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

1. 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 judicial review of decisions of the Council in 2019 to impound and sell seven alpacas owned by Ms Dubow. Ms Dubow seeks leave to amend her amended summons filed 12 March 2020 and an extension of time for commencement of the new claims for relief.

Background

2. The background to the matter has a degree of procedural complexity to which some reference is necessary.

3. In December 2018, March and April 2019, Council officers impounded seven alpacas owned by Ms Dubow, which were ultimately returned by the Council as part of the terms of settlement dated 8 January 2019 of proceedings brought by Ms Dubow in the Local Court at Mudgee (2018/319098) for unlawful impounding of alpacas.

4. On 2 May 2019, seven alpacas owned by Ms Dubow were impounded by Council officers at the corner of Sonny’s Lane and Spring Flat Lane, Spring Flat, relying on the power conferred by s 116 of the Local Land Services Act 2013 (NSW). The Council says that the impounding was permitted under s 116(1) and (3) of the Local Land Services Act, since the alpacas had been located unattended on a public road, and no authority had been conferred by a stock permit or under any law for Ms Dubow’s alpacas to be on a public road.

5. Section 116 of the Local Land Services Act provides:

116   Offence of causing or permitting stock to be on a public road, travelling stock reserve or public land without authority

(1)   If stock (whether attended or unattended) are on a public road, travelling stock reserve or other public land except in accordance with the authority conferred by (and in accordance with any conditions of) a stock permit or by or under any law the owner of the stock, and the person in charge of the stock (if not the owner), are each guilty of an offence.

Maximum penalty—50 penalty units.

….

(3) An impounding officer may impound any stock the impounding officer suspects to be on a public road, travelling stock reserve or other public land in contravention of this section in the same way that the impounding officer may impound an animal under section 9 of the Impounding Act 1993.

6. The Dictionary to the Local Land Services Act defines “stock” to include alpacas.

7. Section 115 of the Local Land Services Act provides:

115 Unattended stock

Stock are not unattended for the purposes of sections 9(2)(d) and 32(3)(d) of the Impounding Act 1993 if the stock are unattended on a road or travelling stock reserve —

(a)   in accordance with the authority conferred by (and any conditions of) a stock permit, or

…

8. Section 9(1) of the Impounding Act 1993 (NSW) provides:

9 Animals unattended in public places can be impounded

(1)   An impounding officer may impound an animal that is in a public place in the area of operations of the officer if the officer believes on reasonable grounds that the animal is unattended.

…

9. The authority of an impounding officer is dealt with in s 42(1) of the Impounding Act, which provides:

42 Impounding officers must have written authorisation

(1)   An impounding officer is not authorised to impound except when in possession of a written authorisation issued by the impounding authority. This does not apply to a police officer.

10. The expression “impounding authority” is defined in the Dictionary to the Impounding Act as a specified authority, which includes a council.

11. Section 24 of the Impounding Act provides that an impounding authority must cause an impounded item to be offered for sale if the item is not released before the deadline for release (which in the case of an impounded animal is seven days from the day on which notice was given to the owner of the animal under s 20 or, if reasonable enquiries by the impounding authority concerned have failed to reveal the name and address of the owner, seven days from the day on which those enquiries were completed). The sale is to be by public auction or public tender.

12. On 8 August 2019, Ms Dubow sought a fee waiver from the Registrar of this Court with respect to proposed proceedings to prohibit the sale of the seven alpacas. It seems that this application was not granted. Ms Dubow says that by December 2019 she had enough savings and a gift from her brother to pay the filing fee.

13. On 29 August 2019, the Council sold the seven alpacas at auction after impounding fees and charges were not paid by Ms Dubow.

14. Ms Dubow brought various proceedings in the NSW Civil and Administrative Tribunal (the Tribunal) in 2018 and 2019 seeking to review the Council’s decisions in 2018 and 2019, including on 2 May 2019 and 29 August 2019.

15. On 23 July 2019, Senior Member Molony found that the Tribunal did not have jurisdiction to review the Council’s decisions: Dubow v Mid-Western Regional Council [2019] NSWCATAD 142. On 2 October 2019, an appeal panel of the Administrative and Equal Opportunity Division of the Tribunal dismissed an appeal from the Member’s decision: Dubow v Mid-Western Regional Council [2019] NSWCATAP 242.

16. In this Court, Ms Dubow’s initial summons filed 3 December 2019 sought to appeal the Tribunal’s decision denying jurisdiction, but her amended summons filed 12 March 2020 claims relief under ss 69 and 75 of the Supreme Court Act 1970 (NSW) by way of judicial review of decisions of the Council to impound the seven alpacas on 2 May 2019 and to sell the alpacas on 29 August 2019.

17. After the commencement of these proceedings, Council officers impounded a further three alpacas owned by Ms Dubow on 18 February 2020, which were sold at auction by the Council on 25 March 2020 after fees and charges had not been paid by Ms Dubow.

The Council’s application

18. By notice of motion filed 14 May 2020, the Council seeks dismissal of Ms Dubow’s proceedings on two grounds.

19. First, that summary dismissal is appropriate under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4 because the amended summons discloses no reasonable cause of action.

20. Second, the proceedings seeking judicial review were commenced out of time under UCPR, r 59.10 and no extension of time should be granted.

Summary dismissal

21. The power to dismiss proceedings without a final hearing is only appropriately exercised where the plaintiff’s claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69.

22. The Court may receive evidence on an application for summary dismissal: UCPR, r 13.14(2). In the present case, the Council relied upon affidavits from Mr Timothy Johnston and Mr Carlo Zoppo, as establishing the delegated authority of the Council officers, Mr Michael Best and Mr Kieren Norris, as impounding officers, to impound the seven alpacas on 2 May 2019, which were said to have been located on a public road. The Council also relied upon affidavits from Mr Best and Mr Norris.

23. Ms Dubow says that the proceedings raise legal and factual issues that should be determined at a final hearing. These include: (a) whether the impounding officers had authority to impound the seven alpacas under s 116(3) of the Local Land Services Act; Ms Dubow says that the delegated authorities held by Mr Best and Mr Norris do not include the Local Land Services Act, (b) whether the alpacas were located on a public road; Ms Dubow says that “Sonny’s Lane” is not a public road and that “Spring Flat Lane” does not exist, and (c) even if the impounding decision is valid, the sale of the seven alpacas by the Council was without power. This contention rests on the absence of any express power of sale conferred on the Council by the Local Land Services Act.

24. As to (a), the Council says the absence of express reference in the delegated authorities of Mr Best and Mr Norris to the Local Land Services Act is readily explicable given that the delegated authorities include the exercise of power under the Impounding Act and s 114(2) of the Local Land Services Act picks up the definition of “impounding officer” and “impounding authority” in the Impounding Act for the purposes of s 116(3) of the Local Land Services Act.

25. As to (b), the Council relies upon the affidavit evidence of Mr Best and Mr Norris that the alpacas were located unattended on a public road.

26. As to (c), the Council accepted that the Local Land Services Act does not make express provision for how an impounding officer is to handle, dispose of or sell stock once it has been impounded under s 116 of that Act. The Council says that the reference in s 116(3) to impounding under the Local Land Services Act “in the same way that the impounding officer may impound an animal under s 9 of the Impounding Act” should be construed to pick up the provisions of the Impounding Act relating to how the Council, as an impounding authority, can deal with animals after they have been impounded under that Act. Relevantly, the Council points to the power of sale conferred by s 24 of the Impounding Act.

27. I am not persuaded that this is an appropriate case in which to order summary dismissal of Ms Dubow’s proceedings seeking judicial review. Notwithstanding the force of the Council’s argument on the authority question, there is at least a triable issue on the contested factual question of whether the alpacas were located on a public road. In addition, there is a legal question as to the power of the Council to sell the seven alpacas. The proper construction of s 116(3) of the Local Land Services Act turns on the text, context and purpose of that provision which, without expressing any view either way, gives rise to a contestable argument which is inappropriate to be dealt with on a summary basis.

Extension of time for judicial review proceedings

28. Alternatively, the Council seeks the determination as a separate question of whether Ms Dubow should be granted an extension of time to commence these proceedings seeking judicial review. The power to determine a separate question arises under UCPR, r 28.2.

29. UCPR, r 59.10(1) provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision. The court may, at any time, extend the time for commencing proceedings fixed by sub-rule (1): r 59.10(2).

30. The Council contends that the judicial review proceedings were commenced by Ms Dubow out of time, being more than three months after the date of the relevant decision(s) of the Council the subject of challenge. That can be accepted in relation to the impounding and sale of the seven alpacas on 2 May 2019 and 29 August 2019 respectively. The Council further contends that an extension of time should not be granted.

31. UCPR, r 59.10(3) provides:

59.10 Time for commencing proceedings

…

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following –

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

…

32. The considerations listed in r 59.10(3) are inclusive, rather than proscriptively exhaustive as to the grant of an extension of time: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9]. Other relevant considerations include: (1) the length of the delay, (2) the reason for the delay, and (3) the apparent substance of the plaintiff’s claim (at least in relation to its apparent arguability): Dyason v Butterworth [2015] NSWCA 52 at [65], referring to Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].

33. The discretionary power to extend time gives rise to the need for a factual inquiry involving some or all of the matters in subrule (3) and the type of matters identified in Dyason v Butterworth. Whilst there may be cases where those matters can be considered in advance of a final hearing, ordinarily those matters are not appropriately considered other than at a final hearing: Cudgegong Australia Pty Ltd v Transport for NSW [2018] NSWSC 929 at [93] (Davies J).

34. In the present case, it is inappropriate to decide the question of an extension of time in advance of the final hearing given the potential complexity of factors relevant to the exercise of the discretion, including the adequacy of Ms Dubow’s explanation for the delay (which is to be inferred from her affidavit evidence detailing the other forms of relief sought before the Tribunal before commencing proceedings in this Court), and her difficulty in obtaining the money required for the filing fee. It is also inappropriate on an interlocutory application to attempt to predict the likely outcome of the proceedings given the triable issues identified above when refusing the application for summary judgment.

Whether amended summons manifestly faulty?

35. The Council also contends that the amended summons is manifestly faulty for a number of reasons. Subject to one matter, there is force in these submissions.

36. First, UCPR, r 59.4(b)(ii) and (c) require that the summons seeking judicial review must state “the terms of the decision to be reviewed” and “with specificity, the grounds on which relief is sought”. The amended summons does not comply with these requirements.

37. Second, the Council contends that the amended summons does not comply with UCPR, r 6.12(2) as the relief claimed requires a determination or direction of the Court on a question, but the summons does not state the question. I am not persuaded that this rule applies to judicial review proceedings.

38. Third, the Council draws attention to par [2] of the amended summons which seeks relief pursuant to s 93 of the Civil Procedure Act 2005 (NSW). As the Council points out, s 93 applies in “proceedings for the detention of goods”, but orders under that provision are not available in judicial review proceedings. That complaint is well-made. The claim for relief in par [2] of the amended summons should be struck out.

39. Fourth, the Council draws attention to pars [5] and [9] of the amended summons. Those paragraphs suggest that these proceedings constitute some form of review of decisions of the Tribunal, which is inconsistent with the relief claimed in the summons at pars [1] and [4]. Again, that complaint is well-made; Ms Dubow abandoned her claim to seek judicial review of decisions of the Tribunal when she filed her amended summons. The claims for relief in pars [5] and [9] (insofar as they refer to decisions of the Tribunal) of the amended summons should be struck out.

40. Fifth, the Council noted that the amended summons in par [6] makes no claim for relief and simply refers to terms of settlement in the Mudgee Local Court dated 8 January 2020 (see [3] above) as giving rise to an issue estoppel on both the impounding and sale of the alpacas by the Council. As presently expressed, par [6] makes no claim for relief by way of judicial review and should also be struck out.

41. Notwithstanding the apparent difficulties faced by Ms Dubow as a self-represented litigant in framing her claim for judicial review, both the Council and the Court are entitled to a proper articulation of the basis of her claims for relief. This is required to ensure the “just, quick and cheap” determination of the real issues in dispute: Civil Procedure Act, s 56. A direction will be made that a further amended summons be filed and served in the terms of Form 85 complying with the requirements of UCPR, rr 59.4(b)(ii) and (c).

Ms Dubow’s application

Amendment

42. Ms Dubow seeks leave to amend the amended summons to include a new claim for judicial review in relation to the impounding and sale of three alpacas in February and March 2020 respectively, together with an extension of time as may be necessary to commence such claim.

43. Like the existing amended summons, the form of the proposed amendments in pars [1] and [2] of the motion filed 23 May 2020 fail to state “the terms of the decision to be reviewed” or “with specificity, the grounds on which the relief is sought” as required by UCPR, r 59.4(b)(ii) and (c). Any grant of leave to amend should be subject to a condition requiring compliance with these rules of court.

44. In opposing the grant of leave, the Council says that if the amended summons is not dismissed there is no need to allow the proposed amendments which will raise the same issues as the impounding and sale of the seven alpacas in 2019. I do not agree. There is at least one difference and that relates to the location of the impounding of the alpacas in 2020, which was different to the impounding in 2019. Thus, there is an additional question as to whether this location was a public road.

45. Leave to amend, including an application for an extension of time, should be given on the conditions referred to at [43] above.

Notice to purchasers

46. Ms Dubow seeks an order that the persons who purchased the ten alpacas from the Council be put on notice by the Council that their ownership may not be valid.

47. This claim for relief directs attention to UCPR, r 59.3(2), which relevantly provides:

If a decision to be reviewed arose in the course of a dispute between parties, each party who was interested in maintaining the decision must be joined as a defendant.

48. The position of the purchasers of the ten alpacas was considered by Campbell J when dismissing an application by Ms Dubow to review a decision of the Registrar refusing leave to issue subpoenas to a firm of auctioneers with a view to obtaining the names of the purchasers. Campbell J said, “the decision made by Council officers to impound and subsequently sell the alpacas did not arise in the course of the dispute with any other parties”: Dubow v Mid-Western Regional Council [2020] NSWSC 1649 at [7]. I agree.

49. The subsequent purchasers of the alpacas are not necessary parties to these proceedings. Nor is it necessary that the purchasers be given notice of the proceedings.

Other matters

50. Ms Dubow did not press the relief sought in pars [4], [6] and [7] of her notice of motion.

51. Ms Dubow made an oral application during the hearing for an order pursuant to UCPR, r 7.36(1) to refer her to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. I refused that application. An earlier order to this effect was made by Walton J on 7 July 2020. There was no evidence before the Court as to what occurred thereafter. It is not appropriate for the Court to make a further referral for pro bono legal assistance in the absence of an explanation as to whether Ms Dubow took up the previous referral, and why a further referral is said to be necessary.

Case management

52. It has been 16 months since the commencement of these proceedings. Ms Dubow says that her evidence is complete. The Council says that its evidence is complete, other than in relation to the challenge to the Council’s decisions in 2020 the subject of the grant of leave to Ms Dubow to file a further amended summons.

53. Rather than return the matter to the Registrar’s list, the appropriate course is to stand over the proceedings before the Judge administering the Administrative Law List on a date in the near future, after the time has expired for Ms Dubow to take up the opportunity to file a further amended summons. On that occasion, the Council should be in a position to inform the Court when it will be in a position to file and serve its evidence addressing the challenge to the Council’s decisions in 2020, so that directions may be made in that regard, with a view to the matter being given a hearing date as soon as practicable thereafter.

Conclusion

54. My conclusions may be summarised as follows.

55. First, this is not an appropriate case for summary dismissal of the plaintiff’s claims for relief by way of judicial review. Nevertheless, some of the claims for relief in the amended summons filed 12 March 2020 should be struck out on the basis that they are inappropriate to be included in a claim for judicial review, namely, the claims for relief in pars [2], [5], [6] and the reference in par [9] of the amended summons to “the Administrative and Civil Tribunal decisions: or”.

56. Second, there should be a grant of leave to Ms Dubow to file and serve a further amended summons to include the claims for relief referred to in pars [1], [2] and [5] of Ms Dubow’s motion of 23 May 2020, subject to the condition indicated above that the further amended summons be in terms of Form 85 and comply with UCPR, r 59.4(b)(ii) and (c).

57. Third, the application by Ms Dubow for an extension of time to commence proceedings by way of judicial review challenging the decisions of the Council in 2019 and 2020 should not be addressed as a separate question prior to the final hearing, but should be dealt with at the final hearing.

58. Fourth, otherwise the Council’s motion and Ms Dubow’s motion are both dismissed. The costs of each motion should be the respective party’s costs in the cause.

Orders

59. I make the following orders:

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.

**********

Decision last updated: 12 March 2021