Brisciani v Piscioneri (No 1) - [2016] ACTCA 30

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Brisciani v Piscioneri (No 1)
Citation:	[2016] ACTCA 30
Hearing Date:	12 May 2016
DecisionDate:	12 May 2016
Before:	Murrell CJ
Decision:	Application dismissed
Catchwords:	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
Legislation Cited:	Limitation Act 1985 (ACT) s 33
Cases Cited:	Eastman v The Queen [2015] ACTCA 24 Piscioneri v Reardon [2015] ACTSC 61 R v Skaf (2004) 60 NSWLR 86
Parties:	Gabriella Piscioneri (Applicant) Anthony Brisciani (Respondent)
Representation:	Counsel Self-represented (Applicant) Mr S D Malcolmson (Respondent)
Solicitors Self-represented (Applicant) Mr P Clough (Respondent)
File Number:	ACTCA 26 of 2015

MURRELL CJ:

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).

Procedural history

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) 60 NSWLR 86.

A forum was started on the website 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”.

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

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

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.

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

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.

Because the identity of “Sagacious” was not known until 18 October 2013, the 12 month limitation period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brisciani v Piscioneri (No 1)

Details

AGLC: Brisciani v Piscioneri (No 1) [2016] ACTCA 30
Case: [2016] ACTCA 30
Decision Date: 12 May 2016

CaseChat Overview and Summary

Brisciani (the applicant) sought to disqualify a judge from hearing proceedings on the grounds of apprehended bias. The alleged bias arose from the judge having previously presided over a separate matter involving the applicant, where the legal issues were distinct and the applicant's credit was not a central consideration.

The primary legal issue before the Court was whether the judge's prior involvement in a separate proceeding with the applicant gave rise to a reasonable apprehension of bias in the current matter. This required the Court to consider the test for apprehended bias in Australian law, particularly in circumstances where the subject matter and legal issues of the two proceedings did not overlap and the applicant's credibility was not in question in the earlier case.

The Court applied the established test for apprehended bias, which requires an objective assessment of whether a fair-minded lay observer, having considered the relevant facts, would apprehend that the judge might not bring an impartial mind to the issues to be decided. In this instance, the Court found that the distinct nature of the legal issues in the prior proceeding and the fact that the applicant's credit was not in contention meant that there was no basis for a reasonable apprehension of bias. The judge's prior involvement did not create a situation where the judge might be predisposed to favour or disfavour the applicant in the current proceedings.

The application for disqualification was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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