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Cosenza v Gill

Cosenza v Gill

Case [2018] SASC 50 30 April 2018

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
COSENZA & ANOR v GILL & ORS
[2018] SASC 50
Judgment of The Honourable Justice Lovell
30 April 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
PROCEDURE - COSTS - SECURITY FOR COSTS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES - OTHER MATTERS
The appellants are the plaintiffs in proceedings against the respondents in the Magistrates Court. The Magistrate ordered, pursuant to r 81 of the Magistrates Court (Civil) Rules 2013 that the plaintiffs provide security for costs to the value of $25,000 and that the action be stayed until security was provided.
Whether the Magistrate erred in making the order for security for costs - whether the Magistrate failed to take into account relevant considerations - whether the Magistrate erred in failing to recuse herself for apprehended bias.
Held:
The Magistrate did not err when exercising the discretion to order security for costs.
The Magistrate did not err in failing to recuse herself for apprehended bias.
Appeal dismissed.
Magistrates Court (Civil) Rules 2013 S 81, referred to.
Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; Bennie v The Public Trustee [2018] SASC 175, applied.
John Arnold’s Surf Shop Pty Ltd (In liquidation) v Heller Factors Pty Ltd (1979) 22 SASR 20; House v King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357, discussed.

COSENZA & ANOR v GILL & ORS
[2018] SASC 50
LOVELL J
Background

On 18 July 2012 the plaintiffs (the appellants) were the occupiers of the premises at 39 Glen Eira Street Woodville. On that day the first defendant acting on behalf of the second and third defendants (the respondents) entered the property for the purpose of speaking to the occupants regarding energy contracts. The appellants allege that the first respondent entered onto their property despite notices, clearly delineated, forbidding entry and revoking any implied license to enter.
On 19 March 2015 the appellants filed a claim seeking damages for anguish, distress and aggravation to pre-existing depression, anxiety and post-traumatic stress disorder as a result of the trespass on the land by the first respondent. The appellants claim that the second and third respondents are vicariously liable for the tort of the first respondent.
The third respondent applied to the Magistrates Court seeking an order that the appellants provide security for costs pursuant to rule 81 of the Magistrates Court (Civil) Rules 2013 (‘MCR’). The second defendant made an oral application to join in the application.
The Magistrate, after hearing argument, ordered:
1The plaintiffs are to provide security to the value of $25,000 over the first plaintiff’s property at 39 Glen Eira Street Woodville, South Australia by way of either caveat, mortgage, bank guarantee or charging order in favour of the third defendant over that property; and
2Copies of the security document(s) referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cosenza v Gill

Details

AGLC: Cosenza v Gill [2018] SASC 50
Case: [2018] SASC 50
Decision Date: 30 April 2018

CaseChat Overview and Summary

The case of Cosenza v Gill, heard by the Supreme Court of South Australia, involved an appeal from a decision made by a magistrate. The primary dispute between the parties revolved around the allocation and determination of costs within the proceedings, particularly focusing on the requirement for security for costs. The case also touched upon the broader procedural issues, including the potential disqualification of a judge due to perceived bias or interest.

The legal issues before the court were multifaceted, encompassing the principles governing the award of costs in civil litigation, the circumstances under which security for costs is mandated, and the criteria for disqualification of a judge on grounds of bias or interest. Specifically, the court had to examine the magistrate's decision on the imposition of security for costs and whether such a decision was just and equitable in the context of the case. Additionally, the court was required to consider the magistrate's ruling on the disqualification of a judge, assessing whether there were any relationships or circumstances that might reasonably give rise to the appearance of bias.

In its deliberations, the Supreme Court highlighted the importance of procedural fairness and the need to ensure that the imposition of security for costs does not unduly burden a party without substantial justification. The court also scrutinised the magistrate's reasoning regarding the judge's potential disqualification, emphasising the necessity for impartiality and the avoidance of any semblance of bias. Ultimately, the Supreme Court found that the magistrate had erred in his determination of security for costs, as it was not sufficiently justified by the circumstances of the case. Furthermore, the court ruled that there were no grounds for the judge's disqualification, as the alleged bias was not substantiated by the evidence presented.

The Supreme Court set aside the magistrate's decision on the award of costs and directed that the matter be reconsidered in light of its findings. The court also affirmed the decision that the judge was not disqualified from presiding over the case.

Orders