Cosenza v Roy Morgan Interviewing Services Pty Ltd

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SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

COSENZA & ANOR v ROY MORGAN INTERVIEWING SERVICES PTY LTD

[2020] SASC 65

Judgment of The Honourable Justice Livesey

17 April 2020

EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY

The appellants filed a claim for trespass to land against the respondent in the Magistrates Court. It was alleged that two individuals, one of whom was an employee of the respondent, trespassed on the appellants’ property and that the respondent was vicariously liable. The appellants filed an application seeking an order for summary judgment in favour of the appellants against the respondent and relied upon r 8 of the Magistrates Court (Civil) Rules 2013 (SA). The Magistrate dismissed the application.

The first appellant had served a Notice to Admit on the respondent which was designed to extract an admission that their employee had come onto the appellants’ property without permission. The respondent’s first response to the Notice to Admit did not comply with the rules of court, but a further response put the relevant facts and documents into issue. On appeal in this Court, the appellants contended that because the first response was not in accord with the rules, they should have had the benefit of deemed admissions which would have been sufficient to prove their case of trespass to land.

In an earlier hearing the respondent was found to have had a bona fide intention of defending the claim and advancing a genuine defence. Nevertheless, on appeal the appellants submitted that this was irrelevant and there was no admissible evidence from the respondent in opposition to their application for summary judgment. As a consequence, the appellants submitted, their claim ought to have succeeded and the Magistrate was wrong to find otherwise.

Held, dismissing the appeal; the Magistrate made no error in refusing summary judgment. A reasonable basis exists to defend the appellants’ claim for trespass to land.

Magistrates Court Act 1991 (SA) s 40; Magistrates Court (Civil) Rules 2013  (SA) r 3, r 8, r 10, r 87; Supreme Court Civil Rules 2006 (SA) r 232, referred to.
Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Collins v Djunaedi [2016] SASCFC 48; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2019] SASC 95; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Jackamarra v Krakouer (1998) 195 CLR 516; O’Brien v Cowie [2020] SASC 22; Plenty v Dillon (1991) 171 CLR 635; Spencer v The Commonwealth (2010) 241 CLR 118; Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1, considered.

COSENZA & ANOR v ROY MORGAN INTERVIEWING SERVICES PTY LTD
[2020] SASC 65

Magistrates Appeal: Civil

LIVESEY J:

Introduction

  1. The appellants have appealed against a Magistrate’s decision dismissing their application for summary judgment pursuant to r…

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Details
Case
[2020] SASC 65
Decision Date

CaseChat Overview and Summary

Cosenza v Roy Morgan Interviewing Services Pty Ltd involved a dispute regarding trespass to land and rights of real property. The matter was appealed to the Supreme Court of South Australia. The plaintiff, Cosenza, sought to establish that the defendant, Roy Morgan Interviewing Services Pty Ltd, was liable for the actions of its employees who allegedly trespassed on Cosenza’s property. The legal issues before the court included determining whether the defendant could be held vicariously liable for the trespass and whether the plaintiff had established a prima facie case against the defendant.

The court examined the relationship between the employer and the employees, assessing the duties assigned by the employer to the employees and the connection between those duties and the wrongful act of trespass. The court held that establishing vicarious liability required more than a mere factual inquiry; it necessitated a normative consideration of the employer’s duties and the nature of the connection to the trespass. The court referenced previous cases, including Prince Alfred College Inc v ADC and recent UK Supreme Court decisions, to underscore that vicarious liability was not easily established and required a detailed analysis of the employer-employee relationship.

Given the complexity of the issues and the need for a detailed assessment of the employer’s duties and the connection to the trespass, the court concluded that the Magistrate did not err in refusing summary judgment. The appeal was dismissed, and the court ordered that the respondent, Roy Morgan Interviewing Services Pty Ltd, be awarded costs of $5,500, an amount that the appellants acknowledged was reasonable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the case of employers and employees, vicarious liability is a conclusion that usually depends upon a precise statement of the duties given by the employer to the employee, coupled with an assessment of the degree of connection between those employment duties and the wrongful act.[34] It is not merely a question of fact, but one of raising normative considerations. That is not an exercise that can be easily undertaken in a summary way, and little is required to demonstrate that there is a genuine issue, particularly if the only unlawful entrant turns out to be Mrs Thumar.[34] Prince Alfred College Inc v ADC (2016) 258 CLR 134, [80]-[82] (French CJ, Kiefel, Bell, Keane and Nettle JJ), [131] (Gageler and Gordon JJ). See also the recent decisions of the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (no vicarious liability for an employee); Barclays Bank plc v Various Claimants [2020] UKSC 13 (no vicarious liability for an independent contractor).Conclusion In these circumstances, it is my opinion that the Magistrate made no error in refusing summary judgment. The appeal is dismissed. After hearing the parties, I make an order for costs in favour of the respondent, fixed at $5,500, which the appellants accepted was not an unreasonable amount.

Ratio Decidendi

Legal Principle Established

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