Waverley Council v Bobolas (No 3) [2015] NSWLEC 100

Waverley Council v Bobolas (No 3) [2015] NSWLEC 100

The Respondents established no irregularity, illegality, fraud or want of good faith to enliven r 36.15, and the discretion under r 36.16(2)(b) should not be exercised because the process leading to the ex parte hearing was fair, the Respondents were aware of the proceedings and given an opportunity to attend, the legal aid position did not justify adjournment in these civil proceedings, the medical material did not show inability to attend and participate in court, no procedural unfairness or material error in the substantive orders was demonstrated, and there was nothing to suggest a different result would be likely if the hearing were reopened.

Jurisdiction
Australia
Judgment Date
18 June 2015
Procedural Posture
Class 4 Civil Enforcement Proceedings / Notice of Motion Seeking to Set Aside Final Judgment and Orders Made in the Respondents' Absence Under Uniform Civil Procedure Rules 2005 Rr 36.15 and 36.16
Outcome
The Respondents' Notice of Motion dated 30 April 2015 is dismissed.
Legal Topics
['setting Aside Judgment or Orders Made in Absence of a Party' 'ex Parte Hearing' 'adjournment Request Based on Legal Aid Application' 'procedural Fairness' 'finality of Litigation' 'council Orders for Removal of Waste and Works on Residential Property']
['civil Procedure' 'local Government' 'planning and Environment'] ['setting Aside Judgment or Orders Made in Absence of a Party' 'ex Parte Hearing' 'adjournment Request Based on Legal Aid Application' 'procedural Fairness' 'finality of Litigation' 'council Orders for Removal of Waste and Works on Residential Property']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Notice of Motion Seeking to Set Aside Final Judgment and Orders Made in the Respondents' Absence Under Uniform Civil Procedure Rules 2005 Rr 36.15 and 36.16

Legal Issues

  1. 1 ['Whether the final judgment and orders made on 24 April 2015 should be set aside or varied under Uniform Civil Procedure Rules 2005 r 36.15 as irregularly, illegally or against good faith made.' 'Whether the final judgment and orders made in the absence of the Respondents should be set aside under Uniform Civil Procedure Rules 2005 r 36.16(2)(b).' "Whether the refusal to adjourn the substantive hearing because of the Respondents' legal aid position involved unfairness or justified setting aside the orders." "Whether the Respondents' non-attendance was sufficiently explained by medical evidence." "Whether the Respondents demonstrated any error, procedural unfairness, or likely different outcome concerning the Council's substantive orders and evidence."]

Ratio Decidendi

The Respondents established no irregularity, illegality, fraud or want of good faith to enliven r 36.15, and the discretion under r 36.16(2)(b) should not be exercised because the process leading to the ex parte hearing was fair, the Respondents were aware of the proceedings and given an opportunity to attend, the legal aid position did not justify adjournment in these civil proceedings, the medical material did not show inability to attend and participate in court, no procedural unfairness or material error in the substantive orders was demonstrated, and there was nothing to suggest a different result would be likely if the hearing were reopened.

Court Disposition

The Respondents' Notice of Motion dated 30 April 2015 is dismissed.

Orders

  • ["The Respondents' Notice of Motion dated 30 April 2015 is dismissed."]