Denny v RSPCA NSW

[2021] NSWCA 342

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Denny v RSPCA NSW [2021] NSWCA 342

Hearing dates:

13 December 2021

Date of orders:

13 December 2021

Decision date:

13 December 2021

Before:

Brereton JA

Decision:

1. Direct that by 14 February 2022 the applicant file and serve an Amended Summons specifying each decision in respect of which judicial review is sought, and with particularity the grounds upon which judicial review is sought.

2. If the applicant does not comply with order 1, the proceedings are dismissed with costs.

3. The proceedings are otherwise adjourned to 21 February 2022 before the Registrar for further directions.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Summary disposal – Dismissal of proceedings – Want of due despatch – Multiple defaults by applicant to date – Submissions now filed and applicant not presently in default – Remaining need for proceedings to be brought into order – Orders made for filing of Amended Summons but with self-executing dismissal of application if not complied with

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Category:

Procedural rulings

Parties:

Janice Louise Denny (Applicant/Respondent on Motion)
RSPCA NSW (Respondent/Applicant on Motion)

Representation:

Counsel:
Self-represented (Applicant/Respondent on Motion)
M Higgins (Respondent/Applicant on Motion)

Solicitors:
General Counsel, RSPCA NSW (Respondent/Applicant on Motion)

File Number(s):

2021/168939

 Decision under review 

Court or tribunal:

District Court – Nowra Registry
Local Court – Bega Registry

Jurisdiction:

Common Law

Date of Decision:

26 May 2021
12 May 2021

Before:

Noman SC DCJ
Dick LCM

File Number(s):

2020/78805
2020/322001

Judgment (EX TEMPORE)

1. BRERETON JA: On 11 June 2021, the applicant Janice Louise Denny filed a Summons seeking judicial review, naming RSPCA NSW as respondent, which appears to complain of a decision of Dick LCM at Bega Local Court on 12 May 2021. On 28 June 2021, the Registrar made orders noting that the decision of the District Court of 26 May 2021 – a decision of Noman SC DCJ – was also being challenged, and joining the District Court and the Local Court as respondents. It is implicit in those orders that the Summons was regarded as impugning the decisions of both Dick LCM and Noman SC DCJ. The proceedings were stood over for further directions on 9 August 2021.

2. On 9 August 2021, the proceedings were stood over to 6 September 2021, with a direction that the applicant's submissions be filed and served by 30 August 2021. The District Court and Local Court filed submitting appearances on 2 September 2021, and the RSPCA filed an appearance on 9 September 2021.

3. The applicant did not comply with the direction of 9 August 2021, and when the proceedings came before the Court on 6 September 2021 she was directed to file and serve her submissions by 13 September 2021, or alternatively file an affidavit outlining why the proceedings ought not be dismissed for want of due despatch. The proceedings were adjourned to 20 September 2021.

4. The applicant did not comply with the direction to file her submissions by 13 September 2021, and on 20 September 2021 the Registrar directed that she file and serve her submissions by 23 September 2021. The show cause question was adjourned to 27 September 2021.

5. The applicant did not comply with the direction of 20 September 2021, and when the proceedings came before the Court on 27 September 2021 it was noted that she asserted that an appeal had been made to the Legal Aid Review Committee. The proceedings were adjourned to 10 November 2021.

6. On 10 November 2021, it was noted that the applicant intended to lodge an appeal to the Legal Aid Review Committee, and the proceedings were adjourned to 24 November 2021.

7. On 24 November 2021, the proceedings were listed today (13 December 2021) for the applicant to show cause why the Summons ought not be dismissed for want of due despatch. A direction was made for the applicant's submissions to be filed and served by 8 December 2021, and if those submissions were not served by 8 December 2021 for the applicant to file and serve an affidavit outlining why the Summons ought not be dismissed.

8. The applicant lodged submissions, on a date which is not immediately apparent, but not later than 10 December 2021. Although the respondent complains that those submissions do not address the issues raised by the present Summons seeking judicial review, but instead complain about other decisions, the fact remains – as it seems to me – that the applicant has filed submissions in compliance with direction (3) of 24 November 2021, and cannot now be said to be in default in that respect.

9. The respondent filed a Notice of Motion dated 24 November 2021 seeking orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 12.7, that the proceedings be dismissed. UCPR, r 12.7, provides for the dismissal of proceedings for want of due despatch. Supreme Court Act1970 (NSW), s 46(1)(b), empowers a single judge of appeal to dismiss an appeal for want of prosecution.

10. The respondent's written submissions, however, adopt a wider ambit than an application for dismissal for want of prosecution. They submit, for example, that the same result could be reached by refusing leave to appeal. That may be, but by s 46(3) a single of judge of appeal is expressly not authorised to refuse leave to appeal.

11. Given the manner in which this application has come before the Court, it seems to me that I should limit my consideration to whether the proceedings should be dismissed for want of prosecution. In circumstances where the applicant is no longer in default of the relevant directions, it seems to me that it would be inappropriate to do so. However, it is also appropriate to bring the proceedings into some form of order, by requiring the filing of an Amended Summons which clearly specifies what decisions are the subject of the application for review, and with particularity the grounds upon which the application is made. The Court will then be in a position, which it is not now, to determine whether the proceedings involve arguable grounds of appeal.

12. Given the timeframe that she has indicated today, I propose to allow the applicant until mid-February to do this. Because of the defaults that have taken place to date, the applicant is not entitled to extensive indulgence in this respect, and I propose to make a self-executing order, so that the proceedings will be dismissed if the applicant does not comply with the directions I am about to make.

13. The orders of the Court are as follows:

1. Direct that by 14 February 2022 the applicant file and serve an Amended Summons specifying each decision in respect of which judicial review is sought, and with particularity the grounds upon which judicial review is sought.

2. If the applicant does not comply with order 1, the proceedings are dismissed with costs.

3. The proceedings are otherwise adjourned to 21 February 2022 before the Registrar for further directions.

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Decision last updated: 31 January 2022