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

Supreme Court New South Wales

Medium Neutral Citation: Dubow v Mid-Western Regional Council [2021] NSWSC 699 Hearing dates: 10 June 2021 Decision date: 16 June 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), extend the time within which the further amended summons is to be filed to 17 March 2021. (2) Dismiss the further amended summons filed on 17 March 2021. (3) Subject to (4) below, order the plaintiff to pay the defendant's costs of the proceedings. (4) If the plaintiff seeks an order other than the order set out in (3) above, direct her to make a written application to my Associate within seven days hereof, together with any evidence and submissions in support; and direct that the defendant respond within a further seven days, with the intention that any such application be determined on the papers. Catchwords: CIVIL PROCEDURE — Commencement of proceedings — Summons — Prejudice to defendant arising from an extension of time for filing would not be substantial — No significant delay — Time for filing the further amended summons extended pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10 ADMINISTRATIVE LAW — Judicial review — Relief sought pursuant to s 69 of the Supreme Court Act 1970 (NSW) — Whether the impounding and sale of the plaintiff's alpacas complied with the relevant statutory provisions — Alpacas located unattended on a public road, impounded, held and sold by the defendant on two occasions — Framework for the impounding, holding and sale of animals provided in the Local Land Services Act 2013 (NSW) and Impounding Act 1993 (NSW) — The defendant is an impounding authority and the defendant's officers were impounding officers who has written authority on their possession and were authorised to exercise power under s 116(3) of the Local Land Services Act 2013 (NSW) — Power to impound animals is not constrained by knowledge of the identity of the animal's owner — The impounding officer need only suspect that the animals are on a public road — Power under s 116(3) does not depend on the commencement, or result, of criminal proceedings — Proceedings in the Local Court and NCAT do not operate as an automatic injunction restraining the defendant from exercising its statutory powers against the plaintiff's alpacas — Filing a summons in this Court does not prevent the sale of the plaintiff's alpacas — Further amended summons dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 17 Impounding Act 1993 (NSW), ss 9, 20, 23, 24, 26, 42, 49 Local Government Act 1993 (NSW), ss 377, 378 Local Land Services Act 2013 (NSW), ss 114, 116 Roads Act 1993 (NSW), s 9 Supreme Court Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 42.1, 59.10 Cases Cited: George v Rockett (1990) 170 CLR 104 at 115-116; [1990] HCA 26 Mohamed v Farah [2004] NSWSC 482 Woolworths Ltd v Waverley Council [1999] NSWSC 308; (1999) 103 LGERA 227 Category: Principal judgment Parties: Yolande Dubow (Plaintiff) Mid-Western Regional Council (Defendant) Representation: Counsel: In person (Plaintiff) S Fitzpatrick (Defendant)