Cosenza v Corporation of the City of Adelaide - [2020] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
COSENZA v CORPORATION OF THE CITY OF ADELAIDE
[2020] SADC 29
Judgment of His Honour Judge O'Sullivan
24 March 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PARTIES AND REPRESENTATION - LEGAL REPRESENTATION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
The applicant seeks a review of summary judgment entered against him by a Magistrate in a minor civil action.
The applicant was the plaintiffs in those proceedings, and sought damages in a number of causes of actions against the Adelaide City Council.
The applicant alleged that the damages arose out of an assault upon him by an unknown person on 14 December 2017. The assault occurred at a U-Park Carpark, owned and operated by the respondent. At the time of the assault, CCTV cameras located in the carpark were not operational. The applicant alleged that this resulted in the assailant not able to be identified by use of footage.
On 21 October 2019, the Court heard an interlocutory application by the respondent seeking leave pursuant to Magistrates Court Act s 38(4)(a)(iii), to be represented by a legal practitioner on the Minor Civil Review.
Held:
1. Leave for the respondent to be represented both at the interlocutory hearing seeking leave to be represented as well as on the merits of the Minor Civil Review.
2. None of the applicant’s grounds of review are made out.
3. The Magistrate’s decision is affirmed.
4. Application for review dismissed.
Local Government Act 1999 (SA); Magistrates Court (Civil) Rules 2013 (SA); Magistrates Court Rules 1992 (SA); Magistrates Court Act 1991 (SA); Competition and Consumer Law Act 2010 (Cth), referred to.
Harradine v District Court of South Australia [2012] SASC 96; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Cosenza v Adelaide City Council [2019] SADC 58; Atkins v O’Brien [2018] SADC 93; Nassar v Australian Telecommunications Corp [1993] SASC 38; Lesandu Blacktown Pty Ltd v Gonsalez [2013] NSWCA 8; Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7, considered.

COSENZA v CORPORATION OF THE CITY OF ADELAIDE
[2020] SADC 29
Introduction

This is an application by Mr Dean Cosenza pursuant to s 38 of the Magistrates Court Act 1991 (‘MCA’). Mr Cosenza seeks a review of a decision by a Magistrate in minor civil action number 18-121 on 4 June 2019 in which the Magistrate summarily dismissed his claim.
Mr Cosenza was the plaintiff in those proceedings which involved a claim for damages alleged to have arisen from an assault upon him by an unknown person on 14 December 2017. The assault occurred in the U-Park Carpark situated between Gouger Street and Grote Street, Adelaide. The carpark is owned and operated by the respondent, Corporation of City of Adelaide.
At the time of the assault, CCTV cameras located in the carpark were not operational, resulting in the assault not being captured on film and the unknown assailant not able to be identified.
Mr Cosenza claims damages from the injuries he sustained from the assault and damage to his vehicle in excess of $2,000. He alleges that the respondent:
1Was negligent in failing to ensure that the cameras were operational, which in turn, has resulted in his being deprived of the ability to pursue a claim for damages against the assailant directly;
2Cannot rely on any contractual disclaimer to avoid liability, because no contract existed between him and the respondent;
3Breached its obligations pursuant to sections 18 and 21 of the Australian Consumer Law, in that the signs indicating CCTV cameras operating constituted misleading and deceptive conduct, as well as unconscionable conduct; and
4Breached its obligations pursuant to the Local Government Act 1999 (SA) (‘LGA’).
The conduct of the summary judgment application in the Magistrates Court
The respondent filed an interlocutory application for summary judgment on 13 August 2018, seeking that the claim be summarily dismissed, or struck out pursuant to Magistrates Court (Civil) Rules 2013 (‘MCR’) r 12(3) (‘the Application’).
Under the provisions of MCR r65, a party needs the leave of the court to file an interlocutory application in a minor civil action.
Representation in a minor civil action is governed by MCA s 38(4) which provides:
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.
The respondent sought leave for it to be represented on its application for leave to bring its summary dismissal application. The learned Magistrate granted permission for representation.
The application for leave to issue the summary dismissal application was adjourned to allow Mr Cosenza to seek a review of the Magistrate’s decision allowing the respondent to be legally represented. Review of that decision was heard by his Honour Judge Slattery and dismissed on 15 May 2019. An application to the Supreme Court of South Australia for a judicial review of his Honour’s decision was discontinued on 26 June 2019.
On 14 May 2019, the learned Magistrate heard argument on the summary judgment application, after dealing with two further applications made on that day; the first being an application by Mr Cosenza to adjourn the hearing of the summary judgment application pending the determination of the judicial review in the Supreme Court and the second, an oral application by the respondent to be legally represented at the argument on the merits of the interlocutory application for summary judgment. The respondent’s application to be legally represented was granted, and Mr Cosenza’s application for an adjournment refused. On 4 June 2019, the learned Magistrate dismissed Mr Cosenza’s claim, entered judgment against him and handed down reasons.
The evidence before the Magistrates Court comprised the following affidavits:
·Affidavit of Randeer Singh, UPark operations officer, sworn on 10 August 2018;
·Affidavit of Dean Cosenza sworn 15 March 2019;
·Affidavit of Vicky Thompson, UPark Operations Coordinator, sworn on 3 April 2019;
·Affidavit of Dean Cosenza sworn on 1 May 2019; and
·Affidavit of Dean Cosenza sworn on 7 May 2019.
In addition, the learned Magistrate considered Mr Cosenza’s written submissions filed 13 May 2019, together with the defendant’s written submissions filed on 3 April 2019.
The nature of a minor civil action
Section 38 of the MCA, details the provisions which are applicable to the trial and any review of a minor civil action, and are as follows:
1)         The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters dispute        between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in        dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)     the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
3)      After giving judgment in a minor civil action, the Court—
(a)      should advise the unsuccessful party of his or her right to apply for review of        the proceedings by the District Court; and
(b)      should give the successful party any advice or assistance as to the     enforcement of the judgment that the Court considers appropriate in the       circumstances; and
(c)      if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any      further action that appears appropriate in view of the results of that     investigation.
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.
5)      In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
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)     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.
7)       A decision of the District Court on a review is final and not subject to appeal.
8)       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.
In Harradine v District Court of South Australia,[1] Blue J detailed the legislative history of the minor civil action, and explained that the role of the court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined in the Magistrates Court. His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly, some of the protections provided by legal practice in the general jurisdiction ‘may be sacrificed to the necessity of relating the cost to the amount of the claim’ in a minor civil action.[2]
[1]. [2012] SASC 96.
[2] Ibid, at [40]-[49].
Application for leave for respondent to be legally represented on this Review
This application for a Minor Civil Review was filed by Mr Cosenza on 21 June 2019.
On 21 October 2019, the Court heard an interlocutory application by the respondent seeking leave pursuant to MCA s 38(4)(a)(iii), to be represented by a legal practitioner on the Minor Civil Review. The application for representation was opposed by Mr Cosenza not only in relation to the merits of the Minor Civil Review but also on the interlocutory application seeking leave to be represented at that Review. I granted leave for the respondent to be represented both at the interlocutory hearing seeking leave to be represented as well as on the merits of the Minor Civil Review. I indicated I would provide reasons as part of my judgment on the merits of Mr Cosenza’s application for Minor Civil Review. I set out my reasons now.
Two issues fall for consideration:
1Whether the respondent can be legally represented at an interlocutory hearing pursuant to MCA s 38(4)(ab); and
2Whether the respondent can be legally represented on a Minor Civil Review pursuant to MCA s 38(4)(a).
Interlocutory Hearing seeking leave to be represented at the Minor Civil Review
At the hearing of the Interlocutory application by the respondent to be represented at the hearing of the Minor Civil Review, the respondent sought further leave to be legally represented for the purposes of arguing the interlocutory application pursuant to MCA s 38(4)(ab). It submitted that it was appropriate for it to be legally represented at the interlocutory application, given the relatively complex procedural history and nature of the matter. Mr Cosenza opposed the respondent being legally represented on the interlocutory application, submitting that there is nothing novel with respect to an interlocutory application for leave to appear on the Minor Civil Review and that no basis had been established under MCA s 38(4)(ab).
I do not accept Mr Cosenza’s submission. This matter has had a difficult and complex history and the Court would be assisted in hearing from Mr Bullock of Counsel for the respondent, as to why leave for the respondent to be represented on the Minor Civil Review should be granted.
Accordingly, I granted leave for the Respondent to be legally represented on the interlocutory application.
Representation at the hearing of the Minor Civil Review
As to representation at the hearing of the Minor Civil Review, Mr Bullock submitted that the criteria in s 38(4)(a) are satisfied such that permission should be granted.
The respondent raised three arguments on the application:
1Mr Cosenza’s legal sophistication;
2The complexity of the matter; and
3The prior judgment of his Honour Judge Slattery.
Mr Cosenza’s legal sophistication
Mr Cosenza has a law degree and has completed a legal practice graduate training course, albeit some years ago. However, as he has not been admitted and does not hold a current practising certificate he is not a legal practitioner. The MCA does not define the term ‘legal practitioner’.
The respondent read and relied on the affidavit of Alexander Jonathon Bubner sworn and filed 26 September 2019. Mr Bubner deposes that litigation searches in the Magistrates Court of this State, this Court and the Supreme Court of South Australia, have identified 98 proceedings where Mr Cosenza has been a party. The Respondent argues that Mr Cosenza is a very experienced litigant, appearing as either a plaintiff or a defendant in a great number of matters both in the State as well as Federal courts.
The respondent referred me to the claim itself, filed in the Magistrates Court on 10 May 2018 and dated 30 April 2018. The respondent emphasised that the document is a 45 paragraph long pleading, set out in a way which one might expect was prepared by a lawyer, as opposed to a lay person.
It is certainly not the type of pleading that might be expected from a lay person in the minor civil jurisdiction, raising as it does various specific statutory provisions including the Australian Consumer Law and the Competition and Consumer Law Act. It is readily apparent that there are a number of parts within the pleadings that indicate a degree of legal sophistication far beyond what might be expected of an ordinary lay person in the minor civil jurisdiction.
The respondent makes the same submission with reference to Mr Cosenza’s written submissions filed in the Magistrates Court and Mr Cosenza’s affidavit sworn and filed in this Court on Friday, 18 October 2019. The respondent submits further that Mr Cosenza’s legal sophistication and knowledge of the law is demonstrated by his application for judicial review of what is, on the face of it, a final decision of his Honour Judge Slattery in this Court on a Minor Civil Review.
Mr Bullock submitted whilst Mr Cosenza is not a legal practitioner, nonetheless he has completed the necessary academic and practical legal training required for admission. He submits that by virtue of his qualifications, Mr Cosenza is tantamount to a legal practitioner and if leave is not granted for the respondent to be legally represented at the review, it will be disadvantaged in representing itself against an individual who has that degree of legal training.
He pointed to Mr Bubner’s affidavit where he deposes that Mr Cosenza carries on a business in which he provides information and advice to people about the law of trespass. He submits that this business speaks to the level of Mr Cosenza’s legal experience and knowledge.
Mr Cosenza submitted to the Court that he is not a legal practitioner for the purposes of the MCA s 38(4) and that of the proceedings evidenced by the litigation searches, he was legally represented for most of them. He said it was not until more recent proceedings that he started appearing for himself, having completed his law degree. He submits that the fact he has a law degree is an irrelevant consideration on the application for leave for legal representation on the Minor Civil Review.

Mr Cosenza submits further, that with respect to filed pleadings, submissions and affidavits in these proceedings both in the Magistrates Court and this Court, their thoroughness can be explained by him engaging experienced legal counsel, to assist with the preparation and settling of those documents. He submits that he has incurred costs in that exercise, and there is no reason why the respondent cannot take the same action without being legally represented in the proceedings.
As to Mr Cosenza’s business, he submitted that this activity was not a business, but rather something that was undertaken in the course of his studies and work with the Legal Advice Clinic at the University of South Australia. He submitted further that no profit was derived from the ‘business’, however the business did receive an income that went solely towards costs of the business. I note that just because a business is not profitable, it does not follow that it is not a business. He states that his involvement in this business is an irrelevant consideration given this claim does not deal with the law of trespass.
Mr Cosenza submits that there is no sufficient basis, nor has the respondent put forward a sufficient basis for it to be represented.
Despite his legal background and knowledge, Mr Cosenza emphasised that he is in the ‘same position’ and ‘on par’ with the respondent and has been required to engage experienced lawyers to assist with his claim.
In reply Mr Bullock submitted that if Mr Cosenza is seeking and receiving legal assistance from qualified counsel, that is all the more reason for the respondent to be granted permission to be represented in these proceedings.
Nature of the claim
As to the nature of the claim, the respondent submitted that at the hearing of the Minor Civil Review, the Court will hear submissions concerning all aspects of the summary judgment, including the application for representation before the learned Magistrate and the underlying merits of the proceedings – none of which the respondent submits are straightforward issues.
I note that the procedural complexity of this matter is evidenced by the fact that the interlocutory application before this court for leave for the respondent to be represented at the Minor Civil Review was the fourth proceeding in relation to the matter and that this is the second Minor Civil Review.
The respondent emphasised the potential significance and commercial importance of the main dispute. It submitted that if Mr Cosenza were to receive judgment on the basis of the Corporation City of Adelaide’s liability for the criminal act of a non-party, that would have ramifications for not only this Council, but Councils across South Australia. Mr Bullock submitted that the claim seeks to avoid the consequences of Modbury Triangle Shopping Centre Pty Ltd v Anzil,[3] by attempting to extend or re-apply the law and referred to his Honour Judge Slattery’s judgment, where his Honour observed:[4]
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 damages 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.
[3] (2000) 205 CLR 254 (‘Modbury Triangle’).
[4] Cosenza v Adelaide City Council [2019] SADC 58.
Mr Cosenza submits that the nature of the claim and the application for review are not based on a novel area of law. He submits that all that is required on the review is to raise a point of law and show an arguable basis for that to be argued at trial. I do not accept that submission. On a Minor Civil Review, this Court is required to consider the substance of the decision under review, which will involve an analysis of the question of the merits of Mr Cosenza’s claim. The Court is also not confined by the rules of evidence or other procedural matters, in the way that one would be in a conventional appeal.
Previous decision of his Honour Judge Slattery
As I have noted, his Honour Judge Slattery heard a Minor Civil Review on the decision of the learned Magistrate to grant leave to the respondent to be represented by a legal practitioner on the application for leave to issue an interlocutory application seeking summary judgment. His Honour also granted leave for the respondent to be legally represented on the review before him. His Honour dismissed Mr Cosenza’s application for Review and held that there was no relevant error by the learned Magistrate.
The respondent submits that although not binding between the parties for the purposes of this review, the judgment of his Honour published on 15 May 2019, is persuasive as a determination by a Judge of this Court between the same parties in relation to the same matter. The respondent submits that I should not depart from that outcome unless there is some significant change in the underlying facts of the matter. His Honour’s decision is not binding on me – it is a decision of another Judge of this Court on a different review application and with the greatest of respect to his Honour I give it no weight in these particular circumstances.
Magistrates Court Rules 1992, r 13(4)
As part of his submission, Mr Cosenza submitted that the criteria in MCR r 13(4), have not been met. MCR r 13(4) provides:
(4)    In deciding whether a party would be unfairly disadvantaged in a minor civil action, if not represented by a legal practitioner, the Court must have regard to whether –
(a)    the party has a judgment in his/her favour in the action,
(b)    the party will suffer undue expense or inconvenience in attending,
(c)    the party is unable to attend due to ill health,
(d)    any other proper cause exists.
Mr Cosenza submits that MCR rr 13(4)(a), (b) and (c) do not apply to this matter, with the result that the respondent is required to demonstrate that proper cause exists for the granting of leave for legal representation pursuant to r 13(4)(d). He submits that this MCR provision equally applies to MCA s 38.
As to any other proper cause, Mr Cosenza has an extensive legal knowledge and background. In my view, the respondent would be disadvantaged at the hearing of this Minor Civil Review if not granted leave to be legally represented. Further, Mr Cosenza is submitting that High Court authority should not be followed and the assistance of counsel on that question is important.
Granting of leave
I am satisfied that the respondent should be granted leave to be legally represented on the hearing of the Minor Civil Review and I grant leave accordingly.
The hearing of the Minor Civil Review
At the hearing of the Minor Civil Review, Mr Cosenza appeared for himself and Mr Bullock of Counsel appeared for the respondent.
Mr Cosenza relied on the following grounds:
1The learned Magistrate erred in law and fact in granting the defendant solicitor and Counsel leave to appear within the small claims Division of the Magistrates Court;
2The learned Magistrate erred at law by permitting the defendant solicitor and Counsel leave to appear within the small claims Division of the Magistrates Court as none of the exceptions within s. 38(4) of the Magistrates Court Act 1991 were satisfied;
3The granting of leave to appear pursuant to s. 38(4)(a)(iii) of the Magistrates Court Act 1991 was an abuse of process of the Court as the Magistrate had previously refused leave on 13.8.18 pursuant to this ground and instead granted leave pursuant to s. 38(4)(ab) of the Magistrates Court Act 1991 (which is the subject of pending Supreme Court Judicial Review as a summary dismissal application is not an interlocutory proceeding as a matter of law); and
4The learned Magistrate erred in law and fact in relation to the findings within the summary dismissal decision.
I deal with each ground separately.
Ground 1: The learned Magistrate erred in law and fact in granting the defendant solicitor and Counsel leave to appear within the small claims Division of the Magistrates Court
On 13 August 2018, the learned Magistrate granted leave for the respondent, then the defendant, to be legally represented at the application for leave to file an interlocutory application for summary judgment. The learned Magistrate also granted leave for the respondent to be legally represented at the argument for the proposed summary judgment application. The relevant orders are as follows:[5]
1. The matter of legal representation in the minor civil jurisdiction is governed by s 38(4) of the Magistrates Court Act 1991. The court has a discretion to allow legal practitioners to appear on interlocutory applications (s.38(4)(ab)). An application had been lodged seeking leave to file an interlocutory application for summary judgment/strike out. That is a legal argument and it is an appropriate matter to exercise discretion to permit legal representation.
…
4. The plaintiff’s objection is noted, but the defendant has leave to have legal representation at the argument of the proposed strike out/summary judgment application.
[5] Record of Outcome, Action No. PADCI-18-121, dated 14.05.2019.
At the hearing of the summary judgment application, on 14 May 2019 the learned Magistrate made a further order granting leave for the respondent to be legally represented on its interlocutory application for summary judgment in these terms:[6]
1. Reasons delivered on the defendant’s application for legal representation (FTR Ct 6 T Hutchens). The defendant is granted leave to be legally represented today.
[6] Record of Outcome, Action No. PADCI-18-121, dated 13.08.2018.
As to the first order, this ground relates to the hearing before the learned Magistrate on 13 August 2018. The issue has already been considered on review by his Honour Judge Slattery. His Honour affirmed the learned Magistrate’s decision. The matter has already been determined and I do not need to consider it further. [7]
[7] Cosenza v Adelaide City Council [2019] SADC 58.
As to order 4, Mr Cosenza argues that an issue estoppel arose from learned Magistrate’s decision on 13 August 2018 granting leave for the respondent to be legally represented at the hearing of the summary judgment application on 14 May 2019.
As I understand Mr Cosenza’s argument, on 13 August 2018, the learned Magistrate granted leave for the respondent to be legally represented pursuant to MCA s 38(4)(ab) on both the 13 August 2018 hearing and the subsequent 14 May 2019 hearing on the merits.
The learned Magistrate’s orders are set out above and order 4 does not make reference to an Act or section of an Act, pursuant to which leave to appear on the summary judgment application itself was granted. Mr Cosenza submits that the learned Magistrate had already made orders on 13 August 2018, granting leave for the defendant to be legally represented on the summary judgment application, pursuant to MCA s 38(4)(ab), which applies only to interlocutory applications.
Mr Cosenza’s argument is that since the learned Magistrate granted leave pursuant to MCA s 38(a)(ab) on the 13 August 2018 then leave could not be granted subsequently for the argument proper pursuant to MCA s 38(4)(a)(iii).
Mr Cosenza submits that the granting of leave pursuant to a different sub-section of MCA s 38 is an abuse of the court processes. He submits that as the issue had already been heard and determined, an issue estoppel arose so that the respondent should not have been permitted to proceed on the 14 May 2019 argument pursuant to s 38(4)(a)(iii). He submits that any order made pursuant to another provision, was made irregularly and should be set aside. Mr Cosenza submits that on 14 May 2019, the respondent admitted leave was sought incorrectly on 13 August 2018.
The respondent submits that the learned Magistrate made no such finding on 13 August 2018. The respondent denies Mr Cosenza’s allegation that it admitted leave was sought incorrectly on 13 August 2018, and that was the reason it was re-addressed on 14 May 2019.
The respondent submits that it sought leave pursuant to s 38(4)(ab) on 13 August 2018 on the application for leave to serve an interlocutory application, and correctly sought leave pursuant to s 38(4)(a)(iii) at the hearing of the merits of the matter on 14 May 2019. The respondent says it took the position as recorded in the judgment of the learned Magistrate, i.e. that a summary judgment hearing would lead to a final judgment and therefore it was not interlocutory in nature.
I do not need to determine whether or not the respondent conceded it had sought leave incorrectly on 13 August 2018 for leave to be represented at the subsequent 14 May 2019 hearing.
As I have noted, order 4 made on 13 August 2018 does not indicate pursuant to what section leave is granted. Mr Cosenza submits that order 4 should be read together with order 1, to infer that the learned Magistrate granted leave for the respondent to be legally represented on the summary judgment application pursuant to s 38(4)(ab). I decline to do so. In any event, I do not consider that even if the learned Magistrate did proceed under s 38(4)(ab) on 13 August 2018 in relation to order 4, that would not prevent the re-consideration of the application on 14 May 2019. I do not accept that an issue estoppel arises.
Mr Cosenza also submits that the learned Magistrate’s orders allowing legal representation on 14 May 2019 were irregular. I do not accept that submission for the reason that I do not consider that on 13 August 2018 the learned Magistrate proceeded under s 38(4)(ab) in relation to order 4.
As part of my consideration of this issue, I also find that there was no prejudice suffered by Mr Cosenza in the granting of leave for the respondent to be legally represented at the application for summary judgment. There is no suggestion Mr Cosenza would have relied upon different written submissions or different authorities. Contrary to Mr Cosenza’s submissions, I do not consider him to be in the position of a party as in Atkins v O’Brien.[8]Mr Cosenza is well equipped to make his case, and any notion of unfairness would be more applicable to a scenario where a lay person with no legal background, faced Counsel on an argument of this nature.
[8] [2018] SADC 93 at [26]-[28].
I do not consider the learned Magistrate to have erred in granting leave for the respondent to be legally represented on 14 May 2019.
Ground 2: The learned Magistrate erred at law (sic) by permitting the defendant solicitor and Counsel leave to appear within the small claims Division of the Magistrates Court as none of the exceptions within s.38(4) of the Magistrates Court Act 1991 were satisfied.
This ground relates to the hearing before the learned Magistrate on 13 August 2018. As I have noted, the issue has already been considered on a Minor Civil Review by his Honour Judge Slattery. His Honour affirmed the decision of the learned Magistrate in granting permission for the Respondent to be legally represented within the Minor Civil Claims Division of the Magistrates Court. The matter has already been determined and I do not need to consider it further.[9]
Ground 3: The granting of leave to appear pursuant to s.38(4)(a)(iii) of the Magistrates Court Act 1991 was an abuse of process of the Court as the Magistrate had previously refused leave on 13.8.18 pursuant to this ground and instead granted leave pursuant to s.38(4)(ab) of the Magistrates Court Act 1991 (which is the subject of pending Supreme Court Judicial Review as a summary dismissal application is not an interlocutory proceeding as a matter of law)
[9] Cosenza v Adelaide City Council [2019] SADC 58.
I have dealt with this issue above. I do not consider the granting of leave on 14 May 2019 to be an abuse of the Court’s processes.
Ground 4: The learned Magistrate erred in law and fact in relation to the findings within the summary dismissal decision.
Mr Cosenza complains that the learned Magistrate erred in law and fact in relation to the findings within the summary dismissal decision.
The nature of a summary judgment application
The principles regarding summary judgments are well known. The application for summary judgment was made by the respondent, therefore it has the onus of establishing that there are no reasonable prospects of success for Mr Cosenza’s claim, taking the claim at its highest.[10]
[10] Nassar v Australian Telecommunications Corp [1993] SASC 38, 42 (Debelle J).
I approach this issue by taking the allegations in the statement of claim at face value and adopting the most favourable view of the facts to Mr Cosenza, in order to consider whether a cause of action exists.
Review of the learned Magistrates decision on summary judgment
Mr Cosenza submits that this case is not one where summary judgment is appropriate because there are many issues within the claim that will require the exercise of the Court’s consideration in order to determine the dispute. It is submitted that those consideration include:
a)Whether the conduct of the defendant was negligent and a duty of care existed;
b)Whether the conduct of the defendant was misleading and deceptive;
c)Whether the conduct of the defendant was unconscionable resulting in breaches to Australian Consumer Law;
d)Whether the signage relied upon by the plaintiff was a negligent misstatement;
e)Whether any contract or in the alternative, any valid contract existed between the parties; and
f)Whether the plaintiff was entitled to seek equitable relief in relation to the (false) representation made by the defendant in reliance to his detriment.
Mr Cosenza’s point is really that these issues need to be determined by a court at trial. He submits that the learned Magistrate was bound to allow the matter to run to trial and that his Honour Judge Slattery’s findings inferred that this issue ought to be argued. Mr Cosenza further submits that the respondent did not establish that he had no reasonable prospects of success, or no reasonable basis for the action.
In his submissions, Mr Cosenza emphasised that this is a matter of public importance. He submitted that the issues present a unique and important opportunity to advance and extend a significant point of law in Australia. He submitted that this action should be heard for the purposes of ensuring both the public interest is satisfactorily maintained and adequately observed, as well as ensuring that if there are any issues with respect to advancing a particular point of law or with respect to dealing with an area of law that may be complex or novel, that an opportunity to be heard at trial and determined on its merits is given. He complains that did not occur and an injustice was caused to him.
The respondent submitted that there is only one real factual issue in this matter, being whether the plaintiff left the carpark within 10-minutes, which it says does not affect the prospects of success of Mr Cosenza’s claim. Regardless of the point taken on that issue, the respondent submits that if every aspect of the factual case was taken in favour of Mr Cosenza, each cause of action would fail.
Negligence and Duty of Care
Mr Cosenza submits that his action in negligence is founded on a new question of law and therefore summary judgment cannot be entered.
I do not accept that submission. There is no principle that a legal proposition or issue cannot be dealt with in a summary way.
In this matter, Mr Cosenza attempts to extend the law of negligence by questioning whether the principles set out in Modbury Triangle should be extended. He draws a distinction between this matter and the facts of Modbury Triangle, specifically that in this matter the respondent is a local government agency with legal and moral obligations imposed upon it, alongside various duties pursuant to the Local Government Act. In contrast, in Modbury Triangle, the carpark in question was privately owned.

The respondent submits that this question can be dealt with by assuming the facts in favour of Mr Cosenza, and then considering the applicable law. It submits that no duty of care of the kind asserted by Mr Cosenza can exist in the circumstances alleged and that Modbury Triangle makes it clear a special relationship is required. It submits that this is not a situation where there is a close, protective relationship, nor is it a case where one person unequivocally assumes responsibility for the care and safety of another person. The respondent submits that a relationship of that kind is an unreasonable burden to place on a party like the Council.
Apart from Modbury Triangle,[11] the learned Magistrate also referred to a decision of the NSW Court of Appeal which confirmed that as a general rule, an occupier does not owe a duty to Mr Cosenza to protect him from the criminal actions of a third party[12] even in a commercial setting. The respondent submits a special relationship did not exist.
[11] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [26].
[12] Lesandu Blacktown Pty Ltd v Gonsalez [2013] NSWCA [8]-[12].
Mr Cosenza in reply submitted that the Council knew that the cameras were not operational and did not implement or adopt an alternative approach to keep users of the carpark safe. He submits that as a result of this, the Council was negligent. I do not accept that submission.
I accept the respondent’s submissions. I affirm the Magistrates decision that there is no reasonable basis for the applicant’s claim in negligence.
Misleading and Deceptive Conduct, and Unconscionable Conduct
Mr Cosenza pleads that the respondent’s representation that the carpark was secure and had 24-hour operational security cameras, was misleading and deceptive contrary to s 18 of the Australian Consumer Law.
Specifically, he points to the representations by the Council that it had operational cameras in the carpark, with the consequence that visitors would be secure and that an ability to identify any culprits, assailants or perpetrators for the purposes of taking matters further, would be available should it be necessary.
Misleading and deceptive conduct may apply in circumstances where a representation(s) induces a party into an agreement. Mr Cosenza submits that he entered the carpark for the purpose of having his vehicle parked while he was attending a luncheon. He says he was induced to use the carpark by the representation that the carpark was safe and had security cameras operating. He emphasised that he was denied an opportunity to identify the perpetrator of his assault and have security assist him which, he submits, amounts to misleading and deceptive conduct pursuant to s 18 of the ACL.
The respondent submits that there is no suggestion in Mr Cosenza’s pleadings that he saw or relied upon any sign about CCTV, safety or security. The respondent submits that to the extent that reliance is pleaded, it is after Mr Cosenza has entered the car park, and after the assailant has attacked him.
The respondent submits there must be a causal link between the legal obligation that falls on the respondent and Mr Cosenza’s ultimate loss however that there is no causal link between the representation and the loss alleged. It submits that all of these events would have happened even if the sign did not exist, that is to say Mr Cosenza would have still entered the car park, would have still been assaulted, and still would have left in fear. There is nothing to suggest that had there been operating cameras, the assault would not have occurred.
In reply, Mr Cosenza submitted he placed reliance on the signs prior to entering the carpark, as the signs were clearly displayed to him at the time of taking a ticket to enter the carpark, and that he knew of the signs as he had used the carpark before.
The learned Magistrate observed that even if the cameras had been operational, there is no telling what would have actually been captured by CCTV. The result is a highly speculative link between the availability of the footage and any ultimate recovery or identifying of the assailant by Mr Cosenza.
In my view the learned Magistrate was correct to find that on the facts alleged the Respondent did not engage in misleading and deceptive conduct, nor unconscionable conduct.
I affirm the Magistrates decision on these issues.
Negligent Misstatement
Mr Cosenza submitted that signage indicating that there was 24-hour operational CCTV available was a negligent misstatement, in that the information or advice provided was inaccurate or misleading.
The respondent submitted that the mere fact a sign says, ‘CCTV operating in this area’, is not a promise that it is operating 24-hours a day, seven days a work with no failures at any time. Nor, it submits, is a sign in those terms a promise that in the event footage is captured and kept, it will be available to users of the carpark. On the respondent’s case, the sign is meant as a deterrent to possible perpetrators, rather than a promise to customers that footage is available for their perusal if anything is to happen to them whilst in the carpark. It submits that taking Mr Cosenza’s case at its absolute highest, the alleged representation cannot arise.
I find that the sign does not comprise a negligent misstatement by the respondent.
Contract
Mr Cosenza submits that at the time he took the carpark ticket, a contract was entered into between him and the respondent. He submits that one of the terms of the contract is that if he leaves within 10 minutes of entering the carpark, he is no longer bound by the contractual terms and that there is uncertainty over what happens if there is some issue within what he refers to as the ‘10-minute cooling off period’. He submits that the contract is still valid within that 10-minute period and that the Council is still bound by any contractual relationship that exists between the parties.
The learned Magistrate found that as a matter of law, no contract arose.
As an alternative submission, Mr Cosenza submitted that if a valid contract did not exist, then a cause of action in unconscionable conduct arises.
The respondent submitted that no contract exists, and even if it did, an implied term that Mr Cosenza would be protected is directly inconsistent with the express terms.
I have already found that there was no conduct by the respondent that amounts to unconscionable conduct. I find that no contract came into existence between Mr Cosenza and the respondent. I affirm the Magistrates decision on this issue.
Equity
Mr Cosenza complains that the learned Magistrate erred in not appropriately considering a cause of action in promissory or equitable estoppel, or whether equitable relief was available. It is submitted that it was available for the learned Magistrate to have found that in the absence of a valid contract, Mr Cosenza was able to pursue his claim in equity, as reliance was placed upon the promise and the representations made by the Council, to his detriment.
On this issue, the respondent submits that Mr Cosenza could not raise an estoppel because it could not be established there was an intention by the Council to mislead Mr Cosenza into entering the carpark, knowing that the cameras were not operational. It is not the case that there is an assumed state of affairs, but rather that the respondent would have to know that Mr Cosenza made an assumption that he would be safe and have access to CCTV, that he relied on that assumption, and then that the Council sought to depart from that assumption.[13] The respondent submits that this could not be a state of affairs in which equity would intervene to bind the respondent’s conscience.
[13] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7.
I find that there is no cause of action in estoppel.
Local Government Act 1999 (SA) (‘LGA’)
Mr Cosenza submits that as the carpark area is owned and operated by the Council and is an area that includes visitors. He submits that the respondent is governed by the LGA with respect to its lawful obligations and duties.
Mr Cosenza submits further that there is a very broad obligation imposed on the Council, such that it owes a duty to the general public and community, with respect to areas it manages. He refers to sections 7 and 8 of the LGA which are in the following terms:
7—Functions of a council
The functions of a council include—
(a)to plan at the local and regional level for the development and future requirements of its area;
(b)to provide services and facilities that benefit its area, its ratepayers and residents, and visitors to its area (including general public services or facilities (including electricity, gas and water services, and waste collection, control or disposal services or facilities), health, welfare or community services or facilities, and cultural or recreational services or facilities);
(c)to provide for the welfare, well-being and interests of individuals and groups within its community;
(d)to take measures to protect its area from natural and other hazards and to mitigate the effects of such hazards;
(e)to manage, develop, protect, restore, enhance and conserve the environment in an ecologically sustainable manner, and to improve amenity;
(f)to provide infrastructure for its community and for development within its area (including infrastructure that helps to protect any part of the local or broader community from any hazard or other event, or that assists in the management of any area);
(g)to promote its area and to provide an attractive climate and locations for the development of business, commerce, industry and tourism;
(h)to establish or support organisations or programs that benefit people in its area or local government generally;
(i)to manage and, if appropriate, develop, public areas vested in, or occupied by, the council;
(j) to manage, improve and develop resources available to the council;
(k) to undertake other functions and activities conferred by or under an Act.
8—Principles to be observed by a council
A council must act to uphold and promote observance of the following principles in the performance of its roles and functions—
(a)provide open, responsive and accountable government;
(b)be responsive to the needs, interests and aspirations of individuals and groups within its community;
(c)participate with other councils, and with State and national governments, in setting public policy and achieving regional, State and national objectives;
(d)give due weight, in all its plans, policies and activities, to regional, State and national objectives and strategies concerning the economic, social, physical and environmental development and management of the community;
(e)seek to co-ordinate with State and national government in the planning and delivery of services in which those governments have an interest;
(ea)seek to collaborate and form partnerships with other councils and regional bodies for the purposes of delivering cost-effective services (while avoiding cost-shifting among councils), integrated planning, maintaining local representation of communities and facilitating community benefit;
(f)seek to facilitate sustainable development and the protection of the environment and to ensure a proper balance within its community between economic, social, environmental and cultural considerations;
(g)manage its operations and affairs in a manner that emphasises the importance of service to the community;
(h)seek to ensure that council resources are used fairly, effectively and efficiently;
(i)seek to provide services, facilities and programs that are adequate and appropriate and seek to ensure equitable access to its services, facilities and programs;
(j)achieve and maintain standards of good public administration;
(k)ensure the sustainability of the council's long-term financial performance and position.
He argues that the fact that CCTV was not operational, portrays a carelessness and recklessness on behalf of the Respondent, as it failed to take proper observance of its duty to the wider community.
The respondent submits that there is no cause of action arising out of the LGA provisions referred to.
I do not consider the LGA founds a cause of action for damages in the circumstances of this matter and that the respondent was in breach of any general duty that it owed to Mr Cosenza. In my view, even if there had been a breach of the LGA by the respondent, it would not give rise to a reasonable basis for damages claim.
I affirm the Magistrates decision on this issue.
Referral to the Full Court of the Supreme Court
Mr Cosenza submitted throughout the hearing of the review, that this matter should be referred to the Full Court of the Supreme Court of South Australia for the purpose of determining these issues as it raises a significant point of law.
He referred to MCA s 38(9) which allows this Court to refer a matter of this kind to the Full Court. Section 38(9) provides:
Division 2—Minor civil actions
38—Minor civil actions
(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.
Mr Cosenza submits that this is an appropriate case to be referred to the Full Court, as it does not deal with a complex matter but deals with a potential extension of the law.
In order to refer this matter to the Full Court, I need to be satisfied that there is a genuine need for that referral. Although Mr Cosenza submitted that this matter concerns the public interest, is for the benefit of the wider community in Australia and can only be dealt with by a higher court, I do not accept that submission and I am not satisfied there is a genuine need for this matter to be referred to the Full Court. I decline to refer this matter to the Full Court.
Re-Pleading
Mr Cosenza submitted that if any ambiguity existed on his pleadings, in relation to any cause of action, he should have been afforded the opportunity to re-plead rather than have summary judgment entered against him. He submitted that he was refused leave to re-plead.
In reply, the respondent submitted that Mr Cosenza was not refused an opportunity to re-plead, but rather did not make an application to do so. Further, in the learned Magistrate’s reasons, she found that the pleadings were incapable of being amended so as to give rise to a cause of action.
I do not consider that an amendment to Mr Cosenza’s pleadings would be capable of pleading a cause of action. To the extent Mr Cosenza applies for permission to re-plead, I refuse permission.
Conclusion
I have considered each of the grounds of review put forward by the applicant. I find that none of the applicant’s grounds of review are made out.
I affirm the learned Magistrate’s decision and dismiss the application for review.