Dubow v Mid-Western Regional Council

Supreme Court of NSW|2021-03-10|Before: Gleeson J, Adamson J

Solicitors: Lindsay Taylor Lawyers (Defendant) File Number(s): 2019/381044

Judgment

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.

The Council's application

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

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.
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.
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.
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.
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.
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.
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

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.
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).
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.
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. …
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].
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).
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?

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.
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.
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.
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.
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.
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.
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).

Amendment

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.
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.
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.
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

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.
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.
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.
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

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

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.
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

My conclusions may be summarised as follows.
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".
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).
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.
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

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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2021

Impounding Act 1993(NSW)

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