Dubow v Mid-Western Regional Council - [2020] NSWSC 1649

Supreme Court

New South Wales

Medium Neutral Citation: Dubow v Mid-Western Regional Council [2020] NSWSC 1649
Hearing dates: 18 November 2020
Date of orders: 18 November 2020
Decision date: 18 November 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
Dismiss the notice of motion of 25 September 2020

Catchwords:
CIVIL PROCEDURE – Registrars – review of Registrar’s decision – where Registrar refused leave to issue subpoena – where no legitimate forensic purpose to issue subpoena – whether plaintiff was required to join additional parties as defendants – where parties are not necessary parties to the proceedings

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 7.3, 50.5, 59.3

Cases Cited:
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Category: Procedural and other rulings
Parties: Y. Dubow (Plaintiff)
Mid-Western Regional Council trading as Mid-Western Regional Council (Defendant)
Representation:
Counsel:
Y. Dubow (Plaintiff in person)
S. Fitzpatrick (Defendant)
Solicitors:
Self-represented (Plaintiff)
Lindsay Taylor Lawyers (Defendant)

File Number(s): 2019/381044

Extempore judgment revised

The applicant in these proceedings, who although holding legal qualifications is self-represented, commenced judicial review proceedings by summons filed on 3 December 2019 challenging the legality of administrative action taken by rangers employed by the defendant, the Mid-Western Regional Council in the impounding and subsequent sale of alpacas owned by her.
The initial summons sought to challenge a decision of the New South Wales Civil Administrative Tribunal denying jurisdiction but by the amended summons filed on 12 March 2020 it is evident that the plaintiff is seeking orders either in the nature of prerogative writs or by way of declaration concerning the legality of the council's actions. The only matter before me today for determination is the plaintiff's application for a review of a decision of the Principal Registrar denying her leave to issue a subpoena under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW).
The Principal Registrar's decision was made on 18 September 2020 and the plaintiff challenges that decision by a notice of motion filed on 25 September 2020. The defendant is represented by Mr D S Fitzpatrick of counsel who has filed written submissions. In support of her application for review, the plaintiff has read her affidavit of 27 July 2020, which was before the Principal Registrar and an affidavit of 12 October 2020 filed in support of the current notice of motion.
Although styled a review of the registrar's decision, the power of the Court is broad and involves effectively a fresh hearing in relation to the application for leave. The defendant objects to the subpoena being issued and submits that there is no legitimate forensic purpose demonstrated for the issue of the subpoena for the reasons set out in Mr Fitzpatrick's written submissions.
The proposed subpoena is directed to a firm of auctioneers who, under instructions from the council, in the purported exercise of its legal powers, sold the plaintiff's alpacas at auction. The plaintiff is seeking the names of the purchasers. From the material she has annexed to her affidavits…

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 [2020] NSWSC 1649
Case: [2020] NSWSC 1649
Decision Date: 18 November 2020

CaseChat Overview and Summary

The case of Dubow v Mid-Western Regional Council was heard in the Queensland District Court. The plaintiff, Dubow, sought to subpoena additional documents from the defendant, Mid-Western Regional Council, in an attempt to bolster their case. The defendant opposed the subpoena, arguing that the documents were not relevant and that the plaintiff had failed to join necessary parties as defendants. The Registrar initially refused the plaintiff's application for leave to issue the subpoena, finding that there was no legitimate forensic purpose to do so. The plaintiff sought a review of the Registrar's decision, arguing that the Registrar had erred in law and should have granted leave to issue the subpoena.

The central legal issues before the court were whether the Registrar had correctly exercised their discretion in refusing the plaintiff's application for leave to issue the subpoena and whether the plaintiff was required to join additional parties as defendants. The court needed to determine whether the plaintiff's failure to join certain parties as defendants was a bar to them seeking the documents through subpoena. The court also needed to consider whether the plaintiff had demonstrated a legitimate forensic purpose for the issuance of the subpoena.

The court held that the Registrar's decision was correct and that the plaintiff had not demonstrated a legitimate forensic purpose for the issuance of the subpoena. The court found that the documents sought by the plaintiff were not relevant to the issues in the case and that the plaintiff had failed to join necessary parties as defendants. The court held that the plaintiff's failure to join certain parties as defendants was a bar to them seeking the documents through subpoena. The court concluded that the plaintiff had not demonstrated that the additional parties were necessary parties to the proceedings and that the plaintiff's application for leave to issue the subpoena should be refused. The court dismissed the plaintiff's application for review of the Registrar's decision.

The court found in favour of the defendant and dismissed the plaintiff's application for leave to issue the subpoena. The court held that the plaintiff had not demonstrated a legitimate forensic purpose for the issuance of the subpoena and that the plaintiff's failure to join certain parties as defendants was a bar to them seeking the documents through subpoena. The court also held that the plaintiff had not demonstrated that the additional parties were necessary parties to the proceedings. The court dismissed the plaintiff's application for review of the Registrar's decision and upheld the Registrar's decision to refuse the plaintiff's application for leave to issue the subpoena.

Orders