Prefumo v Bradley

[2011] WASC 251

PREFUMO -v- BRADLEY [2011] WASC 251

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 251
Case No:	CIV:1924/2010	Heard:	30 MARCH, 1, 4 & 20 APRIL, 7 JUNE 2011
Coram:	CORBOY J	Delivered:	9/09/11
No of pages:	35	Judgment Part:	1 of 1
Result:	Claim for public interest immunity not allowed Application to strike out adjourned for further directions
Category:	B
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Parties:	LOUIS MARCEL ANGELO GILBERT PREFUMO ARRIADNE MARIE NOELLE BRADLEY
Catchwords:	Defamation Application to strike out indorsement to writ Whether defence of triviality available for statements made in private email Whether statements to mental health clinic capable of communicating a defamatory meaning Qualified privilege and malice Turns on its own facts Practice and procedure Whether public interest immunity applied to patient notes held by area health service forming part of the Department of Health
Legislation:	Defamation Act 2005 (WA), s 30, s 33, s 34
Case References:	Adelaide Brighton Cement v State of South Australia (1999) 75 SASR 209 Alister v The Queen (1983) 154 CLR 404 Clifford v Victorian Institute of Forensic Health [1999] VSC 359 CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 Mallik v McGeown [2008] NSWCA 230 Mok v New South Wales Crime Commission [2002] NSWCA 53 National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386; (2006) 156 FCR 148 Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [No 2] [2009] WASC 73 Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, 15 August 1997) Prefumo v Sutton [2011] WADC 59 Prefumo v Sutton [2011] WASC 151 R v Young (1999) 46 NSWLR 681 Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22 Sands v The State of South Australia (No 2) [2010] SASC 340 Smith v ADVFN Plc [2008] EWHC 1797 (QB) The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PREFUMO -v- BRADLEY [2011] WASC 251 CORAM : CORBOY J HEARD : 30 MARCH, 1, 4 & 20 APRIL, 7 JUNE 2011 DELIVERED : 9 SEPTEMBER 2011 FILE NO/S : CIV 1924 of 2010 BETWEEN : LOUIS MARCEL ANGELO GILBERT PREFUMO

Plaintiff

AND

ARRIADNE MARIE NOELLE BRADLEY
Defendant

Catchwords:

Defamation - Application to strike out indorsement to writ - Whether defence of triviality available for statements made in private email - Whether statements to mental health clinic capable of communicating a defamatory meaning - Qualified privilege and malice - Turns on its own facts

Practice and procedure - Whether public interest immunity applied to patient notes held by area health service forming part of the Department of Health

Legislation:

Defamation Act 2005 (WA), s 30, s 33, s 34

Result:

Claim for public interest immunity not allowed

(Page 2)

Application to strike out adjourned for further directions

Category: B

Representation:

Counsel:

Plaintiff : In person
Defendant : In person

Solicitors:

Plaintiff : In person
Defendant : In person

Case(s) referred to in judgment(s):

Adelaide Brighton Cement v State of South Australia (1999) 75 SASR 209
Alister v The Queen (1983) 154 CLR 404
Clifford v Victorian Institute of Forensic Health [1999] VSC 359
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233
Mallik v McGeown [2008] NSWCA 230
Mok v New South Wales Crime Commission [2002] NSWCA 53
National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386; (2006) 156 FCR 148
Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [No 2] [2009] WASC 73
Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, 15 August 1997)
Prefumo v Sutton [2011] WADC 59
Prefumo v Sutton [2011] WASC 151
R v Young (1999) 46 NSWLR 681
Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22
Sands v The State of South Australia (No 2) [2010] SASC 340
Smith v ADVFN Plc [2008] EWHC 1797 (QB)

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The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34

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CORBOY J:

The applications and the result

1 Mr Prefumo alleges that he was defamed by statements made by Ms Bradley, who is his sister. The statements are said to have been made in an email sent by Ms Bradley to Mr Prefumo's former wife, Ms Sutton, and in telephone conversations between Ms Bradley and unidentified persons at the Osborne Park Adult Community Mental Health Clinic (Osborne Clinic).

2 Ms Bradley has applied for the action to be struck out under O 19 r 20 of the Rules of the Supreme Court 1971 (WA) contending that the indorsement to the writ discloses no reasonable cause of action or is frivolous or vexatious or is otherwise an abuse of process.

3 Mr Prefumo issued a subpoena to Dr van Wyk, the acting clinical director, Adult Mental Health Services, North Metropolitan Area Health Service (NMAHS) shortly after commencing the action. The Osborne Clinic forms part of the NMAHS. The Department of Health (the Department) answered the subpoena by producing a bundle of documents relating to the care and management of Mr Prefumo's health. However, it objected to the parties inspecting several of the documents that had been produced on the ground of public interest immunity. Mr Prefumo requested a ruling on the Department's objection at the hearing of Ms Bradley's application.

4 I have found that the claim of immunity should not be allowed and that the parties should be permitted to inspect the documents concerned after the Department is given sufficient time to consider the reasons why its claim has been rejected.

5 The fact that the parties did not have access to all of the documents sought by Mr Prefumo has affected the way in which Ms Bradley's application was contested and the assessment of its merits. It is one reason why it has only been possible to form a preliminary view on the application and I propose to give Ms Bradley an opportunity to consider whether she wishes to further argue her application with the benefit of the documents and these reasons. Possible orders for the further determination of the application are suggested at the conclusion of the reasons. However, it will be necessary to hear from the parties on what is proposed.

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6 Mr Prefumo also requested at the hearing of the application that I rule on an allegation that Ms Bradley had committed a contempt by breaching an order made by the Magistrates Court and/or by this court. The parties subsequently provided written submissions on that allegation but those submissions did not consider questions that are fundamental to the determination of the complaint made by Mr Prefumo. In my view, there is no alternative but to programme the matter for a further hearing having regard to what has been submitted so far by the parties.

A chronological account of the relevant circumstances

The writ and the subpoena

7 Mr Prefumo commenced the action by writ dated 21 June 2010. The writ was indorsed with a claim for damages for 'libellous and slanderous' statements made by Ms Bradley. The statements were alleged to have been made:

(a) 'in collaboration' with Ms Sutton, 'on oath, in an application for a family protection order held in the Dandenong court', the allegation being that Ms Sutton said 'on oath that [Ms Bradley] stated to her around the end of March 2010, that [Mr Prefumo] …"was going to get me"';

(b) in 'several' telephone calls to the Osborne Clinic 'in the past months in regards to the deteriorating of the mental health of the plaintiff'.

8 The circumstances relevant to the first of those matters are explained in Prefumo v Sutton [2011] WASC 151. Mr Prefumo claimed in that action that he had been defamed by Ms Sutton seeking and obtaining a family violence intervention order against him under the Family Violence Protection Act 2008 (Vic) and in court documents and evidence given in relation to her application for the order.

9 On 6 July 2010, Mr Prefumo caused a subpoena to be issued requiring Dr van Wyk to produce 'all papers lodged on May 25, 2010 for access to copies to documents held by the Osborne Park Community Mental Health Service records' and 'all documents held by the North Metropolitan Mental Health Services'. The subpoena incorporated an attachment in which it was stated that Mr Prefumo requested that he be given access to 'his personal information held by the Adult Mental Health Services in your letter June 22, 2010 undisclosed due to the public interest'.

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Mr Prefumo's affidavits

10 Mr Prefumo filed a further statement (in the form of an affidavit made on 27 July 2010) providing such particulars as he was able of the telephone calls allegedly made by the defendant to the Osborne Clinic. He stated in that affidavit that:

(a) he was assessed by a psychiatric nurse in late May 2010;

(b) the only reason given for his assessment was that 'it was instigated by [Ms Bradley's] complaints';

(c) he had been denied access to information concerning Ms Bradley's communications with the Clinic;

(d) he had applied for a subpoena to be issued to the acting clinical director, Adult Mental Health Services, NMAHS.

11 Mr Prefumo made a further affidavit on 7 October 2010 that deposed to other matters that were relevant to his claim against Ms Bradley and the subpoena issued to Dr van Wyk. In summary, he stated that:

(a) On 31 March 2010, he had received four 'aggressive, abusive' telephone calls from Ms Bradley. The calls were made after Ms Bradley had learnt that Ms Sutton had been served with a writ issued out of the District Court. Mr Prefumo had caused the writ to be issued.

(b) He had applied for a violence restraining order against Ms Bradley following the telephone calls.

(c) Ms Sutton had applied for the family violence intervention order to which reference has already been made on 21 May 2010.

(d) Outpatient notes maintained by the NMAHS disclosed that Ms Bradley had contacted the Osborne Clinic twice on 31 March 2010 and twice on 21 May 2010.

(e) He had been served by the police with a family violence intervention order obtained by Ms Sutton on 22 May 2010.

(f) On the same day, he was contacted by telephone by a nurse from the Osborne Clinic 'in regards to certain allegations which were made to the clinic on several occasions by [Ms Bradley]'. He was

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assessed by a nurse on the telephone and a further assessment by interview was conducted at the Clinic a few days later.

(g) He had not communicated with Ms Bradley since the funeral of their mother in August 2004.

(h) He had made a freedom of information request to the Department on 22 May 2010 and had obtained some documents from the NMAHS. Those documents disclosed that Ms Bradley had:


made various telephone calls on several occasions to the [NMAHS] and … had defamed [him] in making contact with the mental health clinic on several occasions and given prognoses of [him] without having had no communications since August 27, 2004 … The information given by the defendant are unfounded, libellous and slanderous (as there had not been any communications since August 27, 2004 …

(i) He had not received all of the documents that he had sought in his freedom of information request. Consequently, he had issued a subpoena to 'gain access to all information held by the Adult Mental Health Services'. He requested that he be given access to the subpoenaed documents.

(j) The following exchange had occurred at the hearing of Ms Sutton's application for a family violence intervention order (what follows reproduces what is stated in Mr Prefumo's affidavit):


"Who's Ariadni(?) Bradley(?) --- That's his sister.

His sister? --- Yes, she's give me a lot of support because she knows what I went through."

She says to you in this email, "he's a danger to the community". "She's herself she's scared of him". "She lives in Perth." She's very happy to provide me with a statutory declaration".

The Judge "So someone knows that the order's in place and they can liaise between you and they can tell you what's happened in Western Australia; when he's served, those sorts of things"

"They may be able to have some police over there monitor the situation".

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"Let's get Ms Sutton somebody who can help her in the Victoria police who will liaise with her because I see that this as a matter that needs to have someone speak to her about when he's served, so that she knows"

The Judge again "Yes sure? If life long restraining order I think that you should get one."

12 It was apparent from Mr Prefumo's affidavit that he had access to the transcript of the hearing of Ms Sutton's application for an intervention order and indeed, he produced a copy of the transcript in Prefumo v Sutton. However, no copy of the transcript was produced for the hearing of Ms Bradley's application and neither party to this action has given discovery.

13 Mr Prefumo attached a number of documents to his affidavit. They included:

(a) A statutory declaration made by Mr Prefumo in support of his application for a restraining order against Ms Bradley (marked as attachment B to the affidavit). Mr Prefumo stated in the declaration that he had been contacted by Ms Bradley on three occasions on the evening of 31 March 2010 about a writ of summons that had been served on Ms Sutton that day. The calls were alleged to have been 'abusive, aggressive'.

(b) A copy of Ms Sutton's application for the family violence intervention order (attachment C). The application was undated but it was indorsed with a statement that Ms Sutton had been served on 31 March 2010 with 'papers' from the District Court of Western Australia issued on behalf of Mr Prefumo. The application further stated that Ms Sutton had been informed by Ms Bradley that Mr Prefumo was 'going to get me' (that is, Ms Sutton).

(c) Outpatient notes maintained by the NMAHS, including an undated mental state assessment that recorded, among other things, that Mr Prefumo had been 'referred by his estranged sister for increasing delusional behaviour' and 'the sister's concern about his mental health issues/motivated by proceeding case the client is pursuing' (attachment H).

(Page 9)

(d) Outpatient notes apparently prepared during an interview with Mr Prefumo (attachment M). The notes recorded a statement by Mr Prefumo that there had been a 'long standing conflict' between himself and Ms Bradley and that Ms Bradley had always sided with Ms Sutton.

(e) A letter dated 31 May 2010 apparently from the nurse who performed the mental state assessment of Mr Prefumo and which stated that the reason for the assessment was, 'instigated by your sister Ms Bradley' (attachment N).

(f) A document entitled NMAHS 'Initial Assessment Form' (attachment Q). The document stated that Mr Prefumo had been referred by his sister on 31 March 2010. It also contained allegations against Ms Bradley that indicated that Mr Prefumo considered that she was motivated by ill-will towards him.

(g) Documents entitled 'MHERL Adult client triage details', indicating that Mr Prefumo had been triaged for disturbed thoughts and delusions on 20 and 26 May 2010 following referrals from 'unknown sister' and 'unknown, Arienne' (attachments S and T).

(h) Letter dated 14 June 2010 from the area freedom of information co-ordinator, NMAHS advising Mr Prefumo that he had been granted access to the documents sought under his freedom of information request except where a document recorded personal information relating to a third party (attachment U).

(i) Letter dated 22 June 2010 from Dr van Wyk advising Mr Prefumo of the result of an internal review of the decision of the freedom of information co-ordinator to withhold third party information recorded in the documents sought by Mr Prefumo (attachment V). Dr van Wyk's letter stated that he considered that the documents provided pursuant to Mr Prefumo's request fully informed him of the treatment and management that he had received at the Osborne Park Community Mental Health Service and that the withheld matter did not relate to him. The letter further stated that Dr van Wyk was not persuaded that the disclosure of the withheld matter was in the public interest.

14 The last of those documents explained the reference to a letter dated 22 June 2010 in the attachment to the subpoena issued to Dr van Wyk. As Mr Prefumo stated in his affidavit of 7 October 2010, he sought by the subpoena to obtain the material that had been withheld pursuant to his
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freedom of information request. The withheld material apparently consisted of statements by third parties that had been edited from the documents that were produced to Mr Prefumo. The documents over which the Department claimed public interest immunity comprised the unedited versions of the documents that had already been given to Mr Prefumo in answer to his freedom of information request (I will refer to the documents over which the Department claimed immunity as the 'unedited documents').

15 I have inspected the unedited documents for the purpose of determining the Department's claim. The redacted parts of the documents record information provided by Ms Bradley to the Osborne Clinic about Mr Prefumo.

Interlocutory proceedings in late 2010

16 Argument was heard in early November 2010 on the claim by the Department for immunity from producing the unedited documents for inspection by the parties. Ms Bradley was represented at the hearing but made no submissions on the issue. The decision was reserved, with Mr Prefumo being given leave to inspect the documents that had been produced and over which there was no claim for immunity.

17 Mr Prefumo advised at a later directions hearing that he no longer sought access to the unedited documents and the Department's solicitors were notified that accordingly, it was not proposed to rule on the claim for immunity. However, Mr Prefumo subsequently indicated that he maintained his application for leave to inspect the unedited documents.

18 Orders were made in November 2010 for the parties to go to mediation. However, those orders were vacated in early December when it became apparent that no purpose would be served by the parties attending a mediation conference.

19 Ms Bradley had solicitors appearing on the record for her until about this time (Mr Prefumo has represented himself throughout the proceedings). She terminated their instructions and in mid-December 2010, filed what she characterised as a 'draft' defence provided to assist the court in understanding her position. The draft defence substantially consisted of denials and non-admissions pleaded by reference to the indorsement on the writ. It also included an express denial that she had made any statement that was defamatory of Mr Prefumo or was capable of being understood as conveying any defamatory meaning. The defence

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was characterised as a draft as the plaintiff had not filed a statement of claim.

20 Ms Bradley indicated at the same time that she required clarification from Mr Prefumo of what it was that she was alleged to have stated that was defamatory of him. She also advised that she wished to have the action struck out.

The evidence relied on by the Department of Health

21 The claim of public interest immunity by the Department was supported by an affidavit sworn by Jamie Nathan Gibson, programme director for the Adult Programme, NMAHS. He is a psychiatrist employed by the Department.

22 He identified nine documents that had been redacted by the Department prior to Mr Prefumo being granted access under his freedom of information request. The unedited version of the same documents was the subject of the Department's claim of immunity.

23 I am satisfied from an inspection of the unedited documents that they are relevant to Mr Prefumo's claim. As previously noted, the redacted information in each document records the detail of communications made by Ms Bradley to the Osborne Clinic.

24 Dr Gibson stated in his affidavit that:

(a) The Osborne Clinic was part of the NMAHS. That Service has the function of 'providing inpatient, rehabilitation and community mental health services through hospital inpatient units, rehabilitation centres and community clinics across the north metropolitan area' (par 8).

(b) The Osborne Clinic provides adult community clinical services, including emergency and non-urgent psychiatric services. It also provides mental health consultations and rehabilitation services and performs mental health assessments (par 9).

(c) The services delivered by the Clinic gave effect to a long standing government policy of providing mental health services through the public health system. The functions performed by the Clinic were 'supported' by s 18 of the Hospitals and Health Services Act 1927 (WA) and s 5 - s 7 of the Mental Health Act 1996 (WA). The services also gave effect to 'the important public policy and clinical objectives of identifying people who require mental health

(Page 12)

services, including those who may be at risk of causing harm to themselves, to others or to property' (pars 10 and 11).

(d) Some persons may lack insight into their need for assistance due to the nature of mental illness or be reluctant to engage with a mental health service. Consequently, it was frequently the family, friends and other community members who contacted mental health services to request advice and assistance. Persons contacting mental health services may express serious concerns for the safety and wellbeing of the patient or other persons (pars 12 and 13).

(e) Information provided by third parties will assist mental health services to obtain information about the patient and how best to facilitate the provision of such services as may be required. The mental health service would be restricted in providing assessment and treatment to patients if that kind of information was not available (pars 14 and 15).

(f) Accordingly, a 'lack of information' from third parties would have at least two consequences. First, it may make it more difficult to identify patients who require assessment and treatment. Second, it may make it more difficult to assess the patient's condition. It was, therefore, important that members of the public should feel that they could contact a mental health service to provide information and express concerns (pars 16 to 18).

(g) People contacting mental health services often requested or stipulated that their contact remained confidential as they will frequently be known to the patient or apprehend that the patient will feel aggrieved by their contact. Consequently, disclosure of the sources and content of information would be likely to deter the provision of important information in the future (par 19).

(h) In some instances, third parties may be psychologically traumatised by the knowledge that their perceived confidential information and contact has been released to the patient. There was an 'unquantifiable risk' that third parties would be traumatised by the release of information 'and that mental health services would consequently receive less information on which to make contact with and conduct assessment of people in the community who may require assistance' (pars 21 to 23).

(i) His observations were made as a 'statement of general policy'.

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25 There were aspects of Dr Gibson's affidavit that specifically referred to Mr Prefumo's health and Ms Bradley's contacts. In particular, he stated that Mr Prefumo had been advised in the past that he had been diagnosed with an organic delusional disorder. Dr Gibson provided some short and limited evidence on the effect that such a disorder may have on the personal relationships of patients. I read that evidence as illustrating the general propositions contained in his affidavit and that the claim for immunity was a class claim rather than a claim limited to the contents of the particular documents.

The strike out application by Ms Bradley

26 Ms Bradley requested at a directions hearing held on 1 February 2011 that an application to strike out the plaintiff's action be heard. Directions were made for that purpose and Ms Bradley was granted leave to inspect the documents that were not the subject of the Department's claim for immunity.

27 Ms Bradley subsequently filed a bundle of documents comprising submissions and other material in support of her application. The documents referred to O 20 r 19 RSC. The references in the rule to pleadings being struck out as an abuse of process explained, at least in part, the approach adopted by Ms Bradley in her submissions and accompanying material. It should also be noted that I raised with the parties prior to the hearing whether any statement by Ms Bradley to the Osborne Clinic might have been made on an occasion of qualified privilege.

28 Ms Bradley contended in her submissions that:

(a) She could prove from the subpoenaed documents that she had not acted maliciously but out of concern for Mr Prefumo in contacting the Osborne Clinic. She did not understand how such 'help and guidance' could be regarded as defaming him.

(b) Mr Prefumo had not clearly stated what it was that she had said that was defamatory of him.

(c) Mr Prefumo made statements in his application for a violence restraining order against her that were untrue. He had also misstated the position in respect of his application for a restraining order in the indorsement to the writ commencing this action.

(Page 14)

(d) Mr Prefumo had breached an interim order made in the proceedings that he had commenced for a restraining order.

(e) The subpoenaed documents indicated that Mr Prefumo had at times presented to health authorities with symptoms of a psychiatric disorder.

(f) Mr Prefumo had commenced actions against Ms Sutton that had been dismissed.

29 That summary identifies various topics dealt with by Ms Bradley in her submissions. However, it does not capture the gist of why she contended that the action should be struck out. As I understand Ms Bradley's submissions, her complaint was that Mr Prefumo had 'abused the court system' in various ways - by misrepresenting matters in court, by threatening to commence or commencing proceedings against family members and others and by disregarding a court order. These proceedings were said to be part of that course of conduct and were an abuse of process or were frivolous or vexatious. Mr Prefumo's past conduct explained why the proceedings had been commenced when (on her submissions) she had contacted the Osborne Clinic out of concern for his well-being and not for any malicious purpose. Her concern was justified having regard to Mr Prefumo's medical history as evidenced by the subpoenaed documents. She should not be put to the expense and distress associated with defending Mr Prefumo's claims in those circumstances.

30 Consequently, the gravamen of Ms Bradley's application was that the proceedings should be summarily dismissed rather than that Mr Prefumo should be required to cure any deficiency in his indorsement.

31 The supporting 'statements' and attachments to Ms Bradley's submissions comprised documents relevant to her assertions concerning Mr Prefumo's application for a violence restraining order, alleged misstatements in court proceedings and in correspondence and the multiplicity of proceedings that Mr Prefumo had commenced against others (a number of actions commenced by Mr Prefumo in the District Court have been stayed: Prefumo v Sutton [2011] WADC 59). There was evidence of the costs she had incurred in relation to the proceedings and the inconvenience that had been caused. The attached material also included an affidavit made by a brother of Mr Prefumo and Ms Bradley in which it was alleged that Mr Prefumo had made threats that had resulted in him applying for a violence restraining order.

(Page 15)

32 Ms Bradley attached documents produced by the Department which I infer were intended to support a contention that Mr Prefumo suffered from, or exhibited symptoms of, a psychiatric condition. It was apparent from that material that Ms Bradley had been inadvertently permitted to inspect one of the documents over which the Department claimed immunity. She included that document in her supporting material.

Mr Prefumo's response to the application

33 Mr Prefumo provided what he described as a response to Ms Bradley's application in the form of an affidavit sworn on 16 March 2011. In his affidavit, Mr Prefumo contested the statements contained in the affidavit made by his brother and complained that Ms Bradley had committed an act of contempt. Mr Prefumo further contended that Ms Bradley had interfered in his personal affairs by contacting the Osborne Clinic and that she had made statements to the Clinic without actual knowledge of his circumstances. Much of the affidavit was devoted to contesting the accuracy of statements made by Ms Bradley in her submissions or by others in the documents that had been included in the bundle of material provided in support of Ms Bradley's application. So far as it is relevant to the application, the affidavit made two further points. First, Ms Bradley's application to strike out the proceedings was out of time and second, Ms Bradley had contacted the Osborne Clinic 'out of spite'. There were references in the affidavit that indicated that Mr Prefumo would point to the timing of the contacts as evidence supporting his allegation that she was actuated by malice. That submission was consistent with a further submission put by Mr Prefumo in an affidavit made after the hearing.

A general comment on the statements allegedly made by Ms Bradley

34 Ms Bradley complained that she did not know what it was that she had said that is alleged to have been defamatory of Mr Prefumo. The allegation in relation to her communication with Ms Sutton is reasonably clear, although Mr Prefumo has not been directed to identify the defamatory imputations that he alleges the communication conveys and there are differences between what is alleged in the indorsement to the writ and statements made in Mr Prefumo's affidavit of 7 October 2010. Further, the context of the alleged communication has not been established on the evidence presently available.

35 Identifying what Ms Bradley is alleged to have stated to the Osborne Clinic and which is said to have been defamatory is more problematic. As has been explained, the documents given to Mr Prefumo pursuant to his

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freedom of information request and produced in answer to his subpoena were edited to exclude what was recorded about Ms Bradley's telephone contacts. Consequently, at the time that he commenced his action and up to the hearing of Ms Bradley's application, Mr Prefumo could establish by reference to documents to which he had been granted access that Ms Bradley had communicated with the Osborne Clinic on certain occasions about his mental health. He could not, however, state what was actually said by Ms Bradley. The most that he could do was to attach to his affidavit the edited documents to which he had gained access that recorded Ms Bradley's referrals to the Clinic. That remained the position at the hearing apart from the inadvertently disclosed document that was included in Ms Bradley's material.

36 As will be explained, the lack of evidence also presented difficulties for Ms Bradley in the conduct of her application.

The approach to the application

37 In my view, there are several considerations that are relevant to the approach to be taken to this application. Those considerations are not necessarily harmonious; they must be balanced in an attempt to ensure fairness between the parties while having due regard to the public interest in the efficient administration of the court's resources.

38 The first consideration concerns the application of well established authorities on striking out pleadings as disclosing no reasonable cause of action or on the other grounds referred to in O 20 r 19 RSC. In particular, the principles identified by Master Staples in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) remain good law, although they no doubt fall to be applied according to the case management objectives enshrined in O 1 r 4A and r 4B; and see, for example, Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233. In particular, O 20 r 19 is intended to only apply to cases that are not really arguable. In an application to strike out an action in defamation on the ground that the statements alleged were not defamatory of the plaintiff, the task of the court is only to decide whether it is open to the trier of fact to find that ordinary reasonable people would have understood the matter complained of in the defamatory sense pleaded: National Auto Glass Supplies (Australia) Pty Ltd v Nielsen & Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386; (2006) 156 FCR 148.

39 The second and related consideration concerns the right of a plaintiff to have a cause determined by trial rather than dealt with summarily. In the context of an application for defendant's summary judgment,

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Le Miere J observed in Paharpur Cooling Towers Ltd v Paramount (WA) Ltd [No 2] [2009] WASC 73 that:

The power to order summary judgment 'should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried': Fancourt v Mercantile Credits Ltd … A plaintiff is not to be deprived by means of a summary procedure, of the opportunity of litigating his case in the ordinary way if there is any chance that he may be able to provide evidence, which, if accepted, will have the result that his claim will succeed. A 'litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender': Cox v Journeaux (No 2) … It will never be appropriate to dismiss a proceeding where the ultimate resolution of the case will depend upon facts which are in dispute. [12]

40 Those matters were also referred to in Kimberley Downs.

41 The third consideration is also related to the first two considerations. As the applicant, Ms Bradley bears the onus of persuading the court that the indorsement to the writ should be struck out and the action dismissed. It is for her to assemble the evidence that she relies on for that purpose.

42 The fourth consideration concerns case management. To what extent do the objectives in O 1 r 4A and r 4B RSC impact on the circumstances in which it may be appropriate to dispose of a matter summarily having regard to the various matters referred to in r 4B?

43 The fifth consideration concerns the law of defamation now that much written communication is in an electronic form. Emails, SMS messaging, Twitter, blogs and other forms of social media such as Facebook impact on the way people communicate and the language they use. Communications through those media often lack the formality and careful consideration that was once thought to mark the difference between the written and spoken word. The very purpose of the media is to enable people to communicate instantaneously, often in a language that is blunt in its message and attenuated in its form. That will affect both what is regarded as defamatory and the potential for harm: see, for example, Smith v ADVFN Plc [2008] EWHC 1797 (QB) in which Eady J drew an analogy between material posted on an internet bulletin board and the law relating to vulgar abuse.

44 The sixth consideration concerns the identity of the parties and the circumstances of publication. The function of the civil justice system is to provide a means of peacefully settling disputes. A core concern of the

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law is with resolving disputes that arise out of family relationships. However, defamation proceedings are concerned with protecting and vindicating reputations. They are generally not concerned with what was said between family members or those who were once in a personal relationship about each other.

45 The final consideration also concerns the position of the parties but as it affects the procedure to be followed. As I have indicated, Mr Prefumo and Ms Bradley represent themselves. Defamation can be a difficult and perhaps, overly technical area of the law. It is generally regarded by lawyers as an area of specialist knowledge. Understandably, there are difficult questions that arise in this matter that have not been canvassed by the parties. Similarly, there are procedural questions that have not been addressed or fully considered. That raises issues concerning efficient case management according to the objectives in O 1 r 4A and r 4B RSC but more substantively, also about procedural fairness. Issues have been raised in a general form but they have not been directed in an explicit way to the precise questions that need to be considered.

46 The provisions of the Defamation Act 2005 (WA) are obviously relevant to these considerations. The Act abolished the distinction between slander and libel but in doing so, it introduced a defence of triviality under s 33. That section provides that, 'it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm'. The Act also introduced a requirement that in awarding damages in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s 34.

47 The provisions of the Act and in particular, s 33 were not raised by either party in the course of the hearing of the application. I have raised the possibility that the defence of triviality might apply in the reasons that follow as neither party was represented and in my view, the public interest in the efficient administration of justice requires the court to assist the parties in identifying the legal issues that may be relevant to resolving their dispute.

48 I am prepared to grant Ms Bradley an extension of time within which to bring her application having regard to the various considerations that have been identified. It is clearly in the best interests of the parties and in the public interest that any issue arising in the proceedings that can be disposed of summarily be determined in that way. It accords with the

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case management objectives in O 1 r 4A and r 4B RSC that an extension of time be granted.

The communications with Ms Sutton

The allegations as to what was communicated

49 The indorsement to the writ alleges, by reference to a statement said to have been made by Ms Sutton, that Ms Bradley told Ms Sutton that Mr Prefumo 'was going to get' Ms Sutton. That statement was made in Ms Sutton's application for the family violence intervention order: 'at the end of March 2010 I was informed by [Mr Prefumo's] sister that he was "going to get me"'.

50 Mr Prefumo also reproduced in his affidavit of 7 October 2010 what he alleged was part of Ms Sutton's evidence at the hearing of her application for the intervention order. It may be inferred from Mr Prefumo's account that Ms Sutton produced to the court an email from Ms Bradley in which it was stated that Mr Prefumo was a 'danger to the community'. That statement was not referred to in the indorsement to the writ but I do not consider that the application should be approached in an overly technical way for the reasons that have already been given. In any event, Mr Prefumo would be given leave to amend if the only issue was whether a claim that he wished to make by reference to his affidavit of 7 October 2010 fell within the matters pleaded in the indorsement.

51 Ms Bradley did not make any submission concerning this part of Mr Prefumo's indorsement and subsequent affidavit. She has not produced the email (assuming that it can still be accessed in an electronic form or has been retained in hard copy), Mr Prefumo has not requested that it be produced and he has not produced the transcript of the hearing in which Ms Sutton apparently referred to the email. The parties have not given discovery.

52 In summary, the position in relation to the communications allegedly made by Ms Bradley to Ms Sutton is that:

(a) There are seemingly two statements allegedly made by Ms Bradley to Ms Sutton that Mr Prefumo regards as being defamatory of him. One statement was apparently made in an email. There is no evidence on whether the other statement was made orally or in writing.

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(b) Ms Bradley did not admit the allegation made in the indorsement to the writ that she stated to Ms Sutton that Mr Prefumo was going to get Ms Sutton. She has not so far denied sending an email to Ms Sutton stating that Mr Prefumo was a danger to the community.

(c) There was no evidence of the context in which the statements alleged were made.

Are the communications allegedly made with Ms Sutton capable of conveying a defamatory meaning?

53 The question whether the statements allegedly made by Ms Bradley to Ms Sutton are capable of communicating a defamatory meaning can only be tentatively posed. There is no direct evidence of the statements and Mr Prefumo has not identified the defamatory imputations that he alleges were communicated by the statements.

54 The question of whether the statements allegedly made by Ms Bradley are capable of conveying a defamatory meaning is a question of law; whether they did actually convey the meaning alleged is a question of fact to be decided following a trial. It is necessary to consider the context, circumstances and mode of publication and to have regard to the whole of what was published to determine both questions. However, it may be possible to deal in a summary application with the question of whether statements made by a defendant are capable of conveying a defamatory meaning if all of the relevant evidence is available.

55 I would incline to the view for the purpose of this application that each of the statements to which Mr Prefumo has referred in the indorsement and his affidavit of 7 October 2010 are capable of conveying a defamatory meaning on the evidence presently available. However, I am prepared to allow Ms Bradley a further opportunity (if she chooses) to argue on her application that the statements alleged are not capable of conveying a defamatory meaning with the benefit of orders designed to assist in putting the relevant evidence before the court. I am prepared to adopt that course having regard to the considerations that have been identified as guiding the approach to be taken to her application.

A defence of triviality?

56 The possibility of a defence under s 33 of the Defamation Actin relation to the communications Ms Bradley allegedly made to Ms Sutton was not raised but, in my view, the defence might apply. For example, in

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Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, 15 August 1997) Badgery-Parker J observed in relation to the defence that:

The major circumstances of a publication (apart from its content) which are likely to be such as to render it unlikely that the plaintiff would suffer harm are the extent of the publication of the defamatory material, the nature of the recipients, and the relationship, if any, between the recipients and the plaintiff. It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed.

57 I propose to give Ms Bradley an opportunity to indicate whether she wishes to raise the defence as a ground for summary dismissal of that part of Mr Prefumo's action that concerns the communications allegedly made with Ms Sutton. Again, the approach to the application that has been identified favours such a course.

58 In the circumstances, it is not appropriate that I elaborate on why I propose to give Ms Bradley the opportunity to indicate whether she relies on the defence other than to note the following matters:

(a) Each alleged communication was made to only one other person. It was Ms Sutton who republished the communication to others (and then on an occasion of absolute privilege).

(b) It appears that Ms Bradley and Ms Sutton had long been estranged from Mr Prefumo. The alleged statements were apparently made between friends in a domestic context.

(c) The alleged statements apparently take their colour from that domestic context.

59 Ms Bradley has not raised a defence of qualified privilege in relation to her communications with Ms Sutton.

Ms Bradley's communications with the Osborne Clinic

60 As has been explained, the subpoenaed documents that have been made available for inspection by the parties establish that Ms Bradley did contact the Osborne Clinic concerning Mr Prefumo's mental health. However, Mr Prefumo was unable to further identify what Ms Bradley said to the Clinic from those documents. Ms Bradley admits speaking to the Clinic to express concerns about Mr Prefumo's behaviour but she has

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not provided evidence of exactly what she said other than in the one document that was the subject of a claim for immunity by the Department but which was inadvertently shown to Ms Bradley when she inspected the documents produced by the Department.

61 It is convenient to determine the claim by the Department that the unedited documents were immune from inspection by the parties on public interest grounds before further considering Ms Bradley's application to strike out that part of Mr Prefumo's action that concerned her communications with the Osborne Clinic.

The subpoena and the claim of public interest immunity

The relevant principles

62 In The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34, the Court of Appeal noted the following principles relevant to a claim for public interest immunity:

(a) The court will not order the production of information or a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it [30];

(b) An objection may be made to the production of information or a document because it would be against the public interest to disclose its contents or because it belongs to a class of documents which in the public interest ought not to be produced [31];

(c) Public interest immunity cannot be waived but the immunity is not absolute. It has to be weighed in the balance with the competing public interest in the due administration of justice [32].

63 The principles generally relevant to determining a claim for public interest immunity were also summarised in more detail by Debelle J in Adelaide Brighton Cement v State of South Australia (1999) 75 SASR 209 at [9] (and see Sands v The State of South Australia (No 2) [2010] SASC 340). I will not reproduce his Honour's summary of the effect of the authorities that he reviewed. However, I have had regard to the principles that he identified in determining the Department's claim and Mr Prefumo's request for access to the unedited documents.

The statutory framework

64 Dr Gibson's affidavit provided only limited evidence concerning the statutory framework within which the Osborne Clinic operated. He

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referred to s 18 of the Hospitals and Health Services Act. That section specifies the functions to be performed by a hospital board constituted under s 15 of the Act. The definition of 'hospital' in the Act is broad (see s 2 and also s 4, in relation to hospitals authorised under the Mental Health Act). However, there was no evidence that the Osborne Clinic operated under the control of a hospital board. Rather, Dr Gibson stated that the Clinic formed part of the NMAHS. That Service did not appear to have any statutory basis; it was apparently created by executive decision and as part of the internal organisation of the Department.

65 Dr Gibson also referred to s 5 to s 7 of the Mental Health Act. Sections 5 and 6 concern the objects of the Act and the objectives of those who perform functions under the Act. Section 7 specifies the functions of the Minister administering the Act. Those functions include to:

(a) promote the development and co-ordination of services to the care and treatment of persons who have mental illnesses;

(b) promote the integration of, and co-operation between, health and welfare services at State, regional and local levels;

(c) encourage the development within the community of services emphasising the prevention of mental illness and the early detection and treatment of mental illness.

66 There are other aspects of the Mental Health Act that should be noted. The preamble to the Act states that it is an Act to 'provide for the care, treatment, and protection of persons who have mental illnesses, and for related purposes'. The objects of the Act include:

(a) ensuring that persons having a mental illness receive the best care and treatment with the least restriction of their freedom and the least interference with their rights and dignity;

(b) ensuring the proper protection of patients as well as the public;

(c) minimising the adverse effect of mental illness on family life.

67 Consistent with those objectives, the Act contains numerous provisions designed to protect persons suffering from mental illness and to regulate their treatment. For example, pt 2 div 2 provides for the appointment of a chief psychiatrist who has responsibility for the mental care and welfare of all involuntary patients. In relation to other patients, the chief psychiatrist is required to monitor the standards of psychiatric
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care throughout the State (s 9). The chief psychiatrist is subject to the general direction and control of the Commissioner of Health appointed under the Public Service Management Act 1994 (WA): s 11. Part 2 div 3 provides for a register of psychiatrists and by div 4, public hospitals may be authorised to receive and admit persons as involuntary patients under the Act. Part 3 of the Act concerns involuntary patients and pt 5 contains provisions regulating certain forms of treatment, including emergency psychiatric treatment. Part 6 of the Act provides for the establishment of the Mental Health Review Board which has powers of review and enquiry in respect of the matters referred to in s 142 and s 146 of the Act. Finally, pt 7 of the Act contains provisions for the protection of patient's rights.

68 I accept Dr Gibson's evidence as earlier summarised and that the functions performed by the Clinic give effect to a 'long standing government policy of providing mental health services through the public health system' and that the provision of those services also gives effect to the 'important public policy and clinical objectives of identifying people who require mental health services, including those who may be at risk of causing harm to themselves, to others or to property' (pars 10 and 11). However, I have been unable to identify any provision in the legislation that obliges the executive arm of government to provide mental health services. The Mental Health Act does not confer on any person or body the statutory duty of providing those services and in particular, services of the kind that, according to Dr Gibson, are provided by the Osborne Clinic. In short, there was nothing in the Hospital and Health Services Act or the Mental Health Act that established that the NMAHS and the Osborne Clinic were discharging a statutory duty or performing an express statutory function: and see the basis upon which Spigelman CJ distinguished the decision of the House of Lords in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 from the circumstances considered in R v Young (1999) 46 NSWLR 681.

The Department's claim for immunity

69 As the Court of Appeal noted in The Australian Statistician, a view has been expressed that public interest immunity only applies in relation to the conduct of governmental functions [33]. The court did not determine the issue but it referred to the decision of the Victorian Court of Appeal in Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22 and expressed a preliminary view that the analysis of Charles JA in that case was consistent with authority and was a correct general statement of the scope of the immunity [34].

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70 In Royal Women's Hospital, the Medical Practitioners Board of Victoria seized under a search warrant a patient's medical records kept at the Royal Women's Hospital. The Victorian Court of Appeal dismissed an appeal from a finding at first instance that public interest immunity did not apply to the documents. However, there were differences between the members of the court on the scope of the immunity and in particular, the required connection between the documents over which the immunity was claimed and the public interest sought to be protected.

71 In his reasons, Charles JA reviewed authorities on the question of whether the immunity was limited to claims for protecting a 'governmental interest' or 'governmental functions'. The authorities reviewed included R v Young,in which the majority of the New South Wales Court of Appeal held that medical records retained by the New England Area Health Service and comprising notes made by sexual assault and mental health counsellors and psychiatrists were not immune from production in answer to a subpoena on grounds of public interest. The Health Service was part of the New South Wales Department of Health and provided services in the New England area.

72 Spigelman CJ considered that public interest immunity was concerned with the conduct of governmental functions and did not encompass every situation in which it could be said that some form of public policy might be served by the non-disclosure of information [55]. His Honour noted that:

The dividing line between public and private interests is not always easy to draw. Public institutions - relevantly, in the present case, hospitals - provide private services, indistinguishable from the same services provided by private institutions. On the other hand, significant schemes of public regulation are conducted by private institutions, increasingly so over recent years [55].

73 He concluded that 'the "business of the Department of Health" to which reference is made, consists of the provision of sexual counselling services to individuals. This is not governmental in character, even if it supplied by a public institution' [65].

74 A second decision considered by Charles JA in Royal Women's Hospital was that of Cummins J in Clifford v Victorian Institute of Forensic Health[1999] VSC 359. In that case, a claim for public interest immunity over a psychiatric hospital file was upheld. The file was believed to contain an admission made by a mentally ill accused person who had been remanded in custody and compelled to undertake a medical

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examination under the Corrections Act 1986 (Vic). The patient was then coercively placed under the care of a psychiatric in-patient service.

75 In Mok v New South Wales Crime Commission [2002] NSWCA 53, Mason P (with whom Stein JA and Matthews AJA agreed) identified the element of statutory compulsion in Clifford as the point of distinction with the decision in R v Young. His Honour also noted that Clifford involved a 'unique concatenation of facts' and that the situation was 'much less clear once one moves away from them' [29]. He did not express a concluded view on whether the documents before the court attracted the immunity but he recognised that the decision in R v Young established that '[m]edical confidences involving non-incarcerated patients do not form a class of public interest immunity' [31].

76 Charles JA concluded as a result of his review of the authorities in Royal Women's Hospital that, 'public interest immunity is restricted to what must be kept secret for the protection of government at the highest levels and in sensitive areas of executive responsibility, governmental function in this context being defined to include the courts and bodies exercising statutory duties and functions in circumstances analogous to the police informer immunity'. Consequently, a 'governmental interest' was required to establish the immunity [116]. It followed that 'the hospital is … clearly part of the public service and potentially within the reach of public interest immunity, if and insofar as that concept is limited to a "governmental function"'. However, it did not necessarily follow that the hospital was involved in a relevant governmental function in providing medical services [122].

77 His Honour considered that it was unnecessary to decide whether the Hospital's claim attracted the immunity, preferring to determine the appeal on the basis that any public interest expressed in the immunity did not outweigh the public interest in the due administration of justice. He did, however, profess to holding 'substantial reservations' on whether the hospital was entitled to claim the immunity [124].

78 Warren CJ and Maxwell P held that the documents did not fall within a class of documents capable of attracting public interest immunity, although on an analysis of the immunity that was characterised by Mason P in Mok as being more restrictive than the approach suggested by Charles JA. It would appear that it was the narrow interpretation of the circumstances in which the immunity might be claimed that caused the Court of Appeal in The Australian Statistician to hold reservations about the tests proposed by Warren CJ and Maxwell P.

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79 In my view, the weight of authority, particularly for a judge at first instance, is against recognising the Department's claim for immunity in relation to the unedited documents. I can find no point of distinction between the views expressed by Spigelman CJ in R v Young and the other members of the majority in that case and the circumstances disclosed in Dr Gibson's affidavit when read with the relevant legislation. I cannot find a governmental function prescribed by the legislation that is performed by the Osborne Clinic and no basis upon which a subpoena to produce records held by the NMAHS or the Clinic could be distinguished from a subpoena to produce records maintained by a private psychiatric clinic/hospital or a psychiatrist in private practice. Clearly, the circumstances that were found to be persuasive in Clifford do not apply and the recognition in Mok of the proposition established in R v Young that 'medical confidences involving non-incarcerated patients do not form a class of public interest immunity' does apply.

80 That conclusion is sufficient to dispose of the Department's claim for immunity and there is no other basis on which the parties should be denied leave to inspect the unedited documents. However, I will express my view on the other matters that would have been relevant to determining Mr Prefumo's application to inspect the documents in case the finding that the immunity does not arise is later held to be wrong.

81 The court is required to undertake a balancing exercise where a claim for public interest immunity is accepted and disclosure of the information that is the subject of the claim 'gives rise to a real risk of harm to the identified public interest relied on': The Australian Statistician [46]. The court must balance the public interest expressed in the immunity and the public interest in ensuring that courts are not denied access to relevant evidence (whether 'the administration of justice would be frustrated or impaired if the documents were withheld': Alister v The Queen (1983) 154 CLR 404, 412 (Gibbs CJ). The balancing exercise is the last step in the process; that is, the exercise is undertaken only where it appears that both aspects of the public interest must be considered.

82 I have some doubt about whether disclosure of the unedited documents to the parties for the purpose of these proceedings would pose a real risk of harm to the public interest identified and sought to be protected by the Department. However, I do not propose to further consider that question. I will assume that there was a real risk of harm; for example, by reference to the observation of the Court of Appeal in The Australian Statistician that 'the incurring of the identified risk is itself injurious to the public interest' [46]. On that assumption, the

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required balancing exercise favours disclosure of the documents to the parties for the following reasons:

(a) The documents are directly relevant to an issue that is central to the claims made by Mr Prefumo; indeed, it is difficult to see how, in the absence of admissions from Ms Bradley, Mr Prefumo could successfully maintain his claim concerning Ms Bradley's communications with Osborne Clinic if he is denied access to the unedited documents. Plainly, the documents sought by Mr Prefumo satisfy the test that there was a 'real chance' that the documents will assist his case or that it was 'likely' or 'very likely' or 'reasonably probable' that the documents contained information that was material: see CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19 [21].

(b) What is sought to be disclosed is what Ms Bradley said to the Clinic rather than disclosure of the confidences of a stranger to the proceedings. The information to be disclosed is what she already knows and it relates to the mental health of Mr Prefumo. He seeks access to the documents for use in these proceedings and is apparently not concerned about disclosure of information concerning his health for that purpose.

(c) The Department's concern with confidentiality is to minimise the risk of adverse consequences to family members and others from contacting a mental health service to express concern about the well-being of somebody who may be suffering from a mental illness. On Ms Bradley's case, these proceedings are such a consequence. However, the proceedings are unusual. There is no evidence that they were commenced for reasons that included the collateral purpose of obtaining access to the information disclosed by Ms Bradley. It is unlikely that disclosure of Ms Bradley's communications in these proceedings will act as a substantial deterrent to others to contact mental health services.

83 The Department was invited to make further submissions at the hearing of Ms Bradley's application regarding the document that had been inadvertently disclosed to Ms Bradley. The Department rightly contended that Ms Bradley could not waive its immunity. However, the Department recognised that Ms Bradley wished to use the document in her application notwithstanding that it contained information that had been imparted by her in circumstances that it regarded as being confidential. The Department accepted that the fact she was the source of information was
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relevant to the balance to be struck between the public interest it claimed and the public interest in the administration of justice. I ruled at the hearing that Ms Bradley should be permitted to use the document, holding that the public interest in the administration of justice outweighed any public interest of the kind claimed by the Department. The reason for that ruling broadly reflected the reasons that have been given on why the balance between any competing public interests favours disclosure of all documents held by the Department in the circumstances of this matter.

Are Ms Bradley's communications with the Osborne Clinic capable of conveying a defamatory meaning?

84 As with the statements allegedly made by Ms Bradley to Ms Sutton, it is not possible to express a view on whether Ms Bradley's communications with the Osborne Clinic are capable of conveying a defamatory meaning as what she said to the Clinic was not in evidence except for one occasion. Again, I propose to give Ms Bradley an opportunity, if she chooses, to make further submissions on her application about whether each of her communications are capable of conveying a defamatory meaning after she has inspected the unedited documents. It is consistent with the approach to her application that has been identified that she be afforded that opportunity. That is especially so as her contention that the statements she made to the Osborne Clinic were not defamatory was central to her application. I have also taken into account the circumstances in which the Department's claim for public interest immunity came to be finally determined.

85 I have not formed a view about whether the statements attributed to Ms Bradley in the unedited documents are capable of bearing a defamatory meaning. However, some very general observations on that question may assist the parties having regard to the one document that is in evidence and which apparently records what she said to the Osborne Clinic. She is recorded in that document as having stated that she was fearful for Ms Sutton's safety and that Mr Prefumo was 'becoming more delusional'. She claimed Mr Prefumo had sent photographs of burns that he had suffered to neighbours.

86 It might appear odd that statements concerning a person's mental health could today be regarded as defamatory in the light of modern medical and scientific knowledge about mental illness. It would be open to argue that ordinary reasonable people would draw no distinction between mental illness and other forms of ill health. In Mallik v McGeown [2008] NSWCA 230, McColl JA observed that it may once

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have been the case that people with mental disabilities were stigmatised by society but during the 1960s and 1970s more socially tolerant attitudes evolved to 'increase social acceptance and decrease prejudice towards persons with differing abilities'. Consequently, in her Honour's opinion, 'it was open to [a] jury to conclude that contemporary community attitudes in the twenty-first century, were such that ordinary reasonable readers would not think less of the appellant for being described as demented' [56] - [57].

87 On the other hand, a defamatory imputation includes not only an imputation that causes others to think less of a person but also imputations that cause a person to be shunned or avoided. The editors of Gatley on Libel and Slander (11th ed) state that:

It is, for instance, defamatory to say of someone that he is insane, or he is 'not quite responsible for what he does'. It is true that insanity is a misfortune and not a fault, and that a person suffering therefrom is an object of pity or sympathy rather than of hatred, ridicule or contempt. But it is no less true that the tendency of such an imputation is to diminish people's confidence in the claimant and even cause them not to associate with him … Similar considerations apply to statements imputing disease … It can hardly be defamatory of a person to say that he has a bad bout of influenza or hear trouble (except in a context in which that imputes unfitness in his calling) so the line has to be drawn somewhere and it is submitted that (always putting aside the case where the statement carries the imputation of discreditable conduct) a statement relating to a person's physical health should be defamatory whenever ordinary people would, rightly or wrongly, regard it as hazardous to associate with him (2.6).

88 It is not possible to further explore whether the communications made by Ms Bradley to the Osborne Clinic are capable of bearing a defamatory meaning having regard to the kind of considerations briefly referred to above without knowing more about the content of the communications. It is also not possible to assess whether Mr Prefumo's claim is frivolous or vexatious without knowing more precisely what was stated by Ms Bradley to the Clinic. There is only one document in evidence that purportedly records what Ms Bradley stated to the Clinic. It may be possible to make a determination about whether that document is capable of conveying a defamatory meaning for the purpose of a strike out application. However, the other documents apparently recording her contacts with the Osborne Clinic are not in evidence and cannot be considered. Further, those documents might provide relevant context for the document that is in evidence.

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89 One further point should be made in the light of Ms Bradley's submissions in the application. The question of whether Mr Prefumo does suffer from a psychiatric or psychological condition is not relevant to her application. Should that question be relevant to Mr Prefumo's action, it is a matter that could only be decided following a trial.

Qualified privilege and malice

90 Section 30 of the Defamation Act provides for the circumstances in which a defence of qualified privilege may apply. I will not reproduce the section as it is sufficient for the purpose of Ms Bradley's application to note that it is arguable that her communications with the Osborne Clinic were made on an occasion of qualified privilege. However, the defence will be defeated if Mr Prefumo can prove that her statements were actuated by malice (s 30(4)).

91 Ms Bradley maintains that she contacted the Osborne Clinic out of concern for Mr Prefumo. She contends that her motive is established by the documents that have been produced by the Department in answer to Mr Prefumo's subpoena. I do not consider that the documents produced by the Department that are presently in evidence so clearly establish her purpose in contacting the Clinic that Mr Prefumo's claim should be summarily dismissed on the ground that a defence of qualified privilege must succeed.

92 Two competing inferences might be drawn from the timing of her contacts on the evidence presently available. First, that the contacts were made at a time when she was annoyed by Mr Prefumo's conduct towards Ms Sutton. She contacted the Clinic on the day that Ms Sutton was served with Mr Prefumo's District Court writ and later, on the day on which Ms Sutton applied for the family violence intervention order.

93 The alternative inference from those matters is that her contacts were made at a time when Mr Prefumo's actions suggested to her that his mental health was vulnerable and she did, as she claims, contact the Clinic out of a concern for his well-being.

94 Which of those inferences should be drawn is a matter that can only be determined after a trial. There is other evidence that is relevant to the issue that would need to be further considered in a trial - for example, whether as Mr Prefumo alleges, Ms Bradley had no knowledge of his mental state at the time that she contacted the Osborne Clinic. I do not see how that conclusion can be affected by Ms Bradley having the opportunity to tender the unedited documents as part of her application.

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However, I will give her the opportunity to consider whether she wishes to make any further submissions in support of the contention she has previously made that the documents produced by the Department demonstrated that she acted out of concern for Mr Prefumo and not through malice.

The contempt allegation

95 By an affidavit dated 28 December 2010, Mr Prefumo alleged that Ms Bradley had contacted him by telephone 'thus breaching an undertaking of an order PE 809/10 of paragraph (a) which states that the person bound by this order shall not communicate or attempt to communicate by whatever means with the other party'. It was further stated that the 'order' had been made by Magistrate Tavener in court on 26 July 2010 and that 'as [Ms Bradley] was a signatory to this legal written and binding agreement, she has broken the terms of this undertaking order and the law set by the Magistrate's Court of Western Australia'.

96 Mr Prefumo did not file a motion for contempt but he sought a ruling on his allegation at the hearing of Ms Bradley's application (arguing that a decision on the allegation should be made prior to the determination of the application). He filed a document headed 'notice of motion' that was in the form of a letter to my associate on the day following the hearing. The document was accompanied by an affidavit which, among other things, attached a copy of the document to which Mr Prefumo referred in his affidavit of 28 December 2010.

97 That document was apparently in a standard form that I assume is routinely used by the Magistrates Court to facilitate an agreed resolution of applications for a restraining order. In its printed form, the document is headed 'Minute of Consent Order'. However, the heading in the document produced by Mr Prefumo had been amended by hand to read 'Minute of Undertaking'. It had been further amended by hand to indicate that the undertaking that it contained was given by both Mr Prefumo and Ms Bradley. The balance of the document following various hand drawn deletions stated:

The parties in the abovementioned matter have come to an agreement in the following terms:

Each person consents to a undertaking on a without admission of liability basis for a period of five years in the following terms;

THE PERSON BOUND SHALL NOT:

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(a) communicate or attempt to communicate by whatever means with the other person;

…

(d) cause or allow any person to engage in conduct of the type referred to in any of the preceding paragraphs of this order.

98 Ms Bradley provided a response to Mr Prefumo's affidavit in a sworn document headed 'Response to Notice of Motion' and dated 18 April 2011. She admitted contacting Mr Prefumo and sought to explain the circumstances in which that had occurred. She also provided various documents, including an extract from a transcript that apparently recorded the circumstances in which the minute of undertaking came to be made. The extract from the transcript contained the following passage:

So what we'll do is I'm not going to grant your restraining order. There is simply no basis for it. But what I'm concerned is for Mr Prefumo not to react adversely to the situation, and I think we'll achieve an outcome he is looking for by simply a written agreement that you are not to approach him?- - Yes.

That then is - a copy is to be kept by the court. It is not a legal order. It is simply an agreement. If it's breached, then you come back to court for this position? - - That's all right.

99 Mr Prefumo filed a further affidavit on 7 June 2011 in which he repeated an allegation made in his affidavit of 1 April 2011 that Ms Bradley had also breached an order made by me. I assume that this allegation is a reference to an exchange that occurred in court at a directions hearing on 1 December 2010 when Ms Bradley appeared for the first time in person. He did not otherwise respond to the matters that had been stated by Ms Bradley.

100 The parties have filed written material on Mr Prefumo's 'motion' but have not had an opportunity to address the court on the matter. Mr Prefumo indicated in an affidavit made on 7 June 2011 that he did not wish to make any further submissions regarding his allegation. However, Ms Bradley should be given the opportunity to address me if she chooses given the seriousness of an allegation of contempt.

101 Further, the material filed to date by both parties does not deal with questions that are fundamental to Mr Prefumo's complaint:

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(a) whether the minute of undertaking was a court order given what was apparently stated by the learned magistrate at the time that the minute was proposed;

(b) if the minute was not the subject of a court order, was it, nevertheless, an undertaking given to the court or was it only an agreement between the parties;

(c) if the minute was not a court order or an undertaking given to the court, did Ms Bradley nevertheless commit an act of contempt;

(d) did Ms Bradley contravene any direction or order that might have been made on 1 December 2010?

102 A copy of the transcript of the directions hearing held on 1 December 2010 will be provided to the parties to assist them in relation to the last of those questions.

Concluding comments

103 As has been explained, it has not been possible to properly consider Ms Bradley's application as critical parts of the evidence were not available. That would ordinarily result in the application being dismissed as Ms Bradley carries the onus of persuading the court to allow her application. However, the nature of the proceedings and the relationship between the parties is such that I think that Ms Bradley should be given the opportunity to further argue her application if she chooses in the light of the rulings and comments made in these reasons.

104 I will order that there be a directions hearing as soon as conveniently possible following publication of these reasons. I will take submissions from the parties on the proposals that are foreshadowed in what follows at that directions hearing. I will also make directions at the hearing for the further conduct of Mr Prefumo's 'motion' for contempt.

105 The Department must be given time to consider the finding that has been made concerning its claim for immunity. Further, the conduct of the proceedings in the immediate future may be affected by any appeal commenced by the Department.

106 I propose that the parties be granted access to the unedited documents from midday, 23 September 2011 if there is no application by the Department for a stay in the interim. That ought to provide the Department with sufficient time to consider its position. The parties should understand that documents produced under a subpoena can only be

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used for the purpose of the court proceedings in which the subpoena was issued. The documents must not be used for any other purpose.

107 I would further propose that there should be another directions hearing at a time convenient to the parties but approximately seven days after the parties have had access to the unedited documents (assuming that access is given). That will provide Ms Bradley with time to determine whether she wishes to proceed further with her application after reviewing the unedited documents and these reasons. She may, of course, wish to abandon her application so as to allow Mr Prefumo's action to proceed directly to trial and it is important for the parties to appreciate that the court will only strike out an action where it is clear that there is no reasonable cause of action or that the proceedings are frivolous or vexatious or otherwise an abuse of process. Nevertheless, she should be given an opportunity to consider her position by reference to the evidence of what was actually said by her and with the benefit of these reasons. That is not, of course, to indicate that I have formed a view that is favourably disposed to the application. It is simply to recognise the particular circumstances of this matter.

108 If the application is to proceed, Ms Bradley should be required to produce any hard copy version of any email that she sent to Ms Sutton that she still retains or can access and which was referred to by Ms Sutton in the evidence she gave at the hearing of her application for a family violence intervention order. Mr Prefumo should be required to provide a copy of any transcript of that hearing that is in his possession. Directions would be made for further evidence and submissions.