| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PREFUMO -v- VOLLAIRE [2011] WADC 22 CORAM : SLEIGHT DCJ HEARD : 24 NOVEMBER 2010 DELIVERED : 16 FEBRUARY 2011 FILE NO/S : CIV 523 of 2010 CIV 1132 of 2010
CIV 1370 of 2010
CIV 1426 of 2010
CIV 1519 of 2010
CIVO 74 of 2010
CIVO 90 of 2010
CIVO 91 of 2010
CIVO 92 of 2010
CIVO 93 of 2010
BETWEEN : LOUIS MARCEL ANGELO GILBERT PREFUMO Plaintiff
AND
JEANNE MARIE PAOLA VOLLAIRE
Defendant
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Catchwords:
Application for extension of limitation period on grounds of mental disability - Turns on its own facts
Application to strike out claims on the basis of no reasonable cause of action and abuse of process - Plaintiff seeking redress for hardships arising from Family Court orders - Claims for damages for defamation arising from Family Court proceedings - Meaning of abuse of process - Meaning of reasonable cause of action - Turns on its own facts Legislation: Family Court Act 1975 (Cth)
Family Court Act 1997 (WA)
Rules of the Supreme Court 1971, O 20 r 19
Statute of Limitations Act 1935 (WA)
Statute of Limitations Act 2005 (WA) Result: Judgments for the defendant Representation: Counsel:
Plaintiff : In person
Defendant : Ms W F Gillan
Solicitors:
Plaintiff : Not applicable
Defendant : Calverley Johnston
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Case(s) referred to in judgment(s):
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281
Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425
Cabassi v Vila [1941] ALR 33; (1940) 64 CLR 130
Connelly v Sunday Times Publishing Co Ltd [1908] HCA 60; (1908) 7 CLR 263
Corlette Pty Ltd v Shell Company of Australia Ltd [1999] WASC 24
Cox v Journeaux (No 2) (1935) 52 CLR 713
Giannarelli and Schulkes v Wraith [1988] HCA 52; (1988) 165 CLR 543
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Joyce v Palassis [No 3] [2007] WASC 214
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986
Lee v St George Bank Ltd [2006] WASC 221
R v Carroll (2002) 213 CLR 635
Re, Attorney General (Cth); Ex parte Skyring (1996) 70 ALJR 321
Ridgeway v The Queen (1995) 184 CLR 19
Rogers v The Queen (1994) 181 CLR 251
Sewell v Wilson [2010] WASCA 152
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423
Walton v Gardiner (1993) 177 CLR 378
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1 SLEIGHT DCJ: Mr Prefumo and Ms Vollaire were previously married. They were married in Mauritius on 16 September 1984. In 1998 Mr Prefumo and Ms Vollaire were divorced. On 17 September 1998 final orders were made by way of property settlement in the Family Court of Western Australia.
2 In 2010 Mr Prefumo commenced a series of actions in this court against Ms Vollaire (CIV numbers 523/2010, 1132/2010, 1370/2010, 1426/2010 and 1519/2010) seeking to redress what he perceived to be injustices arising from the proceedings in the Family Court in 1998. In each of these actions Mr Prefumo is self-represented. The defendant, Ms Vollaire, has in each of these actions filed a defence and also a chamber summons seeking that Mr Prefumo's claim be struck out pursuant to O 20 r 19 of the Rules of the Supreme Court 1971. In the alternative, Ms Vollaire seeks a consolidation of these five actions, alternatively that there be an order for security for costs and finally, alternatively an order granting an injunction against Mr Prefumo preventing him from issuing any further writs without obtaining leave of a judge.
The strike out applications 3 Order 20 r 19 of the Rules of the Supreme Court 1971 provides as follows: 19. Striking out pleadings and indorsements (1) The Court may at any stage of the proceedings, subject to paragraph (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that — (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (Page 5)
(2) No evidence shall be admissible on an application under paragraph (1)(a). (3) Subject to paragraph (4) an application for an order under paragraph (1) must — [(4) deleted] (5) Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment. 4 The principles to be applied in considering an application to strike out pleadings are well established (see Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) (Staples M), Redbook Commentary 20.19.6). The rules can be summarised as follows: 1. The power to strike out a claim should only apply to cases which are not arguable. 2. On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable. 3. Great care must be exercised to ensure that the plaintiff is not improperly deprived of his or her opportunity to have a trial of his or her case by the appointed tribunal. As a general rule a plaintiff is entitled as of right to have his or her case heard, to have the (Page 6)
facts found and then to argue the question of law as it arises before a trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff, that the pleadings should be struck out. 4. The rules should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed. 5. A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie
Self -represented persons 5 In each of the proceedings Mr Prefumo is self-represented. He has no legal training. Like many self-represented persons he has sought to understand the complexities of the law by conducting research on the internet. 6 Unfortunately self-represented litigants often have misconceptions of the law. The law is very complex and normally it would be prudent for a person who is wishing to institute proceedings in a superior court such as the District Court of Western Australia to take legal advice and to be legally represented. However legal representation is not necessary. Under general principles of access to justice, an individual is entitled to appear before superior courts self-represented. Cases involving self-represented persons require the court to exercise special care. It is not the function of the judge hearing a case of a self-represented litigant to conduct the case on behalf of the self-represented person. This would be unfair to the other party. However vigilance, and not impatience, are especially required where a person is not legally represented to ensure that amongst the verbiage or arguments presented by a self-represented litigant there is not hidden some point of merit which should be aired (see Re, Attorney General (Cth); Ex parte Skyring (1996) 70 ALJR 321, 323 (Kirby J)). (Page 7)
Applications CIVO 74/2010, 90/2010, 91/2010, 92/2010 and 93/2010 7 In each of the actions commenced by Mr Prefumo the defence filed by Ms Vollaire included a blanket denial and a specific pleading that the claim of Mr Prefumo is statute barred. 8 Mr Prefumo in an effort to counter the pleading in each action that the claim is statute barred, has commenced five related applications by Notice of Originating Motion as follows: 1. Application CIVO 74/2010 which relates to CIV 523/2010. 2. Application CIVO 90/2010 which relates to CIV 1132/2010. 3. Application CIVO 91/2010 which relates to CIV 1370/2010. 4. Application CIVO 92/2010 which relates to CIV 1426/2010. 5. Application CIVO 93/2010 which relates to CIV 1519/2010. 9 In each of these applications Mr Prefumo seeks an order under s 42 of the Limitations Act 2005 that the limitation period applicable to the action be extended by 12 years from 20 March 1998 (that is, to 20 March 2010). Even if an order was made in each matter as sought and operated retrospectively to validate the corresponding action, this would only assist Mr Prefumo in action number CIV 523/2010 which was commenced on 22 February 2010. Each of the other actions was commenced sometime after 20 March 2010. It appears Mr Prefumo created a proforma based upon his application in CIVO 74/2010 and did not alter the time period of the extension to cover the date of the issue of the writ in each of the respective proceedings. Normally I would have granted Mr Prefumo an opportunity to amend his applications if this had been important, but for reasons that I will give in this decision this is unnecessary. 10 As mentioned above, the applications by Mr Prefumo for an extension of the limitation period to commence an action are made pursuant to s 42 of the Limitation Act 2005. Section 42 entitles a plaintiff who suffers a mental disability at any time after a cause of action accrues to apply to the court for leave to commence an action even though the limitation period has expired. It is clear from the applications that Mr Prefumo makes that he is alleging that the limitation period in each matter ought not apply because of his mental condition after the cause of action accrued. (Page 8)
11 Pursuant to s 4 of the Limitation Act 2005, the Act only applies to causes of action that accrue on or after the commencement date subject to s 7 and s 8 of the Act (s 7 and s 8 of the Act have no application in this matter). The commencement date of the Limitation Act 2005 was 15 November 2005. The purported causes of action relied upon by Mr Prefumo arise from grievances arising in 1998 when Family Court proceedings were in progress between Mr Prefumo and Ms Vollaire. Accordingly, the Limitation Act 2005 does not apply to the five actions commenced by Mr Prefumo. The relevant statute of limitation is the Limitation Act 1935. 12 The Limitation Act 1935 contains no general provision enabling a party to apply to extend the limitation periods that apply under the Act. The only provision that might assist Mr Prefumo is s 40 of the Limitation Act 1935 which provides that time limitations that are contained in s 38(1) of the Limitation Act 1935 for the commencement of certain causes of action do not apply from the time of the accrual of the cause of action if at the time of the accrual the plaintiff was insane and in such circumstances the period of limitation runs from the time that the plaintiff is sane. For the purpose of this decision it is not necessary for me to set out what causes of action and what time limits apply under s 38(1) of the Limitation Act 1935. 13 The effect of the provisions contained in the Limitation Act 1935 is that there is no provision which enables Mr Prefumo to apply for an extension of time based upon mental disability. Accordingly, each of the applications made by Mr Prefumo is misconceived and I dismiss each application. 14 If the applications by Ms Vollaire to strike out each of the actions is unsuccessful, then the issue of the statute of limitations having been raised by the defendant, the plaintiff, if he is to rely on s 40 of the Limitation Act 1935, will need to satisfy the court that at the time of the accrual of any cause of action that he was insane. This will be an issue to be dealt with at the trial unless it is raised as a preliminary issue either in some form of interlocutory application such as a summary judgment application or by way of an order from the court that the issue be tried in advance. However, in my opinion the issue is not a matter which requires my consideration to deal with the applications by Ms Vollaire to otherwise strike out each of the actions. (Page 9)
Leave to apply out of time 15 The applications by Ms Vollaire to strike out each action were filed on 23 July 2010. The applications were made outside the 21-day period prescribed in O 20 r 19(3)(c). The longest period out of time was in action number CIV 523 of 2010. In that action the statement of claim was filed on 22 February 2010. 16 Under O 3 r 5 of the Rules of the Supreme Court, the court has a discretion to extend a time period prescribed by the rules. Counsel for Ms Vollaire orally applied for an extension of the 21-day time period in each action so that each application could be heard on its merits. No evidence was presented to the court as to the cause of the delay but counsel for Ms Vollaire indicated it was due to inadvertence on the part of the solicitors acting for Ms Vollaire. If I find that Mr Prefumo's statement of claim in any action fails to disclose any reasonable cause of action then it would be an injustice to allow the matter to proceed with all the costs and worry that such an action will create for Ms Vollaire. Accordingly, I propose to consider the application for leave for an extension of time period and the application to strike out together.
Grounds for striking out 17 The chamber summons filed by Ms Vollaire in each action seeks an order to strike out the 'action', which I take to mean that the application is to strike out the statement of claim and for an order that the action be dismissed. The chamber summons in each action does not specify the grounds for the application but an affidavit of the applicant Ms Vollaire filed in each action specifies that the application is made on the relatively narrow ground that the statement of claim discloses no reasonable cause of action. However, counsel appearing for Ms Vollaire sought to argue the application in each action on the alternative wider ground that the statement of claim was otherwise an abuse of process (O 20 r 19(1)(d)). There was no previous notice of this contention either in the application papers or in written submissions filed on behalf of Ms Vollaire. However, I conclude that Mr Prefumo is not disadvantaged by this issue of whether each action is an abuse of process being considered. Heard immediately after these proceedings was an application by Ms Vollaire for an order against Mr Prefumo under the Vexatious Proceedings Restriction Act 2002 (CIVO 102 of 2010). This application has been adjourned part heard. The issues raised in the application under the Vexatious Proceedings Restriction Act 2002, in part include the question of whether any of the proceedings, which are subject to the strike-out applications, are an abuse of process. Accordingly, I concluded that I should allow this (Page 10)
ground to be argued as it would be wrong to allow a claim to remain if it is in fact an abuse of process. In any event there is an inherent power in every court of justice to prevent its procedures being abused:Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J).
General background 18 The general background to the actions (CIV numbers 523/2010, 1132/2010, 1370/2010, 1426/2010 and 1519/2010) has been set out in affidavits sworn by Mr Prefumo and Ms Vollaire and filed in each action. In each action a document entitled 'Draft Judgment' was included in the affidavit material. It is not in dispute that this document sets out the reason of a decision of his Honour Anderson J on 17 September 1998. The relevant background revealed by the affidavit material can be summarised as follows: (a) On 18 November 1997 Ms Vollaire commenced an application in the Family Court of Western Australia for an alteration of property interest. A critical component of the alteration of the property interest related to a property situated at 210 Northstead Street, Scarborough. (b) On 14 August 1998 his Honour, Mr Moroni SM, made orders that: (i) Mr Prefumo forthwith deposit into an interest bearing account in the name of Ms Vollaire as trustees for the parties the whole of the funds received by Mr Prefumo in consequent upon the termination of his employment with Westrail. (ii) Mr Prefumo have liberty to apply on short notice to the wife's solicitors to seek release of the funds to meet living expenses from now until the trial. The funds referred to in the orders were the remains of severance pay ($25,293.10) and holiday entitlements ($5,945.31) received by Mr Prefumo on his voluntary retirement from a position of employment with Westrail. (c) On 8 September 1998 an order was made that the husband file and serve in the Family Court proceedings affidavits that he wished to rely upon at the trial. The order provided that these documents were to be filed by the close of (Page 11)
business on 11 September 1998 and that if the documents were not so filed that Ms Vollaire would be given leave to proceed on an undefended basis. (d) Mr Prefumo failed to file any documents and accordingly by virtue of the order of 8 September 1998 the matter proceeded on an undefended basis. The matter came on for hearing before his Honour Anderson J on 17 September 1998. Mr Prefumo attended court on 17 September 1998 but was not given leave to appear and the matter proceeded on an undefended basis as per the order of 8 September 1998. This involved the court considering the statement of financial circumstances and affidavits filed by Ms Vollaire in support of her application. (e) Ms Vollaire filed an affidavit of a Mr Delamore who gave a valuation of the former matrimonial home at 210 Northstead Street, Scarborough at $187,500. Mr Delamore's valuation report contained derogatory remarks about the state of cleanliness of the former matrimonial home, which at that time was occupied by Mr Prefumo. (f) On 17 September 1998 his Honour Anderson J in the Family Court of Western Australia made the following property settlement orders: 1. The interests of the husband in the property at 210 Northstead Street, Scarborough vest in the wife. 2. Within seven days of the order Mr Prefumo vacate the former matrimonial home and deliver up the keys to the wife's solicitors. 3. The wife indemnify the husband in respect to mortgage F659345 to BankWest (a mortgage over the property). 4. The wife pay such sum as may be required to secure withdrawal of caveat G562090 (which related to a security for a sum of money borrowed by the husband). 5. The husband's interest in various chattels and a possession of the wife, a Hyundai motor vehicle, (Page 12)
money standing to the credit of the wife in any bank account, any shares registered in the wife's name and the wife's superannuation entitlements vest in the wife. 6. Any interest of the wife in furniture, contents and motor vehicle in the possession of the husband, the husband's superannuation entitlements, money standing to his credit in any bank account, any shares registered in his name vest in the husband. (g) In making the orders above, his Honour Anderson J took into account that the wife (Ms Vollaire) at the time of separation had 7,266 BankWest shares and that Ms Vollaire had sold 6,082 shares for which she received $18,116. 19 The applications of Ms Vollaire to strike out each claim on the basis the statement of claim does not disclose a reasonable cause of action must be based upon the pleading itself without consideration of any evidence. However, when considering whether the action is an abuse of process the evidence presented in the form of affidavits can be taken into account (O 20 r 19(2)).
What constitutes an abuse of process? 20 The concept of abuse of process extends to proceedings that are instituted for an improper purpose. This includes proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment: Ridgeway v The Queen(1995) 184 CLR 19, 74 – 75 (Gaudron J); Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27 [14]; (2006) 227 ALR 425. Potentially, an abuse of process might occur where a plaintiff seeks to re-agitate proceedings between the parties in a different jurisdiction (see Seaman Civil Procedure in Western Australia per 20.19.12). 21 What constitutes an abuse of process was considered in the decision of Master Newnes in Lee v St George Bank Ltd [2006] WASC 221 [67] - [73]. From that case and other authorities the following principles emerge: 1. The power of a court to intervene to prevent an abuse of process is the inherent power of a court of justice to prevent the misuse of its procedure in a way which would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of (Page 13)
justice into disrepute among right-thinking people (Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ)). 2. The circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined (R v Carroll (2002) 213 CLR 635, 657 (Gaudron and Gummow JJ)). 3. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when the action is clearly without foundation and to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped (Cox v Journeaux (No 2) (1935) 52 CLR 713, 720 (Dixon J)). 4. Notwithstanding the absence of any issue estoppel, res judicata or Anshun estoppel, a party's attempt to re-litigate against another party on an issue it has already lost may amount to an abuse of process (Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404). The guiding considerations of whether an abuse of process exists are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice (State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,089)). 22 The submission of counsel for Ms Vollaire that each action was an abuse of process was essentially on the grounds that the accused was seeking to re-agitate the proceedings in the Family Court of Western Australia. To understand this submission it is important to take into consideration the nature of the proceedings in the Family Court of Western Australia between Mr Prefumo and Ms Vollaire. Under the Family Law Act (Cth) 'a matrimonial cause' lies within the exclusive jurisdiction of the Family Court. The Family Court Act1997 (WA) vests in the Family Court of Western Australia this exclusive federal jurisdiction. Under s 4 of the Family Law Act a matrimonial clause includes: [P]roceedings between the parties to a marriage with respect to the property of the parties or either of them, being proceedings … arising out of the marital relationship. (Page 14)
23 An application for property settlement under the Family Law Act is made pursuant to s 79. Such an application involves the court giving consideration to a very wide range of issues and the court has a very wide discretion as to the appropriate orders to make. Section 79 relevantly provides as follows: In property settlement proceedings, the court may make such order as it considers appropriate. (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; … (2) the court shall not make an order under this section unless it is satisfied that, in all the circumstances it is just and equitable to make the order. (4) in considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: 24 Section 79(2) of the Act refers relevantly to the following matters: (Page 15)
25 The Family Law Act 1975 also contains provisions for review and setting aside of property settlement orders made. Section 79A of the Family Law Act 1975 relevantly provides as follows: (1) Where, on the application by a party affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or (b) … (c) … (d) … (e) …
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the order so set aside. 26 It is very clear that the provisions of the Family Law Act are framed in extremely wide terms and require the court when considering an application for property settlement to take into account the full financial circumstances of the parties and the impact of the orders on the parties. Further, a party that feels aggrieved by the processes under the broad grounds contained in s 79A can seek a review of the orders made by the court and seek fresh orders to be made.
Civil action number CIV 523 of 2010 27 Mr Prefumo commenced the first of his series of actions in the District Court against his ex-wife in action number CIV 523 of 2010. (Page 16)
28 A statement of claim attached to the writ of summons pleaded as follows: The plaintiff is seeking general damages from the defendant, general damages arising from the court injunctions dated the 8th and September the 17th, 1998, restraining the plaintiff access to his finances resulting in the following: 1. Inability to service storage fees and gain access to legal documents until July 2007. 2. An inability to apply to the court to set aside the orders under the strict time period of the Family Law Act. 3. Inability to gain legal representation in court at all due to the financial circumstances. 4. Inability of payment of accommodation. 5. Inability of payment of outstanding accounts. 6. Negligence by defendant of duty of care after of [sic] eviction of plaintiff from the matrimonial home by the defendant. 29 Mr Prefumo in written submissions to me has relied upon a Wikipedia definition of 'good cause'. This definition provides as follows: Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to feel to take an action prescribed by law. What constitutes a good cause is usually determined on a case by case basis and is thus relative. Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless, since that party's serious illness is a good cause, or justification for having additional time to take the legal action. 30 The definition of 'good cause' in Wikipedia is something different from the meaning of the expression 'reasonable cause of action' in O 20 r 19. The expression 'good cause' as defined in Wikipedia refers to those situations in the law where 'good cause' is synonymous with 'good reason'. There are many examples of the application of the expression 'good cause' in the law (for example, whether a judge had good cause to exercise a discretion relating to costs, Connelly v Sunday Times Publishing Co Ltd [1908] HCA 60; (1908) 7 CLR 263; whether there is a good reason for not producing a document in proceedings, Corlette Pty Ltd v Shell Company (Page 17)
of Australia Ltd [1999] WASC 24, whether there was a good cause or reason for withdrawing an admission; Joyce v Palassis[No 3] [2007] WASC 214). The list of examples is almost endless. 31 The expression 'reasonable cause of action' has a more limited meaning than simply a 'good cause'. A reasonable cause of action arises from a set of material facts which disclose, if true, a remedy that is recognised by law. It is not simply based upon a notion of fairness. Nor is it based upon simply loss having been suffered. 32 When considering the question of whether the pleading discloses a reasonable cause of action, it is necessary to consider what is required by a pleading to disclose a cause of action. A cause of action must not be pleaded in general terms, it must be alleged with particularity (Redbook Commentary 20.8.2). Although the contemporary role of pleadings is more relaxed because of the contemporary case management techniques which can often provide details of a claim, the pleading must fulfil its basic function of identifying the issues, disclosing an arguable cause of action, and appraising the parties of the case that has to be met (Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281 (Martin CJ)). 33 In my opinion the statement of claim filed by Mr Prefumo fails to disclose any reasonable cause of action. In my opinion this is blatantly clear from the statement of claim filed. It is clear that Mr Prefumo is aggrieved with the outcome of the Family Court proceedings. But there is no right of action known to the law which enables a plaintiff to recover damages simply because an order made by a court of law has caused hardship. The only legal remedy is for the party to seek a redress by the appeal processes provided in that court's jurisdiction. 34 Alternatively, I conclude that to make a claim for loss suffered as a result of lawful injunctive orders made in the Family Court of Western Australia is an abuse of process. Such a claim, if allowed would bring the processes of the Family Court of Western Australia and this court into conflict. 35 Accordingly, I give leave for Ms Vollaire to apply for an order under O 20 r 19 out of time. Further, I order that the statement of claim be struck out on the grounds that it fails to disclose a reasonable cause of action and the claim is an abuse of process. Finally, I order that the claim of Mr Prefumo in action number CIV 523 of 2010 be dismissed. (Page 18)
Civil action number CIV 1132 of 2010 36 The next action commenced by Mr Prefumo against Ms Vollaire is CIV 1132 of 2010. 37 A statement of claim attached to the writ of summons pleaded as follows: Contrary to Ms Jeanne Marie Paola Vollaire affidavit, the Bank of Western Australia shares were acquired by way of a bank loan from BankWest on January 24, 1996 and the loan was serviced by both LMAG Prefumo and JMP Vollaire on the separation of the marriage, a parcel of 2,142 shares of BankWest owned by LMAG Prefumo and 1,338 BankWest shares jointly owned by LMAG Prefumo and JMP Vollaire, together with a motor vehicle Datsun 120Y registration no 6EY-709 were transferred solely in the name of JMP Vollaire on July 11, 1997. Ms JMP Vollaire acquired BankWest shares were sold by her for an amount of $18,891.00 which was utilised partly for her legal representation and expenses. LMAG Prefumo did not receive any financial gain from the sale. Even so he was a part owner of the parcel of the BankWest shares, not having those funds available and his finances frozen by Ms JMP Vollaire, Mr LMAG Prefumo was unable to obtain legal representation to challenge or to have an extension of time to his eviction from the matrimonial home situate at 210, Northstead Street, Scarborough in the State of Western Australia. An extension of time would have meant that Mr LMAG Prefumo could explore cheaper, flexible storage of his belongings and accommodation for himself and his pet animals which Ms JMP Vollaire was well aware of. Mr LMAG Prefumo is claiming compensatory and general damages for the following: 1. Loss of indoor and outdoor furniture. 2. Loss of whitegoods including dishwasher, Westinghouse refrigerator, gas heater, cloth washing machine. 3. Antiques collection loss. 4. Power and garden tools loss. 5. Loss of rare parrots and cockatoos collection. 6. Loss of gym equipment, complete set of. 7. Loss of two (2) vaccinated and sterilised desexed red and tan Doberman dogs. 8. Brass bed and QS mattresses. (Page 19)
38 Mr Prefumo in his oral submissions indicated that his claim was based upon the hardship he suffered as a result of Ms Vollaire failing to account to him for his half share of the jointly owned shares which he had agreed could be sold. Mr Prefumo acknowledged that he had signed the necessary papers to dispose of the shares (ts 84). His claim is not for an account of his alleged half share. To do so would be to put his claim in conflict with the proceedings in the Family Court of Western Australia where the financial resources of both Ms Vollaire and Mr Prefumo were taken into account in deciding what final property orders would be made. This included the fact that Ms Vollaire had received the proceeds of the jointly owned shares. Mr Prefumo's claim in this action in the District Court is rather a claim for consequential loss as a result of not having resources available to him to obtain legal representation. He claims that by not having legal representation he was unable to challenge the order for his eviction from his home or at least obtain an extension of time in which to seek alternative accommodation for himself and his pets. 39 It is difficult to identify a reasonable cause of action from the pleaded statement of claim. In my opinion the only possible cause of action identified is a breach of an oral agreement between Mr Prefumo and Ms Vollaire that Ms Vollaire would arrange immediate sale of the BankWest shares and pay to Mr Prefumo one-half of the proceeds of the sale. This potentially raises an issue of whether the claim is a 'matrimonial cause' and therefore outside the exclusive jurisdiction of the Family Court: Sewell v Wilson [2010] WASCA 152. A matrimonial cause is defined in the Family Law Act (Cth) relevantly in s 34(ca)(i) to include: (ca) proceedings between the parties to a marriage with respect to the property of the parties or either of them, being proceedings (i) arising out of the matrimonial relationship. 40 The definition of 'parties to a marriage' includes former parties to a marriage (s 4(2) of the Family Law Act (Cth)). 41 The question of whether the proceedings before the District Court in this matter constitute a 'matrimonial cause' was not raised by counsel for (Page 20)
Ms Vollaire. That does not prevent me from considering the issue as a court in any event has authority and a duty to decide whether a dispute before the court is within its jurisdiction (see Sewell's case [29]). Notwithstanding this authority and duty for a court to decide whether it has jurisdiction, it is not necessary in my opinion to decide this issue in view of the decision that I have reached on other grounds that it is appropriate that Mr Prefumo's claim be struck out. 42 Even if it is accepted that the statement of claim discloses a cause of action based upon agreement to immediately sell the BankWest shares and Ms Vollaire to pay to Mr Prefumo half of the proceeds, there will be obvious difficulties for Mr Prefumo claiming the damages sought by him. The right to recover damages is governed by principles of remoteness. A loss is too remote if it was not reasonably foreseeable as likely to result from the breach. This is known as the rule in Hadley v Baxendale (1854) 9 Exch 341, 354; 156 ER 145, 151. Clearly Mr Prefumo will have difficulty establishing that the damages he claims are not too remote. However, I do not believe his claim should be struck out on this basis given the criteria on a strike-out application that I have referred to earlier in this decision. 43 That is not the end of the matter. In my opinion the claim of Mr Prefumo in this action seeks to re-agitate the equity of the orders made in the Family Court of Western Australia by way of property settlement. The damages claimed by Mr Prefumo arise, according to his statement of claim, as a result of the matrimonial home vesting in Ms Vollaire under the orders of the Family Court of Western Australia. As mentioned earlier in this decision, the Family Court of Western Australia takes into account a wide range of issues, including the financial resources available to the parties and the impact of any orders on the parties. In my opinion the claim of Mr Prefumo in this action, CIV 1132 of 2010, seeks to undermine the benefit of the final orders obtained by Ms Vollaire in the Family Court of Western Australia which included a right for Ms Vollaire to have the former matrimonial home vested in her. The claim of Mr Prefumo, in effect, seeks compensation for hardship to Mr Prefumo as a result of the orders made in the Family Court of Western Australia against him. This I believe constitutes an abuse of process. If Mr Prefumo is dissatisfied with the outcome of the proceedings that were held in the Family Court of Western Australia in 1998, then the appropriate remedy for Mr Prefumo is to make an application under s 79A which gives the court a very wide power to set aside a previous order and review the matter. I have been informed by the parties that in fact Mr Prefumo has now lodged in the Family Court of Western Australia an (Page 21)
application under s 79A to set aside the property settlement orders and have the matter reviewed. 44 Accordingly, I give leave for Ms Vollaire to apply for an order under O 20 r 19 out of time or, alternatively, I exercise my inherent jurisdiction. I order that the statement of claim be struck out on the ground that it is an abuse of process. I also order the claim of Mr Prefumo in action number CIV 1132 of 2010 be dismissed.
Civil action number CIV 1370 of 2010 45 The next action commenced by Mr Prefumo against Ms Vollaire is CIV 1370 of 2010. 46 A statement of claim attached to the writ of summons pleaded as follows: The defendant deceitfully and fraudulently arranged for the ex-matrimonial home situate at 210, Northstead Street, Scarborough in the State of Western Australia to be comprehensively appraised on two occasions for the real estate market on two occasions by two different real estate consultants without the knowledge or with consultation with the plaintiff, the fist occasion in March 13, 1991 and the second one in January 16, 1996, some eighteen (18) months prior to her sudden and unexpectedly walking out of the ex-matrimonial home and marriage of fourteen (14) years. These deeds performed by the defendant Ms JMP Vollaire gave her some financial and legal advantages after the separation on July 25, 1997 by being a servicing officer of the Bank of Western Australia by the refinancing of the loans taken in joint names during the marriage from the Bank of Western Australia (writing cut off along bottom) employee since August 3, 1997. My inability to obtain the services of several family law firms prior to the injunction placed on the freeze of my financial assets as Ms JMP Vollaire did the circuit of lawyers in the CBD and the defendant was (unreadable) legal representation deemed to be a conflict of interest for the law firms as they had given legal advice to Ms JMP Vollaire in regards to her divorce proceedings prior to the separation whilst the plaintiff was working away from his home station relieving at a regional centre. The defendant also arranged to have all the Bank of Western Australia shares transferred in her sole name even so a Bank of Western Australia was taken out to purchase those shares and serviced by both parties' salaries. Through the above deception and fraudulent actions of the defendant, the plaintiff was placed at a disadvantage in financial and legal manner prior (Page 22)
to the divorce proceeding commencement. The plaintiff is seeking damages to rectify this disparity on the part of the defendant Ms JMP Vollaire. 47 I am unable to identify any reasonable cause of action from the above statement of claim. The statement of claim is expressed in confusing language but it appears that the claim against Ms Vollaire is based upon the following: (a) Ms Vollaire obtained two valuations of the former matrimonial home prior to separation; (b) Ms Vollaire was able to re-finance loans previously taken out in joint names; (c) Ms Vollaire had consulted a number of family law firms concerning the matrimonial breakup which prevented Mr Prefumo from engaging these same firms; (d) Ms Vollaire arranged to transfer the Bank of Western Australia shares into her own name. 48 Mr Prefumo claims a 'disparity' arose due to these events and that the actions of Ms Vollaire constituted deceptive and fraudulent behaviour. 49 In my opinion, none of the acts above could constitute deceptive or fraudulent behaviour leading to a cause of action. Each of the acts complained of were manifestly legal. 50 Further, I conclude that the claim is an abuse of process. The claim seeks to undermine the orders obtained by Ms Vollaire in the Family Court of Western Australia by a collateral attack in the form of a claim of damages in the District Court to 'rectify' a perceived 'disparity'. The alleged disparity arises due to the Family Court orders obtained by Ms Vollaire by way of property settlement. 51 Accordingly, I give leave for Ms Vollaire to apply for an order under O 20 r 19 out of time. Further, I order that the statement of claim be struck out on the grounds that it fails to disclose a reasonable cause of action and the claim is an abuse of process. 52 Finally, I order that the claim of Mr Prefumo in action number CIV 1370 of 2010 be dismissed. (Page 23)
Civil action number CIV 1426 of 2010 53 The next action commenced by Mr Prefumo against Ms Vollaire CIV 1426 of 2010. 54 A statement of claim attached to the writ of summons pleaded as follows: The plaintiff is seeking general damages arising from the appraisal and documentation by the defendant and real estate consultant of the ex-matrimonial home situated at 210 Northstead Street, Scarborough in the State of Western Australia and the partly cause of the eviction of the plaintiff from the ex-matrimonial home on September 25, 1998 and the defendant's conflict of interest. The defendant utilised the services of real estate consultant Kathryn Eleanor Skinner (now Franklin) for a market appraisal of the ex-matrimonial home situate at 210, Northstead Street, Scarborough in the State of Western Australia on February 19, 1998 and having knowledge that the plaintiff also utilised her services to market appraise the ex-matrimonial home on February 10, 1998 and not John Franklyn as specified in paragraph 5 of the defendant's affidavit dated May 1, 1998. This is clearly a conflict of interest on both the defendant and the real estate consultant. The selling price range of the property increased from $180,000 - $190,000 on February 10, 1998 for the plaintiff to a (word cut off) range of $215,000 - $225,000 for the defendant on February 16, 1998 some six (6) days later. It is also stated that in the affidavit of the defendant sworn on May 1, 1998 paragraph 5, that the appraisals were done without actually entering the property situated at 210, Northstead Street, Scarborough in the State of Western Australia. It is also stated by both the defendant and the real estate consultant Kathryn Eleanor Skinner (now Franklin) that it is alleged that the home was in a shocking state, extremely dirty and untidy, the property was beyond cleaning all the carpets, needed to be ripped out and the property repainted. Yet the selling price of the property had risen in value to $215,000 - $225,000 from $180,000 to $190,000 selling range. Ms Kathryn Eleanor Skinner (now Franklin) that in her view that the state of the property had dropped in value as per paragraph 4 of her affidavit dated July 1, 1998. Being responsible for the sale of the property, she received a $6,950 as agent's commission for the property in January 12, 1999 or compensation. The evidence given by the defendant and the real estate consultant in sworn affidavits dated May 1, 1998 and July 1, 1998 were partly responsible for the eviction of the plaintiff from the matrimonial home (Page 24) situate at 210, Northstead Street, Scarborough in the State of Western Australia, the loss of matrimonial home in the Family Court, his belongings, collection of antiques, birds, dogs, the plaintiff is also seeking damages for defamatory and false statements as stated in the defendant's affidavit dated May 1, 1998. 55 I am unable to identify any reasonable cause of action from the above statement of claim. Mr Prefumo's claim appears to be: 56 Firstly, if the agent was acting under a conflict of interest, then this does not create any cause of action against Ms Vollaire. 57 Secondly, the claim based upon defamation is misconceived in law. The law is that no action lies in respect of things said in the course of proceedings by witnesses, Judges, parties to the proceedings and advocates: Cabassi v Vila [1941] ALR 33; (1940) 64 CLR 130. The protection offered to participants in court proceedings is based upon public policy considerations which are designed to advance the administration of justice so that people in court are at liberty to vigorously represent their case without fear of a collateral attack by means of an action based upon action in tort: see Giannarelli and Schulkes v Wraith [1988] HCA 52; (1988) 165 CLR 543. 58 I am also of the opinion that the claim by Mr Prefumo is an abuse of process. Again, it is an attempt to make a collateral attack on the decision of the Family Court of Western Australia by seeking damages as a result of the orders obtained by Ms Vollaire in the Family Court of Western Australia. 59 Accordingly, I give leave for Ms Vollaire to apply for an order under O 20 r 19 out of time. Further, I order that the statement of claim be struck out on the grounds that it fails to disclose a reasonable cause of action and the claim is an abuse of process. 60 Finally, I order that the claim of Mr Prefumo in action CIV 1426 of 2010 be dismissed. (Page 25)
Civil action number CIV 1519 of 2010 61 The next action commenced by Mr Prefumo against Ms Vollaire is CIV 1519 of 2010. 62 A statement of claim attached to the writ of summons pleaded as follows: An injunction was applied for in September 1998 by the defendant and subsequently granted, which had the result of restraining the plaintiff financially, preventing the plaintiff from being able to afford legal representation. All the plaintiff's legal documents were placed in storage with other possessions in September 1998. Due to financial difficulties the plaintiff was unable to service the storage fees and therefore unable to gain access to the plaintiff possessions and legal papers until September 2007. As per the court procedures, two market appraisals of the former matrimonial home had to be undertaken by both the defendant and the plaintiff, about June 1998. The plaintiff invited two real estate advisors to gain market appraisals of the ex-matrimonial home situate at 210, Northstead Street, Scarborough in the State of Western Australia. In addition of the two market appraisals submitted by the defendant where only a market appraisal of the value of the ex-matrimonial was requested, the defendant also submitted a defamatory and slanderous description of the interior housekeeping of the property by the plaintiff, this statement was used on several occasion by the defendant's solicitors in the divorce proceedings to the trial judge, and in affidavits by the defendant, the plaintiff has statement from other parties refuting the claim by the defendant. Since cohabitation ceased between the plaintiff and the defendant, the former matrimonial has been lived in by the plaintiff from July 24, 1997 and has been making the our [sic] mortgage repayments as stated on an affidavit signed by the defendant as "the agent had been at the property on previous occasions but did not enter the property". In this light of this statement made on an affidavit by the defendant, on what proof, can her defamation statements be proven. As it was the intention of the defendant was not to provide the two market appraisals as requested by the Family Law courts, her only motive was to highlight the housekeeping of the plaintiff who at the time was a part owner of the ex-matrimonial home situated at 210, Northstead Street, Scarborough in the State of Western Australia, and meeting the home mortgage repayments solely at the time, the privacy of the plaintiff was eroded. The plaintiff left or vacated the premises on August 25, 1998, the orders of the trial judge was that the ex-matrimonial home be vested in the wife's name forthwith but records (Page 26)
from Landgate show that the property situate at 210, Northstead Street, Scarborough in the State of Western Australia was transferred in the wife's name on January 13, 1999, some four (4) months after the final orders. The plaintiff is seeking punitive damages from the defendant for slanderous and defamatory statements on the character of the plaintiff, deprivation of privacy and not complying with the final orders of the Family. . 63 In my opinion the above statement of claim discloses no reasonable cause of action. The claim appears to be based upon a claim for damages for: 64 In my opinion the claim based upon defamation discloses no cause of action and is again misconceived in law. I repeat, the law is that no action lies in respect of things said in the course of proceedings by witnesses, judges, parties to the proceedings and advocates (see Cabassi v Vila [1941] ALR 33; (1940) 64 CLR 130). 65 I conclude that the other two claims for damages are not based upon any recognised cause of action. 66 I also conclude the claims are an abuse of process being a collateral attack on the order obtained in the Family Court of Western Australia by seeking damages as a consequence of the process and orders obtained in the Family Court. 67 Accordingly, I give Ms Vollaire leave to commence an application for an order under O 20 r 19 out of time. Further, I order that the statement of claim be struck out on the grounds that it fails to disclose a reasonable cause of action and is an abuse of process. 68 Finally, I order that the claim of Mr Prefumo in action CIV 1519 of 2010 be dismissed. (Page 27) Summary of decision 69 In summary I dismiss each of the proceedings commenced by Mr Prefumo in the Notices of Originating Motion and each of the five actions commenced by him by Writ of Summons. 70 I will hear the parties as to what costs orders should be made in the circumstances.
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