Cosenza v Van Dyke; Cosenza v Heneker; Cosenza v Van Dyke

[2019] SASCFC 103

Supreme Court of South Australia

(Full Court)

COSENZA & ANOR v VAN DYKE & ORS; COSENZA & ANOR v HENEKER & ORS; COSENZA & ANOR v VAN DYKE & ORS

[2019] SASCFC 103

Judgment of The Full Court

5 September 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

Application for permission to appeal by Dean Cosenza and his mother, Eleonora Cosenza from orders made by a Judge of this Court that the applicants give security for costs of appeals in three matters.

Held by the Court, refusing permission to appeal:

1. A substantial injustice must be shown to attract a grant of permission to appeal interlocutory orders. The applicants have failed to demonstrate a substantial injustice.

Cosenza & Anor v van Dyke & Ors; Cosenza & Anor v Heneker & Ors; Cosenza & Anor v van Dyke & Ors [2019] SASC 71, discussed.

COSENZA & ANOR v VAN DYKE & ORS; COSENZA & ANOR v HENEKER & ORS; COSENZA & ANOR v VAN DYKE & ORS
[2019] SASCFC 103

FULL COURT:         Kourakis CJ, Stanley and Nicholson JJ

1. THE COURT:  This is an application for permission to appeal brought by Dean Cosenza, and his mother, Eleonora Cosenza.  The applicants seek permission to appeal from orders made by a Judge of this Court that they give security for costs of the appeal in the following matters:

   ·Appeal filed on 27 September 2017 (SCCIV-17-1237) against an order of the Magistrates Court striking out their action brought on 19 March 2015 (the first action).

   ·Appeal filed on 27 September 2017 (SCCIV-17-1236) against an interlocutory order made in an action commenced on 19 November 2015 dismissing an application to join other defendants.

   ·Appeal filed on 17 November 2017 (SCCIV-17-1430) against an order of the Magistrates Court dismissing an action brought on 19 November 2015 (the second action).

2. The first action claimed damages in trespass against Alinta Energy Retail Sales Pty Ltd (Alinta) and one of its sales representatives for entering the second applicant’s land and knocking on the front door for the purposes of selling electricity services.[1]  Mr Cosenza pleaded that he had placed a sign on the property giving notice to all persons approaching it that any implied licence to enter as far as the front door was revoked.  Mr Cosenza and his mother claimed psychiatric injury, including post‑traumatic stress disorder as a result of the sales visit by Alinta’s representatives.  General, exemplary and aggravated damages were sought.  On 7 September 2017, the Magistrates Court dismissed the first action as an abuse of process.

   [1]    The second applicant owns the property in which both she and the first applicant live.

3. The Cosenzas commenced the second action on 19 November 2015 against Alinta and other sales representatives.  The action was brought on the same basis and alleged similar injury as the first action.  In the second action, the Cosenzas also applied to join other defendants, Appco Group Australia Pty Ltd, Appco Group Energy Pty Ltd (together Appco) and Cormack Marketing Group Pty Ltd (Cormack), asserting that they were corporate agents of Alinta for the purposes of conducting door‑to‑door sales and marketing.  On 7 September 2017, the Magistrates Court refused the Cosenzas’ application to join Appco and Cormack.  The appeal against the refusal of the application to join Appco and Cormack was filed with the first action on 27 September 2017 and is appeal No. 1236 of 2017.

4. On 3 November 2017, the Magistrate struck out the claim in the second action as an abuse of process.  It is against that decision that the appeal was filed on 17 November 2017, being action No. 1430 of 2017. 

5. On the appeals to this Court, the respondents to the three appeals sought orders striking out the appeals, summarily dismissing them, or in the further alternative, orders for security for costs.

6. The Judge made security for costs orders as follows:

   ·On appeal No. 1237 of 2017, that the Cosenzas provide a form of security to the value of $10,000;

   ·On appeal No. 1236 of 2017, $6,000 in respect of Alinta, security to the value of $6,000 in respect of Appco, and security to the value of $6,000 in respect of Cormack Marketing Group Pty Ltd;

   ·On appeal No. 430 of 2017, security to the value of $6,000 in respect of Alinta.

7. The Judge made those orders for the following reasons:[2]

   [37]Applying the reasoning in Cosenza & Anor v Gill & Ors, it is appropriate to order that both Mr Cosenza and Mrs Cosenza provide security in each of the appeals taking into account the following matters in addition to Mr Cosenza’s impecuniosity:

   1      the fact that Ms Heneker in the first action and Mr van Dyke and Mr Clement in the second action have not been served with the originating proceedings or the appeal proceedings;

   2      the multiplicity of litigation which Mr Cosenza and Mrs Cosenza have initiated;

   3      the likely disproportion between any damages awarded and costs of the action; and

   4      as articulated by the Full Court, the complexity of proceedings to recover costs from Mrs Cosenza is a sufficient reason to make the security for costs orders against her.

   (Footnote omitted)

   [2]    Cosenza & Anor v Van Dyke & Ors; Cosenza & Anor v Heneker & Ors; Cosenza & Anor v Van Dyke & Ors [2019] SASC 71 at [37].

8. The applicants seek permission on the basis of some eight grounds of appeal which largely re‑argue matters which the Judge took into account.

9. Permission to appeal interlocutory orders is required to avoid unnecessary delay and disproportionate costs which can be occasioned by such appeals.  A substantial injustice must be shown to attract a grant of permission.  The applicants have failed to demonstrate a substantial injustice.  The trespasses on which the actions are based are trivial.  There is reason to think that the actions are brought in order to obtain a collateral commercial benefit for Mr Cosenza with his marketing of a ‘trespass kit’.

10. We acknowledge that the total amount of the security ordered is substantial. However, the total amount of the security reflects the number of parties which Mr Cosenza has implicated in the proceedings.   It may be, in due course, that any costs order made against Mr Cosenza, if his appeal is not successful, will be reduced to the extent that the respondents shared the same interest.  That cannot be known now. 

11. While Mr Cosenza is impecunious, there is no reason advanced as to why Mrs Cosenza could not provide security.

12. We refuse permission to appeal.