Dubow v Warrumbungle Shire Council

Relevant legal principles

1. Section 124 of the LG Act provides in relation to things a council may order a person to do or refrain from doing relevantly as follows: 124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Note. This section does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act. Orders requiring that premises be used or not used in specified ways Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? …. Birds or animals kept on premises are - 18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order (a) in the case of any premises (whether or not in a catchment district) - of an inappropriate kind or number or are kept inappropriately, or Occupier of premises (b) in the case of premises in a catchment district - birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs

1. Section 180 of the LG Act provides in relation to appeals to the Court against orders: 180 Appeals concerning orders (1) A person on whom an order is served may appeal against the order to the Land and Environment Court. (2) (Repealed) (3) The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period. (4) On hearing an appeal, the Court may - (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. (5) This section does not apply in relation to order No 22A in the Table to section 124.
2. Section 18 of the Land and Environment Court Act 1979 (NSW) (LEC Act) provides relevantly in relation to the jurisdiction of the Court to hear appeals and applications under the LG Act: 18 Class 2 - local government and miscellaneous appeals and applications The Court has jurisdiction (referred to in this Act as "Class 2" of its jurisdiction) to hear and dispose of the following - (a) appeals or objections under sections 176, 177, 178, 180, 182 and 611 of the Local Government Act 1993, …
3. Section 22 of the LEC Act provides in relation to the powers of the Court: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
4. In relation to pro bono referrals, r 7.36 of the UCPR provides: 7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4) (1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (2) For the purposes of subrule (1), the court may take into account - (a) the means of the litigant, and (b) the capacity of the litigant to obtain legal assistance outside the scheme, and (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate. (2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral. (3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person. (4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel. (4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral. (5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral. (6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

Applicant

1. In support of her notice of motion, the applicant relied on: 1. an affidavit of Yolande Dubow dated 30 January 2025 (the 30 January 2025 affidavit) and Exhibits YD-A, YD-B, YD-C, YD-D YD-E and YD-F to that affidavit; 2. at the hearing on 27 February 2025, the applicant also sought to rely on her affidavit dated 9 January 2025 (the 9 January 2025 affidavit) and Exhibits YVFD-01 to YDFD-15 to that affidavit. The affidavit and exhibits were not on the Court file at the time of hearing, and were filed on 27 February 2025 after the conclusion of the hearing on that date; and 3. a statement of facts and contentions filed on 19 February 2025.
2. In the 9 January 2025 affidavit, Ms Dubow deposed to her bankruptcy, the history of her residence in the "Dunedoo Scout Hall" (which appears to the Court to refer to Lot Section 5 Deposited Plan 758364, 28 Digilah Street Dunedoo which is the subject of Order 18 (the premises)), the poultry on the premises, and her relationship with neighbours surrounding the premises.
3. In relation to her bankruptcy, Ms Dubow said that: 1. she declared herself bankrupt on 17 December 2021, and as a result, "the Livestock I had in my possession vested in the bankruptcy Trustee. I confirmed this by email dated 20 January 2022". Annexed to the 9 January 2025 affidavit is an email dated 20 January 2022 from the Australian Financial Security Authority which states "In regards to the alpacas and livestock you disclosed in your Bankruptcy Form, please note that they vest in the trustee"; and 2. she was "discharged from Bankruptcy" on 18 December 2024 and "was advised by the Australian financial Security Authority that those animals remain vested with the trustee and I am not to dispose of them".
4. In relation to the premises and the poultry on the premises, Ms Dubow said that: 1. she purchased the premises "via online auction on 7 April 2022"; 2. she had still not moved into the premises "on May 2026 [sic]" when "the Council rangers descended, along with the Town planner and a Building Certifier. The rangers said "You can't have peacocks here""; 3. she "attempt[ed] to have the chicken Coop at the Former Scout Hall heritage listed … during 2023"; 4. she "moved 4 large roosters on Saturday 4 January 2025 ... Hence the noise level has increased whilst the [chicken] community adjusts"; 5. "roosters are trained to react to predators, which council rangers sneaking into the property and the neighbours' kids screaming are assessed to be"; and 6. she would not live in Dunedoo "if it were not for the chickens and other animals I possess and maintain".
5. Ms Dubow detailed disputes with neighbours including "a threat to kill them [4 Belgian deuces roosters]'", "a female running away from my … caravan where a window was smashed with a rock", and an incident when "a male neighbours Mother kicked the privacy screens and fence onto my shoulder and severed the right rotator cuff". She deposed that she received a criminal injuries compensation claim after she "issued a private prosecution against her". During her oral submissions at the hearing on 28 February 2025, Ms Dubow clarified that this alleged incident occurred in 2023. The dates of these incidents were not otherwise specified in her 9 January 2025 affidavit. Ms Dubow deposed that she also made an apprehended violence order application and "the neighbours got one in response".
6. In relation to her employment and income, Ms Dubow deposed that she had worked as a solicitor in Port Macquarie in 2023 but had since: …been unable to obtain employment in the local area and rely on the sale of my spring stock, usually in Autumn to pay rate and other expenses. The number of animals kept is a product of my jobseeker payment and they feed themselves in sales or by provision of eggs. I attach as Exhibit YVFD-15 some receipts for sales at both Dunedoo and Ballimore auctions. Within the poultry community it is not usual to offer or obtain receipts among producers. Many of my roosters have gone to homes also within DUNEDOO. I am aware of poultry stock exceeding the number of ten in every block in town.
7. Ms Dubow said that on 16 December 2024 she collected a letter from Local Government Legal, solicitors for Council, dated 6 December 2024 and attaching Order 18.
8. The Exhibits to Ms Dubow's 9 January 2025 affidavit included: 1. an online auction listing on FirstNational Real Estate for "The Dunedoo Scout Hall" located at 28 Digilah Street; 2. an email from the Australian Financial Security Authority dated 20 January 2022; 3. a letter from Richard Wise, solicitor, to Ms Dubow, dated 24 May 2022, confirming her purchase of 28 Digilah Street; 4. an email from Ms Dubow to info@warrumbungle.nsw.gov.au dated 24 June 2022 which referred to the "numerous emails and complaints to Council this week regarding the conduct of council employees … Council do not have a right of entry"; 5. a letter from Council to Ms Dubow issuing a notice of intention to serve an order s 124 (no 18) of the LG Act dated 21 September 2022 directing Ms Dubow "not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order"; 6. three tax invoices addressed to "Yolande" dated 7 May 2023, 2 April 2023 and one undated recording the sale of poultry; 7. a tax invoice addressed to "Bidder No 347" from Ballimore Auction recording the sale of poultry; 8. a letter from Council to Ms Dubow issuing a notice of proposed service of a clean up notice under s 91 of the Protection of the Environment Operations Act 1997 (NSW), dated 9 June 2023, directing Ms Dubow to cause the removal of asbestos from the premises; 9. a letter from the Law Society of New South Wales to Ms Dubow dated 24 August 2023, which stated that her application had been referred to a solicitor at Clark Rideaux Solicitors who were "willing to assist you with telephone legal advice on a pro bono basis". In her oral submissions at the hearing on 27 February 2025, Ms Dubow indicated that this pro bono advisor was provided by the Law Society to address Council's proposed clean up notice, dated 9 June 2023, concerning the removal of asbestos from the premises; 10. a copy of Council's Order 18 dated 6 December 2024, reproduced above at [4]; and 11. a letter from Local Government Legal attaching Order 18 dated 6 December 2024.
9. In her 30 January 2025 affidavit, Ms Dubow deposed to her financial, employment, personal and medical circumstances, including that: 1. she was admitted as a solicitor of the Supreme Court of NSW on 20 December 1984 and worked at the Supreme Court and Court of Appeal, including as a legal research officer to the President of the Court of Appeal from 1998 to 2004; 2. in 2008, she commenced practice in Queensland with a private firm; 3. in 2012, she declared herself bankrupt, and again at a later date not specified following "Court of Appeal Applications"; 4. in 2022, she purchased a Scout Hall in Dunedoo; and 5. she "identified the lack of basis and possible constitutional issue…while drafting [her] Statement of Facts and Contentions" in this matter.
10. Ms Dubow exhibited to her affidavit the following documents: 1. a bank account statement for the period 2 October to 6 December 2024 and an account balance summary as at 29 January 2025; 2. a copy of notice of orders made in the matter of East Coast Law Pty Ltd v Yolande Dubow on 13 November 2024 ordering her to pay East Coast Law Pty Ltd $4,444.90; 3. a Centrelink statement for JobSeeker payment dated 29 January 2025 showing payments for the period 7 November 2024 to 29 January 2025; 4. a Council rates' instalment notice dated 20 January 2025; 5. copies of letters and emails from: 1. General Manager Central Sector, Western NSW Local Health District, dated 7 March 2024; 2. NSW Ambulance Western Sector management, dated 9 January 2025; and 3. assistant project officer, prevention and performance, professional standards branch, Fire and Rescue NSW dated 20 January 2025, in which the authors stated that they were unaware of any formal complaints made to Warrumbungle Shire Council concerning poultry.

Council

1. Council did not seek to rely on any evidence for the purpose of the hearing of the applicant's notice of motion.

Applicant's submissions

1. The applicant did not file or serve any written submissions in support of her notice of motion. In oral submissions at the hearing before me on Thursday, 27 February 2025, Ms Dubow submitted as follows:

Pro bono referral 1. Ms Dubow's employment as a solicitor in Port Macquarie during 2023 ended the same year "after there was an assault by the neighbours" as set out above at [19] and she "spiralled down into a suicidal level where the amount of paroxetine was again doubled". 2. She has not held a practising certificate since 30 June 2024. She applied for one this year but due to "the continuing issues of a criminal nature which are addressed within my affidavit of 9 January the Law Society has not provided me one". 3. Ms Dubow said that she is: old and arthritic, I have severe depression and am on medication that prevents me from having a continual train of thought for a significant period of time due to the paroxetine. Now, there's no supporting evidence of that because the medication is lodged at a pharmacy and the material provided by the doctor, I wouldn't want the council to have access to unless the Court directs me to. However, I'm in a position to advise that I was on this medication up until I resumed practice in 2023 1. The repetition in her affidavit of 9 January 2023 is "an anecdotal indication" which "somewhat supports my inability to read ten paragraphs at a time without repetition". 2. She sold her poultry at auction to pay for Council rates as "it's the only income producing activity I have without a practising certificate".

Stay of Order 18

1. In relation to the stay of Order 18, MS Dubow submitted that Order 18 concerns animals "vested in the bankruptcy trustee", and it would leave the Council "looking foolish if they remove animals that, (a) don't belong to me or they don't know what to do with". This also raises a "jurisdictional issue" as bankruptcy is in the Federal jurisdiction.
2. If the Court does not grant a stay it: just means I'll have to move more of the animals into the home. And eventually that would be detrimental to everyone because: (a) they continue to make noise; and (b) it's an unhealthy environment for both them and me.

Pro bono referral

1. In its written submissions, Council referred to r 7.33 of the UCPR which provides that legal assistance under Div 9 Pt 7 of the UCPR is not intended to be a substitute for legal aid, but its purpose is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. Rule 7.36 provides that if the Court is satisfied it is in the interests of the administration of justice it may refer a litigant to the Registrar for referral to a barrister or solicitor for legal assistance.
2. Council did not make any submission in relation to the financial situation of the applicant. In relation to the experience of the applicant as a practising solicitor, Council submitted that the applicant was admitted as a solicitor of the Supreme Court of NSW on 20 December 1984. The applicant was practising as a solicitor as late as 2023.
3. Council submitted that whilst the applicant advised that she has never worked in the Land and Environment jurisdiction, she has extensive experience of over 40 years as a solicitor in various jurisdictions. One of the considerations was submitted to be whether a litigant is otherwise unable to obtain assistance. The Land and Environment Court provides a Duty Lawyer Scheme to assist self-represented litigants. There was no evidence that the applicant had attempted to obtain assistance through this program prior to commencing these proceedings or filing this notice of motion.
4. In oral submissions in relation to the issue of whether the Court would make a referral to the Pro Bono Panel, Ms Caban for Council said: I have noted, and Ms Dubow has also confirmed that she has been admitted as a solicitor since 1984. She does have, it appears, extensive experience within a number of jurisdictions and she has articulated herself quite knowledgeable today in addressing your Honour. It would appear that she does have experience in jurisdictions and I'm not quite sure how that cannot transfer into this jurisdiction of the Land and Environment Court.
5. When I asked whether Council's position as to whether a referral should be made was "neutral", Ms Caban for Council replied "That would be correct".

Stay of Order 18

1. In relation to the stay of Order 18, Council submitted that the applicant bears the burden of persuading the Court that a stay of a development control order should be granted. [1] Whilst Council acknowledged that these proceedings are not in relation to a development control order, the same burden would apply. In determining the application for a stay, the Court may have regard to the following: [2] 1. whether the applicant has a fairly arguable case; and 2. whether a stay or conditional stay is warranted in the exercise of the Court's discretion, having regard to the balance of convenience and the competing rights of the parties.
2. Also, the power to grant a stay may be subject to conditions requiring the taking of positive action. [3] Further, Council submitted, whilst it appeared that the applicant is seeking an unconditional stay of Order 18, there was no evidence to support any such stay.
3. Orally, Ms Caban for Council submitted that she could not "see without understanding any conditions being put on the stay how that could be acceptable in the current circumstances", namely that "[i]t's quite evident there is quite a lot of noise generating from the poultry on the property, which is the main concern from the council". The Court understood this to be a reference to the highly audible level of noise generating from the poultry on the applicant's premises which was evident on the AVL connection on Thursday, 27 February 2025. Also, during the AVL connection, there appeared to be a rooster, crowing, perched on a sideboard behind the chair in which the applicant was seated.

Notice to produce

1. As noted, the applicant's notice of motion seeks an order in relation to the notice to produce dated 19 January 2025; and on 4 February 2025, the respondent Council filed a notice of motion seeking that the notice to produce be set aside pursuant to r 2.11 of the UCPR. Council's notice of motion is listed before the Registrar on 10 March 2025.
2. At the hearing before me on 27 February 2025, Ms Caban said that for Council the question of the notice to produce did not arise for determination presently.

Pro bono referral

1. I am satisfied that it is in the interests of the administration of justice to refer the applicant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to r 7.36 of the UCPR. In being so satisfied, I have taken into account the means of the applicant, the capacity of the applicant to obtain legal assistance outside the scheme, and the nature and complexity of the proceedings.
2. Ultimately, Council's position as to whether a referral should be made was "neutral".
3. I have accepted the applicant's evidence, unchallenged, that her employment as a solicitor in Port Macquarie during 2023 ended that year, and that she "spiralled down into a suicidal level where the amount of paroxetine was again doubled". I have also accepted her evidence that she has not held a practising certificate since 30 June 2023, and that she has severe depression and is on medication that prevents her having a continued train of thought for a significant period of time. This difficulty maintaining a continued train of thought did not escape the Court during the hearing on Thursday, 27 February 2025.
4. Accordingly, I will make an order pursuant to r 7.36(1) of the UCPR that the applicant is referred to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

Stay of Order

1. In Snowy Monaro Regional Council v Cmunt (No 3) at [17], Pepper J summarised the principles in relation to staying of orders pending an appeal as set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 as follows: [4] [17] The principles may be relevantly summarised as follows: (a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; (b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; (c) third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; (d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; (e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and (f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case.
2. In Malass v Strathfield Municipal Council (Malass), [5] Preston CJ of LEC cited CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [6] and the principles in relation to the staying of orders set out by Pepper J in Snowy Monaro Regional Council v Cmunt (No 3). [7] In Malass, the chief judge ordered that the development control order be partially stayed, such that certain works could be carried out, and on the condition that the applicant make and actively pursue a development application and building information certificate application.
3. In relation to the stay of the orders sought by Council on 6 December 2024, in particular Order 18 relating to the keeping of poultry on the applicant's premises, I accept Council's submission that the applicant bears the onus of persuading the Court that a stay of a development control order should be granted. Likewise, I have found that there is currently a highly audible level of noise generating from the property and I accept that this is of concern to Council.
4. However, given my findings at [41] in relation to the mental health of the applicant, I have determined that a stay of Order 18 would be appropriate pending the provision of the applicant of legal assistance. I am satisfied that the applicant has demonstrated an appropriate case to warrant the exercise of discretion in her favour. There was no evidence relied on by Council capable of establishing unfairness to any party. Further, there is a risk that the appeal would prove abortive if the applicant is successful, and a stay were not granted. In circumstances where Council has not put on any evidence in relation to the substance of Order 18, or the appeal, I am unable to make a preliminary assessment about whether the applicant has an arguable case.
5. The matter will be relisted for directions before the registrar on Monday, 31 March 2025 for the applicant to provide evidence to the Court in relation to the provision to her of legal assistance. Until then, Order 18 of the orders of Council made on 6 December 2024 pursuant to s 124 of the LGA Act is stayed.

Conclusion and orders

1. The Court makes the following orders: 1. Pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW), the applicant is referred to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 2. Order 18 of the orders of Council made on 6 December 2024 is stayed until 5pm on Monday, 7 April 2025. 3. The matter is listed for directions before the registrar on Monday, 31 March 2025.

Endnotes

1. Geo DPPB Pty Ltd v Burwood City Council [2023] NSWLEC 129 at [38] (Pritchard J); Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 at [17] (Pepper J).
2. Geo DPPB Pty Ltd v Burwood City Council [2023] NSWLEC 129 at [37] (Pritchard J).
3. Geo DPPB Pty Ltd v Burwood City Council [2023] NSWLEC 129 at [36] (Pritchard J).
4. See also Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 at [34]-[41] (Pepper J); Young v King (No 10) [2016] NSWLEC 70 at [24]-[25] (Sheahan J); and Spedding Estates Pty Ltd v Tweed Shire Council [2023] NSWLEC 14 at [85]-[86] (Pritchard J).
5. [2020] NSWLEC 168 at [42] (Preston CJ of LEC).
6. [2020] NSWLEC 11.
7. [2018] NSWLEC 175 at [17] (Pepper J). 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: 05 March 2025