Brisciani v Piscioneri

Brisciani v Piscioneri - [2016] ACTCA 32 - ACTCA 2016 case summary — Zoe

[55]

"This woman really gives me the shits. After seeing the tool of the week rant, i can see that im not alone with my opinions. What a fuking moron. Can anyone really be more dence than this woman. What i dont get is this stupid bitch decided it was her 'duty' to tell the judge. What a fucking moron. She was at a goddam party for christs sake. Now these absolute scum will get a few years off their sentence.

Besides, what kind of a difference does it make to the case if the juror did go to the site of the crime?? These pricks deserve nothing less than to rot in jail for their crimes, yet this woman seems to think she is gods gift to lawyers by telling the judge. Arrrrgghhh. This really irritates me to death. The goddam legal system is fucked up the arse with a dead dingos donger. Why the fuck to these guys get less jail time because a juror went to the scene of th crime?? What if that park was their local park? They couldnt go there to exercise simply because it was part of their trial. I know that they only went there to have a look for themselves at the scene of the crime, but still, the point remains.

This is fucking bullshit. A gang of scum sucking, arse fucking, prick sucking, hairy backed, dirty fucking wankers will get to walk free sooner. The girl was only 16 at the time. what the hell did she do to deserve it? Absolutely nothing. This is really fucked, and its all got fucked up the arse with a dead dingos donger because of the soft cock lawyer, Gabriella Piscioneri. Fucking moron bitch. she should do the time that these guys get let off for. no wait ... double the time, of all of the rapists, combined. If they get a total of 15 years less jail time, lock up Gabriella Piscioneri for 30 years.

This is a goddam outrage. Its bullshit, she is probably the biggest tool in my shed at the moment. I dont really despise and hate alot of things, but of the few that i hate, rape and pedo's are right up the top of the list. They are the scum of the earth, worth less than a virus. I would rather catch a virus than have these morons walking the streets. Rape is one of the worst fucking crimes going around, and they deserve to be punished for it.

Just because some stupid bitch riding her fucking high horse, no wait, her little fucking pony, waltzes along and cant keep her mouth shut, does that not mean that these guys should get any less time. Why should a victim have to go through all of this again, just to keep some low-life scum behind bars?? This is utter bullshit and shouldnt happen. I really feel strongly about this.

Gabriella Piscioneri: FUCK YOU!:spingo:" [sic]

[72]

In 2005 a discussion happened on our forums regarding a widely publicised news story relating to the Bilal Skaf gang rape trials.

The discussion was in relation to the actions of a solicitor (lawyer) which caused public outcry as it caused a mistrial of one of the rapists.

The news services of Australia sensationalized the story and did not report the legal obligation of the solicitor. Instead they beat up the story and public outrage grew against this solicitor.

The discussion on our site focused on this outrage until our users from the legal profession pointed out the legal obligation of this solicitor and that; if they had not done so, they would have broken the law.

In the end the majority of the posts in the thread were in support of the solicitor.

In 2010, friends of this solicitor attempted to sue ZGeek for $42.5 million after they were flamed for trying to sell a conspiracy theory book on our forum. This was a breach of our terms and conditions and these friends were shown to be less than reputable operators.

Within days of this lawsuit ending, the solicitor threatened ZGeek and it's owner (sic) with further defamation over the 2005 discussion.

This now ex-solicitor also decided to pursue other avenues of legal action against the owner of ZGeek. Despite the owner Tony Brisciani not being involved in the discussion thread, having only posted a unflattering and mildly insulting news article on the subject. That is insulting if you consider being told to STFU rude. A comment the author later apologised for.

Since then ZGeek has had to fight five lawsuits against this ex-solicitor with a further two ongoing. In all cases, ZGeek and its owner have not been found liable or guilty of any charge. Yet the litigation continues as the plaintiff wishes to be compensated as they consider the opinions posted on this site to be violent.

So the legal fight continues and our cost mount (sic).

We seek donations as we are a non-profit website run by our community for the community.

Our legal representation has been provided by the wonderful law firm of Reardon & Associates who are our friends and people we'd recommend in a heartbeat if you ever need legal help.

We encourage all our members not to be intimidated by this legal action. It is all under control thanks to our awesome legal friends as we said, ZGeek and its owner have not been found guilty or liable for anything. So please, go swear and post boobies. [sic].

[154]

[192] Simply because, in a general sense, the publication of matter defamatory of an individual is included in a context of discussion of a subject of public interest on which there is the requisite reciprocity of interest and duty, does not assure the imputation of protection. Were it so, a great many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputation and the context. The introduction into a privileged communication of extraneous defamatory imputations will not necessarily cloak them with the privilege. The problem remains one of drawing a line between the protected and the unprotected.

[193] Various judicial formulae have been propounded to mark out the boundaries of the protection given by the relevant privilege. In Bellino v Australian Broadcasting Corporation [[1996] HCA 47; [1996] HCA 47; (1996) 185 CLR 183 (Bellino)], the joint reasons suggested that the test was whether "those defamatory imputations ... are relevant to the privileged occasion". In that case Brennan CJ was, if anything, more stringent. He did not consider that it was sufficient to decide whether the impugned imputations were "unconnected with and irrelevant to the main statement", as Lord Dunedin had proposed in Adam v Ward [[1917] AC 309]. In Brennan CJ's view, it was necessary, in order to attract the protection, that "the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest" [Bellino at 204]. A still further criterion of connection, apparently derived from Canadian formulations, was that applied by Sheller JA and Hodgson JA in the Court of Appeal [Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [2], [44]]. This asked whether the defamatory imputations were sufficiently "germane and reasonably appropriate" to the publication on the matter of public interest that otherwise attracted the privilege.

[194] All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases, the issue will be more debatable, as Callinan J has correctly recognised.

[195] Care must be observed in taking too literally the test propounded by Brennan CJ in Bellino. Because, as Callinan J notes, a defamatory imputation, as such, will commonly make little contribution to a discussion of public interest if included in a mistaken report of court proceedings, too rigid an application of that criterion would be self-fulfilling. Every error that involved a defamatory imputation would be cast beyond the pale. This would effectively introduce into the defence of qualified privilege a strict or even absolute requirement of accuracy in reports of proceedings that has been a feature of the common law defence of protected reports but not, as such, of qualified privilege. This, in turn, could endanger free discussion on subject matters of public interest that qualified privilege protects for the welfare of society.

[164]

[45] ... the fair comment defence does not apply to material unless it is in truth comment rather than fact, there is a rule that material cannot be fair comment unless "the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts" [Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 192 per King CJ]. That is, the alleged comment must be sufficiently linked to facts being commented on by reason of those facts being stated in the publication containing the comment, or being referred to in it, or being notorious.

...

One justification for the...rule is that given by Fletcher Moulton LJ in Hunt v Star Newspaper Co Ltd [[1908] 2 KB 309 (Hunt)]: "[A]ny injustice ... will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based." "When the facts are truthfully stated, comment thereon, if unjust, will fall harmless, for the former furnish a ready antidote for the latter." [VV Veeder, "Freedom of Public Discussion" (1910) 23 Harv L Rev 413] Further, the "facts on which the comment is based [must be] sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded". [Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 at 327 (Pervan)] They could conclude that "the writer may by his opinion, libel himself rather than the subject of his remarks". [Popham v Pickburn [1862] EngR 439; (1862) 7 H & N 891 at 898; [1862] EngR 439; 158 ER 730 at 733] Another justification for the...rule is that if the underlying facts are not referred to the reader, the reader "will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him". [Hunt at 319] That is, "if the facts are not known, the opinion carries with it the implication of facts which will justify it". [Harper FV and James Jr F, The Law of Torts (Little, Brown & Co., 1956), vol 1 at 459]

...

[49] According to the propositions which are stated in the first passage by the six majority Justices in Pervan's case [Pervan at 316], and which are supported by their reference to Odgers [Odgers WB and Ritson R, Odgers' Digest of the Law of Libel and Slander (6th ed, Stevens & Sons Ltd, 1929) at 166-167], a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by "setting it out"); the factual material commented on, while not set out in the material, can be referred to (ie by being identified "by a clear reference"); and the factual material can be "notorious".

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (239 paragraphs)

Brisciani v Piscioneri (No 4) [2016] ACTCA 32 (10 August 2016)

Parties

Legislation Cited (4)

Cases Cited (30)