Jarrad v Santamaria

[2005] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

JARRAD v SANTAMARIA AND ANOR

Judgment of The Honourable Justice Gray

31 May 2005

PROCEDURE - COSTS - APPEALS AS TO COSTS

Appeal against costs order made by a magistrate - respondents made an ex parte application for a restraining order against appellant in Magistrates Court - magistrate made ex parte order on the basis of supporting affidavits sworn by the respondents - restraining order not confirmed at trial - respondents found to be unimpressive witnesses - appellant applied for costs of application pursuant to section 189(2a) Summary Procedure Act 1921 (SA) - magistrate refused costs application - appeal on grounds that respondents brought ex parte application in bad faith and unreasonably - consideration of section 189(2a) - consideration of meaning of 'bad faith' and 'unreasonably' - discussion of content of supporting affidavits - held: respondents brought ex parte application in bad faith and unreasonably - appellant entitled to costs pursuant to section 189(2a) Summary Procedure Act - appeal allowed - respondents to pay Mr Jarrad’s costs of the proceedings in the Magistrates Court.

Summary Procedure Act 1921 (SA) s 99, s 189(2a), referred to.
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; Police v Leigep [2003] SASC 383; MFX Research Pty Ltd v Coleman [1999] NSWSC 692; Gilfillan v Gilfillan (1973) 6 SASR 330; R v District Court of Berri; Ex parte Eudunda Farmers Co-op Society Ltd (1982) 31 SASR 342 at 353; House v The King (1936) 55 CLR 499, considered.

JARRAD v SANTAMARIA AND ANOR
[2005] SASC 196

Magistrates Appeal

GRAY J

1. This is an appeal against a costs order made by a magistrate.

2. The appeal raises for consideration the ambit of the discretion to be exercised by a magistrate.  At issue is the interpretation and application of section 189(2a) of the Summary Procedure Act 1921 (SA) which provides:

   Costs will not be awarded against a complainant in proceedings for a restraining order unless the court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.

   The rationale for this provision is said to be the removal of disincentives for persons wishing to apply for restraining orders in the absence of bad faith or unreasonableness, for example, those persons seeking personal protection in domestic violence situations.[1] 

   [1] Parliamentary Debates, Legislative Council, Thursday 19 November 1998, Hon K T Griffin (Attorney-General) at 230-231. 

   History of the Proceedings

3. The respondents, Antonio and Susan Santamaria, applied ex parte for a restraining order against their neighbour, Andre Jarrad.[2]  Mr and Mrs Santamaria alleged many incidents of inappropriate conduct by Mr Jarrad towards them, their children and others.

   [2] Pursuant to section 99 of the Summary Procedure Act 1921 (SA).

4. A magistrate made an ex parte order on the basis of supporting affidavits sworn by Mr and Mrs Santamaria.  The order restrained Mr Jarrad from:

   Contacting, communicating or approaching directly or indirectly whether in person by telephone, in writing or otherwise, with Antonio Santamaria, Susan Maria Santamaria, Vincent Santamaria, Jack Santamaria and Tom Santamaria.

   The ex parte order came on for consideration inter partes and was continued by consent until trial.

5. At trial, the restraining order was not confirmed.  The magistrate considered Mr and Mrs Santamaria to be unimpressive witnesses.  Mr Jarrad and his partner were found to be impressive and clear witnesses.  Many of the incidents alleged in the supporting affidavits were not proven to have taken place.  The magistrate concluded that it was inappropriate to confirm the restraining order.  Her reasons included the following:

   A brief outline of the facts surrounding the matter is necessary in order to place the evidence in perspective.

   The parties are next-door neighbours; their houses are in very close proximity and share a common driveway that allows access to the rear of the premises.  The driveway is narrow; a fence runs along the length of the Santamaria’s [sic] house, separating the house from the driveway although still within the boundary of their property.  A fence does not protect the side of Mr Jarrad’s house, some bollards have been placed near the side of his house.

   Windows from each of the houses open onto the driveway.

   The Santamaria family have lived in their house for ten years; Mr Jarrad and his partner moved into their house in about December 2002 having undertaken renovations prior to moving in.

   It is not disputed that there have been difficulties between these neighbours, the vast majority of which fall into the category of nuisance and are properly categorised as a neighbourhood dispute.  It seems that Mr Jarrad has over the period made a number of complaints to relevant local authorities about noise levels, parking and other matters.  The Santamarias have taken umbrage to those complaints.

   …

   I do not intend to recite each and every allegation made by the Santamarias.  I have considered their evidence and make the following observations.

   Neither Mr nor Mrs Santamaria impressed me as witnesses.  On the whole I found Mrs Santamaria to be a confused and confusing witness with no substance to her allegations.  Mr Santamaria seems to have witnessed fewer of the incidents than his wife.

   Their behaviour in ignoring the agreed drumming curfew was petty and reflected badly upon them against the background of this matter.  So too their placement of a friend’s car outside Mr Jarrad’s house for a number of weeks to prevent him parking outside his house.

   The main issue of concern to me was the allegation of damage to the fence and the alleged assault on Mr Santamaria.  A view of the properties was conducted at which time various markings on the fence were pointed out.  Those marks tended to be towards the bottom of the fence.  I note that the fence having been erected was dismantled and replaced along a different line, slightly closer to the house.  There is absolutely no evidence whatsoever that Mr Jarrad was responsible for any damage to that fence.

   As far as the allegation of assault is concerned, I found the evidence of the three witnesses to be contradictory and less than satisfactory.  As that matter is listed separately for trial I do not intend to comment further on it.

   …

   There are two major factors in reaching my decision whether this order should be confirmed.

   Most importantly, it became obvious during Mrs Santamaria’s evidence that she had not witnessed many of the incidents to which she deposed in her affidavit and upon which the ex parte order had been based.  Her husband adopted the contents of her affidavit.  To the extent that neither she nor her husband had witnessed these incidents their evidence is of little weight and does not provide a proper foundation for the restraining order.

   In my view this fact is sufficient reason to refuse to confirm the ex parte order.

6. Following the decision of the magistrate Mr Jarrad made application for an order for costs.  The magistrate, in rejecting this application, reasoned:

   [Counsel] on behalf of Mr Jarrad has argued that I should find that the conduct of the Santamarias falls within [s 189(2a)].  [Counsel for the Santamarias] of course disagrees.  My opinion is that this is not a situation that would allow Mr Jarrad to obtain an order for costs.

   I have considered the matter since hearing the evidence.  I do not propose to revisit all the complaints between the parties; there clearly were problems between the parties and that was patently obvious from the evidence.  Those difficulties having arisen, Mr and Mrs Santamaria sought legal advice.  As a result of that advice they took out a private restraint order in an effort to solve what they saw as their problems.  In my view they were entitled to do that.  The fact that I have refrained from confirming the orders is neither here nor there as far as this application is concerned.

   I am not satisfied that their actions were done in bad faith or were unreasonable and I am not going to make the order for costs.  Each party can bear their own costs.

   Appeal

7. Counsel for the appellant submitted that the Santamarias in bringing the ex parte proceedings acted in bad faith and unreasonably.  It was said that Mr Jarrad was entitled to an order for costs pursuant to section 189(2a) of the Summary Procedure Act.  Counsel drew attention to the fact that the evidence in support of the ex parte application, the Santamarias’ affidavits, alleged that Mr Jarrad was involved in a number of incidents which were not subsequently established at the trial.  Witnesses gave evidence at trial that did not support the assertions in the affidavits.  Counsel contended that the Santamarias' affidavits contained false allegations.  In addition, it was said that at trial it was shown that the affidavits contained significant hearsay.  

8. Counsel for Mr Jarrad submitted that an ex parte application carried a heightened obligation of candour.  It was said that this obligation was breached by the Santamarias.  Further contentions were advanced regarding the refusal of the Santamarias to engage in mediation.  Counsel also referred to the finding of the magistrate that the Santamarias presented as unreliable witnesses.

9. Counsel for the Santamarias pointed out that at the core of his clients’ case were concerns regarding their neighbour’s behaviour.  Having conducted a five-day trial it was said that the magistrate was well positioned to make an assessment of the matters relevant to her discretion as to costs.  The conclusion was reached that bad faith and unreasonable conduct were not involved in the bringing of the proceedings.  It was said that this was a conclusion open to the magistrate and should not be disturbed on appeal.

   Section 189(2a) of the Summary Procedure Act

10. The interpretation of section 189(2a) involves a consideration of the meaning of ‘bad faith’ and of what conduct may be characterised as ‘unreasonable’.  Although there appears to be no case law regarding the meaning of section 189(2a) of the Summary Procedure Act,[3] ‘bad faith’ in the context of this provision should be taken to mean the absence of good faith.[4]

    [3] In Police v Leigip [2003] SASC 383, Prior J considered the application of section 189 of the Summary Procedure Act. In that case, it was found that bad faith had not been established.  Prior J held that, in order to award costs pursuant to section 189, there would need to have been an express finding by the magistrate that the party seeking the restraining order had acted in bad faith.

    [4] R v District Council of Berri; Ex parte Eudunda Farmers Co-op Society Ltd (1982) 31 SASR 342 at 353.

11. As earlier observed, the affidavit evidence was used in support of an ex parte application.  When proceeding ex parte there is a heightened obligation of candour.[5]  This has been described as a serious responsibility.  For example, in Thomas A Edison Ltd v Bullock[6] Isaacs J observed:[7]

    There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility.

    Dalglish v. Jarvie, a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.

    [5] For example see Brown v Newall (1837) 2 My & Cr 558 at 569-70; 40 ER 752 at 757 per Cottenham LC; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375; (1977-78) CLC ¶40-424, SC(NSW); Gilfillan v Gilfillan (1973) 6 SASR 330; Bentley v Nelson [1963] WAR 89; Republic of Peru v Dreyfus Bros & Co (1886) 55 LT 802; 3 TLR 95; The Hagen [1908] P 189 at 201; [1908-10] All ER Rep 21 per Farwell J, CA; Lazard Bros and Co v Midland Bank Ltd [1933] AC 289 at 307; [1932] All ER Rep 571 per Lord Wright, HL; Bloomfield v Serenyi [1945] 2 All ER 646; (1945) 173 LT 391 Brink’s-MAT Ltd v Elcombe [1988] 3 All ER 188 at 192-3; [1988] 1 WLR 1350 at 1356-7 per Gibson LJ, CA. Compare Tate Access Floors Inc v Boswell [1991] Ch 512; [1990] 3 All ER 303; [1991] 2 WLR 304; Chappell v United Kingdom [1989] FSR 617; Dormeuil Frères SA v Nicolian International (Textiles) Ltd [1988] 3 All ER 197 at 199; [1989] FSR 255 per Browne-Wilkinson VC, Ch; Re QRP Construction Pty Ltd [1973] Qd R 157.

    [6] (1912) 15 CLR 679.

    [7] (1912) 15 CLR 679 at 681.

12. In Gilfillan v Gilfillan[8]  Sangster J observed:[9]

    It is the duty of the party asking for an interlocutory injunction in any jurisdiction, if that application be made ex parte, to bring to the court all facts material to the determination of that party’s right to that injunction and any omission to bring any material facts before the court is a ground for dissolving an injunction so obtained.

    [8] (1973) 6 SASR 330.

    [9] (1973) 6 SASR 330 at 334.

13. These authorities support the proposition that the Santamarias were under an obligation to proceed with candour.  To advance evidence of incidents without disclosing that the deponents had not in fact witnessed the incidents falls short of meeting the obligation of candour.  The non-disclosure left the magistrate with what appeared to be a first hand account of behaviour said to support the need for an ex parte restraining order.[10]

    [10] MFX Research Pty Ltd v Coleman [1999] NSWSC 692 at [43].

    The Affidavit Evidence

14. As earlier observed, counsel for the appellant submitted that the content of the affidavit material relied upon by the Santamarias to support their ex parte application included false allegations which were unsupported by evidence at trial.  It was further submitted that Mrs Santamaria’s affidavit contained hearsay not identified as such at the time of the ex parte application.  It was said that reliance on material of this character demonstrated that the Santamarias brought the proceedings unreasonably, or in bad faith.

15. Counsel drew attention to many inconsistencies between the affidavits and the evidence given at trial.  The following are examples:

    -Mrs Santamaria deposed in her affidavit to hearing Mr Jarrad swearing at and abusing her youngest son.  In evidence, she admitted that she had never heard Mr Jarrad say anything threatening or intimidating or offensive to her children.

    -Mrs Santamaria’s evidence that she did not see Mr Jarrad shine a torch in her son’s face while she was sitting in a car in the driveway was inconsistent with her affidavit in which she asserts that she witnessed the incident.

    -In her affidavit, Mrs Santamaria deposed to a conversation with Mr Jarrad in which it was alleged that Mr Santamaria told Mr Jarrad that he had two broken ribs and Mr Jarrad said “Good, now I know where to hit you”.  During her evidence, Mrs Santamaria disclosed that she was not present at that conversation and was relying upon what her husband had told her.

    -Mrs Santamaria’s affidavit referred to an incident where an employee using their driveway had difficulty exiting.  She alleged Mr Jarrad stood in the way, waved his fists around and said “I’ll smash your fucking head in”.  In evidence the employee refuted this allegation.

    -Mrs Santamaria’s affidavit asserted that Mr Jarrad told her “…when I was living opposite Barossa Valley Toyota, I had them all sorted out.  I even complained about…Friday night drinking hour after work, knowing they didn’t even go till very late.  (Bragging) I can get away with anything”.  This is inconsistent with Mrs Santamaria’s evidence that she merely heard other people talk about this.

    -In her affidavit, Mrs Santamaria deposed to Mr Jarrad calling the police twice on 8 March 2005.  In evidence, she admitted that she did not know this and had presumed it.

    -In her affidavit Mrs Santamaria deposed that her family had never had any problems with neighbours in the past.  In her evidence, she admitted to complaining about several matters involving the use of the driveway and noise in the past.

    -Mr Santamaria deposed in his affidavit that to the best of his knowledge all matters referred to in Mrs Santamaria’s affidavit were true.  Mr Santamaria had no personal knowledge of many of the matters as he was working and was merely repeating what he had been told by Mrs Santamaria and others.

    -In his affidavit, Mr Santamaria referred to Mr Jarrad constantly filming.  At the hearing, Mr Santamaria gave evidence of only personally witnessing this on one occasion. 

    -In Mr Santamaria’s evidence he alleged Mr Jarrad told a witness ‘I bet that bastard has got hydroponics somewhere’.  In evidence the witness denied that Mr Jarrad ever said this to him.

16. Counsel for the Santamarias submitted that at best, these complaints did no more than highlight limited examples of hearsay in the affidavits and minor inconsistencies with the evidence at trial.  It was said that during oral evidence, Mrs Santamaria readily conceded where appropriate that she had not witnessed events or heard particular statements.  The affidavits were said to be no more than an attempt to raise the issues between the parties that were then fully ventilated during the course of the trial.  It was submitted that the matters of complaint raised by the appellant did not establish bad faith or unreasonableness in the bringing of the application.

    Conclusion

17. The magistrate did not specifically address the conduct of the Santamarias in the bringing of the proceedings.  The magistrate reasoned that, having taken legal advice, the Santamarias brought proceedings to resolve a problem that they believed existed.  However, the magistrate paid no apparent regard to the content of the affidavits filed in support of the ex parte restraining order.  The earlier examples demonstrate that the Santamarias were prepared to attest to witnessing relevant and material conduct that they had not in fact witnessed.  This was a breach of their obligation of candour and represented unreasonable conduct in the bringing of the proceedings. 

    The affidavit evidence of Mr and Mrs Santamaria contained material and prejudicial assertions based on hearsay.  This appears to have given rise to material inconsistencies between the affidavits and the evidence at trial.  Numerous assertions in the affidavits were not supported by the evidence at trial.  Mrs Santamaria’s affidavit makes a number of references to incidents she claimed to have witnessed but were then not proven at trial.  The magistrate overlooked these relevant considerations.  For this reason the magistrate’s refusal to order costs must be reconsidered.[11]

    [11] House v The King (1936) 55 CLR 499.

1. The unsatisfactory and misleading nature of the affidavit evidence lead to the conclusion that the proceedings were brought unreasonably and in bad faith.  In these circumstances Mr Jarrad was entitled to an order for the costs of the proceedings.

2. The appeal is allowed.  The Santamarias are to pay Mr Jarrad’s costs of the proceedings in the Magistrates Court.