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 trial in a sum of $70,000.

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

3. The respondent opposed a grant of leave in respect of each matter, but consented to the leave application being dealt with separately and without a hearing. The Court is dealing with the matters on that basis.

4. By way of introduction, it is by no means clear why the applicant commenced in the supervisory jurisdiction of the Court to review, pursuant to s 69 of the Supreme Court Act 1970 (NSW), “decisions” made by Council officers. It is apparent that the applicant has commenced numerous proceedings in different tribunals, however, the present proceeding could have been brought as a claim in tort for trespass to property, in the District Court or, given the value of the property, in the Local Court. Such a course might have had a benefit for the applicant in that her ownership of the alpacas was not in question and their seizure would have required justification by the respondent. Nor was there any benefit by way of expedition achieved by filing in the Supreme Court: although proceedings were commenced in late 2019, the hearing was not conducted until 10 June 2021. There had been numerous interlocutory skirmishes in the meantime, although none resulted in the filing of a statement of claim. Had the proceedings sought injunctive relief, proceeding in the Supreme Court would have been explicable, but the proceedings, at least in their amended form, post-dated the sale of the alpacas. (In fact the applicant appears to have commenced two proceedings in the Mudgee Local Court, but the relief sought and outcomes are not revealed.)

5. Although this point was not taken by the respondent (at any stage) the lack of the procedural steps which might have been taken in the course of a common law claim in tort may account in part for the belated issue of a notice to produce, served after the matter had been listed for hearing, and which gave rise to the adjournment application before the trial judge on 10 June 2021.

Principal judgment

6. It is convenient first to deal with the claim for leave to appeal from the principal judgment, delivered six days after the hearing on 10 June, namely on 16 June 2021. The main grounds identified in the draft notice of appeal relied on two propositions, said not to have been addressed by the trial judge, namely that (i) the respondent’s impounding officers had no authority to impound her alpacas, and (ii) alpacas are not animals for the purposes of the Impounding Act 1993 (NSW). On 2 May 2019, having found the animals (not for the first time) unattended on a public road, Council officers impounded seven animals, exercising authority under s 116(3) of the Local Land Services Act 2013 (NSW). Three further animals were impounded in February 2020.

7. After setting out some uncontroversial background, the judge identified the first three issues sought to be raised by the applicant in her Further Amended Summons (Judicial Review) in the following terms:

“(1)   alpacas are not ‘stock’ or ‘animals’ within the meaning of the Impounding Act (ground 1);

(2)   the defendant is not an ‘impounding authority’ within the meaning of the Local Land Services Act (ground 2);

(3)   the officers who purported to impound her alpacas on 2 May 2019 and 18 February 2020 were not ‘impounding officers’ within the meaning of the Local Land Services Act (ground 2)”.

8. Each of these issues was addressed in the judgment at [41]-[45].

9. As noted above, the impounding officers identified as their source of authority s 116(3) of the Local Land Services Act. That section is one of four sections appearing in Pt 8 of the Local Land Services Act, which is headed “Impounding of unattended and trespassing stock and abandoned articles”. The first, s 114, reads as follows:

114   Definitions

(1)   In this Part—

stock includes pig and deer.

(2)   If an expression is defined in the Impounding Act 1993 and is also used in this Part, the expression as used in this Part has, unless the contrary intention appears, the same meaning as in that Act.

Note—

Expressions used include—

impounding authority, which is defined to include Local Land Services.

unattended which is defined, in relation to an animal, to include abandoned or straying.

10. Section 116(3) provides:

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

…

(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.

11. An “impounding authority” is defined in the Dictionary to the Impounding Act by reference to a list of authorities, including “a council”. The term “council” is itself defined to mean a council under the Local Government Act 1993 (NSW). There was no dispute that the respondent was a council under that Act.

12. The Dictionary to the Impounding Act defines an “impounding officer” as “a person appointed by an impounding authority to exercise the powers of an impounding officer.” The reasoning of the primary judge referred to these definitions, which provided the relevant authority to the Council officers. The challenge proposed in the applicant’s summary of argument to these conclusions relied upon the definition in the Local Land Services Act of “authorising authority”. The submissions stated that the respondent is not an authorising authority under that Act. That may be so, but s 116(3) confers power on an “impounding officer” and an impounding officer is an officer appointed by an “impounding authority”, not an “authorising authority”. The challenge was misconceived.

13. Proposed ground 2 included the statement that alpacas are not “animals” under the Impounding Act. Even if that be so, the power conferred under s 116(3) of the Local Land Services Act is to impound “any stock” suspected of being on a public road under the circumstances identified in s 116(1). Alpacas are expressly included with the definition of “stock” in the Dictionary to the Local Land Services Act. While the definition in Pt 8 states that “stock includes pig and deer”, the effect of that inclusive definition is not to exclude other animals identified in the Dictionary. (As “pigs” and “deer” are both contained in the definition in the Dictionary, the purpose of s 114(1) is obscure, but nothing turns on that for present purposes.) To the extent that s 114(2) purports to pick up definitions from the Impounding Act, the fact that there is an express (and expansive) definition of “stock” in the Dictionary to the Local Land Services Act indicates a contrary intention for the purposes of s 116 of the latter Act.

14. There is no tenable argument that the judge was in error in concluding that alpacas were stock for the purposes of s 116(3) of the Local Land Services Act. Ground 2 was not tenable.

15. Ground 5 challenged the finding that the alpacas were sold at a public auction. Before the trial judge, the applicant submitted that the auction was not “public” because she was barred from entry. The trial judge reasoned that the auction did not cease to be public for that reason, so long as potential purchasers knew of the auction and could bid at it. The judge continued:

“[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 applicant’s summary of argument provided no reason for doubting the correctness of that passage. (Indeed, it provided no argument in support of ground 5.)

16. For these reasons, there is no basis for granting leave to appeal with respect to the principal judgment.

Refusal of adjournment

17. Secondly, the applicant sought to challenge the refusal of the adjournment at the commencement of the hearing on 10 June, which had been sought on the basis that she had had no proper opportunity to challenge the decision of the Registrar to set aside her notice to produce, issued to the respondent. That, it was submitted, constituted a denial of procedural fairness.

18. The reasons given by the primary judge for refusing the adjournment focused on two matters. The first was that the proceedings had been on foot since 3 December 2019 and had, on 12 April 2021 been given a hearing date of 10 June 2021. Directions had been given on that day for the filing of further evidence and submissions. Whether those directions included the serving of notices to produce is not known. But the filing of a notice to produce on 10 May, one month before the hearing was due, where there was no consent to the motion and steps were taken reasonably promptly to set it aside, suggested that the relevant steps should have been taken earlier. However, that was not the dispositive factor in the judge’s reasoning, rather it was that the documents sought related to “fees paid or required to be paid by the [applicant] in relation to all alpacas alleged to belong to [her] … from January 2017 to June 2020”. As there was no challenge in the further amended summons to the calculation of the fees, the judge understandably said the relevance of the documents was not immediately apparent. In any event, she accepted they related to the question of relief, on the basis that unlawfulness of the respondent’s conduct was established. The judge granted leave to the applicant to apply to revisit the question if the issue of restitution arose. The judge appropriately referred to the requirement of s 56 of the Civil Procedure Act 2005 (NSW) that the court have regard to the principal object of the Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The adjournment application was refused.

19. This Court would not grant leave to appeal from a discretionary interlocutory judgment involving a matter of practice and procedure in the absence of some discernible issue of principle clearly suggesting that the order made was wrong. There is no such issue of principle in the present case, nor is there any basis to think that the refusal of the adjournment was other than a correct exercise of the Court’s discretion. The suggestion in the summary of argument that the order “tends to a predisposition of prejudgment against the applicant” was without foundation. Leave to appeal from that judgment should be refused.

Gross sum costs order

20. The third judgment sought to be challenged was the judgment of 28 July 2021 which resulted in a gross sum costs order. ^[4] The order was consequential upon an order for costs in favour of the respondent made on 25 June 2021. ^[5] In fact, the judge first ordered costs against the applicant in her judgment of 16 June 2021, on the basis that costs should follow the event. That order was unremarkable, but the applicant was given an opportunity to seek a different order, which she did. The judgment of 25 June identified six grounds on which the usual rule was sought to be displaced. Each ground was addressed and dismissed for entirely conventional reasons. The judgment concluded with the following observation:

“[14] One of the plaintiff’s objections to a costs order being made against her is that the assessment of costs and further enforcement proceedings will ‘wast[e] further public monies’ and that the Council’s victory will be ‘pyrrhic’. While these matters do not provide a proper basis for a costs order not being made, they may warrant an application for an order that the costs be paid in a gross sum pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). If the Council wishes to apply for such an order, it may apply to my Associate for that purpose.”

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

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

21. Proposed ground 6 challenged that reasoning on the basis that neither party had requested the judge to take that step and that the appellant was only given an opportunity to address “as an afterthought (on the 22nd of July) a month thereafter.” It is true that no directions were given on 25 June as to what would happen if the Council made the application for which an opportunity was given with a limit of 14 days. The judgment of 28 July 2021 noted:

“[2]   On 8 July 2021, the Council applied for an order that its costs be paid in a gross sum of $80,000 and supported its application with an affidavit of Anna Sinclair, the Council’s solicitor, affirmed on 8 July 2021. I directed that Yolande Dubow (the plaintiff) provide any submissions or evidence in response by 4pm on 23 July 2021. No submissions or evidence were received from the plaintiff in opposition to the Council’s application.”

22. The applicant alleged that the opportunity to respond by 4pm on July 23 was not received until 22 July. The applicant annexed email exchanges between the parties and the judge’s associate to support that contention, from which the following appears. On 8 July the respondent sent, by email to the judge’s chambers, copied to the applicant, a notice of motion (which, because it had not been filed, would not have had a return date) seeking a gross sum costs order, and supporting affidavit. The judge’s associate acknowledged receipt of it on 9 July. On 22 July, at 1.13pm, the judge’s associate sent an email to the applicant, stating:

“I refer to the application made by the defendant for a lump sum costs order (copied below).

I note that you have not responded.

Would you please provide any submission in response to the defendant’s application by 4pm tomorrow, 23 July 2021.”

23. The applicant responded by email on the same day, 22 July, as follows:

“Dear Associate,

I have not been requested to respond, until now;

I have organised plans this afternoon and tomorrow morning, involving trucks and removalists.

As my submissions are usually disregarded, and less than 30 hours notice has been given, I will add the order made in any short term to the Grounds of Appeal”.

24. After a further five days had elapsed, on 27 July, the judge’s associate sent to the applicant a further email stating:

“As you have not provided any material in response to the application by the defendant, her Honour will determine the matter on the basis of the defendant’s evidence and submissions without further recourse to you.”

25. Although in circumstances where the motion had no return date and no earlier direction had been made, the request made on 22 July for a response by the next day was peremptorily short, and might had it stood alone have been productive of injustice, the applicant’s response did not seek an extension of that time but conveyed, by the phrase “as my submissions are usually disregarded”, that she did not intend to make submissions. In those circumstances, the judge was entitled to indicate, five days later, in the absence of any further communication from the applicant, that the matter would be determined without further recourse to her. Those circumstances do not provide any basis for granting leave to appeal with respect to the order for gross sum costs.

26. Further grounds of appeal suggested that there were “pejorative” comments in the judgment of 28 July 2021 and raised disputes as to particular facts set out in the judgment. Contrary to the applicant’s submission, the discretion to make a gross sum order is not confined by any presumption in favour of assessment of costs. These grounds also provide no basis for a grant of leave to appeal from the costs order.

Conclusions

27. The application for leave to appeal from the three judgments in the Common Law Division should be refused. The applicant must pay the respondent’s costs of the application in this Court.

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Endnotes

Decision last updated: 17 November 2021