FEDERAL COURT OF AUSTRALIA
Young v Cooke [2017] FCA 26
ORDERS
NSD 1766 of 2016 BETWEEN: GARY YOUNG
Applicant
AND: BILL COOKE
First Respondent
HELENA COOKE
Second Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
2 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application for an extension of time to appeal from the judgment of Rares J delivered on 15 September 2016 be refused.
2.The applicant pay the respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
This is an application by Mr Young for an extension of time to appeal from a decision of a single judge of this Court dismissing an application to set aside a bankruptcy notice: Young v Cooke [2016] FCA 1215.
The bankruptcy notice was issued at the request of the respondents (“the Cookes”) on 25 March 2016. The total debt claimed in the notice is $8,647.07 including a judgment debt in the sum of $8,198.22. The judgment debt arises from a judgment dated 8 July 2015 issued by the Local Court of New South Wales at Sydney, in relation to costs assessed pursuant to an order that Mr Young pay costs to…
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Details
- AGLC
- Young v Cooke [2017] FCA 26
- Case
- [2017] FCA 26
- Decision Date
CaseChat Overview and Summary
In the case of Young v Cooke, Mr Young sought an extension of time to appeal a decision of a single judge of the Federal Court, which had ordered him to pay costs to the Cookes. The primary dispute centred around the ownership of a dog, Apache Jack, and the circumstances under which the Cookes had taken possession of the dog from the local council and subsequently purchased it. Mr Young had previously lost a case against the Cookes in the Local Court and was now seeking to appeal that decision.
The primary legal issue before the court was whether the proposed appeal had sufficient merit to warrant an extension of time to appeal from the primary judge's decision. The court needed to determine whether the appeal had a reasonable chance of success and whether there were any exceptional circumstances that justified the extension of time.
The court found that the proposed appeal lacked merit and did not have a reasonable chance of success. The court noted that Mr Young had not provided sufficient evidence to support his claim that the bankruptcy notice was an abuse of process, a contention he had emphasised in his application for an extension of time. The court also found that Mr Young had delayed in pursuing his rights in the proceedings and had not demonstrated any inability to pay the costs ordered by the primary judge. The court concluded that the appeal was hopeless and refused the application for an extension of time to appeal, ordering Mr Young to pay the Cookes' costs of the application.
In summary, the court found that the proposed appeal had no merit and did not warrant an extension of time. The application was refused, and Mr Young was ordered to pay the Cookes' costs of the application.
The primary legal issue before the court was whether the proposed appeal had sufficient merit to warrant an extension of time to appeal from the primary judge's decision. The court needed to determine whether the appeal had a reasonable chance of success and whether there were any exceptional circumstances that justified the extension of time.
The court found that the proposed appeal lacked merit and did not have a reasonable chance of success. The court noted that Mr Young had not provided sufficient evidence to support his claim that the bankruptcy notice was an abuse of process, a contention he had emphasised in his application for an extension of time. The court also found that Mr Young had delayed in pursuing his rights in the proceedings and had not demonstrated any inability to pay the costs ordered by the primary judge. The court concluded that the appeal was hopeless and refused the application for an extension of time to appeal, ordering Mr Young to pay the Cookes' costs of the application.
In summary, the court found that the proposed appeal had no merit and did not warrant an extension of time. The application was refused, and Mr Young was ordered to pay the Cookes' costs of the application.
Orders
Orders of the court
1. The application for an extension of time to appeal from the judgment of Rares J delivered on 15 September 2016 be refused.
2. The applicant pay the respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Before the primary judge, Mr Young did not argue that the bankruptcy notice was an abuse of process. Even so, on the application for an extension of time to appeal, Mr Young placed great weight on his contention that the notice is an abuse of process.PROCEDURAL BACKGROUND TO HEARING BEFORE PRIMARY JUDGE On 6 April 2016, a registrar ordered that the application to set aside the bankruptcy notice be stood over to 27 April 2016 and extended time for compliance with the notice to that date. On 27 April 2016, another registrar adjourned the application to 24 August 2016 and made orders including orders for the filing of evidence and submissions. Mr Young was ordered to file and serve any further affidavit evidence by 25 May 2016, and any evidence in response by 13 July 2016. On 24 August 2016, District Registrar Wall allocated Mr Young’s application to a judge for hearing and ordered that the parties could not rely on any further evidence without leave of the Court.HISTORY OF DISPUTES BETWEEN MR YOUNG AND THE COOKESDistrict Court proceeding and appeal to Court of Appeal At [3] of his Honour’s reasons, the primary judge noted that the Court of Appeal proceeding, in which Mr Young was ordered to pay costs, involved an unsuccessful application by Mr Young for an extension of time for leave to appeal from a decision of a judge in the District Court, striking out portions of a statement of claim filed by Mr Young against several defendants including the Cookes. According to the Court of Appeal’s judgment, the claim which was the subject of their decision was described as “unlawful imprisonment”. There is no suggestion that the costs order made by the Court of Appeal related to the disputes between Mr Young and the Cookes about the dog, Apache Jack.Local Court proceeding At [4] of his Honour’s reasons, the primary judge described the Local Court proceeding, mentioned above. The primary judge noted the magistrate’s finding that, because the Cookes had purchased the dog from the local council, pursuant to the provisions of the Companion Animals Act 1998 (NSW), Mr Young had no cause of action against the Cookes but retained a right of action to recover damages from the council in respect of the sale of the dog if he were able to establish that the council or person who effected the sale did not act in good faith or acted without reasonable care. The primary judge also noted that the magistrate allowed the parties to be heard on the question of costs, being the costs of the Local Court proceeding. There was a hearing on costs in December 2015 and the magistrate reserved his decision. At [14] of his Honour’s reasons, the primary judge referred to the magistrate’s decision that there would be no order for costs in the Local Court proceeding, notwithstanding the Cookes’ success. The primary judge recorded the magistrate’s finding that the Cookes were unreliable witnesses, who had seen Mr Young’s dog in May 2008. The magistrate concluded that, when they found the dog the subject of the proceeding in September 2008, the Cookes would have known that Mr Young owned a similar dog. The magistrate found that: on the balance of probabilities…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.
Evidence
Evidence Before The Court
As to the 2015 Supreme Court proceeding, the primary judge gave the following reasons (at [30] to [38]):30.… I am not satisfied that there is sufficient legal or factual merit in Mr Young’s unadjudicated, but currently stayed, application before the Supreme Court to appeal on questions of law that make it proper and reasonable to allow that to be litigated before the bankruptcy notice is required to be answered. 31.As Mr Young pointed out, Bradd LCM’s reasons of 2 May 2016 involved some unfavourable factual findings against Mr and Mrs Cooke and about their behaviour in the course of their conduct of the litigation. However, it is important to appreciate that his Honour did not in any way seek to qualify his earlier decision of 18 December 2015 that, although the dogs were similar, they were not the same dog.32.I note that in his decision of 18 December 2015, in addition to making comparisons about the appearance of the dog in the photographs, Bradd LCM supplemented his findings by holding that Mr Young had not produced any documents relating to his purchase of the dog, despite the fact that he said he had obtained the dog from breeders in Goulburn. His Honour found that breeders had an obligation, under regulations made pursuant to s 8 of the Companion Animals Act, to microchip animals within 12 weeks of birth. His Honour found that, since the legislation required breeders to insert microchips into dogs, it was likely that Apache Jack would have had a microchip and the evidence before him was that the dog, owned by Mr and Mrs Cooke, did not have a microchip at the time they found him. 33.There has been delay by Mr Young in pursuing both his rights in this application, by his late filing of evidence, and in the Supreme Court proceedings. He has not put any evidence before me of an inability to pay the $3,500 ordered by Harrison J or of any application to his Honour to vary his order on the basis of his circumstances. Mr Young did inform me that he was a pensioner, but that does not mean that he is without any resources to meet the costs order.34.I think a fair reading of Bradd LCM’s reasons of 2 May 2016 was that his Honour considered that this fight about the ownership and conduct of the parties with respect to the dog or dogs was a very unfortunate one and that both parties had engaged in conduct that one would have hoped neighbours would not display. That is neither here nor there for the purposes of my decision, but it is clear that these parties are fighting over an issue when it would be better if they sat back and thought about whether they should continue this war of litigation on many fronts.35.Be that as it may, I agree with what Garling J said, that Mr Young’s application in the Supreme Court to challenge the magistrate’s order of 18 December 2015 has very difficult hurdles to meet. It is not apparent that there is any jurisdictional error or error on the face of the record of the Local Court, at least so far as that record is before me in the shape of Bradd LCM’s reasons for judgment, assuming those reasons are part of the Local Court’s record. 36.While I have no doubt that Mr Young feels a sense of grievance with the decision of 18 December 2015, I am not satisfied that his claim for review of that decision has sufficient legal or factual merit: Guss 171 ALR at 606 [39]-[40]. Were Mr Young to be successful in the Supreme Court application, the consequence would be that the matter would be remitted to the Local Court, quite probably to be heard by a different magistrate, having regard to Bradd LCM’s findings about credibility of both parties. In my opinion the likelihood of such a result is not sufficiently supported by legal and factual material before me in support of Mr Young’s claim. I am mindful that Bradd LCM subsequently made significant factual and critical findings against Mr and Mrs Cooke in his costs judgment of 2 May 2016.37.However, ultimately, his Honour did not rely on questions of Mr and Mrs Cooke’s credit in coming to his decision about the lack of identity between Mr Young’s dog and that owned by Mr and Mrs Cooke. Rather, his Honour appears to have decided the matter on the basis of what he regarded as objective material, namely, first, the lack of a microchip in the dog which Mr and Mrs Cooke had found on their property that they then gave to the council and later purchased from it (as indicating that it was not the dog that Mr Young claimed to have purchased form a breeder), and, secondly, the similarity of, but lack of precise identity between, the two dogs together with his Honour’s finding that Mr and Mrs Cooke could not be held liable under the Companion Animals Act.38.Although Mr Young argued that the magistrate’s findings about Mr and Mrs Cooke’s credit and conduct in the costs judgment could support his claim that they lacked good faith and were in breach of their duty of care in negligence under the Civil Liability Act, in my opinion, his Honour was entitled to conclude that in respect of their purchase of the dog that they now own they were protected under s 69(3) of the Companion Animals Act.EVIDENCE TENDERED BY MR YOUNG ON APPLICATION FOR EXTENSION OF TIMEMr Young’s affidavits
Decision
Reasons for decision
There is no merit in Mr Young’s argument that the judgment debt was “removed”, affected or displaced by the 2 May 2016 decision of the Local Court. It provides no foundation for granting an extension of time to appeal.CONCLUSION The proposed appeal is hopeless. The application for an extension of time to appeal must be refused with costs.
Ratio Decidendi
Legal Principle Established
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