FEDERAL COURT OF AUSTRALIA

Young v Cooke [2017] FCA 26

ORDERS

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:

1    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.

2    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 Mr and Mrs Cooke following Mr Young’s unsuccessful application for leave to appeal to the Court of Appeal of the Supreme Court of New South Wales (“Supreme Court”) from orders made in the District Court of New South Wales (“District Court”): Young v Cooke [2013] NSWCA 79.

3    In this case, the delay is minimal and there is no suggestion of prejudice to the Cookes if the extension is granted. Accordingly, the main question to be decided is whether the appeal has merit.

4    It is well established that an extension of time, even for a short period, may be refused if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALR 211 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J and the cases there cited: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

Grounds for application to set aside bankrutpcy notice

5    At the outset ([1] of his Honour’s reasons), the primary judge recorded Mr Young’s statement that he was served with the bankruptcy notice on 30 March 2016.

6    The primary judge recorded that Mr Young sought to set aside the bankruptcy notice on the basis that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order of the subject of the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action or proceeding in which the judgment or order was obtained within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

7    At [20] of his Honour’s reasons, the primary judge described Mr Young’s relevant claim by reference to Supreme Court proceeding 2015/00208296, being an action brought by Mr Young against the Cookes (“2015 Supreme Court proceeding”). His Honour recorded:

Mr Young argued that he had a good claim in the Supreme Court for seeking to have the Local Court’s decision that there be no order as to costs on liability set aside and, as a consequence, of obtaining, at a further hearing, a significant award of damages in the order of $78,000 for the loss of his dog.

8    The relevant decision of the Local Court was made on 2 May 2016. The decision, that there be no order as to costs, followed an unsuccessful claim by Mr Young in the Local Court against the Cookes for damages for conversion or detinue in respect of a dog called “Apache Jack”. The Cookes defended the claim, saying that a dog wandered onto their property in September 2008. They subsequently purchased the dog from the local council. Mr Young claimed this dog was his dog, Apache Jack. On 18 June 2015, Local Court Magistrate Bradd found in favour of the Cookes. In particular, the magistrate found that he was not satisfied, on the balance of probabilities, that the dog in the Cookes’ possession was Apache Jack.

9    Mr Young also argued that the bankruptcy notice should be set aside because the judgment debt had been “removed” by the 2 May 2016 costs order. In support of this contention, Mr Young referred to s 148 of the Civil Procedure Act 1995 (NSW).

10    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

11    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.

12    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.

13    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 Cookes

District Court proceeding and appeal to Court of Appeal

14    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.

15    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

16    At [4] of his Honour’s reasons, the primary judge described the Local Court proceeding, mentioned above.

17    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.

18    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.

19    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.

20    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.

21    The primary judge emphasised the words “that was similar to the dog” in his reasons (at [14]).

22    Magistrate Bradd also said:

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.

2015 Supreme Court proceeding

23    At [6] of his Honour’s reasons, the primary judge referred to Mr Young’s commencement of the 2015 Supreme Court proceeding. Those proceedings were commenced on 16 July 2015 and sought to challenge the magistrate’s 18 June 2015 decision that Mr Young had no cause of action against the Cookes.

Young v Cooke [2016] NSWSC 408 (Garling J)

24    At [8] of his Honour’s reasons, the primary judge referred to the hearing, by Garling J, of the Cookes’ application for summary dismissal of the 2015 Supreme Court proceeding together with Mr Young’s application for leave to file an amended summons.

25    On 13 April 2016, Garling J made several orders including:

(1)    striking out Mr Young’s summons;

(2)    dismissing the Cookes’ application for summary judgment;

(3)    ordering that, in the event that Mr Young sought leave to file an amended summons, then he must do so by way of a notice of motion filed on or before 23 May 2016, accompanied by such affidavits in support as he wishes to rely upon;

(4)    ordering that Mr Young pay the Cookes’ costs of the proceedings on both notices of motion; and

(5)    referring Mr Young 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.

26    The primary judge noted, at [10], Garling J’s observation, at [59], that:

… 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, … the plaintiff has a very difficult argument confronting him.

27    The balance of [59] of Garling J’s reasons, and [60] are as follows:

59.    … As appears from [the magistrate’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 … the dog currently [in the] 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.

28    As the primary judge noted (at [15] of his Honour’s reasons), on 6 June 2016, Mr Young obtained leave from a common law registrar to file an amended summons. The amended summons sets out two questions of law being whether Magistrate Bradd had made an error of law:

(1)    “when he used tainted evidence amounting to no evidence at all to decide the identity of the dog the subject of this action”; and

(2)    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.

29    As the primary judge recorded (at [16] of his Honour’s reasons), on 20 July 2016, the proceeding came before Harrison J, to hear the Cookes’ application for an order for security for costs. On that occasion, Mr Young sought an adjournment. Harrison J granted him an adjournment of the hearing, so that he could obtain appropriate legal assistance, but ordered Mr Young to pay the costs occasioned by the adjournment, assessed at $3,500 and payable forthwith. His Honour ordered that the proceeding be stayed pending payment by Mr Young of $3,500 to the Cookes: Young v Cooke [2016] NSWSC 1388.

30    On 18 August 2016, Mr Young filed a notice of intention to appeal to the Court of Appeal from Harrison J’s orders.

31    At [28] of his Honour’s reasons, the primary judge recorded that the proceeding had been stayed by force of the order of Harrison J that was the subject of the notice of intention to appeal.

2016 Supreme Court proceeding

32    The primary judge also noted, at [19], that on 8 September 2016 Mr Young commenced Supreme Court proceeding 2016/269791, seeking orders to confirm that the 2 May 2016 order of Magistrate Bradd included, in some way, the judgment debt upon which the bankruptcy notice is founded. As the primary judge put it at [28], the summons sought to raise “a question about the status of the judgment debt the subject of the bankruptcy notice”.

33    The proceeding was made returnable before the Supreme Court on 19 September 2016. On 27 September 2016 (that is, after the primary judge’s decision of 15 September 2016), the proceeding was dismissed: Young v Cooke [2016] NSWSC 1386.

Primary judge’s reasons

34    The primary judge recorded Mr Young’s submissions at [20] to [23] of his Honour’s reasons, as follows:

20.    Mr Young argued that he had a good claim in the Supreme Court for seeking to have the Local Court’s decision that there be no order as to costs on liability set aside and, as a consequence, of obtaining, at a further hearing, a significant award of damages in the order of $78,000 for the loss of his dog. During the course of argument, when I raised with Mr Young the fact that there was no evidence before me demonstrating that the dog had any value, he sought to tender an affidavit of 2 April 2014 by his partner, Sonia Camilleri, that he said was in evidence before Bradd LCM. I rejected that tender on the basis that, first, Ms Camilleri had said that the most she could value the dog at was $4,000, secondly, she did not appear to be a person who had qualified herself as an expert capable of giving opinions of the value of dogs and, thirdly, the evidence was late and outside the orders made by the registrar on 24 August 2016.

21.    Mr Young argued that the dog was a working dog and that the magistrate’s decision, that it was similar but not the same dog, as that of Mr and Mrs Cooke, was based on his Honour’s mistaken appreciation of photographs of the dog tendered by him and Mr and Mrs Cooke, on which his Honour made findings.

22.    Mr Young also argued that Mr and Mrs Cooke must have appreciated that, at the time at which they caused the council to attend at their property and collect the dog that they ultimately purchased, that dog was at least similar in appearance to the dog that they had seen some months earlier with Mr Young when he came to collect some horses that had roamed onto their property. Mr Young contended that Mr and Mrs Cooke should have told the council officer of that fact. Mr Young argued that their failure to do so amounted to negligence within the meaning of the Civil Liability Act and that it also amounted to a lack of good faith so that Mr and Mrs Cooke could not escape liability on the basis found by the magistrate.

23.    He also argued, as his most recent summons in the Supreme Court contends, that because Bradd LCM had before him evidence of the 8 July 2015 order, giving effect to the costs certificate made in the Local Court, his Honour’s order that there be no order for costs somehow comprehended the 8 July 2015 order and had rendered it unable to be relied on in the bankruptcy notice or otherwise. He argued that he should be allowed to litigate his bona fide claims in the Supreme Court before being required to comply with the bankruptcy notice.

35    At [26] and [27], the primary judge recorded the correct approach to an application to set aside a bankruptcy notice under s 41(7) of the Bankruptcy Act. Mr Young did not contend that the primary judge made any appellable error in this part of his Honour’s reasons. In summary, the question is whether it is just that the claim raised in answer to the debt specified in the bankruptcy notice should be determined before the bankruptcy proceedings are allowed to continue: Guss v Johnstone [2000] HCA 26; (2000) 171 ALR 598 at [14], [39] and [40].

36    As to the 2016 Supreme Court proceeding, the primary judge concluded (at [29]):

[T]here is no sufficient legal or factual merit in that claim to warrant me being satisfied that it provides any basis on which to set aside, or extend the operation of, the bankruptcy notice. In my opinion, Bradd LCM did not seek to, and plainly had no jurisdiction to, alter the effect of the Local Court’s order of 8 July 2015 giving effect to the costs assessment of the order for costs made by the Court of Appeal on 28 March 2013. Rather, in my opinion, it is unarguable that the magistrate, in making his order of 2 May 2016 that there be no order as to costs, was exercising his jurisdiction to do so in, and only in, the proceedings that were before him, namely, the proceedings that Mr Young had brought against Mr and Mrs Cooke claiming damages for conversion or detinue of a dog. The magistrate had no jurisdiction to interfere with the operation of the Court of Appeal’s order, far less to, in effect, set it aside. Nor did he have before him any application to vary or stay the costs certificate which operated, upon its filing, as a judgment of the Local Court without any further judicial intervention.

37    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 time

Mr Young’s affidavits

38    Mr Young relied on affidavits dated, respectively, 7 and 13 October 2016.

39    The 7 October 2016 affidavit addresses the following matters:

(1)    the reasons why Mr Young did not file an appeal in time;

(2)    an offer made, by email dated 29 September 2016, “to settle this matter”. The offer provided for the payment of $3,500 when the agreement was entered into, followed by payments of $1,000 per month for ten months. In the email, Mr Young contended that the Cookes “would be looking at little to nothing from the Bankruptcy”;

(3)    Mr Young’s claim that the Cookes have subjected Mr Young to “continuing harassment” for over 10 years including by arranging for the police to seize the child of Mr Young’s former partner. Other particular instances of this harassment are that, in 2010, the Cookes “cooked up a perjured story and arranged” that Mr Young be prosecuted for actions against a horse that Mr Young did not own, and that the Cookes perjured themselves in giving evidence before Magistrate Bradd.

40    The 13 October 2016 affidavit repeats the contention that the bankruptcy notice is an abuse of process, refers to an offer to settle all debt by Sonia Camilleri (which appears to be a reference to the 29 September 2016 offer) and attaches an incomplete police report dated 2 February 2007, said to set out the beginning of this harassment.

41    The affidavit asserts that the bankruptcy notice is “fully intended to embarrass [Mr Young] in his small community of not more than 20 persons and to continue the legal harassment [the Cookes] have been responsible for and committed against [Mr Young] for over 10 years now and for which [Mr Young] has prevailed on each and every occasion”. Mr Young also claimed, at [17], that:

The primary purpose of respondents causing the bankruptcy petition to be issued is not to seek or secure payment of costs but for the predominant purpose of embarrassing appellant before the Supreme Court of NSW where the parties are engaged in serious litigation between themselves and the issuance of this bankruptcy notice has tended to sway the Supreme Court Judges in a prejudicial way against appellant ie he is only a bankrupt.

42    The affidavit asserts that the Cookes had never issued a notice of demand for the amount of the judgment debt in the bankruptcy notice. At the hearing, that allegation was not maintained in the face of a letter of demand tendered on behalf of the Cookes.

43    The affidavit also states that the Cookes have never taken any type of enforcement action to collect the judgment debt, such as issuing a garnishee order, nor have they accepted Mr Young’s offer to be examined under oath as to his financial position.

44    The affidavit also states Mr Young is not aware of any other creditor who seeks to declare him bankrupt.

February 2007 police report

45    The incomplete police report, which Mr Young identifies as the beginning of the Cookes harassment of him, describes an incident involving Mr Young’s stepson on 8 December 2006. The report refers to a complaint about the treatment of the boy, but does not reveal whether the complainant was the Cookes or the boy himself.

Evidence tendered at the hearing

46    After Mr Young’s affidavits were read, Mr Young sought to tender additional evidence. The basis upon which that evidence was sought to be tendered was not entirely clear but seems to be, firstly, to support Mr Young’s contention that Magistrate Bradd’s 2 May 2016 decision had affected the 8 July 2015 judgment debt and, secondly, to identify the material that the primary judge had refused to accept into evidence. The evidence tendered by Mr Young comprised:

(1)    a copy of the Local Court judgment against Mr Young in the sum of $8,198.22, dated 8 July 2015;

(2)    an affidavit of Mr Young sworn 6 April 2016 and read before the primary judge;

(3)    notice of filing of Mr Young’s 6 April 2016 affidavit;

(4)    an affidavit of Laura Ann Howman-Giles, a solicitor employed by the Cookes’ solicitor, affirmed 27 August 2015 in the 2015 Supreme Court proceeding;

(5)    an affidavit of David Thackeray, the Cookes’ solicitor, dated 29 June 2016;

(6)    a “without prejudice” offer from Mr Young to Mr Thackeray dated 22 April 2013 to settle the Local Court proceeding;

(7)    a further email from Mr Young to Mr Thackeray dated 27 October 2016, making a settlement offer in the same terms as the 29 September 2016 offer referred to above;

(8)     a statement of claim dated 8 August 2011 in District Court proceedings 2011/254369; and

(9)    an affidavit of Mrs Cooke dated 9 June 2014 in the Local Court proceeding;

(10)    part of a transcript of evidence given by Mrs Cooke;

(11)    an extract from a decision of Magistrate Beattie concerning an RSPCA prosecution of Mr Young, dated 11 December 2012; and

(12)    Part of a certificate of expert evidence of Peter Wright (a veterinarian surgeon) dated 20 September 2010.

47    Although the documents were admitted into evidence on the application for an extension of time (largely as evidence of the documents that the primary judge refused to admit into evidence), the Cookes disputed that the primary judge had been asked to admit them into evidence by Mr Young and relied on the transcript of the hearing before the primary judge to dispute that fact.

48    The relevant facts concerning the judgment that was item (1) were the subject of findings by the primary judge. Item (2) was in evidence before the primary judge. Mr Young did not explain how any of items (3), (4) and (5) was relevant to the application to set aside the bankruptcy notice, as it was argued before the primary judge.

49    After reviewing the transcript, I am not satisfied that Mr Young sought to tender any of items (3) to (9) before the primary judge. The documents appear to be directed to the abuse of process argument that Mr Young now wishes to raise, but did not raise before the primary judge. Further, as to item (4), it appears from T26 of the transcript that Mr Young objected to the tender of this affidavit before the primary judge. As to item (5), this affidavit was read by counsel for the Cookes, Mr Stewart, before the primary judge (at T25 of the transcript) and was objected to by Mr Young.

50    In addition, Mr Young handed up the following documents that were not admitted into evidence:

(1)    an extract of a transcript of hearing dated 18 December 2015;

(2)    a letter from the RSPCA to Mr Young dated 14 December 2006 which records that the RSPCA had inspected horses at lot 2 Grangers Rd, Gundary and found them to be in reasonable to good condition;

(3)    an affidavit of Mr Cooke dated 9 June 2014 in the Local Court proceeding; and

(4)    Judgment of Toner DCJ dated 28 February 2008: In the Matter of the Appeal of Gary Mylecharane Young (Unreported, District Court of NSW, Toner DCJ, 28 February 2008).

51    After reviewing the transcript, I am not satisfied that any of these additional four items was tendered before the primary judge.

Evidence tendered by cookes on application for extension of time

52    On behalf of the Cookes, Mr Stewart read an affidavit of Mrs Cooke made on 18 October 2016, a letter from Chapman Thackeray Law to Mr Young dated 17 October 2016 and an affidavit sworn by Mr Young on 3 August 2015.

Cross-examination of Mrs Cooke

53    Notwithstanding that Mr Young had not argued that the bankruptcy notice was an abuse of process before the primary judge, I permitted Mr Young to cross-examine Mrs Cooke on the question of whether the bankruptcy notice was an abuse of process. Mrs Cooke agreed that, having rejected Mr Young’s offers of settlement, her sole purpose is to bankrupt Mr Young. Mrs Cooke denied talking about Mr Young with other members of their small rural community. She said that she did not believe she had told people that she did not think well of Mr Young.

54    Mrs Cooke did not accept that Mr Young would be caused major embarrassment in their community if he were bankrupted.

55    Mrs Cook agreed that the relationship between her, her husband and Mr Young had been strained since 2010. Mrs Cooke attributed the strain to Mr Young’s action “bringing us to court…over the incident with the horse.” That appeared to be a reference to a dispute between Mr Young and the Cookes about a malnourished or starving horse. Mrs Cooke did not agree that she had been critical of the way that Mr Young had looked after his horses as early as 2005 because, she said, she did not realise he had horses at that time.

56    Mrs Cooke did not agree with Mr Young’s characterisation of Mr Young’s stepson back in the mid-2000s. Mrs Cook denied knowing that, on 8 December 2008, after collecting the stepson from her house, the police arrested Mr Young. Mrs Cooke also denied knowing that the stepson had escaped from the care of the Department of Community Services.

57    Mr Young questioned Mrs Cooke about a conviction against him, subsequently overturned, in connection with a horse. Mrs Cooke gave evidence in the criminal prosecution. She agreed that she knew the conviction was overturned, but said that she was not aware of the reasons.

58    Mrs Cooke denied that she and her husband had a private plan to make Mr Young bankrupt. She denied that she wanted to be able to boast to her neighbours that she had finally made Mr Young bankrupt, and to cause Mr Young huge embarrassment.

59    Mrs Cooke denied that she was made angry by the 2 May 2016 decision of Magistrate Bradd not to award her and her husband costs of $80,000. She denied that the bankruptcy notice was a tactic to get even with Mr Young for the loss of $80,000.

60    Mr Young then questioned Mrs Cooke about what she had said concerning Mr Young’s connection with the starving horse. Mrs Cooke agreed that Mick Butts had said that Mr Young owned the horse “because you had horses agisted over there”. Mrs Cooke rejected Mr Young’s suggestion that she had lied about Mr Butz (a neighbour of the Cookes) telling her that Mr Young owned the horse. Mr Young noted that Mrs Cooke had previously given evidence in which she said that she assumed Mr Young was the owner of the horse.

61    Mr Young questioned Mrs Cooke on her evidence that she was unaware Mr Young had successfully sued the police for damages. Mrs Cooke maintained this evidence, even after being shown a transcript of evidence she gave on 28 February 2012 in which she said:

Yes there is because it says here “Tuesday, 31 August, Young said I was trying to get back at him because of the incident involving Robert a few years ago. He said that I was angry because he had sued the police and won.”

62    Mr Young then returned to the question of the starving horse. Mrs Cooke said that she was “pretty sure” that she did not tell a local vet, Dr Wright, that the horse belonged to Mr Young. When confronted with a statement made by Dr Wright that she and her husband had said the mare belonged to Mr Young, Mrs Cooke repeated that she did not remember saying this to Dr Wright.

63    When Mr Young suggested that the horse had previously been in a paddock owned by the Cookes, Mrs Cooke said “the horse was never there”.

64    When Mr Young questioned Mrs Cooke about the evidence she gave in the Local Court proceeding regarding the dog Apache Jack, before Magistrate Bradd, Mrs Cooke maintained that she had not seen Mr Young with a dog similar to the dog which she now owns, despite the magistrate’s findings.

Grounds of appeal proposed in the draft notice of appeal

65    There are seven proposed grounds of appeal in Mr Young’s draft notice of appeal, namely:

1.    The Court completely disregarded the merits of the action pending in the Supreme Court of NSW. Dismissing the Supreme Court matter as having little or no prospects of success ie in effect no chance of success. The court refused to admit evidence to demonstrate that applicant indeed does have a high chance of success in the action between the same parties in the Supreme Court of NSW.

2.    The court refused to allow applicant/appellant to file his evidence to demonstrate that his action in the NSW Supreme Court had a high chance to succeed.

3.    The court refused to compare the actual criteria set by Garling J in The Supreme Court of NSW under which the Supreme Court matter was to be decided and to thereafter review the findings of fact made in an order of May 2nd 2016 by Magistrate Bradd in the same matter in the Local Court after Garling J had made his orders setting the criteria under which the matter in the Supreme Court was to be decided.

4.    The court refused to then look to the facts and argument presented to the Federal Court demonstrating that the action in the NSW Supreme Court had a high chance to succeed especially after the order of May 2nd 2016 was also to be considered by the Supreme court.

5.    The court was dismissive of applicant/appellants action because he was a pensioner applicant and in effect regarded the applicant/appellants case as having no merit the court stating in words to the effect “… I have done many Judicial reviews and effectively this case has no merit at all. The court refused to allow applicant appellant to file evidence supporting his claim stating in words to the effect “… why should I …”. when even before the May 2nd order was issued Garling J had conceded in the NSW Supreme Court words to the effect that “... although applicant appellant would have a hard job ahead it was possible he could succeed.” Garling J set the criteria under which the matter was then to be heard in the Supreme court and for which the Federal court took little to no notice and the court refused to consider that the Local court had made findings of fact based on no evidence whatsoever and refused to consider this situation in light of the may 2 order and Garling J’s criterial under which applicant then had a high chance to succeed.

6.    The court refused to hear evidence that the Bankruptcy notice no 189043 is an abuse of process on this court and constitutes the continuance of a 10 year feud commenced by the same parties against this applicant resulting in two major criminal prosecutions, appeals and civil actions over that 10 years period all of which were found in applicants favour and for which this Bankruptcy notice seeks in reality only to continue the harassment of applicant.

7.    This matter is appealed on the same and similar grounds that the Court upheld in Vasil Totov v Michael Sfar 2008 FCAFC 12 March 2008.

66    For the purposes of considering the grounds of appeal, it was necessary to review the transcript of the hearing before the primary judge. Unfortunately, Mr Young did not have a copy of the transcript and was not able to identify particular portions of the transcript upon which he sought to rely. I reviewed the transcript after the hearing.

Mr Young’s submissions

67    At the hearing before me, Mr Young did not address the grounds of appeal in the draft notice of appeal in any systematic way. His written submissions were almost entirely directed to the argument that the bankruptcy notice was an abuse of process, for reasons that included the motivations and conduct of the Cookes and the argument that the judgment debt was extinguished by the 2 May 2016 judgment.

68    Mr Young’s oral submissions were directed principally towards demonstrating facts which, Mr Young argued, illustrated the “animus” of the Cookes towards him. Mr Young sought to prove that the Cookes’ evidence in the proceeding before Magistrate Bradd involved a “criminal degree of perjury”; that Mrs Cooke had given inconsistent evidence about whether she told a vet, Mr Wright, that Mr Young was the owner of the starving horse; that Mrs Cooke had lied about her knowledge that Mr Young had sued the police and won; that Mrs Cooke was not honest when she denied being angry because Magistrate Bradd had not awarded her and her husband costs (after they had spent $80,000 defending Mr Young’s action against them in the Local Court).

69    Mr Young also criticised the Cookes’ failure to obtain a garnishee order (although he also said “If you add everything up I’ve probably got about 800 to 1000 bucks worth of stuff”).

70    Mr Young submitted that the bankruptcy notice was “not a proper bankruptcy notice in the first place”, referring to Re Stec; ex parte Scragg [1997] FCA 462; (1997) 75 FCR 377. Mr Young argued that the staple holes on the original supported a conclusion that the document had only been stapled once. He submitted that the attachment to the bankruptcy notice had been a judgment that was “probably 10 generations old”, lacking a registrar’s signature and made outside of court hours. Mr Young said “I’m not saying that the underlying judgment is not there; I’m just saying that’s not a valid testament to the fact”.

71    Mr Young also made arguments directed to his prospects of success in the 2015 Supreme Court proceeding; that the Cookes should have accepted his settlement offer of $13,000, particularly when “clearly I can’t pay the debt”; that Rankine v Lord [2011] FCA 478; (2011) 121 ALD 258 (“Rankine”) applies here because there are so many similarities between that case and this; and drew attention to the decision of Toner DCJ, upholding Mr Young’s appeal against a conviction for improper use of an emergency call service.

Alleged refusal to admit evidence of Mr Young’s high chance of success in Supreme Court proceeding (ground 1 (last sentence) and ground 2)

72    I have previously found that the primary judge did not refuse to admit documents which, at the hearing before me, Mr Young identified as documents that the primary judge refused to admit.

73    However, those documents were not relevant to Mr Young’s chances of success in the 2015 Supreme Court proceeding. Rather, they related to a range of issues such as other disputes between Mr Young and the Cookes and settlement offers.

74    I have reviewed the transcript to identify what evidence the primary judge refused to admit and to determine whether that evidence was probative of Mr Young’s prospects of success in the 2015 Supreme Court proceeding. As noted earlier the two questions of law in the 2015 Supreme Court proceeding, as identified by the amended summons are whether Magistrate Bradd had made an error of law:

(a)    “when he used tainted evidence amounting to no evidence at all to decide the identity of the dog the subject of this action”; and

(b)    by failing to consider and fully particularise and declare Mr Young’s rights with respect to the Civil Liability Act 2002 (NSW).

75    The transcript reveals the following course of events at the hearing before the primary judge:

(1)    Shortly after the commencement of the hearing on 15 September 2016, Rares J asked Mr Young to identify the evidence on which he relied. Mr Young read an affidavit that he made on 6 April 2016 and another affidavit that he made on 19 August 2016.

(2)    In addition, Mr Young sought to have the Court receive “this new summons with explanations in an affidavit as to why it could not have been utilised, if you like, or used as a way to offset at that time”. Rares J referred to the material then handed up as a “very bulky document”. Mr Young replied that “the affidavit is very short at the front … The rest of it is – if we get into different semantics – but the essential elements – there are six pages plus a summons”. The transcript shows that the summons was listed for hearing in the Supreme Court of New South Wales on 19 September 2016. After hearing submissions, Rares J returned “this big affidavit” because “the new bit that he wants to rely on … is really just the summons”. The summons became exhibit A.

(3)    At T39 and at T41, Rares J asked Mr Young whether he had any evidence in reply.

(4)    Mr Young commenced submissions at T43 of the transcript. The Court adjourned for lunch between 1:00 pm and 2.05 pm. After lunch, at T66 of the transcript, Mr Young sought to tender further evidence about the value of a working cattle dog of the kind in dispute. At T66 of the transcript, Mr Young sought to tender an affidavit of Sonya Camilleri about the value of such dogs. At T74 of the transcript, Rares J refused to allow Mr Young to rely on Ms Camilleri’s affidavit.

(5)    At T76 of the transcript, Mr Young sought to tender a single page, which was not identified in the transcript. At T77, Rares J refused that application, saying:

I’m not prepared to allow you to add to the evidence, given that you have been given a proper opportunity to put all your evidence on and given the warnings that the registrar made and doing this now is just not satisfactory.

(6)    Mr Stewart’s submissions commence at T78 of the transcript and continue to T88 of the transcript.

(7)    Mr Young’s reply submissions commence at T88.

76    The transcript does not show that the primary judge was asked to admit evidence to demonstrate Mr Young’s high chance of success in proceedings in the Supreme Court in relation to either of the two matters identified in the amended summons filed in the 2015 Supreme Court proceeding.

77    At the hearing of the application to extend time, Mr Young did not identify any evidence that could have been relevant to prove either of the two matters identified in the amended summons filed in the 2015 Supreme Court proceeding. In particular, Mr Young did not identify any evidence said to have been “tainted” and used by the magistrate to reach his conclusion that the disputed dog was not Apache Jack.

78    For the reasons above, on the material before me, Mr Young has no prospect of demonstrating that the primary judge erred in the manner described in the third sentence of ground 1 and ground 2 of the draft notice of appeal.

Alleged refusal to address criteria set by Garling J (grounds 3 and 4) and disregard of merits of Mr Young’s claim in the 2015 Supreme Court proceedings (ground 1, first two sentences)

79    It is far from obvious that the primary judge was required to do a comparison of the kind described in ground 3 of the draft notice of appeal.

80    The “criteria” relied upon by Mr Young are identified at page 20 of his written submissions at [38] to [41] of the reasons of Garling J. Those paragraphs of his Honour’s reasons are as follows:

38.    Pursuant to s 69 of the Supreme Court Act, this Court is exercising a supervisory jurisdiction over inferior courts and tribunals. It is not exercising an appellate function. The function which it exercises under s 69 is distinct from the hearing of a statutory appeal under the Local Court Act. Relevantly here, if s 69 is being relied upon, then Mr Young would be seeking an order for relief in the nature of a writ of certiorari.

39.    Application under s 69 of the Supreme Court Act for relief in the nature of a writ of certiorari is available for an error of law which amounts to either a jurisdictional error, or an error of law (jurisdictional or non-jurisdictional) that appears on the face of the record of the proceedings: ASIC v Farley [2001] NSWSC 326 at [9]; (2001) 51 NSWLR 494 at 498.

40.    A convenient description of the approach of this Court to applications for prerogative relief involving an inferior court or tribunal is to be found in the judgment of Rothman J in Barr v Broomby [2014] NSWSC 1852, where his Honour said:

“17    While there is no right of appeal in respect of a decision refusing an award of costs under s 213, in limited circumstances an order in the nature of prerogative relief can be sought by enlivening the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. As there is no privative or ouster clause in respect of a decision under s 213, the power of this Court to provide relief under s 69 of the Supreme Court Act is available on the grounds discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-176; O’Brien v Hutchinson [2012] NSWSC 429 at [4]. That is, this Court has the power to issue orders in the nature of certiorari for errors of law on the face of the record and for jurisdictional error.

18    Error of law on the face of the record includes the reasons of an inferior court or tribunal: s 69(4) Supreme Court Act; see also Craig at 176-180 and the discussion of Craig, along with the reasons generally, in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [71]-[75].

19    Generally, jurisdictional error will be disclosed where a decision maker has: not taken into account a criterion required by law; taken into account an irrelevant criterion; utilised the wrong test or asked itself the wrong question; or misapprehended the nature or limits of its powers as a consequence of which it has performed an act or made a decision (or not done so), which is not sanctioned by authority: see, inter alia, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

20    Further, jurisdictional error will occur if there [was] a denial of procedural fairness. Yet, at all times, the distinction between a merit review and judicial review must be kept in mind, otherwise we are ‘apt to encourage a slide into impermissible merit review’: Swift v SAS Trustee Corp [2010] NSWCA 182 at [45].”

41.     I agree with those principles and will apply them in the determination of this case.

81    The primary judge was required to consider the legal (and factual) merit of Mr Young’s claim in the 2015 Supreme Court proceeding. He was not required to consider mechanically every kind of jurisdictional error that might have affected the magistrate’s decision. At [31] and [32], his Honour made observations, the accuracy of which were not disputed by Mr Young, as to the factual findings made by the magistrate in both the 18 June 2015 and 2 May 2016 reasons. The references to “18 December” must be a typographical error and should refer to 18 June. Mr Young did not seek to make anything of that error.

82    At [35], his Honour stated that he agreed with Garling J’ s observation that Mr Young’s claim in the 2015 Supreme Court proceeding “had very difficult hurdles to meet”. In saying this, the primary judge was accurately paraphrasing Garling J’s observation set out at [25] above. Then, the primary judge said:

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.

83    In that statement, the primary judge addressed the very matter that Mr Young now wishes to say the primary judge refused to address.

84    Mr Young did not identify any particular jurisdictional error that the primary judge did not consider. In particular, the primary judge explicitly considered the significance of the 2 May 2016 findings. To the extent that Mr Young wishes to argue that there was “tainted evidence amounting to no evidence at all” before the magistrate, the primary judge clearly considered the question of whether there was evidence to support the magistrate’s finding that the dog was not Apache Jack and identified relevant evidence.

85    During argument before me, Mr Young seemed to suggest that the magistrate had wrongly made a finding to the effect that, because Mr Young obtained his dog from a breeder, it must have been microchipped. However, the primary judge found (at [32]) that the magistrate’s conclusion was that legislation requiring breeders to insert microchips into dogs rendered it likely (not inevitable) that Mr Young’s dog had been microchipped. As Mr Young did not dispute the primary judge’s understanding of the magistrate’s reasons, Mr Young’s submission on this point does not reveal any error on the part of the primary judge.

86    For these reasons, I conclude that ground 3 of the draft notice of appeal has no prospect of success.

87    Mr Young did not identify any fact or argument presented to the primary judge, but not considered by him, concerning Mr Young’s prospects of success in the 2015 Supreme Court proceeding. In the absence of any such fact or argument, ground 4 of the notice of appeal similarly has no prospects of success.

88    Similarly, [35] of his Honour’s reasons explicitly addresses the merits of the 2015 Supreme Court proceeding based on the reasoning in the preceding paragraphs. There is no merit in the claims made in the first two sentences of ground 1 of the draft notice of appeal.

Alleged failure to give Mr Young a fair hearing (ground 5)

89    Mr Young informed the Court that he did not have the benefit of a copy of the transcript of the hearing before the primary judge.

90    As it turns out, the transcript does not bear out the statements in the draft notice of appeal that are attributed to the primary judge. In particular, his Honour did not say: “I have done many judicial reviews and effectively this case has no merit at all”.

91    Nor did his Honour say words to the effect “why should I” in refusing to allow Mr Young to file evidence supporting his claim.

92    Having read the transcript of the hearing which was conducted over the course of a full day, and having read the primary judge’s reasons, in my view, there is no basis for the allegation that the primary judge “was dismissive of [the application] because [Mr Young] was a pensioner applicant”.

93    The balance of ground 5 of the draft notice of appeal repeats matters raised by grounds 1 to 3.

Alleged refusal to hear evidence that bankruptcy notice is an abuse of process (ground 6)

94    Mr Young did not allege that the bankruptcy notice is an abuse of process before the primary judge.

95    There is nothing in the transcript of the hearing before the primary judge to suggest that his Honour refused to hear evidence that the bankruptcy notice is an abuse of process.

96    In those circumstances, there is no merit in ground 6 of the draft notice of appeal.

Other arguments about abuse of process

97    Despite the language of ground 6, it was apparent that Mr Young seeks to raise a more general contention, that the bankruptcy notice should be set aside as an abuse of process even though the matter was not argued before the primary judge. At the hearing of the application, this appeared to be the main point that Mr Young wished to raise.

98    Generally, a party will not be allowed to raise a new issue on appeal where, had the issue been raised at the hearing, evidence could have been given which may have prevented the argument sought to be put by the party from succeeding: Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418. In Minister of State for Home Affairs v Siam Polyethylene Co Ltd (No 2) [2010] FCAFC 106 at [20], Bennett and Flick JJ said:

[A]n argument is now being advanced which was not advanced for resolution by the primary Judge and … this Court on appeal is thereby deprived of the not inconsiderable benefit of the primary Judge’s reasons and decision. Great care should be exercised before allowing parties such an indulgence lest this Court on appeal be transformed into a de facto Court of first instance. But such is the inevitable consequence of any appellate court allowing a new argument to be advanced that has not previously been considered. A party should normally be bound by both the manner in which it runs its case at first instance and the manner in which it advances its case on appeal. All arguments sought to be resolved should normally be advanced initially at first instance.

99    I have set out, at [38(3)] above, grounds on which Mr Young argued that there was an abuse of process.

100    Mr Young seeks to compare his case with the case of Rankine. In Rankine, the Court refused an appeal from a decision of a Federal Magistrate setting aside a bankruptcy notice on grounds which included that the notice was an abuse of process. The notice was addressed to the respondents, in their capacities as special purpose liquidators of a company in liquidation. The judgment debt on which the bankruptcy notice was founded was a judgment for costs assessed following an order that the respondents pay the costs of an application to set aside orders for production of documents in connection with public examination proceedings.

101    In rejecting the appeal, Marshall J concluded that there was ample material before the Federal Magistrate to support his finding that the appellants caused the notice to be issued, not to secure payment of the costs order but for the predominant purpose of embarrassing the respondents. At [32], Marshall J noted that the “solvency of a particular debtor and his or her history with the creditor will be relevant to the issue of bona fides of a bankruptcy notice”. In Rankine, there was no suggestion that the debtors were insolvent.

102    Mr Young sought to rely on the following passage from the decision of Marshall J (at [30]), referring to the judgment in Reid v Hubbard [2003] FCA 1424:

I can detect nothing in the reasons of Heerey J in Reid which supports the view that a particularly heavy onus is required to be met before a bankruptcy notice will be set aside as an abuse of process. A court considering such an issue will examine that matter objectively having regard to the entire relevant factual matrix and if it forms the view that the issuing of the notice is an abuse of process it ought not feel timid about saying so. Certainly the Federal Magistrate suffered from no such timidity and rightly so.

103    Accepting the correctness of the decision in Rankine, it was necessary for Mr Young to identify facts which could lead to a finding of abuse of process.

104    If it is apparent to the Court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court’s insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process. However, it is not an abuse of process if a creditor genuinely intends to pursue the matter if there is default in complying with the notice and there is no evidence of collateral purpose or undue pressure: Maxwell-Smith v S & E Hall Pty Limited, in the matter of Maxwell-Smith [2006] FCA 825 at [43] and [44].

105    In Slack v Bottoms English Solicitors [2002] FCA 1445, at [15]-[20], Spender J rejected as unarguable that it is an abuse of process to issue a bankruptcy notice as a means to secure payment of a debt and, in the event of default, to proceed by way of petition for sequestration. Spencer J noted that an express object of a bankruptcy notice is to persuade the debtor to pay the debt the subject of the notice.

106    In his written submission, Mr Young emphasised the 29 September 2016 settlement offer (repeated on 27 October 2016). Those offers were made, not only after the bankruptcy notice was issued, but after the primary judge delivered his decision to refuse to set aside the bankruptcy notice. Accordingly, the offers have no bearing on the question for determination by me, namely, whether Mr Young has prospects of demonstrating appellable error on the part of the primary judge. Further, they have no bearing upon the question of the Cookes’ purpose in procuring the bankruptcy notice. Finally, to the extent that it might have been suggested that the bankruptcy notices became an abuse of process after the offers were made, I reject that contention. There is no legal basis for the suggestion that the Cookes were under any obligation to accept the relevant settlement offer, which did not offer them what they are presently entitled to receive, namely full payment of the amount in the bankruptcy notice forthwith. Further, the Cookes were not required to accept Mr Young’s contention that they would be better off accepting the offer than proceeding to obtain a sequestration order against Mr Young.

107    As to Mr Young’s detailed arguments concerning the harassment which he claims to have experienced at the hands of the Cookes, those claims also have no bearing on the question for whether Mr Young has prospects of demonstrating appellable error on the part of the primary judge. Further, even taking the claims at their highest, they do not support an inference that the bankruptcy notice was issued for an improper purpose or is an abuse of process. In any event, the evidence fell far short of demonstrating that the Cookes had harassed Mr Young on any of the occasions identified by Mr Young.

108    In particular, Mr Young took the Court to portions of the statement of claim he had filed in the District Court which included allegations that he had been repeatedly defamed by the Cookes since about 2005 “and possibly earlier and continuing to the present day”; that since about 2004, the Cookes have engaged in a continuous course of conduct involving the conversion of Mr Young’s property including four cattle and one dog; and that the Cookes were guilty of “trespass by proxy” as a result of raids by the police and the RSPCA on the property where Mr Young resides. These are allegations, not facts. Moreover, they are rolled up allegations. The allegation of harassment is a serious one that is not substantiated by a multiplicity of unproven complaints.

109    As to the judgment of Toner DCJ, in that judgment, his Honour upheld Mr Young’s appeal against a conviction for improper use of an emergency call service. The circumstances of the charge involved an episode on 29 December 2006, again involving Mr Young’s stepson. In the judgment, Toner DCJ is highly critical of the conduct of police in dealing with Mr Young. There is nothing in the judgment to suggest that the Cookes had any involvement in this episode, or in the proceedings which followed it.

110    Contrary to Mr Young’s submissions, I do not accept that a primary purpose of the Cookes in issuing the bankruptcy notice is to embarrass him. No doubt Mr Young believes this to be the case. But there is no direct evidence that the Cookes had this purpose and, in my view, the evidence does not permit a finding to this effect on the balance of probabilities. In my view, there is no reason to doubt that the Cookes simply wish to secure payment of the judgment debt and, in the event of default, to proceed by way of petition for sequestration. As Mrs Cooke said, her sole purpose is to bankrupt Mr Young. That is a legitimate purpose where Mr Young has not paid the judgment debt.

Grounds upheld in Totev v Sfar [2008] FCAFC 35 (“Totev”) (ground 7)

111    Totev was concerned with an application to review a sequestration order. It has no relevance to the matters in issue in this case.

112    The majority (Bennett and Cowdroy JJ) concluded that the legislative requirements concerning the provision of up to date evidence of indebtedness were not satisfied prior to the making of the sequestration order and that the matter should be remitted to the Federal Magistrates Court for further determination.

113    Emmett J concluded that the debtor had not had a hearing de novo by a justice appointed in accordance with Chapter III of the constitution prior to the creditor’s petition lapsing.

114    These conclusions do not assist Mr Young. Accordingly, ground 7 of the proposed notice of appeal has no prospect of success.

Other matters

Validity of bankruptcy notice and service of bankruptcy notice

115    Mr Young sought to dispute both the validity of the bankruptcy notice and the question of whether it had been served effectively, although neither matter was raised before the primary judge.

116    As to the first matter, Mr Young contended that no certified or sealed copy of the judgment was attached to the bankruptcy notice when it was served “alternatively no valid of ANY lawfully enforceable Judgment” was served. As to the second matter, Mr Young contended that the bankruptcy notice and documents served on him were photocopies saying “this is particularly noticeable when looking at the “judgment” attached…which appears to be about 10 generations of photocopy from the original”.

117    I reject these submissions. They are inconsistent with Mr Young’s affidavit sworn 6 April 2016 in which he swore that he was served with bankruptcy notice BN 189043, a copy of which was attached to his affidavit. It is plain from the copy of the bankruptcy notice that a sealed copy of the relevant judgment was attached to the notice.

2016 Supreme Court proceeding

118    Mr Young’s submissions referred to the Cookes’ “fatal error” and “fatal mistake” of placing the judgment debt before Magistrate Bradd. These submissions seemed to concern the question identified by the primary judge, at [28] of his Honour’s reasons “about the status of the judgment debt the subject of the bankruptcy notice”.

119    His Honour’s reasons for rejecting Mr Young’s argument on this issue are set out at [35] above. There is no error in those reasons. Since his Honour gave his judgment, the 2016 Supreme Court proceeding was dismissed by Adamson J on 27 September 2016: Young v Cooke [2016] NSWSC 1386. At [11], her Honour stated:

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.

120    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

121    The proposed appeal is hopeless.

122    The application for an extension of time to appeal must be refused with costs.

Associate:    

Dated:    3 February 2017