 2015 the appellants filed the other motions in the LEC to which I have earlier referred. Although most, if not all, of those motions bore annotations protesting they were filed “under objection” and referring to UCPR 10.19, those annotations were surplusage in the light of Pain J’s finding that the originating process had been served.

29. [119]

    Prima facie, therefore, I would be of the view that the court could not set aside service of the originating process on the basis of the deficiencies identified because of the appellants’ failure to comply with s 63(4).

30. [120]

    What is “a reasonable time” for the purposes of s 63(4) must clearly be determined having regard to all the circumstances. The appellants did assert in late June that the Fahim affidavit was not valid, but as I have said, did not identify any basis for that assertion. Further, they did not appear before the LEC to support the motion in which that assertion was made.

31. [121]

    In my view it cannot be said to be a “reasonable time” for the purpose of CPA, s 63(4) for the appellants first to specify the basis of their complaints about the Fahim affidavit on appeal. Accordingly, in my view the failure of the Fahim affidavit to be completed in accordance with Form 41 does not have the consequence for which the appellants contend. In my view the Fahim affidavit was effective to establish service of the LEC summons on the appellants.

32. [122]

    This conclusion is also consistent with the principle that an appellant is not permitted to raise on appeal a complaint not made in the court from which the appeal is brought if the matter complained of could have been cured by evidence from the other party. [97] This is particularly the case when the Council said that, had the complaint been identified earlier, it would have filed evidence to cure the omissions.

33. [123]

    I would also add that insofar as the Fahim affidavit failed to comply with UCPR 35.7B, it is arguable that Mr Fahim’s later affidavit of 13 March 2015 identifying his earlier affidavit constituted sufficient authentication of that affidavit so as to cure the earlier irregularity. This affidavit also corrected Mr Fahim’s understanding of which of Elena or Liana Bobolas followed him through the streets of Bondi demanding he hand over video footage recording him leaving the documents at the property. The fact he may have confused one with the other does not detract from the fact that all three were present on the day service was effected. As I have said, Barrett J accepted in Fastlink that a later affidavit could cure a deficiency in an earlier one. In addition, Mr Meaney’s affidavit corroborates the fact that Mr Fahim attended the property on the date to which he deposed in his December 2014 affidavit and left documents there.

34. [124]

    The appellants’ other complaints concerning what they contend is the “false and defamatory” nature of information (not specified) in the Fahim affidavit and about when it was filed or received by them take the matter no further. None is a basis which might deprive the affidavit of efficacy.

35. [125]

    As to ground 5, the appellants did not identify any requirement that an affidavit be served with the originating process as that ground contends. The proceedings were commenced by summons filed pursuant to UCPR 6.2(1), which imposes no requirement to file an “accompanying affidavit”.

36. [126]

    Finally I would note, insofar as the appellants asserted none of the documents had been served (from which I infer they contend as a matter of fact that they had not received the LEC summons), that even proof of non-receipt is not proof of non-delivery or, I would add, proof of non-service if there is evidence of service in a permitted manner. [98] The 6 February motion and the two affidavits provided in support of the orders it sought also confound the proposition that the LEC summons was not served. A suggestion in one of the Bobolas’ affidavits that they found out about the summons on the evening of 5 February 2015 from a friend, defies reality and the considerable body of affidavit evidence to the contrary.

37. [127]

    Accordingly, I would reject grounds 1, 2, 5, 13 and 14 of the notice of appeal.

38. [128]

    Grounds of appeal 3 – 4 and 18 – 25 make a number of complaints contending Sheahan J erred in refusing to adjourn the LEC proceedings pursuant to s 57 of the Legal Aid Commission Act 1979 (NSW) (“LAC Act”) on the basis that the appellants were appealing from, or intended to appeal from, the Legal Aid Commission’s (“LAC”) decision refusing to grant them legal aid.

Section 57 adjournment application

1. [129]

   The matter was called on for hearing before Sheahan J on 23 April 2015. The appellants had not filed any evidence on the substantive issues. [99] They did not appear.

2. [130]

   Mr Clay, senior counsel for the Council, informed the Court that the appellants had contacted Mr Webber, the Council’s solicitor, on 22 April 2015. They had told him they intended to seek an adjournment of the hearing pursuant to s 57 of the LAC Act, on the basis that they would be appealing the LAC’s refusal of an application they had made for legal assistance. [100]

3. [131]

   In addition, a four page document dated 22 April 2015 entitled “Short Minutes of Order” (“SMO”) signed by “E Bobolas” was faxed to Sheahan J’s chambers at 8:32am that morning. The SMO sought an adjournment pursuant to LAC Act, s 57 on the basis that the “Bobolas are appealing the refusal of legal aid”. It asserted that s 57 “mandated” an adjournment, referred to LAC Act, s 56 and said the proceedings should be adjourned to “August for mention only”. It also set out what purported to be a note of the call made to Mr Webber “late on 22 April”. The document also referred to Lewis v Spencer [2007] NSWSC 1383 and Waverley Council v Bobolas [2009] NSWLEC 190.

4. [132]

   A copy of a heavily redacted fax coversheet headed “Legal Aid Commission of NSW” dated 22 April 2015, entitled “Re: Refusal of Legal Aid – Land & Environment Court Proceedings 41027 of 2014”, was attached. [101] The redactions concealed the name of the Division within the LAC from which the fax emanated and the name and telephone number of the LAC solicitor who had sent the fax and the name of the Division in which that solicitor worked. The coversheet of the fax said:

5. [133]

   No such letter of refusal was attached, [103] however a pro forma document outlining how to appeal a legal aid decision with which an applicant was dissatisfied was attached. That part which identified the Division which would advise the appeal had been received had also been redacted.

6. [134]

   Sheahan J noted that at about 9.30am that morning, his associate had received “a call from a female who (1) introduced herself as ‘Ms Bobolas’, (2) enquired as to whether the 8.32am faxed ‘SMO’ had been received in chambers, and (3) asked that the document be ‘brought to the Judge’s attention’.” His Honour then had the “SMO” document taken down to the Registry for stamping. [104]

7. [135]

   Sheahan J considered that the appellants’ adjournment application had not been “properly made”. He made the following orders:

8. [136]

   In respect of Order 5, Sheahan J asked Mr Clay to arrange for a Council officer or agent to deliver the Registrar’s letter on the Court’s behalf and to provide an affidavit of service. The Registrar’s letter enclosed a copy of his Honour’s orders, advised that the hearing of the proceedings, together with the appellants’ application for an adjournment, had been adjourned to 10am on Friday 24 April 2015 and that they should make themselves available to attend at that time, but that if they did not attend, the hearing may proceed and orders may be made in their absence. [106]

9. [137]

   There was no appearance by the appellants on 24 April 2015. The Council read an affidavit sworn on 24 April 2015 by Mr Jacobus Schilt, a Council employee, who deposed that he had attended the appellants’ home at approximately 1:04pm on 23 April and affixed to the front gate an envelope in a plastic sleeve containing the Registrar’s letter and a sealed copy of the orders made by Sheahan J. He returned at approximately 6:38am on the morning of 24 April and observed that the envelope was no longer there. [107] He attached photographs depicting the envelope attached to the gate and the names of the appellants on the envelope.

10. [138]

    On 23 April 2015, in response to the Court’s inquiry referred to in Order 6, the LAC provided a copy of its letter of refusal dated 22 April 2015. The letter relevantly advised:

11. [139]

    The letter also advised the recipient about appeal rights and that, in the event the recipient appealed or intended to appeal to the Legal Aid Review Committee, the recipient might seek an adjournment of court proceedings under s 57 of the LAC Act and that a “court or tribunal is required to adjourn the proceedings provided that it is satisfied that the appeal is genuine and that there are no special circumstances that prevent granting the adjournment.” [108]

12. [140]

    Sheahan J granted the Council leave to proceed in the absence of the appellants pursuant to UCPR 29.7, and heard its submissions on the appellants’ motion seeking an adjournment. [109]

13. [141]

    His Honour noted that the SMO stated that the appellants “are appealing”. [110] As at 9:47am on 24 April, no appeal against the LAC’s refusal of legal aid had been lodged by the appellants. [111]

14. [142]

    His Honour referred to the decisions referred to in the appellants’ “SMO”, and stated that they were “not the only, nor the latest” authorities dealing with adjournments under s 57 of the LAC Act. His Honour referred to passages in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [112] and Scott-Irving v State of New South Wales, [113] which concerned the bona fides of a s 57 adjournment application. I refer to those passages later in these reasons.

15. [143]

    Mr Clay tendered the 6 February motion, and its supporting affidavit, from which Sheahan J concluded that the appellants “were well aware of these proceedings on 6 February, yet the LAC confirms that they applied to it for assistance only on 22 April, the last day before this hearing was to commence.” [114]

16. [144]

    Sheahan J held:

17. [145]

    For these reasons, and for those given in the authorities to which he had referred, his Honour concluded that “in terms of s 57 … the [appellants’] intentions are not bona fide, and that the foreshadowed appeal is a deliberate device to delay these proceedings.” [116]

The Council’s summons

1. [146]

   Sheahan J then considered the Council’s substantive application and the orders it sought. [117] His Honour found that the appellants had breached various provisions of the LG Act and the EPA Act in failing to comply with Council orders in respect of the condition of the premises. He then considered the Council’s evidence that “the waste kept in the external areas of the premises around the house [was] causing, or [was] likely to cause, a threat to public health, and the health of individuals”, the house was no longer in a safe or healthy condition due to the growth of vines and vegetation in its roof, and the garage was dilapidated and in danger of collapse. [118]

2. [147]

   On this basis of this evidence, Sheahan J determined he was “entirely satisfied that the Court (1) has the necessary powers, and (2) should order demolition of the garage, removal of the roof vegetation, and removal of all the waste in the garage and external area, and that the Court (3) should order the [appellants] to refrain from continuing to collect and store waste.” [119]

3. [148]

   His Honour also found that the appellants “were clearly on very detailed notice of what the Council required to be done, and … of what the Court [had] been asked to order”, and yet had chosen not to defend the proceedings. [120] He said at [68]:

4. [149]

   Accordingly, Sheahan J made the following orders: [121]

5. [150]

   The Short Minutes of Order referred to in order (e) effectively gave the Council all the relief sought in the summons commencing the proceedings.

Appellants’ submissions

1. [151]

   The appellants make the following submissions about the rejection of their adjournment application.

2. [152]

   First, they complain that Sheahan J erred in “dismissing the s 57 … adjournment, as he based it on error in facts” (Ground 3). Secondly, they contend his Honour erred in considering “the ‘other side’s’ cases in response to the s 57 adjournment, but not giving enough or any weight & consideration to the cases tendered by ‘our side’” (Ground 4). Thirdly, they contend his Honour erred “in finding that the intention to appeal to the Legal Aid Review Committee is not Bona Fide” (Ground 18). Fourthly, they contend his Honour erred “in finding that the application for legal aid was not Bona Fide, and/or made in a timely fashion” (Ground 19). Fifthly, they contend his Honour erred in “his belief that the application for legal aid was made on 22 April 2015” (Ground 20). Sixthly, they contend his Honour erred in “confusing the extension of Legal Aid with the application for Legal Aid” (underlining in original) (Ground 21). Seventhly, they contend his Honour erred “in his belief that the court must be privy to the grounds of an appeal to the Legal Aid Review Committee, &/or the reasons for refusal of Legal Aid” (Ground 22). Eighthly, they contend the Council, as the party opposed to the s 57 adjournment, bore the onus of proving that the adjournment application was not “bona fide” (Ground 23). Finally, they contend that Sheahan J ought to have found their intention to appeal/the appeal to the Legal Aid Review Committee “is Bona Fide & for a proper purpose [and] [t]he intention was not to improperly delay” (Ground 24). Ground 25 is an assertion, presumably related to the s 57 issue, that “there are serious consequences if remain unrepresented in the proceedings” [sic, as in original].

3. [153]

   The appellants’ written submissions largely re-asserted the grounds of appeal. They focused on Sheahan J’s statement that “the LAC confirms that they applied to it for assistance only on 22 April, the last day before this hearing was to commence”. [122] They submitted that this was an erroneous finding which underpinned his Honour’s conclusion that their appeal, or intention to appeal, was not bona fide. [123] They contested both propositions, arguing his Honour had misunderstood the significance of the word “extension” in the LAC letter. They argued his Honour ought to have understood it in the sense that the words “extension of Legal Aid” did not mean application for legal aid, but, rather, referred to a procedure in which the LAC had to engage of “extend[ing] the Legal Aid to say no to the original application”. Accordingly, the appellants contended his Honour confused an application for “extension of legal aid” made on 22 April 2015 with an application for legal aid made on a much earlier date.

4. [154]

   The appellants also complained that Sheahan J had erred in not requiring the Council to establish that their legal aid appeal was not bona fide. They referred the Court to Lewis v Spencer. [124] They distinguished Scott-Irving, to which his Honour did refer, on the basis that, in that case, the applicant for the adjournment appeared to have delayed the application for legal aid until a much later stage in the proceedings, whereas they contended their application for legal aid was made on or before 6 February 2015.

5. [155]

   Finally, the appellants submitted, relying again on Lewis v Spencer, that Sheahan J erred in concluding the court needed to be apprised of the grounds for any legal aid appeal in order to determine whether it was bona fide.

Council’s submissions

1. [156]

   The Council submitted that the “factual error” the appellants attributed to Sheahan J was unclear. It contended that, had the appellants filed further evidence in relation to their application for legal aid and intention to appeal the decision to refuse it, that evidence might have been met by the Council in the LEC. It submitted, accordingly, referring to Coulton v Holcombe, it was not appropriate to raise a factual error (with no evidence) on appeal.

2. [157]

   Insofar as the appellants complain that the primary judge erred by failing to give enough or any weight to authorities referred to by the appellants, the Council submitted his Honour referred to those authorities, but also, appropriately, to other relevant authorities on adjournments pursuant to LAC Act, s 57.

3. [158]

   Next, the Council contended it was clear from the LAC refusal letter set out in Bobolas (No 2) that Sheahan J was aware that the refusal of aid was in relation to an “application for extension of legal aid received 22 April 2015”. [125] The Council also submitted that, insofar as these grounds of appeal sought to distinguish an “application” for legal aid from an “application for extension of legal aid”, there was no such distinction in the LAC Act. On the face of the LAC refusal letter it was apparent that the LAC refused to extend legal aid to the appellants on the basis of guidelines.

4. [159]

   Finally, the Council submitted that Sheahan J’s finding that the application to appeal the LAC decision was not bona fide was based on a number of factors, not only the date of the application, but also on the facts that:

5. [160]

   Accordingly, the Council submitted, based on the information before Sheahan J it was open to his Honour to find that the appellants’ appeal, or intention to appeal, the refusal of legal aid was not bona fide. On the available evidence, that was the only conclusion available.

6. [161]

   Insofar as ground 22 of the notice of appeal alleged that Sheahan J erred in the “belief that the court must be privy to the grounds of an appeal to the Legal Aid Review Committee, &/or the reasons for refusal of Legal Aid”, the Council contended his Honour made no such finding.

7. [162]

   The Council also submitted that the LAC Act did not impose an onus on it to prove the appellants’ intention to appeal, or any appeal, from the refusal of legal aid was not bona fide.

Legislative framework

1. [163]

   Pursuant to LAC Act, s 31, an application may be made for legal aid. The LAC shall determine an application by granting it unconditionally or subject to conditions or by refusing the application and shall give notice to the applicant of the determination of the application as soon as practicable after the determination is made. If there is a right of appeal to a Legal Aid Review Committee against a determination of an application, the notice must inform the applicant of that right, and record the reasons for the determination. [126]

2. [164]

   Save in circumstances which do not apply to the present case, an applicant for legal aid who is dissatisfied with the determination of an application under LAC Act, s 34(1), may appeal to a Legal Aid Review Committee. [127]

3. [165]

   Section 57 of the LAC Act provides:

4. [166]

   Mention should also be made of LAC Act, s 25. Generally speaking, s 25(1) provides that the solicitor-client relationship arises between a solicitor either employed by the LAC or a private practitioner and an applicant for legal aid. That relationship also arises, by virtue of s 25(2), between the LAC or a committee established under the LAC Act and, relevantly, an applicant for legal aid. By reason of s 25(3), the LAC, a committee established under the LAC Act, the Chief Executive Officer or a member of staff of the LAC is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid.

5. [167]

   The effect of s 25(1) – s 25(3) is that the legal professional privilege which arises when the solicitor-client relationship exists, extends to information and documents provided by an applicant for, or a grantee of, legal aid relating to the issues to be determined or other questions which might arise in the proceedings the subject of the application or grant. [128]

6. [168]

   By virtue of LAC Act, s 25(4)(h) and (k), nothing in s 25(1) – s 25(3) applies, relevantly, to the divulging of information to a person concerning an application for legal aid made by that person (including such matters as the basis for the refusal of any such application) or the divulging of information obtained from a person, with the consent of that person. [129]

7. [169]

   Further, by virtue of LAC Act, s 25(4)(l), nothing in s 25(1) – s 25(3) precludes the divulging, with the consent of the LAC, relevantly to any court, of information or a document concerning whether or not an application for legal aid has been made by a particular person, whether such an application was granted or refused, the grounds on which such an application was granted or refused (including information as to the means of the applicant) and whether a person has appealed against the refusal of such an application. As will be apparent, Sheahan J had recourse to LAC Act, s 25(4)(l) on 23 April 2015 when he sought further information to assist in determining the adjournment application.

Consideration

1. [170]

   There are few decisions in which the proper construction of s 57 has been addressed. In Fibre-Tek (Gold Coast) Pty Ltd (in Liq) v Bennett, [130] Simpson J adverted to its meaning in a case in which the applicant for the s 57 adjournment (the defendant in the proceedings) did not appear. However, the applicant produced copious evidence concerning the circumstances of her non-appearance, not least being that she was a paraplegic and confined to a specially designed bed in a hospital, assertions which were amply supported by medical evidence. Her Honour summarised s 57, then expressed the opinion having regard to its terms, that “the onus lies upon the party who opposes adjournment to establish one or more of the relevant circumstances that would justify refusal.” [131]

2. [171]

   Rothman J referred to Fibre-Tek in Lewis v Spencer, an appeal against conviction and sentence by a magistrate of an offence under the Crimes Act 1900 (NSW). [132] The appellant had applied for legal aid which had been refused. When the matter was called on for hearing before the magistrate, a solicitor employed by the LAC sought a s 57 adjournment on the basis that the appellant had lodged an appeal against the declinature of his legal aid application. The solicitor informed the magistrate that, on the basis of her experience at the LAC, the appeal had a “very high likelihood of succeeding at the Legal Aid Review Committee.” [133] She informed the magistrate that the reason legal aid had been refused was because the appellant had failed to attend an LAC appointment due to his father being ill. She outlined the circumstances of his father’s illness, but said she was constrained by provisions in the LAC Act from disclosing the grounds upon which legal aid was refused in any detail. [134] The magistrate rejected the application for an adjournment on the basis that the bona fides of the LAC appeal had not been established and, too, it appears, in any event, even if bona fide, that was outweighed by the inconvenience of granting an adjournment in circumstances where the prosecution had arranged to bring its witnesses to court for the hearing of the matter.

3. [172]

   At the hearing of the appeal before Rothman J, one of the grounds of appeal was the refusal of the s 57 adjournment. There was no controversy about the genuineness of the views the solicitor had communicated to the magistrate concerning the likelihood that the appeal to the Legal Aid Review Committee would be successful. There was also no suggestion before the magistrate that the appeal against the legal aid decision “was other than genuine and designed for the purpose of achieving the grant of legal aid and representation” of the appellant. [135]

4. [173]

   Rothman J referred to the passage from Fibre-Tek set out above and, on that basis, it appears, held it was “for those asserting that an adjournment should not occur to establish that one of the circumstances exist that would overturn the prima facie position that, an appeal having been lodged, the proceedings are adjourned.” [136] His Honour also held that, even if “the onus did not rest upon those opposing the adjournment, there [was] no material upon which the court below could have decided that the intention to appeal and, at a later stage the appeal, were not bona fide or that any delay occasioned by an adjournment would be improper.” [137] Accordingly, his Honour upheld the appeal, it seems, on the basis that the adjournment should have been granted, quashed the conviction and sentence and remitted the matter to the Local Court for redetermination. [138]

5. [174]

   It is not apparent that Rothman J’s view that s 57 reveals a prima facie position that, an appeal having been lodged, the proceedings are adjourned, is correct. That is not apparent from the structure of the provision which, on my view, lends itself to the construction that an adjournment is required if each of the matters in s 57(a) – (c) is established in the applicant’s favour.

6. [175]

   That construction is supported by Spigelman CJ’s reasons in Director of Public Prosecutions v Emanuel. [139] This was another successful appeal from a conviction in the Local Court in circumstances where a magistrate had rejected a s 57 adjournment application in circumstances in which he did not address the matters for which s 57 provides. [140] Spigelman CJ observed that the provisions of s 57 were mandatory and that the accused was entitled, as a matter of law, for the Local Court to address its provisions once an appeal against the refusal of legal aid had been lodged. If each of the other conditions in s 57(b) and (c) were made out, s 57 required the Court to adjourn the proceedings. His Honour held, accordingly, that the magistrate’s failure to address those matters deprived the applicant of “his statutory entitlement to have the Court determine whether he was entitled to an adjournment in accordance with law.” This meant that his subsequent trial involved a miscarriage of justice in circumstances which deprived the accused of a fair trial. [141]

7. [176]

   This approach is also supported by Cameron v Rural Press Ltd, [142] an early Federal Court consideration of s 57. The appellant sought a s 57 adjournment on the basis that she had appealed against the refusal of the LAC to grant her legal aid, but those appeals had not been determined. [143]

8. [177]

   The Full Court said it was insufficient that subjectively, the appellant was making a “bona fide appeal to the Review Committee”. Rather, before the Court could accede to the adjournment application, the matters set out in s 57(b) and (c) had to be established objectively, taking into account all relevant material applicable to the particular matters before the Court. In this respect, the Court held that it was entitled to have regard to the extensive material in that case which stretched over a period of six years from when the original proceedings had been instituted. [144] Insofar as the question of onus was concerned, the Court observed that it may well be that the appellant did not carry any onus of proof to prove a negative, but nor did the respondents have any onus of proof “to establish that the appeal to the Review Committee is frivolous etc.” Rather, the Court had to have regard to all of the facts and circumstances. [145]

9. [178]

   Having regard to a lengthy history of interlocutory applications, which included the fact that while the appellant was “vigorous in litigation”, with one exception “she [had] not appeared throughout a final hearing”, [146] the Court held that the conditions in s 57(b) were not satisfied, so that s 57 did not require the Court to adjourn the hearing. [147] The Court was also of the view, apparently by reference to s 57(c), that the case was one where, having regard to the cost to the respondents of the proceedings to date and the issues involved (the appellant’s claim was described as “extraordinary”), justice could only be done by refusing the adjournment. [148]

10. [179]

    Davies J discussed the authorities to which I have referred in HSBC Bank Australia Ltd v Murtough. [149] Insofar as Fibre-Tek was concerned, his Honour expressed the view that Simpson J’s reference to the onus being on the party opposing the stay was “no more than … [a] reference to an evidentiary onus.” [150] His Honour opined that “[o]rdinarily, in the first instance, a party would not be expected to prove a negative as the judgment in Cameron v Rural Press notes”. In his Honour’s view, the introductory words to s 57 suggested “that the overall onus remains on the party seeking the adjournment.” [151]

11. [180]

    Ward JA applied the Cameron approach in Potier v R. [152] Her Honour added, that there was “some debate as to whether there is any more than an evidentiary onus on the party opposing an adjournment to establish circumstances sufficient to engage either of the sub-sections in s 57, in order to overturn the prima facie position that, an appeal having been lodged or an intention to appeal having been indicated, the proceedings are to be adjourned”. Her Honour referred to Lewis v Spencer, Fibre-Tek and HSBC Bank, but said it was not necessary to explore that issue. [153]

12. [181]

    Biscoe J referred to Fibre-Tek and Lewis v Spencer in ex tempore reasons when the present parties came before the LEC in 2009. [154] However in that case, the Council conceded that the effect of Fibre-Tek and Lewis v Spencer was that a s 57 adjournment was warranted. It also acknowledged it bore the onus of establishing that circumstances existed which would overturn the prima facie position pursuant to LAC Act s 57 that, there being an intention to appeal a refusal of legal aid, the proceedings should be adjourned. [155] As will be apparent, the Council, now represented by different counsel, no longer adheres to that view of the authorities.

13. [182]

    As I said earlier in these reasons, in Bobolas (No 2) Sheahan J referred to Lewis v Spencer and to Biscoe J’s decision in Waverley Council 2009 upon which the appellants relied, but did not consider either decision in detail. Rather, his Honour extracted two quotations, one from Yau Hang Chan, the other from Scott-Irving.

14. [183]

    The quotation his Honour extracted from Yau Hang Chan was Schmidt J’s observation that the applicant for a s 57 adjournment before her Honour who had no evidence that any communication with the LAC constituted either an appeal from the refusal of an application for legal aid nor, it would appear, any indication of an intention to appeal, even giving consideration to the applicant’s position as an unrepresented litigant, could not explain his failure to tender his appeal document “suitably masked, if that was necessary, to preserve confidentiality in anything which might be privileged.” [156]

15. [184]

    His Honour also had regard to Adamson J’s observations in Scott-Irving concerning a belated application for legal aid after a matter had been set down for hearing, which application had not been advised to the Court during 14 directions hearings which had preceded a s 57 adjournment application. In those circumstances, Adamson J accepted the defendant’s submission that her Honour could not be satisfied for the purposes of LAC Act, s 57(b) that the legal aid appeal was bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. [157] Her Honour also expressed the view that it was in those circumstances incumbent on the applicant for the s 57 adjournment “to provide some explanation to shed light on his conduct which on its face appears to be at least misleading towards the Court and to the defendant.” [158] Her Honour concluded that in circumstances where, up until the application for the s 57 adjournment, the plaintiff had indicated that he was prepared to proceed without legal aid and represented his readiness for hearing to the Court and the defendant, her Honour was satisfied that there were special circumstances preventing her from adjourning the proceedings. [159] That passage in her Honour’s reasons did not bear upon the issues before Sheahan J as the Council did not contend s 57(c) circumstances existed.

16. [185]

    As is apparent from the authorities to which I have referred, varying views have been expressed about the burden of proof on a s 57 application. The question of the meaning of s 57 must, of course, primarily focus on the text but, too, having regard to the language and the purpose of the LAC Act. [160] One of the difficulties with many of the authorities in the courts considering s 57 is that the courts determining the applications have usually not had the assistance of legal representatives on behalf of the applicant for the adjournment to enable the proper meaning of s 57 to be properly debated. That is also the situation in this case.

17. [186]

    In the first instance, it might be accepted that the purpose of s 57 is to ensure, so far as practicable, adequate legal representation for all persons involved in court proceedings. Such representation aids not only the parties, but the administration of justice. [161] However, s 57 will also commonly operate in the procedural matrix governed by the overriding purpose expressed in CPA s 56 and its complementary provisions. Considerations those provisions mandate courts to apply will also be relevant. [162]

18. [187]

    In my view, the hierarchy of s 57 is such that a court or tribunal must be satisfied as to the matters in s 57(a) – (c) before the adjournment mandated by the concluding words of the provision applies. It is apparent from the introductory words to s 57 that the court may have regard to “any information before it” to determine whether to adjourn the proceedings. Thus, as in Cameron and Potier, I would be of the view that a court or tribunal considering a s 57 adjournment application may have regard objectively to all relevant material before it. It may also take into consideration the prospects of success of the proceedings the subject of the adjournment application when considering s 57(c). [163]

19. [188]

    Section 57 is silent as to who might place that information before the court or tribunal. However, prima facie, one would expect that the party referred to in s 57(a) being, implicitly, the unsuccessful applicant for legal aid, would be in the best position to place information concerning the matters in s 57(a) before a court or tribunal. Equally, it is the applicant for legal aid who is in the best position to establish the bona fides of any appeal, or intention to appeal, the assessment of which question must turn upon matters such as the reason legal aid was refused, and the likelihood that the appeal will be successful. The establishment of such matters would also, clearly, assist the court in determining whether or not the appeal, or intention to appeal, could be classified as frivolous or vexatious etc within the terms of the concluding words of s 57(b). That is particularly the case when one has regard to the cloak of privilege s 25 casts over information concerning an application for legal aid. It is only the applicant for legal aid who is in a position to waive any such privilege in order to assist the court in determining the bona fides of a legal aid appeal.

20. [189]

    However, that does not mean that the burden of disproving the issues of frivolity and the like would be on the s 57 applicant. Those words in s 57(b) are a ground for defeating or excluding the “right” to an adjournment s 57 mandates, subject as I have said, to the establishment of s 57(a) – (c). Thus, they being a basis of defeasance or exclusion from that “right”, it would be expected that the burden of proof is on the party seeking to rely upon those matters. [164]

21. [190]

    That would not, of course, prevent a party opposing a s 57 application from placing material before the Court on an evidentiary basis to demonstrate that an appeal or intention to appeal was not bona fide but, rather, was either frivolous or vexatious or otherwise intended, in substance, to “improperly hinder or improperly delay” the proceedings. Insofar as s 57(c) is concerned, one would ordinarily expect the party opposing a s 57 adjournment to seek to rely upon special circumstances, an issue which must be determined in each particular case. [165]

22. [191]

    The foregoing analysis means that I do not, with respect, accept that the opponent of a s 57 adjournment application bears the onus of displacing “the prima facie position that, an appeal having been lodged, the proceedings are adjourned”. [166] Nor do I read Simpson J’s reasons in Fibre-Tek as supporting that proposition.

23. [192]

    Rather, insofar as the parties are concerned, the position is more nuanced, as I have sought to explain. And, in the final analysis, the court or tribunal considering the matter must look at the matter objectively, keeping in mind the policy objectives and procedural context to which I have referred.

Conclusion

1. [193]

   The only information the appellants placed before Sheahan J to support the s 57 adjournment was the heavily redacted document to which I have referred, and their assertion that s 57 mandated an adjournment. They had been advised clearly in the Registrar’s letter that they should attend the hearing which would proceed in their absence if they did not. They had also been advised that his Honour had sought the information referred to in LAC Act, s 25(4)(l) in relation to their legal aid application so they were on notice that if they did not appear, his Honour was entitled to draw such inferences as may reasonably arise from that documentation. They did not appear before Sheahan J on 24 April 2015.

2. [194]

   The advice Sheahan J had received as at 9.47am on 24 April 2015 to the effect that, contrary to their assertion in their 22 April 2015 fax, the appellants had not appealed from any refusal of a grant of legal aid, would have entitled his Honour to reject the s 57 adjournment application on that basis alone. His Honour did not do so, having regard no doubt to the fact the appellants appeared to have informed Mr Webber that they intended to appeal which would have invoked s 57(b).

3. [195]

   Accordingly, his Honour considered the information which was before him concerning any legal aid application. His Honour was entitled, in my view, to take into account in this respect the fact that the appellants had almost entirely concealed any information which might usefully have informed the Court about the bona fides of any intention to appeal such a refusal. [167] The question of what grounds of appeal the appellants proposed to, or had in fact, relied upon was clearly relevant to the question of whether they had any bona fide appeal or intention to appeal.

4. [196]

   His Honour was also entitled to take into account the copy of the LAC refusal letter advising the appellants’ “application for extension of legal aid received 22 April 2015 [had] been refused”. [168] Having regard to the 6 February motion and supporting affidavit the Council had tendered, again, it was clearly open to his Honour, in my view, to conclude that the appellants had been aware of the proceedings since at least that date, but had substantially delayed making any legal aid application until the day before the matter was listed for hearing.

5. [197]

   The appellants’ submissions focussed on what they asserted was Sheahan J’s error in concluding that they had only sought legal aid on 22 April 2015. They proffered an elaborate explanation of what the words “application for extension of legal aid” in the LAC refusal letter meant. This explanation was no more than assertion on their part. But, significantly, whatever weight might be attached to that assertion, it was not placed before Sheahan J. His Honour was entitled in my view to rely upon the terms of the LAC refusal letter to conclude the appellants had sought legal aid the day before the hearing.

6. [198]

   Finally, having regard to the period of time the proceedings had been on foot, the appellants’ knowledge of which was established, and by way of analogy with the passages to which his Honour had referred in Yau Hang Chan and Scott-Irving, it was also, in my view, open to his Honour to conclude objectively that the foreshadowed appeal was “a deliberate device to delay [the] proceedings.” [169]

7. [199]

   In my view the appellants have not established any error in Sheahan J’s rejection of their s 57 adjournment application.

8. [200]

   I would reject grounds of appeal 3 – 4 and 18 – 25.

9. [201]

   On 7 May 2015 the appellants filed the 30 April motion, seeking to set aside the judgment and orders made by Sheahan J on 24 April 2015. As I have said, the motion was heard by Pain J on 10 June 2015. According to the coversheet of her Honour’s reasons, Elena and Liana Bobolas appeared but Mrs Bobolas did not. Her Honour rejected the appellants’ submissions that Sheahan J had erred and dismissed their motion in a judgment delivered on 18 June 2015. [170]

10. [202]

    At the outset of the hearing of the 30 April motion, Pain J informed the parties of an email the Court had received from the LAC advising that the appellants’ application for review of the refusal of legal aid which had been considered by the Legal Aid Review Committee on 3 June 2015 had not been successful. [171]

11. [203]

    The appellants read a number of affidavits affirmed by Ms Liana Bobolas and Ms Elena Bobolas respectively before Pain J. All were affirmed subsequent to the hearing before Sheahan J.

12. [204]

    In her affidavit dated 30 April 2015 on the coversheet, but affirmed on 1 May 2015, Ms Liana Bobolas said:

13. [205]

    She asserted that on 16 April 2015 Elena Bobolas had enquired as to the progress of the application and “discovered that Legal Aid had lost &/or mislaid the application and associated documents.” She said she supplied Legal Aid with a copy that day.

14. [206]

    In her affidavit of 14 May 2015, Ms Elena Bobolas said she sent a copy of the Legal Aid application form to Legal Aid on or before 6 March 2015 and kept the original application. She said she made repeated phone calls to Legal Aid to check on the application’s status and was told to wait for a letter. She asserted that by 16 April, she was afraid “that Legal Aid may have lost my application (this has happened before, with my applications in relation to other cases)” and so she made further enquiries. She said she was told that Legal Aid had lost her application. She said she then resubmitted it and asked that it be treated on an urgent basis. She said that an employee of Legal Aid took the document, stamped it, and gave her a copy of the front cover. Two pages of a document entitled “Application for Legal Aid” were attached to the affidavit bearing what appeared to be a stamp affixed by the Legal Aid Commission dated 16 April 2015 and a signature. The documents were two of what appeared to be a 16 page pro forma document for a legal aid application. No other pages were provided. Page 3 of 16 bore an annotation in handwriting “I have sent in this already, but received no response to date. (copy sent)”. Otherwise it set out, also in handwriting, Elena Bobolas’ name, gender, marital status and address.

15. [207]

    Ms Bobolas’ affidavit also asserted that on 22 April “after explaining the situation several times” she spoke to the person at the LAC dealing with her application:

16. [208]

    Pain J concluded that the appellants had not demonstrated any error or unfairness in Sheahan J’s refusal to grant the adjournment. Her Honour said:

17. [209]

    Paragraph 20 of Ms Elena Bobolas’ 14 May 2015 affidavit asserted:

18. [210]

    A number of what purported to be medical certificates relating to each of the appellants appeared in the pages following the affidavit. They were heavily redacted by the application of what appears to be a black marking pen which made it impossible to read the name of the doctor or any details of the doctor’s provider name, address and signature. It is not clear whether the medical certificates formed part of the affidavit or were separately tendered before Pain J. Only three appear to be arguably relevant to the hearing before Sheahan J. The first is dated 14 April 2015. It “certifies” that the author examined Mary Bobolas on 14 April 2015 and that, in the author’s opinion “she was/is suffering from A MEDICAL CONDITION [and] she was/will be unfit for work up to and including 1.5.15.” The second is dated 17 April 2015. It “certifies” that the author examined Liana Bobolas on 17 April 2015 and that, in the author’s opinion “she was/is suffering from CONTUSED L FOOT/ANKLE [and] she was/will be unfit for work up to and including 1.5.15.” The third is dated 20 April 2015. It “certifies” that the author examined Elena Bobolas on 20 April 2015 and that, in the author’s opinion “she was/is suffering from CELLULITIS FEET [and] she was/will be unfit for work up to and including 1.5.14.” [sic, 15]

19. [211]

    Of these “certificates”, Pain J said:

Consideration

1. [212]

   There is no specific ground of appeal relating to Bobolas (No 3). However, the appellants raised the following issues in this respect.

2. [213]

   First, the appellants contended Sheahan J should have held, and Pain J should have found, that the Demolition Order was invalid because it was not issued to the owner of the garage.

3. [214]

   Elena and Liana Bobolas contended the garage did not belong to Mrs Bobolas but that she had “given” it to them. They did not identify any evidence to found this assertion. It appears they did seek to rely upon an affidavit going to this issue before Pain J, but her Honour refused to allow them to do so as was it was too late (apparently being produced in the course of the hearing).

4. [215]

   In this context, the appellants complained about the fact that Pain J did not refer to cases to which the appellants had drawn her attention and “therefore she has not considered all of the evidence before her”. This was a complaint about the fact her Honour did not refer to a decision of Pepper J in Armidale Dumaresq Council v Vorhauer (No 3). [172]

5. [216]

   It is understandable why her Honour did not refer to that decision as it does not resolve the critical issues. First, because the effect of the provisions of the EPA Act to which I have referred above (at [38]) required the Demolition Order to be served on Mrs Bobolas, who is the registered proprietor of the property and therefore the “owner” for the purposes of EPA Act, s 121B. [173]

6. [217]

   Secondly, because in Vorhauer, a council seeking a substituted performance order, enabling it, rather than the registered proprietor, to remove property from land, failed to join the person who was the owner of the property in respect of which the council had sought and obtained a removal order. Pepper J held that, absent that owner’s joinder, the court could not entertain a motion enabling the council to carry out the removal works itself. [174]

7. [218]

   That is not this case. Even assuming Elena and Liana Bobolas are the owners of the garage, they are parties to the proceedings.

8. [219]

   Next, the appellants criticised Pain J’s description of their medical “certificates” as not addressing the issue of whether the appellants were able to attend court before Sheahan J on 23 and 24 April 2015, rather than work. They submitted, in essence, that a person unable to perform work could not be said to be able to concentrate in a court. They contended that the redaction of the information from the medical certificates did not affect their utility and had been undertaken to keep the appellants’ medical information private.

9. [220]

   In my view, Pain J’s rejection of the appellants’ medical certificates as having no probative value was unexceptionable. As Ward JA pointed out in earlier proceedings involving the appellants where they appear to have relied upon medical “certificates” in similar form:

10. [221]

    A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.” [176]

11. [222]

    The appellants’ medical certificates did not address the “critical question”. Further, the volume of motions and affidavits the appellants have filed in the course of these proceedings belies the proposition that they are unable to attend court. [177] Indeed, they demonstrate great attention to detail, not only as to matters of fact, but also as to matters of legal principle and practice.

12. [223]

    The appellants did not expressly complain in this Court about Pain J’s rejection of their complaints about Sheahan J’s failure to grant their s 57 adjournment application. [178] No doubt that is because they raised that issue in the grounds of appeal with which I have already dealt.

13. [224]

    It needs hardly be said that neither the validity of the Demolition Order nor the appellants’ asserted medical incapacity was raised before Sheahan J. It is not surprising in the circumstances that, in addition to the specific reasons her Honour gave for dismissing the 30 April motion, Pain J held that the orders the appellants sought were not in the interests of justice. [179]

14. [225]

    The appellants have not made good any complaint about Bobolas (No 3).

15. [226]

    I have earlier referred to the appellants’ 24 June motion and the Council’s 29 July 2015 motion seeking an order pursuant to UCPR 13.4(1) that that motion be dismissed. The Council relied, In particular, on UCPR 13.4(1)(c) and submitted that the 24 June motion was an abuse of process on two bases: firstly, because it had no prospects of success, and secondly, because it was a relitigation of matters already determined. [180]

16. [227]

    Pain J resolved to hear the motion ex parte, as, once again, the appellants did not appear. Her Honour considered that “to a large extent” the 24 June motion was the same as the motion filed on 7 May. She accepted the Council’s submission that the 24 June motion was essentially an attempt to relitigate matters already determined. Her Honour was satisfied that “abuse of process [was] demonstrated … by the history of the matter and the nature of the issues sought to be re-agitated in the motion.” She considered that the motion had no prospects of success and made an order dismissing it. [181]

17. [228]

    The appellants did not raise any specific ground of appeal in relation to Bobolas (No 4). It need not be further considered.

18. [229]

    It was not until 8 July 2015, after the notice of appeal was filed, that the appellants raised the issue that they had not been served with the Council orders which the LEC proceedings sought to enforce.

19. [230]

    They baldly contend:

    1. (1)

       the Council orders were not served, or not duly served;

    2. (2)

       if the Council orders were served, they were not served in any way, shape or form to bring them to the appellants’ attention, and nor were court orders; and

    3. (3)

       the Council failed to adhere to the orders made by the Court regarding service.

20. [231]

    In the LEC, the Council read the following affidavits on 24 April 2015 to prove service of each of the relevant orders:

21. [232]

    For the reasons I have earlier expressed, the appellants should not be permitted to rely upon grounds of appeal relating to issues not raised in the LEC. However, although the Council took this point, it also contended the evidence read before Sheahan J demonstrated that the orders which founded the LEC proceedings were properly served.

22. [233]

    In my view that submission should be accepted. I have set out the provisions concerning service of orders in the EPA Act and the LG Act earlier in these reasons. Service of a notice under the LG Act is effected when the notice is affixed to a conspicuous part of the property, [182] or, in the case of service by post, the act of posting a notice by pre-paid letter addressed in accordance with LG Act, s 710(2)(c) not only “effects” or completes the act of service, but also identifies the time of service. [183] Mr Gaze’s evidence establishes that all the orders mailed to the appellants were sent in pre-paid postage envelopes and, further, that none were returned to the Council.

23. [234]

    The reasoning in Kyogle Shire Council also supports the proposition that the notices given under the EPA Act were served when they were mailed to Mrs Bobolas in accordance with EPA Act, s 153(1)(a)(ii).

24. [235]

    I would reject grounds 15 and 16 of the notice of appeal.

25. [236]

    The appellants also complained, in substance, that s 200 of the LG Act qualified the right of entry that was conferred either by s 678 or orders made pursuant to s 678 the LG Act. Once again this ground was not raised in the LEC nor in the notice of appeal, however it raises a point of law which is able to be disposed of consistently with previous authority.

26. [237]

    In essence, the appellants submitted that s 200 of the LG Act (set out earlier in these reasons) prohibited entry onto residential land by the Council, except with the permission of the occupier. They submitted that s 678 (also set out above) could not override s 200 to the extent that s 200 has no work to do. They contended the Council had never satisfied the circumstances under which s 200 permitted entry to residential premises and, accordingly, the Council did not have the right to enter onto the property. They submitted that s 678 was not intended to refer to residential premises. They contended that the Note to s 678 made it clear the Council could not enter onto any part of residential premises.

27. [238]

    This submission has been dealt with by this Court on previous occasions, on each of which it has been rejected.

28. [239]

    In Bobolas v Waverley Council (an application to set aside orders made by Ward JA), [184] the Court (Meagher and Gleeson JJA and Sackville AJA) dealt with it as follows:

29. [240]

    In Bobolas CA (No 4), Leeming JA (with whom Basten JA and Tobias AJA agreed) referred with approval to the Court’s rejection of these submissions in Bobolas CA 2014. His Honour also observed that the Note to s 678:

30. [241]

    The appellants said nothing which challenged the reasoning in either of these decisions. Their s 200/s 678 submission should be rejected for the reasons twice given by this Court.

31. [242]

    Grounds of appeal 9, 10, 12, 17, 26 and 27 - 32 sought to raise issues of procedural fairness at a high level of generality, in particular concerning the setting of dates for hearings and the giving of procedural directions. It is apparent from the chronology of the proceedings I have set out that the LEC and the Council gave the appellants notice of the directions the Court had made and the dates which had been set for hearing. They did not seek to vary those dates. They did not appear on the assigned hearing dates but, rather, either professed ill health (13 March, which led to an adjournment), gave no explanation for their non-attendance (20 March) or sought an adjournment (23 – 24 April).

32. [243]

    The appellants have not, in my view, demonstrated that they were not afforded procedural fairness. Rather, as the Council submits, they were “afforded ample opportunities to file evidence in the proceedings and to appear”.

33. [244]

    I would reject these grounds of appeal.

34. [245]

    The appellants frequently wrote on their documents and repeated orally in Court that they were unrepresented litigants as if that should afford them different treatment in the proceedings to that accorded either to the Council or to represented litigants generally. They also contended the Council and the LEC breached a duty of care to them which to the extent to which it could be said to have been “articulated”, appears to be founded on their status as unrepresented litigants. This appears to be the subject of their grounds 7, 8 and 11.

35. [246]

    There is no “special” duty of care owed to unrepresented litigants. Rather, to the extent there is an obligation, sometimes described as a “duty”, but not a “duty of care” it is framed in terms of the right to a fair trial.

36. [247]

    Courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. However, the court’s duty is not solely to the unrepresented litigant. Rather, the obligation is to ensure a fair trial for all parties. While a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial, the application of that principle will vary depending upon the circumstances of the case. In particular, the duty of a trial judge does not extend to advising the accused as to how his or her rights should be exercised, nor to giving judicial advice to, or conducting the case on behalf of, the unrepresented litigant. The judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. [186]

37. [248]

    In my view it is manifest that Pain J and Sheahan J dealt with the appellants in a manner exhibiting an assiduous concern about seeking to accord the appellants a “fair trial”. This task was rendered difficult by the fact that while the appellants filed copious challenges to the LEC proceedings, they only appeared on one occasion, on 10 June 2015 – and on that occasion Mrs Bobolas did not attend.

38. [249]

    I would reject grounds 7, 8 and 11.

39. [250]

    It should be recorded that the conduct of the appeal was extremely difficult. Both Elena and Liana Bobolas made, or sought to make, oral submissions. That was their right. Each is an appellant. However they frequently spoke over each other, interrupted the Court when it was seeking to understand the submissions and interrupted Mr Clay during his submissions. Mrs Bobolas did the same, although to a far lesser extent.

40. [251]

    Liana Bobolas walked out of court before lunch during the hearing despite being advised the hearing would continue in her absence. She returned after the luncheon adjournment, to seek to read an affidavit she said went to an issue of procedural unfairness, most of which she did not wish the Council to be able to read. The Court refused her leave to rely on the affidavit (a copy of which was marked MFI 1), being of the view there was nothing in it which dealt with the substantive issues which arose on the appeal. After a lengthy verbal exchange Liana Bobolas left the court again, having been advised that if she chose to do so the appeal would continue in her absence.

41. [252]

    I would dismiss the appeal with costs. As Basten JA ordered that the costs of the 8 July motion be “costs in the appeal”, the costs order against the appellants includes the Council’s costs of that motion. [187]

42. [253]

    SIMPSON JA: I agree with McColl JA.

43. [254]

    SACKVILLE AJA: I have had the advantage of reading McColl JA’s comprehensive reasons for judgment in this appeal. I agree with her Honour’s proposed orders and, subject to what appears below, with her Honour’s reasons.

44. [255]

    As McColl JA points out, s 57 of the Legal Aid Commission Act 1979 (NSW) (LAC Act) gives rise to questions of construction on which uniform answers have not always been given. In my view, even if the respondent (the Council) bore the burden of showing that the appellants’ foreshadowed appeal from the refusal of legal aid was not “bona fide”, Sheahan J’s findings demonstrate that the burden was discharged.

45. [256]

    His Honour found that the foreshadowed appeal was simply a deliberate device by the appellants designed to delay the proceedings. The material before his Honour entitled him to make that finding, particularly the matters identified by the Council in its submissions to this Court. [188] The finding that the foreshadowed appeal was a deliberate ploy was sufficient to discharge any onus imposed on the Council by s 57 of the LAC Act. I therefore do not think it necessary to express a concluded view on the correct interpretation of s 57.

46. [257]

    It appears that this is the fifth cycle of litigation consequent upon the appellants’ failure to comply with multiple orders issued by the Council requiring them to remove accumulations of waste from the premises they occupy in Bondi (Property). The first cycle commenced with an order issued on 18 March 2005 by the Council, pursuant to s 124 of the Local Government Act 1993 (NSW) (LG Act). The fifth and current cycle commenced, as McColl JA has explained, with orders issued by the Council on 8 July 2014 and 1 August 2014. [189] Each cycle had been characterised by multiple court proceedings and disputes over issues such as the form of orders and whether documents have been properly served, rather than whether the accumulated rubbish presents a danger to health. [190]

47. [258]

    It can be seen from the many decisions of the Land and Environment Court and this Court over much of the eleven year period from 2005 to 2016, residents in the immediate vicinity of the Property and no doubt other persons have had to endure not merely the inconvenience, but the hazards to health created by the repeated accumulation of rubbish on the Property. Since the appellants have been required to meet the costs of successive clean-up operations, their conduct, from which they are apparently unable or unwilling to desist, produces unfortunate consequences for them.

48. [259]

    The history of the litigation between the Council and the appellants demonstrates that the mechanisms currently available to remedy health hazards on private property are sometimes neither efficient nor effective. This is not to imply that a solution is necessarily self-evident or simple to implement. This Court has seen only a snapshot of the ongoing “saga” [191] and is not in a position to assess the various factors that may have contributed to the apparent ineffectiveness of the legislative regime. Moreover, it is always a delicate and difficult task to balance the rights of property owners, particularly of home owners, against the protection of the health and well-being of the community at large.

49. [260]

    It does seem clear, however, that further consideration needs to be given to whether the current legislative regime achieves a satisfactory balance between the competing interests and, if not, what can be done to avoid the kind of protracted and inconclusive litigation illustrated by the present case.

50. [261]

    I should record that shortly after the luncheon adjournment on the hearing of the appeal, Ms E Bobolas submitted that I should disqualify myself on the grounds of bias and an apprehension of bias. Ms Bobolas gave no reason for the disqualification application despite being given the opportunity to do so. I declined to accede to the application.