Cosenza v Adelaide City Council - [2019] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
COSENZA v ADELAIDE CITY COUNCIL
[2019] SADC 58
Decision of His Honour Judge Slattery
15 May 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - LEGAL REPRESENTATION
Application by the respondent in a minor civil claim for leave to be represented by a legal practitioner at an application for leave to issue an interlocutory application seeking summary judgment against the applicant. The learned Magistrate granted the permission.
Applicant claims that the respondent, an occupier of a car park, owed him a duty of care as an invitee onto the car park premises to ensure that its CCTV service was operating. The applicant was injured and his car damaged on the premises by an assailant. He claims that in reliance on the existence of the sign at the car park entrance advertising CCTV surveillance, he entered the premises, understanding from what he read that there would be CCTV film footage of an assault and damage to his vehicle that had not yet occurred, and was not in his contemplation. Applicant seeks damage resulting from the alleged breach of a duty of care.
Applicant seeks a review of the decision of the learned Magistrate granting leave.
Held:
Application dismissed as no relevant error was apparent on the exercise of discretion of the learned Magistrate.
Magistrates Court (Civil) Rules (2013) (SA) rr 63(1), 65; Civil Liability Act 1936 (SA); Magistrates Court Act 1991 (SA) ss 3, 38, referred to.

COSENZA v ADELAIDE CITY COUNCIL
[2019] SADC 58
COSENZA v ADELAIDE CITY COUNCIL

The applicant, Mr Cosenza, seeks a review of the decision Magistrate Jackson made on 13 August 2018.
The application then before her Honour by the defendant and respondent to this application was for leave to appear at an application for leave to bring an interlocutory application. The requirement to apply for leave to bring an interlocutory application is governed by Magistrates Court (Civil) Rule 2013 (SA) (MCCR) 65 which is set out below. The interlocutory application which the respondent wished to bring was for summary judgment. The application of the respondent that was granted by the learned Magistrate was for leave to be represented by Counsel at the application for leave to bring a summary judgment application. The decision of the learned Magistrate did not dispose of the minor civil claim or any aspect of it. Her Honour exercised her discretion to grant leave to the respondent in the way that I have described.
The respondent is facing a claim by the applicant plaintiff Mr Cosenza for damages for breach of duty. Mr Cosenza summarises his claim in paragraph three of his affidavit of 17 December 2019 (FDN 14) in which he says:
The respondent has since the inception of this claim within the small claims Court engaged both solicitors and experienced counsel to appear and argue this matter for and on their behalf. The defendant is an experienced local Government Council who has instructed their insurer to defend my claim. I was assaulted and my vehicle was damaged by a man in the defendant’s car park within circumstances where no or insufficient security was on site and all the CCTV cameras on site were non operational for a significant period of time which was known to the defendant. The defendant has signage on site representing “CCTV & SECURITY PATROLS OPERATIVE IN THIS AREA 24 HOURS A DAY CALL 82037203 FOR SECURITY ATTENDANCE,” which I relied upon for purpose of identifying my assailant so criminal charges could be pursued along with obtaining orders for compensation for the damage to my vehicle. A report was made to SAPOL and in the absence of the CCTV footage was unable to identify my attacker.
Mr Cosenza pleads a cause of action for breach of duty owed to him as an invitee onto premises not to be assaulted on premises due to the advertised presence of security (but there is no assertion that security personnel were not employed). Then he asserts that although advertised, CCTV footage was not available to allow him to identify his assailant on the assault and on the damage to his vehicle. Inferentially, the same person is responsible for both.
Confining my consideration to the duty issue, it appears that Mr Cosenza seeks to extend the circumstances in Australian law about the imposition of a duty of care such that an occupier who advertises the availability of CCTV filming but which service is not operating, is in breach of a duty of care to invitees on the premises. That duty will arise where the invitee relied upon its existence at the time of entry in order to identify his assailant for criminal charges and for damage to his vehicle that had not yet occurred. This is a novel attempt to extend the well settled category of case where a duty of care may be imposed at common law, under the Civil Liability Act 1936 (SA), including necessarily about occupier’s liability. The defendant considered it bad in law and wished to bring an application for summary judgment. In order to do so, leave of the Court (MCCR 65) was required; the respondent wished to have representation at that application and brought an interlocutory application for that permission. The learned Magistrate granted that permission for representation. Her Honour did not deal with the summary judgment application. The applicant seeks a review of that decision.
In this application before me, Mr Cosenza complains that the learned Magistrate gave leave to the defendant to be represented at the hearing in the Magistrates Court of a minor civil claim. I am unable to identify any order the learned Magistrate to that effect and that order has not been made. At the outset of the hearing, I gave leave to Mr Bullock to represent the respondent on this application. I considered that the respondent would be unfairly disadvantaged otherwise because Mr Cosenza is a lawyer who is thoroughly experienced in litigation and I found him to be a fluent and erudite advocate for his case. It made no difference that he may not hold a practising certificate. In relation to such a technical legal matter, there would be an unfair disadvantage if the respondent was not represented.
At the conclusion of the application, I dismissed the application and I said that I would publish my reasons. These are those reasons.
The relevant portion of s38 of the Magistrates Court Act 1991 (SA) (MCA) which governs the hearing of a minor civil review are as follows:
(6)   The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
e)    in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
The decision appealed against must be a ‘judgment’. This decision was interlocutory; such a decision falls within the definition of ‘judgment’ in s3 MCA. The intention of Parliament is that this Court deals with this application in a minor civil case notwithstanding that it is an interlocutory judgment.[1]
[1] Cf Bartolo & Hancock (2010) 272 LSJS 490 @ 493 per Doyle CJ and 6R 288.
Section 38(4) of the MCA reads as follows:-
(4) The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i) another party to the action is a legal practitioner; or
(ii) all parties to the action agree; or
(iii) the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab) however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
This subsection governs the very limited circumstances of when parties to a minor civil action may have legal representation. The fundamental approach is outlined in s38(4)(a) MCA. It is apparent from the drafting of this subparagraph that the intention of Parliament is that where there is a minor civil action, a party will represent his, her or its own interests. The subparagraph therefore operates as a prohibition. If the Court is to exercise its discretion under s38(4)(a)(iii) it is necessary for the Court to form a view that a party would be unfairly disadvantaged if not represented by a legal practitioner.
Separately, under s38(4)(ab), the Court has the discretion to permit representation of the party where there is an interlocutory application. As in all discretionary judgments, the question of the matters to be weighed in the balance by a magistrate will vary from case to case and turn on often specific and unique factual issues. A matter of importance here is that the same manner of prohibition upon legal representation in an interlocutory application does not apply as it would in the hearing of the application itself. Also, the exercise of the discretion in this limited category is open and the question is one for the exercise of the discretion of the Magistrate.
In her reasons, the learned Magistrate identified that she was dealing with an application seeking leave to file an interlocutory application for summary judgment. Her Honour was not therefore dealing with the application for summary judgment itself. She was strictly dealing with an application for leave under MCCR 65.
MCCR 65 reads as follows:
No interlocutory application (other than to object to jurisdiction or set aside or enforce a judgment or warrant) may be filed in respect of a minor civil action, except with leave of the Court.
As is apparent from the wording of the rule, leave is required for the filing of the interlocutory application. The question of the hearing of such an application may be for another day. It may of course occur simultaneously as consecutive applications and that is likely to be the common sense of the situation. MCCR 63(1) governs the powers of the Magistrates Court upon the hearing of the application.
It follows that the learned Magistrate was first to consider this application for leave for representation ancillary to the exercise of her Honour’s powers under MCCR 65. The application before her Honour was for leave for a legal practitioner to represent the interests of the defendant at the application for leave to issue the interlocutory application under MCCR 65. I am satisfied that the content of s38(4) MCA does not in terms specifically address these factual circumstances.
The content of s38(4)(ab) governs the exercise of the discretion to allow representation at the hearing of an interlocutory application. It is an unfettered discretion, the exercise of which is to be informed by notions of justice, fairness, utility and prejudice. These are part and parcel of any exercise of discretion and are only some of the relevant considerations. Each case varies according to its facts. The subsection does not operate in a vacuum and so leave must be obtained under MCCR 65 before there can be an application under s38(4)(ab) MCA. Despite that, an application for leave under MCCR 65 is interlocutory in nature but there is no specific rule or section which governs the question of representation at such an application.
For the reasons which follow, I consider that the approach under s38(4)(ab) should be adopted. There are probably two approaches that may be taken. The first is to identify that, under s38(4)(ab) MCA, the Court has an unfettered discretion to permit representation of a party by a legal practitioner at the hearing of an interlocutory application. As a matter of common sense, the Court would have the same discretion to be exercised in the same way to permit representation of a party by a legal practitioner at the application that it is compulsorily required to bring under MCCR 65. In coming to that view, I acknowledge that an application for leave to bring an interlocutory application may be filed with the Court without further attendance by either party. The Court may consider and determine a matter on an ex parte basis without attendance by the parties. That possible outcome is not inconsistent with the Court exercising its discretion to permit a party to appear at an application for permission to have representation on an interlocutory application. The exercise of discretion, though not identical, would require the assessment by the Court of generally the same considerations.
The second requires a consideration of the operation of s38(4) MCA in this particular context. Under the three considerations set out in s38(4)(a)(i), (ii) and (iii), it is known that Mr Cosenza is a lawyer but is not a practicing lawyer and it is not clear whether he holds a practicing certificate. The evidence before the Court discloses that Mr Cosenza is the promoter and proprietor of a business name called “Law in Action” which promotes a 68 page “Law in Action” handbook, a website for Q&A in relation to legal rights, advice in relation to the tort of trespass and the rights of tenants within a landlord and tenant relationship and, consequentially, private nuisance. All of this material is exhibited to the affidavit of Alexander Jonathon Bubner sworn 19 November 2018.[2] That affidavit was read by the defendant in support of its application and in response to this application. The affidavit material also discloses that the applicant Mr Cosenza has been involved in at least 39 separate legal proceedings. My understanding of the submissions is that the purpose of this material was to disclose to me that another party to the action is a legal practitioner (s38(4)(a)(i) MCA) and is a very experienced litigant. The dictionary provision within the MCA offers no assistance and I therefore consider that the expression “legal practitioner” would attract its ordinary meaning, namely, an admitted practitioner of the Court. Although Mr Cosenza is not such a person, I do not think that this is the complete answer as he is quite plainly an active lawyer promoting his capacity to give legal assistance and he has been actively involved in 39 actions that are known.
[2] FDN 12.
The question then becomes whether the Court is of the opinion that a party would be unfairly disadvantaged if not represented by a legal practitioner. There are a number of aspects to be considered. The first is that Mr Cosenza is a highly experienced legal person who is not a practicing lawyer and who has been involved in many pieces of litigation and promotes his own advisory business in relation to persons’ legal rights. The defendant would, in the absence of its solicitor, be represented by Mr Vero. He is a lawyer who does not hold a practicing certificate. He is an insurance claims manager. Although he would have been involved in litigation in that role, he has not been personally involved in litigation in the same fashion as Mr Cosenza. It seems that these considerations fall equally on either side of the ledger.
A more important factor is that, as explained by Mr Bullock, the issues before the learned Magistrate are substantial and complex issues of law. I am satisfied that in light of the material put before me by the defendant, the defendant seeks a resolution of the issue whether, for example, in a number of claims brought by Mr Cosenza, the fact that a closed-circuit television system is not working at a particular time leads to a finding of breach of duty on the part of the occupier of the premises. Such an allegation is at the heart of the claim brought by Mr Cosenza against the defendant.
On my review of the authorities this is arguably an extension of settled legal principles in relation to when a duty of care by an occupier arises in respect of an invitee onto premises. I accept the submission of Mr Bullock that such argument could not be adequately put to the Court by someone such as Mr Vero, that the Court would not be assisted by such a process and that, for the efficiency of the use of precious Court resources, it is appropriate that in such an application, the Court should be assisted by legal representation.
On this view of things, I consider that in the particular circumstances of this case the decision by the learned Magistrate to allow legal representation of the defendant on the application for leave to bring an interlocutory application under MCCR 65 and s38(4) MCA was correct. I am satisfied on all of the evidence that the defendant would be unfairly disadvantaged if not represented by a legal practitioner in such an application. The attempt by Mr Cosenza in this action to extend the application of the principles of duty of care of occupiers to invitees on premises is so important that it would not be properly canvassed by only lay persons before the learned Magistrate. There would be a significant risk that the hearing upon such an important issue would be rendered otiose and an unfair disadvantage would be suffered by the defendant.
The learned Magistrate would, to an extent, be disadvantaged because she would not have the benefit of erudite and learned submissions on such an important legal topic from both of the parties before her in the litigation. I have no doubt that Mr Cosenza is fully capable of putting his case to the learned Magistrate.
For the same reasons, when considering the exercise of my discretion under s38(7)(a) MCA I consider that it was appropriate for Mr Bullock to represent the interest of the defendant in the application before me. The considerations that I took into account were identical.

Turning then to the application proper, I am satisfied that having regard to the whole of the information before me that the learned Magistrate properly took into account all necessary and appropriate considerations, that she did not take into account inappropriate or irrelevant considerations and that her judgment is just in all of the circumstances. I affirm her Honour’s judgment.
I dismiss the application of Mr Cosenza