Court of Appeal (ACT)|2016-05-12|Before: Jagot J

The application in proceeding dated 9 May 2016 be dismissed.

PROCEDURE - Courts and judges generally - Application for recusal - Apprehended bias not established

Collins v AMP Superannuation Limited

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

1. On 12 May 2016, I dismissed Ms Piscioneri's application that I be disqualified from hearing the appeal and cross-appeal in this matter.

2. The appeal and cross-appeal are against orders which the primary judge made on 6 May 2015 to the effect that the appellant, Mr Brisciani, had defamed the cross-appellant, Ms Piscioneri, for which he was ordered to pay the sum of $82,000 in damages.

3. Ms Piscioneri contended that I should disqualify myself from hearing the matter on the basis that I was a partner in a law firm, Mallesons Stephen Jaques, which acted on behalf of the respondent to a proceeding which was determined in 2000, Collins v AMP Superannuation Limited [2000] FCA 290. Ms Piscioneri appeared on behalf of the applicant in that matter in the capacity of "next friend" (the application was said to have been brought on behalf of minors). Finn J dismissed the application.

4. According to Ms Piscioneri, she has discovered what she believes "was fraud in relation to that case", said to arise from her belief that the signature on the superannuation nomination form was not that of the deceased person. Ms Piscioneri says that she intends to make a complaint to the Australian Federal Police about what she says is a "serious case of fraud", and although it is "unclear" to her who was responsible for the fraud, she knows "who had motive and opportunity".

5. During the hearing of this application, I informed Ms Piscioneri that while I was a partner of the law firm Mallesons Stephen Jaques in 2000, I ceased to be so in or about 2002 and had no recollection of any involvement in the matter of Collins v AMP Superannuation Limited. Ms Piscioneri maintained her application that I should disqualify myself on the ground of bias. In so doing, she led no evidence and made no suggestion that I had any involvement with the matter in issue.

6. The allegation of bias, insofar as it was intended to refer to actual bias, is unsustainable. There is no possible basis upon which it could be maintained that I would not bring an impartial mind to the resolution of the appeal and cross-appeal for any reason identified by Piscioneri.

7. Nor can any suggestion of apprehended bias be maintained. As far as I can understand it, Ms Piscioneri's suggestion is that because she believes there has been fraud in respect of the Collins matter and believes she knows who had the motive and opportunity to do so (presumably, the unstated suggestion being that solicitors from Mallesons Stephen Jaques who acted in the matter were somehow involved), a fair minded lay person might reasonably apprehend that I might not bring an impartial mind to resolution of the appeal and cross-appeal: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. Even assuming that Ms Piscioneri's allegations have any substance, for which there is no evidence apart from her belief, there is no logical connection between Ms Piscioneri's beliefs and intention to make a complaint to the police about matters connected with Collins v AMP Superannuation Limited [2000] FCA 290 and my capacity to bring an impartial mind to bear on this appeal and cross-appeal.

8. For these reasons, I declined to disqualify myself.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Jagot.

Brisciana v Piscioneri (No 3) [2016] ACTCA 31 (10 August 2016)

Brisciana v Piscioneri

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Judgment (13 paragraphs)

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Cases Cited (2)

Brisciana v Piscioneri (No 3) [2016] ACTCA 31 (10 August 2016)