Court of Appeal (ACT)|2016-05-12|Before: Murrell CJ

Brisciana v Piscioneri (No 1) [2016] ACTCA 30 (12 May 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEALS - JURISDICTION, PRACTICE AND PROCEDURE - Bias - apprehended bias - judge part-heard in separate matter involving applicant - where legal issues do not intersect - credit not in issue

Eastman v The Queen [2015] ACTCA 24

Piscioneri v Reardon [2015] ACTSC 61

1. Ms Piscioneri asks me to disqualify myself from sitting in this appeal because I am the judge determining applications for leave to appeal against a decision of Refshauge J in Piscioneri v Reardon [2015] ACTSC 61 (Piscioneri v Reardon).

2. In 2004, Ms Piscioneri, who was then a solicitor with a criminal practice, learned that jurors in the notorious Skaf trial in New South Wales had improperly viewed the crime scene in contravention of the trial judge's direction. She reported this impropriety to the authorities. As a result, there was a successful appeal against conviction: R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86.

3. A forum was started on the website www.zgeek.com.au, which was owned and operated by Mr Brisciani. Mr Brisciani initiated the forum using his own post "Tool of the Week". In early 2005, others posted comments, both positive and negative, about Ms Piscioneri's conduct in reporting the action of the jurors. The material remained on the website. In 2009, Ms Piscioneri was alerted to the material. She asked that it be removed. In 2010, there were further posts which criticised Ms Piscioneri for threatening legal action, although they did not name her. Among other things, the posts referred to Ms Piscioneri as an "ex-lawyer".

4. In 2010, Ms Piscioneri commenced defamation proceedings against Mr Brisciani in relation to the 2005 and 2010 posts.

5. The proceedings were heard by Burns J (the trial judge) in October 2014. His Honour's decision is the subject of this appeal.

6. In January 2010, using the fictional name "Sagacious", Mr Reardon allegedly posted comments about Ms Piscioneri on Mr Brisciani's website. The trial judge referred to this post at [81] and [83] of his reasons, finding that, unlike the other 2010 commentators, Mr Reardon knew that Ms Piscioneri was the person referred to in the 2010 posts.

7. Mr Reardon is a solicitor. At one stage his firm acted for Mr Brisciani in the Magistrate's Court.

8. Initially, Mr Brisciani declined to disclose the identity of "Sagacious" to Ms Piscioneri. However, in a claim for pre-trial discovery heard in October 2013, he disclosed that "Sagacious" was Mr Reardon.

9. Because the identity of "Sagacious" was not known until 18 October 2013, the 12 month limitation period for Ms Piscioneri to bring defamation proceedings against Mr Reardon ran from that date.

10. It is alleged that in September 2014 the Supreme Court Registry refused to accept documents supporting Ms Piscioneri's claim for defamation, possibly because Registry staff believed that the claim was out of time.

11. Ms Piscioneri applied for an extension of time. Refshauge J decided that the application for an extension of time was misconceived and dismissed the application: Piscioneri v Reardon. His Honour observed that the Registry should not have refused to accept the documents. His Honour found that there was no power under s 33 of the Limitation Act 1985 (ACT) (Limitation Act) to extend time on the basis of the deliberate concealment of a fact relevant to a cause of action based on fraud.

12. Refshauge J gave his decision on 28 October 2014 but he did not publish reasons until 14 April 2015. At [50], his Honour noted that it was open to Ms Piscioneri to lodge her claim and that, if Mr Reardon pleaded a limitation bar, then the matter could be determined under the Limitation Act.

13. On 20 November 2014, Ms Piscioneri sought to lodge a notice of appeal against Refshauge J's decision but the Registry declined to accept it, asserting that Refshauge J's decision was an interlocutory decision that required leave.

14. By an application dated 27 October 2015, Ms Piscioneri sought leave to appeal out of time and leave to appeal from the interlocutory judgment of Refshauge J. She claimed that, in relation to the hearing before Refshauge J, she had been denied procedural fairness because she had not understood that the matter was listed for hearing rather than mention. She advanced reasons for the delay in lodging the application for leave to appeal.

15. The applications for leave to appeal are listed before me. In the absence of a notification, the matter is to be decided on the basis of written submissions; Ms Piscioneri has filed submissions in accordance with the timetable but Mr Reardon is yet to file submissions. Ms Piscioneri's submissions primarily address the proper characterisation of Refshauge J's decision (whether it was an interlocutory decision or a final decision) and the proper approach to an interlocutory decision that determines the substantive rights of a party. The submissions canvas some other issues.

16. The principles in relation to disqualification for apprehended bias are well settled and were recently re-stated by this court in Eastman v The Queen [2015] ACTCA 24 (Eastman) from [28]. In short, a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.

[T]he test requires the identification of what it is that might affect the judge's impartiality and its logical connection with the possibility of departure from impartial decision making in the case at hand.

18. When asked to identify the manner in which my involvement with the leave applications in Piscioneri v Reardon might affect my impartiality in relation to this appeal, Ms Piscioneri referred to the general undesirability of a judge who is part heard in one matter dealing with a matter that involves one of the same parties, especially if both proceedings fall into, or arise from, the same factual matrix.

19. In the leave applications, the issues concern the characterisation of Refshauge J's decision, the reasons for the delay in bringing the applications for leave and whether there is any merit to the proposed appeal concerning interpretation of provisions of the Limitation Act. There is no issue concerning Ms Piscioneri's credit.

20. The issues in this appeal raise legal matters and do not raise Ms Piscioneri's credit. While the factual contexts of the proceedings do overlap, the issues are distinct and in each proceeding they are primarily legal issues. The legal issues do not intersect in any relevant way. Importantly, in neither proceeding am I required to determine the credit of Ms Piscioneri. Consequently, it is my view that there is no matter which a fair minded lay observer might reasonably apprehend might cause me to fail to bring an impartial mind to the resolution of the questions that I am required to decide in these proceedings. Ms Piscioneri has not explained how it might be perceived that I might possibly depart from impartial decision-making in relation to this appeal.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Brisciana v Piscioneri

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Brisciana v Piscioneri (No 1) [2016] ACTCA 30 (12 May 2016)

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