Young v Cooke

[2018] NSWSC 588

Supreme Court

New South Wales

Medium Neutral Citation:	Young v Cooke [2018] NSWSC 588
Hearing dates:	3 October 2017
Date of orders:	03 May 2018
Decision date:	03 May 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The legal representatives for the Cookes shall bring in short minutes of order reflecting this judgment within 7 days of its publication.
Catchwords:	COSTS – application for security for costs – principles – r 50.8 of the Uniform Civil Procedure Rules 2005 – whether or not special circumstances demonstrated – discretionary factors – prospects of success – impecuniosity – question of bona fides – conduct in litigation – risk of stultification – special circumstances established – exercise of discretion – quantum of security – directions
Legislation Cited:	Companion Animals Act 1998 (NSW) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules (NSW)
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 Gurnett v The Macquarie Stevedoring Company Pty Ltd (1956) 95 CLR 106; [1956] ALR 691 Hastings v Hastings [2009] NSWCA 294 Knight v Beyond Properties Pty Ltd [2005] FCA 764 Kostas v HIA Insurance Securities Services Pty Ltd (2010) 241 CLR 390; (2010) 270 ALR 228; [2010] HCA 32 Lall v 53–55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Little v The Commonwealth (1947) 75 CLR 94; [1947] HCA 24 Pi v Zhou [2017] NSWCA 16 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082 The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 Young v Cooke [2016] FCA 1215 Young v Cooke [2016] NSWSC 1386 Young v Cooke [2016] NSWSC 408 Young v Cooke [2017] FCA 26 Young v Cooke [2017] NSWCA 33
Category:	Costs
Parties:	Gary Young (Plaintiff / Respondent) Bill Cooke (First Defendant / Applicant on Motion) Helena Cooke (Second Defendant / Applicant on Motion)
Representation:	Counsel: A Coombes (Plaintiff / Respondent) D Stewart with A Hopkins (First and Second Defendants / Applicants on Motion)   Solicitors: Chapman Thackeray (First and Second Defendants / Applicants on Motion)
File Number(s):	2015/00208296

Judgment

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. 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

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”).

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

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).

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.

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

1. The magistrate erred in finding that there was sufficient reliable evidence to enable a finding of fact to be made as to the identity of the dog the subject of the proceedings below.

2. The magistrate erred in not considering whether the statutory protection afforded to buyers by s 69(2)(a) of the Companion Animals Act 1998 (NSW) should be limited to circumstances in which the buyer acts in good faith.

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.

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

1. The magistrate erred in finding that the dog in the possession of the defendants was not the dog purchased by the plaintiff by reason of the defendants' dog not being microchipped at the time it came into the defendants' possession.

2. The magistrate erred in finding that the dog in the possession of the defendants is not the plaintiff's dog by reason of differences in head shape.

3. The magistrate erred in not considering whether the statutory protection afforded to buyers by s 69(2)(a) of the Companion Animals Act 1998 (NSW) should be limited to circumstances in which the buyer acts in good faith.

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”.

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).

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).

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

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.

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

[4] Mr Young and Mr and Mrs Cooke are neighbours, about two kilometres apart in a rural area known as Gundary, north-east of Goulburn, New South Wales. The Local Court proceedings concerned a claim by Mr Young against Mr and Mrs Cooke for damages for conversion or detention of a dog named “Apache Jack”.

[5] Mr Young claimed that he purchased “Apache Jack”, a working farm dog, in 2007 from a dog breeder in the Goulburn area. In July 2008, his dog disappeared from his property. In 2009, he discovered that Mr and Mrs Cooke were in possession of a dog which he claimed was Apache Jack. Despite demand they refused to return the dog. Mr and Mrs Cooke’s case was that a dog wandered onto their property around September 2008, that a council ranger took the dog (which did not have a microchip) away, and that Mrs Cooke later purchased the dog from the local Council in October 2008. Mrs Cooke then registered the dog, which she had named “Zac”.

[6] In a judgment delivered on 18 June 2015, Bradd LCM was not satisfied, on the balance of probabilities, that Zac and Apache Jack were the same dog. He also found that having purchased the dog from the Council, Mr and Mrs Cooke could not be held liable under the Companion Animals Act 1998 (NSW).

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]):

[11] Mr Young did not have the dog he bought identified by microchip. He relies on appearance. He says the markings on the chest of "Zac" are distinctive and prove that it is the dog "Apache Jack". He does not produce any documents relating to his purchase of the dog. He is uncertain when. In 2007, he purchased the dog. He says that he obtained the dog from breeders in Goulburn.

[12] Mr Young asserts that in cross-examination Mr Cooke said that he was not sure whether "Zac" is the dog, whereas Mr Young is absolutely certain it is, because the white marking on the chest is like a fingerprint. Mr Young asserts that Mr and Mrs Cooke saw the dog in July 2008, when it was assisting Mr Young to herd horses. Mr and Mrs Cooke had an old dog, and had a motive to obtain another dog.

[13] Counsel for the defendants' asserts that if the dog had been obtained from breeders, it is likely that the breeders would have complied with the Companion Animals Act 1998 ("the Act"). In 2007 s 8 of the Act enacted:

(1) A companion animal must be identified as required by the regulations from the time the animal is 12 weeks old.

(2) A companion animal must not be sold unless it has been identified as required by the regulations (even if it is less than 12 weeks old when it is sold).

The Companion Animals Regulation 1999 states, at r 5(1)(a):

(1) For the purposes of this Regulation, the following categories of identified companion animals are specified: (a) category 1 companion animals, being companion animals that are required to be identified for the purposes of section 8 of the Act,

R 6(1) states:

(1) The identification of a category 1 or category 2 companion animal is to be by means of the implantation in the animal of a microchip of a kind or specification approved by the Director-General by order published in the Gazette.

Since the breeder was required by legislation to have the dog identified by microchip, it is likely that the dog was identified by microchip. Since "Zac" did not have a microchip, when found by Mrs Cooke, it is unlikely that "Zac" is "Apache Jack".

[14] Counsel for the defendants' asserts that Mr Young must prove on the balance of probabilities that "Zac" is "Apache Jack", not merely that the dogs appearance is similar to "Zac".

[15] Mr Young has attached to his affidavit some photographs of the dog, which he says were taken when the dog was between 5-7 months of age. He describes the dog as being brown with white-markings on his front. The photographs tendered with the affidavits of Mr Young and Mrs Cooke depicts dogs of different ages. The head of "Zac" is broader and less pointed than the photograph of the dog. The white markings on each dog are similar to each other.

[16] Mr Young has used various names for the dog. In cross-examination, he said that the name of the dog was "Apache Jack' or "Patch the dog", although he had used "Blue Dog". He says that by September 2007, he had settled on "Apache Jack". In the District Court on 23/11/2011, Mr Young told Judge Johnstone that the name of the dog was "Rob". Counsel for the defendants asserts that the failure of Mr Young to consistently name the dog casts doubt on Mr Young's veracity.

[17] There are discrepancies between the state of the dog and "Zac" in September 2008. The dog had a collar, was well fed and had no fleas, whereas "Zac" had no collar, was malnourished and had fleas. Mr Young asserts that the dog found by Mr and Mrs Cooke was not in the state they say it was as can be seen by a photograph taken of the dog by Mrs Cooke when the dog was sold to her.

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

[26] The fact of "Zac" not being identified in accordance with the legislation makes it unlikely that it is the dog Mr Young bought from a breeder.

[27] I am not satisfied on the balance of probabilities that "Zac" and "Apache Jack" is the same dog based on appearance, because the shape of the head is different, as seen in attachment 2, page 2 of the affidavit of Mr Young and page 15 of the affidavit of Mrs Cooke.

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]):

[7] In reaching the latter conclusion, the magistrate observed that the effect of s 69(2) of the Companion Animals Act is that when a dog is sold under a power conferred by that Act, the buyer obtains the ownership of the dog and the person who was the owner of the dog ceases to have any claim in respect of the dog or any right of action in respect of the sale except as specifically provided by the Act. Relevantly, s 69(3) provides that a person may claim against the Council if the person establishes that the Council did not act in good faith or acted without reasonable cause in relation to the sale of the dog.

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

[28] Mrs Cooke surrendered "Zac" to the council pound. Once surrendered, the person in charge of the pound was obliged to notify the owner, unless best endeavours fail to establish the name and address of the owner, Section 69(2) of the Companion Animals Act 1998 gives Mrs Cooke good title to the dog. It enacts:

(2) When an animal is sold under a power conferred by this Act:

(a) the buyer obtains the ownership of the animal freed and discharged from any right, interest, trust or obligation to which it was subject immediately before sale, and

(b) the person who was the owner of the animal immediately before its sale ceases to have any claim in respect of the animal or any right of action in respect of the sale except as specifically provided by this Act.

Once a dog is surrendered and sold, a person has a right under s 69(3):

A person is not prevented from recovering damages from a council in respect of the sale of an animal if the person establishes that the council, or the person who effected the sale, did not act in good faith or acted without reasonable care.

There is no right of action against the person to whom the dog is sold.

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] In a subsequent judgment delivered on 2 May 2016, Bradd LCM declined to make an order for costs in favour of Mr and Mrs Cooke on the ground that their conduct disentitled them as the successful party to costs. He found that Mr and Mrs Cooke had encouraged the litigation by their words and actions and had prolonged litigation by giving evidence that was probably false and caused Mr Young to extensively cross-examine them and call additional witnesses to give evidence.

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

[47] The evidence of Mr and Mrs Cooke regarding Mr Lewis, the evidence of Mr Cooke regarding the herding of the horses, and the evidence of Ms Cooke about what she said to persons after she seized the dog, proves on the balance of probabilities that Mr and Mrs Cooke acted in bad faith when they seized the dog, by not telling Mr Young that they had seized a dog that was similar to the dog they had seen with Mr Young. Mr and Mrs Cooke have encouraged litigation by their words and actions, and they have prolonged litigation by giving evidence that is probably false, and caused Mr Young to extensively cross-examine both Mr and Mrs Cooke, and call additional witnesses to give evidence.

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

[9] On 16 July 2015, Mr Young filed a document in the Supreme Court styled “Summons Judicial Review” seeking relief by way of judicial review.

[10] On 30 March 2016, Garling J heard various interlocutory motions in the proceedings – one by Mr and Mrs Cooke dated 27 August 2015 seeking summary dismissal of the proceedings or alternatively an order that Mr Young provide security for costs. The other motion filed by Mr Young dated 31 October 2015 sought leave to file an amended summons. Garling J made the following orders on 13 April 2016 in relation to both notices of motion (Young v Cooke [2016] NSWSC 408):

(1) Mr Young’s notice of motion dated 31 October 2015 be dismissed;

(2) that the summons filed by Mr Young on 16 July 2015 be struck out;

(3) dismiss Mr and Mrs Cooke’s claim for summary judgment;

(4) stand over the balance of Mr and Mrs Cooke’s motion for security for costs

(5) the application for leave to file an amended summons be made by notice of motion filed on or before 23 May 2016 accompanied by supporting affidavits on which Mr Young wishes to rely;

(6) that such notice of motion and accompanying affidavits in support be served no later than 30 May 2016;

(7) such motion to be made returnable before the Common Law Registrar on 6 June 2016;

(8) Mr Young pay Mr and Mrs Cooke’s costs of the proceedings on both notices of motion;

(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.

[Footnotes omitted.]

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]):

[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.

[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.

[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.

[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.

[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.

[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.

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

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

[11] No notice of motion seeking leave to file an amended summons was filed by Mr Young as contemplated by order 5. However, on 6 June 2016 Registrar Bradford ordered Mr Young to file and serve his amended summons by 14 June 2016. An amended summons was filed on 9 June 2016. This asserted error in the magistrate’s decision involving two questions of law:

• first, that the factual finding concerning the identity of the dog was based on “tainted evidence amounting to no evidence at all”; and,

• second, that his Honour erred in failing to “consider and … declare [Mr Young’s] rights with respect to the Civil Liability Act 2002”. (It seems that this ground is directed to the failure of Mr and Mrs Cooke to inform the Council officer that the dog that they ultimately purchased was at least similar in appearance to the dog that Mrs Cooke had apparently seen some months earlier with Mr Young, and that this failure amounted to negligence within the meaning of the Civil Liability Act.)

[12] On 23 June 2016, Mr and Mrs Cooke filed an amended notice of motion identifying the relevant power(s) of the Court upon which they relied for an order for security for costs. That application came before Harrison J on 20 July 2016. Mr Young, who was not present in court, was represented by Mr A Coombes, of counsel. Mr Coombes informed his Honour that he only appeared for the limited purpose of making an application to adjourn the motion seeking security for costs.

[13] Harrison J recorded in his reasons for judgment that the adjournment application was based upon the fact that Mr Young had, despite his best endeavours and apparently as a result of some difficulties with the Bar Association, only been referred to counsel the previous day and Mr Coombes had not yet had an opportunity to review most of the papers. Mr and Mrs Cooke objected to an adjournment.

[14] Counsel for the parties advanced competing submissions as to the appropriate costs order if an adjournment was granted. Counsel for Mr Young submitted that each party should bear their own costs of the hearing on 20 July 2017, or alternatively that costs of that day be costs of the motion for security for costs. Counsel for Mr and Mrs Cooke accepted that the prejudice of an adjournment could “probably be solved by costs” but submitted that costs should be payable forthwith.

[15] His Honour raised with counsel for Mr Young the prospect that if a costs order was made against Mr Young, the proceedings should be stayed until those costs were paid. In response, counsel for Mr Young emphasised that on his understanding Mr Young was not a man of any great means and based on his very limited instructions such an order could potentially “stymie” Mr Young’s further pursuit of the proceedings.

[16] Importantly, on the issue of stultification of the proceedings, counsel for Mr and Mrs Cooke acknowledged that:

… we haven’t questioned the fact that Mr Young is impecunious or indigent,

whilst also submitting that Mr Young’s impecuniosity did not arise from anything done by Mr and Mrs Cooke. Counsel sought a gross sum costs order in the sum of $3,500.

[17] After hearing further argument, his Honour adjourned the proceedings for about 20 minutes to allow Mr Coombes an opportunity to obtain instructions by telephone from Mr Young concerning his asset and financial position, as he had not filed any evidence in opposition to the security for costs motion. Following that short adjournment, Mr Coombes informed his Honour that he could not really advance any further submissions, other than to indicate that on his instructions, Mr Young owned no property and his sole source of income was some form of pension.

[18] Ultimately, his Honour granted the adjournment sought by Mr Young, but ordered that:

(1) Mr Young pay Mr and Mrs Cooke’s costs occasioned by the adjournment in the gross sum of $3,500 and that those costs should be payable forthwith;

(2) the Supreme Court proceedings be stayed pending payment by Mr Young of that sum to Mr and Mrs Cooke.

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]):

[36] It seems that his Honour disregarded that Mr Young was not at fault in seeking an adjournment, that it was common ground that Mr Young was impecunious (see [16] above) and that the “payable forthwith” costs order would likely stultify the proceedings. His Honour also seems to have treated Mr Young’s lack of financial means as an adverse factor justifying making the costs order payable forthwith and imposing a stay until those costs were paid, when that matter was a factor favourable to the stultification argument advanced by Mr Young’s counsel.

[37] In addition, the effect of his Honour’s orders was to pre-empt the outcome of the application for security for costs, in circumstances where impecuniosity, without more, will generally be insufficient to establish “special circumstances” to order security for costs of an appeal (to the Supreme Court) under UCPR r 50.8, and a plaintiff is not required to provide security for costs in judicial review proceedings except in “exceptional circumstances”: UCPR r 59.11.

[Footnotes omitted.]

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

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

50.8 Security for costs

(1) In special circumstances, the court may order that such security as the court thinks fit be given of the costs of an appeal to the court.

(2) Subject to subrule (1), no security for the costs of an appeal to the court is to be required.

(2A) If an appellant or cross-appellant fails to comply with an order under this rule, the court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.

(3) Subrules (1), (2) and (2A) do not affect the powers of the court under rule 42.21 (which relates to security for costs).

RELEVANT LEGAL PRINCIPLES

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.

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:

[19] Special circumstances must be shown before an order for security for costs of an appeal can be made under UCPR r 51.50.

[20] The considerations engaged by the concept of "special circumstances" were considered by this Court in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 (Beazley, Santow and Ipp JJA), and in Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing).

[21] In Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18], Basten JA identified the following principles: (1) that no order for security should be made in the absence of "special circumstances"; (2) that consideration of what may constitute special circumstances should not be fettered by some general rule of practice; (3) that impecuniosity, without more, will usually be insufficient; (4) that an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature; (5) that where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made; and (6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.

[22] The last two factors, it was suggested by Basten JA, might better be seen as being relevant to the exercise of the discretion rather than as potential special circumstances.

[23] When weighing all the circumstances of the case in the exercise of the discretion to order security for costs, it is necessary to keep in mind that the weight to be given to any circumstance depends not only on its own intrinsic persuasiveness, but upon the impact of the other circumstances which have to be weighed (see P S Chellaram & Co Ltd v China Ocean Shipping (1991) 102 ALR 321 at 323; [1991] HCA 36 per McHugh J).

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]):

[30] These and other cases were reviewed by Hodgson JA sitting alone, in Porter v Gordian Runoff Ltd [2004] NSWCA 69. His Honour considered that the weight of authority in New South Wales supported the view “that impecuniosity” can of itself amount to special circumstances within Pt 51, r 16(1). His Honour qualified this view by saying “I also accept that orders would not normally be made simply because an appellant is impecunious”.

[31] We would not state the conclusion to be drawn from the cases in the same terms as did Hodgson JA. If anything, the weight of authority is to the effect that something more is usually required. It may be however, that our view may involve no more than looking through a different edge of the prism of this line of authority.

…

[36] In this case, there was considerable focus upon the appellants’ impecuniosity. As the cases to which reference has been made demonstrate, impecuniosity is a relevant matter to take into account in determining whether there are “special circumstances”. This case however was not like those to which we have referred where security was ordered. The appellants have not brought multiple proceedings in the Court or any oppressive series of applications. They were defendants to a claim brought by the respondent and unsuccessfully defended that claim, although not all claims made by the respondent were successful. In particular, only one out of four representations relied upon under s 52 were found to have been established. The appellants have an appeal as of right in this Court which they have sought to exercise. The Court has not been prepared to find that the appeal is without merit. The subject matter of the appeal is not trifling. It represents a substantial damages claim to the respondent who was successful in its claim at first instance. The reverse side of the coin of the plaintiff’s success is that it represents a substantial financial burden to the appellants, to the extent that their financial survival is at stake. In the end result, the burden may be more apparent than real in the sense that in their present circumstances neither appellant is in a position to pay that claim. However, there are other considerations relevant to the appellants. In particular, there is no other basis, so far as the Court is presently aware, upon which the first appellant could be wound up or the second appellant could be made bankrupt other than as a result of enforcement of the judgment in this case. Liquidation or bankruptcy are themselves significant deficits. Further, the appellants unchallenged evidence was that they do not themselves have, nor do they have recourse to, funds to provide the security. Their appeal therefore would be frustrated if the order for security remained in place.

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

[33] In our opinion, “special circumstances”, being the requirement of the Supreme Court Rules for ordering security for the costs of an appeal cannot be predicated upon a “general rule” of practice. To do so runs the danger of inverting the requirements of Pt 15, r 16 so as to make the exception provided for in subs (1) the general practice whereas subs (2) requires the opposite. If an application or security for costs of an appeal is made in this jurisdiction, it is necessary to have regard to the circumstances of each case.

[34] There is no doubt that when a court is invested with a discretion over a period of time, principles and matters emerge which guide that discretion. That does not, and cannot as a matter of law, transpose itself into a general rule of practice. A circumstance which may emerge in a series of cases as being relevant must be weighed with other circumstances relevant to the case before the court.

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]):

[21] The reference to an appeal which is shown to be “hopeless” is taken from the judgment of Sheller JA in Saba v National Australia Bank Ltd [1999] NSWCA 93 at [12]. For present purposes, that may be taken to mean an appeal which is shown to lack reasonable prospects of success or not to be reasonably arguable. In most cases, it will appear from a reading of the judgment below and the notice of appeal that the appeal is reasonably arguable. In such cases the Court will not be required to engage upon an extensive consideration of the merits. In other cases, where the error is not obvious, perhaps because the notice of appeal is not professionally drafted, some further inquiry may be necessary.

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:

9. Each case must be judged on its own merits as to whether “special circumstances” exist [Kennedy v McGeechan [1978] 1 NSWLR 314 at [315]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 at [33]].

10. There are several general propositions that should serve as the starting point when considering what may constitute "special circumstances" in the particular circumstances of this case:

a. There is an inherent resumption in the requirement for "special circumstances" and in the terms of r 50.8(2) against the ordering of the provision of security for costs in appeals to the Court;

b. There is a disinclination to order a plaintiff who is a natural person to provide security, at least in the absence of some factor in addition to impecuniosity [Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32] and the line of cases referred to there];

c. A party's prima facie right to pursue an appeal should not be frustrated merely by reason of that party's impecuniosity [Saba v National Australia Bank Ltd [1999] NSWCA 93 at [13]].

d. When a court is invested with a discretion over a period of time, principles and matters emerge which guide that discretion. That does not, and cannot as a matter of law, transpose itself into a general rule of practice. A circumstance which may emerge in a series of cases as being relevant must be weighed with other circumstances relevant to the case before the court [Transglobal Capital Pty Ltd v Yolarno Pty Ltd at [34]].

[The relevant authorities relied upon by the plaintiff, with respect to para 9 and subparas 10 (b), (c) and (d), were included in parentheses.]

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

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

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

EVIDENCE

35. The Cookes relied upon the following evidence given by affidavit:

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

2. Laura Ann Shearman (affirmed 16 December 2015); and

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

Those witnesses were not required for cross-examination.

36. The Cookes also relied upon some documentary evidence.

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

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

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. the prospects of success on appeal;

2. the impecuniosity of Mr Young;

3. the implications of compliance with orders of the Court; and

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

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

PROSPECTS OF SUCCESS ON APPEAL

Nature of the Appeal

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:

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

The Identity of the Dog: Grounds 1 and 2

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.

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]).

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.

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

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):

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences...

(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences… or (c) if it has misdirected itself in law… Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law… If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law…

[Citations and footnotes omitted.]

(see B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [98] (per Allsop P)).

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.

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]):

[50] Kirby J went on to state that there would, however, be an error of law in the circumstances described by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 as follows:-

“The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.”

[51] In Hanlon v McKay Investments Pty Limited [2001] Tas SC 37, the Court (Evans J) stated:-

“6. The many authorities dealing with terms such as ‘in point of law’ and ‘a question of law’ are a testament to the difficulty of discerning the border between issues of fact and issues of law in some circumstances. No distinction is drawn in the authorities between a ‘question of law’ and a ‘point of law’, Barry v Shoobridge [1971] Tas SR 265, Burbury CJ at 269.

7. The term ‘point of law’ has been interpreted widely in England. In Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, Lord Radcliffe, at 36, said:-

‘When the case comes before the Court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the Court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.’”

[52] In Hanlon (supra), reference was also made to the observations of Lord Denning MR in Instrumatic Ltd v SupabraseLtd [1969] 1 WLR 519 wherein, at 521, it was observed:-

“There are many tribunals from which an appeal lies only on a ‘point of law’: and we always interpret the provision widely and liberally. In most of the cases, the tribunal finds the primary facts (which cannot be challenged on appeal): and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the Courts. That was settled, once and for all, in Edwards (Inspector of Taxes) v Bairstow … In other cases, the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion in a way which is plainly wrong, it errs in point of law, and its decision can be reviewed by the Courts.”

[53] Accordingly, for the purposes of the present proceedings, it is important to be clear as to the true nature and scope of the available appeal to this Court and the authorities to which I have referred assist in this respect.

[54] It is clear that an error in point of law may include:-

(1) A finding made where there is no evidence to support it or draws an inference from facts that cannot be reasonably drawn.

(2) A finding that no person acting judicially and properly instructed as to the relevant law could have made.

(3) Where a Court has misdirected itself in law: Australian Gas Light Co v Valuer-General (supra).

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

[90] It is sufficient, for present purposes, to determine that the ground usually

described as a “no evidence ground” raises a question of law. And the first

respondent accepted that a no evidence ground may form a basis for a statutory appeal under s 67(1). The first respondent further submitted, however, that whether “there was sufficient evidence before the tribunal such that a ‘no evidence’ submission could not be made … is a factual question rather than the identification of a decision of the tribunal of a question with respect to a matter of law”.

[91] The first respondent’s further submission should be rejected. Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The tribunal’s factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v Macquarie Stevedoring Co Pty Ltd (No 2):

“… in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.”

A tribunal that decides a question of fact when there is “no evidence” in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the tribunal, when it decided the separate question identified by the parties, upon which the tribunal could find that the disputed notices had been served.

[Footnotes omitted.]

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:

It is true that in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact. In the present case no considerations of law affected the matter at all. It was simply a question whether the evidence adduced was enough to enable the jury to draw an inference of fact.

Particular Issues Regarding Prospects for Grounds 1 and 2

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.

Grounds 1: Microchipping

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”.

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)).

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

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

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

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

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

55. There was no dispute as to this summary.

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.

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).

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.

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.

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.

Ground 2: Appearance of Dog

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.

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.

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).

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.

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.

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

Ground 3: Statutory Immunity

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).

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.

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.

67. 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]).

68. 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).

69. 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

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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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.

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.

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

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. 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. 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. 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. 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. 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. 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. 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. 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

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

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).

SECURITY FOR COSTS

Conclusion

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.

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.

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.

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.

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

Quantum

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.

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.

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

DIRECTIONS

101. The Court proposes to make the following orders:

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

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

3. Costs of the further amended notice of motion are reserved.

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

**********

Decision last updated: 10 May 2018