Prefumo v Bradley [No 3]

[2013] WASC 56

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PREFUMO -v- BRADLEY [No 3] [2013] WASC 56

CORAM:   CORBOY J

HEARD:   20 DECEMBER 2012

DELIVERED          :   28 FEBRUARY 2013

FILE NO/S:   CIV 1924 of 2010

BETWEEN:   LOUIS MARCEL ANGELO GILBERT PREFUMO

Plaintiff

AND

ARRIADNE MARIE NOELLE BRADLEY
Defendant

Catchwords:

Vexatious proceedings - Application under the Vexatious Proceedings Restriction Act 2002 (WA) to stay proceedings - No new principles - Turns on its own facts

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA), s 4(1)

Result:

Application 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):

Prefumo v Bradley [2011] WASC 251

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

Prefumo v Sutton [2011] WASC 151

Vollaire (Sutton) v Prefumo [2011] WADC 59

CORBOY J: 

The application

1. Mr Prefumo alleges that his sister, Ms Bradley, defamed him by statements that she made to unidentified persons at the Osborne Park Adult Community Mental Health Clinic (the Osborne Clinic) and to Mr Prefumo's former spouse, Ms Sutton.  The detail of Mr Prefumo's allegations and the issues that are raised by his claim were explained in Prefumo v Bradley [2011] WASC 251 and Prefumo v Bradley [No 2] [2012] WASC 76.

2. Ms Bradley has applied under s 4(1) of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) for an order staying the whole of the proceedings commenced by Mr Prefumo. She also seeks an order prohibiting Mr Prefumo from instituting further proceedings without the leave of a court or tribunal.

3. I have concluded that Ms Bradley's application should be dismissed having regard, in particular, to the findings that were made in Prefumo v Bradley and Prefumo v Bradley [No 2] - that Mr Prefumo's claim disclosed a reasonable cause of action and was not vexatious or frivolous or an abuse of process.

The grounds on which the application was made

1. Ms Bradley made three affidavits that were relevant to her application. She referred to the decision of Sleight DCJ in Vollaire (Sutton) v Prefumo [2011] WADC 59 in her first affidavit made on 10 August 2012. That decision concerned an application made by Ms Sutton for a declaration and orders under s 4 of the Act. The circumstances in which Ms Vollaire made her application and his Honour's decision are considered later in the reasons.

2. Ms Bradley stated in her second affidavit, also made on 10 August 2012, that:

   (a)she believed that there was no merit in the claim made by Mr Prefumo and his claim failed to disclose a cause of action (par 2);

   (b)Mr Prefumo had been unable to substantiate any 'facts of Law or Malice in any of his allegations' over a period of 25 months (par 3);

   (c)Mr Prefumo had delayed proceedings by bringing new allegations against Ms Bradley 'instead of providing to the Courts Facts of Malice stated to the Mental Health which is Qualified Privilege' (par 4);

   (d)Mr Prefumo had relied on transcripts of court proceedings and notes made by Osborne Clinic staff that contained hearsay (par 5);

   (e)Mr Prefumo was persecuting Ms Vollaire and had failed to establish his allegations of defamation against Ms Bradley (par 6);

   (f)Mr Prefumo had made statements at interlocutory hearings about the possibility of being represented that had not substantiated (par 8);

   (g)Mr Prefumo lacked the evidence required to substantiate his allegations of malice and the proceedings should be stayed until he provided proof of his allegations that she had acted out of malice (par 9).

3. In her third affidavit, made on 7 December 2012, Ms Bradley:

   (a)Asserted that Mr Prefumo had a history of threatening people and being violent towards others.  She recounted an incident that apparently had been told to her by her late mother or by a neighbour of her late mother and attached a document that she described as a copy of Mr Prefumo's medical history.  Ms Bradley had apparently compiled the document as it incorporated her comments on some of the matters that were recorded (par 2).

   (b)Further asserted that she had contacted the Osborne Clinic out of a concern that Mr Prefumo should receive 'proper treatment' for what she regarded as his illness rather than out of malice (par 3).

   (c)Stated that Mr Prefumo's 'actions' had 'interrupted' her ability to maintain her employment and had affected a post‑stress traumatic disorder from which she suffered (par 4).

   (d)Alleged that Mr Prefumo had made threatening telephone calls to her on 27 and 28 October 2012.  As a result, she had applied to the court for an order to 'stop the harassment, extortion and blackmailing threats' from Mr Prefumo.  She had subsequently applied to the Magistrates Court for a violence restraining order against Mr Prefumo.  He had attempted to contact her by telephone notwithstanding that order.  Mr Prefumo had been arrested, presumably for breaching the violence restraining order (pars 5 ‑ 14).

   (e)Asserted that Mr Prefumo had not been able to provide a statement of claim that supported his allegations and that he had no means to pay any court costs or any costs that might be awarded in favour of Ms Bradley (par 17).

4. Ms Bradley was represented at the hearing of her application.  It was contended in written submissions provided in support of the application that:

   (a)It was in the public interest for Mr Prefumo to be 'restricted in view of his history and his propensity to be litigious'.  It was said that an order made under the Act would protect both Mr Prefumo and the public as he would be required to obtain leave before commencing proceedings against family members and others (par 6).

   (b)A report by a family member to the appropriate medical authorities seeking assistance in relation to Mr Prefumo's behaviour could not be regarded as malice and 'the court has had the opportunity over the past two years to assess the plaintiff and the manner in which he behaves' (par 7).

   (c)The claim made by Mr Prefumo failed to disclose a reasonable cause of action and was an abuse of the court's process as 'the plaintiff is conducting a vendetta against any party who disagrees with his actions by virtue of the various matters referred to in the Vollaire action' (par 8).

   (d)Ms Bradley was one of the group of people that Sleight DCJ had intended to protect by the orders made in Vollaire (Sutton) v Prefumo (par 9).

   (e)Mr Prefumo had indicated that he wished to have his claim tried before a jury.  He had been advised as to the costs that he would be required to pay, but had taken no steps to arrange for payment or to have the action listed for trial (par 12).

Mr Prefumo's position

1. Mr Prefumo advised that he would be unable to attend court for the hearing of Ms Bradley's application until some time in early 2013 as a result of injuries that he had sustained from an assault.  A request was made for further details of the injuries that he had suffered and a medical certificate.  I concluded from reviewing the certificate subsequently provided by Mr Prefumo and from his description of the injuries that he ought to be fit to attend court in December 2012.  The application was listed on that basis. 

2. Mr Prefumo did not attend the hearing of the application.  I advised Ms Bradley's counsel that I would refer any matter to Mr Prefumo that I considered necessary to ensure that procedural fairness was accorded, notwithstanding his failure to attend and the view that I had formed regarding his fitness to appear (see s 4(3) of the Act).  However, it has not been necessary to take that step. 

The Act

1. Section 4 of the Act provides that the court may stay the whole or part of any proceedings that have been instituted by a person if it is satisfied that a person has instituted or conducted vexatious proceedings or it is likely that the person will institute or conduct vexatious proceedings. 

2. The term 'vexatious proceedings' is defined by s 3 of the Act to mean proceedings which are abuse of the process of a court or which were instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose or which were instituted or pursued without reasonable grounds or had been conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve some other wrongful purpose.  The term 'institute proceedings' is defined to include, in the case of civil proceedings, 'the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced against a party'.

3. Le Miere J explained in Attorney-General v Michael [2005] WASC 203 the approach to be taken to an application for orders under s 4 of the Act. I will not repeat his Honour's observations at [13]. However, I have applied those observations when considering Ms Bradley's application.

Determination of the application

1. Ms Bradley's application rested primarily on three grounds:

   (a)Mr Prefumo's claim lacked merit.  This ground was formulated in various ways:  the claim failed to disclose a reasonable cause of action; Mr Prefumo had not substantiated his claim with evidence; and Mr Prefumo could not succeed at trial as Ms Bradley had not acted out of malice in contacting the Osborne Clinic and/or Mr Prefumo did not intend to call the evidence required to prove his claim.

   (b)Sleight DCJ had held that Mr Prefumo was a 'vexatious litigant' in Vollaire (Sutton) v Prefumo and Ms Bradley was entitled to the protection afforded by the Act.

   (c)Mr Prefumo had behaved in such a way that the proceedings should be stayed, particularly given the effect that his behaviour has had on Ms Bradley. 

The contention that the claim lacked merit

1. It was held in Prefumo v Bradley and Prefumo v Bradley [No 2] that Mr Prefumo's claim disclosed a reasonable cause of action and was not frivolous or vexatious or otherwise an abuse of process.  In particular, it was found that:

   (a)the statements allegedly made by Ms Bradley to staff at the Osborne Clinic and to Ms Sutton were arguably defamatory;

   (b)arguably, the statements allegedly made by Ms Bradley to the Osborne Clinic were made on an occasion of qualified privilege;

   (c)if so, it was also arguable that Ms Bradley had been actuated by malice in making the statements.

2. Those findings were made on an application by Ms Bradley to strike out Mr Prefumo's claim.  The affidavits made by Ms Bradley in support of the present application did not refer to the earlier findings made on her strike-out application.  Somewhat surprisingly, the submissions made at the hearing of her application also did not refer to the earlier decisions.  That was notwithstanding that the assertion that Mr Prefumo's claim failed to disclose a reasonable cause of action was inconsistent with those decisions.  The finding that Mr Prefumo's claim disclosed a reasonable cause of action and was not vexatious or frivolous or an abuse of process was obviously relevant to Ms Bradley's application having regard to the statutory definition of 'vexatious proceedings'.

3. Further, it was not correct to say that Mr Prefumo has not substantiated his allegation that Ms Bradley acted out of malice in contacting the Osborne Clinic.  As I have indicated, the question of whether it was open for Mr Prefumo to raise malice in answer to Ms Bradley's claim of privilege was considered in Prefumo v Bradley and Prefumo v Bradley [No 2].  Mr Prefumo identified facts, which if proved at trial, could support an inference that Ms Bradley had been actuated by malice. 

4. Accordingly, Mr Prefumo has already substantiated his allegation of malice to the extent necessary to successfully resist an application for summary dismissal of his claim.  As I endeavoured to explain in Prefumo v Bradley and Prefumo v Bradley [No 2], the question of whether Mr Prefumo is able to establish that Ms Bradley acted out of malice can only now be determined by a trial.  Mr Prefumo is not required to produce further evidence in advance of the trial other than in complying with any direction that might be made about the conduct of the trial.  How he intends to actually prove his allegations at trial will be a matter for him (subject to any trial directions that might be made).

5. Other matters raised by Ms Bradley concerning the conduct of the trial have yet to be determined.  However, there is no basis for staying the proceedings on the ground that Mr Prefumo may not be able to meet the court costs of a jury trial.  The trial can be heard by a judge alone if Mr Prefumo can provide the security required.  Similarly, no application has been made by Ms Bradley for security for her costs and she has been unrepresented throughout most of the proceedings.

The decision in Vollaire (Sutton) v Prefumo

1. Sleight DCJ heard Ms Sutton's application for orders under s 4 of the Act in December 2010 and March 2011.  Mr Prefumo had by that time commenced five actions in the District Court, five actions in the Supreme Court and three actions in the Magistrates Court.  It appeared to his Honour that the genesis of a number of those proceedings lay in past matrimonial disputes between Mr Prefumo and Ms Sutton.

2. Sleight DCJ concluded that it was appropriate to make an order under the Act so as to 'provide protection for Ms Vollaire [Sutton]' [66]. His Honour observed that ordinarily an order would only be made affecting Mr Prefumo's capacity to commence proceedings against Ms Sutton without the leave of the court. However, he considered that it was necessary for the order to be made under s 4 of the Act to be more widely expressed if Ms Sutton was to be effectively protected in the manner contemplated by the Act. In his Honour's opinion, Mr Prefumo had commenced proceedings against others that were collateral attacks on orders that had been obtained by Ms Sutton in the Family Court of Western Australia or in the Dandenong Magistrates Court (as to which see Prefumo v Sutton [2011] WASC 151).His Honour referred to these proceedings as providing one instance of such a collateral attack.  Accordingly, his Honour ordered that Mr Prefumo was prohibited from instituting proceedings (as that expression was defined in the Act) against Ms Sutton and various other persons, including Ms Bradley. 

3. It is necessary to note two matters to further explain the effect of the decision of Sleight DCJ on Ms Bradley's application.  First, as has already been mentioned, the Act defines the expression 'institute proceedings' in the case of civil proceedings as 'the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced against a party'.  Consequently, the order made by Sleight DCJ did not affect these proceedings, notwithstanding his observation that they contained a collateral attack on orders that had been made in favour of Ms Sutton by other courts.

4. Second, the collateral attack made in these proceedings to which his Honour referred concerned an allegation by Mr Prefumo that Ms Sutton had defamed him by statements that she had made during a hearing in the Dandenong Magistrates Court.  Mr Prefumo commenced proceedings in this court claiming damages for defamation against Ms Sutton.  That action was struck out as disclosing no reasonable cause of action:  Prefumo v Sutton.  However, there were traces of the claim made against Ms Sutton in the allegations initially made by Mr Prefumo in these proceedings.  It was alleged that Ms Bradley had made statements to Ms Sutton that had been repeated by Ms Sutton during the hearing in the Dandenong Magistrates Court.  It has been already been determined that Mr Prefumo cannot maintain any allegation in these proceedings that he was defamed by Ms Bradley as a result of statements that may have been made by Ms Sutton in the Dandenong Magistrates Court or in any court document that had been prepared by or on behalf of Ms Sutton. 

5. The remaining allegations in these proceedings concern either communications by Ms Bradley to Ms Sutton or the statements allegedly made by Ms Bradley to the Osborne Clinic.  Ms Bradley has not raised any matter in defence of those allegations that would suggest that Mr Prefumo's allegations concerning her communications with Ms Sutton are no more than a collateral attack on orders that were made in other courts.

6. Accordingly, in my view, these proceedings are not affected by the decision of Sleight DCJ in Vollaire (Sutton) v Prefumo and the continuation of the proceedings is not contrary to the protection contemplated by his Honour, particularly as the purpose of the order that was made was to protect Ms Sutton.  That conclusion is reinforced by the fact that I have already found that Mr Prefumo's claim against Ms Bradley is not vexatious or an abuse of process.

Allegations about Mr Prefumo's behaviour

1. Allegations and counter‑allegations have, from time to time, been made in these proceedings regarding the behaviour of Mr Prefumo and Ms Bradley.  Those matters have been dealt with in either this court or the Magistrates Court as appropriate.  So, for example, Mr Prefumo brought a motion for contempt against Ms Bradley that was dealt with in these proceedings.  The motion was dismissed.  Similarly, Ms Bradley has obtained a violence restraining order following telephone calls that were allegedly made by Mr Prefumo.

2. As has been noted, the Act defines the expression 'vexatious proceedings' by reference to proceedings that have been commenced by the respondent.  It is clear that the dispute created by Mr Prefumo's claim against Ms Bradley has, unfortunately, generated much conflict between them.  It is to be deplored that Ms Bradley has been required to seek a violence restraining order.    However, I do not consider that Mr Prefumo's conduct of these proceedings – or his behaviour in the proceedings – supports an inference that the proceedings were instituted to harass or annoy Ms Bradley or for some other improper purpose.  As I have explained, the findings made in Prefumo v Bradley and Prefumo v Bradley [No 2] were to the effect that these proceedings were instituted and have been pursued on reasonable grounds and are not an abuse of the court's processes (see the definition of 'vexatious proceedings' contained in the Act).