Cosenza v Magistrates Court of SA - [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

BAMPTON J: Mr Cosenza says that he has had a difficult and tortured history with South Australia Police (“SAPOL”).
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.
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].
The further amended statement of grounds handed up by Mr Cosenza at the commencement of the argument on 1 April 2016 describes the following as the subjects of the action for judicial review:
(1)The first decision made by His Honour Magistrate Field on 24 August 2015 to issue a warrant for the plaintiff’s arrest with right to be at liberty cancelled with endorsement that the plaintiff be excluded from bail [“the first decision”].
(2)The second decision made by Police to seek an order on 24 August 2015 for issue:
(a) of a warrant for the plaintiff’s arrest;
(b) of a warrant for the plaintiff’s arrest with endorsement that the plaintiff be excluded from bail [“the second decision”].
(3)The failure and omission by SAPOL to: (i) prosecute Senior Constable Graham, or alternatively (ii) refer the complaint to the DPP to prosecute Senior Constable Graham; in relation to the 3 April 2015 incident [“the omission”].
The relief sought by Mr Cosenza includes:
·an order in the nature of certiorari certifying that the first decision was made ultra vires and in breach of statutory duty;
·an order in the nature of certiorari certifying that the second decision was made for ulterior purpose, and there was no basis in law to have his liberty cancelled and/or that he be excluded from bail;
·declarations regarding the lawfulness of the process of the issuing of the warrant, his arrest, his entitlement to bail and trespass by SAPOL;
·a declaration that a prima facie case of assault has been made out against Senior Constable Graham;
·an order in the nature of mandamus compelling SAPOL or the Director of Public Prosecutions (“the DPP”) to prosecute Senior Constable Graham;
·damages, “including aggravated damages and a significant amount in exemplary damages” for trespass, wrongful arrest, false imprisonment, breach of statutory duty and misfeasance in public office;
·damages, “including aggravated damages and a significant amount in exemplary damages” for the anguish, distress and aggravation to pre‑existing depression, anxiety and post-traumatic stress disorder;
·an injunction prohibiting SAPOL attending and entering his property unless excused by law.
The defendant’s application for dismissal of the action for judicial review
By interlocutory application pursuant to r 200C of the Supreme Court Civil Rules 2006 (SA) (“the Rules”),[2] the second and third defendants (“the defendants”) seek summary judgment under r 232 or, alternatively, that the proceedings be struck out under r 117(2)(e) of the Rules.
[2] FDN 7.
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.
Mr Cosenza submits that he did nothing wrong, was not driving and that Senior Constable Graham did not pull him over for the purposes of conducting a random breath test. He maintains that he was parked and minding his own business.
Mr Cosenza alleges that Senior Constable Graham assaulted him such that he could not breathe due to his mental health issues which include depression, anxiety and post-traumatic stress disorder.
Mr Cosenza says that he was told he was arrested for failing to comply with directions in relation to an alcotest. He says that he was released when it became evident that the injuries inflicted on him by Senior Constable Graham required the attendance of SA Ambulance. He was taken by ambulance to the Royal Adelaide Hospital emergency department, where he was assessed and a blood sample was taken. As he left the hospital he was handed a notice of licence disqualification by Senior Constable Graham.
The notice of licence suspension
The notice alleged that on 3 April 2015 Mr Cosenza failed to comply with directions in relation to an alcotest or breath analysis contrary to s 47E(3) of the Road Traffic Act 1961 (SA) and disqualified him from driving for 12 months.
The certificate of blood analysis for drug and alcohol
The blood sample provided by Mr Cosenza at the Royal Adelaide Hospital following his arrest on 3 April 2015 was analysed on 16 April 2015. The results of that analysis recorded in a Certificate of Blood Analysis for Alcohol and Drugs record that no drugs were detected in the sample and it contained not less than 0.011 per cent of alcohol per 100ml of blood.
On 7 April 2015, Mr Cosenza made an application to lift the licence disqualification imposed by the notice of licence disqualification. On 21 April 2015, a Magistrate ordered:[3]
That the person is not disqualified, or the person’s drivers licence is not suspended, on the basis that sufficient evidence indicates that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence and the evidence does not suggest that the applicant may be guilty of another offence to which section 47IAA applies.
[3] MCPAD-15-1906.
The prosecution of Mr Cosenza for failing to comply with direction – alcotest/breath analysis
Thereafter, Mr Cosenza was charged by complaint and summons dated 21 April 2015 with failing to comply with a direction as to an alcotest or breath analysis and summonsed to appear at the PAMC on 18 May 2015.[4]
[4] MCPAD-15-2203.
Mr Cosenza deposes in his affidavit sworn 6 November 2015 that, despite a trespass notice forbidding entry being clearly visible at the entry of his property, police officers trespassed on his property on 1 May 2015, 2 May 2015, 11 May 2015, and 21 July 2015.
On 7 and 12 May 2015, Mr Cosenza made complaints via email regarding “police harassment and aggravated assault and trespass to land” to the Police Ombudsman and the Independent Commissioner Against Corruption. The email of 12 May 2015 requests that the matter be investigated and charges be laid. The Police Ombudsman responded by letter dated 20 May 2015 advising that enquiries were being conducted. A further email to the Police Ombudsman on 21 July 2015 alleged further harassment.
By reference to the Court record, the matter came on for hearing at the PAMC on 18 May 2015. There was no appearance for Mr Cosenza and it is recorded that a fresh summons was to issue and personal service was required. The matter next came on for hearing on 6 July 2015. There was no appearance for Mr Cosenza. It is recorded that a fresh summons was to issue summonsing Mr Cosenza to appear on 17 August 2015.
A Summons Enquiry Sheet on the Court file records the following entries regarding the attempts to serve the summons on Mr Cosenza:
21/7/2015recorded at a/a. Police attd address prior to PIMS check and was told to leave the property as they were a trespasser. Police left the property. PIMS checks completed after attd a/a.
21/7/2015ph: [REDACTED]. Ancil submitted back in 2012 states that COSENZA has revoked his implied licence for SAPOL to attend his h/a for summons issues and to contact him via phone. COSENZA contacted by mobile phone and Police were hung up on once they identified themselves as Police. Due to COSENZA behaviour summons service can not be completed and suggest Warrant be issued.
On 17 August 2015, there was no appearance for Mr Cosenza. The matter was adjourned to 24 August 2015 and the Court record endorsed “fresh summons to issue on application”.
On 24 August 2015, there was again no appearance for Mr Cosenza at the PAMC. The prosecutor tendered an affidavit of Senior Constable Mathew Kluzek sworn on 18 August 2015. Senior Constable Kluzek deposes to attempting to serve summonses on Mr Cosenza at his home address on approximately three occasions. As he did not effect personal service, he deposes that he would have left a calling card at the house. Senior Constable Kluzek also deposes that he was not aware of any reason why he could not attend Mr Cosenza’s home address.
Magistrate Field issued a warrant of apprehension for Mr Cosenza’s arrest following his failure to appear on 24 August 2015 and ordered that the warrant be endorsed “excluded from bail”.
The warrant of apprehension was executed on 30 August 2015 when Mr Cosenza was arrested at his home. He remained in custody until he appeared before a Magistrate on 31 August 2015 and was granted simple bail.
On the application of the complainant, the complaint charging Mr Cosenza with a failure to comply with direction as to an alcotest was dismissed on 3 May 2016. On 2 September 2016, Mr Cosenza was awarded indemnity costs of the prosecution in the sum of $4,000.
Is there a reasonable basis for Mr Cosenza’s claim?
Unless I am satisfied there is a reasonable basis for Mr Cosenza’s action for judicial review I must, in accordance with r 200C(2), dismiss or strike out the action. The relief sought by Mr Cosenza is discretionary in nature. As such I must, in accordance with r 200C(2), dismiss or strike out the action if I am satisfied that if the matter went to trial there is no reasonable prospect a trial judge would exercise the discretion to grant the relief sought.
I may enter summary judgment in a matter where the relief sought is discretionary in nature if I am satisfied there is no reasonable prospect that the relief sought would be granted.[5]
[5] Davies v Minister for Urban Development and Planning & Anor (2011) 109 SASR 518 at [43]-[48] (Bleby J).
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.
Section 20(3) of the Summary Procedure Act provides that a warrant remains in force until it is executed. The warrant issued pursuant to Magistrate Field’s order was executed on 30 August 2015. Once executed it was no longer extant. In other words, the legal effect of the order that the warrant issue and the warrant were spent upon the execution of the warrant.
Applying the reasoning in Wingfoot an order in the nature of certiorari is not available in respect of the exercise of the power to order the issuing of the warrant, the legal effect of which is spent. An order regarding the lawfulness of issuing of the warrant or the conduct of the police in seeking the warrant “would be not simply inutile it would be unavailable”.[10]
[10] Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 at 492.
Further, as submitted by the defendants, the second decision is a preliminary step that led to an order being made by the Court and as such is not amenable to judicial review because it has no legal effect.

An order in the nature of certiorari is therefore unavailable in relation to the first decision or second decision.
Mr Cosenza also seeks declarations regarding the lawfulness of process of the issuing of the warrant. Declaratory relief like certiorari is discretionary and as such is unavailable where there is no utility in making the declarations sought as they would not determine any existing issue between the parties.
As Mason CJ, Dawson, Toohey and Gaudron JJ stated in Ainsworth & Anor v Criminal Justice Commission:[11]
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.
(Footnotes omitted)
[11] (1992) 175 CLR 564 at 581-582.
At the risk of repetition, the warrant that is the subject of the orders sought is no longer extant. Therefore, any declaration as to the lawfulness or validity of the first and second decisions would not produce any foreseeable consequences for Mr Cosenza or the defendants.
The declaratory relief sought is therefore unavailable in relation to the first and second decisions.
The omission
Mr Cosenza submitted that the omission was in breach of SAPOL and the DPP’s statutory duty to lay charges and prosecute against offences of the State. He argued that the Court has the ability to make an order in the nature of mandamus in relation to the prosecution of a matter where the prosecuting authority has established a policy with respect to a general class of offending. He also alleged that SAPOL had established a policy of not prosecuting police officers.
The function of mandamus is to compel the performance of an unexercised public duty. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd, Mason CJ said:[12]
Although the argument was not elaborated, it is to be understood as invoking the principle that mandamus requires the exercise of the relevant statutory discretion rather than its exercise in a particular way.[13] But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way.
[12] (1994) 182 CLR 51 at 80-81.
[13] Randall v Northcote Corporation (1910) 11 CLR 100 at 105.
SAPOL and the DPP are not subject to a public duty to decide to prosecute Senior Constable Graham. The question of whether to prosecute a particular individual is made following the exercise of a discretion by the prosecuting authority.
The omission, and for that matter the second decision, concern the exercise of prosecutorial discretion. The decision to make application for the issue of the warrant and any decision not to prosecute Senior Constable Graham involve the exercise of discretion by SAPOL acting as prosecutor.
In Likiardopoulos v The Queen,[14] Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to interplay between the impartiality of the judicial process and the exercise of the prosecutorial discretion as follows:[15]
As Gaudron and Gummow JJ explained in Maxwell v The Queen the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review. Further, sanctions available to enforce well established standards of prosecutorial fairness are to be found mainly in the powers of a trial judge and are not directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or an action for damages. It is well settled that the circumstances which may amount to an abuse of process are not to be narrowly confined and it is possible to envisage cases in which an exercise of prosecutorial discretion may amount to an abuse of the process of the court.
(Footnote omitted)
[14] (2012) 247 CLR 265.
[15] (2012) 247 CLR 265 at [37].
Mr Cosenza referred to Lord Denning’s comments in R v Police Commissioner of The Metropolis, Ex parte Blackburn[16] in support of his submissions. However, in the following extract from Lord Denning’s judgment cited by Mr Cosenza, reference is made to the prosecutorial discretion:[17]
… with which the law will not interfere. For instance, it is for the Commissioner of Police, or the chief constable, as the case may be, to decide in any particular case whether enquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter.
(Emphasis added)
[16] [1968] 1 All ER 763
[17] [1968] 1 All ER 763 at 769.
There is no evidence of an abuse of process by SAPOL in this matter. A complaint and summons was issued and attempts were made to serve Mr Cosenza. I infer from the Summons Enquiry Report, the affidavit of Senior Constable Kluzek, and Mr Cosenza’s allegations that police trespassed his property in May and July 2015, that Mr Cosenza was aware police were trying to make contact with him. It is also reasonable to infer that Mr Cosenza was not making himself available to SAPOL for service. Thereafter, the application was made for a warrant to issue. A warrant was issued, executed and Mr Cosenza brought before the Court. The complaint and summons was dismissed on 3 May 2016 and a Magistrate saw fit, on 2 September 2016, to award Mr Cosenza indemnity costs. It is not apparent why indemnity costs were ordered. It may have been in order to enforce “standards of prosecutorial fairness”.[18] In any event, the prosecution of Mr Cosenza for a failure to comply with a direction has been finalised.
[18] Likiardopoulos v The Queen (2012) 247 CLR 265 at [37].
The Court cannot require SAPOL or the DPP to exercise their discretion in a particular way. Accordingly, the second decision and the omission are not amenable to judicial review.
Mr Cosenza seeks an interim order for the provision of certain documents, an injunction and further orders by way of declaratory relief that relate to his arrest on 3 April 2015 or the attendance at his home by SAPOL. These matters do not relate to the decisions that the subjects of the action for judicial review and as such the relief sought is unavailable.
Mr Cosenza seeks damages with interest for personal injury, trespass, wrongful arrest, false imprisonment, breach of statutory duty and misfeasance in public office. This is an action for judicial review not an action for damages.
Conclusion
There is no utility to orders sought with respect to the first and second decisions. With respect to the alleged omission, the Court cannot require SAPOL or the DPP to exercise their discretion in a particular way. Accordingly, the subjects of the action for judicial review are not amenable to judicial review.
The other orders sought by Mr Cosenza are not relevant to the subjects of the action for judicial review, or are not available on judicial review.
I find that there is no reasonable basis for Mr Cosenza’s claim. I am satisfied there is no reasonable prospect that the relief sought by Mr Cosenza would be granted in his favour. I therefore grant the defendants’ application for summary judgment.