Cosenza v Van Dyke; Cosenza v Heneker; Cosenza v Van Dyke - [2019] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
COSENZA & ANOR v VAN DYKE & ORS; COSENZA & ANOR v HENEKER & ORS; COSENZA & ANOR v VAN DYKE & ORS
[2019] SASC 71
Judgment of The Honourable Justice Bampton
10 May 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS
PROCEDURE - COSTS - SECURITY FOR COSTS
Respondents in three appeals against three decisions of a Magistrate in two Magistrates Court actions seek orders that the appeals be struck out or summarily dismissed or that there be orders for security for costs – where one appellant impecunious – where some parties not served with originating proceedings – where multiplicity of litigation commenced – where disproportion between damages and costs likely – where complexity of proceedings to recover costs likely. Held, allowing the applications – orders for security for costs made.
Supreme Court Civil Rules 2006 (SA) r 282, r 283, r 295, referred to.
Cosenza & Anor v Gill & Ors [2018] SASCFC 117, applied.

COSENZA & ANOR v VAN DYKE & ORS; COSENZA & ANOR v HENEKER & ORS; COSENZA & ANOR v VAN DYKE & ORS
[2019] SASC 71
Magistrates Appeal: Civil

BAMPTON J: Dean Cosenza and his mother Eleonora Cosenza live together in a house owned by Mrs Cosenza in a suburb of Adelaide. Mr Cosenza via his website “Law in Action” asserts “every man’s home is his castle”. Visitors to the website are asked if they “are sick of unwanted people banging on” their door or ringing their doorbell and they are informed of their “right to refuse entry to unwanted visitors to” their home and “recover (sue for) damages for trespass to land”. A “Law in Action” trespass kit is available for purchase from the website for $19.95. The purchase price includes a 68-page handbook and two weather resistant trespass signs. The website purports, under the tab “FAQ”, that “A Law in Action trespass sign will ensure that no door to door salespeople will enter your property. You have a right to quiet enjoyment in your home and can punish them by suing for damages should they enter without your permission”. The website proffers a “general advisory service” regarding “the Law in Action trespass kit or your trespass to land query”.[1]
[1] All quoted references are from an exhibit to the affidavit of Helen Elizabeth Joyce affirmed on 19 June 2017, referred to in submissions before the Magistrate and relied on by counsel for Appco in the hearing before me on 11 May 2018.
Mr Cosenza and Mrs Cosenza (“the Cosenzas”) have commenced many actions alleging trespass in defiance of revocation of implied licence to enter and in further defiance of trespass notices. In these actions they have sought or seek damages for alleged anguish, distress and aggravation to pre‑existing depression, anxiety and post-traumatic stress disorder (“PTSD”) allegedly caused by the trespasses.
This matter concerns three appeals against a Magistrate’s decisions in two such actions (“the three appeals”).
The first action
The first action, commenced on 19 March 2015 by the Cosenzas in the Magistrates Court[2] against Sara Heneker, Alinta Energy Retail Sales Pty Ltd (“Alinta”), and Neighbourhood Energy Pty Ltd (“Neighbourhood”), alleges that Ms Heneker entered their property on or about 13 July 2012 without permission and knocked on their door for the purposes of selling a contract for the supply of electricity. It is alleged that Ms Heneker was the agent, representative, employee, or servant of Alinta and/or Neighbourhood. The Cosenzas allege that a “notice of revocation of implied licence to enter [their] property is clearly delineated at the entry of their property and that at all times they had a trespass notice forbidding entry clearly identifiable at the entry of the said property”. They allege that Ms Heneker’s conduct amounted to harassment and trespass which caused them to suffer anguish, stress, and aggravation to pre‑existing depression, anxiety, and PTSD.
[2] PADCI-15-92.
They seek damages “including a significant amount in exemplary and/or aggravated damages to mark the court’s contempt of this reprehensible conduct”. Ms Heneker has not been served with the proceedings.
By the by, I note that the Cosenzas commenced proceedings against the same three defendants in this first action in another Magistrates Court action,[3] which was dismissed for want of prosecution on 25 November 2013.
[3] PADCI‑12‑535.
On 4 April 2017, Alinta made an application in the first action for further and better particulars of the claim or, in the alternative, that the claim be struck out or, in the further alternative, that the claim be dismissed. Neighbourhood also made application that the claim be struck out or, in the alternative, that the claim be dismissed as it related to Neighbourhood. At the time of Neighbourhood’s application there was no plea against it. An amended claim was filed 21 July 2017.
The first decision
On 7 September 2017, a Magistrate dismissed the claim in the first action as an abuse of process (“the first decision”). The Magistrate ordered that Alinta and Neighbourhood were entitled to costs of the action on the Supreme Court scale.
In dismissing the claim, the Magistrate noted that the first action had been “travelling” through the Court with another Magistrates Court action (“the second action”).[4] The Magistrate recorded that the Cosenzas were the plaintiffs in the first and second actions and that Alinta was a defendant in each action. The Magistrate stated that Alinta’s application to strike out the claim was heard at the same time as an application in the second action opposing the joinder of three proposed defendants and the filing of an amended claim. The Magistrate stated that her decision in the second action should be read as relevant and applicable to her decision in the first action.
[4] PADCI-15-396.
The second action
The second action was commenced by the Cosenzas on 19 November 2015 against Bryce van Dyke, Christopher Clement, and Alinta alleging that, on or about 25 September 2015, Mr van Dyke and Mr Clement, as agents, representatives, employees, or authorised persons of Alinta, entered onto the Cosenzas’ property, despite the notices of revocation of implied licence and the trespass notice referred to above, and refused to leave. The Cosenzas allege that they have suffered injury and loss of the nature alleged in the first action and seek damages and declaratory relief.
Neither Mr van Dyke nor Mr Clement have been served with the proceedings in the second action.
The Cosenzas made application to join Appco Group Australia Pty Ltd, Appco Group Energy Pty Ltd (together “Appco”), and Cormack Marketing Group Pty Ltd (“Cormack”) as defendants to the second action asserting they were agents of Alinta for the purposes of door-to-door sales and marketing. It was further asserted that Appco and Cormack were involved in the employment of Mr van Dyke and Mr Clement on behalf of Alinta. The Cosenzas also made application to file an amended claim.
The second decision
On 7 September 2017, the Magistrate made the second decision refusing the application to join Appco and Cormack to the second action and refusing the application to file an amended claim. The Magistrate ordered that Alinta, Appco, and Cormack were entitled to their costs of the applications on the Supreme Court scale.
The third decision
On 18 September 2017, Alinta made application for orders that the claim in the second action be struck out as an abuse of process. On 3 November 2017, the Magistrate made the third decision striking out the claim in the second action. The Court record records that Alinta made an application for its costs of the action and that the Magistrate “will deliver decision on the third defendant’s costs application by email to the parties”. There is no record of a costs order being made on Alinta’s application.
The notices of appeal
On 27 September 2017, Mr Cosenza filed notices of appeal against the first decision (striking out the claim in the first action as an abuse of process);[5] and against the second decision (refusing the application to join Appco and Cormack as defendants to the second action and to file an amended claim).[6]
[5] This appeal has been allocated action number SCCIV-17-1237.
[6] This appeal has been allocated action number SCCIV-17-1236.
On 17 November 2017, Mr Cosenza filed a notice of appeal against the third decision (dismissing the claim in the second action).[7]
[7] This appeal has been allocated action number SCCIV-17-1430.
The second notices of appeal
Second notices of appeal were filed in each appeal on 22 December 2017. The notices of appeal and the second notices of appeal name only Mr Cosenza as the appellant.
Ms Heneker, the first respondent to the appeal against the first decision, has not been served with the notice of appeal or the second notice of appeal.
Mr van Dyke and Mr Cormack, the first and second respondents to the appeal against the second decision, have not been served with the notices of appeal or second notices of appeal.
The respondents’ applications
In the appeal against the first decision, Alinta and Neighbourhood make joint application seeking orders that the appeal be struck out or, in the alternative, summarily dismissed or, in the further alternative, that Mr Cosenza pay security for costs in the sum of $10,500.
In the appeal against the second decision, Alinta makes application that the appeal be struck out or, in the alternative, summarily dismissed or, in the further alternative, that Mr Cosenza pay security for costs in the sum of $6,000. Appco makes application for orders that the appeal be struck out, or, in the alternative, that Mr Cosenza pay security for costs in the sum of $10,000. Cormack also makes application seeking orders that the appeal be struck out or, in the alternative, summarily dismissed or that there be an order for security in the sum of $10,000.
In the appeal against the third decision, Alinta makes application seeking orders that the appeal be struck out or, in the alternative, summarily dismissed or, in the further alternative, that Mr Cosenza pay security for costs in the sum of $6,000.
On 2 February 2018, I made orders that the five applications brought by the respondents be heard together.
At the hearing of the respondents’ applications, Mr Cosenza, who was self‑represented in the Magistrates Court and at the time the appeals were instituted, was represented by solicitors and counsel. I was informed that whilst Mrs Cosenza was not named as an appellant to any of the three appeals, she was aware of and consented to the prosecution of the appeals.
Each of the respondents complains that the second notices of appeal filed by Mr Cosenza are incompetent with respect to each and every one of the grounds and do not comply with r 282(2)(c) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”).
It was, in effect, conceded by counsel for the Cosenzas that the second notices of appeal are deficient but it was argued that the Cosenzas should be given an opportunity to amend the notices of appeal with legal assistance.
Following the hearing of the applications, Mrs Cosenza swore an affidavit deposing that at the time the notices of appeal were filed in against the three decisions she was ill and unable to provide instructions to obtain advice from her solicitor, Mr Kerin. Accordingly, she said that notices of appeal were filed on behalf of her son “solely”. Mrs Cosenza deposes that she consents to being added as an appellant to all three appeals. She further deposes that she is not impecunious and owns unencumbered freehold property and that no security costs order should be made as she is able to meet any adverse costs order. She states that she is old and frail and wants to be left in peace within her own home.
Consideration
Rule 283(1) of the Rules provides:
283—Parties to appeal
(1)A party to the proceedings in which the judgment under appeal was given is a party to the appeal unless the party has no interest in the subject matter of the appeal.
(2)The Court may order the addition or removal of a person as a party to an appeal.
(3)A person cannot be added as an appellant without the person's consent.
Pursuant to r 283(1), Mrs Cosenza, as a party to the proceedings in which the decisions under appeal were made, is a party to the appeal. I therefore order that the second notices of appeal be amended to include Mrs Cosenza as an appellant to each of the three appeals.
In both the first and second actions, the Cosenzas assert that they have revoked the implied right of entry onto their property, and they allege that they have an action in trespass against those who have entered the property without permission. The Magistrate was referred to 11 other trespass actions detailed in a table exhibited to the affidavit of Helen Elizabeth Joyce affirmed on 19 June 2017 and relied on by Appco’s counsel in the hearing before me. These actions, which span from 2012 to 2017, were commenced by Mr Cosenza in his name solely, or jointly with his mother.
In an affidavit sworn on 24 January 2018, Alinta’s solicitor, Mr Kearney, deposes to being informed that Mr Cosenza had, at the date of swearing his affidavit, been a party to at least six proceedings in the Supreme Court (other than the three appeals), 17 proceedings in the District Court since 1999, 43 proceedings in the Magistrates Court since 1994, and 11 proceedings in the Federal Court. Allowing for the fact that Mr Cosenza did not commence all these proceedings, the fact remains that he has commenced an extraordinary number of them. Mr Kerin, in the hearing before me, agreed with my suggestion that Mr Cosenza might be referred to as a prolific litigator.
Mr Kearney also deposes to having undertaken a National Personal Insolvency Index search which confirmed that Mr Cosenza was bankrupted on 3 September 2012 and discharged on 3 June 2014.
Cosenza & Anor v Gill & Ors
Since the hearing of the applications, the Full Court has delivered its decision in Cosenza & Anor v Gill & Ors[8] refusing permission to appeal against the decision of a Judge of this Court confirming an order for security. The order for security was made in the Magistrates Court in another action by the Cosenzas alleging trespass onto their property. The Full Court determined that it was not arguable that the Judge had made the errors of principle complained of and noted that the Judge had affirmed the general rule that impecuniosity alone is not a sufficient reason to order security for costs against a natural person. The Full Court stated that in addition to Mr Cosenza’s impecuniosity, the following factors were sufficient to exercise the discretion to require him to give security:[9]
•the multiplicity of litigation in which [the Cosenzas] were involved;
•[Mr Cosenza’s] earlier bankruptcies, and in particular the bankruptcy founded on a costs order; and
•the probable disproportion between the damages and costs of the action.
[8] [2018] SASCFC 117.
[9] [2018] SASCFC 117 at [4].
The Full Court also noted that Mrs Cosenza is the registered owner of the property and was 92 years of age at as the date of the judgment. The Court referred to Mr Cosenza having informed the respondents that his mother’s health is deteriorating. The Court observed that if the claim before it was dismissed, there may well be a dispute between Mr Cosenza and Mrs Cosenza as to who should be responsible for costs. The Court held that the complexity of proceedings to recover costs from Mrs Cosenza was a sufficient reason to make the security for costs order against her. Accordingly, the Court refused permission to appeal.
Conclusion
Having regard to the decision in Cosenza & Anor v Gill & Ors, I consider in order to do justice to all parties in the three appeals that the appropriate orders to make on the five respondent applications are orders for security for costs orders pursuant to r 295(1)(g) of the Rules. Upon payment of security, the Cosenzas will be at liberty to make applications to amend the second notices of appeal.
Mr Cosenza is impecunious as he established in Cosenza & Anor v Gill & Ors and when he obtained remissions of the filing fees in the Magistrates Court and the Supreme Court. Impecuniosity alone is not a sufficient reason to order security for costs against a natural person. Mrs Cosenza deposes that she is not impecunious and owns the property the subject of the first and second actions.
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:
1the 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;
2the multiplicity of litigation which Mr Cosenza and Mrs Cosenza have initiated;
3the likely disproportion between any damages awarded and costs of the action; and
4as 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.[10]
[10] Noting that the Cosenzas have been ordered by the Magistrate to pay the costs of the first and second actions, there may well be a dispute between Mr Cosenza and Mrs Cosenza as to who should be responsible for the costs orders.
Orders
SCCIV-17-1237
1The Court Record is to be amended to reflect the fact Eleonora Cosenza is an appellant.
2On FDN 5, the prosecution of the appeal is stayed unless and until the appellants provide a form of security in respect of Alinta Energy Retail Sales Pty Ltd and Neighbourhood Energy Pty Ltd’s costs to the value of $10,000.
3The security to be provided in compliance with these orders is to be provided in a form acceptable to the Court and Alinta Energy Retail Sales Pty Ltd and Neighbourhood Energy Pty Ltd.
SCCIV-17-1236
1The Court Record is to be amended to reflect the fact Eleonora Cosenza is an appellant.
2The prosecution of the appeal is stayed unless and until the appellants provide a form of security in compliance with each of the following orders:
2.1    On FDN 9, in respect of Alinta Energy Retail Sales Pty Ltd’s costs to the value of $6,000.
2.2    On FDN 11, in respect of Appco Group Australia Pty Ltd’s and Appco Group Energy Pty Ltd’s costs to the value of $6,000.
2.3    On FDN 13, in respect of Cormack Marketing Group Pty Ltd’s cost to the value $6,000.
3The security to be provided in compliance with these orders is to be provided in a form acceptable to the Court and Alinta Energy Retail Sales Pty Ltd (in respect of order 2.1), Appco Group Australia Pty Ltd (in respect of order 2.2), and Cormack Marketing Group Pty Ltd (in respect of order 2.3).
SCCIV-17-1430
1The Court Record is to be amended to reflect the fact Eleonora Cosenza is an appellant.
2On FDN 4, the prosecution of the appeal is stayed unless and until the appellants provide a form of security in respect of Alinta Energy Retail Sales Pty Ltd’s costs to the value of $6,000.
3The security to be provided in compliance with these orders is to be provided in a form acceptable to the Court and to Alinta Energy Retail Sales Pty Ltd.
I will hear the parties as to any further orders.