SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Brisciani v Piscioneri (No 2) |
Citation: | [2016] ACTCA 24 |
Hearing Date: | 12 May 2016 |
DecisionDate: | 12 May 2016 |
ReasonsDate: | 10 August 2016 |
Before: | Refshauge J |
Decision: | The application be dismissed. |
Catchwords: | APPEALS – JURISDICTION, PRACTICE AND PROCEDURE – Application for the disqualification of a judge – allegation of bias – form of bias not identified – judicial case management – statement of fact not pre-judgment – no actual bias – judge hearing case involving same party – no reasonable apprehension of bias |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5435 |
Cases Cited: | Anderton v Auckland City Council [1978] 1 NZLR 657 Duke Group Ltd (in liq) v Pilmer (No 3) [2001] SASC 215 Western Australia v Watson [1990] WAR 248 |
Texts Cited: | J Tarrant, Disqualification for Bias (Federation Press, 2012) T K Tobin and M G Sexton, Australian Defamation Law and Practice (LexisNexis Butterworths, 2003), looseleaf service 66 G Blank and H Selby, Appellate Practice (The Federation Press, 2008) |
Parties: | Gabriella Jean Piscioneri (Applicant) Anthony Brisciani (Respondent) |
Representation: | Counsel Self-represented (Applicant) Mr S Malcolmson (Respondent) |
| Solicitors Self-represented (Applicant) Mr P Clough (Respondent) | |
File Number: | ACTCA 26 of 2015 |
REFSHAUGE J:
On 6 May 2015, the applicant, Gabriella Piscioneri, was successful in defamation proceedings she took against the respondent, Anthony Brisciani: Piscioneri v Brisciani [2015] ACTSC 106. Ms Piscioneri was awarded damages of $82,000. Mr Brisciani, however, has appealed against that decision. The Bench assembled for the appeal comprised Murrell CJ, Jagot J and myself.
By Application in Proceedings dated 9 May 2016, Ms Piscioneri applied for an order that I (and Murrell CJ) “are disqualified from hearing ACTCA 26 of 2015 [namely the appeal by Mr…
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- AGLC
- Brisciani v Piscioneri (No 2) [2016] ACTCA 24
- Case
- [2016] ACTCA 24
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether there was a reasonable apprehension of bias on the part of Refshauge J, such that his Honour ought to be disqualified from continuing to hear the case. This required the court to consider the nature of the alleged bias and whether it was of a kind that would lead a fair-minded lay observer to conclude that the judge was not impartial.
Refshauge J determined that the plaintiff had failed to identify any specific form of bias. His Honour found that statements made during judicial case management were not indicative of pre-judgment but rather were part of the ordinary process of managing litigation. Furthermore, the fact that his Honour had previously heard cases involving the same party did not, in itself, give rise to a reasonable apprehension of bias. The application was therefore dismissed.
Orders
Orders of the court
The application be 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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