Background
3 The proceedings in the Court of Appeal involved an unsuccessful application by Mr Young for an extension of time in which to seek leave to appeal against the striking out of portions of a statement of claim that he had filed in the District Court of New South Wales against a number of defendants, including Mr and Mrs Cooke.
4 Subsequently, in 2013, Mr Young took proceedings in the Local Court against Mr and Mrs Cooke, claiming damages for conversion or detinue in respect of a dog called Apache Jack. On 18 June 2015, Local Court Magistrate Bradd (Bradd LCM) found, first, that he was not satisfied, on the balance of probabilities, that the dog which Mr Young called, by among other names, Apache Jack, was the same dog, based on its appearance, as the dog which Mr and Mrs Cooke had in their possession the subject of Mr Young's claim. Secondly, his Honour found that, in any event, because Mr and Mrs Cooke had purchased the dog, in respect of which Mr Young claimed, from the local council, pursuant to the provisions of the Companion Animals Act 1998 (NSW), s 69(2) and (3) of that Act provided that Mr Young had no cause of action against the purchaser (i.e. Mr and Mrs Cooke) but he retained a right of action to recover damages from the council in respect of the sale of that 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. Accordingly, his Honour found in favour of Mr and Mrs Cooke but allowed the parties to be heard as to costs.
5 On 8 July 2015, Mr and Mrs Cooke filed the certificate of assessment of costs in the Local Court that they had been awarded two years beforehand by the Court of Appeal and, upon that filing, the costs certificate operated as a judgment or order of the Local Court.
6 On 16 July 2015, Mr Young commenced proceedings by summons in the Supreme Court of New South Wales challenging the magistrate's decision as raising a question of law under s 39 of the Local Court Act 2007 (NSW).
7 On 18 December 2015, Bradd LCM heard argument and evidence concerning the award of costs and reserved his decision.
8 On 15 March 2016, the official receiver issued the bankruptcy notice and, as I have said, it was served on 30 March 2016, the same day as Mr Young's summons challenging the liability decision in the Local Court was heard by Garling J in the Supreme Court. His Honour reserved judgment.
9 On 6 April 2016, Mr Young commenced these proceedings, seeking to set aside the bankruptcy notice. On that day, a registrar ordered that that application be stood over to 27 April 2016 and granted an extension of time within which Mr Young could comply with the terms of the bankruptcy notice, under s 41(6A) of the Bankruptcy Act, until the adjourned date.
10 On 13 April 2016, Garling J published his reserved decision and made a number of orders. In giving his reasons, Garling J said that (Young v Cooke [2016] NSWSC 408 at [59]):
… at least on the material referred to in the judgment of the Local Court [of 18 June 2015] and in the exhibits provided to this Court, that the plaintiff has a very difficult argument confronting him.
11 As appears from his Honour's judgment, it seems clear there was at least some evidence on which Bradd LCM had based his findings as to the identity of the dog. Garling J noted that Mr Young wished to assert that the evidence before Bradd LCM was, obviously, unreliable. Garling J pointed out that he did not have a transcript of the proceedings before the magistrate, the pleadings or all of the exhibits, and that Mr Young "faces a very difficult argument". However, his Honour was not persuaded that, at that stage of the proceedings, it was appropriate summarily to dismiss them.
12 His Honour struck out Mr Young's summons and refused Mr Young's application to amend that summons in the form of the document he had placed before his Honour. His Honour also dismissed Mr and Mrs Cooke's application for summary judgment. He ordered that Mr Young could seek leave to file an amended summons by way of a notice of motion that he had to file on or before 23 May 2016 together with such affidavits in support as he wished to rely on, and that these be served by 30 May 2016. Garling J made any such motion returnable before the common law registrar on 6 June 2016.
13 On 27 April 2016, another registrar stood the bankruptcy proceedings over for three months to 24 August 2016. She made orders for the filing of evidence by Mr Young by 25 May 2016, by Mr and Mrs Cooke by 22 June 2016 and by Mr Young in reply on 13 July 2016. The registrar ordered that a short outline of submissions be filed by each of the parties, Mr Young by 27 July 2016 and Mr and Mrs Cooke by 19 August 2016. However, the registrar on 27 April 2016 overlooked the necessity for making a further order under s 41(6A) to extend the time for compliance with the bankruptcy notice.
14 On 2 May 2016, Bradd LCM published his reasons in respect of the application for costs. He made an order that there be no order for costs in the proceedings, notwithstanding the success of Mr and Mrs Cooke in defending them. His Honour noted in those reasons that, during his closing address at the trial, Mr Young had sought damages of $78,750. His Honour said that, in the statement of claim in the District Court, that, ultimately, came in some form before the Court of Appeal, Mr Young had claimed that the dog had a value between $400 and $500 and he also claimed general, aggravated and exemplary damages. In his Local Court statement of claim, Mr Young alleged a value for the dog at between $3,000 and $5,000 and sought an unspecified sum for general and aggravated damages. His Honour noted that, in his affidavit of 12 May 2013, Mr Young had stated that the dog was valued at between $3,000 and $5,000 and eventually would have been valued at $15,000. His Honour made a number of findings about the evidence given by Mr and Mrs Cooke, including finding that they were unreliable witnesses. He found that Mr and Mrs Cooke had seen Mr Young's dog in May 2008 and that when they had found a dog in September 2008, being the dog the subject of the proceedings, they would have known at that time that Mr Young owned a similar dog. His Honour found 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. (emphasis added)
15 In the event, on 6 June 2016, Mr Young obtained leave from the common law registrar to file an amended summons pursuant to the orders made by Garling J. That summons raised two questions of law in appeal as of right under s 39(1) of the Local Court Act 2007 (NSW). That section provided that a party to proceedings before the Local Court who was dissatisfied with a judgment or order could appeal to the Supreme Court but only on a question of law. The amended summons set out two questions of law, namely, whether Bradd LCM had, first, made an error of law "when he used tainted evidence amounting to no evidence at all to decide the identity of the dog the subject of this action" and, secondly, by failing to consider and fully particularise and declare Mr Young's rights with respect to the Civil Liability Act 2002 (NSW) in his findings of both 18 June 2015 and those of 2 May 2016.
16 On 20 July 2016, the Supreme Court proceedings came before Harrison J. On that occasion, a pro bono barrister, who had accepted instructions the night before, appeared on behalf of Mr Young. However, at that point, the pro bono counsel was in a position to, and had been briefed to, only apply for an adjournment before his Honour. The proceedings were before his Honour on Mr and Mrs Cooke's application for an order for security for costs. Harrison J said, and I agree, that the proceedings had "a long and somewhat unfortunate history". In the end, his Honour determined that Mr Young would be granted his adjournment so that he could obtain appropriate legal assistance, but that he should be ordered to pay the costs occasioned by the adjournment, which his Honour assessed as $3,500 and ordered that that sum be payable forthwith. His Honour ordered that the proceedings be stayed pending payment by Mr Young of the $3,500 to Mr and Mrs Cooke.
17 On 18 August 2016, Mr Young filed a notice of intention to appeal to the Court of Appeal from Harrison J's order.
18 On 24 August 2016, a registrar allocated the bankruptcy proceedings to a judge for hearing. The register ordered that the parties could not rely on any further evidence without leave of the Court. The registrar, no doubt, did so conscious that the only evidence that had been filed, pursuant to the orders of 27 April 2016, was an affidavit of the solicitor for Mr and Mrs Cooke on 29 June 2016, a week later than the time limited by the registrar's order of 27 April 2016 and that they had also filed their submissions on 18 August 2016. Mr Young had filed nothing until he filed a lengthy affidavit sworn on 19 August 2016, together with detailed submissions.
19 The last part of the forensic saga that I have recited, apart from the hearing today, was a summons that Mr Young filed in the Supreme Court on 8 September 2016, in which he sought orders that, in effect, would confirm, that the order made by Bradd LCM on 2 May 2016, that there be no order as to costs, included, in some way, the Local Court's order of 8 July 2015 giving effect to the cost certificate of the assessment of Mr and Mrs Cooke's costs in the Court of Appeal. That summons is returnable before the Supreme Court on 19 September 2016.