Bobolas v Waverley Council [2012] NSWCA 126

Bobolas v Waverley Council [2012] NSWCA 126

The s 124 documents were invalid because their operative provisions were expressed as a proposed order and in terms that an order would be given or would require compliance in the future. Those statements went to the heart of the documents and left recipients uncertain whether present compliance was required or whether the documents were merely warning notices. Because valid service of a s 124 order was an essential precondition to the Land and Environment Court exercising power under s 678(10), the orders made by Pain J had to be set aside and the appeal allowed.

Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Appeal From Land and Environment Court Class 4 Proceedings Concerning Enforcement of Orders Under the Local Government Act 1993 / Court of Appeal Judgment
Outcome
Appeal allowed.
Legal Topics
['validity of Local Government Act 1993 S 124 Orders' 'removal and Disposition of Waste on Residential Premises' 'land and Environment Court Powers Under Local Government Act 1993 S 678(10)' 'tutor for Person Under Legal Incapacity' 'parens Patriae Jurisdiction' 'pro Bono Costs' 'indemnity Certificate']
['local Government' 'administrative Law' 'civil Procedure' 'costs'] ['validity of Local Government Act 1993 S 124 Orders' 'removal and Disposition of Waste on Residential Premises' 'land and Environment Court Powers Under Local Government Act 1993 S 678(10)' 'tutor for Person Under Legal Incapacity' 'parens Patriae Jurisdiction' 'pro Bono Costs' 'indemnity Certificate']

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Procedural Posture

Appeal From Land and Environment Court Class 4 Proceedings Concerning Enforcement of Orders Under the Local Government Act 1993 / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the orders dated 5 March 2009 issued under s 124 of the Local Government Act 1993 were valid orders capable of founding relief under s 678(10).' 'Whether Mary Bobolas required a tutor for the appeal and whether Elena Bobolas should be authorised to act in that capacity.' 'What costs orders should be made on the appeal and in respect of the Land and Environment Court proceedings.']

Ratio Decidendi

The s 124 documents were invalid because their operative provisions were expressed as a proposed order and in terms that an order would be given or would require compliance in the future. Those statements went to the heart of the documents and left recipients uncertain whether present compliance was required or whether the documents were merely warning notices. Because valid service of a s 124 order was an essential precondition to the Land and Environment Court exercising power under s 678(10), the orders made by Pain J had to be set aside and the appeal allowed.

Court Disposition

Appeal allowed.

Orders

  • ["Authorise Elena Bobolas to act in all respects concerning the present appeal as if she had been appointed Mary Bobolas' tutor pursuant to the Uniform Civil Procedure Rules 2005, such authority to operate from the date the Notice of Appeal was filed." 'Declare that the order dated 5 March 2009 issued by the...