Brisciani v Piscioneri (No 4)
[2016] ACTCA 32
•10 August 2016
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 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 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 2015 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 6 May 2015 Case Title: Piscioneri v Brisciani Citation: [2015] ACTSC 106 |
THE COURT:
This matter involves both an appeal and cross-appeal from the orders made in Piscioneri v Brisciani [2015] ACTSC 106, in which the primary judge found that a number of publications by Mr Brisciani about Ms Piscioneri were defamatory and awarded $82,000 in damages (inclusive of $10,000 aggravated damages and interest).
For the reasons given below, the appeal and the cross-appeal should be dismissed.
Background
The cross-appellant, Ms Piscioneri, operated a legal practice as a sole practitioner in New South Wales from 1996 until approximately 2007.
In 2004, an acquaintance told Ms Piscioneri that he was the jury foreman in the well-publicised trials alleging several counts of aggravated sexual intercourse without consent against Bilal and Mohammed Skaf, and that he and a number of other jurors had conducted an unauthorised view of the alleged crime scene whilst the jury were deliberating. Ms Piscioneri, in accordance with her obligations as a legal practitioner, reported this information to the Court dealing with the Skaf trials. As a result, the Court of Criminal Appeal for New South Wales set aside the conviction and sentence of both accused persons: R v Skaf (2004) 60 NSWLR 86. On conviction and re-sentencing, reduced sentences were imposed: see R v Skaf [2005] NSWCCA 298.
The appellant, Mr Brisciani, is the owner, administrator and operator/moderator of a website, (ZGeek), described in pleadings as “a site wherein members from across the world are able to post opinion and comment in discussion threads about the affairs of the day”. The website describes itself as characterised by “profanity”, “manifest irreverence”, “references to modern ‘geek’ and popular culture” and “language and graphic content”, with tendencies to the puerile, profane, sarcastic and obscene.
Ms Piscioneri complained about a number of posts on the ZGeek website:
(a)The “Tool of the Week” thread: A thread started by Mr Brisciani under a pseudonym, dated before 17 February 2005, which 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 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’.” [sic]
(b)The ‘Bitching and Rants” thread: A thread dated 17 February 2005 started by Mr Brisciani, stating:
“This woman really gives me the shits. After seeing the tool of the week rant, i can see that im not alone with my opinions. What a fuking moron. Can anyone really be more dence than this woman. What i dont get is this stupid bitch decided it was her ‘duty’ to tell the judge. What a fucking moron. She was at a goddam party for christs sake. 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 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. Why the fuck to these guys get less jail time because a juror went to the scene of th crime?? What if that park was their local park? They couldnt 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 the hell did she do to deserve it? Absolutely nothing. This is really fucked, and its all got fucked up the arse with a dead dingos donger because of the soft cock lawyer, Gabriella Piscioneri. Fucking moron bitch. she should do the time that these guys get let off for. no 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 bullshit, she is probably the biggest tool in my shed at the moment. I dont really despise and hate alot of things, but of the few that i hate, rape and pedo's 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 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 happen. I really feel strongly about this.
Gabriella Piscioneri: FUCK YOU!:spingo:” [sic]
Together, the “Tool of the Week” and “Bitching and Rants” threads, encompassing these original posts and responses from other forum members (see below), will be referred to as the “2005 ZGeek posts”.
Ms Piscioneri became aware of the 2005 ZGeek posts in 2009. She contacted Mr Brisciani (and later, his legal representatives), asking that the posts (and any other reference to her) be removed from both ZGeek and Google search results. It appears that Mr Brisciani substantially complied with this request by removing the articles from the website, installing a filter preventing publication of Ms Piscioneri’s name on the ZGeek website, and asking Google to remove links to the ZGeek website about Ms Piscioneri.
Ms Piscioneri also complained about four other posts which Mr Brisciani published on the ZGeek website in 2010 (together referred to as the “2010 ZGeek posts”.
(a)“The Myrmidon friends send me another legal threat!”: An article dated 11 January 2010 in the following terms:
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 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 would like to help fight this case (the first of it’s type in Australia) please contact me.
Also, I have been sitting on some evidence for a while. Click the comments to check it out. [sic].
(b)“Update on Myrmidon Enterprises legal harassment of Zgeek”: The following statements posted on 11 January 2010 on a ZGeek thread of this title, accompanied by a pixelated version of the cross-appellant’s Facebook profile image (which was a leaf, not her face):
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.
But there is also a something even better.
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 Nolan. We took the screenshot (pictured) from their facebook profile and surprise, surprise. Look who’s on it. [sic]
Other users responded to these posts on the ZGeek website including as follows:
Username ~vjay~:
Total eye rolling moment here.
No one even remembered the original post existed or her name until she chose to throw a tantrum about it.
Username banga:
this person obviously has to much time on their hands after filling out their dole forms, must be relaxing to park ur arse down and think of numerous ways to ruin a hard working mans life with fabricated information, not to mention the total waste of time and money this debacle has cost T.
Username RedMaN:
BEEP BEEP BEEP BEEP
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.
Username PsychoNavigator:
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.
HEY, THIS DRINK AINT GONNA FILL ITSELF!
Username LisaJ:
I can’t believe that they wait 5 years to say something!! And the fact that you did as they requested notwithstanding the time limitations, yet they still demand you act on something that is out of your control.. stupid, stupid people... [sic]
(c)“ZGeek being sued for defamation for the fourth time”: An article dated 5 November 2010 in the following terms:
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.
I really feel bad about asking this yet again.
Comments are open, but please don’t make negative comments about this person as they will just us it as an example on how I ‘encourage” you guys to be bad people. So please don’t. [sic] (emphasis removed)
(d)“ZGeek’s legal page”: A page which was updated as set out below on a date which remains unclear:
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. [sic].
It is also apparent that there was before the primary judge evidence of another post entitled “Latest desperate attempt to silence ZGeek”. The primary judge referred to this post at [85] of his reasons as including references to Ms Piscioneri as an “ex-lawyer”. At [86], the primary judge noted that the copy of this forum which was tendered was incomplete but that one post, set out below, was defamatory:
Norrie 03–02–2010 09:29 AM
Oh shit.
I only discovered this group or (sic) retards and misfits through your misfortune with these [illegible] …
The material available in the appeal did not include any part of the forum “Latest desperate attempt to silence ZGeek”.
Primary judge’s reasons
Neither party had legal representation before the primary judge or in the appeal (save for the appeal hearing, where the appellant retained counsel). Instead, the primary judge was confronted by Ms Piscioneri’s pleading of 52 separate defamatory imputations alleged to be conveyed by the posts and Ms Brisciani’s defence of the claims on all possible grounds apart, it seems, from one which, if it had been pleaded, would have defeated all claims with respect to the 2005 ZGeek posts (the expiry of the limitation period in respect of those posts, s 21B of the Limitation Act 1985 (ACT)). As the expiry of the limitation period was not pleaded in defence, the primary judge correctly decided that Mr Brisciani had waived his right to rely on that matter (at [91]); this conclusion is not sought or able to be disturbed on appeal.
The primary judge answered the question whether the posts conveyed imputations which defamed Ms Piscioneri as follows:
(a)Mr Brisciani’s 2005 “Bitching and Rants Forum” would be capable of bringing Ms Piscioneri into ridicule, hatred or contempt, given the “imputation that [she] had acted unethically and the obscene language of the post”, and therefore was defamatory ([61]). However, given the extensive number of replies which “redeemed” Ms Piscioneri by explaining her solicitor’s duty to report as she did, a reasonable person “would not find the discussion as a whole to be disparaging of the plaintiff” (at [58]–[65]).
(b)The 2005 “Tool of the Week” forum conveys the defamatory imputation that Ms Piscioneri “acted unethically” and was responsible for the reduced sentences imposed on the Skaf offenders and exposed her to hatred, ridicule and contempt through its “offensive language” and its demonstrated capacity to provoke discussion in others (at [65], [67]). These defamatory statements could not be considered “vulgar invective” or “mere abuse” as Mr Brisciani claimed (at [66]).
(c)The 2010 ZGeek posts did not name Ms Piscioneri and only one person would have been able to identify her from the material, namely, Marek Reardon, principal of the firm Reardon & Associates, who was assisting Mr Brisciani in defending these proceedings (at [80] - [81], [90]). Two other individuals were made aware of Ms Piscioneri’s identity to enable them to undertake moderator functions on the website (at [82]–[83]).
(d)Contrary to her submission, describing Ms Piscioneri as an “ex-lawyer” or “ex-solicitor” did not carry a defamatory imputation as the ordinary reasonable person “would consider the term … to refer to someone who no longer practices as a lawyer for whatever reason and that the term does not convey imputations of a lawyer having being ‘struck-off’” (at [85]).
The comments of other users, outlined above, conveyed the imputation that Ms Piscioneri is “stupid”, “retarded” and “attention-seeking”, and were defamatory (at [89]).
The primary judge answered the question whether any defences could be established in these terms:
(a)Qualified privilege: The defence was not available.
(i)As to the 2005 ZGeek posts, while the Skaf trials raised a matter of public importance, Mr Brisciani was not under any duty to publish the matter, nor was there a reciprocal “interest” in receiving this information on behalf of forum users. Mr Brisciani’s failure to inquire further into the content underpinning the allegedly defamatory matter also meant that the publication of the matter in the form it took was not in the public interest (at [95]).
(ii)As to the 2010 ZGeek posts, they primarily regarded the legal proceedings against Mr Brisciani, a matter not involving the public interest, and therefore also not a circumstance in which the forum posters enjoyed an “interest” in the sense required to enliven this defence (at [97]).
(b)Fair comment/honest opinion: The defence was not available.
(i)As to the 2005 ZGeek posts, the factual basis for any opinion expressed was not sufficiently identified in the publication (at [103]).
(ii)As to the 2010 ZGeek posts, the fact that these posts did not regard a matter of public interest meant that this defence was unavailable (at [101]).
(c)Triviality: The defence was not available, as the reasonable, ordinary reader would understand the matters were “to be taken seriously” (at [106]).
Some uncontentious matters
Applicable law
For posts published prior to 23 February 2006, the common law applies (s 118(2) of the Civil Law (Wrongs) Act 2002 (ACT) the (CLW Act)). For posts published after 23 February 2006, Chapter 9 of the Act applies.
Accordingly, for the 2005 ZGeek posts, Ms Piscioneri had to establish the elements of “publication”, “identification” and “defamatory meaning”: see Cummings v Fairfax Digital Australia & New Zealand (2011) 6 ACTLR 40. A finding that the matter constituted “mere abuse” or “vulgar invective” may negative any defamatory meaning: see Mundey v Askin [1982] 2 NSWLR 369. The common law defences of qualified privilege and fair comment apply. Common law tests of control, requiring Mr Brisciani to be in some way “responsible for the publication complained of” also apply to the statements made by other forum members: see Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [137].
Unchallenged findings
The primary judge’s findings that Mr Brisciani is liable for the posts which he drafted and for the posts of other users are not challenged in this appeal (at [46], [69]).
Nor is any challenge made to the primary judge’s finding that Mr Brisciani is liable for republication of the posts on another website, called “Wayback Machine” (at [49] - [51], [70]).
It is also not in dispute that the ZGeek posts were published when uploaded (and later downloaded) from the ZGeek website (at [47]–[48]).
Further, as they specifically identify Ms Piscioneri, no question of identification is raised regarding the 2005 ZGeek posts (at [52]).
Grounds of appeal and cross-appeal
The grounds
Eight grounds are set out in Mr Brisciani’s notice of appeal:
1. The learned trial judge erred in law in failing to give reasons with respect to damages.
2. The learned trial judge erred in law in not withdrawing from hearing the trial on the ground of apprehended bias.
3. The learned trial judge erred in law in not finding that the comments were honest opinion.
4. The learned trial judge erred in law in not finding that the comments were qualified privilege.
5. The learned trial judge erred in law in not finding that the comments were trivial.
6. The learned trial judge erred in law in not finding that the comments were vulgar invective.
7. The learned trial judge erred in law in awarding aggravated damages.
8. The learned trial judge failed to allow interrogatories in respect of the respondent’s professional reputation.
Ms Piscioneri’s notice of cross-appeal makes five substantive contentions as follows:
(i) The learned judge erred in law in relying on the uncorroborated evidence of the defendant including in relation to a poster using the pseudonym ‘that-bloke’ and a moderator called ‘Eric Allbutt’ and the defendants attempts to mitigate damages.
(ii) The learned judge erred in law in failing to admit relevant evidence including a post by a person identified as ‘derob.amme’ that was in the nature of a threat, posts by a person using the pseudonym ‘legally immune’ and evidence in relation to conduct of the defendant between trial and judgment.
(iii) The learned judge erred in fact in finding that only one person, Marek Reardon, viewed the defamatory material on the 2010 posts.
(iv) The learned judge erred in law in finding that it is not defamatory to be called an ‘ex-lawyer’.
(v) The learned judge erred in law in the amount of damages that were awarded, including aggravated damages, including on the basis of the respondent’s conduct (including conduct of the proceedings) and the effect that a reprimand of the NSW LSC published in March 2007 (2 years after the defendant’s first publications) had on the plaintiff’s professional reputation.
Applications during the appeal
The parties made various applications in the appeal.
Applications to recuse
Ms Piscioneri filed three applications which sought disqualification of 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.
Applications to admit further evidence
Both parties filed applications seeking to admit further evidence.
We rejected Mr Brisciani’s application during the hearing of the appeal.
Mr Brisciani initially sought to adduce 24 articles published in newspapers and news services from 2005. The basis for admission was said to be that the articles supported his defence of triviality. During the hearing of the appeal, however, admission of one article only was pressed - an article by Charles Miranda published in The Daily Telegraph, dated 7 March 2005, entitled “Inquiry into magistrate – Solicitor complains of ‘intimidation’”.
We rejected the document. The article was published in 2005. It follows that it would have been open to Mr Brisciani to locate and seek to tender the article before the primary judge. Mr Brisciani offered no explanation for why he had not sought to do so. It is also difficult to see how the article, which relates to Ms Piscioneri having made other allegations of harassment and intimidation by a magistrate, bears any rational connection to the damage caused to Ms Piscioneri’s reputation as a result of the ZGeek posts. The article merely identifies the allegations which Ms Piscioneri had made in the context of a compliant to the Judicial Commission of New South Wales which, at the time, remained undetermined. Further, the defence of triviality is available in respect of the 2010 ZGeek posts only, yet the article is dated 2005. This also undermines the existence of any rational connection between the article and Ms Piscioneri’s reputation as at 2010.
Ms Piscioneri sought to adduce further evidence of a more wide-ranging kind. The material included posts from the ZGeek website from 2014–2015 and various court documents and other materials regarding the conduct of Ms Piscioneri’s application for a personal protection order against Mr Brisciani. One document includes a screenshot of a search for the name “Gabriella Piscioneri” on a website which contains reference to the original 2005 ZGeek posts. Ms Piscioneri submitted that this evidence reflects “conduct that has occurred since trial … [that] is relevant to the amount of aggravated damages that should be awarded” as well as a “lack of remorse” and “failure to remove from the internet, material that [Mr Brisciani] first published about the respondent in 2005”.
This material should also be rejected. It is of little, if any, utility in resolving the cross-appeal. It does not undermine any factual finding or conclusion of the primary judge. The documents relating to the personal protection order proceedings are not probative of any fact in issue in this matter. The reference in ZGeek posts in 2015 to the 2005 posts is in the context of describing ongoing litigation and does not disclose the content of the 2005 posts or identify Ms Piscioneri. The documents relating to the conduct of this appeal do not disclose anything of weight which might rationally bear on the award of damages.
Appeal ground 2 – apprehended bias
Mr Brisciani contends that the primary judge heard and determined an ex parte application by Ms Piscioneri for an interim personal protection order against Mr Brisciani. According to Mr Brisciani, the interim protection order was granted upon facts similar to those in issue in these proceedings, and that the primary judge had therefore pre-determined issues and was incapable, in the opinion of the fair-minded reasonable observer, of bringing an unbiased mind to the proceedings.
This ground is unsustainable.
No evidence was provided in support of this ground.
No application was made by Mr Brisciani to the primary judge that the primary judge recuse himself from hearing the matter on the ground of apprehended bias.
No explanation was given by Mr Brisciani for not having made such an application to the primary judge.
In the ordinary course, failure to make an application to the relevant judicial officer at the first available opportunity will result in waiver of any right to complain at a later time: see Vakauta v Kelly (1989) 167 CLR 568 at 572, 577.
Nothing was put on the appeal to support a conclusion that Mr Brisciani had not waived any right he might have had to seek that the primary judge recuse himself from hearing the matter.
In any event, there is no basis to conclude that a reasonable observer might reasonably apprehend that the primary judge might not bring an impartial mind to resolution of this matter which involves the different cause of action of defamation: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Appeal ground 8 – interrogatories
Mr Brisciani alleges that the primary judge erred by not permitting him to administer interrogatories to Ms Piscioneri about her professional reputation.
Nothing was said about this ground in any material in support of the appeal. For this reason, it should be taken not to be pressed.
In any event, before the interrogatories decision could be considered in the appeal, it would have to be shown that the decision of the primary judge to refuse leave to administer interrogatories had an adverse effect on the final judgment: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. Alternatively, as the decision was interlocutory, leave would be required: s 37E of the Supreme Court Act 1933 (ACT). In either case, as the decision was a discretionary one, it would have to be shown that the primary judge acted on a wrong principle.
There was nothing in the material to suggest that the refusal to permit interrogatories affected the final judgment or that the primary judge acted on a wrong principle, such that the decision should be revisited, much less set aside.It follows that this appeal ground must be rejected.
Cross-appeal ground 1 – uncorroborated evidence
Ms Piscioneri contends that the primary judge erred at [36], [82] and [122] in giving weight to steps taken by Mr Brisciani to mitigate the damage alleged to be caused by the ZGeek Posts. Ms Piscioneri describes the evidence of Mr Brisciani in this regard as “uncorroborated” when it “would have been easy to corroborate”.
Nothing can be made of this ground. Evidence is not required to be corroborated: see s 164 of the Evidence Act 2011 (ACT).
Mr Brisciani was not required to call the two people he said he appointed to act as moderators of the website. Nor was he required to adduce documentary evidence to support his own evidence of the steps he had taken as described by the primary judge at [122]. The primary judge was entitled to accept Mr Brisciani’s evidence in this regard.
The primary judge’s findings of fact in this regard are rational and reasonably open on the evidence. Accordingly, they are not open to be disturbed on appeal: see Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43].
Cross-appeal ground 2 – rejection of evidence
This ground relates to the primary judge’s refusal to admit certain material into evidence.
First, Ms Piscioneri challenges the primary judge’s refusal to admit two posts (evidence of an original post and its later edited state) made by an individual employing the username “derob.amme” as comments upon a thread titled “The Myrmidon friends send me another legal threat!”. Mr Brisciani objected to this material being admitted on the basis that it is “not a complete thread”, there are “missing pages”, and it is “out of context”. The primary judge refused to admit this material observing that it “really adds nothing to the proceedings”.
The primary judge was correct. Ms Piscioneri herself said that she wanted to adduce the material “just to give some further evidence about how this conduct has affected me”. The primary judge’s ruling on evidence is not affected by error. The material was of marginal relevance and incapable of affecting the outcome of the proceeding one way or another.
Second, Ms Piscioneri contends that the primary judge erred in refusing to admit an extract containing three articles on a blog entitled “Jonathon Nolan can suck my sack”, published under the pseudonym “legally immune”. According to Ms Piscioneri she “thought Mr Brisciani … might be the person using the pseudonym” and this article demonstrated that the phrase “ex-lawyer” was being used to describe someone who was removed from the role of legal practitioners for misconduct. The primary judge refused to accept the material on the basis that it lacks any “immediate connection” to Mr Brisciani. The transcript discloses Ms Piscioneri responded that “[m]aybe I can leave it for cross-examination”; however, she did not return to this issue when cross-examining Mr Brisciani.
Again, the primary judge’s ruling about this material is unaffected by error. For the material to be admissible, Ms Piscioneri would have had to obtain evidence in cross-examination connecting Mr Brisciani to the material but she did not do so.
Third, Ms Piscioneri contends that the primary judge erred in refusing to admit certain material relating to Mr Briscioneri’s attempts to mitigate damage. However, the material in dispute is not included in the appeal papers. In a note appended to his judgment, the primary judge said:
NOTE:
On 29 April 2015, the plaintiff lodged with the Supreme Court Registry a document titled ‘Submissions re conduct of defendant up until judgment’ dated 24 April 2015 and an affidavit sworn by the plaintiff on 22 April 2015. On 1 May 2015, the plaintiff lodged with the Supreme Court Registry an Application in proceeding seeking leave, inter alia, for further evidence from the plaintiff to be admitted in relation to the conduct of the defendant since trial. Registry staff made numerous attempts to contact the plaintiff in order to make arrangements for the Application to be listed prior to this judgment being handed down on 6 May 2015, however, those attempts were unsuccessful.
I have reviewed both documents lodged by the plaintiff. The content of those documents primarily relates to issues that are the subject of separate court proceedings between the plaintiff and the defendant that are currently before the Court of Appeal. I am of the opinion that the issues raised by the plaintiff in those documents are too remote to these proceedings and, as such, should not be received into evidence.
Ms Piscioneri’s complaint about this material must be rejected. Leaving aside the fact that neither party had leave to file any further document after the hearing, and that it was for Ms Piscioneri to file and serve an interlocutory application seeking leave, the circumstances described by the primary judge disclose the lack of merit in Ms Piscioneri’s complaint about this material not being received into evidence.
This cross-appeal ground, therefore, also must be rejected.
Cross-appeal ground 4 – “ex-lawyer”
Ms Piscioneri challenges the primary judge’s finding at [85] that being described as an “ex-lawyer” or “ex-solicitor” did not convey a defamatory meaning, as the reasonable and ordinary person without legal training would consider that term to “refer to someone who no longer practices as a lawyer for whatever reason and that the term does not convey imputations of a lawyer having been ‘struck-off’”. The primary judge said:
[85] … I am of the opinion that the reasonable and ordinary person with no legal training would consider the term “ex-lawyer” to refer to someone who no longer practices as a lawyer for whatever reason and that the term does not convey imputations of a lawyer having been “struck-off”. It has been held that it would not be defamatory at common law to say that a trader has retired from business: see Ratcliffe v Evans [1982] 2 QB 524 (CA) at 527-528. Thus, I am satisfied that the term “ex-lawyer” has no defamatory meaning. This aspect of the plaintiff’s claim must fail.
An imputation is defamatory if it is likely to “diminish” the “esteem in which that person is held by the community” in the eyes of the reasonable and ordinary person: see Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [2] – [7], [37] – [40].
We agree with the primary judge. The reasonable and ordinary person would not understand “ex-lawyer”, in and of itself, to convey an imputation that a person has been struck-off for some impropriety. Moreover, nothing in the context of the posts which so describe Ms Piscioneri alter this fact. The ordinary and reasonable person is routinely identified as a person of “fair, average intelligence, who is neither perverse, nor morbid or suspicious of mind”: see the list of descriptions in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [23]. Such a person does not possess any “special knowledge”: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573. Such a person would not understand “ex” or “former”, in describing a lawyer, to convey an imputation of impropriety having caused the lawyer to be disbarred. The only imputation conveyed is that Ms Piscioneri no longer practices as a lawyer. This is accurate. Ms Piscioneri does not challenge the primary judge’s factual finding that she “gave up” her practicing certificate in 2007, closed her sole practice and no longer works as a solicitor (at [1], [116]). The fact (if it be so) that Ms Piscioneri remains enrolled as an Australian lawyer in a number of jurisdictions does not undermine the findings the primary judge made.
For these reasons, this ground of Ms Piscioneri’s cross-appeal cannot be sustained.
Appeal ground 6- vulgar invective/mere abuse
Mr Brisciani contends that the primary judge erred by “not finding that the comments were vulgar invective”. After setting out the relevant law, the primary judge addressed the question of “mere abuse” in relation to the 2005 ZGeek posts, in the following terms:
[67] It follows that, even though the 2005 ZGeek posts, in particular the posts by ‘Pirate’ and the following post from ‘dilligaf’, are clearly written in language that is vulgar, abusive, offensive and derogatory, I am able to find that they are also defamatory. The posts convey serious imputations of unethical conduct against the plaintiff. Further, they clearly imply that the plaintiff is at fault for the so called consequences of her actions, being the reduced sentence ultimately imposed on the offenders in the Skaf trials. I am of the opinion that the ordinary, reasonable reader of the ‘Tool of the Week’ forum and the first post in the ‘Bitching and Rants’ forum would not understand it to constitute mere abuse against the plaintiff; rather, they would understand the material to seriously call into question the ethics and actions of the plaintiff and expose her to hatred, ridicule and contempt.
…
[107] In addition to what I have already said, I note that the discussion regarding the plaintiff in the 2005 ZGeek posts takes on an undeniably serious, aggressive tone and touches on the obviously serious subject matter of rape and the imposition of lengthy jail terms on offenders. I am satisfied that the ordinary, reasonable reader would not understand the 2005 ZGeek posts to be intended as a joke or mere mockery; rather, the ordinary, reasonable reader would understand that the intention of the posts was to express genuine contempt.
In Bennette v Cohen (2005) 64 NSWLR 81 at [51] Bryson JA said:
In my opinion it is clear from the passage I have set out from Mundey v Askin [[1982] 2 NSWLR 369] that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. “Vulgar abuse” and “mere vulgar abuse” are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory. … the matter under consideration is not whether the publication constitutes mere vulgar abuse, but whether the imputation which it conveys has a defamatory meaning: it may not have a defamatory meaning because the terms or the manner in which it is spoken show that it is not likely to injure reputation.
As this passage reveals, and as the primary judge noted at [19], the issue is whether the statements convey a defamatory imputation.
We agree with the conclusions of the primary judge. The 2005 ZGeek posts relate to Ms Piscioneri’s ethics and morals, and directly link her to the ultimate outcome of the Skaf proceedings in a way which was designed, and objectively likely, to lower reputation in the eyes of the general community: see Chesterton at [37]-[38]. The imputations concerned her capacity to exercise the judgment and skill required in her professional career: see Chesterton at [10]. Despite the “vulgar, abusive, offensive and derogatory” language used, the primary judge’s conclusions that the posts conveyed the defamatory imputations (described at [55]–[57], [65], [67]) are unassailable. In particular, there cannot be any doubt that, as the primary judge said at [67]:
The [2005] posts convey serious imputations of unethical conduct against the plaintiff. Further, they clearly imply that the plaintiff is at fault for the so called consequences of her actions, being the reduced sentence ultimately imposed on the offenders in the Skaf trials. I am of the opinion that the ordinary, reasonable reader of the “Tool of the Week” forum and the first post in the “Bitching and Rants” forum would not understand it to constitute mere abuse against the plaintiff; rather, they would understand the material to seriously call into question the ethics and actions of the plaintiff and expose her to hatred, ridicule and contempt.
The primary judge did not deal with this issue in respect of the 2010 posts, Mr Brisciani having pleaded the issue in respect of the 2005 posts only. Accordingly, it is unnecessary to consider the issue in respect of the 2010 posts.
It follows that this ground of the appeal must be dismissed.
Appeal ground 4- qualified privilege
Mr Brisciani contends that the primary judge erred by “not finding that the comments were qualified privilege”. This ground of appeal relates to both the 2005 and the 2010 ZGeek posts. The primary judge correctly noted (at [95] and [96]) that the common law applies to the 2005 posts, whereas the 2010 posts must be considered under the CLW Act, s 139A.
The 2010 ZGeek posts
Insofar as is relevant, s 139A of the CLW Act states:
There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that -
(a) the recipient has an interest or apparent interest in having information on some subject; and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
The primary judge rejected Mr Brisciani’s submissions claiming the defence, saying at [95]:
I am not satisfied that the recipients of the material encapsulated by what I have referred to as the 2010 ZGeek posts had any interest in the information conveyed in that material. The posts are primarily a commentary on the defendant’s legal proceedings against the plaintiff and others. This is clearly not a matter of public interest. The defence of qualified privilege has no application in relation to the publication of this material.
This ground may be disposed of shortly. First, Mr Brisciani said nothing to support this aspect of the ground of appeal. Second, the statutory defence of qualified privilege is engaged if the statements relate to matters which “either inherently, expressly or inferentially invite public criticism or discussion”: see Green v Schneller [2000] NSWSC 548 at [24]. However, as explained in that case, also at [24]:
A salacious interest by members of the public in a particular subject matter, of which they had no previous knowledge and which was introduced to them by the very publication in question, does not translate the subject matter of the publication into a matter of public interest for the purpose of the various relevant sections of the Act.
Ms Piscioneri’s proceedings against Mr Brisciani cannot constitute a matter of sufficient public interest in light of this test. At best, the general public might have a “salacious interest” in the course of the litigation. This is not an “interest” within the scope of s 139A of the CLW Act.This aspect of ground of appeal 4 must be dismissed.
The 2005 ZGeek posts
The 2005 ZGeek posts are subject to the common law test of qualified privilege. Protection is given to “a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it”: see Roberts v Bass (2002) 212 CLR 1 at [62]. In Bennette v Cohen [2009] NSWCA 60 at [25], Ipp JA stated:
The following propositions may be extracted from the authorities...:
(a)The test for common law qualified privilege is usually expressed at a very high level of generality and abstraction;
(b)In practice, however, the close scrutiny required of all the circumstances of each case results in common law qualified privilege having a relatively limited or narrow practical application;
(c)The scrutiny required depends on the facts of each case and there is no closed set of criteria that must be applied or considered, and;
(d)Guidelines have been established that assist in the scrutiny that is required. These include:
(i)As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;
(ii)The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;
(iii)The interest that gives rise to qualified privilege must be real and direct;
(iv)Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;
(v)If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;
(vi)The interest should not give officious and interfering persons a wide licence to defame.
Given these requirements, even if it is accepted that the 2005 ZGeek posts related to a matter of public interest and were published pursuant to some moral or social “duty” in the sense required, the defence would not be available for at least three reasons.
First, the 2005 ZGeek posts were made on the ZGeek home page. Any person could view the posts. In Aktas v Westpac Banking Corporation (2010) 241 CLR 79 at [14], French CJ, Gummow and Hayne JJ said:
As a general proposition, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it; but the privilege depends upon the absence of malice. The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large.
Second, the publication must be sufficiently “connected” to the privileged occasion to remain protected by the defence. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, Kirby J explained the limits on the operation of the defence, including that:
[192] Simply because, in a general sense, the publication of matter defamatory of an individual is included in a context of discussion of a subject of public interest on which there is the requisite reciprocity of interest and duty, does not assure the imputation of protection. Were it so, a great many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputation and the context. The introduction into a privileged communication of extraneous defamatory imputations will not necessarily cloak them with the privilege. The problem remains one of drawing a line between the protected and the unprotected.
[193] Various judicial formulae have been propounded to mark out the boundaries of the protection given by the relevant privilege. In Bellino v Australian Broadcasting Corporation [[1996] HCA 47; (1996) 185 CLR 183 (Bellino)], the joint reasons suggested that the test was whether "those defamatory imputations … are relevant to the privileged occasion". In that case Brennan CJ was, if anything, more stringent. He did not consider that it was sufficient to decide whether the impugned imputations were "unconnected with and irrelevant to the main statement", as Lord Dunedin had proposed in Adam v Ward [[1917] AC 309]. In Brennan CJ's view, it was necessary, in order to attract the protection, that "the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest" [Bellinoat 204]. A still further criterion of connection, apparently derived from Canadian formulations, was that applied by Sheller JA and Hodgson JA in the Court of Appeal [Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [2], [44]]. This asked whether the defamatory imputations were sufficiently "germane and reasonably appropriate" to the publication on the matter of public interest that otherwise attracted the privilege.
[194] All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases, the issue will be more debatable, as Callinan J has correctly recognised.
[195] Care must be observed in taking too literally the test propounded by Brennan CJ in Bellino. Because, as Callinan J notes, a defamatory imputation, as such, will commonly make little contribution to a discussion of public interest if included in a mistaken report of court proceedings, too rigid an application of that criterion would be self-fulfilling. Every error that involved a defamatory imputation would be cast beyond the pale. This would effectively introduce into the defence of qualified privilege a strict or even absolute requirement of accuracy in reports of proceedings that has been a feature of the common law defence of protected reports but not, as such, of qualified privilege. This, in turn, could endanger free discussion on subject matters of public interest that qualified privilege protects for the welfare of society.
The 2005 ZGeek posts travel well beyond any potential privileged occasion which may have existed. As the primary judge found at [55], the posts convey that Ms Piscioneri was “not concerned with the principles of right and wrong behaviour”. It is plain the posts were calculated to expose her to “hatred, ridicule and contempt”. The imputations are of the “extraneous” and “gratuitous” sort referred to in Bashford which would defeat any claim for qualified privilege.
Third, as the primary judge explained at [97], the 2005 ZGeek posts were inaccurate, “obviously poorly researched”, “ill-informed”, and “[e]ven a cursory investigation into the matter should have revealed to the defendant that any legal practitioner in the plaintiff’s position would have been under a duty to disclose the jurors’ conduct to the court”. As Callinan J said in Bashford at [237]:
…because the communication of inaccurate matter can hardly be in the true interest of anyone, matters of the most attenuated relevance only to the subject matter, need to be carefully scrutinised and should be rejected as being outside the occasion of qualified privilege.
For these reasons ground 4 of the appeal must be rejected in its entirety.
Appeal ground 3– fair comment/honest opinion
Ground 3 of the appeal is that the primary judge “erred in law in not finding that the comments were honest opinion”.
The 2010 ZGeek posts
Section 139B(1) of the CLW Act applies to the 2010 ZGeek posts. Section 139B(1)(b) requires that “the opinion related to a matter of public interest”. The “public interest”, in this context, reflects the same principles which inform the common law defence of qualified privilege.
Consistently with the discussion above relating to the defence of qualified privilege in respect of the 2010 ZGeek posts, it cannot be said that the material relates to a matter of “public interest”. Insofar as any common law defence of fair comment subsists: see s 134(1) of the CLW Act, the defence is defeated for the same reasons.
The 2005 ZGeek posts
The common law defence of fair comment requires that the statement be comment rather than fact, that the comment relates to a question of public interest, that the comment based on facts truly stated, and that the comment otherwise lacks malice: see John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [16]; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] and [129].
The primary judge reasoned in these terms:
[103] The issue at hand here is whether the comments were based on facts truly stated, or sufficiently identified. In order to determine whether the comments contained in the 2005 ZGeek posts were supported by facts, I would need to carefully analyse those facts upon which the comments are purportedly based. However, beyond submitting that the posts were “based on the truth of media coverage”, the defendant has not tendered any evidence of those facts upon which the opinions expressed were purportedly based upon. With no evidence before me as to the facts upon which the comments contained in the 2005 ZGeek posts are purportedly based, it is impossible for me to engage in this analysis. Accordingly, it is not open for me to find that the comments contained in the 2005 ZGeek posts were based upon, or were a fair and accurate account of, facts that were substantially true or sufficiently identified.
We agree.
In Manock, Gummow, Hayne and Heydon JJ said:
[45] … the fair comment defence does not apply to material unless it is in truth comment rather than fact, there is a rule that material cannot be fair comment unless “the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts” [Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 192 per King CJ]. That is, the alleged comment must be sufficiently linked to facts being commented on by reason of those facts being stated in the publication containing the comment, or being referred to in it, or being notorious.
…
One justification for the…rule is that given by Fletcher Moulton LJ in Hunt v Star Newspaper Co Ltd [[1908] 2 KB 309 (Hunt)]: “[A]ny injustice … will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based.” “When the facts are truthfully stated, comment thereon, if unjust, will fall harmless, for the former furnish a ready antidote for the latter.” [VV Veeder, “Freedom of Public Discussion” (1910) 23 Harv L Rev 413] Further, the “facts on which the comment is based [must be] sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded”. [Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327 (Pervan)] They could conclude that “the writer may by his opinion, libel himself rather than the subject of his remarks”. [Popham v Pickburn (1862) 7 H & N 891 at 898; 158 ER 730 at 733] Another justification for the…rule is that if the underlying facts are not referred to the reader, the reader “will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him”. [Hunt at 319] That is, “if the facts are not known, the opinion carries with it the implication of facts which will justify it”. [Harper FV and James Jr F, The Law of Torts (Little, Brown & Co., 1956), vol 1 at 459]
…
[49] According to the propositions which are stated in the first passage by the six majority Justices in Pervan’s case [Pervan at 316], and which are supported by their reference to Odgers [Odgers WB and Ritson R, Odgers’ Digest of the Law of Libel and Slander (6th ed, Stevens & Sons Ltd, 1929) at 166-167], a sufficient linkage between the comment alleged and the factual material relied on can appear in three ways: the factual material can be expressly stated in the same publication as that in which the comment appears (ie by “setting it out”); the factual material commented on, while not set out in the material, can be referred to (ie by being identified “by a clear reference”); and the factual material can be “notorious”.
The 2005 ZGeek posts do not identify the sources upon which they rest. Mr Brisciani’s submissions did not rise above the assertion that the posts were based on media coverage at the time, the implication being (apparently) that the media coverage and its content were notorious.
It may be accepted that the Skaf trials received widespread media coverage. It may be that the trials themselves were notorious. This is not the same as accepting that the actions of Ms Piscioneri in reporting to the Supreme Court of New South Wales the misconduct of jurors, in compliance with her obligations as a solicitor and officer of the Court, were also notorious. The content of the posts demonstrates to the contrary. It is apparent that Mr Brisciani did not know that Ms Piscioneri, as a solicitor, was subject to obligations to the Court. Nor can it be suggested that the following asserted facts which appear in the “Tool of the Week” post were so well known as to be notorious:
“because of her blabber-mouthing the trial was scrapped and a new one was ordered”
“unfortunately the girl … was too traumatise to go through the [trial] again so [the offender’s] … sentence [was] reduced by almost ten years”.
This ground of the appeal must also fail.
Appeal ground 5 – triviality
Mr Brisciani asserts that the primary judge erred in “not finding that the comments were trivial”.
Section 139D of the CLW Act provides that:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain harm.
Therefore, the defence applies to the 2010 ZGeek posts only.
The primary judge’s conclusions in respect of this question were as follows:
[106] … In considering the defence of triviality, the tone and context of the ZGeek posts is critical. I note that the meaning conveyed by a publication may be altered by the context in which it is published: see Lang v Willis (1934) 52 CLR 637. Whilst aspects of the ZGeek website are intended to be funny, and ordinary, reasonable readers would undoubtedly appreciate this, the posts in question depart from the otherwise jovial theme of the website. It seems clear to me that the reasonable, ordinary reader of both the 2005 and 2010 ZGeek posts would understand that the material was not in jest and was to be taken seriously. It follows that the ZGeek posts were not such that the plaintiff was unlikely to sustain harm. I am satisfied that the defence of triviality does not apply.
We agree. The defence concerns the circumstances of the publication. The circumstances must be such that the plaintiff was unlikely to sustain harm: see Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691 at 68,947. In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800, Moffitt P, Hope and Reynolds JJA observed that:
The expression “circumstances of the publication” seems more apt to describe matters such as the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published.
The 2010 ZGeek posts concerned a serious matter and made serious allegations. They encouraged contemptuous responses. They were published to the public at large. The primary judge was right to reject this defence.
It follows that this ground of the appeal must also be dismissed.
Cross-Appeal Ground 3 – number of potential viewers
Ms Piscioneri contends that the primary judge “erred in fact in finding that only one person, Marek Reardon, viewed the defamatory material on the 2010 posts”.
The primary judge reasoned as follows:
1. The identification of Ms Piscioneri is an essential element of her cause of action in defamation; it may be established in two ways - either by explicit identification or by demonstrating that recipients of the communication had knowledge of particular extrinsic facts enabling Ms Piscioneri to be identified in circumstances where an ordinary and reasonable reader with knowledge of those facts would understand the imputation as referring to the plaintiff. (at [71]–[72])
2. To establish identification in the second way, Ms Piscioneri had to prove the extrinsic facts and publication to at least one person who had knowledge of those extrinsic facts (at [72]).
3. The extrinsic facts were said to be the 2005 ZGeek posts, which explicitly named Ms Piscioneri, and her Facebook profile picture. However, Ms Piscioneri did not prove that any person with knowledge of these extrinsic facts actually read the 2010 ZGeek posts (at [73]). This is because:
4. “The 2005 ZGeek posts were published years prior to the 2010 ZGeek posts” so that it cannot be inferred that “the ordinary, reasonable reader would have the 2005 ZGeek posts fresh in their memory if they happened to also read the 2010 ZGeek posts some years later” (at [76]).
5. While it is possible that “some readers of the 2010 ZGeek posts might also have read the 2005 ZGeek posts” it was not proved that this had occurred or, if it did, that the reader recalled or would be likely to recall the identity of Ms Piscioneri from the 2005 ZGeek posts (at [77]).
6. The profile picture on Ms Piscioneri’s Facebook page was a basil leaf. In these circumstances the fact that the profile picture was published in a pixelated form on the 2010 ZGeek posts did not support an inference that Ms Piscioneri could be identified. The fact that certain Facebook “friends” were visible did not assist Ms Piscioneri as her own evidence was that the “friends list”, naming her, were locked (that is, not accessible other than to friends on the list) (at [78]).
7. No one gave evidence that they did or could identify Ms Piscioneri from the 2010 ZGeek posts. Responses to the posts suggest she could not be identified (at [79]).
8. As no witnesses were called to testify that they were able to identify the applicant, the evidence was insufficient to infer that a reasonable and ordinary person within the class of those who had knowledge of the extrinsic facts relied upon did, would have or could have identified the plaintiff (at [80]). The “lack of identification” argument is buttressed by a number of comments which confuse or mistake the gender of the applicant, refer to her as “they” or otherwise express a lack of knowledge about the identity of the applicant (at [79]).
9. Mr Brisciani admitted that Mr Reardon “knew the identity of the plaintiff and would have been able to identify her from the 2010 ZGeek posts”, and posted responses under a pseudonym showing that he had read the posts (at [81]). Mr Brisciani also disclosed that he had made Ms Piscioneri’s identity known to two people who acted as moderators of the website so that they could ensure her name did not appear and was removed if it did appear on the website (at [82]).
However, the defendant conceded in cross-examination that Mr Marek Reardon knew the identity of the plaintiff, was able to identify her and did identify her in the 2010 ZGeek posts ([81]).
The primary judge’s reasoning is not affected by error. To the contrary, it is cogent and persuasive. Indeed, the only mistake the primary judge seems to have made is to identify the pixelated image as basil when Ms Piscioneri contends that it was mint. Otherwise, Ms Piscioneri’s assertions appear to rest on the unlikely proposition that someone who had access to the list of “friends” of the two persons who appeared on her Facebook profile might have undertaken the exercise of attempting to match the pixelated image with her profile. In the case of one of her identified Facebook “friends” this would have involved comparing 700 images to find a match between a pixelated image of a leaf with Ms Piscioneri’s non-pixelated image of the same leaf and inferring that she was the person with whom the image was associated. The notion that the ordinary and reasonable reader of the 2010 ZGeek posts might undertake such an exercise is untenable. Moreover, there was no evidence before the primary judge that any person did undertake this task.
Further, nothing turns on the reason why Mr Reardon was able to identify Ms Piscioneri from the 2010 ZGeek posts. The evidence does not support any suggestion that he was able to identify her because he had undertaken the kind of exercise Ms Piscioneri’s case appears to depend upon. Nor was the primary judge required to speculate about how Mr Reardon was able to identify Ms Piscioneri. The simple fact is that Mr Brisciani admitted that Mr Reardon knew the identity of Ms Piscioneri. Nothing more was proved than this.
As discussed, Mr Brisciani’s evidence that he gave Ms Piscioneri’s name to two moderators so that they could ensure that her name did not appear on the website did not need to be corroborated. The primary judge’s conclusion, that Mr Brisciani had identified Ms Piscioneri to those two persons for the legitimate purpose of ensuring her name did not appear on the ZGeek website, is not affected by error. It follows that his conclusion at [83] that the only people who identified Ms Piscioneri as the subject of the 2010 ZGeek posts were Mr Reardon and the two moderators is not open to successful challenge.
The primary judge’s subsequent observation at [90] that only one person (Mr Reardon) was able to identify Ms Piscioneri in the 2010 ZGeek posts must be understood in the context of the primary judge’s earlier comment at [82] that it would be “unreasonable to penalise the defendant simply for taking steps to ensure that the plaintiff could not be identified by the wider public”. By this, the primary judge meant that he did not consider it reasonable that Mr Brisciani be exposed to a greater award of damages for the 2010 ZGeek posts by reason of the fact that Mr Brisciani had taken steps to ensure her identity was not disclosed (when those steps themselves necessarily involved disclosure of her identity to the two persons appointed as moderators). Nor does this approach disclose any inconsistency in findings by the primary judge; three people knew the 2010 ZGeek posts were about Ms Piscioneri, but as two did so for the purpose of moderating the website, only one was relevant for the assessment of damages. We see no error in this.
Appeal grounds 1 and 7, cross-appeal ground 5 - damages
The primary judge assessed damages in the aggregate sum of $82,000, inclusive of $10,000 in aggravated damages and interest (at [121] and [123]).
The primary judge considered aggravated damages at [121] as follows:
Aggravated damages may only be awarded where the plaintiff establishes that she has suffered harm over and above what might ordinarily be expected to flow. I am satisfied that the defendant’s conduct in these proceedings has entitled the plaintiff to aggravated damages. The ongoing nature of the 2010 ZGeek posts and the publication of letters written by the plaintiff to the defendant on his website are a clear indication of the defendant’s desire to intimidate the plaintiff and dissuade her from pursuing her case against him. A modest award of $10,000 is appropriate.
The primary judge’s observations about Mr Brisciani’s conduct occurred in the context thathis Honour had correctly acknowledged (at [112] and [113]) that Mr Brisciani’s state of mind was relevant only if it affected the harm suffered by Ms Piscioneri. His Honour had also found that, in continuing the publication in 2010, Mr Brisciani’s purpose was to dissuade Ms Piscioneri from continuing legal action and that Ms Piscioneri had perceived it in that way and had become significantly stressed.
Mr Brisciani challenges this conclusion on the basis that no case for aggravated damages existed.
We disagree.
In Lewincamp v ACP Magazines Limited [2008] ACTSC 69 at [361], Besanko J explained that aggravated damages:
…are compensatory in nature: Rookes v Barnard [1964] UKHL 1; [1964] AC 1129; Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118. In terms of the three purposes identified in Carson [Carsonv John Fairfax & Sons Ltd] [1993 HCA 31; (1993) 178 CLR 44, aggravated damages will relate primarily to the personal distress and hurt caused to the plaintiff by the publication, but may also relate to factors relevant to injury to reputation. The circumstances in which the Court will award aggravated damages were considered by the High Court in Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497. Generally speaking, an award will be made only if the plaintiff is able to show a lack of bona fides in the defendant's conduct or that it is otherwise improper or unjustified.
Conduct that lacks bona fides or is otherwise unjustifiable or improper may result in aggravated damages, although only where the conduct increases the harm suffered by the plaintiff, and aggravated damages should not be awarded to punish the defendant for the conduct. In O’Rourke v Hagan [2007] ACTSC 61 at [102], Crispin J said:
Aggravated damages are compensatory in character (as Hunt J observed in Waterhouse v Broadcasting Station 2GBPty Ltd [1985] 1 NSWLR 58 at 74-75) and are awarded when the circumstances in which the defamatory matter was published or the conduct of the defendant has made the injury worse. In Suttcliffe v Pressdram Ltd [1991] 1 QB 153, Lord Donaldson said at 170 that “aggravated damages are awarded precisely because other conduct by the defendants, which may or may not take the form of another libel, rubs salt into the wounds inflicted by the libel sued upon”.
In our view there is no doubt that the circumstances of the case, as identified by the primary judge, justified the award of aggravated damages. The publication of the correspondence from Ms Piscioneri and the continuing nature of the 2010 ZGeek posts (including Mr Brisciani’s participation in the comment threads to those posts) achieved their object – to increase the hurt to and humiliation of Ms Piscioneri. For example, the 11 January 2010 ZGeek Post, which accompanied publication of her letter, said:
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…The letter is posted after the jump…I feel it is time to open a can of whoop-ass on a few people….
The fact that the letter was published in a form that did not identify Ms Piscioneri does not diminish her entitlement to aggravated damages. As Lewincamp and O’Rourke confirm, the question whether aggravated damages should be awarded concerns the effect of the conduct of the defendant on the plaintiff in terms of hurt and distress (and, potentially, any further injury to reputation). The effect of Mr Brisciani’s conduct on Ms Piscioneri identified by the primary judge provided a proper foundation for the award of aggravated damages.
Accordingly, appeal ground 7 must fail.
We also consider that Ms Piscioneri’s cross appeal, ground 5, insofar as it challenges the award of aggravated damages, must fail.
Ms Piscioneri submitted that:
The court should compensate the cross appellant by increasing the award of aggravated damages. The appellant’s conduct of proceedings has meant the cross-appellant has had to suffer added costs, both financial and personal.
As explained, the purpose of aggravated damages remains compensatory. Ms Piscioneri’s case appears to be that the award should be increased to punish Mr Brisciani for his conduct. This is impermissible (s 139H of the CLW Act). Further, and as stated in Singleton v French (1986) 5 NSWLR 425 at 439:
The defendants’ conduct at the trial may be taken into consideration only if it demonstrates a lack of bona fides or is improper or unjustifiable. But the vigorous persistence in a legitimate defence cannot be used to increase the damages: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379.
Nothing in the submissions of Ms Piscioneri provides a sufficient foundation for increasing the award of aggravated damages on the basis of Mr Brisciani’s conduct of the proceedings.
Nor do we accept Ms Piscioneri’s contention that the primary judge erred in respect of diminution of her professional reputation by reason of the reprimand of her by the Law Society in 2007. The primary judge said only that her professional reputation was “somewhat diminished” by the reprimand. However, nothing in his reasons suggests that the primary judge reduced damages for this reason. To the contrary, the primary judge accepted that Ms Piscioneri was of exemplary reputation at the time of the publication of the 2005 ZGeek posts.
Ms Piscioneri’s claim for increased damages in the amount of $250,000 must also fail. The primary judge was right to conclude at [120] that “the gravity of this defamation must be significantly tempered by the fact that the material was viewed by very few people”. Understood in context, “this defamation” is a reference to the 2005 ZGeek posts. This must be so given the primary judge’s conclusion that while three people saw the 2010 ZGeek posts, two did so in their capacity as moderators of the website and Mr Brisciani ought not be punished for having taken steps to ensure that Ms Piscioneri’s name did not appear on the website. In other words, the primary judge assessed damages for the 2005 ZGeek posts on the basis that it was seen by the very few (numbered in the hundreds) of people who had accessed the posts and the 2010 ZGeek posts on the basis that only one person had identified Ms Piscioneri from those posts.
The assessment of damages involves the exercise of discretion. In Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [269] McColl JA (with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed) said:
The appellant’s complaint that the damages awarded were excessive invites appellate review of an exercise of discretion: Rogers v Nationwide News Pty Ltd [[2003] HCA 52; (2003) 216 CLR 327] ( at [62]) per Hayne J. If an appellate court is convinced, not that in its own view the amount awarded is too high or too low, but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, it should intervene to prevent a miscarriage of justice: Carson [Carson v John Fairfax & Sons Ltd[1993] HCA 31; (1993) 178 CLR 44] (at 61–62) per Mason CJ, Deane, Dawson and Gaudron JJ.
An award of $250,000, as sought by Ms Piscioneri, would be excessive and unreasonable. It would give no weight to the confined audience of the 2005 ZGeek posts and the relevant audience of one for the 2010 ZGeek posts. An award of that amount, in the circumstances of this case, would have invited appellate review as manifestly excessive.
Accordingly, Ms Piscioneri’s cross-appeal, ground 5, is unsustainable.
This leaves Mr Brisciani’s appeal ground 1, which alleges that the primary judge’s reasons for the award of damages are inadequate.
In support of this ground Mr Brisciani submitted that:
The damages awarded are not explained as they should be and are therefore appellable.
…
The trial judge should have given sufficient reasons for the parties to understand the basis of his or her decision and thus prepare proper grounds of appeal and a failure of him or her to have done so will usually result in an order for a new trial. As a general rule, a court must give adequate reasons for its decision. The requirement that reasons be given is a normal incident of the judicial process.
In Howard v Aikman (2015) 74 MVR 184 at [23], Refshauge, Penfold and Katzmann JJ said:
…in O’Brien v Noble (2012) 6 ACTLR 132 [[2012] ACTCA 13] at [20] this Court summarised the law on the giving of reasons by trial judges. In summary:
(a) Trial judges are required to state their findings and their reasons adequately to enable a proper understanding of the basis upon which the verdict has been reached. Failure to do so may constitute error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA).
(b) An appeal court should not be left to speculate from collateral observations as to the basis of any particular finding: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 (McHugh J).
(c) While not every aspect of the reasoning process needs to be spelled out, the reasons must resolve critical points in dispute and facilitate appellate review: Kendirjian v Ayoub [2008] NSWCA 194 at [169] (McColl JA).
(d) Awards for damages should not be arrived at intuitively but by a process of methodical consideration: Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145 at 149 (Stephen J).
(e) Where there is a dispute about the evidence, it is not enough just to state a preference for some evidence over another: Goodrich Aerospace Pty Ltd v Arsic [[2006] NSWCA 187]; (2006) 66 NSWLR 186 at [28] (Ipp JA).
Subject to one issue (the relationship between the award of damages and interest), the complaint of inadequate reasons is without substance. The primary judge reasoned as follows:
(a)Section 139E of the CLW Act, and s 136 as it stood in February 2005, required any damages to bear an appropriate and rational relationship to the harm sustained, and the common law required damages to be assessed on the basis of what was necessary to compensate for injury to the respondent’s reputation (at [108] – [110]).
(b)Ms Piscioneri had given evidence about the serious impact of the defamatory posts on her and the primary judge was satisfied (rightly, in our view) that the publication of the ZGeek posts had a detrimental impact on her wellbeing, given that the posts prevented her from engaging in activities she enjoyed – such as using Facebook – and made her fearful for her family (at [111] – [115]). While Mr Brisciani’s intention in publishing the 2010 ZGeek posts was to dissuade Ms Piscioneri from pursuing legal action, s 139G of the CLW Act required him to disregard Mr Brisciani’s malice or other state of mind at the time of publication, except to the extent it affected the harm sustained (at [113]).
(c)Ms Piscioneri had not proved that the defamatory ZGeek posts caused her to be unsuccessful in finding employment. Nor had she proved that the defamatory material had a detrimental effect on her professional reputation within the legal community, since a legal professional would have known she was simply complying with her duties. However, he accepted at [117] that:
potential employers outside of the legal profession may have been influenced…in their decision not to hire her, however it is difficult to say to what degree this might have been the case.
(d)The “Tool of the Week” thread and “Bitching and Rants” forum (the 2005 ZGeek posts) accumulated about 360 and 554 views respectively. However, only one person was able to identify Ms Piscioneri from the 2010 ZGeek posts (at [118], and see the discussion above about the moderators). Consistent with these findings, at [120], the primary judge said:
Whilst the material complained of was certainly capable of conveying very serious defamatory imputations against the plaintiff, the gravity of this defamation must be significantly tempered by the fact that the material was viewed by very few people.
(e)Good reputation was assumed in Ms Piscioneri’s favour: see Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 414 at 482-83; nothing suggested Ms Piscioneri’s social standing was “anything other than exemplary” when the 2005 ZGeek posts were published, although her professional reputation was “somewhat diminished” following the 2007 reprimand from the Law Society (at [120]).
(f)Steps taken by Mr Brisciani to mitigate the harm had to be taken into account, summarised at [122] as including:
(i)redacting the name, postal address and other identifying particulars of the plaintiff in material posted on ZGeek after the plaintiff had requested him to do so;
(ii)encoding a rule into the operating system of ZGeek to make it impossible for the plaintiff’s name to appear on the website if posted by a user;
(iii)taking “all steps necessary” to disable any reference by internet search engines to the threads, posts, comments and content referencing the plaintiff on ZGeek; and
(iv)contacting Google Inc. to remove its index references to the posts concerning the plaintiff.
(g)At [123] the primary judge said:
Taking the above into account, it is appropriate to award the plaintiff $82,000.00 in damages inclusive of aggravated damages and interest.
(h)There was no error of principle in the primary judge awarding one sum in respect of the two different occasions of defamatory publication in 2005 and 2010. Section 139J of the CLW Act provides that:
If the court in defamation proceedings finds for the plaintiff as to more than 1 cause of action, the judicial officer may assess damages in a single sum.
(i)The same position applies under the common law. In Channel Seven v Mahommed at [274] McColl JA said:
It was, in my view, a matter for his Honour whether he awarded damages separately or en bloc for the imputations arising from the three matters complained of. As his Honour said (at [337]) “‘whether one or more causes of action are to be included in one verdict or judgment will depend upon the exercise of the trial Judge’s judicial discretion’ (Hayward v Thompson [1982] 1 QB 47, per Lord Denning MR at 62 quoting Scott LJ in Barber v Pigden [1937] 1 KB 664 at 684).”
The one potential difficulty is this. It is plain that the majority of the award must have related to the 2005 ZGeek posts (given that the primary judge decided that damages for the 2010 ZGeek posts should be approached on the basis that only one person had identified Ms Piscioneri as the subject of those posts). Given the time between the publication in 2005 and judgment, and the right to pre-judgment interest, it is not possible to ascertain the amount which represents damages for the defamations, as opposed to interest. Damages for defamation generally attract pre-judgment interest, albeit not ordinarily at the Court rate given the compensatory function of interest: see r 1619(1)(a)(i) of the Court Procedure Rules 2006 (ACT) which allows the Court to order pre-judgment interest at the rate it deems appropriate and Commonwealth v Silverton Ltd (1997) 130 ACTR 1 at 27, as well as John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 137 citing Batchelor v Burke (1981) 148 CLR 448 at 455.
In Ross v Suncorp Metway Insurance Ltd [2002] QCA 93, which involved damages for personal injury, Thomas JA, with whom Davies JA agreed, said at [16]:
The next point concerns the award of $35,000 for pain, suffering and loss of amenities including interest. Mr Grant-Taylor submitted that His Honour should have awarded a particular sum for damages for pain, suffering and loss of amenities and then added an additional sum for interest on that part of it which related to the detriment so far suffered. He submitted that it was impermissible for a single figure to be awarded which included both items and which did not disclose specific sums identifying each component. He referred to Hadzigeorgiou v O'Sullivan [[1983] 1 Qd R 55] as authority supporting such a conclusion. That decision does not hold that a single figure may not be assessed which combines both the particular head of damage and the interest it would attract. Hadzigeorgiou holds that the separate discretions in relation to costs and interest should not be rolled up into a single discretion, and further indicates that interest ought to be granted unless there are proper reasons for withholding it. I see no reason why a judge may not select a particular round figure as appropriately representing a head of damage and the interest which it would attract, although in the normal course the judge will select a round figure and then add interest to it.
In the context of damages for defamation, where pre-judgment interest is frequently granted at a rate less than the Court rate, the worst that can be said is that the primary judge’s approach to the inclusion of interest in the single sum award does not assist effective appellate review; as such, it would have been preferable for the primary judge to have dealt with the award for the defamations separately from interest. This is not to say, however, that the award must be disturbed. The primary judge correctly recognised that two separate discretions were involved. The question remains whether the exercise of either discretion miscarried. We are not satisfied that the exercises did miscarry. For example, if the principal award for the defamations was $45,000 (a figure we consider within the reasonable range for these defamatory statements), to which $10,000 is added for aggravated damages, the total award for the defamations is $55,000. An award of pre-judgment interest at a rate of 4.5% per annum over the period from the 2005 ZGeek posts (which would be reasonable given that most of any award should relate to the 2005 ZGeek posts and compensatory purpose of interest) to the date of judgment (given the uncertainty of the date of the initial post, say, the period from February 2005 to April 2015, or a total of 10.25 years), would yield interest in the sum of somewhat over $25,000. On this basis, the total award inclusive of interest would be just over $80,000. The primary judge’s total award was $82,000. We are satisfied that the primary judge’s award was well within the range of reasonableness in all of the circumstances.
As a result, we would conclude in these terms. In a case such as the present, where pre-judgment interest would accrue over a lengthy period of time, it is preferable for reasons to be given explaining the exercise of each the relevant discretions, for the award of damages and the award of pre-judgment interest. Despite this, the primary judge’s conclusion in respect of the award of damages and of interest was reasonably open in the circumstances, and should not be disturbed on appeal.
Conclusions
For the reasons set out above the appeal and cross-appeal should be dismissed. Each party should pay their own costs as applicable.
| I certify that the preceding one hundred and twenty-seven [127] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 10 August 2016 |
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