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Brisciani v Piscioneri (No 2)

Brisciani v Piscioneri (No 2)

Case [2016] ACTCA 24 12 May 2016

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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 Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 Eastman v The Queen (2000) 203 CLR 1 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 Fox v Percy (2003) 214 CLR 118 [redacted for legal reasons] Grassby v The Queen (1989) 168 CLR 1 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Piscioneri v Brisciani [2015] ACTSC 106 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Morley; Ex parte Australasian Meat Industry Employees Union (1985) 60 ALJR 402 Re The Governor, Goulburn Correctional Centre & Anor; Ex parte Eastman (1999) 200 CLR 322 Sharp v Carey (1897) 23 VLR 248 Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Vakuata v Kelly (1989) 167 CLR 568 Wentworth v Rogers [2004] NSWCA 401 Wentworth v Rogers [2004] NSWCA 430 Wentworth v Rogers (2006) 66 NSWLR 474 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…

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 2)

Details

AGLC: Brisciani v Piscioneri (No 2) [2016] ACTCA 24
Case: [2016] ACTCA 24
Decision Date: 12 May 2016

CaseChat Overview and Summary

An application was made by the plaintiff, Brisciani, for the disqualification of Refshauge J from hearing proceedings involving the defendant, Piscioneri. The plaintiff alleged that the judge harboured bias against him.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Brisciani v Piscioneri (No 2) [2016] ACTCA 24

Most Recent Citation

Shuren & Fang (No 5) [2023] FedCFamC1F 966

Cases citing this decision · 4 of 4 shown

Shearman v Classic Constructions (Aust) Pty Ltd
[2025] ACTCA 33

…ertifiers Pty Ltd v Hyblewski [2020] ACTCA 21 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Brisciani v Piscioneri (No 2) [2016] ACTCA 24 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148 Construction Occupations Register v Bates [2017] ACTCA 15 Décor Corporation Pty Lt…
Shuren & Fang (No 5)
[2023] FedCFamC1F 966 Para 11

…VSCA 165, [6], Valdez v Frazier [No 3] [2015] FamCAFC 205, [8], Brisciani v Piscioneri [No 1] [2016] ACTCA 30, [1], Brisciani v Piscioneri [No 2] [2016] ACTCA 24, [4], Brisciani v Piscioneri [No 3] [2016] ACTCA 31, [1], Amos v Wiltshire [2016] QCA 70, [1] –[4] , [18] , SZVBN v Minister for Immigration & Border Pro…
Brisciani v Piscioneri (No 4)
[2016] ACTCA 32 Para 1

…f each member of the appeal bench. These applications were rejected: see Brisciani v Piscioneri (No 1) [2016] ACTCA 30, Brisciani v Piscioneri (No 2) [2016] ACTCA 24, Brisciani v Piscioneri (No 3) [2016] ACTCA 31.…
R Developments Pty Ltd v Forth
[2016] ACTCA 25 Para 1

…required to prepare and file appeal books, called in the Rules “the appeal papers”. I have described the need for this in Brisciani v Piscioneri [2016] ACTCA 24 at [14]. The appeal books are clearly designed, and should be prepared, in order to facilitate the efficient conduct of the appeal and, of course, to ass…

View all 4 citing cases →

Cases cited in this decision · 20 of 20 shown

Piscioneri v Brisciani
[2015] ACTSC 106 Para 1

…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 comprise…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 1

…he New South Wales Court of Appeal dealt with three matters involving the same parties. Two judges appeared in all three matters ( Wentworth v Rogers (2006) 66 NSWLR 474; Wentworth v Rogers [2004] NSWCA 430; Wentworth v Rogers [2004] NSWCA 401).…
Wentworth v Rogers
[2006] NSWCA 145 Para 1

…In 2004 to 2006, the New South Wales Court of Appeal dealt with three matters involving the same parties. Two judges appeared in all three matters ( Wentworth v Rogers (2006) 66 NSWLR 474; Wentworth v Rogers [2004] NSWCA 430; Wentworth v Rogers [2004] NSWCA 401).…
Wentworth v Rogers
[2004] NSWCA 430 Para 1

…with three matters involving the same parties. Two judges appeared in all three matters ( Wentworth v Rogers (2006) 66 NSWLR 474; Wentworth v Rogers [2004] NSWCA 430; Wentworth v Rogers [2004] NSWCA 401).…
Wentworth v Rogers
[2004] NSWCA 401 Para 1

…e parties. Two judges appeared in all three matters ( Wentworth v Rogers (2006) 66 NSWLR 474; Wentworth v Rogers [2004] NSWCA 430; Wentworth v Rogers [2004] NSWCA 401).…
Erris Promotions Ltd v Commissioner of Inland Revenue
[2003] NZCA 163 Para 1

…The orthodox view, with which I agree, is that the judge whose disqualification is sought should hear and determine the application: Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 at 1019. In Duke Group Ltd (in liq) v Pilmer (No 3) [2001] SASC 215 at [71], Doyle CJ, who had been asked to disqualify himself said, “the challenge to m…
Eastman v Director of Public Prosecutions (ACT)
[2003] HCA 28 Para 1

…te Eastman (1999) 200 CLR 322, Eastman v The Queen (2000) 203 CLR 1 and Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318) are examples of where the same, or substantially the same, bench of judges heard appeals involving the same or substantially the same parties.…
Fox v Percy
[2003] HCA 22 Para 1

…lity of a party to be in issue. This is clear from the judicial restraint required of appellate judges, as expressed in decisions such as Fox v Percy (2003) 214 CLR 118 at 126-7.…
Duke Group (in Liq) v Pilmer & Ors (No 3) No. Scciv-92-1874, Scciv-93-1810
[2001] SASC 215 Para 1

…ermine the application: Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 at 1019. In Duke Group Ltd (in liq) v Pilmer (No 3) [2001] SASC 215 at [71], Doyle CJ, who had been asked to disqualify himself said, “the challenge to me continuing to sit should be determined by me, and not by the C…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…e CJL (1986) 161 CLR 342 at 352 and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348; [19].…
Eastman v The Queen
[2000] HCA 29 Para 1

…Court involving David Harold Eastman ( Re The Governor, Goulburn Correctional Centre & Anor; Ex parte Eastman (1999) 200 CLR 322, Eastman v The Queen (2000) 203 CLR 1 and Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318) are examples of where the same, or substantiall…
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs
[1999] FCA 119 Para 1

…agonism to the litigant which prevents a fair hearing of that litigant’s case. As North J said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134, though in the context of an administrative decision-maker, actual bias exists…
Sarbjit Singh v Minister for Immigration and Ethnic Affairs
[1996] FCA 902 Para 1

…dient, the operation of unlawful motive or intent in reaching the decision”. Lockhart J said in Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at p 6, that evidence to establish actual bias…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 1

…bias under this test must be assessed has been variously described: “fair-minded informed lay observer” ( Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), “reasonable or fair-minded observer” ( Vakuata v Kelly (1989) 167 CLR 568 at 585) and in many other ways. I will use the formulation of the reaso…
Vakauta v Kelly
[1989] HCA 44 Para 1

…rmed lay observer” ( Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), “reasonable or fair-minded observer” ( Vakuata v Kelly (1989) 167 CLR 568 at 585) and in many other ways. I will use the formulation of the reasonable, fair-minded and informed member of the public, which seems to me to sum up the…
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd
[1988] HCA 2 Para 1

…See also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348; [19].…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 1

…See also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348; [19].…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 1

…f a critical witness associated with a party rather than a party, was the well-known High Court decision in Livesey v New South Wales Bar Association (1983) 151 CLR 288, where the court held that this justified disqualification for apprehended bias.…
Grassby v the Queen
[1989] HCA 45 Para 1

…In the first place, there may be an apprehension of bias from views expressed in other cases. An example is in Grassby v The Queen (1989) 168 CLR 1, where one of the appeal judges in the NSW Court of Criminal Appeal had, in an earlier, unrelated case, expressed such a view about the appellant and his prosecution th…
[1978] 1 NZLR 657
[1978] 1 NZLR 657 Para 1

…As Mahon J said in Anderton v Auckland City Council [1978] 1 NZLR 657 at 687, actual bias entails “as a necessary ingredient, the operation of unlawful motive or intent in reaching the decision”. Lockhart J said in Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at p 6, that evidence to establish ac…

Legislation cited in this decision · 1

Court Procedures Rules 2006 (ACT)
5435 2 mentions (from Para 1)