Supreme Court of the ACT|2015-05-06|Before: Burns J

Piscioneri v Brisciani [2015] ACTSC 106 (6 May 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judgment is entered in favour of the plaintiff. The defendant is ordered to pay the plaintiff the sum of $82,000.00 in damages.

CIVIL LAW - Torts - Defamation - statements amounting to defamation - publication - damages - whether plaintiff is identifiable in the publications - whether publications amount to mere abuse - whether publications were trivial - whether defence of honest opinion applies - whether defence of qualified privilege applies.

Civil Law (Wrongs) Act 2002 (ACT) Chapter 9

Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21

Bennette v Cohen [2009] NSWCA 60

Bureya P/L v The Mackay Printing & Publishing Co P/L [2003] QCA 284

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Consolidated Trust Co Ltd v Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86

David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234

Dow Jones & Co v Gutnick (2002) 210 CLR 575

Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763

John Fairfax Publications Pty Ltd v Rickin [2003] HCA 50; (2003) 201 ALR 77

Megna v Marshall [2010] NSWSC 686

Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632

Mundey v Askin [1982] 2 NSWLR 369

Polly Peck (Holdings) plc v Telford [1986] QB 1000

Ratcliffe v Evans [1982] 2 QB 524 (CA)

Speight v Gosnay (1891) 60 LJQB 231

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180

LexisNexis, Halsbury's Laws of Australia, (at 23 March 2015) 145 Defamation, '5 Honest Opinion and Fair Comment' [145-1950]

1. Between 1996 and 2007, the plaintiff owned and operated the criminal legal practice 'G J Piscioneri and Co' as a sole practitioner in New South Wales. The plaintiff is currently unemployed. In early 2005, reports appeared in the media regarding criminal trials against Bilal Skaf and others who were charged with several counts of aggravated sexual intercourse without consent in New South Wales (the Skaf trial). Following the trial and subsequent convictions of the accused men, the jury foreperson, an acquaintance of the plaintiff, disclosed to the plaintiff that he and possibly other members of the jury had conducted a view of the crime scene after having been directed by the trial judge not to do so. The plaintiff reported this to the Court. The plaintiff was a practising solicitor in Queanbeyan, NSW at the time, but was not directly involved in the Skaf trial. I note that the plaintiff's conduct in reporting what the juror had disclosed to her was clearly in line with her duties as a legal practitioner. As a result, the convictions were quashed and a retrial was ordered.

2. Purportedly in response to media reports on the topic, a forum was started in 2005 on the website www.zgeek.com.au (ZGeek) which facilitated discussion about the plaintiff and her conduct in reporting the jurors. The defendant is the owner and operator of ZGeek. Many of the posts condemned the plaintiff for having reported the jurors to the Court and were generally offensive in their nature. In 2009, the plaintiff discovered the posts and contacted the defendant, which sparked further discussion on ZGeek regarding the plaintiff and the legal proceedings that ensued.

3. The plaintiff now claims damages for defamation in response to these posts. Throughout these reasons I will refer to these posts collectively as the "ZGeek posts", or separately as the "2005 ZGeek posts" and the "2010 ZGeek posts".

4. This matter first came before this Court on 25 November 2011. The parties indicated that these proceedings were temporarily struck out sometime in 2012, however there is nothing on the Court file to confirm this, and neither party was able to clearly explain how this came to be. Nevertheless, the bench sheets indicate that this matter was certainly on foot again in October 2012. It was not until 5 July 2013 that the matter came before me. Both parties are self-represented, though the defendant has from time to time engaged legal representatives throughout these proceedings.

5. On 17 December 2013, Acting Justice Sidis ordered that the parties attend mediation on 20 March 2014 pursuant to r 1179 of the Court Procedures Rules 2006 (ACT). Mediation was unsuccessful and the matter came back before this Court for hearing on 15 October 2014. I will return to the evidence given at this hearing later in these reasons.

6. Written submissions were received from the plaintiff on 12 November 2014 and from the defendant on 4 February 2015. Submissions in reply were received from the plaintiff on 25 February 2015.

7. I will summarise the pleadings provided by each party as briefly as possible. The relevant pleadings are the Amended Originating Claim dated 19 July 2013 and the accompanying Amended Statement of Claim of the same date, and the Amended Defence filed 21 August 2013.

The Amended Originating Claim and Amended Statement of Claim

8. The Amended Originating Claim describes the nature of the plaintiff's action as follows:

(a) The publication by the defendant on his website ZGeek.com of a thread and posts in the "Tool of the Week" Forum published and downloaded on and about 14th December 2009 including in the Australian Capital Territory and New South Wales;

(b) The publication by the defendant on his website ZGeek.com of a thread and posts in the categories: Dept of Cunts, ZGeek News, headed "ZGeek threatened with yet another lawsuit", published and downloaded on and about 2nd January 2010 including in the Australian Capital Territory and New South Wales.

(c) The publication by the defendant on his website ZGeek.com of a thread and posts published in the categories: Operation Defecation and under the heading "IN THE NEWS" and entitled "The Myrmidon Friends sends me another legal threat!" Published and downloaded on and about 11th January 2010 including in the Australian Capital Territory and New South Wales.

(d) The publication by the defendant on his website ZGeek.com of a thread and posts published in the categories: Angry! Dept of Cunts, Operation Defecation, and entitled "Update on Myrmidon Enterprises legal harassment of ZGeek" published and downloaded on and about the 11th January 2010 including in the Australian Capital Territory and New South Wales.

(e) The publication by the defendant on his website ZGeek.com of a threat and posts published on a thread called "ZGeek's legal page" on or about 13th July 2013 in the Australian Capital Territory.

(f) The publication by the defendant on his website ZGeek.com of a thread and posts published on a thread called "ZGeek being sued for defamation for the fourth time" and downloaded on or about 6th November 2012.

9. The Amended Originating Claim also sets out the relief sought by the plaintiff:

The plaintiff claims damages for defamation in respect of publication, on and after 17th February 2005, by the defendant in the ACT, New South Wales and the other states and territories on the ZGeek website, of articles concerning the Plaintiff... The plaintiff is able to upon a cause of action for defamation under the provisions of the Civil Law (Wrongs) Act 2002 in relation to material published after 1st January 2006 (sic). The plaintiff is able to sue for damages for defamation including in respect of personal business reputation under common law in relation to publications prior to the 1st January 2006 pursuant to Section 118 (3) of the Civil Law (Wrongs) Act.

10. The plaintiff claims "damages including exemplary and aggravated damages, interest and costs."

11. In the Amended Statement of Claim, the plaintiff pleads 52 separate defamatory imputations arising from the ZGeek posts, including, inter alia, that "The plaintiff was an unjust and indecent person", "The plaintiff was extremely wicked, immoral and insane", "The plaintiff is an ex lawyer", "The plaintiff was responsible for Bilal Skaf's retrial and his reduction in sentence" and "The plaintiff acted incorrectly by reporting the foreman of the jury in the Skaf trial". The plaintiff alleges that these imputations arise out of the natural and ordinary meaning of the ZGeek posts. The defendant denies that these imputations are capable of being conveyed by the ZGeek posts.

12. The Statement of Claim provides that, by reason of the publications, the plaintiff was brought into hatred, ridicule and contempt, and has been gravely disparaged and injured in her reputation, causing her to suffer loss and damage, including damage to her business and professional reputation.

13. The Amended Statement of Claim states that the defendant published "each of the defamatory statements... without taking any steps, or any reasonable steps, to ascertain that the statements, insofar as they conveyed the meanings pleaded herein... were true". It further states that ZGeek "had a reputation as an accurate and reliable source of news and information" and that the defendant "received reward and profit" by the operation of ZGeek.

14. The plaintiff advised the defendant by letter dated 27 December 2009 that she considered the 2005 ZGeek posts to be extremely offensive and that she was seeking legal advice as to whether they constituted defamation. She invited the defendant to apologise. By letter dated 7 January 2010, the plaintiff further invited the defendant to "make amends" and requested that links to the ZGeek posts generated by a Google search that included her name be removed.

15. The defendant "neither admits nor denies" that he was the owner and administrator or webmaster for the purposes of registration of the domain name www.zgeek.com.au. He further states that members of the general public were able to join the site and post on it "without editorial supervision." The defendant admits that he created forums and wrote posts under the pseudonym 'Pirate' on the site.

16. The Amended Defence lists a number of features of the site that he claims would lead a reasonable person to understand that the site was not necessarily a reputable or accurate source of information. He drew particular attention to the website's disclaimer, which reads:

Everything is copyright, even stuff you own. Everything you say, think, touch and masturbate over is copyrighted by ZGeek. We own the fucking world, I copyrighted it so get the fuck off my copyrighted planet, but DONT (sic) use any spaceships because I copyrighted those too. So get Fucked!!.. (sic) you can't swear back because I COPYRIGHTED THAT TOO!!.. (sic) Stop breathing!! breathing (sic) is copyrighted by ZGeek.com for the next ELEVENTY BILLION YEARS! (sic)

17. The Amended Defence suggests that the plaintiff was motivated to commence legal proceedings because she was acquainted with two men who were previously involved in unrelated defamation proceedings against the defendant, one of whom had apparently "stated publicly he would keep ZGeek in court for years". This was apparently evidenced by the fact that the plaintiff had listed these two men, Jonathon Nolan and Greg Smith, as 'friends' on the social networking site Facebook. It is my understanding that references to 'the Myrmidon friends' in a number of the ZGeek posts refer to the plaintiff and these two men. The suggestion as to the plaintiff's motive made in the Amended Defence was not pursued at the hearing and does not appear to be relevant to this judgment.

18. The Amended Defence goes on to state that, if the ZGeek posts are found to be defamatory to the plaintiff, the following defences apply:

(a) that "the circumstances of the publication of the matter complained of was such that the Plaintiff was unlikely to sustain any harm";

(b) that "the matter complained of was published under qualified privilege" at common law and/or pursuant to s 139A Civil Law (Wrongs) Act 2002 (ACT);

(c) that "the matter was an expression of opinion of the Defendant" and that "the opinion related to a matter of public interest", "was based on proper material" and constituted expressions of honest opinion within the meaning of s 139B Civil Law (Wrongs) Act 2002 (ACT) and the "Defence of Fair Comment under the Common Law";

(d) that the material "is not, and is not reasonably capable of being construed as, a reference to" and "is not sufficiently connected to" the plaintiff or her conduct; and

(e) that "the matter was trivial" within the meaning of s 139D Civil Law (Wrongs) Act 2002 (ACT) and amounted to "mere abuse under Common Law."

19. I note that the defendant is mistaken in pleading the defence at (d) as a defence to defamation. Indeed, if I find that the plaintiff is not identifiable in the ZGeek posts, the plaintiff will have failed to make out a cause of action in defamation. Similarly, the pleading of the defence of "mere abuse under Common Law" at (e) should more correctly be formulated as an argument in relation to whether a publication carries a defamatory meaning rather than as a defence to defamation.

20. The Amended Defence also claims that the plaintiff is not entitled to exemplary damages pursuant to s 139H of the Civil Law (Wrongs) Act 2002 (ACT), which provides:

Exemplary or punitive damages cannot be awarded

A plaintiff cannot be awarded exemplary or punitive damages for defamation.

21. Both the plaintiff and the defendant were self represented at the hearing on 15 October 2014. Both parties gave sworn evidence in chief, and each cross examined the other.

22. The plaintiff gave evidence that on 14 December 2009 she was alerted to the existence of the ZGeek posts, which she then downloaded and read. The dates on the posts indicated that the material had been posted in early to mid 2005 and had remained on the website since then. The first post on the topic is written under the pseudonym 'Pirate' in the 'Tool of the Week forum' and reads:

Introducing our new tool of the week Gabriella Piscioneri. Gabriella is a very moral lawyer (we are probably going to get sued for this). So much so that when a juror told her that he had visited a crime scene to have a look around which is for some reason illegal, she told the authorities. But it just so happened that this crime scene was where a group of scumbags gang raped a 16 year old girl. In my books, what the juror did was not a big deal and justice was served. But apparently to Gabriella, it was a big deal and because of her blabber-mouthing the trial was scrapped and a new one was ordered.

Unfortunately the girl who had been brutalised by these sub-human lumps of shit was too traumatised to go through the trail (sic) again so the bastard that lead the attack got his sentence reduced by almost ten years. Gabriella Piscioneri you're a big tool and you should practice the mantra of "Shut the fuck up".

I note that, according to the exhibit that was tendered at the hearing, this post appears to be dated 3 May 2005 at 9:16 pm, however, it seemed to be common ground between the parties that this post was published prior to the publication of the 'Bitching and Rants' forum dated 17 February 2005, which I will recite below. Relevantly, during his cross examination of the plaintiff, the defendant referred to "the entire thread of the 2005 thread started by me [Pirate] and continued by [dilligaf]". This is consistent with my understanding of the timeline of publications based on the evidence as it was presented to me. Thus, I will assume that the date stamp on the 'Tool of the Week' exhibit is incorrect. This post is immediately followed by another written by 'fuelman' which reads:

How dare she expect all the jurors to receive the same information and for the defense (sic) and prosecution to know what that information is! she (sic) is truly evil!

23. The plaintiff also tendered a document from another website republishing the initial 'Tool of the Week' post authored by 'Pirate', above. Whilst the document provided does not clearly show the name of the website, the plaintiff testified that she thought the website was called 'Wayback Machine'. Annexed to this judgment and marked with the letter "A" is a copy of the exhibit which the plaintiff submits is proof of republication. I will consider whether or not this sufficiently demonstrates republication later in these reasons.

24. Another post is written under the pseudonym 'dilligaf' on a separate ZGeek forum called 'Bitching and Rants', dated 17 February 2005, and reads:

This woman really gives me the shits. After seeing the tool of the week rant, i (sic) can see that im (sic) not alone with my opinions. What a fuking (sic) moron. Can anyone really be more dence (sic) than this woman. What i (sic) dont (sic) get is this stupid bitch decided it was her "duty" to tell the judge. What a fucking moron. She was at a goddam (sic) party for christs sake (sic). 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 (sic) 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 (sic). Why the fuck to (sic) these guys get less jail time because a juror went to the scene of th (sic) crime?? What if that park was their local park? They couldnt (sic) 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 (sic) the hell did she do to deserve it? Absolutely nothing. This is really fucked, and its (sic) all got fucked up the arse with a dead dingos (sic) donger because of the soft cock lawyer, Gabriella Piscioneri. Fucking moron bitch. she (sic) should do the time that these guys get let off for. no (sic) 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 (sic) bullshit, she is probably the biggest tool in my shed at the moment. I dont (sic) really despise and hate alot (sic) of things, but of the few that i (sic) hate, rape and pedo's (sic) 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 (sic) 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 (sic) happen. I really feel strongly about this.

25. I note, however, that a number of the 2005 ZGeek posts from other users are supportive of the plaintiff's actions. For the sake of completeness, I will recite the entirety of the posts following that of 'dilligaf' (above), as it appears in exhibits 4 and 37:

Unfortunately she isnt (sic) to blame. The juror who conducted his own investigation should not have done so. She would be required to pass on the information, regardless of how regrettable the result.

What difference does it make if the juror goes there or not?? They were still found guilty by all of the jurors, not just the two who visited the scene.

Unfortunately, in this case it may have made no difference but in another it may have done. You have to have one rule for all, that is the whole point of law, isn't it?

As sagit say's (sic), the jurors are in the wrong, not the lawyer although how she sleeps at night I don't know. Still, defence lawyers are an absolute necessity (sic) in our legal system, and thank fuck we have it, the alternatives are not good!

Unfortunately, in this case it may have made no difference but in another it may have done. You have to have one rule for all, that is the whole point of law, isn't it?

If it made no difference, why did she say anything?? Its (sic) all so she get some more publicity for her own business (sic). Selfish, i (sic) think.

I am calling into question your ability to put any thought into a post beyond , (sic) "Maybe if i (sic) write a long barely coherent rant just to agree with the sites (sic) owner, people will think i'm (sic) cool."

I would guess that she is legally bound to inform the judge, in the same way she would if she learnt of jury tampering, for instance.

I would guess that she is legally bound to inform the judge, in the same way she would if she learnt of jury tampering, for instance.

If there's anything worse than a rapist, it's someone who perverts the justice system.

The jurors did that, and the lawyer would have too if she hadn't spoken up/ (sic)

The law is not about justice, its (sic) about process...and it stinks. (sic)

All information and evidence has to be carefully sifted before being presented to jurors. It is a basic tenet of the legal system.

The jurors did not merely go for a run in their local park- (sic) they went there with the specific intention of carrying out an experiment to establish elements of the offence.

As for the lawyer who 'blew the whistle' I would have done exactly the same thing. Lawyers cop a lot of crap- (sic) some of it is deserved- (sic) but this is an example of a lawyer representing her ethical duties and she is shot down. Sure, the result is really fucking tragic, and I feel for this girl immensely- (sic) but if you want to be angry at anyone- (sic) be angry at the fuckhead jurors who decided to conduct their own investigation AND then tell a lawyer about it!

As an aside, Dilligaf- the fact she was at a party should make no difference. Did you know- that (sic) if you are at a party, and ask a lawyer there about a legal issue, however trivial, and that lawyer gives you advice that later proves to be incorrect and causes you some form of measurable loss- you would still be entitles (sic) to sue that lawyer for professional negligence/misconduct? Even though there is no formal retainer.

In short- a lawyer is always a lawyer- and that duty is always with them.

I think everyone is looking at this the wrong way. It's not a case of what has to be done to make laws work, and what the current law is - it's about justice and being a decent person. In this one case, where the jurors actions make no difference, it wouldn't have hurt for this lawyer to have pretended she heard nothing. I hate the fact that society is more interested in rules than morals and logic. It's a fair enough rule I'll admit, but enforcing rules is a job, and nobody takes their job so seriously as to enforce a rule that is useless. it's like your boss doesn't fire you for taking 61 minutes for lunch instead of an hour, but if you were to take a two hour lunch every day for a week after being told each day not to, you'd lose your job as you broke the rule stating lunch hours are supposed to be one hour. This juror was in the wrong, but it's not the victim of crime's fault that they stuffed up. It is however now thanks to this lawyer that the victim's attackers will be free 10 years earlier. I'm not saying it's her fault as technically she was doing what she's told - but technically thousands of nazi troops were just doing what they were told and enforcing the rules in their system when they killed 7 million jews (sic). The legal system works better when the technicalities are not as important as the cold hard facts.

I wish I could agree - my heart tells me you are right - but the problem is that as soon as you allow 1 person (in this case her) to judge what is rihght (sic) and what is wrong you may as well forget about the jury system. I see lots of cases in the papers that seem morally wrong to me BUT as in this case, who made ME (or her) Judge, Jury & executioner.

No, if you have a system of law you HAVE to stick to it even when, as in this case, justice does not appear to have been done.

Obviously these jurors had been watching too much CSI and thought it would be a good idea to go and do some self investigation. I agree, it's not really her fault, even if she is a scumbag lawyer.

However, the jury system is fairly questionable. But they are told to play by the rules clearly, it's just some are too stupid to listen.

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

I am calling into question your ability to put any thought into a post beyond , (sic) "Maybe if I write a long barely coherent rant just to agree with the sites (sic) owner, people will think i'm (sic) cool."

Hey Im allowed to have my opinion right or wrong. People aren't cool if they think the same way as I do. It just happens.

I personaly (sic) believe she should have shut up. The guys where (sic) found guilty of the crime, but she must have known that this was going to cause a retrial which could have put those mongrels back on the street. Luckily it was only 10 years off.

Hey Im allowed to have my opinion right or wrong. People aren't cool if they think the same way as I do. It just happens.

I'm not criticising your opinion as such. I'm criticising the quality of the initial post in this thread, which is of poor quality and belittles a serious issue and questioning his motives for posting it.

I am of the understanding there wouldn't have been a retrial if it weren't for the actions of these jurors (feel free to correct me if i'm (sic) wrong). So more scrutiny should be given to these idiots for either not taking their role seriously enough or being to (sic) stupid to understand that "DO NOT VISIT THE CRIME SCENE" means don't visit the crime scene.

As has been mentioned the lawyer had a responsibility to tell the judge what had happened (and if she hadn't someone else would have), so merely even if she had the intention of covering her own arse, I believe her actions were justified. The implications of legal professionals of any role not taking these sorts of actions seriously are serious and dangerous.

Lastly, I don't believe she could have known (for sure) whether the victim would have been able to testify again or not. If she had been able to take the stand any re-trial would have most likely resulted in no reduction in sentence.

Mmmmmm, coz (sic) thats (sic) definately (sic) my motivation. I PM'd pirate to ask why there wasnt (sic) a linky from the tool of the week

There is no link to a thread to further to your bitching on Gabriella Piscioneri. Well, there isnt (sic) one on the front page.

I wanted to post my point of view on the issue. If i (sic) wanted to kiss pirates (sic) arse id (sic) pay to be here. I cant (sic) afford that money at the moment, so thats (sic) why i (sic) decide not to kiss his arse. If i (sic) was kissing his ase (sic) i (sic) would be rather blatant about it by creating a thread "Pirate is my idol. I want to have his babies" That, is kissing arse. (sic)

No, if you have a system of law you HAVE to stick to it even when, as in this case, justice does not appear to have been done.

I never siad (sic) that it wasnt (sic) against the law to go to the scence (sic) of the crime. My point was it had no effect on the outcome of the trial, so the lawer (sic) should have used her discretion. People like her are book smart. She could recite every line of her goddam law textbooks, but she cant (sic) be in touch with the wider community because she doesnt (sic) have the one thing a book cant (sic) give you, a personality.

Unfortunately lawyers in this case can't use discretion. If she did, and it resurfaced later on somehow, she'd get her ass kicked, sued for all she's got and the dude would be out of jail. Lawyers are supposed to be emotionless. The more they follow rules and not use discretion, the more clear the trial becomes, because the only way to make sense of something judicially is to apply it to a set of rules. The more these rules are followed (hopefully) the more accurate the findings at the end. That's the way the constitution was designed and is maintained. If lawyers start to judge a case for themselves, the system falls apart.

It's the juror's fault, they were supposed to follow these rules for a reason. Because they didn't, the trial was invalidated and they had to start again. Don't shoot the messenger - the guy that fucked up was the juror, he knew what he was doing and what the consequences were.

Mmmmmm, coz (sic) thats (sic) definately (sic) my motivation. I PM'd pirate to ask why there wasnt (sic) a linky from the tool of the week

thats good (sic). It's still a poorly thought-out one that; a) Places no blame on the parties that have broken the law (jurors) and all the blame on the person performing the duty they are required to (lawyer) and b) Assumes that the sole purpose of the legal system relates to this specific case and the ramifications that any actions may have on the future cases are irrelevant.

Intentional invocation of this so-called "Nazi Clause" is ineffectual.

I wasn't invoking it to end the thread. I was using the quote to highlight the stupidity of the comparison.

It wasn't hyperbolic as I truly believe that following rules just because they have been made to maintain somebody's idea of justice can end up causing a great evil to be done. If I had said "this woman is like Hitler because Hitler was evil and so is she" then my comparison would have been in bad taste and irrelevant, but such is not the case as my comparison was to highlight the moral dillema (sic) with certain forms of logic rather than to present someone as an evil person.

26. I will refer to the 'Tool of the Week' and 'Bitching and Rants' forums hereunder collectively as the 2005 ZGeek posts.

27. The plaintiff tendered a series of letters that she wrote to both the defendant and, during periods in which the defendant has been legally represented throughout these proceedings, the defendant's lawyers. The first of these letters is dated 27 December 2009, which the plaintiff wrote shortly after becoming aware of the 2005 ZGeek posts. These letters requested the defendant to, inter alia, "take any and all pictures, photos, screenshots or references etc (however written or produced) to [herself] and [her] facebook or any facebook avatar that [she] has used from [ZGeek]", "to immediately remove from the internet any and all hyperlinks that include [her] name and the name Zgeek including but not limited to those which link to the Zgeek website." She also spoke with the defendant on the telephone. Following the initiation of this correspondence, a number of further ZGeek posts appeared online. The plaintiff tendered a number of these ZGeek posts which she claims defame her (I will refer to these posts collectively hereunder as the 2010 ZGeek posts). I will set out the content of those posts pleaded as defamatory in the Amended Originating Claim and tendered at the hearing:

(a) Exhibits 7 and 35 (pleaded at paragraph (c) of the Amended Originating Claim) are print outs of a thread titled 'The Myrmidon friends send me another legal threat!', dated 11 January 2010 which reads:

Ok, this is just getting silly now. Today again, in my mailbox is another express posted legal threat from the Myrmidon friends. Again, threatening me with legal action for defamation unless I edit the google cache (impossible) publish an apology in all Australia's major news papers (LOL) and write a real apology. See this post below first.

The letter is posted after the jump, again it is from the same person we have posted about below. The persons (sic) identity has been removed for their own sake.

If anyone can donate to the fund, please do. I feel it is time to open a can of whoop-ass on a few people.

Also, we are looking for a barrister for when the trial starts. So if anyone knows any who (sic) would like to help fight this case (the first of it's (sic) type in Australia) please contact me.

Also, I have been sitting on some evidence for a while. Click the comments to check it out.

The material provided to me indicates that there are 53 responses to this thread. Annexed to this judgment and marked with the letter "B" is a copy of the Exhibit 35. Whilst I will not recite all the responses here, I note that Schedule "A" to the Statement of Claim makes particular reference to some of those replies:

(i) at paragraph (ee) a reply by the defendant under the pseudonym 'Pirate' dated 11 January 2010 at 7:52 am reads:

I just called the person and tried to have a rational conversation to see if they knew about the 1 year limitation on defamation and if we could sort this out. I got my ear chewed off and I couldn't get a word in. Lovely, rational people these are.

(ii) at paragraph (gg) a reply written under the pseudonym '~~vjay~~' dated 11 January 2010 at 7:27 am:

No one even remembered the original post existed or her name until she chose to throw a tantrum about it.

I guess she likes attention.... I suggest she runs around topless in Parliament House for it instead, she might enjoy it more.

(iii) at paragraph (hh) a reply written under the pseudonym 'banga' dated 11 January 2010 at 7:41 am reads:

this (sic) person obviously has to (sic) much time on their hands after filling out their dole forms , (sic) must be relaxing to park ur (sic) arse down and think of numerous ways to ruin a hard working mans (sic) life with fabricated information, not to mention the total waste of time and money this debacle has cost T (sic)

(iv) at paragraph (kk) a reply written under the pseudonym 'RedMaN' dated 11 January 2010 at 8:09 am reads:

Yep, the levels of retard just went off the scale. Seriously, no one gives a shit about this person. Maybe they should crawl back into the hole they came out of.

Lrn2internets - google cache cannot be deleted. Get a fucking clue.

(v) also at paragraph (kk) a reply written under the pseudonym 'cranky' dated 11 January 2010 at 8:33 am reads:

there (sic) needs to be some sort of 3 strikes policy with this clueless bullshit. they (sic) obviously need to have their internets (sic) removed.

(vi) at paragraph (ll) a reply written under the pseudonym 'rickbitch' dated 11 January 2010 at 12:07 pm, quoting an earlier post of 'Pirate', reads:

"Pirate;1550183 wrote: How can you do a cease and desist on defamation? If you mean, are we going to counter sue for costs? Then yes, that is on the cards."

You can demand that they cease and desist their frivolous and vexatious legal threats on the basis that they have no case to pursue due to the statute of limitations of defamation. That should have been the reply to the first letter.

The reply to the second letter (this one) should have been a threat, or even a summons, on the basis that you are suing her for harrasement (sic).

(vii) at paragraph (qq) a reply written under the pseudonym 'frednurk' dated 11 January 2010 at 3:56 pm reads:

A lawer (sic) in Australia is answerable to the governing body in each respective State or Territory of the Commonwealth.

If you want this prick to turn contrite overnight then complaint to his/her overlords.

Professional bodies take an exceptionally dim view of members that bring their profession into disrepute.

(viii) at paragraph (rr) a reply written under the pseudonym 'durus' dated 11 January 2010 at 8:15 pm reads:

You know it seems like he thinks he can be the next Paris Hilton by getting lots of negative media coverage and then turning it around to make money from it. Unfortunately for him/her Paris's negative media attention was over something that most of us do not find overly horrifying if kept private. While his choice of act for garnering attention most people will neither understand nor respect. So upcoming fail very soon. Will have to remember to donate to the fund. I'm looking forward to you suing for costs when this is over.

(ix) at paragraph (ss) a reply written under the pseudonym 'KrisEz' dated 11 January 2010 at 7:52 am reads:

but (sic) in all seriousness this person should do more constructive things with their time, like write cranky letters to the editor for daily newspapers.

(x) at paragraph (tt) a reply written under the pseudonym 'PsychoNavigator' dated 11 January 2010 at 9:54 am reads:

LOL, we've offended people that spend all their time trying to amount to something greater than shit, but rather than actually trying, they spend all their time desperately talking about it.

They should get off their asses and do some real work.

(xi) at paragraph (uu) a reply written under the pseudonym 'PsychoNavigator' dated 11 January 2010 at 7:56 am reads:

Then sue her back! Maybe the internet will divide by zero!

(xii) at paragraph (vv) a reply written under the pseudonym 'dwarfthrower' dated 11 January 2010 at 8:20 pm reads:

Just send her a very polite letter saying that if she agrees to enter this year's boobie comp you'll be happy not to proceed with any further legal action.

(xiii) at paragraph (ww) a reply written under the pseudonym 'Lurgen' dated 11 January 2010 at 11:59 am reads:

Defamation? Hate speech? Pornography? Death threats? These are but a few of my favourite things!

Pirate, you will die. There, I said it. So I will I though (sic). As will the battery on my laptop. The battery will go first. Then it's a race between you and me, but just quietly I'm not trying very hard so don't be upset if you win. Will you sue me for stating a biological fact? I hope not but hey, it's a crazy world out there.

Pornography? Yes please. More actually, just not on the front page, you know my thoughts on that ☺

Hate speech? I hate speech. And speakers. Unless they're really high quality, in which case they're good for music.

And defamation? Pirate, you're not a pirate at all. You're a wench. A short, steenin' wench. With a funny looking site filled with IT desk helpers (like desks need help in the first place, who the fuck do you think you are anyway?). Plus you pooped in my shoe once. You or Aftaimage, I forget which. Doesn't matter which, you're then (sic) one who did it so get back here and clean it up. And you (sic) upcoming movie will be rubbish, your special effects will be cheap and shoddy plus your script has had problems since day one.

BTW, I'm broke at the moment so won't donate this time around but I'm glad you're still fighting the good fight (this is where I'm actually serious BTW). If it were me (and thank fuck it ain't, because I just threatened you, said stuff about pron and defamed you) I'd be finding a nice solid opportunity to counter-sue and going beserk. But that takes money, and I can assure you that if I had it I'd fund the entire battle. Because idiots seem to rule our world. Morons who have no chance of success through legitimate means, so resort to stupid legal battles. Dumb. Common as dirt.

(b) Exhibit 26 (pleaded at paragraph (d) of the Amended Originating Claim) contains, according to the plaintiff, relevant parts of the thread titled 'Update on Myrmidon Enterprises legal harassment of Zgeek', dated 11 January 2010. This thread contains a pixelated image of the plaintiff's Facebook profile picture. The posts reads:

In case you missed it. About a week or so ago we posted a link to a story on OzSoapbox regarding the Reality TV show Starwalker. A show which is being made by Myrmidon Enterprises. The chaps who are suing me for $42.5 million for defamation and for trademark breach (even though they don't own the trademark).

Because we dared question Myrmidon Enterprises' show, they got their friend to threaten us with another defamation suit.

But good news. I've spoken to our lawyers at Clamenz Corporate lawyers who confirmed that we don't have anything to worry about since the posts are five years old and the statute for defamation is 1 year, or 3 years if a judge orders it.

This proves that Myrmidon Enterprises and the men behind it are harassing us. Using their legal knowledge to harass us via the court system. How do we know? Well there is that whole thing about applying for the trademark on our site name and threatening to sue us for it. But we investigated this person. We know they are a lawyer so why send the threats knowing about the statute? We also know they are a friend of both Greg Smith and Jonathan (sic) Nolan. We took the screenshot (pictured) from their facebook profile and surprise, surprise. Look who's on it.

This exhibit is annexed to this judgment and marked with the letter "C".

(c) Exhibit 28 (pleaded at paragraph (f) of the Amended Originating Claim) is titled 'ZGeek being sued for defamation for the fourth time', dated 5 November 2010, reads:

It is my unfortunate job once again to announce that ZGeek is being sued for defamation. Again by the same person who attempted to sue us twice earlier this year along with Google for defamation.

It's not a new filing, but an attempt to get the courts to relist the same defamation action that the person abandoned. This time, without naming Google. I see it as nothing more than an attempt to intimidate me into backing down from appeal regarding costs that were awarded to us for another matter.

I will not give up. Unfortunately this means more legal fees and after three years of defence, the legal fund is done. So, I once again turn to you and ask for your support.

For the last three years we have been targeted for legal action. In these three years ZGeek and I have not been found guilty of anything. Yet this person just keeps filing action after action. In my opinion this is nothing but manipulation of our court system to create as much hardship on me as possible. So I need your help. I can't do this on my own, cost financially and emotionally has devastated me.

We still have the awesome Reardon & Associates and their friends helping us out. But legal costs are mounting and I can't afford it myself. So if you can spare a few dollars, please donate here via paypal.

Comments are open, but please don't make negative comments about this person as they will just us (sic) it as an example on how I 'encourage" (sic) you guys to be bad people. So please don't.

This thread has 20 replies. Annexed to this judgment and marked with the letter "D" is the exhibit. The plaintiff makes particular reference at paragraph (zz) of Schedule "A" to the Amended Statement of Claim to a reply written under the pseudonym 'Marchpig' dated 6 November 2012 at 12:08 am which reads:

and (sic) if I win the lotto this week, we're gonna bury the bitch in so much litigation she'll wish she never heard of JoNo

(d) Exhibit 20 is a thread titled 'ZGeek's Legal Page'. It appears that the material was downloaded or printed on 13 July 2013, however it is unclear what date the thread was initially written. It reads:

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.

28. A pixelated screenshot of the plaintiff's personal Facebook account was published in the post 'Update on Myrmidon Enterprises legal harassment of Zgeek', at [28 (a)] above. These screenshots showed her Facebook friends to include Greg Smith and Jonathon Nolan, though the plaintiff's name, profile picture and other Facebook friends were pixelated. The plaintiff gave evidence that her profile picture depicted green basil and was not a picture of herself. The plaintiff testified that the publication of her Facebook profile picture on the ZGeek website allowed people to identify her, as any of her Facebook friends, or friends of her Facebook friends, would be able to connect the pixelated profile picture with her name. She also noted that over 700 Facebook friends of Mr Nolan would have been able to identify the plaintiff via her profile picture through his 'friends list'. I note that the defendant testified, however, that the Facebook pages of both Mr Nolan and Mr Smith were 'locked' such that the public would not have been able to access their profiles or their 'friends list', however, existing friends would still have had access to their 'friends list'.

Piscioneri v Brisciani [2015] ACTSC 106

At a glance

Court

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Before

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Judgment (369 paragraphs)

Piscioneri v Brisciani [2015] ACTSC 106 (6 May 2015)

Parties

Legislation Cited (4)

Cases Cited (10)