Young v Cooke

1. [1]

   HIS HONOUR: This judgment concerns an application for security for costs brought by Mr Bill Cooke and Mrs Helena Cooke (“the Cookes”) pursuant to r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (“the application”). The application was sought with respect to an appeal brought by Mr Gary Young, pursuant to s 39(1) of the Local Court Act 2007 (NSW), from a decision of Bradd LCM in the Local Court of New South Wales on 18 June 2015 (“the decision”).

2. [2]

   The Local Court proceedings concerned a claim by Mr Young against Mr and Mrs Cooke for damages for conversion or detinue of a dog named “Apache Jack”.

THE APPLICATION

1. [3]

   The Cookes filed an amended notice of motion on 23 June 2016 seeking security for costs based upon rr 42.21, 50.8 and 59.11 of the UCPR, s 23 of the Supreme Court Act 1970 (NSW) and/or the inherent power of the Court (“the amended notice of motion”).

2. [4]

   When the matter was called for hearing, Mr D Stewart of counsel, with Mr A Hopkins, appeared for the Cookes, sought and was granted leave to further amend the amended notice of motion so as to remove any reliance upon rr 42.21 and 59.11 of the UCPR. No reference was made, in that respect, to s 23 of the Supreme Court Act or the inherent power of the Court in that amendment but it was plain, as the proceedings went forward, that the entirety of the application for security for costs was predicated upon an application made under r 50.8 of the UCPR (that application shall hereafter be referred to as “the further amended notice of motion”).

THE PROCEEDINGS PROPER

1. [5]

   The proceedings commenced by a summons filed 16 July 2015 seeking judicial review of the decision of Bradd LCM. (Leave was refused to file an amended summons in 2015).

2. [6]

   By an amended summons filed 9 June 2016, Mr Young brought an application for judicial review and an appeal from the decision. Mr Young sought to file another amended summons (“the proposed amended summons”), which had the consent of the defendants but had yet to be formally received by the Court, save for the purposes of hearing the further amended notice of motion. By that summons, Mr Young abandoned his claim for judicial review and confined his cause of action to an appeal.

3. [7]

   There were two grounds of appeal in the proposed amended summons which were presented as follows:

4. [8]

   Towards the close of oral submissions on the further amended notice of motion, Mr A M Coombes of counsel, who appeared for Mr Young, sought leave to re-open his case and to file in Court a proposed further amended summons (“the proposed further amended summons”). He did not alter the substance of his submissions as a result of the proposed amendment but rather contended that the further amended summons more closely reflected the submission he had advanced on behalf of Mr Young. There was no objection from Mr Stewart.

5. [9]

   The grounds appearing in the proposed further amended summons were as follows:

6. [10]

   The third ground in the proposed further amended summons is identical to the second ground in the proposed amended summons. Grounds 1 and 2, generally, reflected the submissions advanced by Mr Young in the hearing of the further amended notice of motion; although those grounds differed from ground 1 of the proposed amended summons in that Mr Young no longer placed reliance upon a sufficiency of “reliable evidence”.

7. [11]

   Ultimately, there was no dispute that the security for costs application should be considered in the light of the proposed further amended summons. I shall determine the matter on that basis (although leave has not as yet been granted to file that summons).

8. [12]

   It may be noted that counsel for Mr Young contended that grounds 1 and 2 of the proposed further amended summons constituted questions of law, not upon the basis there was no evidence to support the impugned findings, but rather upon the second basis identified by Jordan CJ in The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 (“AGL”), namely, a finding of fact can be disturbed “if the facts inferred by [a tribunal] and supported by evidence are incapable of justifying the finding of fact based upon those inferences” (at 138).

9. [13]

   Putting aside the formal process of filing a summons, Mr Stewart was correct to submit the proposed further amended summons represented the fifth iteration of Mr Young’s appeal.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. [14]

   The background to the present application was comprehensively set out in the recent judgment of Gleeson JA in Young v Cooke [2017] NSWCA 33 (“Young No 4”) at [4]-[18], albeit in the context of the amended summons of 8 June 2016, which, with respect, I adopt, subject to some supplementation to the relevant the disposition of the amended notice of motion. Regrettably the background demonstrates a long and protracted history as to litigation.

2. [15]

   By way of introduction to the background of the proceedings before Bradd LCM, his Honour observed (at [4]-[6]):

3. [16]

   Turning to the first element of Bradd LCM’s judgment, as described in the first sentence of [6] of Gleeson JA’s judgment, namely, the identity of the dog (grounds 1 and 2 of the proposed further amended summons), the following passages of Bradd LCM’s decision are relevant (at [11]-[17]):

4. [17]

   In the same respect, under the heading “Findings”, Bradd LCM found at [26] and [27]:

5. [18]

   Gleeson JA continued in his description of the judgment of Bradd LCM as to the findings as to the Companion Animals Act 1998 (NSW) (ground 3 of the proposed further amended summons) as follows (at [7]):

6. [19]

   Returning to the decision of Bradd LCM, under the heading “Findings”, Bradd LCM also found (at [28]):

7. [20]

   Gleeson JA then considered a further decision of Bradd LCM, namely, a costs judgment delivered 2 May 2016. His Honour observed (at [8]):

8. [21]

   The portion of the judgment of Bradd LCM of 2 May 2016, to which His Honour referred, was as follows (at [47]):

9. [22]

   The background provided by Gleeson JA continued at [9] and [10]:

10. [23]

    In Young v Cooke [2016] NSWSC 408 (“Young No 1”), Garling J found that it was inappropriate to deal with the question of security for costs but determined, as reflected in the above mentioned orders, the application for summary dismissal in favour of the Cookes. The following passages from his Honour’s judgment, in that respect, are relevant (at [57]-[63]):

11. [24]

    Continuing with the background set out by Gleeson JA, his Honour noted the following (at [11]-[18]):

12. [25]

    Ultimately, Gleeson JA (with whom Macfarlan JA agreed) determined to grant leave to appeal but limited to Harrison J’s exercise of discretion regarding costs. This was founded, inter alia, upon the following reasons given by Gleeson JA (at [36] and [37]):

13. [26]

    Consent orders were made setting aside the orders by Harrison J for gross sum for costs and the staying of the proceedings until such sum was paid.

THE APPLICABLE RULE

1. [27]

   The provisions of r 50.8 of the UCPR are as follows:

RELEVANT LEGAL PRINCIPLES

1. [28]

   Rule 50.8 is in relevantly the same terms as r 51.50 of the UCPR. In that light, the parties relied, correctly in my view, upon authorities bearing upon the operation of r 51.50 (or the counterpart of that rule) in making submissions as to the operation of r 50.8. Those authorities are discussed below in the exploration of the principles applicable to the determination of the application brought under r 50.8 in this case.

2. [29]

   Gleeson JA recently considered the principles applicable to the application of r 51.50 in Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 (“Xenos”). The rule requires that special circumstances must be shown before an order for security for costs of an appeal can be made: Xenos at [19]-[23]. His Honour observed:

3. [30]

   In Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 (“Transglobal”), the Court of Appeal (per curiam) made the following observations in relation to the significance of impecuniosity in determining “special circumstances” (at [30], [31] and [36]):

4. [31]

   As to special circumstances per se, the Court of Appeal expressed the following opinion (at [33] and [34]):

5. [32]

   In Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 (“Preston”), Basten JA (with whom Ipp JA and Hoeben J, as he was then, agreed), made the following observations as to the expression “hopeless” which appears in the abovementioned extract from Xenos as follows (at [21]):

6. [33]

   Counsel for Mr Young made some particular submissions as to what may constitute special circumstances in the particular circumstances of the present case as follows:

7. [34]

   In the light of the above authorities and turning to the five propositions submitted by counsel for Mr Young, I have reached the following conclusions:

   1. (1)

      It is correct to submit that each case must be judged on its own merits as to whether “special circumstances” exist.

   2. (2)

      Counsel for Mr Young gave no authority for the first proposition. It was not explained. The proper approach, in my view is that found in the observations of the Court in Transglobal at [33] and [34].

   3. (3)

      As to the second proposition, the principles stated in Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32], and the cases there referred to, are well established in the context of the consideration of applications under r 42.21 (in particular, with respect to the issue of impecuniosity). (Rule 42.21(1B) now provides that, if the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity). However, it appears to be that the counterpart of that principle in the present context is that stated in Preston at [18] and Transglobal as set out above at [30] of this judgment, which I shall apply in this matter.

   4. (4)

      The third proposition may be accepted on the basis of the authority in Transglobal (see at [32]).

   5. (5)

      The fourth proposition is a replica of the judgment of the Court of Appeal in Transglobal at [34].

EVIDENCE

1. [35]

   The Cookes relied upon the following evidence given by affidavit:

   1. (1)

      Laura Ann Howman-Giles (affirmed 27 August 2015);

   2. (2)

      Laura Ann Shearman (affirmed 16 December 2015); and

   3. (3)

      David Eric Thackeray (affirmed on 16 June and 6 September 2017, respectively).

2. [36]

   The Cookes also relied upon some documentary evidence.

3. [37]

   Mr Young relied upon his affidavit sworn on 22 August and 12 September 2017, respectively. He was required for cross-examination.

4. [38]

   There was originally filed in the proceedings a Court Book consisting of three volumes. At the hearing, the parties eschewed reliance upon those volumes and reduced the Court Book to one volume which became Ex 1 in the proceedings. That Court Book contained the aforementioned affidavits (subject to rulings on objections to evidence). The Court did not receive the transcript of or evidence in the Local Court proceedings. No party drew attention to or made submissions as to that material rather than by reference to the same in Bradd LCM’s decision.

SUBMISSIONS OF THE PARTIES

1. [39]

   The parties’ submissions as to whether or not special circumstances had been demonstrated, such as to justify an order for security for costs of the appeal, were joined as to four issues as follows:

   1. (1)

      the prospects of success on appeal;

   2. (2)

      the impecuniosity of Mr Young;

   3. (3)

      the implications of compliance with orders of the Court; and

   4. (4)

      the subject matter of the proceedings and the questions of bona fides in conduct of the parties.

2. [40]

   I shall refer to their submissions in the course of dealing with each such issue.

Nature of the Appeal

1. [41]

   By submissions advanced by the counsel for Mr Young on the proposed further amended summons, the proposed appeal was confined to an appeal as of right pursuant to s 39(1) of the Local Court Act. Such an appeal is confined to a question or questions of law and is in the following terms:

The Identity of the Dog: Grounds 1 and 2

1. [42]

   The first and second grounds propound error in the decision with respect to the determination of the identity of the dog held by Mr and Mrs Cooke vis-à-vis Bradd LCM’s reliance, in his reasoning, upon the absence of microchipping and the shape of the dog’s head (see the ultimate conclusions of Bradd LCM at [17] of this judgment). On the face of the pleadings, the appeal appeared to be directed to grounds concerning questions of fact outside the reach of s 39(1) of the Local Court Act. However, as I will discuss below, counsel for Mr Young made submissions directed at demonstrating how the grounds may be properly fall under s 39(1) of that Act.

2. [43]

   In defence of a similar issue the proceedings before Garling J (which were predicated upon an application for judicial review), Mr Young sought to meet the contention (that the pleadings concerned mere questions of fact by contending that the pleadings, with respect to those findings, were, in fact, directed at two questions of law. First, it was contested there was “no evidence” to enable Bradd LCM to make those findings with respect to Mr Young’s claim for conversion and/or detinue. Secondly, and in the alternative, it was contended the evidence for those findings had such little weight that “a court viewing it objectively would regard it as being the equivalent of no evidence at all” (Young No 1 at [60]). The latter contention was based upon a contention that the evidence was “obviously unreliable” and constituted a basis for the refusal of the summary dismissal application (Young No 1 at [59]). It appears that the latter contention was instrumental in a refusal of the summary dismissal application, although his Honour observed Mr Young faced “a very difficult argument” (Young No 1 at [62]).

3. [44]

   However, in these proceedings, counsel for Mr Young relied upon different bases to contend that grounds 1 and 2 concerned questions of law. Counsel eschewed the no evidence contention and accepted that there was some evidence to sustain the factual findings of Bradd LCM. (It may be noted that a “no evidence” pleading is available to establish an error of law: Kostas v HIA Insurance Securities Pty Ltd (2010) 241 CLR 390; (2010) 270 ALR 228; [2010] HCA 32 (“Kostas”) at [90]). That approach must be taken as an acceptance that there was some evidence permitting the finding of fact that Zac was not the same dog as Apache Jack.

4. [45]

   Counsel for Mr Young also eschewed any submission based on the reliability of the evidence as pleaded in the amended summons.

5. [46]

   Rather, counsel for Mr Young relied, as earlier mentioned, upon a passage from the judgment of Jordan CJ in AGL. The whole of the relevant passage is extracted below (AGL at 138):

6. [47]

   The proposition, which counsel for Mr Young seemed to advance, was that an inference (as to the identity of the dog, namely, being Zac) could not be drawn from the facts referred to in grounds 1 and 2.

7. [48]

   Reference may be made, in that respect, to the judgment of Hall J in US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 (“US Manufacturing”) at [48]-[54]. His Honour referred to the judgment of Kirby J in RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082. Hall J stated (at [50]-[54]):

8. [49]

   Further, reference should be made to the judgment of Hayne, Heydon, Crennan and Kiefel JJ in Kostas (at [90]-[91]):

9. [50]

   Lastly, I refer to the judgment of Dixon J in Gurnett v The Macquarie Stevedoring Company Pty Ltd (1956) 95 CLR 106; [1956] ALR 691 at 113 as follows:

Particular Issues Regarding Prospects for Grounds 1 and 2

1. [51]

   Mr Coombes accepted that in order to satisfy whether or not special circumstances had been demonstrated, by reference to the prospects of a successful appeal, he had to establish each ground of the appeal was reasonably arguable. I now turn to those submissions.

2. [52]

   Bradd LCM found that the fact that “Zac” had not been identified “in accordance with legislation” made it unlikely that it was “the dog Mr Young brought from a breeder”.

3. [53]

   The reference to “legislation” in that context concerned s 8 of the Companion Animals Act (as at 2007) and the Companion Animals Regulation 1999 (regs 5(1)(a) and 6(1)).

4. [54]

   In oral submissions, counsel for Mr Young contended the evidence available for this finding was as follows:

   1. (1)

      Mr Young bought the dog from breeders in Goulburn and did not himself have the dog microchipped.

   2. (2)

      The dog in the possession of Mr and Mrs Cooke, when surrendered, was not microchipped.

   3. (3)

      There was no evidence as to extent to which breeders complied with the legislative requirements.

   4. (4)

      There was no evidence that Mr Young’s dog was microchipped. He did not have a microchip placed in his dog.

5. [55]

   There was no dispute as to this summary.

6. [56]

   Counsel for Mr Young submitted the conclusion that it was “unlikely” to be Mr Young’s dog was illogical and not a conclusion that could be drawn from the above listed evidence.

7. [57]

   As a matter of logic, if all breeders microchipped all dogs they sold in accordance with the Companion Animals Act, as it applied, at the relevant time, then it follows, when Mr Young purchased Apache Jack from a breeder, Apache Jack must have been microchipped. Similarly, using the first premise, if the dog was not microchipped it follows that the dog was not bought from a breeder. Zac was not microchipped and, based on that simple process of logic, was not obtained from a breeder (and, therefore, not meeting Mr Young’s description of Apache Jack).

8. [58]

   A process of reasoning along those lines was not illogical but plainly could not have been conclusive of the identity of Zac or Apache Jack – as it depended upon the premise that all breeders microchip dogs or all those to whom Mr Young would have made a purchase from did so. However, Bradd LCM made no finding that it was conclusive; simply that the absence of a microchip in Zac made it likely that it was not Apache Jack, which was purchased from a breeder.

9. [59]

   There are two matters that then come into consideration, as to this ground, which stand outside the simple process of reasoning. First, the legislative constrains might give rise to a higher prospect of breeders conforming with the requirement for microchipping. Secondly, there was evidence that Zac was not microchipped. Proof that all breeders did not always do so fell to Mr Young.

10. [60]

    I do not consider this ground, or alternatively, the ground as expanded or explained through submissions by counsel for Mr Young, may be said to be other than weak. There are two difficulties with the contention that the inferences drawn by Bradd LCM were incapable of his findings as to the dog ‘Zac’ as encapsulated in ground 1 (and that conclusion thereby represented an error of law). First, the conclusion of Bradd LCM at [26] of the decision appears to be a link in the chain of reasoning which contributed to a finding, on the balance of probabilities, as to the identity of the dog (the principal finding, in that respect, appears at [27]). Further, Bradd LCM’s reference to the absence of “identification” by the legislation, vis-à-vis the requirement to microchip, was limited to a conclusion it was “unlikely that Zac was the dog bought by Mr Young from a breeder”. Secondly, the fact that Apache Jack was purchased from a breeder, who was bound by law to microchip, was capable of sustaining that limited finding, if it is understood as a finding (as I think it must be in the light of [27] of Bradd LCM’s decision), that the absence of microchipping made it less likely Zac was the dog purchased by Mr Young.

11. [61]

    Bradd LCM found that, on the balance of probabilities, the dog held by the Cookes (named “Zac”) was similar to but did not have the same identity as Apache Jack. The distinction was based upon the shape of the head of the dog as revealed from the evidence, which consisted of photographs annexed to the affidavits of Mr Young and Mrs Cooke, respectively. That evidence was not before the Court, as presently constituted, for the purposes of the further amended notice of motion (counsel for Mr Young had not, in fact, seen the photographs himself). Bradd LCM recognised that the photographs depicted dogs of different ages.

12. [62]

    The issue ventilated by Mr Young, in this respect, concerned the difficulty with identification, particularly through photograph evidence. Various issues were raised, in that respect, as to potential problems such as the angle at which photographs may have been taken, the absence of evidence as to what may occur with the structure of a dog’s face over time and the technical process of producing photographs.

13. [63]

    There are two significant difficulties with Mr Young’s contentions in this respect. It was not suggested the finding impugned under ground 2 was other than a finding of fact. (In any event, it plainly is such a finding). The applicant sought to bring the ground within the second limb of the challenges to such findings in AGL, but the contentions never rose to the level that photographic evidence of the identity of the dog was incapable of sustaining a finding or inference that “Zac” was not the dog obtained by Mr Young. That is because none of the arguments advanced by counsel for Mr Young sought to demonstrate that, by an examination of the photographs as such, it must be concluded there was an insufficiency of evidence to enable the finding to be made in [27] of Bradd LCM’s decision (again, counsel for Mr Young had not himself examined the photographs).

14. [64]

    Rather, the contention was advanced through the prism of theoretical difficulties associated with the use photographs for identification purposes (that is from the general characteristics of the photographs). There was no evidentiary or other foundation for those propositions either in the hearing before Bradd LCM or in those proceedings. When properly understood the contention rose no higher than a question as to the weight that should have been attached to the evidence in making the impugned finding, notwithstanding that, on the face of the decision, the findings or inferences drawn by Bradd LCM were logically or rationally available.

15. [65]

    In any event, the photographic evidence was adduced (at least in part) by Mr Young. Bradd LCM’s decision does not identify Mr Young raised any issue as to its sufficiency of that evidence, or that it was not applicable to the disputed question of the identity of the dog.

16. [66]

    Further, in these circumstances, a conclusion may properly be reached that the appeal, on this ground, lacks reasonable prospects for success.

17. [67]

    The judgment of Bradd LCM as to the operation of s 69 of the Companion Animals Act appears in [28] of the decision, which is extracted above. In coming to his conclusion, in that respect, his Honour relied upon the provisions of subss (2) and (3).

18. [68]

    Mr Young’s submission, in this respect, is entirely predicated upon the findings of Bradd LCM in relation to the costs which appears at [21] of this judgment. It was submitted that the finding was made on the evidence before his Honour at the time he gave judgment on the substantive issues. His Honour had found, it was contended, that the Cookes acted in bad faith.

19. [69]

    It was from this platform that it was contended that Bradd LCM erred by failing to consider whether the statutory protection afforded to buyers by s 69(2)(a) of the Companions Animals Act should be limited to circumstances where the buyers had acted in good faith. The question of whether the protection in s 69(2)(a) applied in circumstances in which the buyer acted in bad faith towards an interested third party was not one, it was contended, which had been the subject of previous judicial consideration. Further, in reliance upon Little v The Commonwealth (1947) 75 CLR 94; [1947] HCA 42 at 109 (per Dixon J), it was submitted that the Cookes, accordingly, may not rely upon the statutory immunity afforded by s 69, as “buyers” that acted in bad faith.

20. [70]

    At the outset of the consideration of this ground, it should be noted that the contention as to bona fides was confined to the third ground. In view of my conclusion made as to the second ground, it is important to appreciate that Bradd LCM did not in any way seek to qualify his ultimate conclusion of 18 December 2015 that, although the dogs to be compared were similar, they were not the same dog (see Bradd LCM’s decision dated 2 May 2016 at [43] and [47]).

21. [71]

    The contention propounded by Mr Young, in relation to the third ground, involves a question of law. When understood in the light of the competing submissions by the Cookes, it may be understood as raising a question as to whether a conclusion as to the existence of mala fides in a person surrendering a dog to the Council may, due to that mala fides, lose the ownership conferred by s 69(2)(a) of the Companion Animals Act, notwithstanding the provisions of s 69(3) of that Act which provides that a person may bring claim against the Council if that person established that the Council did not act in good faith or acted without reasonable cause in relation to the sale of the dog. To this question may be added the issue as to why mala fides in surrendering the dog to the Council would remove the right to ownership conferred by s 69(2)(a).

22. [72]

    I do not consider that Mr Young’s contentions, in this respect, are not arguable. They must, however, in the light of the above statement of the relevant issues, be seen to be considerably affected by doubt owing to the operation of s 69(3) and the questions as to how a finding as to mala fides in the surrender of a dog after the operation of s 69(2)(a) (as counsel for the Cookes argued the contentions as to mala fides really amount to something akin to an action for tortious liability, with respect to the taking of the dog before its surrender, rather than as an issue arising under s 69 of the Companion Animals Act).

Another Issue regarding Prospects of Success

1. [73]

   Further submissions were developed by the Cookes as to other aspects affecting the determination of the appeal. First, there were other bases for Bradd LCM’s decision. For example, Mr Young had not produced any documents relating to his purchase of the dog, even though he relied upon the fact that the dog was derived from breeders in Goulburn. There were also competing references as to the physical condition of Apache Jack and Zac in 2008.

2. [74]

   It was also contended that, even if an error was established, the Court would be called upon to consider whether “the substantial wrong or miscarriage had been occasioned” before it ordered a new trial because of the nature of the issues in dispute. It is unnecessary to further consider those matters, in the light of the above conclusions, save for noting they are of substance.

Conclusion regarding Prospects of Success

1. [75]

   Overall, given the aforementioned considerations and counsel for Mr Young’s submission, as to the necessity to make good all grounds of the appeal in the proposed further amended summons in order to succeed on the appeal, which in my view is correct, the conclusion must be reached that there is a lack of reasonable prospects of success of the appeal.

IMPECUNIOSITY

1. [76]

   The evidence in these proceedings demonstrates that Mr Young is impecunious. His sole source of income is the aged pension, save perhaps for some minor supplements obtained over time when carrying out some duties on behalf of Lugen Pty Ltd (“Lugen”), the sole director and shareholder of which is Mr Young’s eldest son, Mr Glen Young. He has no assets of any significant value.

2. [77]

   It was not suggested that Mr Young had owned any of the property of Lugen such that Lugen may be his trustee or that Lugen is a sham to protect Mr Young.

3. [78]

   However, Mr and Mrs Cooke contend that, whilst this conclusion impacts Mr Young’s personal ability to comply with an order for costs or to provide security, it does not dictate a finding that an order requiring security would stultify prosecution of the appeal: Hastings v Hastings [2009] NSWCA 294 (“Hastings”) at [14]. In that respect, it is contended that the Mr Young might be able to obtain funding from other sources such as his son or Lugen.

4. [79]

   Reliance was placed, in that respect, upon funds which Mr Young was said to have received from the sale of a property owned by Lugen (referred to during the course of proceedings as Lots 9 and 10, respectively) and the receipt of income from a business during the period of 2000 to 2008. However, the gravamen of the case for the Cookes, in this respect, was that a property where Mr Young presently resides is presently for sale and has equity of approximately $415,000. It was submitted, by counsel for the Cookes, that that represented a potential source of resources for Mr Young from assets held by Lugen because, first, Mr Young had received them previously and secondly his son is the sole shareholder.

5. [80]

   A document in the proceedings, tendered by counsel for the Cookes, concerned a summary of the sale of Lot 9 as prepared by Sterling Conveyancers, which revealed that a bank cheque was paid to Mr Young, upon the sale of the property, for $31,708.21. Mr Young’s evidence was that money was paid into Lugen’s bank account and he maintained that he received no amount personally. No explanation was provided for that discrepancy.

6. [81]

   The evidence revealed there was a refinancing of a mortgage in November 2008 from the Commonwealth Bank of Australia to La Trobe Financial. A sum of $53,000 was received. It was put to Mr Young that he received that money through Lugen to operate a DVD licencing and sales business. Mr Young denied that allegation.

7. [82]

   Notwithstanding documents completed by an agent on behalf of Lugen showing Mr Young was in receipt at the time of about $40,000 of income per year, Mr Young denied that it was an accurate reflection of his income.

8. [83]

   As to the potential sale of Lot 10, Mr Young accepted than only Lugen had the authority to sell the property. A document associated with the cancellation of agency arrangements was signed by Mr Young himself.

9. [84]

   As to the proposition that Mr Young’s son may fund the proceedings, Mr Young gave evidence that his son did not have the funds to do so and he had not requested money for that purpose, although his evidence in that respect did suggest prevarication.

Conclusion regarding Impecuniosity

1. [85]

   In my view, it may be concluded that, on the balance of probabilities, Mr Young did receive monies from the sale of Lot 9. It was not established that he received any monies in relation to the refinancing of a mortgage in 2008 or that he had a particular income stream at that stage from a business (the income appeared to go to Lugen). However, in some respects, these are historical facts and do not clearly establish either the holding of current assets or the circumstances of any monies given in the period of 2003 to 2008 would be reproduced in the present circumstances.

2. [86]

   I consider that those historical facts are too remote to allow the Court to sustain Mr and Mrs Cooke’s submissions, in this respect, particularly in the absence of evidence of an intention by Mr Young’s son to provide him access to equity in the property in Lot 10, if sold, to fund the proceedings.

3. [87]

   I do not consider there is evidence to establish that Mr Young has a potential source of funds for this appeal beyond his present meagre resources as contemplated in Hastings.

LACK OF BONA FIDES / CONDUCT OF THE PLAINTIFF IN LITIGATION AGAINST THE DEFENDANTS

1. [88]

   Counsel for the Cookes submitted that Mr Young had demonstrated a lack of bona fides in bringing the appeal and this submission was informed by Mr Young’s conduct in litigation against the Cookes.

2. [89]

   Counsel for Mr Young did not cavil with any proposition that there had been “some default on the part of Mr Young previously” and there had been “statements and communications made by Mr Young which overtime had been intemperate and possibly improper”. It was also submitted that one would not generally expect such comments to be made in any proceedings. It was submitted that some leeway needed to be given to Mr Young given he was self-represented and account taken of the fact that he was now legally represented. Any prior defaults can be protected by costs orders. None of the complaints made by Mr and Mrs Cooke were sufficient to establish special circumstances.

3. [90]

   I will not repeat the earlier procedural history of this matter save to identify some particular aspects:

   1. (1)

      The matter was commenced on 16 July 2015. In the affidavit in support Mr Young in the original form of the Court Book propounded propositions such as Mr and Mrs Cooke engaged in “calculated subterfuge” in an effort to obtain title to “Apache Jack” and the Cookes conspired to commit deliberate and pre-mediated perjury (this affidavit was not included in the amended Court Book).

   2. (2)

      There was an amended summons dated 1 November 2015, which sought judicial review and various declarations. Leave was ultimately refused. A further affidavit was also filed, with respect to the same, dated 2 November 2015.

   3. (3)

      Garling J refused leave to file the further amended summons on the basis that, allowing some latitude to Mr Young, the summons did not clearly set out the basis on which the proceedings were brought, some of the allegations in the summons were scandalous and the document was rambling and discursive.

   4. (4)

      I earlier referred to aspects of the decision of Bradd LCM of 2 May 2016. In that decision, Bradd LCM referred to his decision to decline to give Mr Young leave to prosecute Mr and Mrs Cooke for perjury arising out of their evidence regarding a Mr Bucks (see at [42]).

   5. (5)

      On 15 September 2016, Rares J gave a decision in relation to an application by Mr Young to set aside a bankruptcy notice issued by the official receiver in bankruptcy on the application of Mr and Mrs Cooke: Young v Cooke [2016] FCA 1215. In the course of his reasoning, Rares J observed that Mr Young felt a sense of grievance with the decision of Bradd LCM of 18 December 2015 (at [28]-[38]). He was not satisfied these claims for a review of that decision had sufficient legal or factual merit.

   6. (6)

      On 27 September 2016, Adamson J delivered a interlocutory judgment in this matter: Young v Cooke [2016] NSWSC 1386. That matter concerned relief sought by Mr Young regarding a cost order by Bradd LCM but the application was dismissed. In the course of argument, Adamson J noted that Mr Young raised an allegation of pre-meditated perjury by Mr and Mrs Cooke and complained about Bradd LCM’s refusal to allow Mr Young to commence proceedings against the Cookes for perjury.

   7. (7)

      On 3 February 2017, Gleeson J of the Federal Court of Australia dealt with an application from Mr Young for an extension of time to appeal from the decision of Rares J of 15 September 2016: Young v Cooke [2017] FCA 26. In that judgment, Gleeson J referred to earlier District Court proceedings involving Mr Young and the Cookes and an appeal to the Court of Appeal. It traversed other parts of the history to which I have referred including the judgment by Harrison J. In that decision, his Honour canvases submissions by Mr Young that the bankruptcy notice was an abuse of process.

   8. (8)

      In the proceedings before Gleeson J in the NSW Court of Appeal, Mr Young argued that he was the victim of a breach of a duty of candour owed to the Court because material matters were not brought to the attention of the Court by counsel for the Cookes: Young No 4 at [22]. His Honour recorded that Mr Young contended that the transcript of the hearing before Harrison J disclosed his Honour had a severe prejudice against indigent persons and made veiled threats to Mr Young. These grounds were dismissed.

   9. (9)

      As earlier noted, the basis for and grounds of the appeal have shifted over five iterations in over a 2 year period.

Conclusion regarding lack of bona fides / conduct of the plaintiff

1. [91]

   I do not consider that the above additional summary of procedural background or the submissions of the parties permits the conclusion that the proceedings prosecuted by Mr Young were mala fide. Further, whilst it may permit a finding that the conduct of the proceedings by Mr Young has been firstly, hectoring or harassing in nature and intemperate and secondly, productive of waste of time and costs in the proceedings, this argument was not pressed, so I merely note it. There was no dispute that Mr Young has failed to comply with directions and orders of the Court over time. The first of these considerations is relevant to a finding of special circumstances. The second remains relevant to the exercise of the Court’s discretion.

COSTS

1. [92]

   The Cookes argued that Mr Young had not paid previous costs orders. That does not constitute a special circumstance warranting a stay pending the prosecution of security for costs of the appeal: Pi v Zhou [2017] NSWCA 16 at [63] per Payne JA (with Sackville AJA agreeing).

Conclusion

1. [93]

   In Lall v 53–55 Hall Street Pty Ltd [1978] 1 NSWLR 310 (“Lall”) at 314, the Court of Appeal emphasised that the courts have traditionally aided litigants in person to ensure the merits of their cases are not lost in technicalities or irrelevances, even of their own making (although it was not suggested individual litigants would not be properly bound to adherence with what is now the UCPR or the pleadings as to their cause of action). However, the Court has been provided power to order security for costs of appeal in special circumstances with respect to appeals, as discussed in Xenos, of an unreasonable or harassing in nature, where the litigant is unlikely to recover his costs of the appeal because of the impecuniosity of an applicant, even where there is a risk of the stultification of the appeal.

2. [94]

   As pointed out in Lall, the subject matter of the dispute may sometimes be a single dispute or complaint which is persistently pursued including by many interlocutory processes. There can be no doubt Mr Young has a grievance and the dispute regarding his dog may not be described as trivial, but nonetheless he has reiterated a single issue of that character. The questions raised do not attract public interest issues or the liberty of an individual.

3. [95]

   In my view, the Cookes have established special circumstances for the purpose of r 50.8 of the UCPR, Mr Young is an impecunious applicant who is unlikely to meet the costs of any appeal proceedings, if unsuccessful, in circumstances where the appeal, when seen in the light of the three grounds proposed to be advanced, is not reasonably arguable.

4. [96]

   Those elements are also applicable to demonstrate why a discretion should be exercised to grant security for costs to which may be added the waste of time and cost occurred by the prosecution of the appeal by Mr Young to date and the failure to pay costs previously awarded to the Cookes.

5. [97]

   In those circumstances, security for costs should be awarded, even though there is some risk of a stultification of the appeal proceedings.

Quantum

1. [98]

   The notice of motion does not ask for security for costs of any particular amount. The evidence of Mr David Eric Thackeray was that, if leave was granted, to proceed on the proposed amended summons (his evidence was prior to the promulgation of the further amended summons), the expected further legal costs in the proceedings would be in the range of $10,000 to $15,000 plus GST. This did not account for the prior costs incurred or ordered in the proceedings. The overall estimate provided by Mr Stewart was $35,000 on a party/party basis.

2. [99]

   Mr Coombes did not address the quantum for security for costs other than noting the estimate given by Mr Thackeray. He submitted that any security for costs needed to be proportional and was not intended to indemnify the party obtaining security. It was submitted that the exercise of the Court’s discretion in that respect must be impressionistic. I accept these submissions. What may be added is that the assessment of costs needs to take into account the reasonableness of projected costs. Given the lateness of the application, I do not consider there is a proper basis to order security for costs as to past costs incurred by Mr and Mrs Cooke.

3. [100]

   Upon the basis of those considerations, I consider the quantum of security for costs should be $8,000.

DIRECTIONS

1. [101]

   The Court proposes to make the following orders:

   1. (1)

      Security for costs in the sum of $8,000;

   2. (2)

      The stay of the proceedings until the security is provided by Mr Young; and

   3. (3)

      Costs of the further amended notice of motion are reserved.

2. [102]

   The legal representatives for the Cookes shall bring in short minutes of order reflecting this judgment within 7 days of its publication.