Young v Cooke

1. [1]

   After a hearing over two days in the NSW Local Court in September and December 2014, Bradd LCM, on 18 June 2015, delivered a reasoned judgment in which he dismissed proceedings brought by Mr Gary Young against Mr Bill Cooke and Mrs Helena Cooke.

2. [2]

   On 16 July 2015, Mr Young filed a Summons seeking to challenge Bradd LCM’s decision. The Summons named Mr and Mrs Cooke and the Local Court as defendants. The Local Court has filed a submitting appearance, and has taken no part in the proceedings.

3. [3]

   On 27 August 2015, Mr and Mrs Cooke filed a Notice of Motion in which they sought orders that:

   1. (1)

      Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be dismissed.

   2. (2)

      Further, or in the alternate, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), the Summons filed on 16 July 2015 be set aside.

   3. (3)

      Further, or in the alternate, pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff to provide security for costs.

4. [4]

   On 31 October 2015, Mr Young filed a Notice of Motion in which he sought leave to file an Amended Summons.

5. [5]

   This judgment deals with these two Notices of Motion.

Local Court Proceedings

1. [6]

   The final pleadings in the Local Court have not been put before this Court. However, the following material appears from the evidence in this Court.

2. [7]

   In August 2011, Mr Young commenced proceedings against Mr and Mrs Cooke in the NSW District Court. In November 2011, Johnstone DCJ ordered that Mr Young’s Statement of Claim be struck out, but granted Mr Young leave to re-plead.

3. [8]

   In March 2012, Mr Young filed a Summons in the Court of Appeal, seeking leave to appeal against the orders of Johnstone DCJ. That application for leave to appeal was dismissed by the Court of Appeal in March 2013.

4. [9]

   In the meantime, there were a series of interlocutory proceedings in the District Court dealing with attempts to ensure that the plaintiff’s pleading was in proper form. On 29 April 2013, McLoughlin DCJ transferred the proceedings from the District Court to the Local Court.

5. [10]

   On 15 May 2013, Mr Young filed a Statement of Claim in the Local Court proceedings. On 24 July 2013, Mr and Mrs Cooke filed a Defence.

6. [11]

   It appears from the judgment of Bradd LCM that Mr Young claimed he was the owner of a cattle dog which, at least in the Local Court proceedings, he called “Apache Jack”. Mr Young claimed that Apache Jack was unlawfully in the possession of Mr and Mrs Cooke. He sought damages for conversion and/or detinue.

7. [12]

   Mr Young’s claim was based on events which he said occurred in the period from 2007 to 2009. Mr Young’s claim was that he purchased Apache Jack in March or April 2007 from a dog breeder in the Goulburn area and had it in his possession thereafter as a working dog. Mr Young accepted that there was no microchip inserted under the dog’s skin and that, although the dog had worn a collar whilst in his possession, there was no identification tag attached to that collar.

8. [13]

   Mr Young claimed that, in July 2008, Apache Jack disappeared from his property. He said that, in 2009, he discovered that Mr and Mrs Cooke were in possession of Apache Jack. He demanded Mr and Mrs Cooke to return the dog, but they refused to do so.

9. [14]

   Mr Cooke gave evidence in the Local Court that a dog wandered onto his property in September 2008. He said he did not know the identity of the dog or its owner. He summoned the Council ranger to his property, who then took the dog to the Council’s pound.

10. [15]

    Mrs Cooke gave evidence that, on 4 October 2008, she attended the Council’s pound and purchased the dog for $200. It was subsequently registered in her name. In evidence, Mrs Cooke produced a receipt dated 4 October 2008 for the purchase of the dog from the Council’s pound. She also produced a Certificate of Registration issued by the NSW Companion Animals Register, indicating that she was registered as the owner of an “Australian kelpie-cross” on 20 October 2008. Mr and Mrs Cooke called their dog “Zac”. They claimed that Apache Jack and Zac were not the same dog.

11. [16]

    The Local Court determined two questions. The first concerned the identity of the dogs, namely whether Zac, the dog which Mrs Cooke purchased from the Council’s pound on 4 October 2008, was Apache Jack, the dog which Mr Young bought from a breeder in 2007 and which disappeared from his property in July 2008.

12. [17]

    The second question determined by the Local Court was whether the rights of Mr Young in relation to the dog had been extinguished by the applicable law, namely The Companion Animals Act 1998 (NSW), by virtue of Mrs Cooke purchasing the dog from the Council’s pound and having it registered in her name.

13. [18]

    On the first question, namely the identity of the dog, the Local Court had before it evidence from both Mr Young and Mr and Mrs Cooke as to the circumstances surrounding the way in which the dog came into their respective possession. The Local Court also had evidence as to how the dog left Mr Young’s possession. It also had before it photographs of the dog provided by each of the parties. Mr Young attached photographs of the dog to an affidavit which, he told the Court, were taken when the dog was between 5 and 7 months of age. Mrs Cooke attached a photograph of the dog taken while it was in her possession, although the precise date of that photograph was in issue.

14. [19]

    There was other evidence from which the Local Court felt able to draw inferences as to the ownership of the dog. That evidence and the inferences drawn from it were referred to, albeit sparingly, in Bradd LCM’s judgment.

15. [20]

    Bradd LCM was not satisfied on the balance of probabilities that the dog which Mr Young claimed he owned was the same as the one in the possession of Mr and Mrs Cooke. Putting it shortly, Apache Jack was not Zac. This finding was made on the evidence before the Court, including the absence of a microchip (which a breeder was obliged by the legislation to insert into a pup before sale), the dog’s appearance based upon the photographs provided by the parties, inconsistencies in Mr Young’s usage of the dog’s name and, as well, inferences of fact which were available and drawn.

16. [21]

    Notwithstanding that finding which, without more, would result in a judgment for the defendants, the Local Court, appropriately, went on to deal with the second issue, namely what the consequences of s 69 of the Companion Animals Act were with respect to the entitlement of Mr and Mrs Cooke to the dog.

17. [22]

    Bradd LCM held that s 69(2) of the Companion Animals Act gave Mrs Cooke good title to the dog, which the Council’s pound had sold to her pursuant to its power of sale under the Act. Bradd LCM observed that the provisions of the Companion Animals Act had the effect that once a dog was surrendered to a Council pound and sold, the previous owner of the dog had no right of action against the person to whom the dog was sold, but had a right of action against the local council responsible for the pound, if it could be established that the local council, or its relevant officer, had not acted in good faith or had acted without reasonable care.

18. [23]

    No proceedings have been brought against the Local Council.

Mr Young’s Pleadings

1. [24]

   It is convenient to deal with the proposed Amended Summons handed up in court by Mr Young.

2. [25]

   The document is headed “Amended Summons – Judicial Review”. It describes the type of claim as:

3. [26]

   The Decision Maker is described as Bradd LCM. The Grounds are described as follows:

4. [27]

   Under the heading “THE ISSUES AND ORDERS SOUGHT – THE PROOF AND THE MATERIAL FACTS BEFORE THE TRIAL COURT”, Mr Young sets out 33 paragraphs of material. Included in the first 21 paragraphs are assertions of fact, many of which do not appear in the Local Court judgment, arguments and assertions of legal consequences, and allegations that Mr and Mrs Cooke committed perjury and fabricated evidence. As well, there are assertions that the evidence before the Local Court was unreliable and that the Court engaged in inappropriate fact finding.

5. [28]

   Paragraphs 19 and 20 of the proposed Amended Summons are in the following form:

6. [29]

   The plaintiff then sets out the orders and declarations which he seeks. Those orders and declarations are as follows:

Possible Basis for these Proceedings

1. [30]

   One possible basis for these proceedings is the exercise by the plaintiff of his statutory entitlement to an appeal from the Local Court. A party to civil proceedings in the Local Court, who is dissatisfied with a judgment of that court, has a limited right of appeal to the Supreme Court. That right is conferred by Division 4 of Part 3 of the Local Court Act 2007.

2. [31]

   Section 39 of the Local Court Act provides:

3. [32]

   Section 40 of the Local Court Act provides:

4. [33]

   There is no appeal from the Local Court to the Supreme Court on a question of fact.

5. [34]

   The principles of law as to what constitutes a question of law have been extensively canvassed in the authorities since at least the decision of the Chief Justice, Sir Frederick Jordan in Australian Gaslight Co v Valuer-General (1940) 4 SR (NSW) 126 at 137.

6. [35]

   Kirby J in RL & D Investments Pty Ltd v Bisby (2002) NSWSC 1082 at [13] encapsulated the relevant authorities in this way:

7. [36]

   This Court has consistently applied these principles, particularly in the context of statutory appeals: see Lee v Knapik [2015] NSWSC 334 at [25]-[39]; Curtis v Charles Darwin University [2014] NSWSC 1032 at [51]-[56]; International Fashion Group Pty Ltd v Jonco Imports Pty Ltd [2014] NSWSC 60 at [33]-[35]; Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111 at [58]-[59].

8. [37]

   A second possible basis for the plaintiff’s proceedings to challenge the judgment of the Local Court is s 69 of the Supreme Court Act 1970, which provides that the Court’s previous jurisdiction to grant any relief or remedy by way of a writ of prohibition or certiorari continues after the commencement of the Supreme Court Act. However, in such a case the Court proceeds by way of order rather than by way of writ. The seeking of relief under s 69 of the Supreme Court Act is commonly referred to as proceedings by way of judicial review.

9. [38]

   Pursuant to s 69 of the Supreme Court Act, this Court is exercising a supervisory jurisdiction over inferior courts and tribunals. It is not exercising an appellate function. The function which it exercises under s 69 is distinct from the hearing of a statutory appeal under the Local Court Act. Relevantly here, if s 69 is being relied upon, then Mr Young would be seeking an order for relief in the nature of a writ of certiorari.

10. [39]

    Application under s 69 of the Supreme Court Act for relief in the nature of a writ of certiorari is available for an error of law which amounts to either a jurisdictional error, or an error of law (jurisdictional or non-jurisdictional) that appears on the face of the record of the proceedings: ASIC v Farley [2001] NSWSC 326 at [9]; (2001) 51 NSWLR 494 at 498.

11. [40]

    A convenient description of the approach of this Court to applications for prerogative relief involving an inferior court or tribunal is to be found in the judgment of Rothman J in Barr v Broomby [2014] NSWSC 1852, where his Honour said:

12. [41]

    I agree with those principles and will apply them in the determination of this case.

Submissions on the Motions

1. [42]

   The plaintiff submits that the proposed Amended Summons serves to clarify the claims he wishes to make and ensures that the Court is apprised of all relevant matters. He submits that the proposed amended summons should be allowed, and that no prejudice would flow from that course.

2. [43]

   The defendants submit that the proposed Amended Summons, like the existing Summons, is an example of a document which obscures rather than reveals the true nature of the plaintiff’s case in this Court. The defendants point to the fact that it is unclear on the proposed Amended Summons whether the proceedings are an appeal pursuant to s 39 of the Local Court Act or proceedings for prerogative relief pursuant to s 69 of the Supreme Court Act. They submit that the content of the Amended Summons is discursive, includes irrelevant material, and makes scandalous allegations against the defendants, which in combination mean that the Amended Summons causes “embarrassment” within the meaning of r 14.28 of the Uniform Civil Procedure Rules (“UCPR”).

3. [44]

   Further, the defendants submit that the Local Court’s finding as to the identity of the dog in question was a finding of fact based on evidence before the Local Court and, accordingly, there was no error of law which could be the subject of an appeal to this Court. The defendants further submit that once the identity of the dog was determined in their favour, there was no other basis for the plaintiff to have succeeded in the Local Court, and there is no arguable case in this Court. Accordingly, they submit that the proceedings should be summarily dismissed pursuant to r 13.4 of the UCPR.

4. [45]

   In response to these submissions, Mr Young accepts that the determination of the identity of the dog in the Local Court was a finding of fact by the Magistrate. However, he indicates that he wishes to argue that this finding of fact constituted an error of law. When the legal test, which I have described above, was outlined to Mr Young in the course of his submissions, he clarified his position by informing the Court that he wished to say that there was no evidence, or no reliable evidence of any weight, upon which the Local Court could properly and lawfully act in making the finding of fact with respect to the identification of the dog.

5. [46]

   Mr Young also sought to identify for the Court an argument which appears to have been referred to in both the proposed Amended Summons and the existing Summons, namely that the provisions of the Civil Liability Act 2002 impacted upon the Companion Animals Act in a way which meant that, in the factual circumstances here, the defendants were not entitled to rely upon any claim to title pursuant to the Companion Animals Act.

6. [47]

   The defendants accept that such a question of statutory construction, if adequately formulated, may constitute a question of law in respect of which Mr Young would have a right of appeal under the Local Court Act. However, they point out that such a claim was not made before the Magistrate in the hearing, and should not be allowed to be made now.

Plaintiff’s Summons and Proposed Amended Summons

1. [48]

   The plaintiff’s Notice of Motion seeks an order permitting him to file a proposed Amended Summons in the form identified in the course of the hearing.

2. [49]

   The plaintiff’s current Summons and his proposed Amended Summons leave much to be desired in both their form and content. I accept the defendants’ submissions that the documents are embarrassing and, accordingly, the proposed Amended Summons ought not to be allowed in the form in which it is proposed, and the existing Summons by which the proceedings were commenced ought to be struck out.

3. [50]

   I come to that conclusion because of the following features of the documents:

4. [51]

   There are other reasons why the documents are bad in form. The defendants’ submission that they are discursive and rambling is correct. The Summons and the proposed Amended Summons seem to assert facts which may not have been before the Local Court and, generally, the documents are not in the form required by the UCPR.

5. [52]

   Some latitude must be allowed to the plaintiff, given that he has drafted the documents himself and is not presently represented. Even allowing for this, I am nevertheless unpersuaded that the proposed Amended Summons should be allowed to be filed in its present form, or that the existing Summons should be permitted to stand on the Court record.

6. [53]

   Accordingly, I refuse to grant the plaintiff leave to file his proposed Amended Summons. The consequence of this is that the plaintiff’s Notice of Motion dated 31 October 2015 must be dismissed.

7. [54]

   The order sought by the defendants’ Notice of Motion dated 27 August 2015 – that the Summons filed 16 July 2015 be struck out pursuant to r 14.28 of the UCPR – ought to be made. To that extent, the defendants’ Notice of Motion is upheld.

Summary Dismissal

1. [55]

   The defendants also seek an order, pursuant to r 13.4 of the UCPR, that the proceedings be dismissed.

2. [56]

   It is well settled that the exercise of the Court’s discretion to summarily dismiss proceedings before a hearing must be approached with great caution. The Court has to be satisfied that the case for summary dismissal is clear, and that the plaintiff ought to be deprived of a hearing of his claim. As Gleeson JA recently stated in Pi v Zhou [2016] NSWCA 24 at [9]:

3. [57]

   The defendants contend that the central question of the identity of the dog is purely a question of fact and that, as the Magistrate had evidence available to him upon which to make that decision, there is simply no basis for this Court to intervene.

4. [58]

   I accept that the determination of the identity of the dog is a question of fact. However, the plaintiff’s argument, properly understood, is that either there was no evidence before the Local Court which enabled the Magistrate to determine that the dog in the defendants’ possession was not the plaintiff’s dog or, alternatively, that the evidence relied upon by the Magistrate was so demonstrably unreliable that in making this finding the Magistrate committed an error of law.

5. [59]

   It is fair to say, at least on the material referred to in the judgment of the Local Court and in the exhibits provided to this Court, that the plaintiff has a very difficult argument confronting him. As appears from his Honour’s judgment, it seems clear that there was at least some evidence on which he based his findings as to the identity of the dog. As earlier mentioned, the Court was provided with photographs, taken at different times, of the dog which was in in the plaintiff’s possession and in the dog currently defendants’ possession. There were other facts from which the Magistrate drew inferences as to the identity of the dog. It was clearly open to the Magistrate as a matter of fact to come to the conclusion which he did on the basis of the material which has been drawn to my attention.

6. [60]

   However, these observations ignore the somewhat more nuanced argument of the plaintiff which, in effect, is that although there may have been evidence before the Magistrate, that evidence was of such little weight that a court viewing it objectively would regard it as being the equivalent of no evidence at all. The plaintiff asserts that he wishes to argue that the evidence was demonstrated at the hearing to be obviously unreliable.

7. [61]

   I do not have the transcript of the proceedings before the Magistrate. I do not have the pleadings in the Local Court, nor do I have all of the exhibits.

8. [62]

   As I have said, it appears to me that the plaintiff faces a very difficult argument. However, I am not prepared to hold that the result of that argument is so certain to me, at this stage of the proceedings, that the proceedings ought to be summarily dismissed.

9. [63]

   Accordingly, to the extent that the defendants seek summary dismissal of the proceedings, I would not be prepared to grant such relief.

Summary

1. [64]

   In summary, the position reached has been this. The defendants have not succeeded in having the proceedings summarily dismissed, but have succeeded in having the existing Summons struck out. The plaintiff has sought leave to file an Amended Summons, but unsuccessfully.

2. [65]

   Clearly, the proceedings being on foot and the plaintiff being in a position where he needs to file a proper pleading, the Court needs to make orders with respect to the appropriate procedure to enable that to be done.

3. [66]

   In light of the plaintiff’s failed attempts to produce a Summons in proper form, I am not prepared to grant leave without limitation to the plaintiff to amend his pleading. The appropriate relief is to enable the plaintiff to bring a further motion, if he wishes, for leave to file an Amended Summons. However, in that motion it will be necessary for the plaintiff to seek that leave by reference to a properly pleaded document which adequately identifies any question of law upon which the plaintiff wishes to exercise his right to relief under the Local Court Act, or prerogative relief under the Supreme Court Act.

Referral for Pro Bono Assistance

1. [67]

   The plaintiff sought an order in the course of his submissions for a referral by the Court for pro bono assistance to enable him to draft a Summons in an appropriate form.

2. [68]

   Such referral is appropriate. Accordingly, pursuant to the provisions of r 7.36 of the UCPR, I will make an order that the plaintiff be referred for assistance with respect to the drafting or settling of a proposed Amended Summons.

Security for Costs

1. [69]

   The final order sought by the defendants was that the plaintiff provide security for costs.

2. [70]

   At the time the hearing took place in this Court, the Local Court was reserved upon a question relating to the costs of the proceedings in that Court. It was anticipated that judgment would be delivered shortly after the hearing concluded.

3. [71]

   Having regard to the nature of the claim, the fact that the plaintiff will need to produce a Summons in proper form before being able to proceed any further, and the fact that the judgment of the Local Court remained outstanding at the time of the hearing of these proceedings, it is not appropriate, in my view, for this Court to proceed to consider the defendants’ application for security for costs at this time. The balance of the Motion by which that order is sought will be stood over to a future date.

Costs

1. [72]

   The general rule is that costs follow the event: r 42.1 UCPR. It is open to the Court, in its discretion, to make some other order.

2. [73]

   Here, the defendants have been substantially successful – they have resisted the proposed amendment, and had the existing Summons struck out. There is no viable pleading. There will not be any basis for this matter to proceed until the plaintiff produces a proper pleading.

3. [74]

   In those circumstances, the appropriate order is one which accords with r 42.1 of the UCPR, namely that the plaintiff must pay the defendants’ costs of both Notices of Motion.

Orders

1. [75]

   I make the following orders:

   1. (1)

      Notice of Motion of the plaintiff dated 31 October 2015 be dismissed.

   2. (2)

      Order, pursuant to r 14.28 of the Uniform Civil Procedure Rules, that the Summons filed by the plaintiff on 16 July 2015 be struck out.

   3. (3)

      Dismiss the defendants’ claim for summary judgment as set out in Order 1 of the defendants’ Notice of Motion dated 27 August 2015.

   4. (4)

      Stand over the balance of the defendants’ Motion of 27 August 2015.

   5. (5)

      Order that, in the event that the plaintiff seeks leave to file an Amended Summons, then he must do so by way of a notice of motion filed on or before 23 May 2016, accompanied by such affidavits in support as the plaintiff wishes to rely upon.

   6. (6)

      Order that such notice of motion and accompanying affidavits in support be served no later than 30 May 2016.

   7. (7)

      Order that the plaintiff be granted leave to make such motion returnable before the Common Law Registrar at 9 am on 6 June 2016.

   8. (8)

      Order that the plaintiff pay the defendants’ costs of the proceedings on both Notices of Motion.

   9. (9)

      Pursuant to the provisions of r 7.36 of the UCPR, order that the plaintiff be referred to the Registrar for referral to a member of the Pro Bono Panel for assistance with respect to the drafting or settling of a proposed Amended Summons.