Prefumo v Bradley [No 4]
[2014] WASC 94
•25 MARCH 2014
PREFUMO -v- BRADLEY [No 4] [2014] WASC 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 94 | |
| Case No: | CIV:1924/2010 | 7 MARCH 2014 | |
| Coram: | MARTIN CJ | 25/03/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| B | |||
| PDF Version |
| Parties: | LOUIS MARCEL ANGELO GILBERT PREFUMO ARRIADNE MARIE NOELLE BRADLEY |
Catchwords: | Defamation Whether statements to mental health clinic communicated a defamatory meaning Whether defence of truth available Qualified privilege and notice Damages where ambit of publication narrow Turns on own facts |
Legislation: | Defamation Act 2005 (WA), s 25, s 30 Mental Health Act 1996 (WA), s 176 Rules of the Supreme Court 1971, O 20 r 21 |
Case References: | Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 Gumina v Williams [No 1] (1990) 3 WAR 342 Gumina v Williams [No 2] (1990) 3 WAR 351 Home & McColough v Lees (1910) 11 CLR 361 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 Prefumo v Bradley [2011] WASC 251 Prefumo v Bradley [No 2] [2012] WASC 76 Prefumo v Bradley [No 3] [2013] WASC 56 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Taylor v Jecks (1993) 10 WAR 309 Vollaire v Prefumo [2011] WADC 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ARRIADNE MARIE NOELLE BRADLEY
Defendant
Catchwords:
Defamation - Whether statements to mental health clinic communicated a defamatory meaning - Whether defence of truth available - Qualified privilege and notice - Damages where ambit of publication narrow - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 25, s 30
Mental Health Act 1996 (WA), s 176
Rules of the Supreme Court 1971, O 20 r 21
Result:
Plaintiff's claim 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):
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Gumina v Williams [No 1] (1990) 3 WAR 342
Gumina v Williams [No 2] (1990) 3 WAR 351
Home & McColough v Lees (1910) 11 CLR 361
Polly Peck (Holdings) plc v Trelford [1986] QB 1000
Prefumo v Bradley [2011] WASC 251
Prefumo v Bradley [No 2] [2012] WASC 76
Prefumo v Bradley [No 3] [2013] WASC 56
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Vollaire v Prefumo [2011] WADC 59
- MARTIN CJ:
Summary
1 The plaintiff, Mr Louis Prefumo, claims damages for defamation as a result of statements made by the defendant, Ms Arriadne Bradley, who is Mr Prefumo's sister, in the course of telephone conversations with representatives of the Osborne Park Mental Health Clinic (Osborne Clinic). Ms Bradley admits that those statements were made, but asserts that the defamatory imputations arising from her comments were true, and in any event were made on an occasion of qualified privilege and were not motivated by malice. For the reasons which follow, I accept those contentions, with the result that Mr Prefumo's claim for damages in respect of those statements must be dismissed.
2 Mr Prefumo also claims damages for defamation arising from a statement which he alleges Ms Bradley made to his former wife. Ms Bradley denies making the statement alleged. As no evidence was led to the effect that Ms Bradley made the statement alleged, that aspect of Mr Prefumo's claim must also be dismissed.
The history of the proceedings
3 Legal proceedings between siblings, although not exceptional, can generally be considered to be unfortunate. These proceedings have a particularly long and unfortunate history which includes a number of contested interlocutory disputes – see for example, Prefumo v Bradley [2011] WASC 251; Prefumo v Bradley [No 2] [2012] WASC 76; Prefumo v Bradley [No 3] [2013] WASC 56. Each of the parties has represented themselves throughout the proceedings, except for a brief period during which Ms Bradley was legally represented.
4 The complexities of the substantive law and procedure relating to defamation made the task of self-representation difficult for both parties. Despite all efforts to resolve the matter without the need for a trial, it was necessary in order to resolve this dispute to facilitate a trial, in spite of the challenges which this posed. In an attempt to mitigate those challenges, the court modified the pre-trial procedures usually applied in cases of this kind so as to facilitate the identification of the matters which were in issue between the parties, and which were to be resolved at trial. Following that process the court prepared a statement of the issues in dispute and the contentions of each party in relation to those disputes, which was provided to each party so as to facilitate preparation for and the conduct of the trial in accordance with the process contemplated by O 20 r 21 of the Rules of the Supreme Court 1971. These reasons will address the issues identified in that document.
The evidence
5 As a result of the parties' lack of legal expertise, the course of the trial was somewhat unconventional. Mr Prefumo did not call any witnesses other than himself, and his evidence-in-chief was limited, as was his cross-examination. The evidence upon which he relied substantially comprised a series of documents, including outpatient notes from the Osborne Clinic detailing conversations between Ms Bradley and staff at the Clinic, which he tendered by consent.
6 Ms Bradley did not give evidence. However, she tendered a number of documents from the records of WA Police through the evidence of Senior Sergeant Neville Paterson. She also adduced evidence from the chief psychiatrist of Western Australia, Dr Nathan Gibson, and from another psychiatrist, Dr Roland Main, who had assessed and treated Mr Prefumo. She also adduced evidence from two other siblings, Mr Bernard Prefumo and Mr Johnnie Prefumo.
7 In the result, the oral evidence adduced was within a relatively narrow compass. It is preferable to refer to that evidence in the context of the issue to which it is relevant, rather than to provide an overview of the evidence generally.
Was defamatory matter published by Ms Bradley about Mr Prefumo?
Statements made to Osborne Park Mental Health Clinic
8 As I have noted, Ms Bradley admits that she telephoned representatives of the Osborne Clinic on a number of occasions and made statements relating to Mr Prefumo during the course of those telephone calls. She specifically admits that the notes maintained by the Clinic accurately record what she said. Those notes are in evidence. Relevantly those notes provide:
31 March 2010
Telephone call from Louis' sister. She has received a phone call from her brothers ex wife saying that Louis has 'tracked her down' in Melbourne where she went in hiding from Louis. She has received a summons from him. No contact directly by Louis. His ex wife is fearful for her safety. Louis' sister feels that Louis may be unwell and requests assessment.
21 May 2010
Phone call from sister reporting Louis becoming more delusional, sending photos of disfigured (own) face to neighbours. Concern re: ex wifes safety.
31 May 2010
Phone calls from sister Ariane (sic); Informed of assessment outcome and the fact if he is not willing to take the med appointment, the team has no basis to force treatment. She is also requested to get the people adversely affected by his risky (if any) behaviour directly to place a complaint with the police or the clinic and request further assessment of his [text unclear]. The validity of her concern about her brother questioned in view of many years of estrangement and current VRO situation against her.
12 July 2010 (late entry for 7 July 2010)
Mrs Arianne Bradley rang and requested to speak to Service Coordinator re her brother. She said that Mr Prefumo (Brother) had found out her address and knocked on her door. She said that he had previously not known where she lived. She said she would like an assessment on Mr Prefumo but did not want him to know that she requested it. When asked why she thought he needed an assessment she said because he had become obsessed with all this legal stuff and was serving writs on everyone. She said she would email me copies of the writs. She did so on 8 July 2010 and as I explained to her, I passed them on to the duty officer for presentation at the clinical team.
Statements allegedly made to Mr Prefumo's former wife
9 Mr Prefumo alleged that around the end of March 2010, Ms Bradley made statements which were defamatory of him to his former wife who now resides in Melbourne. He apparently based that allegation on the transcript of a hearing in the Dandenong Magistrates Court, during proceedings in which his former wife sought a restraining order against Mr Prefumo.
10 However, Ms Bradley denies making the statements to Ms Sutton which Mr Prefumo attributes to her. Mr Prefumo adduced no evidence in relation to these statements. It follows that he has failed to establish that they were made by Ms Bradley or at all, and that this part of his claim must be dismissed for that reason.
Did the statements made by Ms Bradley to the Osborne Clinic carry imputations defamatory of Mr Prefumo, and if so, what were those imputations?
11 Ordinarily a plaintiff claiming damages for defamation will be required to plead the defamatory imputations which he or she asserts arise from the words published by the defendant, and will be confined to the imputations pleaded, or, subject to the requirements of procedural fairness, to some lesser imputation of the same character: Taylor v Jecks (1993) 10 WAR 309. The circumstances in which a plaintiff can rely upon alternative imputations of a less serious character, and in which a defendant can seek to defend the claim by pleading and proving the truth of such lesser imputations has been the subject of controversy: Gumina v Williams [No 1] (1990) 3 WAR 342; Gumina v Williams [No 2] (1990) 3 WAR 351; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519; Polly Peck (Holdings) plc v Trelford [1986] QB 1000. Because of the course followed in these proceedings it is unnecessary to enter upon that controversy in this case.
12 During what could only loosely be described as the pleading process in this case, Mr Prefumo alleged that the statements made to the Osborne Clinic by Ms Bradley conveyed the imputation that he was an 'insane, mentally sick person'. During cross-examination, and in his own evidence, Mr Prefumo confirmed that this was 'the sting' of the statements made by Ms Bradley to the Osborne Clinic, and that the essence of his complaint was that she lacked the expertise to make any reliable assessment of his mental state, and further, that she lacked any knowledge or information as to his behaviour that would justify any assessment of his mental state.
13 It is clear that the statements made by Ms Bradley in the course of her conversations with the Osborne Clinic conveyed the imputation that Mr Prefumo was suffering from a disorder which caused him to be delusional. There is no doubt that such an imputation would have the effect of lowering the esteem in which Mr Prefumo would have been held by any reasonable person to whom that imputation was conveyed. It follows that in my view the statements made by Ms Bradley were defamatory in this respect.
14 Although Mr Prefumo did not specifically identify any other defamatory imputations arising from the statements of which he complains, in my view, the statements made by Ms Bradley to the Osborne Clinic also convey the imputation that the delusional disorder from which Mr Prefumo suffered had caused him to act erratically in ways which were of concern to others, such as in his dealings with his neighbours and in his vexatious and querulous use of legal proceedings. Such an imputation would clearly lower Mr Prefumo in the esteem of any reasonable person to whom it was conveyed, and is therefore defamatory of him. Although Mr Prefumo did not specifically complain of this imputation, I will deal with it in these reasons for the sake of completeness.
Were the defamatory imputations substantially true?
15 Section 25 of the Defamation Act 2005 (WA) (the Act) provides that it is a defence to the publication of a defamatory matter 'if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true'.
16 The first defamatory imputation which I have identified arising from the statements made by Ms Bradley to the Osborne Clinic, and which is the defamatory imputation of which Mr Prefumo complains, is the imputation to the effect that he suffers from a mental disorder, and in particular, a disorder which causes him to be delusional.
17 The evidence leaves no doubt that this imputation is true. Mr Prefumo has been treated for some form of mental disorder since at least 2000. He has been subjected to involuntary treatment as a consequence of his mental disorders, and has been committed to Graylands Hospital at various times for treatment. On at least one occasion in May 2011, Mr Prefumo was involuntarily detained at the Clinic, an incident referred to in documentary evidence tendered by both parties. Although some years ago he was diagnosed as suffering from schizophrenia, more recently Dr Main has concluded that he suffers from organic delusional disorder, and that his preoccupation with persecution by others is a manifestation of that condition. I accept Dr Main's diagnosis, and note that there is no evidence to the contrary. Although Dr Gibson has not personally assessed Mr Prefumo, he has performed a supervisory role in relation to his treatment, and has no reason to doubt the diagnosis made by Dr Main.
18 In the course of disputing the truth of this imputation, Mr Prefumo adduced evidence of correspondence between the WA Mental Health Service and the Council of Official Visitors, an independent agency established by s 176 of the Mental Health Act (WA) 1996, relating to the validity of a Community Treatment Order (CTO) made by the Osborne Park Clinic in relation to Mr Prefumo in September 2011. While the correspondence does record that Mr Prefumo's complaints to the Council resulted in the cancellation of the CTO, this was not as a result of any misdiagnosis by Dr Main, and in fact the correspondence records the fact that Mr Prefumo had elected to continue treatment with his general practitioner, and that he would continue to take oral medication prescribed to him by the Osborne Clinic. Accordingly, the contents of this correspondence does not affect my conclusion as to the truth of the statements made by Ms Bradley, and the validity of Dr Main's diagnosis.
19 As I have noted, the statements made by Ms Bradley to the Osborne Clinic also convey a defamatory imputation to the effect that the disorder from which Mr Prefumo was suffering had caused him to behave erratically in ways which were of concern to others. Again, the evidence leaves no doubt that this imputation is true. A number of incident reports from the records maintained by WA Police were tendered by Ms Bradley through Senior Sergeant Paterson. Collectively, they establish that Mr Prefumo has a significant history of confrontation with his neighbours, who are unnecessary to name. Those confrontations have, on occasions, escalated to physical violence and have also resulted in proceedings for restraining orders commenced by Mr Prefumo. The evidence of Senior Sergeant Paterson establishes that, consistently with the diagnosis of persecution complex made by Dr Main, Mr Prefumo regularly complains to police in respect of the perceived actions of those with whom he deals, including his neighbours, and that those complaints have on occasions been far-fetched or beyond belief.
20 The evidence also leaves no doubt that Mr Prefumo has commenced and maintained legal proceedings vexatiously and querulously, causing concern to others. These proceedings are themselves demonstration of his propensity to use legal proceedings as a response to the persecution which he perceives. It is worth noting that an order has been made against Mr Prefumo under the Vexatious Proceedings Restriction Act 2002 (WA) – see Vollaire v Prefumo [2011] WADC 59.
21 Accordingly, I am satisfied that each of the defamatory imputations which I have identified were carried by the statements made by Ms Bradley to the Osborne Clinic are true. That conclusion is sufficient to result in the dismissal of Mr Prefumo's claim. However, for the sake of completeness, I will deal with the other issues which have been raised.
The defence of qualified privilege
22 Section 30 of the Act provides that there is a defence of qualified privilege for the publication of a defamatory matter to a person (the recipient) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
23 The section provides that a recipient has an apparent interest in having information on some subject if, and only if, at the time of the relevant publication, the defendant believes on reasonable grounds that the recipient has that interest.
24 At the time Ms Bradley made the statements to the Osborne Clinic which are the subject of these proceedings, Mr Prefumo was a patient of that Clinic, having come to the attention of the WA Mental Health Service many years earlier. Dr Gibson, who is now the chief psychiatrist of Western Australia, and Dr Main each gave unequivocal evidence to the effect that information of the kind provided to the Osborne Clinic by Ms Bradley was of vital importance to the Mental Health Service in its assessment and treatment of patients. Each was clear and unequivocal in his evidence to the effect that the efficacy and calibre of the services of assessment and treatment provided by the Mental Health Service would be significantly diminished if family members were discouraged from providing relevant information to the Mental Health Service. The evidence establishes beyond doubt that the representatives of the Osborne Clinic to whom Ms Bradley spoke had an interest in receiving information with respect to Mr Prefumo's condition and behaviour. Accordingly, it is unnecessary to consider whether those representatives also had an apparent interest in receiving information with respect to Mr Prefumo's condition and behaviour.
25 It is also clear that the statements made by Ms Bradley were primarily concerned with Mr Prefumo's condition and behaviour, being the matter in which the Osborne Clinic had an interest, and the defamatory imputations carried by the statements made by Ms Bradley were directly concerned with the subject in which the Osborne Clinic had an interest.
26 I am also satisfied that Ms Bradley's conduct, in making the statements which she made to the Osborne Clinic, was reasonable in the circumstances. Although Ms Bradley did not give evidence, there is an inference available from the statements themselves, which in the circumstances I am prepared to draw, to the effect that her statements were based to a limited extent upon her dealings with Mr Prefumo, and to a greater extent upon information which she had been provided by others. That much is clear from the terms in which the statements were made, and would no doubt have been understood by those to whom the statements were made. There is no evidence which would enable me to conclude that the statements were fanciful or lacking in foundation – to the contrary, I have found that the defamatory imputations which the statements conveyed were true. Accordingly, I am satisfied that Ms Bradley's conduct in making the statements to the Osborne Clinic was reasonable in the circumstances.
27 It follows that Ms Bradley has established that the statements made by her to the Osborne Clinic were made on an occasion of qualified privilege.
Were Ms Bradley's statements motivated by malice?
28 Section 30(4) of the Act provides that a defence of qualified privilege created by that section is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
29 In this respect, the Act corresponds with the common law, in that the burden of proving malice so as to defeat a claim of qualified privilege rests with the plaintiff: Home & McColough v Lees (1910) 11 CLR 361, 373; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1. Mr Prefumo adduced no evidence capable of discharging that burden. Although he asserted on a number of occasions that Ms Bradley lacked the expertise to make any assessment of his mental condition, and lacked direct knowledge of his behaviour, I have found, for the reasons given above, that Ms Bradley's conduct in making the statements was reasonable in all the circumstances, given the information which she had available to her, and the terms in which her statements were made. There is nothing in the circumstances in which the statements were made which would suggest that they were motivated by any purpose other than the purpose of providing information to the Osborne Clinic, which that clinic had an interest in receiving. There is therefore no basis upon which a finding of malice could be made.
What damage did Mr Prefumo suffer by reason of the making of the statements?
30 For the various reasons I have already given, Mr Prefumo's claim will be dismissed. It is therefore neither necessary nor appropriate to make any assessment of the quantum of damages to which he would have been entitled had his claim succeeded. However, some general observations on that topic may nevertheless be of assistance.
31 The statements made by Ms Bradley were made in the course of telephone conversations with representatives of the Osborne Clinic. They were not made to the public at large, and there is no evidence that they were republished by the persons to whom they were made other than in the course of their duties, by recording the statements made on the outpatient notes maintained by the Clinic, and in dealing with other members of the Clinic responsible for the assessment and treatment of Mr Prefumo. Accordingly, the statements were made by Ms Bradley in circumstances in which it was likely that the information conveyed would be used only for the purpose for which it was provided, and there is no evidence to the effect that the statements were intended to have, or ever received any wider audience than those with an interest in the assessment and treatment of Mr Prefumo (except as a consequence of Mr Prefumo's commencement of these proceedings).
32 It is also clear from the terms in which the outpatient notes were recorded that those to whom the statements were made approached them with a degree of scepticism, having regard to the history of dealings between Mr Prefumo and Ms Bradley. It is a fair inference from the notes, and from the course of assessment and treatment provided to Mr Prefumo, that the statements made by Ms Bradley were simply part of the material taken into account by the mental health professionals responsible for the assessment and treatment of Mr Prefumo. It is clear from Dr Main's evidence that his diagnosis of organic delusional disorder was based upon a lengthy assessment of Mr Prefumo, and that Ms Bradley's statements would have played a limited part, if any, in that diagnosis. Accordingly, there is no basis upon which it could be concluded that Ms Bradley's statements were, in any sense, the cause, in the legal sense, of Mr Prefumo's diagnosis and treatment by the Osborne Clinic or of Mr Prefumo's involuntary detention in May 2011. The relevant cause of Mr Prefumo's diagnosis and treatment was the disorder from which he suffers, and the behaviour which he manifested and which is symptomatic of that disorder.
33 Accordingly, given the circumstances in which Ms Bradley made the statements, the limited number of persons to whom those statements were made and republished, and the fact that those statements were not the cause of Mr Prefumo's subsequent treatment by the Osborne Clinic, if it had been necessary for me to assess the damages suffered by Mr Prefumo, I would have assessed them in a nominal amount.
Conclusion
34 For these reasons, Mr Prefumo's claim will be dismissed. As Ms Bradley was for a limited time legally represented, I will give her liberty to apply in writing for any order she might seek in relation to the costs of that representation.
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