Cosenza v Roy Morgan Interviewing Services Pty Ltd

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…