Defamation - s 27 Defamation Act 2005 (Vic); Defamation Act 2005 (WA) - Statements made in the course of proceedings in the Magistrates Court of Victoria - Matters published on an occasion of absolute privilege

Practice and procedure - Extension of time within which to make an application to seek summary judgment - Turns on own facts

Legislation:

Defamation Act 2005 (Vic), s 27
Defamation Act 2005 (WA), s 27
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 16 r 1

Result:

Leave granted to apply for judgment and application for summary judgment granted

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms W F Gillan

Solicitors:

Plaintiff: In person
Defendant: Calverley Johnston Lawyers

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

Casella v Hewitt [2008] WASCA 13; 36 WAR 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hodson v Pare [1899] 1 QB 455
Law v Llewellyn [1906] 1 KB 487
Lincoln v Daniels [1962] 1 QB 237
Michael v Nicolson (Unreported; FCt SC of WA; Library No 950660, 1 December 1995)
Prefumo v Vollaire [2011] WADC 22
Smith v McCusker QC [2005] WASCA 226
Vollaire (Sutton) v Prefumo [2011] WADC 59

CORBOY J:

The application and the result

The plaintiff, Mr Prefumo, alleged that he was defamed by his former wife, Ms Sutton, obtaining an interim family violence intervention order against him. The indorsement on the writ of summons, which was drafted by Mr Prefumo, stated his claim as follows:
The plaintiff is seeking damages from the defendant as a violence protection order is defamatory to his good and exemplary character. The detrimental effects on the plaintiff's life and everyday business now and in the future of the life of the plaintiff.
The court action by the defendant is libellous and slanderous.
Ms Sutton applied under O 16 r 1 Rules of the Supreme Court 1971 (RSC) for the action to be dismissed, alternatively under O 20 r 19 RSC for the indorsement on the writ to be struck out and judgment entered. The ground for the application was that by s 27 of the Defamation Act 2005 (WA), alternatively s 27 of the Defamation Act 2005 (Vic), any statement made by Ms Sutton in connection with the proceedings to obtain the family violence intervention order was made on an occasion of absolute privilege (I shall refer to the Defamation Act 2005 (WA) and the Defamation Act 2005 (Vic) together as the 'Defamation Act').
Ms Sutton's application was commenced outside the time prescribed by O 16 r 1(1) and O 20 r 19(3) RSC. Consequently, a threshold issue to be determined was whether leave to apply for judgment should be granted.
I have…

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 Sutton

Details

AGLC: Prefumo v Sutton [2011] WASC 151
Case: [2011] WASC 151
Decision Date: 3 JUNE 2011

CaseChat Overview and Summary

The case of Prefumo v Sutton was heard in the Federal Court of Australia. The plaintiff, Prefumo, sued Sutton for defamation. Prefumo alleged that Sutton made defamatory statements about him during proceedings in the Magistrates Court of Victoria. The case turned on the application of section 27 of the Defamation Act 2005 (Vic), which deals with statements made in the course of legal proceedings, and the Defamation Act 2005 (WA). The central issue was whether the statements were made on an occasion of absolute privilege, thereby exempting them from defamation claims.

The court had to determine whether the statements made by Sutton in the Magistrates Court of Victoria were protected by absolute privilege. Absolute privilege ensures that communications made in the course of judicial proceedings are not subject to defamation claims, protecting the integrity of the legal process. The court also had to consider whether an extension of time was warranted for Prefumo to apply for summary judgment, as the application was made outside the usual time limits.

In its judgment, the court found that the statements made by Sutton in the Magistrates Court of Victoria were indeed covered by absolute privilege. This meant that the statements could not form the basis of a defamation claim. Regarding the extension of time for Prefumo's application for summary judgment, the court considered the unique circumstances of the case and granted the extension, acknowledging that the application was made in good faith and without any undue delay that would prejudice Sutton. The court's reasoning was grounded in the principle that justice should be served by considering the specific facts of each case.

As a result of the court's decision, Prefumo's defamation claim was dismissed, and the application for summary judgment was allowed, subject to the conditions set by the court. The court's ruling underscored the importance of absolute privilege in legal proceedings and the flexibility in applying procedural rules to ensure fairness and justice.

Orders