[2004] NSWSC 533
Lamb (Trustee) in the matter of Ariss (Bankrupt) v Ariss [2006] FAC 582
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Source
Original judgment source is linked above.
Catchwords
[2004] NSWSC 533
Lamb (Trustee) in the matter of Ariss (Bankrupt) v Ariss [2006] FAC 582
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Judgment (9 paragraphs)
[1]
Background
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".
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".
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).
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.
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.
On 16 July 2015, Mr Young filed a document in the Supreme Court styled "Summons Judicial Review" seeking relief by way of judicial review [3] .
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.
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.)
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.
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.
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.
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.
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.
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.
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.
[2]
Requirement for leave
Mr Young seeks leave to appeal against both the costs order and the stay order. Leave is required because those decisions are interlocutory [4] . Mr and Mrs Cooke submitted that leave may also be required pursuant to s 101(2)(c) on the ground that the proposed appeal contains no bona fide grounds relating to issues other than costs [5] . It is not necessary to take up time addressing that question. It is clear that there is a requirement for leave under s 101(2)(e).
It is well established that leave to appeal will ordinarily not be granted from a decision involving a matter of practice and procedure unless the application raises an issue of principle or the applicant can demonstrate that a significant injustice is likely to result if leave is not granted [6] . This is because unless appellate courts exercise restraint in interfering with decisions of trial judges on matters of practice and procedure, the result will be excessive delays, expense and uncertainty in the conduct of litigation [7] .
[3]
Proposed grounds of appeal
Mr Young (who is self-represented) has not served a draft notice of appeal as required under the Rules [8] . Accordingly, it is necessary to refer to his submissions to attempt to discern his proposed grounds of appeal. Essentially, Mr Young advanced three contentions.
First, that Mr Young 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 Mr and Mrs Cooke. Reference was made to the disentitling conduct of Mr and Mrs Cooke in the Local Court proceedings which Bradd LCM took into account when refusing to make any costs order in their favour in those proceedings, and the 10-year history of alleged serious legal harassment by Mr and Mrs Cooke on Mr Young.
Second, Mr Young contended that the transcript of the hearing before Harrison J disclosed that his Honour had a "severe prejudice against indigent litigants"; made veiled threats against Mr Young; obtained extra judicial evidence; did not reveal from whom or where that evidence came; was more interested in "money" than the merits of Mr Young's case; and did not have an open mind. It seems that these contentions are directed to an allegation of bias against Harrison J and accordingly the assertion of a denial of procedural fairness.
Third, in the course of oral argument and at the invitation of the Court, Mr Young reiterated the submissions made by his counsel before Harrison J to the effect that the costs order was unreasonable because the delay in acting on the referral order made by Garling J was the fault of a third party (the Bar Association) not himself, and the costs order would have the effect of stifling his pursuit of the proceedings in the Supreme Court.
Although the summons seeking leave to appeal challenged the whole of the decision below, in oral argument, Mr Young acknowledged on more than one occasion that he did not contend that the costs order itself was unreasonable; rather, his complaint was that it was unreasonable that the costs order (assessed in a gross sum of $3,500) was made payable forthwith and the stay order was imposed until that sum was paid to Mr and Mrs Cooke [9] .
In my view, the first and second matters do not warrant a grant of leave to appeal. These complaints do not raise an issue of principle. Nor, for the reasons that follow, has Mr Young demonstrated that the matters are clearly arguable and that significant injustice is likely to result if leave to appeal is not granted on those grounds. The position is different in relation to the third matter.
[4]
Duty of candour
The duty of disclosure in ex parte applications is well established [10] . A party making an application to the Court ex parte is bound by a duty of candour and "the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all material facts which that party would presumably have brought forward in his defence to that application" [11] . Differing views have been expressed as to whether a non-disclosure will not be material unless it might have had an effect upon the Court's decision or unless it be likely to influence the Court's decision [12] . Nothing turns on that distinction in the present case.
Mr Young submitted, in effect, that such a duty of disclosure extends beyond ex parte applications and applies in cases where the opposing party's legal representative is unaware of matters which are material to the application before the court. That submission ignored the nature of the proceedings before Harrison J. The litigation was adversarial with both parties represented before the court on the adjournment application. As Barrett J has remarked in relation to a similar complaint of lack of candour on a contested application, "a party can be presumed - indeed expected - to put their best case forward". [13] Barrett J continued with the following qualification [14] :
That is not to say that a wilful misleading of the court will pass without remedy, but a mere failure to present a neutral case or to seek to remedy some deficiency in an opponent's evidence cannot lay the foundations for subsequent intervention.
Further, there are two short answers to the non-disclosure complaint. First, it is not apparent why Mr and Mrs Cooke should be subject to an obligation on a contested adjournment application "to supply the place of the absent party". Secondly, and in any event, the historical matters which Mr Young complains were not brought to the attention of Harrison J by counsel for Mr and Mrs Cooke were not material to the adjournment application. What is material depends upon the nature of the case sought to be advanced and must be viewed in the context of all the relevant circumstances. Here, the Court was dealing with an adjournment application made by Mr Young and the appropriate costs order. The conduct of Mr and Mrs Cooke in earlier proceedings was extraneous to those questions.
[5]
Apprehended or actual bias
As to the second matter, Mr Young's complaint did not distinguish between apprehended or actual bias.
As to apprehended bias, having reviewed the transcript of the hearing on 20 July 2016, I am satisfied that nothing in the exchanges between his Honour and counsel or elsewhere in the transcript might reasonably cause a fair-minded lay observer to apprehend that Harrison J might not bring an impartial and unprejudiced mind to the resolution of the adjournment application, and in particular, the appropriate costs order. [15]
The complaint of actual bias is equally unfounded. Mr Young seemed to assert actual bias in the form of pre-judgment. To succeed on appeal, Mr Young would need to establish that his Honour was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" [16] . Of importance in this regard are the remarks of Hayne J in Jia Legeng at [185], which were cited in the summary of principles in Reid v Commercial Club (Albury) Ltd [17] at [71] as follows:
In [Jia Legeng], Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
Insofar as Mr Young is to be taken as asserting actual bias in the form of pre-judgment, no foundation for that complaint appears in the materials before this Court.
[6]
Failure to take into account a relevant matter or a plainly unreasonable decision
In the course of his reasons for judgment, his Honour, after noting that the application for security for costs was supported by evidence setting out the anticipated costs of the proceedings, observed that:
The plaintiff has filed no evidence in response from which he has either established, or from which some indication could be inferred, that he has sufficient funds to meet any adverse costs order against him in the event such an order were made.
His Honour did not give express reasons for making the costs order "payable forthwith". However, it would seem from the transcript of the adjournment application that his Honour had in mind that because an application for security for costs was on foot, Mr Young should demonstrate that he was prepared to fund the vicissitudes of the litigation. [18]
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.
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 [19] , and a plaintiff is not required to provide security for costs in judicial review proceedings except in "exceptional circumstances": UCPR r 59.11.
Accepting that appropriate restraint must be exercised by appeal courts in interfering in matters of practice and procedure, I am of the view that it is clearly arguable that his Honour's discretionary decision miscarried and that significant injustice is likely to result if leave to appeal is not granted with respect to this proposed ground.
[7]
Other matters
The written submissions of Mr Young raised a number of other matters which do not have any substance and do not warrant a grant of leave to appeal. No purpose would be served in addressing those matters in these reasons.
[8]
Conclusion and orders
There should be a grant of leave to appeal limited to Mr Young's third complaint as framed in oral argument on the leave application.
I propose the following orders:
1. Grant leave to appeal limited to the following ground:
the primary judge's discretionary decision that costs (assessed in a gross sum of $3,500) should be payable forthwith and the proceedings stayed pending payment of that sum to the defendants miscarried because: (a) his Honour failed to take into account as a relevant factor that Mr Young was not at fault in having to seek an adjournment of the hearing on 20 July 2016 and such orders would likely stifle the proceedings, it being common ground that Mr Young was impecunious; or (b) the decision was plainly unreasonable in all the circumstances.
1. Direct that Mr Young file and serve a notice of appeal limited to the ground referred to in order (1) above within 14 days.
2. Costs of the summons seeking leave to appeal are costs in the appeal.
[9]
Endnotes
Pursuant to s 69 of the Supreme Court Act 1970 (NSW).
A party dissatisfied by a decision of the Local Court may appeal to the Supreme Court on a question of law pursuant to s 39(1) of the Local Court Act 2007 (NSW) or with leave of the Supreme Court on a question of mixed fact and law pursuant to s 40(1) of the Local Court Act.
Pursuant to s 69 of the Supreme Court Act.
Supreme Court Act 1970 (NSW), s 101(2)(e).
Supreme Court Act, s 101(2)(c); See, for example, Dillon v Gosford City Council [2011] NSWCA 328 at [53]; Wood v Balfour [2011] NSWCA 382 at [139].
ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307 at [29] (Tobias JA, Basten JA and Handley AJA agreeing); Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[33] (Basten JA, Tobias AJA agreeing).
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 at [9] citing Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 322-323. See also Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19].
Uniform Civil Procedure Rules 2005 (NSW), r 51.12(2)(d).
(Tcpt 24/2/17 at 2, lines 1-4, and 14, lines 17-23).
Trewenack v Clippers Anchorage Pty Ltd (1983) Ritchie Practice Decisions 13,030, Powell J.
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 682 (Isaacs J).
The lower threshold was accepted in Trewenack v Clippers Anchorage Pty Ltd (Powell J); Milcap Publishing Group AB v Coranto Corporation Pty Ltd (1995) 32 IPR 34 (Davies J); Lamb (Trustee) in the matter of Ariss (Bankrupt) v Ariss [2006] FCA 582 at [25] (Sundberg J); cf Re South Downs Packers Pty Ltd [1984] 2 Qd R 559 at 566 (Connolly J)).
J Aron Corporation and Another v Newmont Yandal Operations Pty Ltd and Others (2004) 183 FLR 90; [2004] NSWSC 533 at [18].
[2004] NSWSC 533 at [18].
For the test of apprehended bias see Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 437; [2011] HCA 48 at [31].
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J, Hayne J agreeing at [176]).
[2014] NSWCA 98 at [68]-[73] (Gleeson JA, Emmett AJA and Tobias AJA agreeing).
Tcpt 20/7/16 at 3, lines 36-39.
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] (Basten JA) in relation to the equivalent rule in proceedings in this Court: UCPR r 51.50.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 March 2017
Solicitors:
Applicant (Self-represented)
Chapman Thackeray Law Pty Ltd (Respondents)
File Number(s): 2016/248942
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: [2016] NSWSC 1388
Date of Decision: 20 July 2016
Before: Harrison J
File Number(s): 2015/208296