Vollaire (Sutton) v Prefumo
[2011] WADC 59
•14 APRIL 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: VOLLAIRE (SUTTON) -v- PREFUMO [2011] WADC 59
CORAM: SLEIGHT DCJ
HEARD: 1 & 21 DECEMBER 2010 & 3 MARCH 2011
DELIVERED : 14 APRIL 2011
FILE NO/S: CIVO 102 of 2010
BETWEEN: JEANNE MARIE PAOLA VOLLAIRE (SUTTON)
Plaintiff
AND
LOUIS MARCEL ANGELO GILBERT PREFUMO
Defendant
Catchwords:
Application under the Vexatious Proceedings Restriction Act 2002 (WA) - Statutory requirements - Scope of order when private individual applies - Turns on its own facts
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Orders made
Representation:
Counsel:
Plaintiff: Ms W F Gillan & Ms J Johnston
Defendant: In person
Amicus Curiae : Mr A J Sefton appeared on behalf of the Attorney General of Western Australia
Solicitors:
Plaintiff: Calverley Johnston
Defendant: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General v Michael [2005] WASC 203
Bourns Inc v Raychem Corp [1999] 1 All ER 908
Granich Partners v Yap [2003] WASC 206
Prefumo v Teague [2010] WADC 117
Prefumo v Vollaire [2011] WADC 22
Re; Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
SLEIGHT DCJ: The applicant, Ms Vollaire was previously married to the respondent, Mr Prefumo. The parties were divorced on 14 November 1998. As a result of the breakup of the marriage Ms Vollaire made an application to the Family Court of Western Australia for final property orders.
Prior to 31 August 1998 Mr Prefumo was employed in the finance administrative division of Westrail. On 31 August 1998 Mr Prefumo terminated his employment with Westrail and became entitled to a severance payment of $25,292.10 and a holiday entitlement of $5,945.31. On 8 September 1998 Ms Vollaire obtained an order in the Family Court of Western Australia restraining Mr Prefumo from dealing with or disposing of or in any way encumbering:
(a)any monies received by Mr Prefumo by way of severance pay, holiday pay, redundancy pay from his employer Westrail;
(b)any shareholding he may have in any company;
(c)any other asset in his possession, custody or control as at the date of the orders.
The order further provided that Mr Prefumo file by the close of the registry of the court on 11 September 1998 affidavits that he wished to rely upon at trial and in default that Ms Vollaire be given leave to proceed with her application for alteration of property interests on an undefended basis.
Mr Prefumo complains that as a result of his funds being blocked he was unable to obtain a solicitor. As a result he failed to file any affidavits and on 17 September 1998 when the matter came before Anderson J for hearing, the matter proceeded on an undefended basis (albeit it appears that Mr Prefumo was present but was not permitted to participate). Final orders were made on 17 September 1998 which included that the former matrimonial home vest in Ms Vollaire with her taking over liability for a mortgage registered against the property. Mr Prefumo, who was living in the house, was required to vacate the premises within seven days. Mr Prefumo states that all his papers were placed in storage in September 1998 and due to financial difficulties he was not able to access them until July 2007.
In 2010 Mr Prefumo initiated a large number of actions, the details of which will be given later in this decision. These actions were partly in response to what Mr Prefumo perceived was an injustice in the Family Court proceedings and attacks on his character. Some of the actions were also in response to a Family Violence Protection Order application made by Ms Vollaire in the Dandenong Magistrates Court in Victoria in 2010.
Application
The plaintiff has applied by notice of originating motion for an order under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act). By order of the Principal Registrar dated 26 October 2010 the Attorney General was granted leave to appear as amicus curiae in the application.
The notice of originating motion seeks a declaration that the defendant be declared a 'vexatious litigant' under s 4 of the Act. There is no such defined person under the Act.
On 20 December 2010 counsel for the plaintiff sought to amend the notice of originating motion to seek the following orders:
1.The plaintiff (Ms Vollaire) have leave to bring this application under the Act.
2.Pursuant to s 4(1)(c) of the Act that District Court actions CIV 523 of 2010, CIV 1132 of 2010, CIV 1370 of 2010, CIV 1426 of 2010 and CIV 1519 of 2010 together with originating motions CIVO 74 of 2010, CIVO 90 of 2010, CIVO 91 of 2010, CIVO 92 of 2010 and CIVO 93 of 2010 be stayed.
3.Pursuant to s 4(1)(d) of the Act that the defendant, Louis Marcel Angelo Gilbert Prefumo, be prohibited from instituting proceedings without the leave of the court under s 6(1) of the Act.
The grounds for the application stated on the amended notice of originating motion are that:
The defendant has instituted vexatious proceedings within the meaning of that expression in the Act and it is likely that the defendant will institute or conduct other vexatious proceedings.
In support of the application the applicant has filed the following affidavits:
1.Affidavit of Jean Marie Paola Vollaire sworn on 11 October 2010.
2.Affidavit of Katie Louise Pope sworn on 18 November 2010.
3.Affidavit of Katie Louise Pope sworn on 23 November 2010.
4.Affidavit of Katie Louise Pope sworn on 26 November 2010.
5.Affidavit of Julia Johnston sworn on 19 November 2010.
6.Affidavit of Julia Johnston sworn on 24 December 2010.
In opposition to the application Mr Prefumo has filed affidavits sworn by him as follows:
1.Affidavit of Louis Marcel Angelo Gilbert Prefumo sworn on 4 August 2010.
2.Affidavit of Louis Marcel Angelo Gilbert Prefumo sworn on 20 November 2010.
3.Affidavit of Louis Marcel Angelo Gilbert Prefumo sworn on 2 December 2010.
On 29 March 2011, Mr Prefumo filed a further affidavit dated 21 March 2011 but the contents of the affidavit were essentially in the nature of a submission.
Issues of admissibility
A number of admissibility issues have arisen concerning the affidavit material of the applicant:
1.Firstly, Mr Prefumo submitted the affidavit of Ms Vollaire dated 11 October 2010 had not been filed. He stated the service copy had no court stamp confirming filing. However, on the original copy on the court file the affidavit has a date stamp of the registry on the reverse side of the final page which apparently was not included on the service copy. Accordingly, I accept the affidavit has been properly filed.
2.Secondly, an issue arose as to the admissibility of a copy of a letter annexed to an affidavit of Ms Julie Johnston sworn on 19 November 2010. The letter was from Mr Prefumo addressed jointly to the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia and dated 30 October 2010. No explanation was given in the affidavit as to the source of this copy letter and how it came to be in the possession of Ms Johnston. A question arose as to whether the affidavit complied with O 37 r 6 of the Rules of the Supreme Court 1971 (WA) which requires an affidavit to be confined to facts as the deponent is able, of his or her own knowledge, to prove. However, in a supplementary affidavit of Ms Johnston sworn on 20 December 2010, Ms Johnston stated that the letter was received by her firm in the post and to the best of her recollection this occurred in early November 2010. In light of this supplementary evidence, I find the letter is admissible. In the absence of any explanation or denial from Mr Prefumo, I conclude that the letter was a copy of an original letter sent by Mr Prefumo to the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia. Accordingly, this letter forms a part of the material to be taken into account when considering the application made in these proceedings.
3.A further issue of admissibility arose in relation to the affidavit of Ms Johnston sworn on 19 November 2010 which deposed to the fact that Ms Johnston had previously acted for a Ms Arriadne Bradley in Supreme Court proceedings CIV 1924 of 2010, being an action commenced by Mr Prefumo against Ms Bradley. Mr Prefumo filed in these proceedings a subpoena for production of his mental health records. The State Crown Solicitor appeared on behalf of the Minister for Health raising certain objections in response to the subpoena. In support of these objections an affidavit was sworn by Jamie Nathan Gibson (the Programme Director for the Adult Programme, North‑Metro Area Health Service – Mental Health). This affidavit detailed Mr Prefumo's mental health condition and the grounds for objecting to producing various alleged confidential documentation. Mr Prefumo objected to the admissibility of the affidavit of Mr Gibson in these proceedings on the grounds that the affidavit of Mr Gibson was produced in response to a subpoena in other proceedings and could not be used for collateral purposes such as the present application (Bourns Inc v Raychem Corp [1999] 1 All ER 908). In response to this objection Ms Gillan appearing for Ms Vollaire indicated that she abandoned any reliance upon the affidavit of Mr Gibson and accordingly I have not taken this material into account.
The Act
Section 4 of the Act provides as follows:
(1)If a Court is satisfied that —
(a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b)it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders —
(c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d)an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
(2)An order under subsection (1) may be made by the Court on its own motion or on the application of —
(a)the Attorney General;
(b)the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or
(c)with the leave of the Court —
(i)a person against whom another person has instituted or conducted vexatious proceedings; or
(ii)a person who has a sufficient interest in the matter.
(3)The Court must not make an order under subsection (1) —
(a)staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or
(b)prohibiting a person from instituting proceedings, or proceedings of a particular class,
without hearing that person or giving that person an opportunity of being heard.
Section 3 of the Act defines 'proceedings'. The definition includes all forms of originating proceedings, any interlocutory proceedings and any appeal from any decision or determination whether final or interlocutory.
Section 3 of the Act defines 'vexatious proceedings' to mean proceedings:
(a)which are an abuse of the process of a court or a tribunal;
(b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c)instituted or pursued without reasonable ground; or
(d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
This definition includes both proceedings which are intentionally vexatious and also proceedings which are vexatious by an objective standard if they constitute an abuse of process of the court or are brought or pursued without reasonable grounds. Hence, proceedings may be vexatious if they have these objective characteristics regardless of the personal intention, motive or state of mind of the litigant (see Granich Partners v Yap [2003] WASC 206).
The parties who may apply to the court under the Act seeking an order under s 4 includes not only the Attorney General (who under previous legislation was the only person who could apply) but also now the Principal Registrar of the Supreme Court or District Court or with leave, a person against whom the respondent has instituted or conducted vexatious proceedings, or a person who has a sufficient interest in the matter.
The fact that leave must be sought by a private applicant is to ensure that such applications are not used as instruments of oppression or tactical exercise between adversaries. The court will only consider the exercise of this jurisdiction if it is satisfied there are substantial grounds for doing so and there is sufficient reason to embark on an enquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the court. Relief should be given not only to remove the inconvenience or harassment of a private litigant but also to avoid the waste of public resources (Granich Partners v Yap [31] (Heenan J)).
In summary before an order is made under s 4 of the Act the court must decide in this case:
(a)whether leave should be granted to Ms Vollaire to make this application;
(b)whether it is satisfied that Mr Prefumo has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings;
(c)if the court is satisfied of those matters, it is then necessary for the court to consider whether to exercise its discretion to make an order under the Act; and
(d)if the court is satisfied it is an appropriate case to exercise its discretion, the court will then need to consider the appropriate terms of any order it makes under the Act (Attorney General v Michael [2005] WASC 203 [13] (Le Miere J)).
In deciding whether a discretion should be exercised the court should take into account the following principles which were stated by Le Miere J in Attorney General v Michael as follows:
The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, he is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by the section must be exercised with caution.
At the same time, the court must have regard to the purpose of the Act. The institution or conduct of unmeritorious litigation will have an emotional and financial impact on the other parties to the litigation. Innocent parties may be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out of pocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. The Act is intended to provide protection to a person who may be the target of vexatious litigation. Furthermore, the time of the court is unreasonably occupied in dealing with vexatious litigation. Not only are the resources of the court wasted in dealing with vexatious litigation. Not only are the resources of the court wasted in dealing with such litigation but other more worthy litigation is delayed.
It is clear that a cautious approach should be taken before making an order under the Act against a self‑represented litigant. Kirby J in Re; Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321 wrote in relation to vexatious litigant provisions of the High Court rules:
First, it is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented;
Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this Court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the Court's jurisdiction (323).
Litigious history of Mr Prefumo
Before reaching a conclusion concerning the application of Ms Vollaire it is necessary that I consider the various proceedings and the conduct of Mr Prefumo upon which the application is based.
(a) District Court action numbers 523/2010, 1132/2010, 1370/2010, 1426/2010 and 1519/2010
In 2010 Mr Prefumo commenced five separate actions in the District Court against his ex‑wife, Ms Vollaire. I have described the details of each of these actions in my earlier decision, Prefumo v Vollaire [2011] WADC 22. In each of these actions the statement of claim was struck out and judgment entered for Ms Vollaire on the basis that either the statement of claim lodged by Mr Prefumo failed to disclose any reasonable cause of action and/or the claim was an abuse of process.
(b) District Court proceedings CIVO 74/2010, CIVO 90/2010, CIVO 91/2010, CIVO 92/2010 and CIVO 93/2010
Related to the five actions mentioned above, Mr Prefumo also commenced five applications seeking an extension of the time limitations for commencing the proceedings in a purported attempt to overcome a pleaded defence in each action that the claim was statute barred. I concluded in my earlier decision (Prefumo v Vollaire) that each of these applications was misconceived and orders were made dismissing each of the applications. The applications were misconceived because they were based upon a misunderstanding of the law as detailed in my earlier decision. In summary Mr Prefumo made an application under the Limitation Act 2005 (WA) which had no application to these matters. Accordingly, the application made in each proceeding was instituted without reasonable grounds (s 3 of the Act).
(c) Other District Court proceedings
Prefumo v Teague – CIV 1298 of 2010
In May 2010 Mr Prefumo commenced an action in the District Court of Western Australia against Ms Christine Teague claiming damages against the defendant alleging that she in her capacity as manager of the Occupational Health and Safety Office of Westrail, released information in relation to Mr Prefumo's employment with Westrail, which information was used in divorce proceedings between Mr Prefumo and Ms Vollaire.
On 9 August 2010 his Honour Judge Eaton handed down a decision granting summary judgment to the defendant, Ms Teague (Prefumo v Teague [2010] WADC 117). His Honour in his decision concluded that the action 'had no prospect of success' [38]. His Honour stated in his decision that he had difficulty identifying any reasonable cause of action disclosed by Mr Prefumo's statement of claim. In any event his Honour concluded that any claim that existed was statute barred. He stated further as follows:
Having considered the matters put before me at the hearing of the defendant's application and the material provided by both parties preceding that hearing I conclude that the defendant has a good defence on the merits and that judgment should be entered for the defendant. I accept that the action is not frivolous or vexatious but rather that the plaintiff is, to a degree, misguided, perhaps by reason of inappropriate advice or perhaps by his misunderstanding of appropriate advice. Whatever be the case, the action is forlorn and must be terminated. [37]
His Honour declined to make an order for costs against Mr Prefumo on the basis that Mr Prefumo was impecunious.
Prefumo v Skinner – CIV 1427 of 2010
On 13 May 2010 Mr Prefumo commenced proceedings in the District Court against Ms Kathleen Eleanor Skinner, claiming damages relating to an appraisal allegedly conducted by Ms Skinner in relation to property settlement proceedings between Mr Prefumo and Ms Vollaire. The statement of claim attached to the writ of summons pleads as follows:
The plaintiff, Louis Marcel Angelo Gilbert Prefumo of 28/50 Edgefield Way, North Beach 6020 in the State of Western Australia is seeking general and compensatory damages from the defendant, Kathryn Eleanor Skinner (now Franklyn) of 11, Alver Road, Doubleview in the State of Western Australia 6019.
Ms KE Skinner (now Franklyn) was requested by the plaintiff to carry out an appraisal of the ex‑matrimonial home situate at 210, Northstead Street, Scarborough 6019, of the State of Western Australia on February 10, 19 … as part of divorce proceedings and property settlement with his ex‑spouse Ms Jeanne Marie Vollaire.
Ms KE Skinner (now Franklyn) was given exclusive access to the property at 210, Northstead Street, Scarborough 6019 by the plaintiff to provide the appraisal solely for his benefit in the court and settlement of property matters.
As well as providing an appraisal for the plaintiff, Ms KE Skinner (now Franklyn) also provided an assessment of the property for the other party in the divorce proceedings Ms JMP Prefumo, a conflict of business and ethical interests, a breach of confidentiality, privilege information and misrepresentation to gain access to the ex-matrimonial home situate at 210, Northstead Street, in the State of Western Australia. The conflict of interest was at a result of representing the two parties in the divorce and settlement of property divorce proceedings in the Family Court of Western Australia case no PTW6199 of 1997. Ms KE Skinner (now Franklyn) wrote a defamatory letter to Jeanne Marie Vollaire, the other party to the settlement matter on February 19, 1998 which was included in the affidavits which was submitted to the law firm of Jamieson and Johnson, who represented Ms Jeanne Marie Paola Vollaire in the settlement divorce proceedings dated July 1, 1998. Also on the same sworn affidavit, Ms KE Skinner (now Franklyn) states as follows 'In my view because of the state of the premises the value of the property has dropped substantially' but the selling price range of the ex-matrimonial home situate at 210, Northstead Street, Scarborough 6019, in the State of Western Australia in Ms KL Skinner (now Franklyn) a real estate consultant increased in value from a selling range of between $180,000.00 to $190,000.00 for the plaintiff whilst the selling range of the same property some six days after on February 16, 1998 ranged from $215,000.00 to$225,000.00 with no adjustment to the property at all; for Ms JMP Vollaire. Ms KE Skinner (now Franklyn) received a commission of $6,950.00 as the selling agent of the property situate at 210, Northstead Street, Scarborough, Western Australia from the other party, Ms JMP Vollaire. The affidavit submitted and signed on oath which is in conflict with other witnesses who sighted the property on about the same time period had a detrimonial [sic] and adverve [sic] impact on the divorce proceedings in relation to the property settlement and contributed to my loss of the property and eviction of my person from the matrimonial home.
These proceedings have not progressed beyond the filing of the writ of summons.
Prefumo v Department of Housing – CIV 2942 of 2010
On 28 September 2010 a writ of summons was issued by Mr Prefumo against the Minister for Housing alleging that personal injuries Mr Prefumo had suffered on 30 September 2004 were caused by an accumulation of gas from an unserviced and/or faulty gas heater in his accommodation at Unit 29/50 Edgefield Way, North Beach.
On 29 October 2010 Mr Prefumo also filed an originating motion seeking leave under s 47A of the Limitation Act1935 (WA) to commence the proceedings against the Minister for Housing out of time.
It is not disputed by Ms Vollaire that Mr Prefumo has suffered significant injuries as a result of the accident in 2004. Counsel for Ms Vollaire in submissions has made it clear that the action by Mr Prefumo against the Department of Housing is not an action which is relied upon to support the application under the Act.
(d) Supreme Court proceedings
Mr Prefumo has commenced in 2010 two actions in the Supreme Court, namely:
Prefumo v Sutton (nee Vollaire) - CIV 1798 of 2010
This is an action commenced on 31 May 2010 against Ms Vollaire. The statement of claim attached to the writ reads as follows:
A violence restraining protection intervention order was taken against the plaintiff, Louis Marcel Angelo Gilbert Prefumo by the defendant, Jeanne Marie Paola Sutton (nee Vollaire), at the Magistrates Court at Dandenong, in the State of Victoria on May 21, 2010.
The plaintiff was never served by the defendant, of a copy of the application of the family violence order or summoned to the hearing, the interim intervention order No A11366324 was made in the absence of the plaintiff not being present or legally represented at the hearing.
The interim intervention order was served on the plaintiff by the Western Australia Police Service at his domain in Western Australia at 11.15 hrs WST on Saturday May 22, 2010. The plaintiff is seeking damages from the defendant as a violence protection order, is defamatory to his good and examplantory [sic] 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 libelous [sic] and slenderous [sic].
Let the record show that the defendant's address is 2, Cove Court, Endeavour Hills in the State of Victoria, and the address of the claimant is 28/50 Edgefield Way, North Beach, in the State of Western Australia.
There has not been no contacts between both parties since cohabition [sic] ceased on July 25, 1997.
On gaining access to his legal papers from the warehouse storage in Western Australia in July 2007, due to financial difficulties and an injunction placed on the plaintiff by the defendant in September 1998, the plaintiff commenced legal proceedings against the defendant by way of writ of summons executed by the District Court of Western Australia. The writ of summons was served on the defendant by the Sheriff's Bureau of the State of Victoria.
These proceedings are still pending.
Prefumo v Bradley – CIV 1924 of 2010
This action was commenced by Mr Prefumo on 21 June 2010. The claim is against his sister seeking damages for slanderous and libel as a result of statements allegedly made by Ms Bradley in a Family Violence Protection Order application taken out by Ms Vollaire in the Dandenong Magistrates Court in the State of Victoria. A copy of the statement of claim is set out below:
1.I, Louis Marcel Angelo Gilbert Prefumo, am the plaintiff of these proceedings.
2.Arriadne Marie Noelle Bradley is the defendant in these proceedings.
3.The plaintiff is seeking unspecified damages of slenderous [sic] and libelous [sic] actions by the defendant.
4.The defendant has made slenderous [sic] and libelous [sic] damaging statements in collaboration with Jeanne Marie Paola Sutton (nee Vollaire) of 4, Cove Court in the State of Victoria, on oath, in an application for a family protection order held in the Dandenong court in the State of Victoria, on May 21, 2010.
5.Jeanne Marie Paola Sutton (nee Vollaire) is the plaintiff of a family violence order no A11366324.
6.On oath JMP Sutton (nee Vollaire) stated that Arriadne Marie Noelle Bradley stated to her around the end of March 2010, that the plaintiff, LMAG Prefumo, "was going to get me" as quoted on oath by Jeanne Marie Sutton (nee Vollaire).
7.On May 22, 2010, the plaintiff was informed by a phsychiatrist [sic] nurse Virginia Sabarthan, who is employed at the Osborne Park Mental Clinic, Osborne Park in the State of Western Australia that the defendant had made several telephone calls to the Osborne Park Mental Clinic, Osborne Park, WA, in the past months in regard to the deterioting [sic] of the mental health of the plaintiff.
8.The Osborne Park Mental Clinic had made a log of these calls, including the originating telephone number, the caller's name, the time and date of these calls and the relevant details of these calls.
9.The plaintiff is claiming damages of a defamatary [sic] and slendous [sic] nature which her actions has had and will have in the future of the plaintiff.
10.Costs be awarded of the court to the plaintiff exclusively.
11.The plaintiff has in place a violence restraining order against the defendant in the Magistrates Court of Western Australia, case no PE809/10, which was taken out about the same time of March 2010.
In addition to these two actions Mr Prefumo has lodged three applications by way of Notices of Originating Motion seeking leave to commence proceedings. These are as follows.
Prefumo v Johnston – CIV 2788/2010
On 28 November 2010 Mr Prefumo filed an application in the Supreme Court seeking an order under O 67 r 5 of the Rules of the Supreme Court for leave to commence an action for damages against Ms Julie Johnston, a partner of the firm of solicitors who act for Ms Vollaire. The application seeks leave to commence an action against Ms Johnston seeking 'punitive, personal and general damages'. It would appear the claim relates to a claim for damages arising from financial hardships suffered by Mr Prefumo as a result of Family Court orders obtained against him.
Prefumo v Calverley – CIV 2789 of 2010
On 8 November 2010 Mr Prefumo also lodged an application in the Supreme Court seeking leave under O 67 r 5 of the Rules of the Supreme Court to commence an action against Mr Mark Calverley, a partner of the firm of solicitors who acted for Ms Vollaire. The application seeks leave to commence an action against Mr Calverley seeking 'punitive, personal and general damages'. Again, the claim appears to relate to financial hardship suffered by Mr Prefumo as a result of Family Court orders obtained against him.
Prefumo v Johnnie Rika Prefumo – CIV 2826 of 2010
On 15 November 2010 Mr Prefumo filed an application in the Supreme Court for leave to commence proceedings seeking damages against his brother for defamation and slander. According to the affidavit of Mr Prefumo sworn on 21 December 2010 the claim relates to an application for a restraining order by the defendant against Mr Prefumo.
(e) Proceedings in the Magistrates Court
According to searches conducted by Ms Pope of the State Solicitors Office there are three minor claim matters commenced by Mr Prefumo in 2010. These were as follows:
Prefumo v Bredmeyer – minor case claim 7173/2010
On 13 May 2010 Mr Prefumo commenced proceedings against Dr Bredmeyer. The claim by Mr Prefumo was for the sum of $240 plus costs as a result of loss of income due to Mr Prefumo being kept waiting in the waiting room of Dr Bredmeyer for two hours. Dr Bredmeyer admitted the claim and judgment was entered accordingly.
Prefumo v All State Advisory – minor case claim 7175/2010
Mr Prefumo commenced a minor case claim on 13 May 2010 against All State Advisory seeking a refund of monies paid to All State Advisory which is a dating agency. The proceedings remain current.
Prefumo v Virginia Sabaratnan – minor case claim 8469/2010
This was a claim lodged by Mr Prefumo on 3 June 2010 against a psychiatric nurse. The claim relates to the failure of the defendant to provide a favourable psychiatric report as promised which Mr Prefumo wished to use in a violence restraining order matter against a Ms Bradley. Subsequently Mr Prefumo filed a notice of discontinuance of this claim.
In addition to the minor case claim matters Mr Prefumo has also made an application for a Violence Restraining Order against a Ms Arriadne Marie Noelle Bradley – Restraining Order matter 809 of 2010. This matter came before Magistrate Tavener on 26 July 2010 for hearing. The application for a Violence Restraining Order was dismissed.
Correspondence
In addition to the multitude of proceedings outlined above, Mr Prefumo has also engaged in correspondence with the Chief Justice of the Family Court of Western Australia, the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia.
In correspondence between Mr Prefumo and the Chief Justice of the Family Court of Western Australia, Mr Prefumo was advised that if he was dissatisfied with the outcome in the Family Court of Western Australia concerning property settlement orders that the right of appeal was subject to strict time limits which had expired. However, he was advised of the provisions of s 79A of the Family Law Act 1975 (Cth) which entitled an application to be made at any time. Section 79A 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 and any other circumstance; or
(b)…
the court may in its discretion vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
It is common ground that Mr Prefumo has now made an application to the Family Court of Western Australia under s 79A of the Family Law Act 1975 (Cth).
As mentioned earlier in this decision, Mr Prefumo sent a letter dated 30 October 2010 addressed jointly to the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia. The letter complained of Mr Calverley and Ms Johnston describing Mr Prefumo in proceedings in the Supreme Court of Western Australia and the District Court of Western Australia as a vexatious litigant. The letter goes on to give notice to the Chief Justice of Western Australia, the Chief Judge of the District Court of Western Australia, Mr Calverley and Ms Johnston that should the term 'vexatious litigant' be used in any type of communication whatsoever, that Mr Prefumo will instruct his solicitors to commence legal proceedings against Mr Calverley and Ms Johnston for 'slander and defamation of character'.
Similarly, in proceedings before the Principal Registrar on 11 November 2010 in Prefumo v Vollaire (CIV 1132 of 2010) Mr Prefumo informed the Principal Registrar that Mr Prefumo would commence legal proceedings against anybody calling Mr Prefumo a vexatious person.
Should leave be granted to the plaintiff to make this application?
As detailed earlier in this decision Mr Prefumo in 2010 commenced five separate actions in the District Court against Ms Vollaire and five applications by notice of originating motion. On the basis of these actions alone I am satisfied that Mr Prefumo has instituted or conducted vexatious proceedings against Ms Vollaire on the objective grounds that each of the proceedings was an abuse of process of the court and/or instituted and pursued without reasonable ground (see definition of vexatious proceedings under s 3 of the Act).
Further, given the number of actions and the nature of the claims instituted by Mr Prefumo against Ms Vollaire I find that these proceedings have created an emotional and financial impact on Ms Vollaire. She confirms this in her affidavit of 11 October 2010 wherein she details the financial and emotional hardship the proceedings have caused her. This is particularly as she has suffered cancer and subsequently undergone chemotherapy.
Based upon the number and the nature of the proceedings against Ms Vollaire, I have concluded that she has a sufficient interest to be granted leave.
Has Mr Prefumo instituted or conducted vexatious proceedings or is he likely to institute or conduct vexatious proceedings?
On the basis of my findings in Prefumo v Vollaire, that the claims of Mr Prefumo against Ms Vollaire in each action (being CIV 523 of 2010, CIV 1132 of 2010, CIV 1370 of 2010, CIV 1426 of 2010 and CIV 1519 of 2010) were an abuse of process, it follows that Mr Prefumo has instituted and conducted vexatious proceedings as defined in s 3(a) of the Act.
It is not necessary for the purpose of this finding to take into account the other actions or proceedings instituted by Mr Prefumo in the District Court of Western Australia or other jurisdictions. In any event I conclude it would be inappropriate for me to draw any conclusions about the proceedings commenced in the Supreme Court of Western Australia as to whether any of them is an abuse of process while those proceedings are still pending. Likewise, I draw no conclusion as to whether the proceedings in the Magistrates Court constitute an abuse of process.
The proceedings instituted by Mr Prefumo District Court action CIVO 74, CIVO 90, CIVO 91, CIVO 92 and CIVO 93 of 2010 were not in my opinion an abuse of process, albeit in Prefumo v Vollaire I dismissed each of these applications.
Of course, whether proceedings commenced by Mr Prefumo were an abuse of process is not the sole basis upon which a finding can be made that Mr Prefumo instituted or conducted vexatious proceedings as defined in s 3 of the Act.
I do not believe that Mr Prefumo has instituted the large number of proceedings described earlier in this decision with an intention to 'harass or annoy, to cause delay or detriment, or for any other wrongful purpose'. I am satisfied that Mr Prefumo genuinely believes that in each action he has commenced that he has a legitimate claim. Mr Prefumo believes that a serious injustice occurred as a result of the proceedings in the Family Court of Western Australia in 1998 and more recently in the Dandenong Magistrates Court, and is simply doing what he believes is necessary to correct the injustice that he perceives has occurred. Unfortunately, his lack of legal training has caused him to commence proceedings in the District Court of Western Australia which, as I found in Prefumo v Vollaire, could not be sustained and were an abuse of process. Also, Mr Prefumo perceives that any attack on his character in proceedings constitutes an action for defamation. Hence the claims in the District Court of Western Australia in CIV 1426 of 2010 and CIV 1519 of 2010 which were both claims for damages for defamation for attacks on Mr Prefumo's character in the course of proceedings. Likewise, Mr Prefumo in correspondence with the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia threatened defamation proceedings if any person referred to him as a 'vexatious litigant'. Mr Prefumo's perception that he has a legitimate claim in relation to such matters is based upon his misconceptions in law as explained in my reasons in Prefumo v Vollaire for dismissing each of these defamation actions in the District Court of Western Australia. However, as noted earlier in this decision, proceedings may be vexatious proceedings if they are conducted in such a manner so as to have the objective characteristics that they fulfil the criteria of s 3(d) that they 'harass or annoy, cause delay or detriment, or achieve any other wrongful purpose'. I am satisfied that the actions commenced by Mr Prefumo against Ms Vollaire in the District Court of Western Australia by their nature and number have been conducted in a manner so as to in an objective sense harass and annoy Ms Vollaire and have caused her detriment in terms of incurring what are likely to be substantial legal costs in defending the actions. It appears her chances of recovering any costs awarded is problematic.
Accordingly, I am satisfied on this alternative ground under s 3(d) of the Act, that Mr Prefumo has instituted and conducted vexatious proceedings against Ms Vollaire.
Further, I conclude that in light of my conclusions in Prefumo v Vollaire that each of the five actions commenced by Mr Prefumo did not disclose a reasonable cause of action, these five actions were instituted and conducted 'without reasonable ground' within the meaning of s 3(c) of the Act.
Accordingly, for the above reasons, I am satisfied pursuant to s 4 of the Act that Mr Prefumo has instituted and conducted vexatious proceedings against Ms Vollaire. Further, I am satisfied that, in light of Mr Prefumo's past conduct, he is likely to institute or conduct vexatious proceedings in the future.
Should I exercise a discretion to make an order under the Act?
In my opinion I should exercise my discretion to make an order under the Act in order to prevent Ms Vollaire from further proceedings against her by Mr Prefumo. I refer to my reasons earlier in this decision for granting leave for Ms Vollaire to make an application under the Act. It is clear that the proceedings commenced by Mr Prefumo have caused Ms Vollaire financial and emotional hardship at a most difficult time in her life. Also, the proceedings against her relate back to Family Court proceedings in 1998 and in my opinion she should not be harassed by further proceedings against her by Mr Prefumo relating to matters in the Family Court such a long time ago. Further, there are remedies available for Mr Prefumo to seek a re‑opening of the case by making an application to the Family Court of Western Australia under s 79A of the Family Law Act 1975 (Cth), which has in fact happened.
Although, as acknowledged in the decision of Attorney General v Michael, a person's right to commence proceedings to defend their rights represents a major restriction on the liberty of the individual, it does not deny the person in absolute terms access to the courts. It simply requires that the person take the additional step of obtaining the permission of the court prior to any claims being instituted. Accordingly, the exercise of a discretion under the Act to make an order will not deny Mr Prefumo access to the courts but simply prevent him commencing actions against persons protected by the order without the court at least acting as a filter and agreeing that the claim has sufficient legal merit to warrant commencement of the proceedings.
Such an order will not only protect certain individuals from future vexatious proceedings but also prevent a waste of public resources.
I conclude that in all the circumstances it is appropriate that I exercise my discretion to make an order under the Act in order to provide protection for Ms Vollaire.
Form of the order
The application of Ms Vollaire seeks a general prohibition against Mr Prefumo instituting proceedings without leave of the court. This would normally not be appropriate where the application is made by a private individual to protect his or her interests. In such circumstances any order should normally be designed to protect that person only (Granich Partners v Yap [54]). However, in this matter it is necessary to give careful consideration to the terms of the order to provide adequate protection for Ms Vollaire. It is clear that in many of the proceedings commenced by Mr Prefumo against individuals other than Ms Vollaire, an indirect link exists to Ms Vollaire, in that the defendant has either acted for Ms Vollaire or in some way given assistance to her in proceedings against Mr Prefumo. In summary, in relation to the Family Court proceedings between Mr Prefumo and Ms Vollaire, the following actions have been instituted by Mr Prefumo:
(a)Prefumo v Teague – District Court CIV 1298 of 2010;
(b)Prefumo v Skinner – District Court CIV 1427 of 2010;
(c)Prefumo v Johnston – District Court CIV 2788 of 2010; and
(d)Prefumo v Calverley – District Court CIV 2789 of 2010.
In relation to the Family Violence Protection Order proceedings in Dandenong, Victoria by Ms Vollaire, Mr Prefumo has instituted the following actions:
(a)Prefumo v Sutton (nee Vollaire) – Supreme Court Action No 1798 of 2010; and
(b)Prefumo v Bradley – Supreme Court Action No 1924 of 2010.
In addition, correspondence sent by Mr Prefumo to the Chief Justice of Western Australia and the Chief Judge of the District Court of Western Australia, has contained a threat of legal action against Mr Calverley and Ms Johnston (the solicitors acting for Ms Vollaire) if the term 'vexatious litigant' is used in 'any communication whatsoever'.
All of the actions against persons other than Ms Vollaire listed above are, in my opinion, collateral attacks on the orders obtained by Ms Vollaire in the Family Court of Western Australia in 1998 or in the Dandenong Magistrates Court. Further, such proceedings against other persons assisting Ms Vollaire in court proceedings are likely to have the indirect effect of harassing and annoying Ms Vollaire, discouraging her from seeking lawful remedies in court proceedings against Mr Prefumo in the future and at the very least caused Ms Vollaire embarrassment. In such circumstances I am satisfied that this is a rare case where the orders that should be made should go beyond simply prohibiting Mr Prefumo from commencing proceedings against Ms Vollaire. I believe that an order should be made prohibiting Mr Prefumo from instituting any proceedings (as defined in the Act other than appeals) against the persons listed below or any persons who have acted or represented Ms Vollaire in legal proceedings or given oral evidence or provided a witness statement, affidavit or report that was tendered or filed on her behalf, in any proceedings to which Mr Prefumo was or is a party, without leave of the court or tribunal, as the case requires under s 6(1) of the Act. I also believe the protection should extend to staff of the various courts in case Mr Prefumo seeks to blame court staff for any outcome.
List of protected persons
The following is the list of protected persons:
(1)Jeanne Marie Paola Vollaire (Sutton);
(2)Christine Teague;
(3)Kathleen Eleanor Skinner (now Franklyn);
(4)Arriadne Marie Noelle Bradley;
(5)Julia Johnston;
(6)Mark Calverley;
(7)Kate Louise Pope;
(8)Wendy F Gillan;
(9)Mr Alan John Sefton; and
(10)Any court staff.
The order should further provide that the prohibition shall not apply to appeals against decisions in any proceedings already instituted, including this decision. In my opinion Mr Prefumo should not be limited in pursuing rights of appeal.
I will hear the parties as to the final form of the orders.
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