Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Bobolas v Waverley Council [2012] NSWCA 126
• Hearing dates: 14 December 2011 and on written submissions dated 12 March 2012
• Decision date: 07 May 2012
• Before: McColl JA at [1], Macfarlan JA at [78], Tobias AJA at [79]

Decision

1. Authorise Elena Bobolas to act in all respects concerning the present appeal as if she had been appointed Mary Bobolas' tutor pursuant to the Uniform Civil Procedure Rules 2005, such authority to operate from the date the Notice of Appeal was filed.

2. Appeal allowed.

3. Declare that the order dated 5 March 2009 issued by the respondent to each of the appellants pursuant to s 124 of the Local Government Act 1993 is not, and was not, a valid order.

4. Set aside the orders made by Pain J on 11 December 2009.

5. Set aside the costs orders of 29 April 2010 and 17 June 2010 made against the appellants.

6. Order the respondent to pay the appellants' costs of the written submissions prepared by pro bono counsel, out of pocket expenses and "deferred filing fees" in the event that the condition on which those fees were deferred falls in.

7. Pursuant to UCPR r 7.41, order that Mr J Doyle, being a barrister who has provided legal assistance to the appellants under the scheme for the provision of legal assistance to litigants under Division 9, Part 7 of the UCPR, is entitled to recover the amount of costs that the respondent is required to pay under order 6.

8. Remit the question of costs of the Land and Environment Court proceedings to Pain J for determination.

9. The respondent is granted an indemnity certificate under s 6 of the Suitor's Fund Act 1951 with respect to the costs payable under orders 6 and 7, provided that the respondent is otherwise entitled.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LOCAL GOVERNMENT - validity of orders for removal and disposition of waste on residential premises - Local Government Act 1993 s 124 (cl 22A) - where orders required entry onto premises whether or not owner consented - orders not clear and expressed in terms of futurity; PROCEDURE - whether third appellant required tutor to commence appeal - UCPR r 7.14 - where third appellant subject of financial management order - no submitting appearance entered by manager - whether Court can appoint tutor - parens patriae jurisdiction - UCPR r 7.18; COSTS - delays from non-compliance with directions and processing legal aid application - appellants initially unrepresented - effect of delays on costs orders
• Legislation Cited: Civil Procedure Act 2005; Environmental Planning and Assessment Act 1979; Guardianship Act 1987; Land and Environment Court Act 1979; Legal Aid Commission Act 1979; Local Government Act 1993; NSW Trustee and Guardian Act 2009; Suitors' Fund Act 1951; Uniform Civil Procedure Rules 2005
• Cases Cited: Barclay v Wollongong City Council [2005] NSWLEC 160; (2005) 139 LGERA 167; Bobolas v Waverley Council [2011] NSWCA 242; EB v Guardianship Tribunal [2011] NSWSC 767; Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130; George v Rockett [1990] HCA 26; (1990) 170 CLR 104; Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Re P [2006] NSWSC 1082; State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606
• Category: Principal judgment
• Parties: Elena Bobolas - first appellant; Liana Bobolas - second appellant; Mary Bobolas - third appellant; Waverley Council - respondent
• Representation: G B Newport - respondent; Appellants in person; Wilshire Webb Staunton Beattie Lawyers - respondent
• File Number(s): 2010/9962
• Publication restriction: No

Decision under appeal

• Citation: [2009] NSWLEC 211
• Date of Decision: 2009-12-10 00:00:00
• Before: Pain J
• File Number(s): 2009/40278

Judgment

1 McCOLL JA: This appeal is brought from a decision of Pain J in the Land and Environment Court in which Waverley Council sought relief to enable it to enforce three orders issued to each of Elena, Liana and Mary Bobolas in purported reliance on s 124 (cl 22A) of the Local Government Act 1993 (the "LG Act"). The orders required the removal and disposition of waste on residential premises owned by Mary Bobolas at Bondi. Elena Bobolas and Liana Bobolas were at the relevant times apparently occupants of the premises, they being Mary Bobolas' daughters. The Council was granted that relief: Waverley Council v Bobolas (No 2) [2009] NSWLEC 211.

2 The Council's relief was sought pursuant to s 678(10) of the LG Act. Proceedings under s 673 of that Act are classified as Class 4 proceedings: s 20(1)(d), Land and Environment Court Act 1979 (the "L&E Act"). The appeal is brought as of right pursuant to s 58 of the L&E Act. Such an appeal extends to questions of both fact and law.

3 In the course of the hearing, an issue arose as to the constitution of the appeal which purports to be brought by Elena, Liana and Mary Bobolas. At the time of the proceedings below and at the hearing of the appeal, it appeared that Mary Bobolas's estate was, and had at all relevant times been, subject to the control of a manager so appointed on 4 December 2009 pursuant to the NSW Trustee and Guardian Act 2009. On 9 December 2009 the NSW Trustee and Guardian filed a submitting appearance on Mary Bobolas' behalf in the proceedings before the primary judge. No such appearance was filed in the appeal, not least, no doubt, because such appearances are filed by defendants: Uniform Civil Procedure Rules 2005 ("UCPR") r 6.11. The question of Mary Bobolas' role in the appeal is considered later in these reasons. For present purposes it is convenient to treat all members of the family as the appellants and so describe them.

Nature of the case

4 On 29 January 2009, Jacobus Fredericus Schilt, a Council officer, attended the Bobolas' premises and observed waste deposited in the front, side and back yards of the premises. He formed the opinion that the waste on the premises was causing or was likely to cause a threat to public health. He issued three orders (one for each of Elena, Liana and Mary Bobolas) purportedly pursuant to s 124 (cl 22A) of the LG Act requiring removal of the waste from the premises within 28 days. The orders were served on 5 March 2009.

5 The orders issued by the Council dated 5 March 2009, which were identical for each member of the Bobolas family save as to their separate identification, relevantly stated:

"Order 22A under section 124 of the Local Government Act 1993

[The premise's address and DP reference were set out]

Waverley Council pursuant to the powers conferred upon it by Section 124 of the Local Government Act 1993 orders you as the owner of the above premises to:

TERMS OF THE PROPOSED ORDER

(a) Remove the accumulation of rubbish from all parts of subject premises...

REASONS FOR THE ORDER

The order will be given...

PERIOD FOR COMPLIANCE WITH THE ORDER

As the storage of waste and refuse constitutes a health risk the order will require that you comply with its terms within twenty-eight (28) days from the date of this order.

NON COMPLIANCE WITH ORDER

It is an offence pursuant to section 628 of the Local Government Act 1993 to fail to comply with this order ... If this order is not complied with, Council may carry out the work and recover the costs from you ..." (Emphasis added)

6 Mr Schilt attended the premises again on 7 April 2009 and observed what, in his opinion, was a greater accumulation of rubbish and odour than he had observed on 29 January 2009. He formed the belief that the appellants had failed to comply with the s 124 orders. The Council then sought to invoke the Land and Environment Court's s 678(10) jurisdiction.

7 The central issue on appeal is the validity of the s 124 orders. In short, the appellants contend that the s 124 orders were ineffective to ground the Land and Environment Court's s 678(10) jurisdiction.

8 For the reasons which follow, I am of the view that that contention should be accepted and the appeal should be allowed.

Legislative framework

9 The following provisions of the LG Act in force as at the date the orders were served are relevant:

"CHAPTER 7 - WHAT ARE THE REGULATORY FUNCTIONS OF COUNCILS?

...

PART 2 - ORDERS

Division 1 - Giving of orders

124 What orders may be given, in what circumstances and to whom?

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table 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.

Orders requiring or prohibiting the doing of things to or on premises

	Column 1	Column 2	Column 3
	To do what?	In what circumstances?	To whom?
22A	To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises	The waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), causing or is likely to cause a threat to public health or the health of any individual	Owner or occupier of the premises

CHAPTER 8 - WHAT ANCILLARY FUNCTIONS DOES A COUNCIL HAVE?

...

PART 2 - ENTRY ON TO LAND AND OTHER POWERS

191 Power of entry

(1) For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.

...

193 Notice of entry

(1) Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.

(2) The notice must specify the day on which the person intends to enter the premises and must be given before that day.

(3) This section does not require notice to be given:

...

(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, ...

...

200 In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:

(a) with the permission of the occupier of that part of the premises, or

(b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or

(c) under the authority conferred by a search warrant.

...

CHAPTER 17 - ENFORCEMENT

PART 1 - GENERAL

Division 1 - Legal proceedings

...

678 Failure to comply with order-carrying out of work by the council

(1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

...

(10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so." (Emphasis added)

The primary judgment

10 The appellants appeared in person before the primary judge. Mr M Staunton represented the Council. The appellants raised numerous arguments before her Honour most of which are not pursued on appeal. By way of illustration, however, the primary judge recorded the defence as follows:

"13 The defence filed at the hearing, refers to the fact that the First Respondent has a psychological problem and should not be punished or restrained from doing things as these are not done deliberately, that the Second and Third Respondents have not engaged in actions which cause the Council to take the proceedings, that the orders have not been issued against the Second and Third Respondents, only against the First Respondent, and that the Council has no jurisdiction as it is not a local government body but a private corporation. The Second and Third Respondents submitted there are only two arms of government identified in the Constitution of Australia Act 1900 (the Commonwealth Constitution), federal and state. The LG Act is null and void. Fraud is referred to. The basis of this alleged fraud is unclear in the defence. I gather from submissions, it is on the basis that the Council is fraudulently representing itself as local government. They submitted s 200 of the LG Act prohibits the entry onto residential premises without permission of the occupier as does s 194. The Court cannot override these acts and give permission to the Council to enter when the LG Act expressly forbids it. The Court has no jurisdiction to deal with trespass matters or constitutional matters."

11 The primary judge set out the parties' evidence in detail which is unnecessary to repeat. The respondent's witnesses deposed to the observation of the accumulation of rubbish on all external parts of the premises, the formation of "the opinion that the premises was causing or was likely to cause a threat to the health of the occupants of the premises and to the health of the neighbouring residents", the service of clean up orders and the non-compliance with the same, leading to the application pursuant to s 678(10): primary judgment (at [14] - [29]).

12 The appellants' evidence seems largely to have gone to previous occasions on which the respondent had executed clean-up orders at their premises, as well as an opinion by a person apparently without legal qualifications who expressed the belief "that a council does not have the right to enter a residential premises pursuant to the LG Act": primary judgment (at [30] - [34]).

13 The primary judge concluded (at [36], see also [37], [41] - [42]) that the respondent's "evidence establishes the necessity for the order to be made and ... that there is some urgency to clean up before the summer season, due to odour from the rubbish". She added:

"I note the matter was originally heard in October 2009 and the hearing delayed until 9 December 2009 to enable the Respondents' appeal against the refusal of legal aid. Consequently, the Council now seeks orders as against each of the Respondents which will enable its contractors to commence work on the premises shortly, that is on Monday 14 December 2009."

14 Her Honour concluded (at [38]) that the premises were residential for the purposes of s 124 (cl 22A) and that "Mr Schilt ... formed the appropriate opinion required under" that clause. Accordingly (at [39]) the respondent validly issued the orders to the appellants.

15 Her Honour was also satisfied (at [40]) that "service of the Council's s 124 (cl 22A) orders ... was effected in accordance with s 710(c) and (e) of the LG Act through delivery to the premises by Council officers including [Mr Da Rocha], by mail being registered post, and affixing of the orders to the premises".

16 The primary judge considered, but accorded little weight to, the appellants' evidence concerning previous Council clean-ups, preferring the respondent's evidence to the extent of any conflict: primary judgment (at [43] - [46]). Her Honour was also satisfied (at [49]) that she should grant an order restraining the appellants from hindering the clean up.

17 The primary judge then turned to the appellants' defences. She described some as "misconceived":

"50 ... For those concerning the existence of local government and the jurisdiction of the Court to determine this matter based on argument that local government does not exist because of the Commonwealth Constitution there is no legal basis to argue that local government cannot exist. Section 697 of the LG Act states:

In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following:

· the incorporation of the council."

18 As to s 200 of the LG Act, her Honour applied Biscoe J's reasoning in Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215 (at [54] - [56]) where his Honour held:

"54 In my opinion, the interrelationship between s 678 and Part 2 of Chapter 8 is as follows. One of the 'functions' of a council referred to in s 191(1) is the exercise of power under s 678 to give effect to the terms of its own order under s 124 if a person fails to comply with the terms of the order. If an order under s 124 orders a person to do or to refrain from doing a thing on premises, then the exercise by council of its power under s 678 brings Part 2 of Chapter 8, including sections 193 and 200, into play. If the order relates to premises being used for residential purposes, then the powers of entry and inspection conferred by that Part are not exercisable unless one of the three exceptions to s 200 applies. None of those three exceptions applies in the present case.

55 However, none of these provisions limit the power of this Court to make an order under s 678(10).

56 In the result, if a council wishes to enforce an order that it has made under the Local Government Act 1993 s 124 in the way prescribed by s 678(1) and if enforcement requires entry onto premises being used for residential purposes, then, unless one of the specified exceptions to s 200 applies, council can only do so by obtaining an order of this Court. The legislative intention is to provide special protection in this way in the case of residential premises." (Emphasis in original)

19 Finally (at [52]) the primary judge accepted "the [respondent's] submissions in relation to the balance of the matters in the defence to the effect that the issues cannot arise given the circumstances of this matter or are contrary to the evidence or lack evidence in support of them".

20 On 11 December 2010 the primary judge made orders enabling the Council or their agents to enter the appellants' properties at specified times in order to remove the rubbish. No costs order was made. Paragraphs 1 and 2 of her Honour's orders provided:

"1. Pursuant to section 678(10) of the Local Government Act 1993 the Applicant Waverley Council, its servants and agents is ordered to execute the Council's functions under section 678 by carrying out work which was required to be carried out at the premises at ... Bondi ('the premises') by paragraph (a) of the orders dated 5 March 2009 given to each of the Respondents pursuant to section 124 of the Local Government Act 1993 ('the works'), being removal of all rubbish and accumulations of material from all external parts of the property including external yards and driveways of the property and the front verandah and open areas under the eaves, and front and rear entry areas including lopping of trees if necessary, being work which each of the Respondents was required to do but failed to do.

2. The Applicant, its servants and agents for the purposes of these orders, now and until these orders have been carried out, shall be entitled to enter and remain on the Premises to carry out these orders and between reasonable hours of the day during weekdays, being 7am to 3pm on Tuesday 15, Thursday 17, Friday 18 and Monday 21 December 2009."

I will refer to these orders as the "entry orders".

21 At the end of the primary judge's reasons, the following appeared:

"ADDENDUM - 11 DECEMBER 2009

1. I gave leave for a Notice of Motion returnable instanter, undated, to be filed in Court on 11 December 2009. In the Notice of Motion the Second and Third Respondents through their pro bono counsel sought leave to supplement their defence as follows:

Each of the purported Orders relied upon by the Applicant in these proceedings dated 5 March 2009 are not valid orders under Section 678 of the Local Government Act 1993 for the reason that the words "TERMS OF PROPOSED ORDER" appear before the actions described in each, and the words "The order will be given" appear before the 'reasons' stated such that the documents do not (or might be reasonably understood not to) state a present order to do anything so as to satisfy Section 124 of the Act and do not (or might reasonably be understood not to) give any reasons for the order made as required by Section 136, and accordingly the Court has no jurisdiction to grant the relief sought.

2. Leave was granted to amend the defence. At the hearing of the Notice of Motion on 11 December 2009 that defence was rejected. After further discussion orders were made on 11 December 2009." (Emphasis in original)

22 The reasons for the rejection of the amended defence appear in the transcript of the hearing on 11 December 2009. It is apparent from that transcript that the amendment sought to raise an issue as to the "certainty of the proposed order". The primary judge was satisfied she had the power to entertain the motion as final orders had not been entered. She also gave weight to the interests of justice in acceding to the motion to amend the defence given that the appellants were not represented prior to the intervention of pro bono counsel, Mr Doyle. The gist of the argument on the issue raised by the amended defence does not appear to have been transcribed, but sufficiently appears from the "short reasons" her Honour gave for accepting the submission made by counsel for the Council "that the order is not uncertain":

"So in response to each of the arguments put by Mr Doyle in his submissions I note that Mr Staunton pointed out to me that orders issued under cl 22A of s 124 of the Local Government Act do not require notice of intention and ... any suggestion that this notice in some way draws a notice of intention would appear to be invalid and there is no evidence about that anyway. The [objection] is that the order on its face substantially misleads and is therefore not an order within the terms of cl 22A. In reply Mr Doyle did refer to the case of Foster v Sutherland and the need for certainty in orders and I embrace the fact that yes, there is need for certainty of orders under s 124 of the Local Government Act and any other statutory orders but as I will now detail I consider this order is certain.

I accept Mr Staunton's submissions that the order has to be read, the entirety in context, and to that end note that the order is headed clearly Order 22A Under Section 124 of the Local Government Act. At the outset of the order it's addressed to a particular person at a particular address and in the first lines orders that person in the case of 'Mary Bobolas as the owner of the above premises' and in the case of Elena Bobolas and Liana Bobolas the orders will refer to them as 'the occupier of the above premises' and clearly states that they as the occupier or the owner 'are ordered to do the following things'.

It then sets out the terms of the proposed order and I do not think the fact that the word 'propose' appears in that line is in any way misleading when the entirety of the order is viewed and as already pointed out by Mr Staunton it is made very clear on the second page there is a period for compliance for the order. That also appears in bold type. There is also a very bold type heading of Non-compliance with Order and there is also a bold type of Appeal Rights. I think any of the recipients of this order would be under no illusion that they were to comply with the order, that there were potential offences that might arise if they failed to comply with the order, and they were clearly made aware of the fact there were appeal rights.

So I suppose in summary I consider it is an order that does meet the requirements of cl 22A of the Local Government Act and therefore is a valid order and that would ground the jurisdiction of the court to make orders under s 678(10) of the Local Government Act which is the matter before me. So I dismiss the motion?"

23 According to an affidavit sworn by Mr Schilt on 29 September 2011 that was filed by the respondent to the appeal, the primary judge's orders were executed over the period 15, 17 and 18 December 2010.

Grounds of Appeal

24 The notice of appeal filed on 8 January 2010 listed 15 grounds of appeal. The first three complained:

"1. No Council order was served or provided as required under s 124 of Local Government Act (1993); only a proposed order was made, not an actual order. Proceedings incompetent.

2. Section 200 of the Local Government Act (1993) (LGA) prohibits entry by councils onto residential premises without occupiers' permission.

3. Section 678 of LGA cannot override sections 200 & 194 of LGA."

25 The notice of appeal seeks the following orders:

"1. Appeal allowed.

2. Orders of the Land and Environment Court of NSW dated 11/12/09 be set aside.

3. We seek that the proceedings in the lower court [Land and Environment Court of New South Wales] be dismissed & declarations made in accordance with those we sought in our defence of lower court and cross-summons of lower court.

4. The respondents pay the appellants' costs.

5. We seek a declaration that 'Waverley Council' has acted contempt of court orders, & breached such orders and went beyond their alleged powers."

Hearing the appeal

26 The appeal has taken a long time to come on for hearing for several reasons. First, the appellants failed to comply with the rules as to the filing of appeal books. Secondly, despite being given further opportunity to do so outside the time limited by the rules, they failed to comply with numerous orders made by the Registrar seeking to ensure the red book and submissions were filed. A hearing date fixed for 21 October 2010 was vacated, as too, was one fixed for 30 June 2011, the latter apparently because an appeal from a decision of the Legal Aid Commission refusing legal aid was extant: s 57, Legal Aid Commission Act 1979. Despite Basten JA referring the matter to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal (Bobolas v Waverley Council [2011] NSWCA 242), no such assistance had become available in order to assist in preparation prior to the appeal being called on for hearing on 14 December 2011.

27 As of 14 December 2011, the appellants had filed no written submissions, save for a document described as "draft written submissions" filed on 29 July 2010 asserting the written submissions included, but were not limited to, the matters in the notice of appeal, the defence, cross-summons and written and oral submissions before the primary judge. Otherwise it asserted the written submissions would be amended after legal advice, access to the court file and transcripts.

28 The respondent prepared and filed a White Book. There is a note from the appellants dated 14 November 2011 (at Tab 1 of the White Folder) objecting to its filing on a number of bases, including that as they have an appeal as of right a White Book is not appropriate, that it will bias the court and contains material that is selective, contains "false information and hearsay" and is an attempt to run up costs. The note states, "... we seek to file our red appeal books". No such books had been filed as of 14 December 2011. However on 12 December 2011 a document headed "Cross-Summons", on which the words "No leave granted. Pain J 9/12/09" were written, was added to the White Book, as too, was a document headed "Notice of motion" on which, among other matters, the words "Dismissed Pain J 9/12/09" were also hand-written. Both documents were presumably included in response to the Registrar's statement to the appellants on 17 October 2011 that if they wished there to be further material included, they should provide it to the respondent to include in the White Book.

29 When the appeal was called on for hearing the appellants, speaking at that stage through Ms Elena Bobolas, sought an adjournment to enable themselves to take advantage of pro bono assistance a legal practitioner had recently offered them.

30 The Court was reluctant to grant a further adjournment having regard to the fact that the matter had been listed for hearing on previous occasions and the hearing dates vacated. Further, in the course of considering the adjournment application, the Court indicated to the parties that it was concerned, insofar as the first ground of appeal was concerned, that it did not have the primary judge's reasons for rejecting the amended defence. A copy of what appeared to be the transcript of the hearing on 11 December 2009 was then located in the Land and Environment Court file. The parties were provided with a copy of that transcript and given the opportunity to read it during a short adjournment, in the course of which the Court also provided to the parties a copy of the decision in Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130 to which the primary judge referred in dismissing the amended defence.

31 The Court indicated that it was minded, having read the primary judge's reasons of 11 December 2009 and Foster v Sutherland Shire Council, to call on Mr Newport, counsel for the Council, to make submissions as to the validity of the s 124 orders. It indicated to the parties that it proposed to take that course because it was of the view that the first ground of appeal had some force having regard to the passages emphasised in the s 124 order: (see [5] above).

32 Mr Newport submitted "that while the [s 124] order spoke in places in terms of futurity and conditionality, when read in context the document unmistakably conveys the message that what is required to be done is certain". He eschewed the proposition that he was advancing a test of substantiality and contended that the cl 22A order conveyed unequivocally what the recipients had to do.

33 Mr Newport also submitted that even if the Court was minded to conclude that the s 124 order was not valid so that, in effect, the substratum for making the entry order was removed, the Court should deal with the question of the relationship between s 200 and s 678(10) of the LG Act, being the matter referred to in the second and third grounds of appeal.

34 In due course the Court formed the view that although it was minded to rule in favour of the appellants on their first ground of appeal dealing with the validity of the s 124 orders, it should receive submissions in writing on the remaining issues raised in the grounds of appeal. Accordingly it directed a timetable to enable that to occur. It also indicated that it would determine the matter on the papers at the conclusion of the timetable directed.

The tutor issue

35 During the proceedings, counsel for the respondent brought a letter addressed to the respondent's solicitors on the letterhead of the NSW Trustee and Guardian (the "NSW Trustee") dated 13 December 2011 to the Court's attention. He contended that Mary Bobolas was not a proper party to the appeal because she required a tutor to represent her and the NSW Trustee, which managed her finances, did not consent to act as such.

36 The NSW Trustee letter stated:

"RE BOBOLAS - COURT OF APPEAL

We write in relation to the above matter and further to our telephone conversation this afternoon.

We confirm that the NSW Trustee & Guardian manages the finances of Ms. Mary Bobolas pursuant to an Order of the Guardianship Tribunal dated 4 December 2009.

In August 2010, Ms. Bobolas and her daughters, Elena and Liana, commenced proceedings in the Supreme Court of NSW to revoke the financial management order. This lead [sic] to the financial management order being stayed pursuant to Section 67(5) of the Guardianship Act 1987 (NSW).

During the course of these proceedings, His Honour Justice Windeyer made an Order that the stay be lifted over all of the estate of Ms. Bobolas except her property in Bondi.

His Honour Associate Justice Hallen made Orders on 11 August 2011 that the abovementioned Order of Justice Windeyer continue.

As such, whilst the NSW Trustee is financial manager for Ms. Bobolas, we are bound by Order of the Supreme Court from dealing with the property.

For these reasons the NSW Trustee has not consented to act as tutor in these proceedings.

We note that Court of Appeal proceedings 2010 of 9962 were commenced whilst Ms. Bobolas was under a Financial Management Order and did not have the legal capacity to' commence proceedings.

The NSW Trustee did not consent to Ms. Bobolas commencing appeal proceedings and did not become aware of the proceedings until after they had been commenced.

We also note Ms. Bobolas requires a tutor in order to continue her involvement in these proceedings. She does not have a tutor and therefore should not be a party to these proceedings."

37 Having regard to the NSW Trustee letter, the Court also directed the parties to address the issue of whether or not Mary Bobolas needed a tutor in their written submissions and, if so, whether one had been appointed, or to otherwise satisfy the Court that she did not need a tutor.

Submissions

38 In February 2012, Mr J Doyle accepted a brief upon a referral by the Registrar pursuant to Basten JA's order of 8 August 2011. He prepared written submissions dated 13 February 2012 which pressed only the first ground of appeal. The respondent's written submissions filed on 27 February 2012 did not press for the second and third grounds of appeal to be determined.

39 Mr Doyle submitted that the s 124 orders were "hopelessly ambiguous". He relied on the terms of the Amended Defence in which this ground was first raised before the primary judge as a fuller articulation of the first ground of appeal: (see [21] above). He noted that Talbot J applied Foster v Sutherland Shire Council in Barclay v Wollongong City Council [2005] NSWLEC 160; (2005) 139 LGERA 167 (at [35]).

40 The bulk of Mr Doyle's submissions addressed the tutor issue.

Consideration

41 Service of the s 124 orders was the essential pre-condition for, if necessary, invoking the Land and Environment Court's s 678(10) power to authorise the respondent to "do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order": s 678(1). Giving effect to a notice issued under s 124(1) cl 22A to "carry[ing] out of any work required by the order" would, it might be thought, almost inevitably require entry "[t]o remove or dispose of waste that is on [the] residential premises" the subject of the notice. Such an order would permit entry whether or not the owner or occupier of the land consented. By analogy with the law of search warrants, it can be said that the "validity of such [an order] is necessarily dependent upon the fulfilment of the conditions governing its issue". In construing and applying statutes authorising such entry, the Court must keep in mind "that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect [so that] ... [t]o insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation": George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (at 110 - 111).

42 In State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (at [89] - [108]), Callinan and Crennan JJ (Gleeson CJ and Gummow J agreeing) considered the construction of search warrants in the context of the "balancing of a person's private interest in the inviolability of his house, his 'castle and fortress', against the public interest in the 'gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law'." Their Honours (at [105] -[107]) held that the concept of "strict compliance" stated in George v Rockett was satisfied in respect of the issue of a search warrant despite an incorrect description of the offence relied on to found its issue in the application form. It was sufficient (at [107]) that "there could be no mistake about the object of the search or about the boundaries of the search warrant".

43 The principles underlying such cases bear, as I have said, analogical application to interpreting the present legislation and the validity of orders purportedly issued to found, if need be, entry to a person's home.

44 The principle that an order, albeit not one authorising entry to premises, be expressed in such terms as to convey its purpose clearly to the recipient, was applied by Cowdroy J in Foster v Sutherland Shire Council. In that case, the applicant challenged the validity of an order issued by Sutherland Shire Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the "EPA Act"). That section provided that an order may be given to a person by a council to do, or refrain from doing, an act provided that the circumstances specified in the Table attached to s 121B of the EPA Act existed. Clause 1 of the Table stated in substance, that if premises were being used for a prohibited purpose, an order might be given to the owner of the premises or to the person by whom the premises were being used for the purpose specified in the order, requiring cessation of that purpose.

45 The applicant submitted that the s 121B order was invalid because it did not specify with particularity the use the council claimed was prohibited. Cowdroy J said (at [8] - [14]):

"Requirements of an order

8. Court orders are required to [be] formulated in precise terms. In the case of restraining orders, the proscribed conduct must be clearly stated to avoid uncertainty and the potential for continual breaches (see Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 415 per Burchett J; and see also Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation (1984) 73 FLR 61 at 62; Redland Bricks Ltd v Morris [1970] AC 652 at 666 per Lord Upjohn). A court order should not leave unresolved the central issue in the case (see Trade Practices Commission v Glo Juice Pty Ltd at 415 and see also Trade Practices Commission v Walplan Pty Ltd (1985) 7 ATPR 47-174 at 47-176 per Pincus J).

9. In King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 the High Court of Australia held that a statutory power to fix a price by a regulation or order would not be properly exercised if the basis or rationale for fixing the price was left uncertain. Dixon J said at 197:-

'But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised.'

Similarly, Rich J in King Gee held at 190 that a formula for fixing the price which 'depends on uncertain matters of estimate and not of calculation' was uncertain and did 'not amount to the statement of a 'principle standard, rule or guide' (Vardon v The Commonwealth (1943) 67 CLR 434 at 448) which is necessary to support the exercise in due form of these powers'. The order was held invalid by Starke and Williams JJ on similar grounds (see King Gee at 193 and 205 respectively).

10. The principle in King Gee was followed in Cann's Pty Ltd v The Commonwealth (1945) 71 CLR 210 in which Latham CJ noted at 217 as follows:-

'In the case of King Gee Clothing Co Pty Ltd v The Commonwealth it was held that where the Commissioner fixes prices by reference to a standard, the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise.'

Uncertainty of order

[Cowdroy J then considered the terms of the order and concluded]

13. The order has been issued without an objective standard against which the prohibited use sought to be restrained can be determined with certainty. As a consequence, the order does not 'tell him [the applicant] fairly what he has done wrong and what he must do to remedy it' (per Upjohn LJ in Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196 at 232). In that decision the Court of Appeal (UK) was concerned with a notice issued pursuant to a planning law requiring a landowner to cease an alleged illegal use. Such test was approved by the Court of Appeal (UK) in Munnich v Godstone Rural District Council [1996] 1 All ER 930 per Denning M R at 934.

14. If the order adopted the same terminology as the notice its requirements would have been certain. The applicant would have been required to cease using the home unit for 'short-term tourist accommodation'. If the evidence established that such use was being conducted as a commercial activity (see Vicbrow v Willoughby City Council (1997) 96 LGERA 288), it would prima facie constitute a prohibited use in the Residential 2(c) zone. To constitute a valid order made pursuant to s 121B of the EP&A Act it must be unequivocal and relate to a purpose that is prohibited. In this instance the order does not accord with such requirements and is accordingly invalid."

46 As the appellants point out, Talbot J applied Foster in Barclay v Wollongong City Council (at [35] - [36], [38]) in finding that an order under s 121B of the EPA Act was invalid because it did not "elucidate what it is that the Order require[d] the applicants to do by way of implementation of action" and was "so uncertain that it [was] unenforceable".

47 Section 124 of the LG Act enabled the respondent to "order a person to do or refrain from doing a thing specified [in cl 22A]". It spoke in present terms. An order issued pursuant to its terms had to convey clearly to the recipient that that person was being ordered at that time to do or refrain from undertaking the identified action by reason of the receipt of the order.

48 The terms of the s 124 orders in this case did not convey any requirement for immediate implementation or compliance. Rather, they were expressed in terms of futurity. The heading to the part of the order referring to the removal of rubbish was expressed to be "Terms of the proposed order". The idea that an order was yet to be given was confirmed in that part of the document headed "Reasons for the order", by the phrase "the order will be given ...". That notion of futurity was also reaffirmed in that part of the document identifying the "Period for compliance" where the words "... the order will require that you comply ..." appear.

49 These statements were not mere surplusage of the nature of the incorrect statutory reference in State of New South Wales v Corbett. Rather, in my view, they went to the heart of the document. The recipient of the s 124 order could not be certain as to whether it required present compliance or, rather, whether it was some sort of warning notice in anticipation of an order requiring removal of rubbish being issued at a later date.

50 In such circumstances, in my view, the s 124 order was invalid. Ground 1 of the notice of appeal should be upheld.

The tutor issue

51 By far the bulk of the written submissions received after the December hearing concerned the question whether Mary Bobolas required a tutor.

52 The appellants contend she does not. The respondent contends she does.

53 I have already set out the terms of the NSW Trustee's letter (at [36]). The controversy between the parties turns on whether the NSW Trustee has correctly interpreted the effect of Hallen AsJ's order. In my view it is not appropriate to determine that controversy in proceedings to which the NSW Trustee is not party, particularly where, as here there is a practical solution to the problem (if it be one) and the orders the Court will make in disposing of the appeal will not prejudice, but, rather, potentially benefit Mary Bobolas.

54 A "person under legal incapacity may not commence or carry on proceedings except by his or her tutor": UCPR r 7.14. Section 3 of the Civil Procedure Act 2005 relevantly defines "person under legal incapacity" as meaning "any person who is under a legal incapacity in relation to the conduct of legal proceedings ... and, in particular, includes ... (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act".

55 The NSW Trustee appears to have been appointed by the Guardianship Tribunal to manage Mary Bobolas' estate pursuant to the latter legislation: EB v Guardianship Tribunal [2011] NSWSC 767 (at [59]). However Mrs Bobolas' daughters challenged that decision. Hallen AsJ, having heard their appeal against the Guardianship Tribunal's decisions, set aside the Tribunal's orders and remitted the matter to the Guardianship Tribunal for the application to be determined in accordance with his reasons.

56 Hallen AsJ also ordered that "the stay granted by Windeyer J continue until further orders of the Court ..." that being a reference to a stay granted by Windeyer J on 18 October 2010, the terms of which are:

"8. Order that the appeal against the order of the Guardianship Tribunal not operate as a stay of those orders subject to the exception that the proceedings in the Land & Environment Court are not to be settled until the determination of the appeal or earlier order."

The "proceedings" referred to by Windeyer J refer to the present proceedings.

57 It does not appear that the Guardianship Tribunal has yet determined the matter remitted to it pursuant to Hallen AsJ's orders.

58 UCPR r 7.15(3) provides that "In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act 2009, the tutor of that person is to be the person who has the management of the person's estate under that Act." Rule 7.15(4) provides that "Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise." As is apparent from its letter, the NSW Trustee has declined to act as Mary Bobolas' tutor for the purposes of the appeal.

59 UCPR r 7.15(5) provides that "[a] person may not replace another person as tutor of a person under legal incapacity except by order of the court." UCPR r 7.18 provides:

"(1) In any proceedings in which a party is or becomes a person under legal incapacity:

...

(b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor.

(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.

(3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor.

(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor.

(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:

(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and

(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor." (Emphasis added)

60 In addition to its powers under UCPR r 7.18, the Court has inherent power to appoint a tutor for the purposes of particular litigation under its parens patriae jurisdiction in circumstances where there may be doubt as to whether a person's mental state falls within the statutory definition of "person under legal incapacity": Re P [2006] NSWSC 1082 per Young CJ in Eq at [8].

61 The appellants assert that Mary Bobolas does not need a tutor because she does not fall into the statutory definition of a "person under legal incapacity". That is clearly not a decision this Court can make absent medical evidence. However they also submit that if the Court finds that a tutor is required, then her daughter, the first appellant, Elena Bobolas, consents to be appointed in that role.

62 In my view the Court should, in the circumstances and for more abundant caution, in exercise of its parens patriae jurisdiction appoint Elena Bobolas to be Mary Bobolas' tutor for the purposes of the appeal, that order to operate nunc pro tunc from the filing of the notice of appeal.

Costs of the appeal

63 The final controversy concerns costs of the appeal and of the proceedings before Pain J.

64 The appellants submit that if they are successful in the appeal, they should have their costs. In addition they submit that two costs orders made by the Registrar of the Court of Appeal against them should be set aside.

65 The appellants identify their costs as the administrative costs of filing the appeal, including associated out of pocket expenses, and counsel's costs associated with the submissions, such costs being recoverable under the Pro Bono Scheme where ordered: UCPR r 7.41(2).

66 The Registrar's orders arose from the appellants' delay in preparing the appeal. They submit that delay was caused by delays in the processing of their appeal against the refusal of their application for legal aid. They submit the costs orders should be set aside because s 57 of the Legal Aid Commission Act mandates that proceedings be adjourned until the appeal for legal aid has been determined, because legal representation was particularly important in the case as demonstrated by their success on ground 1 after counsel was briefed, because Basten JA also recorded the delay in the final determination of their legal aid application despite the matter being followed up by the Registrar; and because the circumstances referred to by Basten JA applied equally when the Registrar made the costs orders against them.

67 The respondent submits that the appellants' conduct caused it to incur considerable unnecessary costs and resulted in costs being thrown away. It argues that the conduct was "misconduct relating to the litigation ... unnecessarily protracting the proceedings" (as explained by McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [69]). It included their failure to comply with any directions for the preparation of appeal books and submissions between 11 March 2010 (the first return date) and 28 November 2011, resulting in unnecessary attendances before the Registrar, as well as requiring the respondent to prepare written submissions in relation to 14 additional grounds of appeal that the appellants decided not to press.

68 Further, the respondent submits that the facts do not support the appellants' contention that the delays in these proceedings were the result of delay in processing their appeal against refusal of legal aid. It notes that although the legal aid application was made in February 2010, the appeal against its refusal was not lodged until 30 August 2010 and it was not until 21 October 2010 that the appellants sought and obtained an adjournment pending completion of that appeal: see Bobolas v Waverley Council (at [2]).

69 The respondent has listed a number of adjournments obtained by the appellants and directions it alleges were not complied with. It submits that costs orders made against the appellants on 29 April 2010 and 17 June 2010 should be set aside, but otherwise contends the Court should make no other order for costs. The basis for selecting the dates of these two orders is not apparent, although I infer it may be related to the appellants' application for legal aid and the progress of that application.

70 If the respondent is required to pay the appellants' costs, it seeks a certificate under the Suitors' Fund Act 1951.

71 In response to the respondent's "misconduct" complaint, the appellants submit that they did file written submissions, albeit handwritten and marked "draft", but they contend that that could be expected having regard to their lack of representation.

72 In my view the appellants should have their costs of the written submissions prepared by Mr Doyle, out of pocket expenses and "deferred filing fees" in the event that the condition on which those fees were deferred falls in. Having regard to the respondent's concession, I would also set aside the costs orders of 29 April 2010 and 17 June 2010.

73 It was apparent when the matter was called on for hearing that the appellants had taken little or no steps to prepare the appeal for hearing. No appeal papers had been filed. On 17 October 2011 the respondent said it would prepare a volume of the papers which, in its view, the Court would need for the appeal. It incorporated those papers in a White Book and delivered them to the appellants. The appellants' submissions have not identified the costs orders they submit should be set aside. In my view, in the circumstances, save as to the costs orders the respondent agrees should be set aside, the Court should not accede to the appellants' request as to other, unidentified, costs orders.

Costs of the proceedings before Pain J

74 Pain J stood over the respondent's application for costs sought in the summons, being orders 3 and 4, "[i]n light of the request to the New South Wales Trustee that this be done". The appellants submit that the respondent should be ordered to pay the appellants' costs of those proceedings as it has been wholly unsuccessful. The respondent submits that the costs issues of the primary proceedings should be remitted to Pain J for determination having regard to her familiarity with the proceedings in the Land and Environment Court.

75 In my view the respondent's submission should be acceded to. The judicial officer most familiar with the proceedings should determine the costs issue of the proceedings below.

Orders

76 The orders Pain J made were directed to enabling the respondent to carry out the rubbish removal work at the Bondi premises on the underlying premise that the s 124 orders were valid. That work was carried out. However those orders should, as a matter of formality be set aside, consequent upon the decision that the notices were invalid.

77 Accordingly I propose the following declaration and orders.

1. Authorise Elena Bobolas to act in all respects concerning the present appeal as if she had been appointed Mary Bobolas' tutor pursuant to the Uniform Civil Procedure Rules 2005, such authority to operate from the date the Notice of Appeal was filed.

2. Appeal allowed.

3. Declare that the order dated 5 March 2009 issued by the respondent to each of the appellants pursuant to s 124 of the Local Government Act 1993 is not, and was not, a valid order.

4. Set aside the orders made by Pain J on 11 December 2009.

5. Set aside the costs orders of 29 April 2010 and 17 June 2010 made against the appellants.

6. Order the respondent to pay the appellants' costs of the written submissions prepared by pro bono counsel, out of pocket expenses and "deferred filing fees" in the event that the condition on which those fees were deferred falls in.

7. Pursuant to UCPR r 7.41, order that Mr J Doyle, being a barrister who has provided legal assistance to the appellants under the scheme for the provision of legal assistance to litigants under Division 9, Part 7 of the UCPR, is entitled to recover the amount of costs that the respondent is required to pay under order 6.

8. Remit the question of costs of the Land and Environment Court proceedings to Pain J for determination.

9. The respondent is granted an indemnity certificate under s 6 of the Suitor's Fund Act 1951 with respect to the costs payable under orders 6 and 7, provided that the respondent is otherwise entitled.

78 MACFARLAN JA: I agree with McColl JA.

79 TOBIAS AJA: I agree with McColl JA

**********

Amendments

20 August 2012 - Order 9 added.
Amended paragraphs: Coversheet and [77]

Decision last updated: 20 August 2012