Brisciani v Piscioneri (No 4)

Case [2016] ACTCA 32


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

DecisionDate:

10 August 2016

Reasons Date:

10 August 2016

Before:

Murrell CJ, Refshauge and Jagot JJ

Decision:

1.     The appeal and the cross-appeal be dismissed.

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

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 118(2), 134, 136, 139A, 139B, 139D, 139E, 139H, 139J

Evidence Act 2011 (ACT) s 164
Limitation Act 1985 (ACT) s 21B
Supreme Court Act 1933 (ACT) s 37E

Court Procedures Rules 2006 (ACT) r 1619(1)(a)(i)

Cases Cited:

Aktas v Westpac Banking Corporation (2010) 241 CLR 79

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Batchelor v Burke (1981) 148 CLR 448
Bennette v Cohen (2005) 64 NSWLR 81
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 414
Brisciani v Piscioneri (No 1) [2016] ACTCA 30
Brisciani v Piscioneri (No 2) [2016] ACTCA 24
Brisciani v Piscioneri (No 3) [2016] ACTCA 31
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691
Commonwealth v Silverton Ltd (1997) 130 ACTR 1
Cummings v Fairfax Digital Australia & New Zealand (2011) 6 ACTLR 40
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Green v Schneller [2000] NSWSC 548
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Howard v Aikman (2015) 74 MVR 184
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Lewincamp v ACP Magazines Limited [2008] ACTSC 69
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Mundey v Askin [1982] 2 NSWLR 369
O’Rourke v Hagan and Anor [2007] ACTSC 61
R v Skaf (2004) 60 NSWLR 86
R v Skaf [2005] NSWCCA 298
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Roberts v Bass (2002) 212 CLR 1
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Singleton v French (1986) 5 NSWLR 425

Vakauta v Kelly (1989) 167 CLR 568

Parties:

Anthony Scott Brisciani (Appellant/Cross-Respondent)

Gabriella Jean Piscioneri (Respondent/Cross-Appellant)

Representation:

Counsel

Mr S D Malcolmson (Appellant/Cross-Respondent)

Self-represented (Respondent/Cross-Appellant)

Solicitors

Self-represented (Appellant/Cross-Respondent)

Self-represented (Respondent/Cross-Appellant)

File Number:

ACTCA 26 of…

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Details
AGLC
Brisciani v Piscioneri (No 4) [2016] ACTCA 32
Case
[2016] ACTCA 32
Decision Date

CaseChat Overview and Summary

Brisciani v Piscioneri (No 4) concerned a defamation proceeding heard by Murrell CJ, Refshauge and Jagot JJ. The dispute involved allegations of defamatory statements published online. The central question before the court was whether these online publications were capable of bearing a defamatory meaning, whether the plaintiff was identifiable within those publications, and whether the publications constituted mere abuse rather than defamation. The court also considered defences of fair comment and privilege, specifically whether the comments related to matters of public interest and whether the publications were trivial. Finally, the court addressed issues relating to damages, including the appropriateness of aggravated damages and the articulation of separate bases for any award of damages.

The court's reasoning focused on the interpretation of the online publications and their potential to convey a defamatory imputation to ordinary reasonable readers. It applied established principles of defamation law, including the requirement for a statement to be defamatory of the plaintiff, the test for identification, and the distinction between defamatory statements and mere vulgar abuse. The court also examined the elements of the defences of fair comment and privilege, assessing whether the alleged comments met the criteria for public interest and whether the publications were of a trivial nature that would not warrant legal recourse. The assessment of damages involved considering the impact of the publications on the plaintiff's reputation and the potential for aggravated damages based on the defendant's conduct.

Ultimately, the appeal and cross-appeal were dismissed, with the parties ordered to bear their own costs of the appeal and cross-appeal.

Orders

Orders of the court

1. The appeal and the cross-appeal be dismissed.

2. The parties pay their own costs of the appeal and cross-appeal.

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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