Solicitors:
Plaintiff in person
Chapman Thackeray Law (Defendants)
File Number(s): 2016/269791
[2]
Judgment: EX TEMPORE
By summons filed on 8 September 2016, Gary Young commenced proceedings against Bill and Helena Cooke, the defendants. He claimed the following relief:
"For a declaration that costs mentioned in paragraph 7 of His Honour Magistrate Bradd's order of 2 May of 2016 are costs referred to and included in the overall order and thus costs mentioned in paragraph 7 are unavailable to defendants. Further details see attached."
The defendants, by motion filed on 16 September 2016, sought dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4.
The context of Mr Young's claim for relief in the summons can be explained by reference to the reasons for decision of Magistrate Bradd dated 2 May 2016 in the matter of Young v Cooke, which were proceedings brought by Mr Young against the Cookes in the Local Court. In [7] of the reasons, Magistrate Bradd said:
"Mr Young was ordered to pay to Mr and Mrs Cooke costs of an appeal filed in the Court of Appeal, which costs have been assessed as $6,281.26."
At the conclusion of the matter Magistrate Bradd made the following order, as set out in [49] of the reasons:
"I decline to make an order for the plaintiff to pay the costs of the defendants."
There were earlier disputes between the parties, the detail of which is not important for present purposes, which resulted in litigation. At the conclusion of one such proceeding, the Court of Appeal (Meagher and Emmett JJA) refused Mr Young's application for leave to appeal and ordered him to pay the Cookes' costs of the proceedings: Young v Cooke [2013] NSWCA 79. These costs were subsequently assessed in an amount of $6,281.26. This is the costs order and amount which were noted by Magistrate Bradd at [7] of his Honour's reasons set out above.
Mr Young argued before me that the amount of $6,281.26 (which comprised the amount for costs in the Court of Appeal) was, or ought be, subsumed in the Magistrate's order made on 2 May 2016. This was the basis for the relief claimed in the summons in the present proceedings.
Mr Stewart, who appears on behalf of the Cookes, contends that the proceedings ought be dismissed pursuant to UCPR r 13.4 on the bases that: they disclose no reasonable cause of action; they are both vexatious and frivolous; and they amount to an abuse of process of the Court. He says that the relief claimed could not possibly be granted having regard to the circumstance that the Local Court has no jurisdiction whatsoever to affect an order for costs made by the Court of Appeal having regard to the respective positions of those courts in the judicial hierarchy. He says that, in those circumstances, no reasonable cause of action is disclosed and the proceedings are frivolous and vexatious and ought be dismissed.
Mr Stewart also referred to other decisions of this Court, including a decision of Harrison J made on 20 July 2016 in which the defendants applied for security for costs in other proceedings brought in this Court. I am informed by Mr Young that the orders made by Harrison J are the subject of a notice of application of intention to appeal to the Court of Appeal.
If I were not otherwise convinced that the proceedings ought be dismissed and I needed to consider whether they amounted to an abuse of process, it might be necessary for me to consider the reasons for decision of Harrison J given on 20 July 2016. However, as I consider that there are several other reasons why the proceedings ought be dismissed, and as Mr Young has indicated that he wishes to appeal that decision, it is not necessary for present purposes to take it into account.
The present dispute between Mr Young on the one hand and the Cookes on the other appears to be part of a long-standing feud. However, the details of this feud are not in evidence. Indeed I rejected an affidavit sought to be read by Mr Young in opposition to the notice of motion on the grounds of relevance. Accordingly, I pay no particular regard to the length of the feud or its details.
The important point for present purposes is that the application for relief sought in the summons cannot possibly be granted by reason of its terms and the respective positions in the judicial hierarchy of the Local Court and the Court of Appeal.
Mr Young raises an issue relating to the statutory interpretation of s 148(3)(b) of the Civil Procedure Act 2005 (NSW) which provides as follows:
"Subject to the rules of court applicable in the lower court, the power of the lower court to make orders as to costs includes a power to make orders with respect to the costs of
...
(b) any step taken in the proceedings before the transfer order was made."
Mr Young contends that, in the absence of authority, it is possible to construe s 148(3)(b) as conferring power on the Local Court to affect an order for costs made by the Court of Appeal. I do not consider that that construction of s 148(3)(b) is open and I reject it.
I note that, Mr Young raises in his written submissions matters of fairness, equity and the interests of justice and relies on ss 62, 63, 69 and s 75 of the Supreme Court Act 1970 (NSW). He says that having regard to the provisions of those sections I should act in accordance with "equity", which he regards as synonymous with fairness, and that I should deal with all matters in controversy between the parties pursuant to s 63.
One of the difficulties with that submission is that, once again, it fails to take account of the judicial hierarchy and the circumstance that when one is dealing with one proceeding one has jurisdiction only with respect to that proceeding and not with respect to all matters in controversy between the parties insofar as they may be manifest in separate proceedings brought either in this or other courts.
For completeness, I raise a further matter which is not raised in the summons but is raised by Mr Young in his written submissions on which he relies at the hearing before me today. He has raised the issue of what he alleges is "premeditated perjury" by the defendants and says in circumstances where the Magistrate refused to grant leave to Mr Young to commence proceedings against the Cookes for perjury it was open to this Court to intervene and grant such leave and that that would be a fair and just result.
He relies on the provisions of s 338 of the Crimes Act 1900 (NSW) which provides:
Restrictions on prosecutions for perjury
(1) A person is not to be prosecuted for perjury except:
(a) by the Director of Public Prosecutions, or
(b) at the direction of the Attorney General, or
(c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.
(2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court.
(3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.
Magistrate Bradd, being the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed, refused leave. Accordingly, the avenue provided by s 338(1)(c) of the Crimes Act has been closed to Mr Young. In these circumstances, s 338(2) does not apply and this Court has no power to grant leave to Mr Young to institute proceedings for perjury.
In his written submissions, Mr Young refers me to various well-established authorities which indicate that courts ought be reluctant to dismiss proceedings on the basis that they are frivolous or vexatious or disclose no reasonable cause of action or are otherwise an abuse of process of the Court by reason of the importance of granting litigants an opportunity to be heard. I have noted those decisions to which reference has been made. However, I regard the present case as so clearly a case which attracts the operation of UCPR 13.4 that I do not consider that the reservations articulated in those decisions ought lead to any other result other than that the summons ought be dismissed with costs.
[3]
Orders
Accordingly, I make the following orders:
1. Order that the summons filed on 8 September 2016 be dismissed.
2. Order the plaintiff to pay the defendants' costs of the proceedings which include the costs of today's motion.
[4]
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Decision last updated: 29 September 2016