Dubow v Mid-Western Regional Council

The applicant in these proceedings, who although holding legal qualifications is self-represented, commenced judicial review proceedings by summons filed on 3 December 2019 challenging the legality of administrative action taken by rangers employed by the defendant, the Mid-Western Regional Council in the impounding and subsequent sale of alpacas owned by her.

The initial summons sought to challenge a decision of the New South Wales Civil Administrative Tribunal denying jurisdiction but by the amended summons filed on 12 March 2020 it is evident that the plaintiff is seeking orders either in the nature of prerogative writs or by way of declaration concerning the legality of the council's actions. The only matter before me today for determination is the plaintiff's application for a review of a decision of the Principal Registrar denying her leave to issue a subpoena under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW).

The Principal Registrar's decision was made on 18 September 2020 and the plaintiff challenges that decision by a notice of motion filed on 25 September 2020. The defendant is represented by Mr D S Fitzpatrick of counsel who has filed written submissions. In support of her application for review, the plaintiff has read her affidavit of 27 July 2020, which was before the Principal Registrar and an affidavit of 12 October 2020 filed in support of the current notice of motion.

Although styled a review of the registrar's decision, the power of the Court is broad and involves effectively a fresh hearing in relation to the application for leave. The defendant objects to the subpoena being issued and submits that there is no legitimate forensic purpose demonstrated for the issue of the subpoena for the reasons set out in Mr Fitzpatrick's written submissions.

The proposed subpoena is directed to a firm of auctioneers who, under instructions from the council, in the purported exercise of its legal powers, sold the plaintiff's alpacas at auction. The plaintiff is seeking the names of the purchasers. From the material she has annexed to her affidavits she does have the names of some purchasers but she does not have them all and she explains to me that her thinking about issuing the subpoena was that it was necessary that she obtain that information for the purpose of complying with r 50.5 Uniform Civil Procedure Rules 2005.

The defendant says that the plaintiff has misconceived the applicable rule. These are proceedings of judicial review of administrative action and such matters are governed by Part 59 and that the applicable rule concerning the proper parties to proceedings for judicial review is r 59.3. I should also say in fairness to the plaintiff that she has quite candidly said that she is ambivalent about the outcome but she considered it necessary, on her understanding of the rules, that the purchasers of her alpacas be joined as persons having an interest in maintaining the legality of the council's action in selling them.

Rule 59.3(2), so far as it is material, is in the following terms.

In the context of the present dispute, the only proper parties to the proceedings are Ms Dubow and the council and that is the way that the proceedings are currently constituted.

Exercising my own independent discretion in relation to the matter, I am of the view that there is no legitimate forensic purpose in issuing a subpoena to the auctioneers to obtain the names of the purchasers. That is because they are not proper parties to the proceedings and to the extent to which Ms Dubow may feel a grievance against them which may be actionable at law, it would be a misuse of the subpoena power, in the context of these proceedings, for her to obtain their names and addresses for the purpose of suing them in separate proceedings.

There are rules of Court which enable a party, when the conditions governing their exercise are satisfied, to obtain the identity of persons against whom he or she has a legitimate cause of action. But it is not proper to use a subpoena in one set of proceedings to obtain that information for use in another set of proceedings. Indeed, to use a subpoena in that way would be potentially a contempt of court for breach of the implied undertaking as discussed in the decision of the High Court in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36.

For these reasons, I dismiss the notice of motion of 25 September 2020.