Dubow v Mid-Western Regional Council [2021] NSWSC 225

Dubow v Mid-Western Regional Council [2021] NSWSC 225

Summary dismissal was refused because there was at least a triable factual issue about whether the alpacas were located on a public road and a contestable legal issue about the Council's power to sell stock impounded under s 116(3) of the Local Land Services Act 2013 (NSW). The extension of time issue should not be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 March 2021
Procedural Posture
Judicial Review Proceedings Concerning Local Council Decisions to Impound and Sell Alpacas / Interlocutory Applications: Defendant's Notice of Motion for Dismissal or Separate Question; Plaintiff's Notice of Motion for Leave to Amend and Extension of Time
Outcome
Defendant's motion otherwise dismissed; plaintiff granted conditional leave to file a further amended summons; plaintiff's motion otherwise dismissed; specified paragraphs of the amended summons struck out; costs of each motion to be costs in the cause.
Legal Topics
['summary Dismissal' 'judicial Review Time Limits' 'extension of Time' 'separate Question' 'amendment of Summons' 'impounding and Sale of Stock' 'ucpr R 59.4 Compliance']
['civil Procedure' 'administrative Law' 'local Government' 'impounding of Animals'] ['summary Dismissal' 'judicial Review Time Limits' 'extension of Time' 'separate Question' 'amendment of Summons' 'impounding and Sale of Stock' 'ucpr R 59.4 Compliance']

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Procedural Posture

Judicial Review Proceedings Concerning Local Council Decisions to Impound and Sell Alpacas / Interlocutory Applications: Defendant's Notice of Motion for Dismissal or Separate Question; Plaintiff's Notice of Motion for Leave to Amend and Extension of Time

Legal Issues

  1. 1 ["Whether the plaintiff's judicial review proceedings should be summarily dismissed under UCPR r 13.4." 'Whether the question of an extension of time under UCPR r 59.10 should be determined separately before the final hearing.' 'Whether parts of the amended summons were manifestly faulty and should be struck out.' 'Whether the plaintiff should have leave to amend to add claims concerning the 2020 impounding and sale of three alpacas.' 'Whether purchasers of the alpacas were necessary parties or should be given notice of the proceedings.']

Ratio Decidendi

Summary dismissal was refused because there was at least a triable factual issue about whether the alpacas were located on a public road and a contestable legal issue about the Council's power to sell stock impounded under s 116(3) of the Local Land Services Act 2013 (NSW). The extension of time issue should not be determined separately before final hearing because it required a factual and discretionary inquiry. Certain paragraphs of the amended summons were struck out because they were inappropriate or non-compliant in judicial review proceedings, but leave to further amend was granted subject to compliance with Form 85 and UCPR r 59.4(b)(ii) and (c).

Court Disposition

Defendant's motion otherwise dismissed; plaintiff granted conditional leave to file a further amended summons; plaintiff's motion otherwise dismissed; specified paragraphs of the amended summons struck out; costs of each motion to be costs in the cause.

Orders

  • ['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.' "Otherwise dismiss the defendant's notice of motion filed 14 May 2020." 'Grant leave to the plaintiff to file and serve within 14 days a further amended summons in...