Vollaire (Sutton) v Prefumo - [2011] WADC 59

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vollaire (Sutton) v Prefumo

Details

AGLC: Vollaire (Sutton) v Prefumo [2011] WADC 59
Case: [2011] WADC 59
Decision Date: 14 APRIL 2011

CaseChat Overview and Summary

The case of Vollaire (Sutton) v Prefumo was an application under the Vexatious Proceedings Restriction Act 2002 (WA) where the plaintiff sought to restrict the defendant’s ability to commence proceedings against her. The plaintiff, Vollaire, had previously been involved in a contentious legal dispute with the defendant, Prefumo, over a property transaction. Vollaire claimed that Prefumo had engaged in vexatious litigation by repeatedly bringing claims against her, which she argued were frivolous and intended to cause her distress. Vollaire sought an order to prevent Prefumo from commencing any further proceedings against her without first obtaining leave from the court.

The primary legal issue before the court was the interpretation of the statutory requirements for making an order under the Vexatious Proceedings Restriction Act 2002 (WA) when a private individual, as opposed to a public official, applies for such an order. Specifically, the court had to determine the scope of the order that could be made in these circumstances. The court also considered whether the nature and conduct of the previous litigation between the parties warranted the imposition of such restrictions on Prefumo’s ability to initiate further proceedings.

The court found that the statutory provisions applied equally to private individuals and public officials, and that an order could be made to restrict the defendant's right to commence proceedings without leave. The court emphasised that the criteria for making such an order should be interpreted flexibly to ensure that vexatious litigation is effectively curtailed, while also safeguarding against unjust restrictions on legal rights. In this instance, the court concluded that the previous litigation had indeed been vexatious and that an order was warranted to prevent a recurrence of such conduct. The court made an order restricting Prefumo from bringing any further proceedings against Vollaire without first obtaining leave from the court.

Orders