Cosenza v Gill

Case [2016] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

COSENZA & ANOR v GILL & ORS

[2016] SASC 154

Judgment of The Honourable Justice Stanley

28 September 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

MAGISTRATES - GENERALLY - STAY OF PROCEEDINGS AND ABUSE OF PROCESS

This is an appeal from a magistrate.  The magistrate struck out the appellants’ claim as an abuse of process.

On 19 March 2015 the appellants filed a claim seeking damage for anguish, distress and aggravation to pre-existing depression, anxiety and post-traumatic stress disorder as a result of a trespass on their 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 Court to strike out the appellant’s claim on the basis that the proceedings are a duplication of proceedings previously issued by the appellants in 2012 which were dismissed for want of prosecution in November 2013.  The only difference between the two proceedings is that in accordance with the change in the jurisdictional limit of the Magistrates Court, the second claim seeks damages in the sum of $100,000 rather than $40,000.  The third respondent’s application was supported by the second respondent. 

The material before the magistrate evidenced that, as the magistrate described it, this was not an isolated claim.  The appellants have initiated several claims for damages in trespass against a number of defendants.  Those claims are almost identical to the present proceedings and to the claim which was dismissed in November 2013.  In addition, there was evidence that the appellants had also been engaged in litigation in the Magistrates Court and District Court in at least nine actions commencing in 2011, 2012 and 2014.

The appeal is three days out of time.  The appellants seek an extension of time within which to institute the appeal.

Held (per Stanley J):

1.  Extend the time within which to institute the appeal (at [27]).

2.  Allow the appeal (at [27]). 

3.  Set aside the order of the magistrate striking out the 2015 proceedings (at [27]). 

4.  Remit the matter to the Magistrates Court for any further pre-trial matters to be dealt with (at [27]). 

5.  Any further pre-trial matters and the trial should be heard by another magistrate (at [27]).

Magistrates Court (Civil) Rules 2013 (SA) r 3, referred to.
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Cox v Journeaux (No. 2) (1935) 52 CLR 713, discussed.
Lujans v Yarrabee Coal Company Pty Ltd (2008) 249 ALR 663; Wrightville Operations Pty Ltd trading as Jarvis Ford v Lisman [2007] SASC 259; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; Hunter v Chief Constable of West Midlands Police [1982]…

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Cosenza v Gill [2016] SASC 154
Case
[2016] SASC 154
Decision Date

CaseChat Overview and Summary

Cosenza v Gill involved a claim for damages for anguish, distress, and aggravation to pre-existing health conditions, resulting from a trespass on land by the first respondent. The appellants sought to hold the second and third respondents vicariously liable for the first respondent's tort. The third respondent applied to strike out the appellants' claim, arguing it was a duplication of a previous proceeding dismissed for want of prosecution. The key legal issues were whether the dismissal of the previous proceedings justified the dismissal of the current proceedings as an abuse of process and whether the appellants had provided a satisfactory explanation for their failure to prosecute the earlier claim.

The court examined the magistrate's decision and found that it was based on an assumption that the appellants' failure to prosecute the 2012 claim was due to a conscious decision to neglect it while focusing on other litigation. The court held that this reasoning was flawed as it did not consider the appellants' evidence of ill health and the lack of cross-examination on the matter. The court noted that the appellants had provided a reasonable explanation for their failure, and there was no evidence to suggest their conduct was contumacious. Consequently, the court held that the magistrate's finding of an abuse of process was erroneous, and the appeal was allowed. The order striking out the 2015 proceedings was set aside, and the matter was remitted to the Magistrates Court for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Both before the magistrate and before this Court there was no appearance by the first respondent. I am informed the first respondent has not been served with the proceedings. Background to the application On 19 March 2015 the appellants filed a claim seeking damage for anguish, distress and aggravation to pre-existing depression, anxiety and post-traumatic stress disorder as a result of a trespass on their 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 Court to strike out the appellant’s claim on the basis that the proceedings are a duplication of proceedings previously issued by the appellants in 2012 which were dismissed for want of prosecution in November 2013. The only difference between the two proceedings is that in accordance with the change in the jurisdictional limit of the Magistrates Court, the second claim seeks damages in the sum of $100,000 rather than $40,000. The third respondent’s application was supported by the second respondent. The material before the magistrate evidenced that, as the magistrate described it, this was not an isolated claim. The appellants have initiated several claims for damages in trespass against a number of defendants. Those claims are almost identical to the present proceedings and to the claim which was dismissed in November 2013. In addition, there was evidence that the appellants had also been engaged in litigation in the Magistrates Court and District Court in at least nine actions commencing in 2011, 2012 and 2014.[1] [1] Affidavit of Catriona Louise Mahony sworn 4 February 2016, paragraph 4. The first appellant filed an affidavit sworn 18 January 2016 on the application to strike out the proceedings as an abuse of process. In his affidavit he deposed to the appellants having ongoing health issues that restricted their ability to pursue the proceedings when originally filed. He deposed that both appellants had been hospitalised during this time and continued to suffer from physical and mental health issues that affected their respective abilities to reasonably manage their personal and business affairs generally. He said that his mother was regularly treated and managed for renal failure, depression, PTSD, anxiety, chronic pain and attended various medical appointments weekly. She has mobility issues and uses a wheelchair to move about. He said that he was regularly treated for chronic pain, depression, anxiety, PTSD, spinal pain and had undergone spinal surgery and that he expected to undergo spinal surgery again. He said that the appellants were preoccupied with their health issues, realised the date to serve these proceedings had lapsed and so refiled. The magistrate received a medical report from the first appellant’s treating general practitioner, Dr Vinci. Before the magistrate the respondents challenged the appellants’ reasons for the failure to prosecute the 2012 claim. However, no application was made to cross-examine the first appellant on his affidavit. The magistrate’s reasons

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal was instituted three days out of time. In the circumstances I would grant an extension of time. Conclusion I would extend the time within which to institute the appeal. I would allow the appeal. I would set aside the order of the magistrate striking out the 2015 proceedings. I would remit the matter to the Magistrates Court for any further pre-trial matters to be dealt with. In the circumstances I consider it appropriate that any further pre-trial matters and the trial should be heard by another magistrate.

Ratio Decidendi

Legal Principle Established

In Beverage Bottlers (SA) Ltd (In Liq) & Anor v Abode Enterprises Pty Ltd[16] Kourakis J (as he then was), with whom Vanstone J agreed, said[17] that the Court’s power to dismiss or stay an action as an abuse of process is “exceptional”. He referred to the oft-cited observation of Dixon J (as he then was) in Cox v Journeaux (No. 2)[18] where he said:[19]A litigant is entitled to submit for determination according to the due course of procedure or claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.[16] [2009] SASC 272.[17] [2009] SASC 272 at [146] – [149].[18] (1935) 52 CLR 713.[19] (1935) 52 CLR 713 at 720Consideration It is well recognised that the fact that a previous action has been dismissed for want of prosecution will not of itself justify the dismissal of a subsequent action based upon the same cause of action as an abuse of process.[20] However, in Brocx v Hughes[21] the Court of Appeal found there was an abuse of process in those circumstances because the only inference reasonably open on the evidence was that the conduct of the party in default was contumacious. No satisfactory explanation had been provided for it. As the conduct had not been explained, the Court held that it could not be satisfied that it would not occur again. On that basis the Court was satisfied that the subsequent proceedings constituted an abuse of process. [20] Hughes v Gales (1995) 14 WAR 434 at 438 – 439.[21] [2010] WASCA 57, (2010) 41 WAR 84. Although the magistrate did not say so expressly, it appears he proceeded to find that the 2015 proceedings constituted an abuse of process on the basis that the appellants’ failure to prosecute the 2012 proceedings diligently, resulting in the dismissal of those proceedings for want of prosecution, was contumacious. The magistrate held that he was not persuaded by the appellant’s explanation for their failure to prosecute the 2012 claim. He appears to reason that the other actions they were maintaining during 2012, 2013 and 2014 suggests they made a conscious decision to allow the 2012 claim to wither on the vine while they concentrated on other actions. He held that this was not a case where the appellants’ failure to prosecute the 2012 claim was due to any extraneous circumstances or matters beyond their control. He noted they were already conducting many other claims simultaneously with the 2012 claim. He found that the additional effort in maintaining this claim would have been minimal. It appears that on that basis he found there was a deliberate decision to allow the claim to lapse, which demonstrated a disregard for the processes and procedures of the Court. On that basis he found there was an abuse of process. With great respect, I consider this reasoning discloses error. Before the magistrate, the appellants put forward an explanation for the failure to diligently prosecute the 2012 claim. There was evidence in the affidavit of Mr Cosenza of 18 January 2016 that at the relevant time he and his mother were suffering from ill health which restricted their ability to conduct their affairs. There was some corroboration for this evidence, at least in the case of Mr Cosenza, in the medical report of his treating general practitioner, Dr Vinci. The respondents sought to challenge this explanation by evidence that during the relevant period the appellants had been actively engaged in a myriad of other legal proceedings. It appears that the magistrate rejected the appellants’ explanation on the basis of the evidence that they were engaged in other litigation at the time. On this basis he inferred a conscious and deliberate decision to allow the 2012 claim to wither on the vine while the appellants concentrated on other actions. That was not the only inference reasonably open on the evidence. As I have observed, Mr Cosenza was not cross-examined on his affidavit. There was no reasonable basis upon which the magistrate could conclude that the appellants were not suffering from ill health at the relevant time. The inference drawn by the magistrate involves a logical fallacy. The fact that the appellants were able to maintain a number of other actions at the relevant time does not mean that their ill health did not prevent them from giving the attention that the 2012 claim required in order to avoid it being dismissed for want of prosecution. There is no inconsistency in the proposition that their ill health eventually overwhelmed them. There appears no evidentiary basis for the magistrate’s conclusion that the additional effort in maintaining the 2012 claim would have been minimal. If the evidentiary foundation for the finding that the dismissal of the 2012 proceedings was the result of a deliberate and conscious decision on the part of the appellants to allow that claim to wither on the vine is flawed, the appellants’ conduct cannot be regarded as contumacious. In those circumstances, the basis for the conclusion that the 2015 proceedings are an abuse of process is undermined.