Pierno v Rixon

Supreme Court of NSW|2012-08-30|Before: Hidden J

Judgment

HIS HONOUR: By a statement of claim of 30 August 2010 the plaintiff, Jennifer Ruth Pierno, instituted proceedings against three defendants. The third defendant, Raffaele Pierno, is her husband, from whom she has been separated for some years. The second defendant, Leonie Anne Rixon, is Raffaele Pierno's current partner. The first defendant, Cheralyn Marie Rixon, is Leonie Rixon's mother. It is convenient to refer to the defendants by their names.
None of the defendants has filed a defence to the statement of claim. Before me for decision are two motions. The plaintiff seeks orders that the defendants file any defence within 7 days and, if they do not, that she be at liberty to apply for judgment. The defendants have filed a motion seeking the summary dismissal of the statement of claim. The plaintiff is a solicitor, and she prepared the statement of claim and appeared at the hearing of the motion without legal representation. The defendants are also unrepresented. The three of them live together in Brisbane.

The statement of claim

The background to the proceedings is to be found in the circumstances of the plaintiff's separation from Raffaele Pierno in 2008 and the aftermath of it. In the statement of claim the plaintiff alleges conduct on the part of the three defendants which caused her psychological trauma and economic loss, and she claims damages of $1,000,000 and an injunction restraining the defendants from "further acts of harassment" against her.

Negligence - nervous shock

The defendants are alleged to have caused the plaintiff nervous shock by the following conduct: (a) Raffaele Pierno engaged the services of prostitutes while he was married to the plaintiff, knowing that she was a person of strict Catholic beliefs to whom such a practice would be unacceptable. (b) Cheralyn Rixon sent a "false and defamatory e-mail" to a friend of the plaintiff. (c) The three defendants conspired together on two occasions to commence domestic violence proceedings, in the course of which they made false allegations and Raffaele Pierno "committed acts of perjury". (d) The three defendants conspired together to make a complaint against the plaintiff to the Legal Services Commission of New South Wales, in the course of which they made false statutory declarations and other false statements. It is alleged that all three defendants knew that this conduct would cause the plaintiff "shock and mental anguish."

Assault

There is a claim of assault against Leonie Rixon and Raffaele Pierno. It is alleged that Leonie Rixon made a phone call to the plaintiff threatening her that she should "remove herself from her home for reasons of personal safety." These statements are said to have been "calculated to create in the mind of the plaintiff an apprehension of imminent harmful or offensive direct contact and the belief that [Ms Rixon] had the means to carry out that threat." The plaintiff claims to have been able to overhear Mr Pierno offering "suggestions and advice" to Ms Rixon during that conversation.

Infliction of psychiatric injury

There is a claim against the three defendants for the intentional, or negligent, infliction of psychiatric injury. It is alleged that the three of them, "in concert and individually", engaged in conduct with the intention of causing harm to the plaintiff in that, knowing that she suffered a condition of post-traumatic stress, they "carried out acts of persecution" against her and "failed to respect" her health, both mental and physical.
In particular, the defendants are alleged to have conspired "to bring false and malicious proceedings on two occasions" against the plaintiff, and for that purpose to have made statutory declarations and sworn affidavits containing knowingly false statements, including the following: (i) that the plaintiff assaulted Raffaele Pierno; (ii) that she stalked the three defendants; (iii) that she lied to Insolvency and Trustee Service Australia; (iv) that she tried to extort money from Mr Pierno; (v) that she stole his property; (vi) that she is a person of loose sexual morals.
Further, it is alleged that the defendants conspired "to abuse the complaints process of the New South Wales Legal Services Commission" by making a complaint against the plaintiff for the purpose of destroying her professional career, in the course of which "false statutory declarations and other statements" were made, including the following: (i) that the plaintiff assaulted Mr Pierno; (ii) that she stalked the three defendants; (iii) that she threatened to murder Mr Pierno; (iv) that she preys on young men; (v) that she is not a fit and proper person to be a solicitor; (vi) that she is not a fit and proper person to be a registered migration agent.
The defendants are said to have "conspired together to spread false rumours about the plaintiff's moral standards, sexual activities, and social conduct with the express purpose of damaging" her peace of mind, and it is alleged that their actions "over a period of time exhibit a pattern of conduct aimed at destroying" her mental well being.

Abuse of process

Next, the plaintiff alleges that the three defendants conspired "to issue legal process" against her "in order to achieve an improper purpose, namely to harass and discredit" her. While these proceedings were brought in the name of Raffaele Pierno, it is alleged that the other two defendants colluded with him "in creating false evidence and signing false statutory declarations." It is further alleged that Mr Pierno and Leonie Rixon "committed perjury" in certain Federal Magistrate Court proceedings by swearing affidavits falsely stating that the plaintiff could not be found and was avoiding service of documents. They are said to have done so for the purpose of discrediting her in those proceedings and injuring her reputation as a solicitor.
She also claims that Mr Pierno and Leonie Rixon made complaints to the Legal Services Commission with "a collateral purpose of achieving results they were unable to achieve in Court proceedings." In relation to those complaints the three defendants were again alleged to have conspired to make false statements to the same effect as those set out in [9] above.

Deceit

Finally, there is a claim in deceit against Raffaele Pierno only. It is alleged that he made fraudulent representations to the plaintiff "in order to gain permanent residence in Australia and to gain economic advantage." He is said to have "knowingly made false representations about his character with the express intention" that she would rely upon those representations. She claims to have relied upon them and to have suffered damage as a result. That damage, as with the other claims except the assault, is said to be psychological trauma and economic loss. In respect of the assault only psychological trauma is alleged.

The evidence

Affidavits were filed by the plaintiff and each of the three defendants. Certain additional material was supplied to me by the plaintiff and Raffaele Pierno after the hearing of the motions. With the exception of one matter, I shall summarise the effect of all this material without determining its admissibility. The one exception is a reference in the defendants' affidavits to costs outstanding under an order made against the plaintiff in May 2011 in respect of an interlocutory application in these proceedings. (This was at a time when the defendants were legally represented.) That issue is not relevant to the applications before me, and I put it aside.

The plaintiff

The plaintiff relies primarily upon affidavits of 7 January and 23 February 2011, the second affidavit being a lengthy document with substantial annexures. These affidavits were prepared at an earlier stage of the proceedings, not for the purpose of the present applications. In them she set out the background to the break-up of the marriage to which I have referred in [4] of these reasons.
Raffaele Pierno was her third husband. They met in April 2004, a little over a year before the marriage. She asserted that he "pursued" her with "great intensity." At the time she was 52 years old and he was 29. She was a migration agent as well as a solicitor, and she alleged that he targeted her as a means to gain permanent residence in this country. Prior to the marriage, she said, he was demonstratively affectionate and also represented himself as a good Catholic from a strict Italian family.
She deposed that the relationship changed markedly after they were married. She discovered that he had had an affair with a woman (other than Leonie Rixon) and that he accessed pornography sites on the internet. Apart from his resort to prostitutes during the marriage, she claimed to have become aware of a history of promiscuity on his part, commencing in Italy before he came to this country, the detail of which I need not recount.
She deposed that he worked only sporadically and that she effectively supported him. He had hopes, which were never realised, to pursue a career as an opera singer. She also spent money on him in various ways, including the preparation of his application for permanent residence and the fees and other costs associated with it. Her expenditure on him generally, she said, contributed to her going into voluntary bankruptcy in February 2006. She was discharged from bankruptcy 3 years later.
She asserted that their relationship and marriage was a fraud on his part, that he had courted the relationship to enjoy her support, and that he admitted to her that he had done so with an older woman in Italy. She described him as a predator, a liar and a person of low morals.
In 2009 she instituted a property claim under the Family Law Act 1975 in the Federal Magistrates Court in Sydney. She deposed that in the same year he obtained an order for substituted service of divorce papers upon her in the Federal Magistrates Court in Brisbane, on the basis of affidavits by him and Leonie Rixon falsely claiming that they were unaware of her whereabouts. She added that he had lied about the date of their separation, as a result of which he had to withdraw his application for divorce and file a new one.
In February 2009 he commenced domestic violence proceedings against her in the Magistrates Court at Strathpine, Queensland. According to her, it falsely alleged that she had stalked him and assaulted him, and that she had engaged in conduct amounting to dishonest appropriation and extortion under the Queensland Criminal Code, as well as concealing property, an offence under the Bankruptcy Act. She defended the proceedings and they were withdrawn.
In her January affidavit she claimed that these proceedings were part of a course of harassment by all three defendants, that the false allegations were made against her as part of a "smear campaign", and that the three had "colluded with the intention of having the magistrate" make a finding adverse to her. From the February affidavit it appears that the basis of this assertion is that the application was not in his handwriting, did not reflect his language and expressions, and contained some incorrect details, suggesting that it had been prepared by someone else. In addition, Leonie and Cheralyn Rixon were present at court at the hearing, apparently to give evidence against her.
In February 2010 he filed another domestic violence application against her in the Magistrates Court at Sandgate, a Brisbane suburb. In the February affidavit she said that he concealed from that court the fact that he had previously taken proceedings in Strathpine. That application was struck out. In the January affidavit she alleged that the three defendants "colluded to bring" that second action, and that each of them had made false statutory declarations in pursuit of it.
She deposed that Mr Pierno and Leonie Rixon "colluded to submit a false report" to the Insolvency Trustee Service of Australia that she had failed to disclose assets. The complainant was anonymous but, she said, it was in the handwriting of Leonie Rixon and contained information which could have been known only to Mr Pierno. She added that ultimately ITSA was satisfied that the information was false.
She said that, also in the first part of 2010, Mr Pierno and Leonie Rixon lodged complaints about her to the New South Wales Legal Services Commissioner. She claimed that they made false statutory declarations, and "wild, extravagant and false statements in correspondence." She described the complaints as having been made to harass her and injure her health. She said that Leonie Rixon had withdrawn her complaint, but that Mr Pierno had continued to make false statements.
Annexed to the January affidavit is a letter by Mr Pierno to the Legal Services Commissioner of 16 February 2010. It appears that there were enclosed with the letter a complaint form and certain attachments, but they are not annexed. The attachments may include the statutory declarations to which she referred, but they are not before me. The following passage appears in the letter in bold type: "As a Citizen in this country of Australia, I cannot believe that anyone, let alone a person who works within the Law system as a Lawyer, is allowed to stalk, harass, destroy lives through their own personal behaviour, defame and cause such hardship to innocent people. Jennifer Ruth Hammond is also a Migration Agent and that is how she caught me in the beginning (she preys on young victims without English who come to this country) and processes their work as she did mine and falsely led me to believe I had no rights here. I will also be contacting Australian Immigration about being aware that this person is looking for her next victim, as I have now found out I am not the first husband she has had. It will also be my intention if no action is shown about this serious matter regarding Jennifer Ruth Hammond, that if she is not dealt with and stopped by the Law, that I will take it further and go nationally and publically (sic) through mass media, that Australia (NSW Law Society in particular) allows lawyers to act in such a way to destroy innocent victims in this country." Hammond, I take it, is the plaintiff's maiden name or a previous married name.
Also annexed to both affidavits is what she described as a "defamatory" email from Cheralyn Rixon to a friend, Dominique Manghi. The email, which is dated 31 January 2009 and which the plaintiff says is about her, is in the following terms: "My Dear, There is nothing like a woman scorned.!!!!! the author of these hateful stories went bankrupt and used a younger man to help support her lifestyle. she now seems hellbent on destroying him . vicious and vile.!!!! she has been called a "pub slag" on the lookout for younger men , by a respectable gentleman we know his family and the goodness of his soul. he and his family deserve better than this" … (sic)
As to the claim for assault, she said simply that Leonie Rixon had made a threatening phone call to her and that she had reported the matter to police.
Finally, she deposed that the result of the defendants' conduct was her suffering "severe and dramatic damage" to her health. She said that she had been diagnosed as suffering from post traumatic stress syndrome, was unable to work and was receiving sickness benefits, and that it was unlikely that she would be able to work again. Annexed to the February affidavit are medical records relating to the stress she said she suffered as a result of the discovery of Mr Pierno's resort to prostitutes and of Cheralyn Rixon's email to Ms Manghi. The defendants' conduct, she claimed, was carried out with the "specific objective" of damaging her health and reputation.
What I have set out is a brief, but for present purposes adequate, summary of the considerable volume of material in the second affidavit, which includes a document prepared for the proceedings at Strathpine setting out in some detail the history of the marriage and her response to the allegations made against her in those proceedings.
The plaintiff also relies on the affidavits of Isabella Aden, Brett Goulding, Renjith Joseph, Emanuela Moretto and David Towns. These also were prepared at an earlier stage of the proceedings, not for the present applications. The first four affidavits corroborate in some respects her account of the relationship with Raffaele Pierno, and are critical of him and supportive of her. None of those affidavits contains any reference to Cheralyn or Leonie Rixon. Mr Towns' affidavit is to the same effect, but he also referred to having seen Cheralyn Rixon's email. In addition, he deposed to having been present when the plaintiff received the threatening phone call of 30 January 2009. All the affidavits attest to the plaintiff's good character and reputation.
Not all the material in these affidavits is admissible but, again, I do not need to express any concluded view about that. It is not necessary to set out the detail of them, or to examine the extent to which they might corroborate aspects of the plaintiff's claim. For the purpose of the present applications it is not for me to resolve disputed questions of fact. My task is only to decide whether the plaintiff has an arguable case.

The defendants

Each of the defendants filed affidavits. The affidavits deal broadly with the plaintiff's allegations, but do not address the causes of action in the statement of claim or the detail of the allegations made against them. I mean no criticism of them when I say that, as they are not legally represented.

Raffaele Pierno

In an affidavit of 29 June 2012, Raffaele Pierno denied that it was the plaintiff who supported the marriage financially, asserting that it was he who supported her until he was injured in a work related accident in March 2008. He denied any duty of care to her. He also deposed that she had accused him of "many defaming things during the marriage which are false", using any means she could to destroy his character and to harm his "professional, public and personal life."
Annexed to the affidavit is a letter of 1 February 2012 from the plaintiff to the State Attorney General, in which she complained of the conduct of all three defendants the subject of the statement of claim. In addition, she alleged that in a claim for compensation for his work related injury Mr Pierno had fraudulently exaggerated his earning capacity. She signalled her intention in due course to ask the Attorney to investigate what she described as "a long and persistent pattern of criminal conduct" on the part of the defendants, "with the ultimate aim of perpetrating a massive financial fraud."
Mr Pierno asserted in the affidavit that her reference in the letter to his claim for compensation was in breach of an order of a Federal Magistrate in the Family Law proceedings that she not publish information contained in documents about that claim produced to that court. A copy of that order is annexed to the affidavit. Otherwise, the affidavit deals with the progress of the Family Law proceedings, as does a further affidavit of 17 August 2012, but I do not consider that material to be relevant for present purposes.
Annexed to a supplementary affidavit of Mr Pierno of 31 August 2012 is a copy of items on a blog posted on the internet by the plaintiff. She describes herself as a Sydney writer, and records that she has been married three times, "most recently to a young Neapolitan, Raffaele Pierno." She says that she is developing "a short-story cycle", adding that the stories are fictitious and that any resemblance to any living person is "entirely co-incidental."
A story is then outlined over entries between November 2008 and January 2009. Clearly, it is closely based upon her account of her relationship with Mr Pierno. She acknowledged as much in her affidavit of February 2011. It describes the life of an older woman married to a younger man from Italy who proves to be promiscuous, obsessed with young girls, given to pornography and the use of prostitutes. The wife is said to be gullible, believing his early assurances of his being a Catholic, honest and faithful.
Some of these entries bear the label, "Neapolitan gigolo in Australia". While the storyline is asserted to be fictitious and Mr Pierno is not named in it, the inference that it was based upon her relationship with the "young Neapolitan" to whom she had been married would not be difficult to draw.
In later entries on the blog all three defendants are referred to by name. In an item of 19 January 2010 she suggested that the three of them were abusing the Social Security system. Mr Pierno is said to have become a recipient of Social Security benefits upon becoming a citizen of this country, despite the fact that he owned an income producing property in Naples, and he is said to have gained citizenship by his fraudulent use of her. She asserted that the three defendants "all live in one household and work the system."
In an item of 30 March 2010, labelled "Raffaele Pierno and Leonie Rixon: Perjurers", she wrote: "Raffaele Pierno and Leonie Rixon are perjurers. Without shame they lie on oath. Slowly but surely they have dug their own grave, metaphorically speaking. To date they have not been prosecuted for perjury. But just for the public record, I state it: liars; perjurers."
In a further affidavit of 20 March 2013 Mr Pierno supplied a copy of a letter from the New South Wales Law Society of 12 March 2013 disposing of his complaint against the plaintiff. The complaint was dismissed because the Law Society found that none of the behaviour alleged was connected to the plaintiff's practice as a solicitor. As to allegations of stalking, harassment and defamation, the Professional Standards Committee made no finding in relation to those "factual assertions", but noted that they arose from the personal relationship between the plaintiff and Mr Pierno.
As to an allegation of public disclosure of personal and confidential information obtained by the plaintiff when acting for Mr Pierno in relation to visa applications, the Committee found no evidence that she was acting for him in a professional capacity in relation to visas. The letter added that the public disclosures complained of related essentially to the conduct of the parties, not to the visa applications. As to an allegation of public disclosure of personal and confidential information obtained during the relationship and the marriage, the Committee was satisfied that there was disclosure of such information but, again, found that that conduct did not arise in the context of the plaintiff's professional practice. Finally, as to an allegation of her discourtesy in disclosing that personal information via blog postings, the Committee found that disclosure to have been discourteous but, yet again, found that the conduct did not occur in the course of her legal practice.

Leonie Rixon

In her affidavit of 29 June 2012 Leonie Rixon deposed that she did not know the plaintiff and had never had any contact or dealings with her. She acknowledged having developed a relationship with Mr Pierno in 2009. She asserted that the plaintiff had stalked her after a photo of Mr Pierno and her was posted on the internet in February 2009. She claimed that the plaintiff had found her address and "stalked" her personal details, such as her bank mortgage and university certificates, sending her "a vexatious threat" by mail.
She complained that the plaintiff had defamed her character in the letter to the Attorney General and through her blog, where she accused her of "using the system" and being a perjurer. As to the first of those allegations, she asserted that she had always worked in a career and supported herself.

Cheralyn Rixon

Cheralyn Rixon filed two affidavits, of 29 June and 24 July 2012. The first affidavit is concerned primarily with her poor health. She also said that she did not know the plaintiff or had had any contact with her. In the July affidavit she deposed that the plaintiff had "stalked" her, as well as Leonie Rixon, by mailing to them copies of their "mortgage details and bank title deeds of a property", together with copies of Leonie Rixon's educational and occupational qualifications. She also complained of the plaintiff's "vexatious, harassing and malicious conduct" in the blog items to which I have referred and the letter to the Attorney General.
She referred to other entries in the blog, between June 2009 and January 2010, conveying that the plaintiff was enjoying a vibrant social life, going out dancing, attending parties and enjoying movies. She suggested that these items belie the claim for psychological injury.

Particulars

On 27 September 2010, when the defendants were legally represented, their solicitor forwarded to Ms Pierno a request for particulars, which she answered by a letter of 16 December 2010. At my request, she forwarded that correspondence to me after the hearing. To understand the plaintiff's case it is not necessary to refer at length to the detailed particulars supplied.
The plaintiff summarised the background of her relationship with Mr Pierno, her marriage to him, and his behaviour as she described it in her evidence. As to the three defendants, she then made the following allegations: • Mr Pierno commenced domestic violence proceedings against her at Strathpine. The application and "statements" of Mr Pierno were in Leonie Rixon's handwriting. For the purpose of the application the three defendants made false statutory declarations. • Mr Pierno gave evidence on oath in those proceedings that she had been seen outside their home in Carseldine at a time when she could establish that she was not in Queensland. His evidence was that Leonie and Cheralyn Rixon were present at court to give evidence to that effect. • Mr Pierno made a further domestic violence application against her at Sandgate, for the purpose of which the three defendants conspired to make false statutory declarations. The same allegations were made against her as had been made in the proceedings at Strathpine. Mr Pierno had deliberately concealed from the court at Sandgate the fact of those earlier proceedings. • In the Federal Magistrates Court in Brisbane, Mr Pierno and Leonie Rixon falsely stated on oath that the plaintiff could not be found, for the purpose of obtaining an order for substituted service upon her. Mr Pierno also lied as to the date of their separation. • Mr Pierno lied in affidavits in the property proceedings in the Federal Magistrates Court. What the falsehood was is not specified, but from a later statement in the plaintiff's letter I take it to be an allegation that he falsely denied that he had inherited a property in Naples during the course of the marriage. • Leonie Rixon made a threatening phone call to her, relying on information being provided by Mr Pierno. • Mr Pierno and Leonie Rixon provided false information to ITSA, which could have exposed her to imprisonment. • Mr Pierno and Leonie Rixon lodged complaints about her to the Legal Services Commission, which were referred to the Law Society. Both of them made false allegations, and also submitted false statutory declarations which had been made by Leonie Rixon and Cheralyn Rixon for the purpose of the domestic violence application at Sandgate. • Cheralyn Rixon sent a "false and malicious" email to Ms Manghi.
This conduct, together with Mr Pierno's engagement of prostitutes, is the foundation of the claim in negligence for nervous shock. In the request for particulars a point was taken about the adequacy of the pleading of this cause of action.
As to the claim for assault, the plaintiff confirmed that the phone call was made on 31 January 2009 and was reported to police at Surry Hills. She added that Mr Pierno, having become a citizen in that same month and having gone onto the dole, "launched a concerted attack" on her. She further claimed that the three defendants had "conspired together" and that "the attack took the form of" the phone call, Cheralyn Rixon's email, the false report to ITSA and the proceedings for domestic violence orders commenced at Strathpine.
She declined to respond to requests to identify the statements made by Leonie Rixon said to constitute the assault, and the suggestions and advice alleged to have been conveyed to her by Mr Pierno, saying that these were matters for evidence.
The claim for the intentional or negligent infliction of psychiatric injury was said to be based on the same behaviour I have summarised at [50] above. Asked to particularise her allegation in the statement of claim that the defendants had conspired to spread false rumours about her, the plaintiff referred to Cheralyn Rixon's email, to the statements made by the defendants in the various proceedings, and to "false information given to the Italian Consul in Brisbane leading to his providing a statement on official letterhead regarding the plaintiff."
For the purpose of this claim and the claim in negligence for nervous shock, she alleged that the defendants were aware that she had been diagnosed as suffering from post-traumatic stress as they had been informed of this in writing, despite which they continued to "make false statements and carry out acts of harassment" against her. In respect of the claim for negligent infliction of psychiatric injury, the defendants' then solicitor took the same pleading point as he had in respect of the nervous shock claim.
As to the claim for abuse of process, some of the requests for particulars were not answered at all. However, it is apparent that the plaintiff relies upon the conduct of the defendants outlined above in relation to the domestic violence proceedings, the application for substituted service in the Federal Magistrates Court, and the complaints to the Legal Services Commission.
Finally, as to the claim of deceit against Mr Pierno, the plaintiff alleged that he fraudulently represented himself to her as a person of good character: that he had had only a few sexual partners and was opposed to pornography; that he was a good worker, dedicated to pursuing his goal of becoming an opera singer; and that he was well brought up and firmly believed in the teachings of the Catholic Church, living his life according to the principles of that Church.
In fact, she alleged, he was "addicted to pornography, exceptionally lazy, a failure as a singer, addicted to alcohol, a liar, a philanderer, a male prostitute, and a user of prostitutes." He was said to have gained economic advantage through his misrepresentations by her financial support of him, including most of his upkeep, her payment of his expenses relating to obtaining visas, and her expenditure in various ways directed to his establishing a singing career in this country.
The plaintiff's letter also supplies particulars of the damage she alleges she has suffered, both psychological and economic. It is not necessary to examine this issue for present purposes.
The course of the present applications has been protracted. As I have said, the three defendants reside in Brisbane. On the initial hearing date Raffaele Pierno and Cheralyn Rixon were present at court, but Leone Rixon was not because she had recently had a baby. Mr Pierno represented her interest on that occasion. There was a further hearing by way of telephone link, and the matter proceeded subsequently by email communications. Ultimately, I provided the parties with a summary of the material I had but expressed the view that I could not properly determine the issues without further material, which I identified. In response, the plaintiff provided a volume of additional material, for the most part the source material upon which her allegations are based. I shall summarise this by reference to the matters to which it relates and the paragraphs of this judgment in which they are referred to in the affidavit evidence of the plaintiff or the particulars supplied by her.

Federal Magistrates Court proceedings ([20])

Mr Pierno filed an application for divorce in the Brisbane registry of the Federal Magistrate's Court on 16 March 2009. In the application he specified the date of his separation from the plaintiff as 13 March 2008, although they continued to live under the same roof (not as husband and wife) until 18 April 2008. In a letter to the registrar of 28 May 2009, the plaintiff said that the date of separation was 27 May 2008, so that Mr Pierno's application for divorce was filed before the period of 12 months since separation.
As to substituted service, affidavits of Mr Pierno and Leone Rixon disclosed that Ms Rixon intended to serve the divorce application on the plaintiff on 18 March 2009, a date on which she was expected to appear at the Magistrate's Court at Strathpine (in relation to the domestic violence proceedings). The plaintiff did not appear on that day.
Leone Rixon's affidavit says no more than that she could not serve the plaintiff personally on 18 March. Mr Pierno alleged in his affidavit that he sent the divorce papers by registered post to the plaintiff's address, but that notices from Australia Post to pick up the package were not responded to. He engaged the NSW Sheriff to serve the papers, but after several attempts they were unsuccessful. He expressed his belief that she was evading service. On 20 May the registrar made an order dispensing with personal service and directing service by post to the plaintiff's address in Paddington.
The plaintiff's letter to the registrar of 28 May 2009 was written following her receipt of that mail. She asserted that Mr Pierno or Leone Rixon could have served her with the papers on an earlier occasion when they were at the Strathpine Magistrate's Court, 6 May 2009. She denied any suggestion that she could not be found for the purpose of service.
In a supplementary affidavit of 3 October 2013, the plaintiff alleges that Mr Pierno lied about the date of separation because he was pursuing a fraudulent personal injuries claim following a work place accident in March 2008. She deposes that she could give evidence that his claim is fraudulent because until 27 May 2008, when she claims they separated, she was involved in conveying him for medical treatment and legal advice, and that she wrote letters on his behalf as "he could not read and write English at a functional level."

Strathpine Proceedings ([21-2])

Mr Pierno commenced the proceedings in the Magistrate's Court at Strathpine in February 2009 by a protection order application under the Domestic and Family Violence Protection Act 1989 (Qld). Put shortly, that application complained of a variety of behaviour on the plaintiff's part: that she assaulted him on one occasion, that she made harassing and threating phone calls to him, in particular, threating to destroy his career as an opera singer, that she stalked him at his current address, and that she published on the internet highly derogatory material about him. Some of this material was in the form of emails sent to him, or to others with a copy to him. A significant part of that material, however, comprised the items upon her blog of which he complained in his affidavit in this court: (37) - (39) above.
The assault he alleged was not said to be perpetrated by the plaintiff personally. He claimed to have been assaulted by a man with a criminal background whom she had engaged to serve process upon him. Among the phone calls of which he complained were calls in which the plaintiff was alleged to have threatened him in an attempt to extort money from him to pay her bankruptcy debts (which, according to him, arose prior to their relationship and had nothing to do with him). This presumably is the "conduct amounting to dishonest appropriation and extortion" referred to at [21] above.
In March 2009, the plaintiff filed a cross application under the Act, relying upon matters which she raises in the present proceedings. Put shortly, she asserted that Mr Pierno's application for a protection order was false and an attempt to mislead the Court, she complained of the threating phone call she had received (now the subject of her assault claim), of the provision of false and misleading information to the Insolvency and Trustee Service, and of the "defamatory" email sent by Cheralyn Rixon to her friend. She concluded her complaints with the assertion that these incidents "amount to a conspiracy between the Respondent and Cheralyn Marie Rixon and Leone Anne Rixon to harass and intimidate me and to deliberately mislead the Court."
In the cross-application she described the threating phone call of which he complained. She wrote that on the night of 30 January 2009, she received a call from a woman who refused to give her name. She said words to the following effect: "I am warning you to pack your bags and leave town. A friend has betrayed you. You need to watch out for yourself. You are in danger." The woman refused to give her name. The plaintiff asked her, "What friend?" The woman appeared to speak to someone at her end and said, "Price." She then hung up. The plaintiff was unable to trace the call.
The matter was heard on 6 May 2009, and the plaintiff has supplied a disk of the sound recording of the proceedings. Mr Pierno gave evidence, and was cross examined by the plaintiff and questioned by the Magistrate. The allegations of assault and stalking were strongly challenged.
In the event, the magistrate expressed the view that the internet material and the telephone calls of which Mr Pierno complained could not amount to acts of domestic violence within the terms of the Queensland Act. More importantly, he pointed out that both parties would have difficulty establishing the likelihood of the recurrence of acts of domestic violence, a matter which had to be established to warrant any order under the legislation, given that at the time of the proceedings there had been no recent face to face contact between them and they were then living in different states: Mr Pierno in Brisbane and the plaintiff in Sydney. He invited both of them to consider withdrawing their applications, and they did so.
The magistrate then had no occasion to consider Pierno's cross application, which was accompanied by a significant volume of material (as noted in [30] above). Leonie and Cheralyn Rixon had been summoned to appear as witnesses, and were present at court, but there is nothing in the material before me that discloses what evidence they might have given. I was not supplied with copies of the statutory declarations said to have been made by them for that occasion: [49], 1st dot point above.

Sandgate Proceedings ([23])

Mr Pierno filed a further protection order application in the Magistrate's Court at Sandgate on 21 January 2010. It makes complaints of a nature similar to those in the Strathpine matter, although expressed broadly and considerably more briefly. The copy of the application furnished by the plaintiff is not accompanied by the statutory declarations to which he refers, but they may be the declarations used for the purpose of the complaint to the Legal Services Commission.

Correspondence with Italian Consul ([53])

On 28 May 2009, the Italian Consulate in Brisbane received a copy of an affidavit of the plaintiff of 1 May 2009, described as voluminous documentation with annexures A to Z. This would appear to be an earlier incarnation of her affidavit of 23 February 2011. This led to a declaration by the Consul of 22 January 2010, which refers favourably to Mr Pierno, describing him as a leading singer, and asserts that the material "was clearly directed at degrading the image of the artist in the Consulate's estimation and, in particular, aimed to prevent his participation in an upcoming festival." In a subsequent exchange of correspondence between the plaintiff and the Consul, as well as the Ambassador in Canberra, she denies having sent the document and implies that it was the work of Mr Pierno himself.
In a letter of 1 June 2010 she sketches the background of their relationship and some of the matters of which she complains in the present proceedings, including the assertion that he lied to the Federal Magistrate's Court about ownership of a property in Naples, that he defrauded Centrelink by failing to disclose income from this property, and that he was defrauding Queensland WorkCover in relation to his claim for compensation for his injury. She also asserted that he, Leonie Rixon and Cheralyn Rixon had "conspired together on numerous occasions" to attack her.

Complaints to Legal Services Commission ([25] - [26])

Mr Pierno's complaint with the Legal Services Commission of 16 February 2010 contains a number of attachments. The primary focus of his complaint appears to be the plaintiff's derogatory communications about him, particularly the blog entries, which are updated to February 2010. He also complained of letters sent by her to his family members in Italy, said to contain "very bad and false information" about him, and he attached the declaration by the Italian Consul of January 2010 referred to above. He also complained of the assault by the man said to have been engaged by the plaintiff.
Attached to the complaint are statutory declarations by Leonie and Cheralyn Rixon. They are to the same effect as their affidavits in this Court, but contain some additional assertions.
Leonie Rixon also supports the allegations of Mr Pierno, and asserts that "over the last 18 months, the Respondent has tried everything in her abusive power to destroy, manipulate, harass, stalk, threaten, defame and cause physical violence/harm to the Applicant along with myself and my family and any person who comes into contact with Mr Raffaele Pierno both professionally or personally … ." Cheralyn Rixon added to her declaration an allegation that the plaintiff had stolen her identity and invaded a private "prayer line" website, so as to make it appear that Cheralyn Rixon was asking people with access to the website to pray for her daughter because she "has become involved with a married man, who has a drink problem and is sexually deviant." This, presumably, was meant to be a reference to Leonie Rixon and Mr Pierno.
On 3 June 2010, Mr Pierno wrote to the Professional Standards Department of the Law Society, complaining of further blog entries which he attached to the letter, and also asserting that she had been "trying to blackmail money" out of him and was supplying false information and documentation in the property settlement proceedings. On 18 June 2010, he again wrote to the Professional Standards Department to complain about the correspondence between the plaintiff and the Italian Consul referred to above.
In the meantime, on 22 March 2010, Leonie Rixon forwarded her own complaint to the Professional Standards Department, to which she attached her own declaration of the same date which is in identical terms to the declaration which had been attached to Mr Pierno's complaint, and the declaration of her mother, Cheralyn Rixon. In a covering letter she complained about the plaintiff's publication of information about her and her mother, but she also asserted that the plaintiff, through her position as an Immigration Agent, had been "preying on young males from other countries … to support her lifestyle and when the money runs out she destroys their lives." She described the plaintiff as a person who "seemed to think she is the most powerful person in the country and can abuse, stalk, harass and destroy at her leisure innocent people."
In October 2010, the three defendants instructed solicitors to act for them and, on 30 October 2010 those solicitors wrote to the Law Society refining and crystalizing the complaints of Mr Pierno and Leonie Rixon. The focus of the complaint was said to be the public disclosure of personal and confidential information.

Plaintiff's PTSD ([55])

On 10 March 2009, the plaintiff sent an email to Cheralyn Rixon concerning her email to Ms Munghi. The plaintiff challenged Cheralyn Rixon's assertions in that email, and repeated her account of her relationship with Mr Pierno. She wrote that she had "suffered a severe nervous shock" as a result of reading the email, that she had been unable to concentrate on her work and had sought medical attention. She asserted that she would hold Cheralyn Rixon responsible for this and seek damages.
The plaintiff was unable to supply a copy of the letter said to have been written to ITSA: [24] above.

Summary dismissal

The progress of the matter has been complicated by the fact that all parties are unrepresented and the defendants reside interstate. In addition, Cheralyn Rixon has had difficulty in dealing with the matter because of her illness. Moreover, only the plaintiff is qualified to mount any relevant arguments of law. Recently I set a date for any written submissions to be forwarded. That date has passed, and no submissions have been received from the plaintiff or (perhaps not surprisingly) the defendants. However, the matter must be brought to finality.
Summary dismissal is an exceptional remedy, available only when a claim is untenable. The law on the matter is stated in the well-known passage from the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

Deceit

The claim in deceit is summarised at [13] above and the particulars furnished at [56] - [57]. Put shortly, there must be a false representation of fact made by the defendant, known to be false or, at least, not believed to be true, made with the intention that the plaintiff should act upon it to his or her detriment, with damage sustained as a result.
In Magill v Magill [2006] HCA 51, 226 CLR 551 the High Court considered the tort in the context of an allegation by a woman that her former husband was the biological father of two children, when in fact he was not. It is sufficient to refer to the judgment of Gleeson CJ, who noted that the action normally arises in a commercial context. At [48] ff (571) the Chief Justice examined the legal duty of honesty underlying the tort of deceit and the context in which it might arise. His Honour said at [48] - [49] (571): "48 Yet the ethical content of the duty is never measured without regard to the context in which a party acts, and community standards do not require the imposition of legal consequences regardless of such context. For example, finding a false representation, made with fraudulent intent, in a marital context, or in the context of some other personal relationships, in certain circumstances may impute an obligation of disclosure, regardless of other interests and consequences, where none exists. 49 The matters which an individual party to a marriage might properly regard as intimate and private are not limited to questions of paternity of children of the marriage, or sexual fidelity, or to events that occurred during the marriage. Finding a duty to disclose the truth about some matters would be inconsistent with the ethical context in which such a judgment must be made. Furthermore, the problem goes beyond questions of disclosure. Imposing legal consequences upon behaviour in such a relationship also may be inconsistent with the subjective contemplation of the parties and with public policy as reflected in legislation. In that connection, the extensive scheme of regulation of the legal incidents of the marriage relationship contained in the Family Law Act, based as it is largely upon a policy of minimising the importance of questions of 'fault', forms an important part of the setting in which judgments about dishonesty, and actionable damage, must be made. The application of the common law of deceit to marital relations is not impossible, and there are no rigidly defined zones of exclusion, but attempts to construct legal rights and obligations in an unsuitable environment should fail, as did this attempt."
His Honour's observations appear to me to bear directly upon the claim in deceit. The factual basis of that claim, of course, is very much in dispute but, as I have said, that is not a matter for me to resolve. Nevertheless, the claim is based on communications in the martial context which, while on their face reprehensible, cannot give rise to the cause of action. This claim is dismissed.

Assault

The claim in assault is summarised in [6] above but, as appears from [51] - [52] above, was not meaningfully particularised. However, the plaintiff's account of the assault emerges from the cross application in the Strathpine proceedings, referred to at [68] above. Putting aside the difficulty of establishing that it was Leone Rixon who made the call and that Mr Pierno was in some sense a party to it, which are evidentiary matters, it appears to me that account is incapable of establishing the apprehension of imminent harm which is essential in the cause of action. This claim is also dismissed.

Abuse of process

This claim is summarised at [11] - [12] above, and was not elucidated in particulars: [55]. The manner in which it was pleaded is unsatisfactory and should be struck out. I understand the tort to be directed to legal proceedings and would not embrace a complaint to the Legal Services Commission. Moreover, it is the person who instituted the proceedings, here Mr Pierno, against whom the cause of action might arise. The evidence conveys that Leonie and Cheralyn Rixon prepared statutory declarations for the purpose of the Magistrates Court proceedings at Sandgate, which did not proceed, but not for those at Strathpine. In any event, their status is not more than that of potential witnesses, and I can see no basis upon which it might be asserted that they were somehow complicit in the institution of the proceedings.
Nor can I see any basis for an abuse of process claim arising from Mr Pierno's application for substituted service in the Federal Magistrates Court proceedings. That was an interlocutory step which caused no injustice to the plaintiff, and I can see no basis on which it might be seen as discrediting her or injuring her reputation. Here, Leonie Rixon's only contribution was to swear an affidavit that she was unable to serve the application on the plaintiff on a particular day.
There may be an arguable cause of action against Mr Pierno for an abuse of process in respect of the Magistrates Court proceedings in Brisbane, but it would need to be properly pleaded. The claim as it is presently expressed is struck out.

Psychological injury

The claim in negligence for nervous shock summarised at [5] above, and for intentional or negligent infliction of psychiatric injury summarised at [7] - [10], effectively raise the same cause of action and should be dealt with together. Again, the pleading in so far as it alleges negligence is defective. The point was correctly taken by the defendants' previous solicitors in the request for particulars. Neither duty nor breach are pleaded.
Here also, the statement of claim refers to the Brisbane Magistrates Court proceedings and the complaint to the Legal Services Commission, and the particulars supplied by the plaintiff are summarised at [49] - [50] above. It is appropriate to examine the viability of these causes of action against each of the three defendants.
As to Mr Pierno, some of the conduct of the plaintiff of which he complained in the Strathpine and Sandgate proceedings and the Legal Services Commission complaint are established by the evidence: in particular, the plaintiff's blog, her letter to the Attorney General and, arguably, the transmission of her affidavit to the Italian Consul. If the matter rested there, it might be argued that his resort to those proceedings and that formal complaint, while misconceived, was not in breach of any duty to the plaintiff or could not support the inference of an intention to cause her psychological injury. However, other allegations he made, such as her complicity in an assault upon him and her stalking him, she claims are false. Equally, it might be questioned whether his engagement of prostitutes could be in breach of any duty he owed to her or point to an intention to cause her stress. However, the combination of all the conduct on his part of which she complains might give rise to an arguable cause of action for the infliction of psychiatric injury. Again, however, it is not properly pleaded in its present form and should be struck out.
The related claims against Leonie Rixon and Cheralyn Rixon are another matter. On the evidence I cannot see a viable claim against either of them for the infliction of psychiatric injury, negligence or intentional. Both women made statutory declarations used in the complaint to the Legal Services Commission, although they appear to have been prepared for the Sandgate Magistrates Court proceedings. As I have said, in large part they are the same effect as their affidavits in this court, which make their own complaints about the behaviour of the plaintiff. The plaintiff has put on no evidence in response to those affidavits. True it is that Leonie Rixon's statutory declaration adds a general assertion against the plaintiff of harassment, stalking and alike over a period against the three of them. True it is also that Cheralyn Rixon made the allegation about the plaintiff's invasion of her "prayer line" website, a matter about which the plaintiff also has not responded by evidence.
I am conscious also of Leonie Rixon's own complaint to the Legal Services Commission repeating the material in her statutory declaration and adding the allegation of the plaintiff preying of young men. I cannot see in this behaviour anything other than genuine complaints by both women about behaviour on the part of the plaintiff which they allege to be unacceptable. Their complaints to that body were misconceived, as is demonstrated by the Law Society's response, but that is not to the point.
Even if the application in the Strathpine proceedings and the letter to ITSA were in Leonie Rixon's handwriting, that is of no significance in the light of Mr Pierno's difficulty writing in English. The evidence that the alleged threating phone call was made by Leone Rixon is, to say the least, tenuous. Cheralyn Rixon's email to Ms Mungi, while certainly very uncomplimentary to the plaintiff, was obviously a private communication to a friend, which falls well short of giving rise to liability for the infliction of psychiatric injury.
These observations have to some extent delved into evidentiary matters. However, they lead me to conclusion that the plaintiff has no prospects of success in pursuing this claim against either Leonie or Cheralyn Rixon, and to allow the plaintiff the opportunity to re-plead the claim against them, in my view, would be pointless.
Accordingly, the claims against Leonie Rixon and Cheralyn Rixon should be dismissed.

Orders

As against Leonie Rixon and Cheralyn Rixon, the statement of claim is dismissed. As against Mr Pierno, the claims in deceit and assault are dismissed. The claims in nervous shock, infliction of psychiatric injury and abuse of process are struck out. However, the plaintiff has leave to re-plead those claims within 28 days. I direct that the matter be listed before the Registrar at 9.00am on 15 April 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2016

Domestic and Family Violence Protection Act 1989(Qld)

At a glance

Court

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Before

Source

Judgment (27 paragraphs)

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Legislation Cited (1)

Cases Cited (2)

Cited By (1)