Dubow v Mid-Western Regional Council - [2021] NSWSC 225

Supreme Court

New South Wales

Medium Neutral Citation: Dubow v Mid-Western Regional Council [2021] NSWSC 225
Hearing dates: 10 March 2021
Date of orders: 12 March 2021
Decision date: 12 March 2021
Jurisdiction: Common Law
Before: Gleeson J
Decision:
(1)   Strike out pars [2], [5], [6] and [9] (the words “the Administrative and Civil Tribunal decisions: or”) of the amended summons filed 12 March 2020.
(2)   Otherwise dismiss the defendant’s notice of motion filed 14 May 2020.
(3)   Grant leave to the plaintiff to file and serve within 14 days a further amended summons in the terms of Form 85, by including the claims for relief in pars [1], [2] and [5] of the notice of motion dated 23 May 2020, subject to the condition that the further amended summons state with respect to each of the decisions of the defendant in 2019 and 2020 challenged by the plaintiff (a) the terms of the decision to be reviewed and (b) with specificity, the grounds on which the relief is sought.
(4)   Otherwise dismiss the plaintiff’s notice of motion dated 23 May 2020.
(5)   The costs of the defendant’s motion filed 14 May 2020 be the defendant’s costs in the cause.
(6)   The costs of the plaintiff’s motion filed 23 May 2020 be the plaintiff’s costs in the cause.
(7)   Stand over the proceedings before Adamson J on Monday, 12 April 2021 at 9:15 am, or on such other date as notified to the parties by the Court.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – where triable factual and legal questions
CIVIL PROCEDURE – application for determination of separate question – where time for judicial review expired – whether an extension of time should be determined prior to final hearing
CIVIL PROCEDURE – claim seeking judicial review of decisions by local council to impound and sell stock – application to amend amended summons – application granted on condition of compliance with UCPR, r 59.4

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 93
Impounding Act 1993 (NSW), ss 9, 20, 24, 42
Local Land Services Act 2013 (NSW), ss 114, 115, 116
Supreme Court Act 1970 (NSW), ss 69, 75
Uniform Civil Procedure Rules 2005 (NSW), rr 6.12, 7.36, 13.4, 13.14, 28.2, 59.3, 59.4, 59.10

Cases Cited:
Cudgegong Australia Pty Ltd v Transport for NSW [2018] NSWSC 929
Dyason v Butterworth [2015] NSWCA 52
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

Category: Procedural rulings
Parties: Yolande Dubow (Plaintiff)
Mid-Western Regional Council (Defendant)
Representation:
Counsel:
Y Dubow (Self-represented) (Plaintiff)
C Zoppo (Solicitor) (Defendant)
Solicitors:
Lindsay Taylor Lawyers (Defendant)

File Number(s): 2019/381044

Judgment

GLEESON J: Before the Court are two applications. The defendant, Mid-Western Regional Council (the Council), seeks dismissal of these proceedings in which the plaintiff, Ms Yolande Dubow, seeks relief by way of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dubow v Mid-Western Regional Council

Details

AGLC: Dubow v Mid-Western Regional Council [2021] NSWSC 225
Case: [2021] NSWSC 225
Decision Date: 12 March 2021

CaseChat Overview and Summary

Dubow v Mid-Western Regional Council involved the plaintiff, Mr. Dubow, contesting the decisions of the Mid-Western Regional Council to impound and subsequently sell his stock. The case was before the Supreme Court of Queensland, where the plaintiff sought judicial review of the council's actions. The dispute centred on whether the Council had the legal authority to impound and sell the plaintiff's stock under the relevant legislation, and if the procedures followed by the Council were in accordance with legal requirements.

The court was required to determine several legal issues, including whether there were any triable factual or legal questions that warranted a full trial rather than summary disposal of the case. Additionally, the court had to consider whether an extension of time for judicial review should be granted, as the statutory period for such review had expired. A further issue was whether the plaintiff's application to amend his amended summons could be entertained, and if so, under what conditions.

The court held that there were indeed triable factual and legal questions, which precluded summary disposal of the proceedings. Consequently, the case was not dismissed but instead remained for a full hearing. Regarding the extension of time for judicial review, the court ruled that this matter should be determined prior to the final hearing. The court granted the plaintiff's application to amend his amended summons, subject to compliance with rule 59.4 of the Uniform Civil Procedure Rules.

In conclusion, the court's decision preserved the plaintiff's right to a full hearing on the merits of his claims and required the Council to address the procedural and substantive legality of its actions. The court also set a procedural framework for the plaintiff's amended summons and mandated that the issue of an extension of time for judicial review be resolved before the final hearing.

Orders