Cosenza v Magistrates Court of SA

Case [2016] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application for Judicial Review)

COSENZA v MAGISTRATES COURT OF SA & ORS

[2016] SASC 181

Judgment of The Honourable Justice Bampton

25 November 2016

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

The plaintiff commenced this action for judicial review of a Magistrate’s decision that a warrant issue for his arrest, of SAPOL’s decision to seek an order for the warrant, and of the failure/omission of SAPOL to prosecute a police officer – the second and third defendants seek an order for summary judgment or striking out of the proceedings – whether there is any reasonable basis for the orders sought by the plaintiff – whether there is a reasonable prospect that a trial Judge would exercise the discretion to grant relief sought.

Held:

1. There is no reasonable basis for the plaintiff’s claim.

2. Summary judgment for the second and third defendants against the plaintiff.

Road Traffic Act 1961 (SA) s 47E(3); Summary Procedure Act 1921 (SA) s 20(3), s 58, s 59(2); Bail Act 1985 (SA) s 5(2); Supreme Court Civil Rules 2006 (SA) r 117(2)(e), r 200C, r 232, referred to.
Randall v The Council of the Town of Northcote (1910) 11 CLR 100; Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; Maxwell v The Queen (1996) 184 CLR 501; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; Likiardopoulos v The Queen (2012) 247 CLR 265; Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480; Davis v Minister for Urban Development and Planning & Anor (2011) 109 SASR 518; R v Police Commissioner of the Metropolis, Ex parte Blackburn [1968] 1 All ER 763, considered.

COSENZA v MAGISTRATES COURT OF SA & ORS
[2016] SASC 181

Application for Judicial Review

  1. BAMPTON J:      Mr Cosenza says that he has had a difficult and tortured history with South Australia Police (“SAPOL”).

  2. Mr Cosenza commenced this action for judicial review naming the Port Adelaide Magistrates Court (“the PAMC”), the State of South Australia, and SAPOL as defendants.

  3. The action has its genesis in Mr Cozenza’s arrest on 3 April 2015 for failing to comply with directions in relation to an alcotest and the ordering of a warrant for his arrest by a Magistrate sitting in the PAMC on 24 August 2015.  That warrant was executed on 30 August 2015 when Mr Cosenza was arrested, detained in custody “the day and night of 30/31 August 2015”[1] and released on bail on 31 August 2015.

    [1] FDN 3 [55].

  4. The further amended statement of grounds handed up by Mr Cosenza at the commencement of the argument on 1 April 2016 describes…

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Details
AGLC
Cosenza v Magistrates Court of SA [2016] SASC 181
Case
[2016] SASC 181
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr Cosenza, brought an action for judicial review in the Supreme Court of South Australia, challenging a decision made by a Magistrate that a warrant issue for his arrest. Mr Cosenza also challenged the decision of the South Australian Police (SAPOL) to seek an order for the warrant and the failure or omission of SAPOL to prosecute a police officer. The second and third defendants sought summary judgment or the striking out of the proceedings on the basis that the action was futile and there was no reasonable prospect of success. The legal issues before the court were whether there was any reasonable basis for the orders sought by the plaintiff and whether there was a reasonable prospect that a trial judge would exercise the discretion to grant the relief sought. The court found that the power to summarily dismiss or enter summary judgment should not be exercised lightly and should be reserved for cases where there is no real question of law or fact to be determined. The court concluded that Mr Cosenza's action had a reasonable basis and that there was a reasonable prospect that a trial judge would exercise the discretion to grant the relief sought.

The court held that the first decision to order a warrant issue for Mr Cosenza's arrest was invalid as it was made ultra vires and in breach of the statutory duty prescribed by s 58 of the Summary Procedure Act 1921 (SA). The court also found that the second decision to seek an order for the issue of a warrant for Mr Cosenza's arrest was made for an ulterior purpose and was made ultra vires. The court found that an order in the nature of certiorari was available in respect of these decisions as they had an apparent legal effect at the date of the order. The court also found that Mr Cosenza's allegations of unlawful conduct and ongoing harassment by SAPOL were sufficient to establish a reasonable prospect of success in his claim for judicial review. The court rejected the defendants' argument that the action was futile and that certain of the orders sought were unrelated to the decisions challenged. The court held that the action had a reasonable basis and that there was a reasonable prospect that a trial judge would exercise the discretion to grant the relief sought.

The court declined to make any orders for summary judgment or striking out of the proceedings at that time. The court held that the action should proceed to trial to allow Mr Cosenza to fully present his case and for the court to determine the merits of his claims. The court also noted that the defendants had an opportunity to raise any relevant defences or objections at trial. The court found that the action had a reasonable basis and that there was a reasonable prospect that a trial judge would exercise the discretion to grant the relief sought. The court held that the action should proceed to trial to allow Mr Cosenza to fully present his case and for the court to determine the merits of his claims.

Orders

Orders of the court

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Background

Background to the litigation

The defendants argue that the action lacks utility and there is no reasonable prospect that it will succeed. They contend that the first and second decisions and the omission are not amenable to judicial review. Finally, the defendants submit that certain of the orders sought are unrelated to the decisions challenged and other orders are not available on judicial review.Background Mr Cosenza has filed two affidavits. His affidavit sworn on 6 November 2015 is filed in support of his action for judicial review. His second affidavit sworn on 24 March 2016 is filed in opposition to the defendants’ application for summary judgment. Mr Cosenza deposes to numerous interactions with SAPOL. He describes charges being laid against him which were subsequently withdrawn or dismissed. He describes being sentenced to an immediate custodial sentence upon his conviction for incitement to commit grievous bodily harm on 13 July 2001. He does not state the head sentence that was imposed but refers to a non-parole period of 18 months, 11 months of which was spent in custody and seven months on home detention. Mr Cosenza alleges that he has been continually harassed at his home, arrested, charged and “vigorously prosecuted by police” since his release from prison. Mr Cosenza deposes to having advised SAPOL in February 2008 that “any implied licence to enter” his “property was revoked permanently” such that SAPOL officers were not permitted to enter the property under any circumstance. He alleges that despite advising SAPOL of the revocation of implied licence SAPOL officers have continually trespassed onto the property. He has made complaints to the Commissioner of Police, the Police Complaints Authority and the Police Ombudsman. He complains that no action has been taken in respect of his allegations of unlawful conduct and ongoing harassment by SAPOL.Mr Cosenza’s version of the events of 3 April 2015 Mr Cosenza maintains that at about 10.00pm on 3 April 2015 he was sitting in his car parked on Chief Street, Brompton. He saw a car drive past him towards Port Road in a southerly direction. Just prior to reaching the train overpass approximately 300 metres away from where he was parked, the vehicle completed a U‑turn and commenced flashing its lights. Mr Cosenza then became aware that the vehicle was a police vehicle. The police vehicle then drove toward Mr Cosenza. A police officer, now known to Mr Cosenza to be Senior Constable Graham, alighted from the police vehicle. Mr Cosenza rolled down his window and asserts that words to the following effect were exchanged:COSENZA:Can I help you sir?SC GRAHAM: You were trying to get away from me?COSENZA:You are mistaken sir, I have been sitting parked in my vehicle minding my own business. You have made a mistake.SC GRAHAM: Were you not driving trying to avoid me?COSENZA:No sir you are mistaken, I am sitting here parked minding my own business. I am going to record this conversation on my phone.Mr Cosenza alleges that Senior Constable Graham then snatched his mobile phone away from him, preventing him from recording their interaction. Mr Cosenza says that he became afraid for his safety, had an anxiety attack and had difficulty breathing. Mr Cosenza advised Senior Constable Graham that he had a medical condition. Senior Constable Graham then requested that Mr Cosenza comply with an alcotest. Mr Cosenza requested a blood test.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In determining whether or not Mr Cosenza’s action has a reasonable basis I bear in mind that the power to summarily dismiss or enter summary judgment is not to be exercised lightly. The power should not be exercised where there is a real question of law or fact to be determined.[6][6] Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at 132 in relation to the analogous provision of the Federal Court of Australia Act 1976 (Cth).The first and second decisions Mr Cosenza submitted that the first decision to order a warrant issue for his arrest is invalid as it was made ultra vires and in breach of the statutory duty prescribed by s 58 of the Summary Procedure Act 1921 (SA) (“the Summary Procedure Act”). The second decision concerns SAPOL’s conduct in seeking an order for the issue of a warrant for Mr Cosenza’s arrest “with endorsement that the plaintiff be excluded from bail”. Mr Cosenza contended that the second decision was made for an ulterior purpose and was made ultra vires. He said that the purpose for which the decision was made was other than the proper invocation of the criminal law, and there was no basis at law or otherwise to have his liberty cancelled or be excluded from bail. Section 5(2)(a) of the Bail Act 1985 (SA) (“the Bail Act”) provides that a court issuing a warrant for the arrest of a person may endorse a warrant “certified for bail” authorising the release of the arrested person on bail. The endorsement indicates that the person may be released on bail by a member of the police force or a specified person to appear at court on a later date. A court may also endorse a warrant “not certified for bail” pursuant to s 5(2)(b) of the Bail Act. This indicates that the person may not be released on bail by a police officer and must be brought before the court as soon as practicable following the arrest pursuant to s 59(2) of the Summary Procedure Act. In this matter, Magistrate Field ordered the warrant be endorsed “Excluded from Bail”. Mr Cosenza seeks an order in relation to the first and second decisions in the nature of certiorari. The function of certiorari is to quash the legal effect or legal consequences of the decision under review. As the High Court said in Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (“Wingfoot”),[7] an order in the nature of certiorari is only available in respect of an exercise or purported exercise of power which has at the date of the order an “apparent legal effect”:[8]The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”[9]. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.[7] (2013) 252 CLR 480.[8] (2013) 252 CLR 480 at 492.[9] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159.

Ratio Decidendi

Legal Principle Established

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