Prefumo v Bradley [No 2]
[2012] WASC 76
•7 MARCH 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PREFUMO -v- BRADLEY [No 2] [2012] WASC 76
CORAM: CORBOY J
HEARD: 30 SEPTEMBER & 30 NOVEMBER 2011
DELIVERED : 7 MARCH 2012
FILE NO/S: CIV 1924 of 2010
BETWEEN: LOUIS MARCEL ANGELO GILBERT PREFUMO
Plaintiff
AND
ARRIADNE MARIE NOELLE BRADLEY
Defendant
Catchwords:
Practice and procedure - Application to strike out indorsement to writ in defamation action - No new principles - Turns on its own facts
Contempt - Whether an undertaking was an order or an agreement between the parties - No new principles - Turns on its own facts
Legislation:
Magistrates Court Act 2004 (WA), s 15
Result:
Plaintiff's motion for contempt dismissed
Defendant's application to strike out action dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: In person
Solicitors:
Plaintiff: In person
Defendant: In person
Case(s) referred to in judgment(s):
Kassebaum v Kassebaum (1973) 5 SASR 411
Prefumo v Bradley [2011] WASC 251
Re Perry; Ex parte Griffith (1931) 34 WALR 66
CORBOY J:
Introduction
Mr Prefumo alleges that he was defamed by statements made by his sister, Ms Bradley, in an email sent 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).
Various applications have been made by Mr Prefumo and Ms Bradley:
(a)Ms Bradley applied to strike out the action on the ground that the indorsement to the writ disclosed no reasonable cause of action or was frivolous or vexatious or was otherwise an abuse of process;
(b)Mr Prefumo sought access to documents that he had subpoenaed from the Department of Health and in respect of which the department had claimed public interest immunity;
(c)Mr Prefumo alleged that Ms Bradley had committed a contempt by breaching an order made by the Magistrates Court and/or by this court.
Those applications were considered in Prefumo v Bradley [2011] WASC 251. I concluded that:
(a)the parties should be given access to the documents that had been subpoenaed by Mr Prefumo;
(b)the parties should be given a further opportunity to make submissions on Ms Bradley's application with the benefit of the documents that had been subpoenaed by Mr Prefumo;
(c)Mr Prefumo's motion for contempt should be programmed for a hearing.
A further hearing of Ms Bradley's application and Mr Prefumo's motion was subsequently held. I have concluded following that hearing that Ms Bradley's application and Mr Prefumo's motion should be dismissed.
The application to strike out the action
The circumstances relevant to Mr Prefumo's allegations that he was defamed by Ms Bradley were described in Prefumo v Bradley. The approach taken to Ms Bradley's application and the principles to be applied were also explained in that decision.
The issues remaining in Ms Bradley's application
The issues that were left open for further argument on Ms Bradley's application were whether:
(a)the statements made by Ms Bradley to Ms Sutton were capable of conveying a defamatory meaning as a matter of law;
(b)whether the defence of triviality under s 33 of the Defamation Act 2005 (WA) was available in respect of the statements allegedly made by Ms Bradley to Ms Sutton and if so, whether that part of Mr Prefumo's claim that concerned those statements should be summarily dismissed on that ground;
(c)whether the statements allegedly made by Ms Bradley to the Osborne Clinic were capable of bearing a defamatory meaning as a matter of law;
(d)whether Mr Prefumo's claim in relation to those statements should be summarily dismissed on the ground that they were made on an occasion of qualified privilege or whether it was arguable that the statements were made maliciously (as Mr Prefumo contended).
Following the publication of my reasons in Prefumo v Bradley, Mr Prefumo made affidavits on 6 and 11 October 2011 that were relevant to Ms Bradley's application and Ms Bradley provided further written submissions.
The statements allegedly made by Ms Bradley to Ms Sutton
Ms Bradley did not address in her further written and oral submissions any issue that was raised in my reasons in Prefumo v Bradley about the statements she allegedly made to Ms Sutton.
I indicated in Prefumo v Bradley that I was inclined to the view for the purpose of the strike out application that the statements allegedly made by Ms Bradley to Ms Sutton were capable of conveying a defamatory meaning. I remain of that view and consider that Mr Prefumo's claim that he was defamed by the statements alleged cannot be struck out as disclosing no reasonable cause of action or as being frivolous or vexatious or otherwise an abuse of process. It is reasonably arguable that the statements were capable of defaming Mr Prefumo as a matter of law. Whether they were capable of conveying a defamatory meaning (assuming that they were made) and whether they did, in fact, defame Mr Prefumo will depend, at least in part, on the context in which the statements were made. In the ordinary course, the context in which the statements were made would be the subject of evidence and findings made at trial.
I identified in Prefumo v Bradley some matters that were relevant to the question of whether a defence of triviality might apply. Those matters indicate that, again, the context in which the relevant defamatory statements were made will be significant for the application of the defence. There are likely to be instances where what was stated by a defendant and the circumstances in which the statements were made clearly indicate that the defence should be applied to summarily dismiss a defamation claim. However, in this case the statements were allegedly made in a context that involved legal proceedings between Mr Prefumo and Ms Sutton. I would allow the defence to be raised but the question of whether it applies should be determined at trial on findings about all of the relevant circumstances.
The statements allegedly made to the Osborne Clinic
Ms Bradley does not dispute that she communicated with the Osborne Clinic about Mr Prefumo. Her contacts with the clinic were recorded in notes produced by the Department of Health in answer to Mr Prefumo's subpoena.
Ms Bradley's submissions following the publication of my reasons in Prefumo v Bradley focussed on the question of whether she was motivated by malice in communicating with the clinic (as Mr Prefumo alleges in response to a claim that any statement made by Ms Bradley to the clinic was privileged). Ms Bradley emphatically denies that allegation and maintains that she was motivated by a concern for Mr Prefumo's well-being. She disputes the accuracy of at least one part of the notes produced by the Department. She has given an explanation for the circumstances from which Mr Prefumo contends an inference of malice should be drawn.
The matters raised by Ms Bradley in her further submissions concern the facts surrounding her communications with the Osborne Clinic. There is a conflict over the inferences to be drawn from those facts that can only be determined by a trial. As I explained in Prefumo v Bradley, Mr Prefumo has identified an evidentiary basis for his allegation that Ms Bradley was motivated by malice. The evidence given by Ms Bradley and her further submissions do not establish that the allegation is so lacking in foundation that the claim should be summarily dismissed.
I also consider that it is arguable that the statements allegedly made by Ms Bradley to the Osborne Clinic are capable of bearing a defamatory meaning as a matter of law for the reasons given in Prefumo v Bradley. Ms Bradley made no further submissions on that aspect of her application following the publication of my reasons. It will be necessary to determine in a trial what statements were actually made by Ms Bradley to the clinic and then, to decide whether the statements found to have been made were capable of defaming Mr Prefumo and if so, whether they did, in fact, defame him.
Mr Prefumo's motion for contempt
The circumstances surrounding the motion were also described in Prefumo v Bradley. In addition to the matters referred to in my reasons, it is necessary to note that on 1 December 2010, Mr Prefumo and Ms Bradley agreed at a directions hearing in this court to vary the undertakings that they had given to not communicate with each other so as to permit communications for the purpose of these proceedings. The variation was required as they were each unrepresented.
The contempt alleged by Mr Prefumo is that Ms Bradley contacted him by telephone on 28 December 2010. Ms Bradley admits that she contacted Mr Prefumo by telephone but states that she did so in an attempt to resolve this action. She contends that her communication was within the variation that had been agreed on 1 December 2010. Mr Prefumo alleges that Ms Bradley referred to Ms Sutton in the conversation and I infer, he disputes that the purpose of the conversation was to communicate about these proceedings.
At common law, a superior court of record possessing unlimited jurisdiction has supervisory jurisdiction to deal with a contempt of an inferior court (the jurisdiction forms part of the inherent jurisdiction of a superior court). There has been some difference in the authorities as to whether that jurisdiction extends to civil contempt or is confined to criminal contempts: see, for example, Kassebaum v Kassebaum (1973) 5 SASR 411 and the commentary in Laws of Australia at 10.11.230. Re Perry; Ex parte Griffith (1931) 34 WALR 66 is an example of the Full Court of this court exercising such a supervisory jurisdiction. The Full Court held that a person had committed a contempt of the Local Court by threatening a law clerk who was attempting to serve a Local Court summons and that the Full Court had jurisdiction to deal with the contempt. Northmore ACJ noted that:
It has been decided in a number of cases that there is jurisdiction in this court to deal in a summary way with a contempt of an inferior court which cannot be dealt with by that court itself (emphasis added). (66)
Sections 15 and 16 of the Magistrates Court Act 2004 (WA) confer power on the Magistrates Court to deal with contempts as defined by s 15. Section 15(3) provides that a person is guilty of a contempt of the court if the court makes a lawful order ordering a person to do an act (other than to pay money) or to cease (temporarily or permanently) doing an act and that person, without reasonable excuse, does not comply with the order.
It is not clear whether those provisions were intended to confer exclusive jurisdiction on the Magistrates Court to deal with contempts of its own procedures or whether this court retains its supervisory jurisdiction following the enactment of the Magistrates Court Act. However, I do not propose to determine that question. The alleged contempt in this instance relates to a matter that occurred in the course of proceedings in the Magistrates Court and the allegation is that Ms Bradley breached an order made by that court. The Magistrates Court has power to deal with contempts and it is the appropriate forum for dealing with any allegation of a contempt of its procedures. That would be so even if this court retains a supervisory jurisdiction to punish for contempt of the Magistrates Court and its procedures.
However, Mr Prefumo further alleges that Ms Bradley breached an order of this court by contacting him and it is necessary to consider the effect of what occurred in the Magistrates Court to determine that allegation.
I do not consider that the learned magistrate made an order but rather, Mr Prefumo and Ms Bradley agreed as between them that they would not communicate with each other as a means of resolving the dispute that had arisen and which was the subject of the proceedings that had been commenced by Mr Prefumo. Consistent with that view, they were asked at the directions hearing in this court to agree to vary their mutual undertakings. They agreed to that variation and the court did not make an order but merely noted their agreement.
I have no doubt that the learned magistrate did not make an order; that is clear from the transcript of the hearing at which the undertaking was agreed and from the form of the undertaking. The relevant passage from the transcript was reproduced in Prefumo v Bradley [98]. The learned magistrate expressly stated that he was not making a restraining order as there was 'simply no basis for it'. He suggested some form of agreement as he was concerned that Mr Prefumo 'not … react adversely to the situation'. He stated that the document recording the mutual undertakings was not a 'legal order'; it was 'simply an agreement'.
The variation of the undertakings at the directions hearing in this matter did not operate as a further order as there had been no order made by the learned magistrate. All that occurred was that Mr Prefumo and Ms Bradley agreed to vary their previous agreement. That was all that was intended by the court.
As I have indicated, I have no doubt that the learned magistrate did not make an order. However, any doubt about that matter must be resolved in favour of Ms Bradley. A party can only be held in contempt of a court order where the terms of the order are clear; it follows that there must also be no doubt that an order was made.
The future conduct of this action
It is apparent that the relationship between Mr Prefumo and Ms Bradley as brother and sister has broken down completely. However, defamation proceedings are not an appropriate vehicle for playing out whatever grievances may explain their estrangement. It is clear that the proceedings are causing Ms Bradley, in particular, stress. Those matters do not provide a legal reason for the action being dismissed but they do mean that the action should not be permitted to go to trial unless the court is satisfied that there is no alternative means of resolving the dispute. Mediation was previously ordered but the order was vacated as Ms Bradley indicated that there was no point in convening a mediation conference given what she perceived to be Mr Prefumo's demands for settling his claims. However, the nature of the proceedings are such that the public interest in the efficient allocation of the court's limited resources requires the court to be satisfied that the action cannot be resolved through mediation before it can be allowed to be listed for a trial.
It will be necessary for some interlocutory steps to be completed if the matter cannot be settled by mediation. Mr Prefumo will be required to identify the defamatory imputations that he contends were conveyed by the statements allegedly made by Ms Bradley. It will be necessary to confirm the matters that Ms Bradley relies on in her defence and there will need to be discovery given of any documents held by the parties that have not already been disclosed.
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