Brisciani v Piscioneri

[2016] ACTCA 32

Court of Appeal (ACT)|2016-08-10|Before: Murrell CJ, Refshauge and Jagot JJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2016-08-10

Before

Murrell CJ, Refshauge and Jagot JJ

Catchwords

DEFAMATION – Statements amounting to defamation –
whether statements published online capable of bearing defamatory meaning
–
whether plaintiff is identifiable in publications – whether

Source

Original judgment source is linked above.

Catchwords

DEFAMATION – Statements amounting to defamation –whether statements published online capable of bearing defamatory meaning–whether plaintiff is identifiable in publications – whetherpublications amount to mere abuse – fair comment –privilege –whether comments relate to matters of public interest – whetherpublications trivial – damages –whether award of aggravated damagesappropriate – whether award of damages appropriate – articulation ofseparate basisof award

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Brisciani v Piscioneri (No 4)

Citation: [2016] ACTCA 32

Hearing Date: 12 May 2016

Decision Date: 10 August 2016

Reasons Date: 10 August 2016

Before: Murrell CJ, Refshauge and Jagot JJ

The appeal and the cross-appeal be dismissed. Decision: 2. The parties pay their own costs of the appeal and cross-appeal.

Catchwords: DEFAMATION – Statements amounting to defamation – whether statements published online capable of bearing defamatory meaning – whether plaintiff is identifiable in publications – whether publications amount to mere abuse – fair comment – privilege – whether comments relate to matters of public interest – whether publications trivial – damages – whether award of aggravated damages appropriate – whether award of damages appropriate – articulation of separate basis of award

“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]

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].

Both parties filed applications seeking to admit further evidence.
We rejected Mr Brisciani’s application during the hearing of the appeal.
Mr Brisciani initially sought to adduce 24 articles published in newspapers and news services from 2005. The basis for admission was said to be that the articles supported his defence of triviality. During the hearing of the appeal, however, admission of one article only was pressed - an article by Charles Miranda published in The Daily Telegraph, dated 7 March 2005, entitled “Inquiry into magistrate – Solicitor complains of ‘intimidation’”.
We rejected the document. The article was published in 2005. It follows that it would have been open to Mr Brisciani to locate and seek to tender the article before the primary judge. Mr Brisciani offered no explanation for why he had not sought to do so. It is also difficult to see how the article, which relates to Ms Piscioneri having made other allegations of harassment and intimidation by a magistrate, bears any rational connection to the damage caused to Ms Piscioneri’s reputation as a result of the ZGeek posts. The article merely identifies the allegations which Ms Piscioneri had made in the context of a compliant to the Judicial Commission of New South Wales which, at the time, remained undetermined. Further, the defence of triviality is available in respect of the 2010 ZGeek posts only, yet the article is dated 2005. This also undermines the existence of any rational connection between the article and Ms Piscioneri’s reputation as at 2010.
Ms Piscioneri sought to adduce further evidence of a more wide-ranging kind. The material included posts from the ZGeek website from 2014–2015 and various court documents and other materials regarding the conduct of Ms Piscioneri’s application for a personal protection order against Mr Brisciani. One document includes a screenshot of a search for the name “Gabriella Piscioneri” on a website which contains reference to the original 2005 ZGeek posts. Ms Piscioneri submitted that this evidence reflects “conduct that has occurred since trial … [that] is relevant to the amount of aggravated damages that should be awarded” as well as a “lack of remorse” and “failure to remove from the internet, material that [Mr Brisciani] first published about the respondent in 2005”.
This material should also be rejected. It is of little, if any, utility in resolving the cross-appeal. It does not undermine any factual finding or conclusion of the primary judge. The documents relating to the personal protection order proceedings are not probative of any fact in issue in this matter. The reference in ZGeek posts in 2015 to the 2005 posts is in the context of describing ongoing litigation and does not disclose the content of the 2005 posts or identify Ms Piscioneri. The documents relating to the conduct of this appeal do not disclose anything of weight which might rationally bear on the award of damages.

This ground relates to the primary judge’s refusal to admit certain material into evidence.
First, Ms Piscioneri challenges the primary judge’s refusal to admit two posts (evidence of an original post and its later edited state) made by an individual employing the username “derob.amme” as comments upon a thread titled “The Myrmidon friends send me another legal threat!”. Mr Brisciani objected to this material being admitted on the basis that it is “not a complete thread”, there are “missing pages”, and it is “out of context”. The primary judge refused to admit this material observing that it “really adds nothing to the proceedings”.
The primary judge was correct. Ms Piscioneri herself said that she wanted to adduce the material “just to give some further evidence about how this conduct has affected me”. The primary judge’s ruling on evidence is not affected by error. The material was of marginal relevance and incapable of affecting the outcome of the proceeding one way or another.
Second, Ms Piscioneri contends that the primary judge erred in refusing to admit an extract containing three articles on a blog entitled “Jonathon Nolan can suck my sack”, published under the pseudonym “legally immune”. According to Ms Piscioneri she “thought Mr Brisciani … might be the person using the pseudonym” and this article demonstrated that the phrase “ex-lawyer” was being used to describe someone who was removed from the role of legal practitioners for misconduct. The primary judge refused to accept the material on the basis that it lacks any “immediate connection” to Mr Brisciani. The transcript discloses Ms Piscioneri responded that “[m]aybe I can leave it for cross-examination”; however, she did not return to this issue when cross-examining Mr Brisciani.
Again, the primary judge’s ruling about this material is unaffected by error. For the material to be admissible, Ms Piscioneri would have had to obtain evidence in cross-examination connecting Mr Brisciani to the material but she did not do so.
Third, Ms Piscioneri contends that the primary judge erred in refusing to admit certain material relating to Mr Briscioneri’s attempts to mitigate damage. However, the material in dispute is not included in the appeal papers. In a note appended to his judgment, the primary judge said:

[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) 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.

[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) 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) 7 H & N 891 at 898; 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 th Odgers [Odgers WB and Ritson R, Odgers’ Digest of the Law of Libel and Slander (6 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”.

Ms Piscioneri contends that the primary judge “erred in fact in finding that only one person, Marek Reardon, viewed the defamatory material on the 2010 posts”.
The primary judge reasoned as follows:
The identification of Ms Piscioneri is an essential element of her cause of action in defamation; it may be established in two ways - either by explicit identification or by demonstrating that recipients of the communication had knowledge of particular extrinsic facts enabling Ms Piscioneri to be identified in circumstances where an ordinary and reasonable reader with knowledge of those facts would understand the imputation as referring to the plaintiff. (at [71]–[72])
To establish identification in the second way, Ms Piscioneri had to prove the extrinsic facts and publication to at least one person who had knowledge of those extrinsic facts (at [72]).
The extrinsic facts were said to be the 2005 ZGeek posts, which explicitly named Ms Piscioneri, and her Facebook profile picture. However, Ms Piscioneri did not prove that any person with knowledge of these extrinsic facts actually read the 2010 ZGeek posts (at [73]). This is because:
“The 2005 ZGeek posts were published years prior to the 2010 ZGeek posts” so that it cannot be inferred that “the ordinary, reasonable reader would have the 2005 ZGeek posts fresh in their memory if they happened to also read the 2010 ZGeek posts some years later” (at [76]).
While it is possible that “some readers of the 2010 ZGeek posts might also have read the 2005 ZGeek posts” it was not proved that this had occurred or, if it did, that the reader recalled or would be likely to recall the identity of Ms Piscioneri from the 2005 ZGeek posts (at [77]).
The profile picture on Ms Piscioneri’s Facebook page was a basil leaf. In these circumstances the fact that the profile picture was published in a pixelated form on the 2010 ZGeek posts did not support an inference that Ms Piscioneri could be identified. The fact that certain Facebook “friends” were visible did not assist Ms Piscioneri as her own evidence was that the “friends list”, naming her, were locked (that is, not accessible other than to friends on the list) (at [78]). 7. No one gave evidence that they did or could identify Ms Piscioneri from the 2010 ZGeek posts. Responses to the posts suggest she could not be identified (at [79]).
As no witnesses were called to testify that they were able to identify the applicant, the evidence was insufficient to infer that a reasonable and ordinary person within the class of those who had knowledge of the extrinsic facts relied upon did, would have or could have identified the plaintiff (at [80]). The “lack of identification” argument is buttressed by a number of comments which confuse or mistake the gender of the applicant, refer to her as “they” or otherwise express a lack of knowledge about the identity of the applicant (at [79]).
Mr Brisciani admitted that Mr Reardon “knew the identity of the plaintiff and would have been able to identify her from the 2010 ZGeek posts”, and posted responses under a pseudonym showing that he had read the posts (at [81]). Mr Brisciani also disclosed that he had made Ms Piscioneri’s identity known to two people who acted as moderators of the website so that they could ensure her name did not appear and was removed if it did appear on the website (at [82]).

The primary judge’s reasoning is not affected by error. To the contrary, it is cogent and persuasive. Indeed, the only mistake the primary judge seems to have made is to identify the pixelated image as basil when Ms Piscioneri contends that it was mint. Otherwise, Ms Piscioneri’s assertions appear to rest on the unlikely proposition that someone who had access to the list of “friends” of the two persons who appeared on her Facebook profile might have undertaken the exercise of attempting to match the pixelated image with her profile. In the case of one of her identified Facebook “friends” this would have involved comparing 700 images to find a match between a pixelated image of a leaf with Ms Piscioneri’s non-pixelated image of the same leaf and inferring that she was the person with whom the image was associated. The notion that the ordinary and reasonable reader of the 2010 ZGeek posts might undertake such an exercise is untenable. Moreover, there was no evidence before the primary judge that any person did undertake this task.
Further, nothing turns on the reason why Mr Reardon was able to identify Ms Piscioneri from the 2010 ZGeek posts. The evidence does not support any suggestion that he was able to identify her because he had undertaken the kind of exercise Ms Piscioneri’s case appears to depend upon. Nor was the primary judge required to speculate about how Mr Reardon was able to identify Ms Piscioneri. The simple fact is that Mr Brisciani admitted that Mr Reardon knew the identity of Ms Piscioneri. Nothing more was proved than this.
As discussed, Mr Brisciani’s evidence that he gave Ms Piscioneri’s name to two moderators so that they could ensure that her name did not appear on the website did not need to be corroborated. The primary judge’s conclusion, that Mr Brisciani had identified Ms Piscioneri to those two persons for the legitimate purpose of ensuring her name did not appear on the ZGeek website, is not affected by error. It follows that his conclusion at [83] that the only people who identified Ms Piscioneri as the subject of the 2010 ZGeek posts were Mr Reardon and the two moderators is not open to successful challenge.
The primary judge’s subsequent observation at [90] that only one person (Mr Reardon) was able to identify Ms Piscioneri in the 2010 ZGeek posts must be understood in the context of the primary judge’s earlier comment at [82] that it would be “unreasonable to penalise the defendant simply for taking steps to ensure that the plaintiff could not be identified by the wider public”. By this, the primary judge meant that he did not consider it reasonable that Mr Brisciani be exposed to a greater award of damages for the 2010 ZGeek posts by reason of the fact that Mr Brisciani had taken steps to ensure her identity was not disclosed (when those steps themselves necessarily involved disclosure of her identity to the two persons appointed as moderators). Nor does this approach disclose any inconsistency in findings by the primary judge; three people knew the 2010 ZGeek posts were about Ms Piscioneri, but as two did so for the purpose of moderating the website, only one was relevant for the assessment of damages. We see no error in this.

In the context of damages for defamation, where pre-judgment interest is frequently granted at a rate less than the Court rate, the worst that can be said is that the primary judge’s approach to the inclusion of interest in the single sum award does not assist effective appellate review; as such, it would have been preferable for the primary judge to have dealt with the award for the defamations separately from interest. This is not to say, however, that the award must be disturbed. The primary judge correctly recognised that two separate discretions were involved. The question remains whether the exercise of either discretion miscarried. We are not satisfied that the exercises did miscarry. For example, if the principal award for the defamations was $45,000 (a figure we consider within the reasonable range for these defamatory statements), to which $10,000 is added for aggravated damages, the total award for the defamations is $55,000. An award of pre-judgment interest at a rate of 4.5% per annum over the period from the 2005 ZGeek posts (which would be reasonable given that most of any award should relate to the 2005 ZGeek posts and compensatory purpose of interest) to the date of judgment (given the uncertainty of the date of the initial post, say, the period from February 2005 to April 2015, or a total of 10.25 years), would yield interest in the sum of somewhat over $25,000. On this basis, the total award inclusive of interest would be just over $80,000. The primary judge’s total award was $82,000. We are satisfied that the primary judge’s award was well within the range of reasonableness in all of the circumstances.
As a result, we would conclude in these terms. In a case such as the present, where pre-judgment interest would accrue over a lengthy period of time, it is preferable for reasons to be given explaining the exercise of each the relevant discretions, for the award of damages and the award of pre-judgment interest. Despite this, the primary judge’s conclusion in respect of the award of damages and of interest was reasonably open in the circumstances, and should not be disturbed on appeal.

Brisciani v Piscioneri

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