Prefumo v Sutton
[2011] WASC 151
•3 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PREFUMO -v- SUTTON [2011] WASC 151
CORAM: CORBOY J
HEARD: 4 MARCH 2011
DELIVERED : 3 JUNE 2011
FILE NO/S: CIV 1798 of 2010
BETWEEN: LOUIS MARCEL ANGELO GILBERT PREFUMO
Plaintiff
AND
JEANNE MARIA PAOLA SUTTON
Defendant
Catchwords:
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 concluded that leave should be granted and that judgment should be entered for Ms Sutton under O 16 RSC.
The proceedings
It is necessary to trace the course of the proceedings to fully explain the issues that have arisen and the reasons for allowing Ms Sutton's application. Much of the summary that follows is drawn from three affidavits made by Mr Prefumo that were admitted into evidence without objection at the hearing of Ms Sutton's application:
(a)an affidavit made on 7 October 2010 that was intended to identify the statements allegedly made by Ms Sutton that were the subject of Mr Prefumo's action (Mr Prefumo's First Affidavit);
(b)an affidavit also made on 7 October 2010 that was principally directed to the circumstances in which Mr Prefumo had sought to enter judgment in default of an appearance by Ms Sutton (Mr Prefumo's Second Affidavit); and
(c)an affidavit made on 9 February 2011 that responded to written submissions served in support of Ms Sutton's application for summary orders (Mr Prefumo's Third Affidavit).
Mr Prefumo's writ was issued on 31 May 2010. It required an appearance to be entered within 21 days of service. The writ was apparently served on Ms Sutton on 16 June 2010 (see the page marked D in the attachments to Mr Prefumo's Second Affidavit). Mr Prefumo stated in his second affidavit that he applied for judgment in default of an appearance on 7 July 2010. Judgment was not immediately entered and on the following day an unconditional appearance was entered for Ms Sutton.
At the same time, Ms Sutton's solicitors filed a defence that:
(a)treated the indorsement on Mr Prefumo's writ as a statement of claim;
(b)denied each allegation made in the indorsement; and
(c)alleged that the court did not have jurisdiction to deal with 'this matter' as 'the appropriate jurisdiction for the Plaintiff to object to the Intervention Order Number A11366324 is the Court in Victoria where the Intervention Order was issued'.
The defence did not plead s 27 of either of the Defamation Acts or privilege at common law. Indeed, the plea concerning the court's jurisdiction apparently misconceived the nature of Mr Prefumo's claim despite it being clear from the indorsement on the writ that Mr Prefumo did not challenge the making of the intervention order; rather, he claimed that he had been defamed by Ms Sutton seeking the order.
The first directions hearing in the matter was held on 28 September 2010. Mr Prefumo was directed to file and serve a document setting out precisely what statements were allegedly made by Ms Sutton that were the subject of his claims and providing particulars of when and where the statements were said to have been made. Mr Prefumo's First Affidavit was made in response to that direction.
Ms Sutton was directed to file and serve by a specified date any application that she wished to make concerning the court's jurisdiction to hear Mr Prefumo's claim and/or to strike out the indorsement of claim by 19 October 2010.
Mr Prefumo alleged in his first affidavit that:
(a)Ms Sutton had defamed him in 'a sworn statement and transcript at the Dandenong Court of the State of Victoria in a matter of a restraining order No A11366324 before Magistrate Cure on 21st day of May 2010', details of which were said to be contained in a letter dated 4 October 2010 to the solicitors acting for Mr Prefumo in respect of Ms Sutton's application for the intervention order. A copy of the letter was not produced but it was clear from Mr Prefumo's statement that he alleged that Ms Sutton had made statements defaming him while giving evidence during a hearing of her application for the order.
(b)Ms Sutton had stated in her evidence that she had sought to keep her whereabouts 'a closely guarded secret' from Mr Prefumo out of a concern for her safety. That statement was said to be contradicted by a letter dated 30 July 2004 written by Ms Sutton to the Family Court of Western Australia. Mr Prefumo alleged that the contents of the letter disclosed that Ms Sutton had made false statements at the hearing of her application for the intervention order.
A copy of the letter said to have been written by Ms Sutton to the Family Court of Western Australia was attached to Mr Prefumo's First Affidavit. It is clear when the letter is read with the balance of the affidavit that Mr Prefumo alleged that evidence given by Ms Sutton at the hearing of her application for an intervention order to the effect that she had sought to keep her location a secret from Mr Prefumo was contradicted by the fact that she had given her address in the letter to the Family Court so that 'anyone who had access to divorce file no 6199 of 1997 at the records section of the Western Australian Family Court in Perth WA' could ascertain her whereabouts. He stated in his affidavit that, 'the attached letter to the Family Court of Western Australia from [Ms Sutton] of July 27, 2004, vindicates me … of any alleged wrongdoings in the case of the family violence restraining order No A11366324 taken out in the Dandenong Court on May 21, 2010'.
As previously noted, Mr Prefumo's Second Affidavit was primarily directed to a complaint concerning the failure of the court to enter default judgment pursuant to his application on 7 July 2010. A comment on that complaint is made at the conclusion of these reasons. The balance of the affidavit confirmed that part of Mr Prefumo's claim was that evidence given by Ms Sutton about keeping her location hidden from him was defamatory and false.
On 14 October 2010 a chamber summons was filed on behalf of Ms Sutton seeking an order that 'the orders being sought [in] writ CIV 1798 of 2010 be dismissed'. The summons did not specify the grounds on which the application was made. However, directions were subsequently made for the hearing of the application and on 22 December 2010 the following documents were filed on behalf of Ms Sutton:
(a)an amended chamber summons seeking orders pursuant to O 16 r 1, alternatively O 20 r 19 RSC;
(b)an affidavit sworn by Ms Sutton;
(c)an affidavit sworn by Julia Johnston, a member of the firm of solicitors that appeared for Ms Sutton;
(d)written submissions in support of Ms Sutton's application.
In her affidavit, Ms Johnston referred to various proceedings that had been commenced by Mr Prefumo against Ms Sutton in the District Court. Five actions had been commenced by writ, together with five applications by originating motion for leave to commence proceedings out of time. Ms Sutton had made an application to strike out each of the writs and originating motions and a further application under the Vexatious Proceedings Restriction Act 2002 (WA). At the time that Ms Johnston swore her affidavit, the strike‑out applications had been heard and the decision reserved and the application under the Vexatious Proceedings Restriction Act was part‑heard. Judgments in respect of each of the applications have now been delivered: Prefumo v Vollaire [2011] WADC 22 and Vollaire (Sutton) v Prefumo [2011] WADC 59.
Ms Johnston stated that counsel retained to appear for Ms Sutton in the various applications made in the District Court had reviewed this matter and advised that an application in the form of the amended chamber summons should be made. Ms Johnston further stated that:
10.I understand that each of those Applications should have been commenced within 21 days of appearance in this matter.
11.At that time I did not turn my mind to making any Application under those Rules or give advice to my client as to the availability of any Application under those Rules. This is because I was of the view that the Court did not have jurisdiction to hear and deal with this action at all but also because I was unfamiliar with the Rules and did not know that there was such a time limit. I now understand that it may be the case that the Court does have jurisdiction in this matter but that there is a good defence to this claim based on the provisions of the uniform legislation relating to defamation.
In her affidavit, Ms Sutton deposed to the stress and expense that had been incurred in defending Mr Prefumo's claims in this and the various District Court actions. She stated that she worked part‑time and had two small children. In addition, she had been treated for cancer recently and considered that her health might suffer as a result of the stress caused by the various proceedings commenced by Mr Prefumo. She sought an extension of time within which to make her application for summary orders for those reasons.
I accept that Ms Sutton's affidavit sufficiently complied with O 16 r 1(2) given the ground on which the application was made and the allegations made in the indorsement to the writ and the matters stated in Mr Prefumo's First Affidavit.
Mr Prefumo's Third Affidavit was made in response to the written submissions filed in support of Ms Sutton's application for summary orders. A number of documents were attached to the affidavit. In summary, the affidavit and its attachments disclosed that:
(a)Ms Sutton had applied for an intervention order under the Family Violence Protection Act 2008 (Vic) (the Family Violence Protection Act) by a written application that contained several statements to the effect that she was concerned about her safety as a result of Mr Prefumo's conduct.
(b)Mr Prefumo contended that any privilege that attached to the statements made by Ms Sutton in connection with her application for an intervention order had been lost. Mr Prefumo annexed to his affidavit a copy of page 547 of RP Balkin and JLR Davis, Law of Torts (4th ed, 2009) with parts of pars [19.30] and [19.31] underlined. Paragraph [19.30] briefly describes the distinction between absolute and qualified privilege, noting that a defendant may forfeit the protection of the occasion by abusing it where the privilege is qualified. Paragraph [19.31] concerns absolute privilege. The paragraph commences with the statement that 'certain occasions are deemed to be so important for the free exchange of views that those making statements upon them are not liable in defamation even though the words are untrue and spoken or written maliciously'. Mr Prefumo had highlighted the words 'free exchange of views' appearing in that passage and had written in hand above those words 'complete facts and perjury'. Further, in the body of his affidavit, Mr Prefumo stated that:
The plaintiff advises that the right to qualified privilege of the defendant is forfeited as well as the protection of this occasion as the defendant has abused it by an act of giving false evidence in a Dandenong law court on May 21, 2010 in order to obtain a violence restraining order against the plaintiff.
(c)Ms Sutton had given sworn testimony at a hearing before Magistrate Cure on 21 May 2010 in support of her application for an intervention order. A copy of the transcript of the hearing was annexed to Mr Prefumo's affidavit. It was underlined and highlighted by, I infer, Mr Prefumo. The transcript recorded Ms Sutton's evidence that she had obtained a violence intervention order at the time of her divorce and property settlement with Mr Prefumo because of her concern that she had been stalked and harassed. She had then moved to Victoria 'keeping all my details private'. She further stated (ts 2) that:
He's been calling all my ‑ a lot of my ‑ members of my family, harassing them, asking them my whereabouts, and making threats. And in 2007 he went very great lengths to find my location.
She later said that it was 'very scary' that Mr Prefumo had been able to identify where she now resided (ts 4).
(d)Mr Prefumo claimed that the letter of 30 July 2004 written by Ms Sutton to the Family Court of Western Australia contradicted that evidence as the letter disclosed Ms Sutton's then address 'for anyone including the plaintiff to see'.
(e)Mr Prefumo objected to Ms Sutton being given leave to bring her application for summary orders as this 'would be of prejudice to the plaintiff as the latter wishes that this action to come to an end as soon as possible as the case was started on May 31, 2010 and no real progress has been made since'. Further, the action had 'gone long enough' and he sought that the 'case be brought to an end immediately either through mediation or trial in order to curtail the legal expenses incurred to both parties'.
(f)Mr Prefumo considered that the violence restraining order had been obtained by false evidence and was defamatory.
At the hearing of Ms Sutton's application, Mr Prefumo complained that he had been defamed by the wording of the order issued by the Magistrates Court as it referred to 'family violence' and to an order being made under the Family Violence Protection Act: 'the mere words "family violence complaint or order", that puts a lot of thing on a person's head'. In answer to a question concerning the order being a court document, Mr Prefumo stated (ts 20):
… but the thing is the magistrate could not actually put one of those out if they did not have the facts regarding the family violence order or not.
Mr Prefumo also handed to the court a letter dated 29 October 2010 addressed to him from a firm of solicitors that had been retained to act for him in connection with Ms Sutton's application for the intervention order. The letter confirmed Mr Prefumo's instructions to agree to an order being made on the basis that there was no admission concerning the allegations made by Ms Sutton. The letter indicated that there had been no finding by the court as a result of Mr Prefumo's instructions. Mr Prefumo linked the letter to his claim in the following way (ts 12):
Ms Sutton wanted to get a family violence order. But my solicitors say there's no violence whatsoever.
The statements that are alleged to be defamatory
I decided at the first directions hearing that the effective management of this matter would not necessarily be assisted by requiring Mr Prefumo to provide a statement of claim. That approach might have been unfair to Ms Sutton. For example, a defendant seeking summary judgment may be placed in a difficult position when the plaintiff's pleadings are inadequate: see the observations of Wheeler JA in Smith v McCusker QC [2005] WASCA 226 [52] ‑ [54]. However, there was no submission by Ms Sutton that she was unfairly disadvantaged in making her application in the absence of a statement of claim.
The lack of a statement of claim has made it necessary for me to describe in detail the matters stated by Mr Prefumo in his various affidavits in order to explain how I have identified the statements that he alleges were made by Ms Sutton and by which he was defamed. In summary, Mr Prefumo alleges that he was defamed by:
(a)Ms Sutton's conduct in seeking an intervention order. In a claim for damages for defamation, that assertion can only be understood as an allegation that he was defamed by what was stated in Ms Sutton's written application for the intervention order. That would obviously encompass statements made by Ms Sutton in her application as to why she sought the order but it would also include those parts of the application form that identified the nature of the application (that it was for an intervention order pursuant to the Family Violence Protection Act).
(b)Statements made by Ms Sutton during the hearing before Magistrate Cure on 21 May 2010 to the effect that she was frightened by Mr Prefumo and in particular, by the fact that he had been able to locate her whereabouts and that he had gone to 'very great lengths' to do so.
(c)The fact that an intervention order had been made against Mr Prefumo and the terms of the order, including references in the order to prohibiting him from committing family violence and to the order having been issued under the Family Violence Protection Act. Mr Prefumo also complained, in effect, about the opprobrium attached to having such an order served on him by the police.
The Defamation Act
The Defamation Act formed part of the reform of defamation law throughout Australia. The objects of the Act include enacting provisions to promote uniform laws of defamation in Australia (s 3). Consistent with that objective, each of the Defamation Acts is in identical terms except in minor respects that are immaterial to the issues to be determined in Ms Sutton's application.
Section 11 of the Defamation Act concerns the governing law of defamation proceedings. Briefly stated, the effect of the section for the purpose of this matter is that:
(a)the substantive law that must be applied to determine any cause of action for defamation is the law of Victoria if the statements made by Ms Sutton that are alleged to have defamed Mr Prefumo were published wholly within the territorial limits of Victoria;
(b)the substantive law to be applied is the law of the State with which the harm occasioned by publication has its closest connection if the statements made by Ms Sutton were published in Victoria and Western Australia.
There was no evidence provided by Mr Prefumo that was directly relevant to determining the governing law for his action. For example, there was no evidence as to how he obtained copies of the application by which Ms Sutton commenced proceedings for the intervention order or the transcript of the hearing of the application. There was also no direct evidence of the extent of publication and the harm that may have been occasioned by publication. In his submissions, Mr Prefumo either personalised the harm or dealt with it in the abstract. However, it is unnecessary to decide the governing law question as there is no relevant difference between the substantive law of Victoria or Western Australia for the purpose of determining this application.
Section 27(1) of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. What constitutes an occasion of absolute privilege is to be determined according to common law principles consistent with s 6(2) of the Defamation Act which provides that the Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that is otherwise provided. However, s 27(2) states that:
Without limiting subsection (1), matter is published on an occasion of absolute privilege if ‑
…
(b)the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) ‑
(i)the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process);
(ii)the publication of matter while giving evidence before the court or tribunal; and
(iii)the publication of matter in any judgment, order or other determination of the court or tribunal.
The term 'Australian court' is defined in s 4 of the Act to mean:
Any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).
Ms Sutton's application for an intervention order was made to the Magistrates Court of Victoria (see the affidavit of Jeanne Marie Paola Sutton (nee Vollaire) made on 23 December 2010, pars 3 and 6 and annexure JMPS 1 to that affidavit and the copy of the application for an intervention order annexed to Mr Prefumo's Third Affidavit). That court was established by s 4 of the Magistrates' Court Act 1989 (Vic) and is, consequently, an 'Australian court'.
The statements were made on a privileged occasion
The rule of law relating to the publication of defamatory matter on a privileged occasion is explained by the editors of Gatley on Libel and Slander (10th ed, 2004) 13.1:
The law recognises that there are certain occasions ('privileged occasions') in which it is for the public benefit that a person should be able to speak or write freely and that this should override or qualify the protection normally given to reputation by the law of defamation. In most cases the protection of privilege is qualified, ie the defence is displaced by 'malice', but there are certain occasions on which public policy and convenience require that a person should be wholly free from even the risk of responsibility for the publication of defamatory words and no action will therefore lie even though the defendant published the words with full knowledge of their falsity and even with the express intention of injuring the claimant.
In my view, all of the statements that are the subject of Mr Prefumo's action were made on an occasion of absolute privilege under s 27(2)(b) of the Defamation Act:
(a)any statement made by Ms Sutton in her written application for the order falls within s 27(2)(b)(i);
(b)any statement made by Ms Sutton in the course of her evidence during the hearing of her application falls within s 27(2)(b)(ii);
(c)any statement made in the intervention order issued by the Magistrates Court of Victoria falls within s 27(2)(b)(iii).
At common law no action will lie for defamatory statements made in connection with 'judicial' proceedings: see generally, Gatley on Libel and Slander, 13.5. The privilege reaches beyond what is said in a court or tribunal to cover 'everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings and starting with the writ or other document which institutes the proceedings': Lincoln v Daniels [1962] 1 QB 237, 257 (Devlin LJ). Consequently, the statements made by Ms Sutton that are the subject of Mr Prefumo's action were made on an occasion of absolute privilege at common law. The question of whether the statements were true or false is irrelevant since the privilege is absolute.
Should leave be granted?
In Michael v Nicolson (Unreported; FCt SC of WA; Library No 950660, 1 December 1995) Kennedy ACJ observed that the policy of the Rules was that applications for summary judgment must be brought at an early stage of the proceedings and before unnecessary expense had been incurred. The onus was on the applicant to justify any delay; that required evidence on affidavit. The respondent's failure in Michael v Nicolson to provide an explanation for the delay in making his application was fatal.
The case law otherwise provides little guidance on the factors to be considered in determining whether to grant leave for an application under O 16 RSC to be made out of time. No doubt, that reflects the broad nature of the discretion and the fact that every case turns on its own circumstances. However, actions in this court are managed by reference to the objects expressed in O 1 r 4B RSC. Those objects assist in identifying the considerations that are relevant to an application for leave under O 16 r 1(1).
I consider that Ms Sutton ought to be granted leave to apply for judgment for the following reasons:
(a)The delay in making the application was not substantial. Ms Sutton entered an appearance on 8 July 2010. Consequently, her application ought to have been commenced by 29 July 2010. However, the application for summary relief was made approximately nine weeks later and within the time specified at the first directions hearing (albeit without the grounds for the application being identified). The application was filed seven days after Mr Prefumo complied with the direction made on 28 September 2010 by providing his first affidavit. The amendments to the application were made on 22 December, no substantive step in the proceedings having been taken in the interim.
(b)An explanation for the delay has been provided by Ms Johnston. I accept that it was a frank explanation and that it was satisfactory in that sense. Her lack of familiarity with the Rules should not stand in the way of dealing with the application according to its merits having regard to the particular circumstances of this matter and the objects for case flow management specified in O 1 r 4B RSC.
(c)The prejudice identified by Mr Prefumo in his third affidavit concerned the delay in progressing the action to a conclusion by mediation or trial. As such, the prejudice stands or falls with the merits of Ms Sutton's application.
(d)The merits of the application favour the grant of leave.
(e)There was no dispute about the facts relevant to the ground on which Ms Sutton sought summary relief. Mr Prefumo identified the statements that he alleged were defamatory and provided the evidence that established publication. There was no dispute about the circumstances surrounding publication. The evidence on the question of privilege was apparently complete.
(f)It is desirable that the action be summarily disposed of having regard to the conclusion that has been reached concerning the merits of Mr Prefumo's claims and Ms Sutton's defence; the stress that is inevitably experienced by parties involved in litigation and about which Ms Sutton gave particular evidence; the expense that would be incurred by the parties in the future if the matter was allowed to proceed and the requirement under O 1 r 4B RSC that the court's resources be efficiently utilised.
Determination of the application
Ms Sutton's application for summary judgment should be allowed.
I consider that there is no question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. There was no factual dispute over the circumstances surrounding publication of the relevant statements and in my view, the statements were clearly published on occasions that were absolutely privileged under the Defamation Act and at common law. Summary judgment should be granted if, as in this case, the facts are undisputed and the law is clear: Casella v Hewitt [2008] WASCA 13; 36 WAR 1 [36] (McLure P). In this instance, that approach accords with a long established practice of striking out statements of claim and dismissing actions as being frivolous or vexatious where there is no doubt that they concern matters that were published on occasions of absolute privilege: see for example, Hodson v Pare [1899] 1 QB 455 and Law v Llewellyn [1906] 1 KB 487 and Gatley on Libel and Slander at 30.34 and the cases cited at footnote 35. Consequently, I am satisfied that Mr Prefumo's action is frivolous and vexatious and that Ms Sutton has a good defence on the merits.
Mr Prefumo's complaint regarding judgment in default
Whatever the reason for judgment in default not being entered prior to an appearance being filed, there is no doubt that Ms Sutton would have succeeded in an application to set aside any judgment that was entered given that it was immediately apparent from the indorsement to the writ that she had a good defence and the application for judgment was made on 7 July 2010 and an appearance was entered the next day.
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