Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Bobolas v Waverley Council [2014] NSWCA 78
• Hearing dates: 17 March 2014
• Decision date: 25 March 2014
• Before: Ward JA

Decision

1. Notice of motion dismissed with costs.

2. Stay ordered by Schmidt J on 14 March 2014, of the orders made by Biscoe J on 4 March 2013, be discharged with effect from 7am on Monday, 31 March 2014.

[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 Court's 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: APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of the court; PROCEDURE - Court of Appeal procedure - stays; PROCEDURE - Court of Appeal procedure - interlocutory injunctions; PROCEDURE - courts and judges generally - judges - allegations of bias; PROCEDURE - courts and judges generally - judges - natural justice or procedural fairness in ex parte hearing
• Legislation Cited: Land and Environment Court Act 1979; Legal Aid Commission Act 1979; Local Government Act 1993; Uniform Civil Procedure Rules 2005
• Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130; Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685; Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 29 CLR 577; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Forster v Harvey [2006] NSWSC 1112; Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662; House v R [1936] HCA 40; (1936) 55 CLR 499; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; Najjar v Haines (1991) 25 NSWLR 224; Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270; Re Middle Harbour Investments Ltd (In Liq) Court of Appeal 15 December 1976 unreported; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Warringah Council v Ulrich [2012] NSWLEC 234; Waverley Council v Bobolas [2013] NSWLEC 119; Waverley Council v Bobolas (No 3) [2014] NSWLEC 16; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
• Category: Interlocutory applications
• Parties: Elena Bobolas (First Applicant/Appellant); Liana Bobolas (Second Applicant/Appellant); Mary Bobolas (Third Applicant/Appellant); Waverley Council (Respondent)
• Representation: In Person (First Applicant/Appellant); In Person (Second Applicant/Appellant); In Person (Third Applicant/Appellant); Counsel: Mr P Clay SC (Respondent); Solicitors: Wilshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): 2014/80335
• Publication restriction: Nil

Decision under appeal

• Citation: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16
• Date of Decision: 2014-03-04 00:00:00
• Before: Biscoe J
• File Number(s): 2014/40466

Judgment

1 WARD JA: Before me on 17 March 2014 was an application brought by notice of motion filed on 14 March 2014 by the applicants (Mary Bobolas and her daughters, Elena and Liana) seeking relief in relation to action proposed to be taken by the respondent council pursuant to orders made in the Land and Environment Court on 4 March 2014. Those orders relate to the carrying out by the Council of works at premises in Bondi that are occupied by the applicants and, I am informed by Elena Bobolas, half owned by Mary Bobolas.

2 The matter came before Schmidt J, sitting as a judge in the Court of Appeal, on an ex parte basis on 14 March 2014. Her Honour on that occasion stayed the Land and Environment Court orders until further order of the Court and listed the matter at 2pm on 17 March 2014 for the further hearing of the motion. It was listed before me in the referrals list on that day. I heard argument and reserved my judgment on the application for the relief sought in the applicants' motion.

Background

3 On 5 December 2012, separate orders were made by the Council in respect of each of the 3 members of the Bobolas family to whom I have referred above, requiring that each take the following action:

Remove the accumulations of waste from the front and rear yards, the area between the house and side boundaries and the front verandah of the house on the subject premises being garbage (both putrescible and non-putrescible) and refuse including but not limited to plastic containers, filled garbage receptacles, plastic creates, metals, food containers and wrappers, tins and jars, household furniture including tables and chairs, floor coverings, cushions, foam, cardboard, papers, clothing and similar products, rags, bottles, construction materials including bricks, loose tiles and assorted timber products, books, live and dead vegetation, disused electrical items and other miscellaneous matter and materials that are likely to afford harbourage for vermin and insects.

4 The orders were expressed to be made pursuant to s 124 of the Local Government Act 1993 (NSW), which, relevantly, provides that a council may order an "owner or occupier" of residential premises to remove or dispose of waste on those premises, or to refrain from keeping waste on those premises in circumstances, where the waste is causing or is likely to cause a threat to public health or the health of any individual (a 22A order). Notification of the orders was made by way of letters separately addressed to each of the individual applicants at the Bondi premises. (The applicants denied receipt of those orders but the primary judge found otherwise.)

5 The respective letters to the three applicants were in similar form. Each letter set out the reasons for the orders, including, (as per paragraph (b)) that the addressee was "storing waste" and (as per paragraph (c)) that "[t]he items of waste you are storing is, in the opinion of Council's Senior Environmental Health Officer likely to afford harbourage for insects and vermin and as such is causing or is likely to cause a serious health threat to the occupants of the subject premises and the occupants of neighbouring properties". Another reason given was that "insects such as cockroaches and vermin such as rats can spread and cause disease and as such are a threat to human health" (see paragraph (d)).

6 The stated period for compliance with the orders was 28 days from the date of service of the order. Each of the letters notified the respective addressee that it was an offence pursuant to s 628 of the Local Government Act to fail to comply with the orders, the maximum penalty for which was $2,220.00. The notices also specified that, if the order was not complied with, the Council might carry out the work itself and recover the costs from the addressees.

7 The legislative framework in the context of which s 124 orders may be issued and orders sought from the Land and Environment Court to enforce compliance with those orders was considered by this Court (McColl JA, with whom Macfarlan JA and Tobias AJA agreed) in Bobolas v Waverley Council [2012] NSWCA 126; (2012) 187 LGERA 63. Those proceedings related to similar orders made by the Council in 2010 for the removal by the applicants of waste from the Bondi premises. Those orders were held to have been invalid for reasons that do not apply in relation to the current orders.

8 Section 678 of the Local Government Act provides, relevantly, that:

(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.

9 Waverley Council contended that there had been no compliance with the December 2012 orders and commenced civil enforcement proceedings in the Land and Environment Court in June 2013 against each of the applicants, seeking relief under s 678 of the Local Government Act.

10 After various delays (at least some of which appear to have been caused by a dispute as to whether service of the Council's summons had been effected on the applicants), the Council's application summons was heard by Biscoe J on 4 March 2014. On that occasion, there was no appearance for the applicants, although one or more had attended on at least one earlier occasion when the matter had come before his Honour (on 26 July 2013, when a notice of motion by Elena and Liana Bobolas seeking an order that the summons had not been served on the applicants was heard by his Honour and later in November 2013 when there was a directions hearing in the proceedings).

11 Biscoe J proceeded to deal with the matter on 4 March 2014 on an ex parte basis and gave ex tempore reasons for his decision to grant the relief sought by the Council on that day (Waverley Council v Bobolas (No 3) [2014] NSWLEC 16). His Honour noted (at [7] to [30] of his reasons) the procedural history of the proceedings. His Honour was satisfied on the evidence before him that: the s 124 (22A) orders had been properly issued and served on the applicants; that when the orders were made the waste was causing or likely to cause a threat to public health or the health of any individual; and that the waste continued to cause or was likely to cause a threat to public health or the health of any individual ([31] to [33]).

12 At [33], his Honour said:

... the evidence establishes that at the time the orders were issued and continuing to the present time a large amount of waste, including putrid and offensive smelling waste, had accumulated at the premises. The waste has not been removed from the premises and has further accumulated. The premises are within a residential neighbourhood with residences on either side and opposite the premises.

13 His Honour noted that a senior Council officer (Mr Schilt) had attended the premises on 27 and 28 June 2012, 24 January 2013, 18 July 2013 and 25 February 2014; that Mr Schilt had observed that the waste and rubbish has increased significantly over this time and had said that it was the worst that he had seen it since commencing employment with the council in mid 2006. His Honour said that:

In the opinion of Mr Schilt, which I accept, at the time of issue of the orders and continuing to the present time waste and rubbish at the premises is causing or is likely to cause a threat to the health of the occupants of the premises and the neighbouring properties is a potential public health risk generally, and is a potential fire risk both to the premises and the neighbouring properties. On 27 and 28 June 2013 Mr Schilt observed pooling water and smelt stagnate water containing a slurry of decaying vegetation and on both occasions smelt an unpleasant odour coming from the premises. Ms Silver, a neighbour, attests to the accumulation of rubbish and garbage and to having smelt a disgusting odour of rotting garbage coming from the premises, particularly in the hot summer months. (my emphasis)

14 His Honour ordered (order 1) that the Council execute its functions under s 678 of the Local Government Act by carrying out the work which was required under the s 124 orders. His Honour also made various orders in relation to the manner in which the works required by order 1 were to proceed.

15 Order 6, presumably intended to facilitate the provision of notice to the Bobolas family (who, as noted, were not present at the hearing of the Council's motion), provided that the Council was authorised to commence the works on 17 March 2014, subject to the proviso that 3 days' notice had been given in a particular way (i.e., by affixing to the front gates of the premises a copy of the notice, and attachments thereto, in a clear plastic). Order 2 was to the effect that the Council was entitled to enter and remain on the Bobolas' premises to carry out the orders between reasonable hours of the day during weekdays (specified as being from 7am to 3pm on 17 - 21 March 2014). The Council was also given liberty to apply for the purpose of extending the time to clean up the property should that be required (order 11).

16 Other orders were made as to the mechanics of carrying out the works, such as an order permitting the entry of a structural engineer on the premises (order 3); an order permitting the disconnection of electricity or other utility services in the circumstances set out in that order (order 4); an order permitting the Council forcefully to unlock and remove any gates on the premises (order 5); an order permitting the cutting of vegetation at the premises if reasonably required to facilitate the clean-up works (order 10) and an order permitting the removal of any motor vehicle from the driveway or road in front of the driveway which impedes or poses a danger to the clean-up works (order 11).

17 Order 9 authorised the removal of all objects located anywhere outside the dwelling house on the premises at 7am on the day when the works commence (those objects being deemed to be waste); order 7 having required the applicants to remove "any object of value which they do not wish to be removed" by that time. Order 8 prohibited the applicants from doing any act which might interfere with or impede the entry of the Council, its servants and agents onto the premises or their remaining on the premises and compliance with the orders; and required the applicants to "stay a safe distance of at least 10 metres from any operating machinery and trucks on the site".

18 The orders were served (in circumstances to which I will shortly refer) at the premises on 11 March 2014. The applicants deny that service was effected of the orders as required by order 6 or otherwise and deny that they have received the sealed orders of the Land and Environment Court, though it was conceded before Schmidt J that they had obtained an unsealed copy of the orders from the Land and Environment Court on 7 March 2013.

19 The Council proposed to commence the works on 17 March 2014. On Friday 14 March 2014, the applicants commenced these proceedings challenging the orders made by the Land and Environment Court. As adverted to above, an order was made on 14 March staying the operation of those orders until further order.

20 I note that no issue was raised on the hearing of the notice of motion on 17 March 2014 as to the capacity of Ms Mary Bobolas to bring the appeal proceedings but that, when the earlier Court of Appeal proceedings were heard there was such an issue, the Court there proceeding on the basis that Ms Elena Bobolas be authorised to act on behalf of her mother as if she had been appointed her tutor with authority to appeal. Consideration may need to be given to whether formal orders should be made in the appeal proceedings now on foot of the kind that were made in the previous proceedings.

21 I note that Ms Elena Bobolas at one stage in the course of submissions said that she would need time to explain to translate to her mother the submissions she was making. Ms Elena Bobolas said that her mother spoke English but that she was not familiar with legal terms. Given that most of the submissions related to concepts understandable without the use of legal jargon, and given that Ms Mary Bobolas herself addressed me briefly at the close of submissions in reply, I have proceeded on the basis that she sufficiently understood the submissions made by her daughters and did not wish to make submissions independently of her daughters.

Appeal

22 The interlocutory relief sought by the applicants is, broadly speaking, intended to preserve the status quo pending the hearing of their appeal proceedings in this Court, which were commenced by the filing in court on 14 March 2014 of their summons seeking leave to appeal/notice of appeal. The appeal is brought pursuant to s 58 of the Land and Environment Court Act 1979 (NSW).

23 The applicants' handwritten grounds of appeal raise 79 individual grounds of appeal, the last of which being that "[t]here are other grounds". Ms Elena Bobolas conceded that the notice of appeal was repetitive in parts and that it might have been more succinctly expressed, but emphasised that there had been insufficient time to prepare for the present application and there had not been time to obtain legal advice as to the appeal. (Ms Elena Bobolas further maintained that if the 28 day period for appeal from the Land and Environment Court decision had not been truncated by the operation of the orders made by the primary judge, a complaint that forms part of the grounds of appeal, then there would have been no need for the notice of motion as the items would have been cleared in that 28 day period.)

24 By way of summary, and without setting out verbatim the grounds of appeal, the applicants' appeal raises issues as to: the decision of the primary judge to proceed with the hearing on 4 March 2014 in the absence of the appellants (complained of as amounting to a denial of natural justice or failure to accord procedural fairness); the alleged "disentitling conduct" on the part of the Council (in having earlier in the proceedings relied on an affidavit of service said to have been fraudulently made by the process server), said to go to whether there was any compliance by the Council with its obligation of candour on an ex parte hearing; the content of the orders made by the Land and Environment Court (said to be inappropriate, onerous, unreasonable, unjust, unfair, "inequitous", vague and oppressive); and alleged bias, apprehended bias and lack of impartiality on the part of the primary judge.

25 A number of the submissions made as to those grounds of appeal overlap. So, for example, the fact that his Honour proceeded to determine the matter in the applicants' absence is said both to amount to a denial of procedural fairness and to demonstrate bias on the part of the primary judge; similarly, the complaints made as to various of the orders are said to go both to the validity of the orders (in particular, the perceived conflict between certain of the orders and ss 200 and 193 of the Local Government Act) and, again, to demonstrate his Honour's bias.

26 The relief sought in the notice of appeal is principally for the orders and decisions of the Land and Environment Court on 4 March 2014 set aside and dismissed (order 1) but extends beyond that to the imposition of a property protection order pursuant to rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) to protect the property of the applicants (order 13).

Notice of Motion

27 The relief sought in the applicants' handwritten notice of motion was expressed as follows:

1. Order restraining the council from entering onto [the Bondi] premises ... and/or an injunction to stop this action, until the appeal against Biscoe J decision/orders 4/3/14 are heard (Land and Environment Court matter).

2. A stay of the orders of Biscoe J 4/3/14 of lower court until the appeal is heard.

3. Under UCPR 12.11 an order protecting property from Waverley Council until appeal heard and under any other applicable law, act, section or rule protecting property.

4. The Court will note that E Bobolas and L Bobolas will complete the works within a reasonable time. (emphasis per original).

5 That the respondents/defendants pay the appellants costs of the motion. [sic]

28 On the hearing of the notice of motion on 17 March 2014, each of the applicants was present in Court. Ms Elena Bobolas was the primary advocate on behalf of the three applicants, although Ms Liana Bobolas made various submissions both in chief and in reply during the course of the proceedings (and Ms Mary Bobolas also made an oral submission towards the close of the application to the effect that she sought two months to enable the applicants time to clear the items on the premises themselves).

29 At the outset of the hearing, Ms Elena Bobolas sought an amendment to the notice of motion in order to add the words "and/or conducting works at the premises" in the relief sought in order 1 (after the identification of the Bondi premises). There was no objection by the Council to that amendment. I directed that an amended notice of motion reflecting that amendment be filed and served within 7 days.

30 The applicants relied, for the relief sought in the notice of motion, on the following affidavits: an affidavit affirmed by Elena Bobolas on 12 March 2014 (the original of which was filed in Court on 17 March 2014); affidavits affirmed on 12 July 2013 by each of Liana and Elena Bobolas; and an affidavit of Liana Bobolas affirmed on 5 August 2013. The three 2013 affidavits all bore stamps indicating that they had been filed in the Land and Environment Court proceedings.

31 Ms Elena Bobolas also tendered, and I admitted as exhibit A on the notice of motion, three medical certificates respectively certifying in the case of each of the applicants that she was unfit for work at the time of the hearing on 4 March 2014 before Biscoe J. Ms Bobolas concedes that those certificates (dated variously 2, 3 and 4 March 2104) were not brought to his Honour's attention nor was any application made to adjourn the date of the hearing on 4 March 2014. The medical certificates stated, in the case of Elena and Mary Bobolas, that they suffered from "medical condition" and, in the case of Liana Bobolas, that she suffered from "chest pain". The wording of the respective certificates was broadly similar, though not identical, and there were anomalies in the dates of the certificates and the spelling of some of the applicants' names to which the Council pointed in submissions, though, in my opinion, nothing ultimately turns on this for reasons that I will come to shortly.

32 Each of the copies of the tendered medical certificates was redacted to mask information identifying the doctor, the address of the doctor's medical practice and the doctor's provider number. Ms Elena Bobolas claimed that this was permissible as that information was "medically privileged", citing an authority which I assume from the reference given by her to be Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270.

33 In Chan's case, the privilege claimed, unlike in the present case, was legal professional privilege. Mr Chan was facing a contempt charge and had made an adjournment application relying on s 57 of the Legal Aid Commission Act 1979 (NSW), for the purposes of which it was necessary for him to establish, among other things, that he had appealed or intended to appeal, bona fide, from a refusal of his application for legal aid. He had not been prepared to produce his legal aid file or the correspondence with the Legal Aid Commission which he claimed amounted to an appeal, on the basis of a stated concern not to waive legal professional privilege. It was in that context that Schmidt J commented that it would have been a simple matter, entirely within Mr Chan's own hands, to tender the document that he said constituted his appeal "suitably masked, if that was necessary, to preserve confidentiality in anything which might be privileged" ([8]). That is not authority in support of the proposition put by Ms Bobolas that the name, address and service provider number or qualifications of a medical practitioner is information that is the subject of any relevant privilege. Moreover, the maintenance of a claim for confidentiality of such information would have deprived the Council of any ability to test the claimed inability of the applicants to attend the hearing, had an adjournment application been made on or before that day.

34 The Council relied on an affidavit, filed in court by my leave, of Ms Umi Mostafa affirmed on 12 March 2014 (and, from the formal parts, apparently prepared in anticipation of use in the Land and Environment Court proceedings). In that affidavit, Ms Mostafa deposed to the service by her of documents at the Bondi premises on 11 March 2014. In particular, Ms Mostafa deposed that, at approximately 3.44pm on 11 March 2014, she affixed a sealed clear soft plastic pocket containing a letter to each of the applicants, together with a copy of the orders made by Biscoe J on 4 March 2014 and sealed by the Land and Environment Court on 5 March 2014, with cable ties to the front gate of the premises. Annexed to the affidavit was a photograph that Ms Mostafa deposed to having taken following the affixing of the sealed clear soft plastic pockets to the gates.

35 Ms Elena Bobolas objected to the filing of that affidavit unless Ms Mostafa was made available for cross-examination. I provisionally read the affidavit and, in due course, Ms Mostafa attended Court and was cross-examined by Ms Elena Bobolas. I refer to the evidence given by Ms Mostafa in the witness box in due course.

36 The issue to which Ms Mostafa's evidence was relevant was as to whether there had been compliance with the condition imposed on commencement of the Council works under order 6 of his Honour's orders. Ms Elena Bobolas had deposed that the applicants had not been served with a copy of the orders made by Biscoe J on 4 March 2014.

37 Order 6 of his Honour's orders was in the following terms:

1. Provided a sealed copy of these orders are served on the respondents by affixing the Orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 3 days before the works commence, the works may commence on the Premises on 17 March 2014. (my emphasis)

38 Hence, the issue as to whether service of the orders had been effected in accordance with order 6 was relevant to the question whether there was a reasonable apprehension that the Council's entry onto the premises on 17 March 2014 would have been authorised.

39 As noted, Ms Elena Bobolas emphasised that there had been insufficient time for the applicants to prepare for the present proceedings. In that regard, she made a number of assertions as to factual matters that she said she had not had time to put in an affidavit or of which she was prepared to give oral evidence, including: evidence of conversations both with a Council subcontractor and, on the morning of 17 March 2014 with a contractor who she said was working for QMC (T 13ff), as to the safe distance required to be maintained from operating machinery of the kind referred to in order 8 of the orders made by Biscoe J; and of a conversation with the general manager of the Council as to what would be a not excessive time as to the removal of the items. Ms Elena Bobolas deposed in her affidavit of 12 March 2014 at [5] to all members of the family having walked through areas of work where the same type of machinery was used and having been encouraged by the workers to walk right up to and actually touch such machines.

40 Ms Elena Bobolas also made various assertions during the course of submissions as to previous interaction between the Council and the applicants: such as events that she said had occurred when the Council had previously removed items from the property in 2004 (including allegations that the Council workers had deliberately taunted her mother and had deliberately smashed pot plants that her mother had wanted to keep); that the applicants had been doing the work themselves and had engaged the help of friends and had access to a truck, to assist the removal of the items; and as to arrangements said to have been made by the applicants, but obstructed by the Council, in the past, for the removal of items to a storage container. There was reference to some of those matters in Ms Elena Bobolas' affidavit of 12 March 2014 at [4], [7] and [8].

41 I have treated factual matters of that kind to which Ms Elena Bobolas referred in submissions but of which there was little or no detail provided in her affidavit as indicating the evidence that she would have been prepared to give evidence on affidavit had she had time to do so. The weight that can be placed on such untested assertions is another matter.

42 Ms Elena Bobolas also indicated that if there had been time she would have taken and tendered in evidence photographs of the property. As it is, there was one photograph taken close-up of the front gates (to which I have referred above) from which it appears that at least part of the front yard was covered with vegetation and other material. The house was not visible in that photograph. As I understand it, any photographic evidence that Ms Bobolas might have tendered, had she had time, would have been adduced to show that there had been steps taken to remove items, in compliance with the Council orders, but not to suggest that the clean-up works were complete.

43 Ms Elena Bobolas also emphasised that there had been no opportunity to obtain legal advice and said that had there been more time the applicants would have "passed it by someone to look at so we could get some advice on it". She requested that the Court take into account that the applicants were not represented. I have done so. Indeed, I allowed the applicants considerably more latitude in the length (and repetitive nature) of their oral submissions at the hearing of the notice of motion, conscious that they were representing themselves. As a result, the hearing of the notice of motion was more protracted than it should otherwise have been. I reserved my judgment, so that I could consider carefully the material before me and the submissions that had been made.

Application for Injunction

44 Turning to the relief sought in the notice of motion, which is all that was before me for decision on 17 March 2014, the applicants pressed for the making of an injunction to restrain the Council entering onto the premises and carrying out works on the premises. There was no dispute but that, if not restrained (or if the orders by the Land and Environment Court were not stayed) the Council intended to do so.

45 In circumstances where there are on foot orders from the Land and Environment Court ordering the Council to execute the removal works the subject of the s 124 orders, I apprehend that the basis of the claim for injunctive relief is the contention that the Council has not complied with the proviso in order 6 of the orders.

46 As adverted to above, Ms Elena Bobolas was adamant that the applicants had not been served, and had not received, the sealed orders referred to in order 6 (T 10.50, referring to her paragraph [11] of her affidavit of 12 March 2014) and that all they had was a print-out of the orders (unsealed) that had been obtained from the court registry. In particular, Ms Bobolas denied that the applicants had received any documents, whether in a plastic sleeve or otherwise.

47 The significance of this is that if there has been no compliance with the proviso to order 6, then on the face of that order, the Council would not have been authorised to commence the works on 17 March 2014. In that regard, I read the proviso in order 6 as imposing a requirement of notification, in the form of service of the orders, before commencement of the works.

48 Ms Elena Bobolas was also adamant that the applicants had not been served with the s 124 orders (T 9.26), though his Honour found against the applicants on that issue.

49 From T 11.9, there was the following exchange:

HER HONOUR: ... You deny that you were served with the sealed clear plastic pocket?

FIRST APPLICANT: We do deny that, your Honour. It has not occurred.

HER HONOUR: Sorry, when I say that you deny that, you will see that what Ms Mostafa deposes to is that she served the documents by fixing those sealed soft plastic pockets with cable ties to the front gate. Do you deny that those documents were attached in sealed plastic pockets at the front gate? I rather thought what you were--

FIRST APPLICANT: Your Honour, what I am saying is that we have not--

HER HONOUR: You say it was not in accordance with his Honour's orders?

FIRST APPLICANT: We have not received any documents. I don't know if they were meant to be plastic pockets or something else, I have not received any of that documentation at all.

HER HONOUR: Can you have a look at annexure A to Ms Mostafa's affidavit?

FIRST APPLICANT: I am not saying that they weren't served in the plastic pockets, I'm saying they weren't served at all, in any way, shape or form. It's not the pockets I'm saying I object to your Honour, I'm saying that I'm affirming in my affidavit that we have not received these documents. I wouldn't be making that vow based on just the plastic pockets, I'm saying the documents haven't been served.

HER HONOUR: You maintain that what was left in the plastic pockets did not amount to service in accordance with the orders?

FIRST APPLICANT: I didn't find any plastic pockets or anything on the property that day. Not on the gate, not anything. I can see from this picture that there appears to be something attached to the gate but I've not seen these documents, I've not received this stuff, I've not seen this paperwork. I'm prepared to give evidence on the stand about it if need be your Honour, even though it's in my affidavit.

50 Ms Elena Bobolas, in consultation with her sister, cross-examined Ms Mostafa as to what she said she had done by way of service of the documents, including as to whether she had read the documents that were in the plastic sleeves that she said she had affixed to the gates.

51 Ms Mostafa is a secretary employed by the firm of solicitors acting for the Council. She gave evidence, which I accept, that she was given instructions to serve the documents by a solicitor (T 29.39); that the documents were given to her in a plastic sleeve (T 30.5); that she took the documents out of the plastic sleeve in order to read and to make sure that the sleeve contained everything that she had to serve (T 30.12-43); and that when she had made sure that all the material that she had been given was there, she put the documents back in the sleeve, zipped it up and affixed the plastic sleeve by the cable tie to the gates (T 31.2). She then took a photograph of the front gates, showing the plastic sleeves affixed thereto (T 31.50).

52 There is no reason to disbelieve Ms Mostafa's evidence as to service. My observation was that she considered the questions put to her and where she was confused by the questions put to her she sought to have them clarified. Although criticism was made by Ms Bobolas that Ms Mostafa had been unresponsive in one of her answers (as to how long she had been at the premises when the documents were served), the impression I had gained of that answer was that it was given as Ms Mostafa had been thinking aloud when attempting to work out how long she had been there. In any event, my conclusion as to Ms Mostafa's evidence does not turn on the answer to which objection was taken (that being the statement that she was "gagging" due to the smell).

53 Ms Mostafa also gave evidence (in response to a question as to previous service by her of documents) that she had similarly served documents on the Bobolas premises on 28 February 2014 (T 32.49). I interpose to note that that evidence is of relevance in circumstances where it appears (from the submissions made by Ms Elena Bobolas on the present hearing as to the inaccuracy of a chronology of events that was said to have been served on that date and by Ms Liana Bobolas as to the submissions made by Counsel appearing for the Council at the 4 March hearing) that the material served on 28 February 2014 (in the same fashion as that served on 11 March 2014) was indeed received by the applicants.

54 I am satisfied that the evidence of Ms Mostafa establishes that a sealed copy of the orders was served on the applicants, in the manner contemplated by his Honour's orders. That means that, whether or not the applicants actually removed and read the documents in the plastic sleeves, the proviso to order 6 is satisfied.

55 It may be inferred (from the applicants' submissions on the present occasion cavilling with the correctness of the chronology - T 21.10 - and to the criticism made of the submissions made by Counsel appearing for the Council in relation to the 4 March 2014 hearing that no evidence had been filed by the applicants - T 26.35) that the appellants did receive the materials that were served on 28 February 2014 by Ms Mostafa. If so, there is no ready explanation as to why they would not equally have received the documents left by Ms Mostafa in the same fashion on 11 March 2014. In any event, the evidence establishes that they were served with the documents on 11 March 2014, in accordance with the court orders.

56 Biscoe J, setting out the procedural history of the proceedings in the Land and Environment Court, noted the various orders that had been made as to the means by which service was to be effected on the applicants. Orders for substituted service, made when it is not practical for personal service to be effected, have the result that compliance therewith is deemed to amount to service. Accordingly, there is no reason to believe that the Council would not have been acting within the authority granted to it under the Land and Environment orders if it had commenced the works referred to in order 1 of the orders on 17 March 2014. Moreover, there is no dispute but that from 7 March 2014, the applicants were aware from their own enquiries as to the orders that had been made on 4 March 2014.

57 There is no basis for any reasonable apprehension that the Council's proposed entry onto the premises on 17 March 2014 to carry out the works required by the orders made by the Land and Environment Court would not have been authorised. Nor is there any basis for a reasonable apprehension that the Council's servants and agents will act wrongfully in the exercise of the powers granted by the Land and Environment Court orders. Even if there was a basis for complaint as to the conduct of Council employees or agents in 2004, and I am not in a position to make any determination of the allegations made by Ms Bobolas to that effect, that does not give rise to a reasonable apprehension that the Council will behave in any way inappropriately in compliance with the orders that have more recently been made.

58 Accordingly, I am not persuaded that there is a serious question to be tried as to the lawfulness of the proposed entry onto the premises by the Council. It is not necessary then to consider whether damages would be an adequate remedy or where the balance of convenience would lie in the exercise of the discretion to grant interlocutory relief, although for completeness I note that I would have concluded that the balance of convenience did not lie in favour of the grant of such relief for the reasons I give when considering the application for a stay.

59 I decline to grant the injunctive relief sought by the applicants. I note that insofar as the injunction sought by the applicants' notice of motion is an interlocutory injunction it would have been necessary for the applicants to have given the usual undertaking as to damages to the Court.

Stay

60 The principles on which a stay of orders, pending an appeal, may be granted were confirmed by Hodgson JA in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130 as being those set out in Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685. There, the Court said that it is not necessary for the grant of stay that special circumstances be made out; rather, it is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in the applicant's favour (p 694). The Court noted that, prima facie, a successful party is entitled to the benefit of the judgment obtained and is entitled to commence with the presumption that the judgment is correct (citing with apparent approval what was said by Mahoney JA, with whom Moffitt P and Glass JA agreed, in Re Middle Harbour Investments Ltd (In Liq) Court of Appeal 15 December 1976 unreported at 2).

61 In Alexander v Cambridge Credit Corporation, the Court (Kirby P, as his Honour then was, Hope JA and McHugh JA, as his Honour then was) noted that the onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all parties and that, in the exercise of its discretion whether or not to grant the stay, and if so as to the terms that would be fair, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. The Court noted that where there is a risk that the appeal will prove abortive if the appellants succeeds and the stay is not granted, courts will normally (my emphasis) exercise their discretion in favour of granting a stay and that where it is apparent that unless a stay is granted an appeal will be render nugatory, this will be a substantial factor in the favour of the grant of the stay. Further, the Court noted that, although courts approaching applications for a stay will not generally speculate about the applicant's prospects of success, this does not prevent a preliminary assessment as to whether the applicant has an arguable case, when considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties.

62 In the present case, the force of the applicants' position is that at least in some measure their appeal is likely to prove nugatory if a stay is not granted since it may be assumed that the Council will in the interim have carried out the works required and authorised by the orders made that are the subject of the appeal. That said, the appeal may even in that case have utility insofar as the applicants seek to challenge the validity of the orders and, if the works proved to have been unauthorised, this would have an impact on any claim by the Council for recoupment of the costs of effecting the works. What must also be taken into account are the grounds of appeal, the balance of convenience, and the terms on which any stay would be fair to all the parties.

Arguable grounds of appeal?

63 The applicants contend that there are arguable grounds of appeal. In this regard, Ms Elena Bobolas placed reliance on the fact that, in her affidavit of 12 March 2014, she has affirmed that everything in the notice of appeal is true. That, however, is no more than an affirmation of her belief in the assertions of fact or opinions there espoused, akin to the verification of a pleading. It does not substitute for evidence of the particular facts by reference to which any one or more of the grounds of appeal are premised. This is particularly evident where some of the paragraphs in the grounds of appeal amount to no more than asserted conclusions.

64 It must be noted that on an application for a stay, such as the present, it is not appropriate to make any final or conclusive finding in relation to the merits of the appeal but, as noted above, the court may take into account whether an arguable case is disclosed. I have already summarised the broad contentions on which the appeal is founded. I consider those below.

65 As to the claims based on a denial of natural justice or procedural unfairness in the court proceeding to hear and determine the matter in the absence of the applicants on 4 March 2014, the evidence does not in my opinion disclose an arguable case.

66 There was nothing before his Honour to explain the absence of the applicants, as Ms Elena Bobolas concedes (T 15.50). His Honour set out the procedural history of the matter before him, referring among other things to the sending by the Council by express post of the orders fixing the hearing date for 4 March 2014. His Honour further noted that, on 28 February 2014, the Council's chronology of events, list of documents, list of authorities and submissions in relation to the hearing were served on the applicants by the affixing of those documents in plastic pockets on the front gate of the premises.

67 There had been appearances by the applicants on earlier occasions in the proceedings and it may well have been inferred that the applicants (who had made it clear that they had filed affidavits in the proceedings in relation to the issue of service under protest and without being taken to have entered an appearance in the proceedings) had chosen not to participate in the hearing of the matter.

68 The medical certificates tendered by the applicants were not before Biscoe J at the time his Honour proceeded to hear the matter, so his Honour cannot have erred in failing to take them into account. Furthermore, the certificates are in such general terms as to deprive them of any real weight. Leaving aside the fact that the identity of the doctor is redacted (which would have made it difficult for the doctors' opinion to have been tested had the Council sought to have challenged any adjournment application based on the certificates), and leaving aside discrepancies in the dates of those certificates, the certificates are in very vague terms.

69 Young J, as his Honour then was, noted in Forster v Harvey [2006] NSWSC 1112, a party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned. His Honour observed that "unfortunately medical certificates appear to be very easily obtained" and that it was "quite useless" for a person in effect to enclose a "common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination". Although that was a case in which there had been various delays based on such certificates, his Honour's comments indicate why little weight can be placed on an untested medical certificate of the kind now tendered by the applicants.

70 In any event, as already noted, there can have been no denial of procedural fairness in his Honour proceeding to hear the matter in the applicants' absence when the position was that there was no explanation for their absence and his Honour could fairly have assumed that they were on notice of the hearing date (and it is not here suggested otherwise).

71 Ms Elena Bobolas claims that the family was denied procedural fairness because it was denied the opportunity of putting forward information, submissions and evidence that would have had a bearing on the decision and/or orders of 4 March 2014. Ground 2 of the grounds of appeal refers in this regard to the Judicial Commission bench book and authorities concerning applications to set aside default or summary judgment on grounds including that judgment was obtained in the absence of a party.

72 However, no application was made to Biscoe J to set aside the judgment and orders made in the absence of the applicants. (Ms Bobolas submits that this is because of the perception of bias on the part of Biscoe J, which I will deal with in due course.)

73 The reference to part 36 r 16 of the Uniform Civil Procedure Rules in ground 2 of the notice of appeal was said by Ms Elena Bobolas as going to the application for a stay of the judgment. As I understand it, the applicants' submission in this regard is that the principles applicable in applications for relief under part 36 r 16 should be applied when considering the application for a stay. The applications are, however, of a different nature: the one, seeking to set aside a judgment so as to permit the claim to be contested; the other, seeking to stay the orders that have been made pending an appeal from the judgment.

74 Had there been an application made to Biscoe J to set aside the judgment of 4 March 2014, the factors relevant to his Honour's consideration of that question would have included the reasons for the applicants' absence at the hearing on 4 March 2014 and the prospects of success for the applicants' defence of the Council's claim for relief.

75 As to the reasons for the applicants' absence on 4 March 2014, more would have been required in my opinion than the vague certification of an unspecified medical condition (in the case of Elena and Mary Bobolas) and chest pain (in the case of Liana Bobolas), particularly if the Council sought to test the medical certificates by requiring the unidentified doctor for cross-examination.

76 As to the apparent prospects of success in the defence of the Council's claim for relief, the evidence that Ms Elena Bobolas informed me, from the bar table, would have been able to be adduced was not evidence that went to whether there had been a failure to comply with the December 2012 orders. Indeed, it seems implicit in the submissions on the present application that the work required to comply with those orders has not yet been effected (though it is said that considerable work has now been done to clean up the property). Rather, the evidence that Ms Elena Bobolas said would have been induced included evidence as to the steps that had been taken to remove items from the back yard and as to the arrangements that have now been made, it is said, for the removal and/or storage of items from the property; as to the lack of responsibility of Ms Mary Bobolas for the storage the subject of the notices; as well as submissions as to the orders sought by the Council and as to the costs of the proceedings.

77 In circumstances where the Council orders were issued in December 2012 and where the evidence before his Honour was that as at March 2014 there was an increasing (not decreasing) amount of material on the property (and the orders had not been fully complied with on any view of the matter), it is by no means apparent that if the Bobolas family had put forward evidence before his Honour to the above effect, there would have been any different result. In any event, the fact that this material was not before his Honour does not support an allegation that there was a denial of procedural fairness. I also note that the applicants appeared to have been in default of directions for the filing of evidence in defence of the claim at that time.

Disentitling conduct

78 This ground of appeal, as I understand it, is predicated on a belief that the Council failed, or must have failed, to comply with the high duty of candour required of a "moving party" on an ex parte application (Ms Bobolas citing Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 to this effect).

79 Ms Bobolas submits that the Council did not comply with this requirement because it cannot have drawn to his Honour's attention factual matters, such as the lack of an impediment if the applicants were to be closer than 10 metres from any operating machinery and trucks (which Ms Elena Bobolas maintained she had been told both by the Council's own subcontractor and by another contractor on the way to Court on 17 March 2014 was not dangerous), or legal matters such as the import of s 200 and s 193 of the Local Government Act (which it is submitted made the order for entry onto the premises and the use of force in unlocking or removing gates invalid). As to the latter, I consider this in the context of the challenge to the validity of orders below.

80 As to the former, it by no means follows from what Ms Bobolas says was conveyed to her in discussions with unidentified contractors (as to the safety of being within 10 metres of operating machinery) that the Council must have failed in any relevant sense to comply with a duty of candour. There is nothing to suggest that the Council misled the primary judge as to the basis on which such an order was sought. There may well have been reasons why Council wished to ensure such a distance from the machinery in the present case. In any event, I was informed during the submissions by the Council that the Council does not intend to use machinery to effect the clean-up works (and gave those instructions on the basis that it would be bound by them), so it is difficult to see how this complaint would give rise to any basis for setting aside the judgment or orders that were made by his Honour.

81 The applicants also make allegations relating to a particular affidavit from a process-server that the Council ultimately did not rely upon in seeking the relief from the primary judge. As to this, it cannot be said that the complaint by the applicants in relation to this affidavit was a matter not known to his Honour, since it was the requirement for cross-examination of the deponent of that affidavit had led to the adjournment to 9 August 2013. Moreover, it is not clear how the earlier reliance on such an affidavit would have deprived the Council from later maintaining its claims at the hearing on 4 March 2014.

82 Complaint was also made that his Honour did not deal with the application by the applicants in their notice of motion heard on 26 July 2013 for an order under r 12.11(1)(f) for the protection of their property. Ms Elena Bobolas says that on 26 July 2013 his Honour had said "not yet" to that application but that his Honour did not address this in his final orders on 4 March 2014 and hence it is submitted that this issue cannot have been brought to his Honour's attention by the Council during the hearing on 4 March 2014. (As I understand it, reliance is also placed on this as indicating bias on the part of the primary judge.)

83 In that regard, his Honour's ex tempore reasons on 26 July 2013, though brief, make it clear that his Honour did address the application for an order under r 12.11(1)(f) at that stage and that his Honour was not satisfied that any case had been made out for such an order ([8]). It is not the case, therefore, that there remained, as at 4 March 2014, any outstanding application for such an order.

84 The allegations based on disentitling conduct therefore do not give rise to an arguable case on appeal for the setting aside of the judgment and orders made by his Honour.

Validity of orders/exercise of discretion in relation to content and scope of orders

85 Complaint was made almost seriatim as to the orders made by his Honour. Ms Elena Bobolas submitted that the orders made were beyond the scope of the Council and beyond the jurisdiction of the Land and Environment Court; and that they were too broad, too general, oppressive and excessive. Ms Liana Bobolas made similar submissions.

For the most part, the complaint went to the perceived inappropriateness, oppressive or excessive nature, or vagueness of the orders made, the appeal from which would require that there had been a miscarriage of his Honour's discretion in the House v R [1936] HCA 40; (1936) 55 CLR 499 sense. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], it was noted that an appeal from a discretionary decision of the primary judge lies where it is established that the decision maker has made an error of legal principle or has made a material error of fact, has taken into account some irrelevant matter or failed to take into account, or has given insufficient weight to, some relevant matter, or hasarrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

86 I am not persuaded that the criticisms or complaint made as to the relevant orders discloses an arguable case for appellate intervention on the exercise of his Honour's discretion as to the particular relief granted by his Honour.

87 Complaint was made as to the order permitting a structural engineer employed by the Council to enter and remain on the premises (order 3), said to be indicative of the likelihood of structural damage from the proposed works and because it did not identify the particular person nor state that the person be a licensed contractor or one of "good record". It was submitted that orders 7 and 9 were excessive, in that insufficient time had been allowed for the applicants to remove the items; no safe place had been stipulated in the yard as storage for pot plants; the works would require the digging up of glass platforms embedded in the ground; and that not all items in the front yard could be deemed to be waste. Ms Liana Bobolas made reference to works of art (sculptures) and other items on the premises that were of value and submitted that not all of those could be expected to be stored inside the house. Complaint was made that the orders required the removal of immoveable items.

88 Complaint was made as to order 9A (which permitted the cutting of vegetation of the premises, if reasonably required to facilitate the clean up works) on the basis that it was vague. Complaint was made as to order 10 (which permitted the removal of motor vehicles outside the premises in certain circumstances) on the basis that the applicants have no motor vehicle and this would put them to expense in notifying their neighbours as to the restriction or in otherwise having to bear costs related thereto. Complaint was made as to the order requiring the applicants not to impede or obstruct the works on the basis that it was vague (Ms Elena Bobolas suggested that this order might preclude, or be said by Council to preclude, even the making of oral communications by the applicants with the Council workers on the premises.)

89 Complaint was made as to the granting of liberty (order 11) to the Council to apply on 24 hours' notice for the purpose of extending the time to clean up the property as being evidence of bias because there was no similar liberty granted to the applicants to seek an order confining the time for the cleanup of the property. Bias was also said to be evident from the fact that the Council had been permitted 5 days in order to clean up the works in order 2 but that the applicants had only been allowed, in effect, 3 days in order to remove items of value.

90 Insofar as the complaints made by the applicants, as to the relief that had been granted, went to the exercise of discretion on the part of his Honour, it is difficult to see that there are any real prospects of success.

91 The other kind of complaint as to the orders went to their validity. In particular, complaint was made as to order 5 as permitting the Council and agents during the clean up works "to forcefully unlock and remove any gates on the premises", as being inconsistent with ss 200 and 193 of the Local Government Act. (This was also said to be evidence that the Council had not properly drawn to his Honour's attention those matters or of a lack of awareness of those provisions or bias by his Honour.) Complaint was also made that the orders following order 1 went beyond the power of the Court as extending to works not required to be done by the s 124 notices themselves.

92 Insofar as this complaint relates to the effect of the orders operating from 17 March 2013 being to "truncate" the 28-day time for an appeal, there is no basis for a suggestion that his Honour did not have power to make orders operating from the time that his did. As to the submission that order 1 only permitted work that each of the applicants was required to do and that subsequent orders went beyond this and therefore were beyond the jurisdiction of the council order, the ancillary orders were in my opinion intended to address issues that might arise in the carrying out of the works and it is not reasonably arguable that they were beyond power.

93 It is submitted that bias is evident from the orders being "pro Council's point of view" and from the fact that there was not compliance with Court rules on service and extension of time (in that his Honour "did not seem to understand that an extension of time must be sought by way of notice of motion").

94 As to the criticism of the form of the orders and the timing of the notice of orders before the work, the Council submits that it can be seen from his Honour's reasons that his Honour had a significant concern in relation to occupants and neighbouring properties in relation to the health and fire risk caused by the state of the premises. I agree. As to the criticism of the ancillary orders that related to the use of machinery, the Council informed this Court, through its senior counsel, that it had no intention to use machinery; would do all of the works by hand; and that it regarded itself as bound by that intimation or undertaking.

95 As to the validity of the order on Mary Bobolas, the Council notes, and I accept, that the legislative table identifies the recipient of a 22A order as an owner or occupier, and should be read as using "or" in the conjunctive sense, such that there can be orders directed to each family member in her respective capacity as owner or occupier (or both). Insofar as it is asserted that Ms Mary Bobolas is not "storing" anything on the premises, but it was conceded that she was the owner of half of the premises, that in my opinion is sufficient to permit an order to be served on her. As an owner or part-owner of the premises, it would be open to her to have required the removal of property if brought there by others. (Moreover, this submission is inconsistent with the submission that the Council had exacerbated her psychological problem by removing items from the property, which implicitly recognises an involvement by Ms Mary Bobolas in the collection and/or storage of the items).

96 The submission that the orders made are invalid by reference to ss 200 or 193 of the Act or that his Honour misunderstood or was not aware of those provisions; or that there was a lack of candour by the Council in not drawing his Honour's attention to those provisions) is not arguable. Biscoe J in Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 (at [54]-[56]) explained the interrelationship between s 678 and Part 2 of Chapter 8 of the Act, in which ss 193 and 200 are to be found, and noted that those provisions did not limit the power of the Land and Environment Court to make an order under s 678(10), concluding at [56] that:

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.

97 Reliance on this passage by Pain J, in the previous Bobolas proceedings in the Land and Environment Court, was noted by McColl JA, without any apparent disapproval at [18] of her Honour's decisions. There is no basis for the assertion that his Honour misunderstood the relevant provisions.

Bias

98 As to the grounds of appeal based on allegations of bias (or the like) on the part of the primary judge, which bias is said to have been from "the first instance", again I am not persuaded that there is any arguable case shown on the material before me.

99 The applicants point to the following: the decision of his Honour to hear the matter in their absence (explicable in my opinion by their lack of attendance, in circumstances where they had previously attended court proceedings on 26 July in connection with their own application for declaratory relief as to the lack of service, and lack of any explanation for their lack of attendance); that in his Honour's reasons his Honour referred to there having been "no evidence" filed by the respondents (whereas Elena and Liana had affirmed the 2013 affidavits referred to above, which had been filed in the proceedings); that his Honour on 26 July 2013 had dealt with the Council's application before their own, although theirs had been filed first; that his Honour had permitted weight to be placed on an affidavit of service sworn by a Ng Saad on 26 February 2014, almost one and half or two years after service of the documents (and thus said not to have been "fresh" or "current"); and the terms of the orders themselves, which the Bobolas family maintain are vague, excessive, inappropriate, unfair and which the applicants submit were "pro" the Council's position.

100 None of those matters seems an available basis for a finding of apprehended or actual bias on the basis of the primary judge. I summarise the test in that regard later in these reasons, in connection with the submission made at the conclusion of the submissions in reply by Ms Elena Bobolas of apprehended bias on my part.

101 As to the applicants' unexplained absence on 4 March 2014, his Honour's recitation of the procedural history discloses the steps taken by the Council and the Court to notify the applicants of dates on which matters were to be before the Court. It is not the case, as Ms Elena Bobolas suggested on this application (T 20.40), that on every occasion when there was no appearance by the applicants, they had not been notified of the relevant court date.

102 On 26 July 2013, Biscoe J (having dealt with the applicants' notice of motion seeking a declaration that the summons had not been served on them) stood the matter over to 9 August 2013 in order to permit the applicants the opportunity to cross-examine a process-server on whose evidence the Council had relied in support of its substituted service application. There was no appearance by the applicants on 9 August 2013 and I can find no explanation for that in the evidence before the Court on this occasion.

103 Similarly, it appears that there was an appearance by the applicants at a directions hearing on 22 November 2013 at which the timetable for the proceedings was again extended in circumstances where the applicants said that they had not been served with the relevant documents. This directions hearing apparently followed service by express post by the Council of notification of the orders; a procedure also apparently followed in relation to the 4 March hearing.

104 His Honour's decision to proceed in the absence of the applicants on 4 March 2014, when the history of the matter is taken into account, does not disclose bias nor would an informed fair-minded lay observer reasonably apprehend bias from that fact.

105 As to the statement by his Honour that "no evidence" had been filed by the applicants (at [30] of his Honour's reasons), read in context of his Honour's reasons as a whole this appears to be a (correct) statement that no evidence had been filed in response to the directions made in November 2013 for the filing of evidence, to which directions his Honour had earlier referred when recounting the procedural history of the matter.

106 The affidavits to which the applicants point as having been filed in the proceedings were not affidavits that went to the issue of compliance or otherwise with the s 124 orders; they were affidavits (filed under "objection" "protest" and "duress") deposing to the lack of personal service of the summons and alleging fraud and perjury by the process-server on whose evidence the Council was relying for its application for an order for substituted service. No finding of bias or apprehended bias could reasonably be made based on the reference in his Honour's reasons to "no evidence" having been filed.

107 As to the order in which matters were heard by his Honour on 26 July 2013, I do not have the benefit of a transcript of the proceedings on that occasion. However, the reasons given by his Honour on that occasion Waverley Council v Bobolas [2013] NSWLEC 119 address the applications in the order in which the applicants now contend they should have been addressed. The order of filing applications for interlocutory steps in the proceedings does not determine how a judge, in the conduct of the hearing of those applications, should hear the matters then before him or her; and a case management decision of that kind could not reasonably give rise to an apprehension of bias on the part of his Honour.

108 As to the submission that reliance on Mr Saad's affidavit of service demonstrated bias (because there was nothing in the reasons to indicate that his Honour had considered that less weight should be accorded to it having regard to it having been sworn some time after the event - see T 42.2), it was not necessary for his Honour to include in the reasons every argument that might have been addressed by the applicants had they been in attendance at the hearing. The mere fact that the affidavit was sworn after, even some time after, the event would not require his Honour to reject or disbelieve that evidence. It was evidence that, in the circumstances in which his Honour came to deal with the matter, was unchallenged.

109 As to the submission that the terms of the orders themselves evidence bias on the part of the primary judge, such a submission is not arguable in circumstances where the primary judge did not have the benefit of any submissions by the applicants as to the proposed orders and, on the face of the orders, they are not unreasonable orders to make in anticipation of issues that might arise in effecting the works required in compliance with the s 124 orders.

110 Complaint was also made that the Council's summons had been served out of time (to which it is said objection was made on 26 July 2013 when the applicants were present before his Honour) and that an extension of time was later granted without any notification to the applicants (it being suggested that no notice of motion seeking that extension may ever have been filed and that this was also evidence of bias by his Honour).

111 This complaint relates to the principal issue raised by the applicants at the 26 July 2013 hearing of their notice of motion: their contention that they had not been personally served with the summons by the date specified on the summons. According to the procedural history of the matter set out in his Honour's reasons, on 23 August 2013, Pain J extended the date for service of the summons to 6 September 2013 and the return date for the summons to 20 September 2013. This followed the non-appearance of the applicants at the 9 August 2013 resumption of the hearing of the Council's motion for substituted service.

112 The making of orders by Pain J on 23 August 2013 can hardly demonstrate bias on the part of Biscoe J. In any event, the making of orders for an extension of time for service of the summons (particularly in light of the history of the matter at that point) without the requirement for a notice of motion to be filed cannot arguably be said to give rise to a reasonable apprehension of bias on the part of an informed fair-minded observer. Orders of that kind are matters within the discretion of the court in its day to day case management.

113 In essence, Ms Elena Bobolas submits that paragraph [33] of his Honour's reasons establishes that his Honour was biased because there was no input from the family as to what was and was not relevant in relation to the making of the orders. That submission broadly encompasses the various matters to which I have already referred. I am unable to conclude that there is an arguable case that the findings of his Honour at [33] indicate actual bias or any basis for a reasonable apprehension of bias.

Conclusion as to arguable case

114 For the reasons set out above, I consider that there not is an arguable case on appeal. Indeed, if I were to assess the prospects of the appeal I would rate them as very slim. I turn then to consider the balance of convenience.

Balance of convenience

115 Ms Elena Bobolas asserts that it is unfair to obstruct her family from the 28 day period allowed for an appeal from the orders of the Land and Environment Court, which she maintains is the effect of the terms of the Land and Environment Court orders by permitting the works to commence on 17 March 2014 (within 28 days of the orders).

116 As any prejudice that will be suffered if a stay is not granted, Ms Elena Bobolas refers to the costs for which the Council may seek to hold the applicants liable for effecting the works. Ms Elena Bobolas submits that there will be no prejudice to the Council if the stay is granted, on the basis that she maintains that the Bobolas family will undertake to remove the items within a month (although this timeframe was variously put by her as a month, by Ms Liana Bobolas as "within a month" or about a month, or a month to two months; and by Ms Mary Bobolas as two months). Ms Elena Bobolas also referred (from the bar table) to discussions she said she had had with the general manager of the Council in which she said that he had agreed to a one month time frame not being excessive for the removal of the items on the property. The Council cannot be said to have accepted that proposition.

117 Much weight was placed in oral submissions on the "massive" or "extensive" damage that it is said was sustained on the last occasion when the Council removed materials from the premises and the manner in which the Council had done so; those submissions including that the Council had itself exacerbated Ms Mary Bobolas' psychological problem in relation to the storage of the items on the premises by having "taunted" her when materials were last removed by the Council.

118 Complaint was also made that the Council had convened public meetings about the Bobolas family and had deliberately excluded them from those public meetings; and that Council had obstructed arrangements made by the Bobolas family for the removal of the items to a storage container.

119 Reference was made by Ms Elena Bobolas to the decision in Warringah Council v Ulrich [2012] NSWLEC 234, where Pepper J was satisfied that Mr Ulrich had failed to comply with s 124 orders issued by Warringah Council but made orders requiring Mr Ulrich to remove items from particular areas within particular periods (three months in most cases but six months in the case of a fallen dead tree and its limbs). In that case, her Honour also ordered that, if there was non compliance with certain orders, within the times specified, then the council was to enter the land and give effect to those orders or parts thereof that had not been complied with by the respondent. It should be noted that in that case, there were also orders made requiring Mr Ulrich during the three month period to carry out repair and other works at the premises, to maintain cleared paths at designated areas of the premises, and restraining Mr Ulrich from, among other things, storing or putting or placing articles in designated areas. Relevantly, her Honour noted that the orders that had been proposed by the council in that case had been (albeit reluctantly) agreed to by Mr Ulrich ([89]), though there were some further submissions by each of Mr Ulrich and the council as to the final form of the orders to be made.

120 The longer period of time thus effectively allowed for the removal by Mr Ulrich (under compulsion) of items from the premises does not assist the Bobolas family in that the kinds of orders considered appropriate in order to effect compliance with s 124 orders may vary from case to case. The precise orders to be made will fall within the exercise of the particular judge's discretion. In Mr Ulrich's case, there had been at least a measure of agreement with council as to the particular orders. In the present case, there has been no such agreement.

121 The applicants maintain that they want an opportunity to remove the items themselves. In the Ulrich case, the orders for removal of items were made even though it was agreed between the parties that Mr Ulrich had made some recent progress in cleaning up the premises ([24]), her Honour being satisfied on the evidence before her (and from a site visit) that the state of the premises was causing, and likely to cause, a threat to public health (there referring to the emission periodically of foul odours, the presence of rats and mosquitos and the presence of material that amounted to a demonstrable fire hazard ([93]).)

122 Ms Elena Bobolas submits that the prejudice to the applicants if the Council carries out does the work is that this will exacerbate the psychiatric problems suffered by her mother; that it will not resolve the problem in the long term (as opposed to the resolution that it is submitted will be achieved if the family is permitted to remove the items itself); and that they will be prejudiced as they will incur the costs of the Council doing the work.

123 When pressed as to the estimate of time that it would take to remove items of value from the premises (as opposed to the time for completion of the whole of the works), Ms Elena Bobolas informed the Court that it would take more time if all that were to be removed were items of value (apparently because of the time required to be taken in order for Ms Mary Bobolas to be consulted and to determine whether she wanted to keep particular items or not; and because some items of value may have been hidden under boxes).

124 As to the balance of convenience, Council places emphasis on the finding that this is a public health issue and notes that the Bobolas family has in effect already been allowed time to retrieve items of value, though no submission was made against the prospect that a further limited period of time might be allowed.

125 Ms Bobolas submits that the there could not be urgency in relation to any public health issues since the Council had served the notices in December 2012 but not filed proceedings until 19 June 2013, some 5 months after the time for compliance and that this was not indicative of the belief by the Council of any urgency.

126 In that regard, the procedural history of the matter and the previous proceedings indicates that the Council has been attempting to obtain orders permitting it to remove items of waste from the premises from as long ago as 2010. Some of the delays in that process have not been due to fault on its part (see for example, the delays to which McColl JA referred in the previous appeal proceedings). In my opinion, it cannot be inferred, from the timing of commencement of the proceedings or from delays in the conduct of the proceedings, that the Council does not perceive there to be a significant ongoing risk to public health that needs to be addressed. Biscoe J was of a similar view having regard to the findings in his judgment.

127 As to placing value on the cessation of the problem, it was submitted by Ms Bobolas that a much better solution from a long term point of view would be to permit the Bobolas family to remove the items, since that would resolve the problem for the future. Each of the applicants claimed that the items could be removed within one or two months. When I asked how long it was estimated it would take for the applicants to remove items of value, I was informed that this would take longer (in effect, as it would be necessary to go through everything for it to be determined what was of value). The difficulty with such a submission is that there is no basis on which I could conclude that if the Bobolas family were now to comply with the s 124 orders this would have the consequence that there would be no further problems with storage of items on the premises of the kind that has been experienced to date.

Conclusion as to balance of convenience

128 His Honour made clear findings as to the public health risk of the premises in their present state. That is a powerful factor tending against the grant of a stay. The prejudice to which the applicants point as to potential damage to the property can be met by appropriate relief if the damage eventuates. The family has had ample opportunity to remove items of value.

129 Furthermore, the onus is on the applicant for a stay to demonstrate that it will operate fairly to all parties. In the present context, I am of the view that this requires that any stay must be on terms that it meets adequately the public health interest in not having a continuing health risk at the premises. There are two ways in which this factor might be addressed: imposing as a condition of the stay a requirement that the works be carried out within a particular time (which is in effect what the applicants urge me to do) or discharging the stay with effect from a date in the near future such that the carrying out of the clean-up works is not in doubt but there is a final opportunity for the applicants to remove any items of value.

130 In view of the history of the matter, to which I have been taken by Ms Bobolas briefly and which is apparent from the reasons of the primary judge and the previous proceedings in this Court, I consider that the latter is the appropriate course.

Application for order protecting property UCPR 12.11(1)(f)

131 I have already noted that the complaint that Biscoe J did not deal with the applicants' application in their notice of motion for orders for the protection of property is without substance, having regard to the reasons given on 26 July 2013, in which his Honour expressly ruled on that application. I am not satisfied that it is appropriate, on the present application, for an order of this kind to be made.

132 There is nothing, other than Ms Elena Bobolas' untested assertion as to the Council's conduct on the last occasion that items were removed from the premises, to suggest that the applicants' premises will be damaged by reason of the removal of the deemed waste. The Council has confirmed to the court that it intends to remove the items by hand, in which case concerns as to the operation of machinery will not arise. While Ms Bobolas suggests that no weight can be placed on this statement from the Council's legal representative (Mr Clay), I consider that it can be taken into account that Senior Counsel would not proffer such a statement to the Court without instructions or without the client having been made aware of the significance of so doing, particularly since the Council would be the subject of adverse criticism, if it were later to transpire that it had acted other than as indicated to the Court in this regard.

133 Ms Bobolas maintains that the Council's purpose is to cause costs to be incurred so that the Council can take the house. There is no basis on which I could reach such a conclusion. Rather, the Council's conduct in pursuing the orders for removal of the items on the property appears to me to be wholly consistent with a concern as to public health issues.

Proffered undertaking by Ms Elena and Ms Liana Bobolas to complete works within a reasonable time

134 The notice of motion seeks the notation by the Court of an undertaking by the applicants to carry out the works within a "reasonable" time. The difficulty I have is that there is nothing to give me any real confidence in the assertion on the part of the Bobolas family that it is now in a position to comply with the s 124 orders and will do so, or as to the time within which this might be achieved. Ms Elena Bobolas submitted that considerable work had already been undertaken to clear the back of the property (T 51.38) and estimated that it would take one month for the applicants to complete the works (T 48.28). Ms Liana Bobolas referred to a time frame of "at least one month and at the most two months" (T 51.22). Ms Mary Bobolas asked for a period of two months (T 49.18).

135 The proffered undertaking must be considered in the context that the applicants have been on notice since at least December 2012 that the Council required the property to be cleared of items that it described as waste in the s 124 orders. Similar orders had been served in 2010 and were the subject of the previous proceedings. The applicants have in fact had ample time to remove the items from the property. Instead, the evidence accepted by his Honour was that the items had increased over the period to June 2013. Since then, the applicants have challenged service of the proceedings on them (successfully in relation to the July 2013 decision but unsuccessfully in relation to the substituted service thereafter) but they did not contest the fundamental proposition that the orders of December 2012 had not been complied with. The Council has pressed for orders to be made requiring the works to be carried out by it and authorising it to enter the premises for that purpose. A last minute (which is what it appears to be) realisation by the applicants that the property needs to be cleared of the accumulation of items (though they do not concede them to be waste) does not give any real comfort that a stay for the balance of the one month requested by Ms Elena Bobolas will result in compliance with the s 124 orders.

136 In those circumstances, having regard to my view as to the the lack of an arguable case on appeal and the public health issues, the Council should have the benefit of its judgment and of the presumption that his Honour was correct and there should be no stay of the orders made by his Honour pending the appeal (beyond the limited additional period to which I refer below).

Costs

137 I see no reason why costs of this application should not follow the event in the ordinary course.

Apprehended Bias

138 As adverted to earlier, at the close of submissions in reply, Ms Elena Bobolas informed me that there was an apprehension of bias on my part, on the basis that it was apprehended that I would rule in favour of the Council.

139 Ms Bobolas also referred, as relevant to the apprehension of bias, to a comment I had made during the course of the Council's submissions as to what might be an appropriate time to allow for the removal of items of value if I were minded to discharge the stay, bearing in mind the need for any stay to be fair to all parties.

140 At T 45.21, I raised the following with Senior Counsel for the Council, Mr Clay SC, in response to his submission that the balance of convenience weighed heavily in favour of allowing the work to be done but that there would still be some time for the Bobolas family to remove items of value since the council officers would not be able to be there at 7am the following morning (even if the stay had been discharged on that day):

HER HONOUR: Yes, one thing I was going to ask in relation to that submission, Mr Clay, in terms of the recognition that there would be insufficient time for the Bobolas family to remove items of value that they wished to remove and balancing the prejudice against both parties, it occurred to me that it might well be that it would be appropriate for any - if the stay were to be discharged that there be a period of time allowed, a condition for example of maintaining the stay up to a certain point of time, and that the Bobolas family remove items of value to them within a set period of time.

141 Mr Clay did not suggest that any reasonable argument could be put against such a proposition and supported it. Having regard to the principles in Alexander v Cambridge Credit Corporation to which I had adverted earlier in the course of Ms Bobolas' submissions, I explained to Ms Bobolas at T 54.1 that what I had been considering was that:

I was considering the balancing of prejudice on both sides was that if the stay were to be discharged but not until a particular time with an undertaking to or a direction to remove items within that period of time, or an opportunity to remove items within that period of time, that might address the requirement when considering applications of a stay of this kind that I take into account terms of any stay that would be fair to all of the parties.

142 The test in relation to apprehended bias (relevant also to the grounds of appeal raising this in relation to his Honour's decision) is as to whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide.

143 The application of this test requires two steps: first, identification of what it is said might lead the decision-maker to decide a question other than on its merits; second, articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the question other than on its merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16], confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31]).

144 In Ebner, it was said (at [8]) that:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. ... Only then can the reasonableness of the asserted apprehension of bias be assessed.

145 All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform him or herself before reasonably forming any firm apprehension) will be taken into account (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Rogers JA).

146 At [67], in Michael Wilson the plurality (Gummow ACJ, Hayne, Crennan and Bell JJ) said:

As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). ... And, no less fundamentally, an inquiry of [that] kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment. (emphasis in original)

147 At [116], Heydon J, concurring in the result, noted that even had the trial judge in that case fallen into error justifying appellate intervention (which his Honour found not to be the case) that by itself would not support the conclusion that there was a reasonable apprehension of prejudgment.

148 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 47, the High Court emphasised that the principle behind the reasonable apprehension or suspicion test is that it is of "fundamental important that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

149 In the present case, the apprehension of bias on my part was said to derive from the apprehension that I was going to rule against the applicants, having regard to the exchange I had had with Mr Clay as to what might be appropriate if the stay were to be discharged in order to balance the interests of all the parties. It is recognised that in the course of a hearing there may be exchanges, and even robust expression of views, between counsel and the bench without a reasonable lay minded observer forming the opinion that this was evidence of bias. Nor does the mere fact that a judge may rule against a party of itself constitute evidence of bias or apprehended bias. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.' Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)

150 This passage was referred to with approval by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 29 CLR 577 at [111].

151 I am not persuaded that an informed fair-minded lay observer would reasonably have formed the view on observing what had transpired during the hearing of the notice of motion and hearing the exchanges in the course of submissions that there was bias or that there was a reasonable apprehension that, as the decision-maker, I would not be able to bring an impartial mind to the determination of the issues.

Conclusion

152 I have concluded that no injunctive relief should be granted, since there is no basis for any apprehension, on the evidence before the Court, that the Council is intending to proceed to enter the premises and effect the works otherwise than in accordance with the Land and Environment Court orders requiring it to do so and no basis to conclude that in so doing it will act unreasonably or wrongfully. I have also concluded that, even though the appeal will to some extent be rendered nugatory by a refusal to grant the stay (the appeal presumably retaining some purpose insofar as it challenges the power of the Land and Environment Court to make the orders and raises questions as to the costs orders), there is not an arguable case for appeal. In balancing the factors to which I have already referred, I consider that the prejudice to the applicants of not granting a stay are outweighed by the obvious public interest in the removal of the health and fire risk posed by the current state of the premises on the findings made by his Honour.

153 I have already noted that, insofar as complaint is made by the applicants as to the limited time allowed for the removal of items of value, the applicants have been on notice since December 2012 (and indeed for some time well before that) of the Council's requirement that they remove the accumulation of items stored on the premises (and, by reference to the s 124 orders, what the Council considers to be waste). They have been aware of the making of his Honour's orders since 7 March 2014. They have now, by dint of the present application, had the benefit of a further period of time in which to remove items of value from the property beyond that which the primary judge considered reasonable or appropriate. While they have assured me that they wish to (and will) remove the items themselves, the history of the matter to date (including that provided by Ms Elena Bobolas in her oral submissions) is such that I am not confident that, left to their own devices, the applicants will, or will be able to, effect the works required by the orders within a reasonable time. In oral submissions, the fact that the problem had recurred since 2000 was attributed variously to the attitude of the Council exacerbating Ms Mary Bobolas' psychological problem and, at T 52.37, to lack of access to trucks. The differing time estimates if the clean-up works were to be effected by the applicants also causes me concern that they will not be completed in such a fashion as to remove the public health risk within a reasonable time.

154 Any stay would have to be on terms that were fair in the interests of all parties. In my opinion, that would necessarily include a requirement that the clean-up works be effected. For the reasons already adverted to, this factor leads me to conclude that the stay should be discharged. I consider that it is appropriate for this not to be effected immediately in order to permit the applicants a final opportunity to remove items of value before the Council commences the clean-up works.

155 I accept that there may be adverse costs consequences to the applicants if the Council incurs the costs of removing the items that they should have removed in accordance with the s 124 orders. However, that is a circumstance that the applicants have brought upon themselves - first, by the collection and storage of the items in question, including items of rubbish and vegetation apparently left to rot on the premises, and then by their disregard of the Council's requirement for them to clean up the property.

156 Ms Elena Bobolas maintains that the Council has played a part in this by exacerbating her mother's psychological problems and by frustrating attempts for the applicants to remove items for storage. However, there is no evidence, as opposed to her assertions to that effect, that would enable me to conclude that this is the case. It is certainly not possible for me to be satisfied (having regard to the varying estimates of time within which Elena, on the one hand, and Liana and Mary, on the other, have given for the removal of the items) that without the Council's intervention the property will be properly cleared up in the short term.

157 I have concluded, balancing the factors referred to in Alexander v Cambridge Credit Corporation and placing weight on the public interest in the removal of what his Honour clearly found to be a serious public health risk, that the applicants' notice of motion should be dismissed with costs. Having regard to the pleas by the applicants that they be permitted to remove items of value from the property, and to the additional time of which they have already had the benefit for that purpose (as a result of these proceedings and the earlier stay order), I propose to order that the stay imposed by Schmidt J be discharged with effect from 7am Monday, 31 March 2014.

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Amendments

10 April 2014 - Missing word "little" added
Amended paragraphs: 69

Decision last updated: 10 April 2014