Dubow v Mid-Western Regional Council (No 2)

[2021] NSWCA 223

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dubow v Mid-Western Regional Council (No 2) [2021] NSWCA 223

Hearing dates:

On the papers

Decision date:

16 September 2021

Before:

Basten JA

Decision:

(1)   Refuse the application for a referral for pro bono assistance.

(2)   Note the agreement to stay the enforcement of the gross costs order pending determination of the application for leave to appeal.

(3)   Otherwise dismiss the notice of motion of 5 August 2021.

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – stay of enforcement of costs order – referral for pro bono assistance – motion dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Local Land Services Act 2013 (NSW), Pt 8

Supreme Court Act 1970 (NSW), s 69

Civil Procedure Regulation 2017 (NSW), cl 12

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Cases Cited:

Dubow v Mid-Western Regional Council [2021] NSWSC 767

Dubow v Mid-Western Regional Council 2021 NSWSC 922

Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136

Category:

Procedural rulings

Parties:

Yolande Victoria Frances Dubow (Applicant)
Mid-Western Regional Council (Respondent)

Representation:

Counsel:
Applicant self-represented
Ms A Sinclair (Solicitor) (Respondent)

Solicitors:
Applicant self-represented
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/176714

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 699

Date of Decision:

16 June 2021

Before:

Adamson J

File Number(s):

2019/381044

Judgment

1. BASTEN JA: On 16 June 2021 Adamson J gave judgment in the Common Law Division dismissing judicial review proceedings brought by the applicant, Yolande Dubow, and requiring her to pay the costs of the respondent Council. ^[1] On 28 July 2021 she ordered payment of $70,000 by way of a gross costs order. ^[2]

   1. Dubow v Mid-Western Regional Council [2021] NSWSC 699.

   2. Dubow v Mid-Western Regional Council [2021] NSWSC 922.

2. On 5 August 2021 the applicant filed a summons seeking leave to appeal from the orders made on 16 June 2021. She also filed a notice of motion seeking a number of orders. The motion came before this Court on 9 August 2021, at which stage the primary order sought was a stay of enforcement of the costs order. The respondent appeared on short notice by its solicitor, but she had not had an opportunity to obtain instructions as to the respondent’s position with respect to the stay. The motion was stood over to allow the respondent to consider the application.

3. On 16 August a stay was granted by consent.

4. On 23 August directions were given for service of submissions with respect to the remaining orders sought in the motion, together with a direction that the matter be referred to a judge in chambers for consideration of whether it could be determined on the papers.

5. Although the directions included the possibility of a reply, which was to be filed by 27 August 2021, no reply was filed. Further, the parties had indicated to the Registrar that they were content for the matter to be dealt with on the papers.

6. The material before Court relevantly included the motion filed on 5 August 2021, an affidavit of the applicant of 11 August 2021, which annexed a volume of material, including the judgment from which the appeal was sought to be brought and material relating to the applicant’s impecuniosity and personal circumstances. The Court also had submissions filed by the respondent on 24 August 2021.

7. Given the consent order staying the enforcement of the costs order pending determination of the application for leave to appeal, there are two issues which remain outstanding from the notice of motion of 5 August.

Waiver of fees

8. The first matter is an application for waiver of court fees.

9. That matter has been dealt with by the Registrar, who granted a fee waiver, subject to payment of $200. That amount has been paid. If the applicant seeks to vary that order, that step can be considered by the Court dealing with the leave application. (There is no right of appeal from the decision of the Registrar with respect to a waiver of fees.)

Pro bono referral

10. The second matter concerns an application for a referral for pro bono assistance. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1), the Court may refer a litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, if satisfied that it is in the interests of the administration of justice to do so. In considering an application for referral, the Court is empowered to take into account (a) the means of the litigant; (b) the capacity of the litigant to obtain legal assistance outside the scheme; (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate: r 7.36(2). Where a litigant has been referred for assistance in the previous three years, the court may only make a further referral if satisfied as to “special circumstances”: r 7.36(2A).

11. I note that the respondent, through its counsel, took the opportunity to file submissions in opposition to the request for pro bono assistance. As I have some doubts as to the propriety of that course, I have not taken those submissions into account.

12. Included in the material annexed to the applicant’s affidavit is a judgment of Adamson J delivered on 25 June 2021, following the costs orders made on 16 June 2021 and providing for the Council to apply for an order that costs be paid in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). In the course of that judgment^[3] Adamson J noted that the applicant had obtained an order for the grant of pro bono representation on 7 July 2020, the order being made by Walton J. Its relevance to the proceedings before Adamson J was that the applicant had relied upon that order and cl 12 of the Civil Procedure Regulation 2017 (NSW) providing for the postponement of fees payable by a pro bono party, being a party represented under a pro bono scheme administered by the Bar Association or the Law Society.

    3. Dubow v Mid-Western Regional Council [2021] NSWSC 767 at [9].

13. That submission was unsuccessful for two reasons. The first was that cl 12 of the Regulation related to filing fees and hearing fees, but did not extend to an adverse costs order requiring a party to pay the costs of legal representation of another party. Secondly, the judge noted that the applicant had not been represented under a pro bono scheme, the referral by Walton J being limited to legal advice. She had in fact represented herself during the proceedings.

14. For present purposes, the order made by Walton J engaged the requirement for special circumstances to be shown before a further referral for pro bono assistance can be made. That is because the previous order was made well within the three-year period provided by the rule, having been made on 7 July last year. The order has significance for a further reason. It is apparent that Walton J was satisfied that the applicant was then impecunious and lacked the ability to obtain legal assistance from another source. It is clear that the applicant’s financial circumstances have not improved and, having a judgment against her in the proceedings, it is also unlikely that her capacity to obtain legal assistance has improved. I am satisfied that in neither respect has the applicant’s position improved and that she satisfies criteria (a) and (b) noted above.

15. Criterion (c) is more problematic. The underlying dispute between the applicant and the respondent arose from the impounding and subsequent sale of the applicant’s alpacas. The judgment from which leave is sought to appeal was that delivered on 16 June 2021, which sought relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to the lawfulness of the impounding and eventual sale of the animals. If found to be invalid, the applicant would, on the face of it, be entitled to recover the impounding fees which had been paid to the respondent.

16. The judge set out in her reasons 15 bases upon which judicial review was sought: at [38]. She dealt with each in turn. Although there was a degree of complexity in the arguments required to be addressed, the complexity was, in part at least, an artefact of the submissions. The submissions did not so much demonstrate that there were serious legal issues in dispute, as a need for the Court to explain to the applicant why the case did not raise such issues. In any event, the proceedings to be considered for present purposes are those before this Court.

17. The draft notice of appeal set out grounds which, disregarding a request for a certificate under the Suitors’ Fund Act 1951 (NSW) and a reference to costs, were identified in seven paragraphs. Paragraphs 1 and 2 challenged the authority of the Council officers to impound the alpacas. They were directed to the judge’s application of provisions of the Impounding Act 1993 (NSW) and the Local Land Services Act 2013 (NSW). The proposed grounds alleged that the judge failed to address the definitions of “impounding authority” and “stock”: however, these were matters which the judge clearly did address. In the same category, ground 3 alleged that the judge had misread a note to Pt 8 of the Local Land Services Act. While the note was quoted in the judgment, it is by no means clear that it was relied on, or had any bearing on the outcome of the case, other than to explain the structure of the two Acts.

18. Ground 4 identified as error the judge’s refusal to adjourn an application to review a decision of the Registrar to set aside a notice to produce. In the absence of further material, neither the significance nor the strength of that ground can be assessed.

19. Ground 5 challenged the finding with respect to a complaint the applicant had made that the public auction was not public because she was barred from entry. The judge said at [60]:

“The plaintiff did not belong to the class of prospective purchasers: she was entitled to have the alpacas returned to her as long as she paid any outstanding fees associated with the impounding and holding of the alpacas. At no time was she prepared to pay the outstanding fees. In these circumstances, her exclusion from the public auction did not render it any less a public auction.”

The error in that reasoning is not self-evident.

20. Grounds 6 and 7 challenged the order of the judge providing for a costs order on a gross basis. The basis of the challenge appears to have been that the judge had proposed that costs might be dealt with on that basis, so as to avoid the incurring of further costs of assessment and concomitant delay. Accepting that the suggestion came from the judge, the course does not appear to have been opposed by the applicant and it is unclear that she suffered prejudice.

21. In short, the issues raised by the proposed appeal do not appear to be complex; they are not self-evidently of a kind which would benefit from the attention of pro bono counsel’s advice, or representation.

22. There are significant difficulties in the way of a referral for pro bono assistance. Further, there are no special circumstances which support a second referral within the three-year period. Even were these particular difficulties not decisive, the Court should not grant a referral unless affirmatively satisfied it would advance the administration of justice, for the reasons explained by Leeming JA in Neale v Commonwealth Bank of Australia Ltd. ^[4] I am not so satisfied. The application for a referral is therefore refused.

    4. [2015] NSWCA 136.

23. There being no further outstanding issues raised by the notice of motion, the notice of motion of 5 August 2021 is dismissed.

24. The Council properly engaged with the request for a stay of enforcement of the gross costs order, to which it consented. It had no further part to play with respect to the other orders. There should be no order as to the costs of the motion.

25. The Court makes the following order:

1. Refuse the application for a referral for pro bono assistance.

2. Note the agreement to stay the enforcement of the gross costs order pending determination of the application for leave to appeal.

3. Otherwise dismiss the notice of motion of 5 August 2021.

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Endnotes

Decision last updated: 16 September 2021