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

This is an appeal against a costs order made by a magistrate.
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
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).
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jarrad v Santamaria and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] SASC 196
Decision Date: 31 May 2005

CaseChat Overview and Summary

In the case of Jarrad v Santamaria, the appellant, Mr Jarrad, appealed a decision by a magistrate in the Magistrates Court of South Australia regarding costs. The respondents, the Santamarias, had previously made an ex parte application for a restraining order against Mr Jarrad, which was not confirmed at trial. Mr Jarrad subsequently applied for costs of the application pursuant to section 189(2a) of the Summary Procedure Act 1921 (SA). The magistrate refused the costs application, leading Mr Jarrad to appeal on the grounds that the respondents brought the ex parte application in bad faith and unreasonably.

The court examined the meaning of 'bad faith' and 'unreasonably' in the context of the ex parte application and considered the content of the affidavits supporting the application. The court identified numerous inconsistencies and instances of hearsay in the affidavits that were not supported by the evidence at trial. The court held that the respondents brought the ex parte application in bad faith and unreasonably, as they attested to witnessing events they had not in fact witnessed, which breached their obligation of candour. The court concluded that the unsatisfactory and misleading nature of the affidavit evidence led to the conclusion that the proceedings were brought unreasonably and in bad faith.

The appeal was allowed, and the Santamarias were ordered to pay Mr Jarrad’s costs of the proceedings in the Magistrates Court. The court's decision highlighted the importance of candour and the obligation of parties to proceed with honesty and integrity in their dealings with the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.