Dubow v Mid-Western Regional Council (No 3)

[2021] NSWCA 279

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dubow v Mid-Western Regional Council (No 3) [2021] NSWCA 279

Hearing dates:

On the papers

Decision date:

17 November 2021

Before:

Basten JA; Brereton JA

Decision:

1   Dismiss the application for leave to appeal from judgments of 16 June, 25 June and 28 July 2021 in the Common Law Division.

2   Order the applicant to pay the respondent’s costs of the application.

Catchwords:

APPEAL – application for leave to appeal – judicial review of conduct of local council – whether local council an impounding authority – powers of council officers to impound stock straying on public road – whether alpacas are stock or animals

PROCEDURE – costs – availability of gross costs order – notice of intention to make gross costs order – whether procedural unfairness

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Impounding Act 1993 (NSW)

Local Land Services Act 2013 (NSW), ss 114, 116; Pt 8

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Dubow v Mid-Western Regional Council [2019] NSWCATAD 142

Dubow v Mid-Western Regional Council [2019] NSWCATAP 242

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
Applicant self-represented
Mr S Fitzpatrick (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; [2021] NSWSC 767; [2021] NSWSC 922

Date of Decision:

16 June 2021; 25 June 2021; 28 July 2021

Before:

Adamson J

File Number(s):

2019/381044

Judgment

1. THE COURT: In 2019 the applicant, Yolande Dubow, commenced proceedings in the Common Law Division seeking declarations as to the lawfulness of the conduct of the respondent, Mid-Western Regional Council, whose officers had impounded and ultimately sold a number of alpacas, the property of the applicant, which had been found grazing along public roads. Consequential relief sought included an order to repay certain amounts levied as impounding fees. Proceedings previously commenced by her in NCAT impugning the decision of the Council had been dismissed for want of jurisdiction,^[1] and her appeal to NCAT’s appeal panel was unsuccessful. ^[2]

   1. Dubow v Mid-Western Regional Council [2019] NSWCATAD 142.

   2. Dubow v Mid-Western Regional Council [2019] NSWCATAP 242.

2. A summons seeking leave to appeal, filed on 5 August 2021, sought to challenge the principal judgment in the Common Law Division, given by Adamson J on 16 June 2021. ^[3] The applicant also sought to challenge an interlocutory decision of the trial judge made on 10 June 2021 which refused an application to adjourn the hearing of the substantive matter so as to allow the applicant to challenge a decision of a Registrar setting aside a notice to produce which she had served on the respondent. Finally, the summons sought leave to appeal from a third judgment of the trial judge, consequential upon the final relief granted by the principal judgment, ordering the applicant to pay the respondent’s costs of the…