Prefumo v Bradley [No 2] - [2012] WASC 76

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Prefumo v Bradley [No 2]

Details

AGLC: Prefumo v Bradley [No 2] [2012] WASC 76
Case: [2012] WASC 76
Decision Date: 7 MARCH 2012

CaseChat Overview and Summary

The case of Prefumo v Bradley [No 2] involved the plaintiff, Prefumo, seeking to strike out an indorsement to the writ in a defamation action brought against Bradley. The dispute centred on whether the indorsement could be struck out as it did not disclose a cause of action and whether the court should consider new principles of law in making its decision. The matter was heard in the Supreme Court of Queensland. The legal issues before the court were whether the indorsement to the writ disclosed a cause of action and whether the court should consider any new principles of law when deciding the matter. The court found that the case did not involve any new principles of law and that the decision turned on its own facts. The court held that the indorsement did disclose a cause of action, and therefore the application to strike out was dismissed. The court also found that the undertaking in question was not an order or an agreement between the parties, and therefore the application for contempt was dismissed. The reasoning of the court was based on the facts of the case and the existing principles of law, rather than any new principles that may have been argued by the parties. The outcome of the case was that the application to strike out the indorsement to the writ was dismissed, and the application for contempt was also dismissed. The court held that the indorsement did disclose a cause of action and that the undertaking in question was not an order or an agreement between the parties.

Orders