Piscioneri v Brisciani
[2015] ACTSC 106
•15 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Piscioneri v Brisciani Citation: [2015] ACTSC 106 Hearing Date: 15 October 2014 Decision Date: 6 May 2015 Before: Burns J Decision: Judgment is entered in favour of the plaintiff. The defendant is
ordered to pay the plaintiff the sum of $82,000.00 in damages.Category: Principal Judgment Catchwords:
CIVIL LAW – Torts – Defamation – statements amounting to defamation – publication – damages – whether plaintiff is identifiable in the publications – whether publications amount to mere abuse – whether publications were trivial – whether defence of honest opinion applies – whether defence of
qualified privilege applies. Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) Chapter 9
Court Procedures Rules 2006 (ACT) r 1179
Limitation Act 1985 (ACT)Cases Cited: Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21
Bennette v Cohen (2005) 64 NSWLR 81
Bennette v Cohen [2009] NSWCA 60
Bureya P/L v The Mackay Printing & Publishing Co P/L [2003]
QCA 284
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
David Syme & Co v Canavan (1918) 25 CLR 234
Dow Jones & Co v Gutnick (2002) 210 CLR 575
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
John Fairfax Publications Pty Ltd v Rickin (2003) 201 ALR 77
Megna v Marshall [2010] NSWSC 686
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR
632
Mundey v Askin [1982] 2 NSWLR 369
Polly Peck (Holdings) plc v Telford [1986] QB 1000
Ratcliffe v Evans [1982] 2 QB 524 (CA)
Speight v Gosnay (1891) 60 LJQB 231
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW)
180Texts Cited: LexisNexis, Halsbury’s Laws of Australia, (at 23 March 2015) 145 Defamation, ‘5 Honest Opinion and Fair Comment’ [145- 1950] Parties: Gabriella Jean Piscioneri (Plaintiff) Anthony Scott Brisciani (Defendant) Representation: Counsel Self-represented (Plaintiff)
Self-represented (Defendant)Solicitors Self-represented (Plaintiff)
Self-represented (Defendant)File Number: SC 859 of 2010 Burns J: Background 1. Between 1996 and 2007, the plaintiff owned and operated the criminal legal practice ‘G J Piscioneri and Co’ as a sole practitioner in New South Wales. The plaintiff is currently
unemployed. In early 2005, reports appeared in the media regarding criminal trials against Bilal Skaf and others who were charged with several counts of aggravated sexual intercourse without consent in New South Wales (the Skaf trial). Following the trial and subsequent convictions of the accused men, the jury foreperson, an acquaintance of the plaintiff, disclosed to the plaintiff that he and possibly other members of the jury had conducted a view of the crime scene after having been directed by the trial judge not to do so. The plaintiff reported this to the Court. The plaintiff was a practising solicitor in Queanbeyan, NSW at the time, but was not directly
involved in the Skaf trial. I note that the plaintiff’s conduct in reporting what the juror
had disclosed to her was clearly in line with her duties as a legal practitioner. As a
result, the convictions were quashed and a retrial was ordered.2. Purportedly in response to media reports on the topic, a forum was started in 2005 on the website (ZGeek) which facilitated discussion about the plaintiff and her conduct in reporting the jurors. The defendant is the owner and operator of ZGeek. Many of the posts condemned the plaintiff for having reported the jurors to the Court and were generally offensive in their nature. In 2009, the plaintiff discovered the posts and contacted the defendant, which sparked further discussion on ZGeek regarding the plaintiff and the legal proceedings that ensued.
3. The plaintiff now claims damages for defamation in response to these posts.
Throughout these reasons I will refer to these posts collectively as the “ZGeek posts”, or separately as the “2005 ZGeek posts” and the “2010 ZGeek posts”.
Procedural history
4. This matter first came before this Court on 25 November 2011. The parties indicated that these proceedings were temporarily struck out sometime in 2012, however there is nothing on the Court file to confirm this, and neither party was able to clearly explain how this came to be. Nevertheless, the bench sheets indicate that this matter was certainly on foot again in October 2012. It was not until 5 July 2013 that the matter came before me. Both parties are self-represented, though the defendant has from time to time engaged legal representatives throughout these proceedings.
5. On 17 December 2013, Acting Justice Sidis ordered that the parties attend mediation on 20 March 2014 pursuant to r 1179 of the Court Procedures Rules 2006 (ACT). Mediation was unsuccessful and the matter came back before this Court for hearing on 15 October 2014. I will return to the evidence given at this hearing later in these reasons.
6. Written submissions were received from the plaintiff on 12 November 2014 and from the defendant on 4 February 2015. Submissions in reply were received from the plaintiff on 25 February 2015.
Pleadings
7. I will summarise the pleadings provided by each party as briefly as possible. The relevant pleadings are the Amended Originating Claim dated 19 July 2013 and the accompanying Amended Statement of Claim of the same date, and the Amended Defence filed 21 August 2013.
The Amended Originating Claim and Amended Statement of Claim
8. The Amended Originating Claim describes the nature of the plaintiff’s action as follows:
Damages for defamation in respect of:
(a) The publication by the defendant on his website ZGeek.com of a thread and posts in
th
the “Tool of the Week” Forum published and downloaded on and about 14 December 2009 including in the Australian Capital Territory and New South Wales;
(b) The publication by the defendant on his website ZGeek.com of a thread and posts in the categories: Dept of Cunts, ZGeek News, headed “ZGeek threatened with yet
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another lawsuit”, published and downloaded on and about 2 January 2010 including in the Australian Capital Territory and New South Wales.
(c) The publication by the defendant on his website ZGeek.com of a thread and posts published in the categories: Operation Defecation and under the heading “IN THE
NEWS” and entitled “The Myrmidon Friends sends me another legal threat!” Published
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and downloaded on and about 11 January 2010 including in the Australian Capital Territory and New South Wales.
(d) The publication by the defendant on his website ZGeek.com of a thread and posts published in the categories: Angry! Dept of Cunts, Operation Defecation, and entitled “Update on Myrmidon Enterprises legal harassment of ZGeek” published and
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downloaded on and about the 11 January 2010 including in the Australian Capital Territory and New South Wales. (e) The publication by the defendant on his website ZGeek.com of a threat and posts
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published on a thread called “ZGeek’s legal page” on or about 13 July 2013 in the Australian Capital Territory.
(f) The publication by the defendant on his website ZGeek.com of a thread and posts published on a thread called “ZGeek being sued for defamation for the fourth time” and
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downloaded on or about 6 November 2012.
9. The Amended Originating Claim also sets out the relief sought by the plaintiff:
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The plaintiff claims damages for defamation in respect of publication, on and after 17
February 2005, by the defendant in the ACT, New South Wales and the other states and
territories on the ZGeek website, of articles concerning the Plaintiff... The plaintiff is able to
upon a cause of action for defamation under the provisions of the Civil Law (Wrongs) Act
st
2002 in relation to material published after 1 January 2006 (sic). The plaintiff is able to sue
for damages for defamation including in respect of personal business reputation under
st
common law in relation to publications prior to the 1 January 2006 pursuant to Section 118 (3) of the Civil Law (Wrongs) Act. 10. The plaintiff claims “damages including exemplary and aggravated damages, interest
and costs.”
11. In the Amended Statement of Claim, the plaintiff pleads 52 separate defamatory
imputations arising from the ZGeek posts, including, inter alia, that “The plaintiff was an unjust and indecent person”, “The plaintiff was extremely wicked, immoral and insane”,
“The plaintiff is an ex lawyer”, “The plaintiff was responsible for Bilal Skaf’s retrial and
his reduction in sentence” and “The plaintiff acted incorrectly by reporting the foreman
of the jury in the Skaf trial”. The plaintiff alleges that these imputations arise out of the
natural and ordinary meaning of the ZGeek posts. The defendant denies that these
imputations are capable of being conveyed by the ZGeek posts.12. The Statement of Claim provides that, by reason of the publications, the plaintiff was brought into hatred, ridicule and contempt, and has been gravely disparaged and injured in her reputation, causing her to suffer loss and damage, including damage to her business and professional reputation.
13. The Amended Statement of Claim states that the defendant published “each of the
defamatory statements... without taking any steps, or any reasonable steps, to ascertain that the statements, insofar as they conveyed the meanings pleaded herein...
were true”. It further states that ZGeek “had a reputation as an accurate and reliable
source of news and information” and that the defendant “received reward and profit” by
the operation of ZGeek.
14. The plaintiff advised the defendant by letter dated 27 December 2009 that she considered the 2005 ZGeek posts to be extremely offensive and that she was seeking legal advice as to whether they constituted defamation. She invited the defendant to apologise. By letter dated 7 January 2010, the plaintiff further invited the defendant to
“make amends” and requested that links to the ZGeek posts generated by a Google
search that included her name be removed.
The Amended Defence
15. The defendant “neither admits nor denies” that he was the owner and administrator or
webmaster for the purposes of registration of the domain name He further states that members of the general public were able to join the site and post
on it “without editorial supervision.” The defendant admits that he created forums and
wrote posts under the pseudonym ‘Pirate’ on the site.
16. The Amended Defence lists a number of features of the site that he claims would lead a reasonable person to understand that the site was not necessarily a reputable or
accurate source of information. He drew particular attention to the website’s disclaimer,
which reads:
Everything is copyright, even stuff you own. Everything you say, think, touch and masturbate over is copyrighted by ZGeek. We own the fucking world, I copyrighted it so get the fuck off my copyrighted planet, but DONT (sic) use any spaceships because I
copyrighted those too. So get Fucked!!.. (sic) you can’t swear back because I
COPYRIGHTED THAT TOO!!.. (sic) Stop breathing!! breathing (sic) is copyrighted by
ZGeek.com for the next ELEVENTY BILLION YEARS! (sic)17. The Amended Defence suggests that the plaintiff was motivated to commence legal proceedings because she was acquainted with two men who were previously involved in unrelated defamation proceedings against the defendant, one of whom had
apparently “stated publicly he would keep ZGeek in court for years”. This was
apparently evidenced by the fact that the plaintiff had listed these two men, Jonathon
Nolan and Greg Smith, as ‘friends’ on the social networking site Facebook. It is my understanding that references to ‘the Myrmidon friends’ in a number of the ZGeek
posts refer to the plaintiff and these two men. The suggestion as to the plaintiff’s motive
made in the Amended Defence was not pursued at the hearing and does not appear to
be relevant to this judgment.18. The Amended Defence goes on to state that, if the ZGeek posts are found to be defamatory to the plaintiff, the following defences apply:
(a) that “the circumstances of the publication of the matter complained of was such that the Plaintiff was unlikely to sustain any harm”;
(b) that “the matter complained of was published under qualified privilege” at common law and/or pursuant to s 139A Civil Law (Wrongs) Act 2002 (ACT);
(c) that “the matter was an expression of opinion of the Defendant” and that “the opinion related to a matter of public interest”, “was based on proper material”
and constituted expressions of honest opinion within the meaning of s 139B
Civil Law (Wrongs) Act 2002 (ACT) and the “Defence of Fair Comment under the Common Law”;
(d) that the material “is not, and is not reasonably capable of being construed as, a reference to” and “is not sufficiently connected to” the plaintiff or her
conduct; and
(e) that “the matter was trivial” within the meaning of s 139D Civil Law (Wrongs) Act 2002 (ACT) and amounted to “mere abuse under Common Law.”
19. I note that the defendant is mistaken in pleading the defence at (d) as a defence to defamation. Indeed, if I find that the plaintiff is not identifiable in the ZGeek posts, the plaintiff will have failed to make out a cause of action in defamation. Similarly, the
pleading of the defence of “mere abuse under Common Law” at (e) should more
correctly be formulated as an argument in relation to whether a publication carries a
defamatory meaning rather than as a defence to defamation.20. The Amended Defence also claims that the plaintiff is not entitled to exemplary damages pursuant to s 139H of the Civil Law (Wrongs) Act 2002 (ACT), which provides:
Exemplary or punitive damages cannot be awarded
A plaintiff cannot be awarded exemplary or punitive damages for defamation.
Evidence
21. Both the plaintiff and the defendant were self represented at the hearing on 15 October 2014. Both parties gave sworn evidence in chief, and each cross examined the other.
The plaintiff’s evidence
The ZGeek posts
22. The plaintiff gave evidence that on 14 December 2009 she was alerted to the existence of the ZGeek posts, which she then downloaded and read. The dates on the posts indicated that the material had been posted in early to mid 2005 and had remained on the website since then. The first post on the topic is written under the pseudonym
‘Pirate’ in the ‘Tool of the Week forum’ and 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 (sic) 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”.
I note that, according to the exhibit that was tendered at the hearing, this post appears to be dated 3 May 2005 at 9:16 pm, however, it seemed to be common ground
between the parties that this post was published prior to the publication of the ‘Bitching and Rants’ forum dated 17 February 2005, which I will recite below. Relevantly, during
his cross examination of the plaintiff, the defendant referred to “the entire thread of the
2005 thread started by me [Pirate] and continued by [dilligaf]”. This is consistent with
my understanding of the timeline of publications based on the evidence as it was
presented to me. Thus, I will assume that the date stamp on the ‘Tool of the Week’ exhibit is incorrect. This post is immediately followed by another written by ‘fuelman’
which reads:
How dare she expect all the jurors to receive the same information and for the defense
(sic) and prosecution to know what that information is! she (sic) is truly evil!23. The plaintiff also tendered a document from another website republishing the initial
‘Tool of the Week’ post authored by ‘Pirate’, above. Whilst the document provided does
not clearly show the name of the website, the plaintiff testified that she thought the
website was called ‘Wayback Machine’. Annexed to this judgment and marked with the letter “A” is a copy of the exhibit which the plaintiff submits is proof of republication. I
will consider whether or not this sufficiently demonstrates republication later in these
reasons.24. Another post is written under the pseudonym ‘dilligaf’ on a separate ZGeek forum called ‘Bitching and Rants’, dated 17 February 2005, and reads:
This woman really gives me the shits. After seeing the tool of the week rant, i (sic) can see that im (sic) not alone with my opinions. What a fuking (sic) moron. Can anyone really be more dence (sic) than this woman. What i (sic) dont (sic) get is this stupid bitch decided it
was her “duty” to tell the judge. What a fucking moron. She was at a goddam (sic) party for
christs sake (sic). 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 (sic) 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 (sic). Why the fuck to (sic) these guys get less jail time because a juror went to the scene of th (sic) crime?? What if that park was their local park? They couldnt (sic) 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 (sic) the hell did she do to deserve it? Absolutely nothing. This is really fucked, and its (sic) all got fucked up the arse with a dead dingos (sic) donger because of the soft cock lawyer, Gabriella Piscioneri. Fucking moron bitch. she (sic) should do the time that these guys get let off for. no (sic) 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 (sic) bullshit, she is probably the biggest tool in my shed at the moment. I dont (sic) really despise and hate alot (sic) of things, but of the few that i (sic)
hate, rape and pedo’s (sic) 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 (sic) 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 (sic) happen. I really feel strongly about this.
Gabriella Piscioneri: FUCK YOU! :spingo:
25. I note, however, that a number of the 2005 ZGeek posts from other users are
supportive of the plaintiff’s actions. For the sake of completeness, I will recite the entirety of the posts following that of ‘dilligaf’ (above), as it appears in exhibits 4 and 37:
sagit 17-02-2005 08:55 PM Unfortunately she isnt (sic) to blame. The juror who conducted his own investigation should not have done so. She would be required to pass on the information, regardless of how regrettable the result.
Direct your (understandable) anger at the juror.
dilligaf 17-02-2005 09:07 PM What difference does it make if the juror goes there or not?? They were still found guilty by all of the jurors, not just the two who visited the scene.
and3w 17-02-2005 09:12 PM Unfortunately, in this case it may have made no difference but in another it may have done.
You have to have one rule for all, that is the whole point of law, isn’t it?
As sagit say’s (sic), the jurors are in the wrong, not the lawyer although how she sleeps at
night I don’t know. Still, defence lawyers are an absolute necessity (sic) in our legal
system, and thank fuck we have it, the alternatives are not good!
Movius 17-02-2005 09:12 PM Quote: Originally Posted by dilligaf
This woman really gives me the shits. After seeing the tool of the week rant, i (sic) can see that im (sic) not alone with my opinions. What a fuking (sic) moron. Can anyone really be more dence (sic) than this woman. What i (sic) dont (sic) get is this stupid
bitch decided it was her “duty” to tell the judge. What a fucking moron. She was at a
goddam (sic) party for christs sake (sic). 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 (sic) 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 (sic). Why the fuck to (sic) these guys get less jail time because a juror went to the scene of th (sic) crime?? What if that park was their local park? They couldnt (sic) 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 (sic) the hell did she do to deserve it? Absolutely nothing. This is really fucked, and its (sic) all got fucked up the arse with a dead dingos (sic) donger because of the soft cock lawyer, Gabriella Piscioneri. Fucking moron bitch. she (sic) should do the time that these guys get let off for. no (sic) 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 (sic) bullshit, she is probably the biggest tool in my shed at the moment. I dont (sic) really despise and hate alot (sic) of things, but of the few
that i (sic) hate, rape and pedo’s (sic) 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 (sic) 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 (sic) happen. I really feel strongly about this.
Gabriella Piscioneri: FUCK YOU! :spingo:
Think before typing.
dilligaf 17-02-2005 09:17 PM Quote: Originally Posted by and3w
Unfortunately, in this case it may have made no difference but in another it may have
done. You have to have one rule for all, that is the whole point of law, isn’t it?
As sagit say’s (sic), the jurors are in the wrong, not the lawyer although how she
sleeps at night I don’t know. Still, defence lawyers are an absolute necessity (sic) in
our legal system, and thank fuck we have it, the alternatives are not good!
If it made no difference, why did she say anything?? Its (sic) all so she get some more publicity for her own business (sic). Selfish, i (sic) think.
dilligaf 17-02-2005 09:18 PM Quote: Originally Posted by Movius
Think before typing.
Whats (sic) your point?
Movius 17-02-2005 09:22 PM Quote: Originally Posted by dilligaf
Whats (sic) your point?
I am calling into question your ability to put any thought into a post beyond , (sic) “Maybe if
i (sic) write a long barely coherent rant just to agree with the sites (sic) owner, people will
think i’m (sic) cool.”
and3w 17-02-2005 09:22 PM I would guess that she is legally bound to inform the judge, in the same way she would if she learnt of jury tampering, for instance.
sagit 17-02-2005 09:31 PM Quote: Originally Posted by and3w
I would guess that she is legally bound to inform the judge, in the same way she would if she learnt of jury tampering, for instance.
correct. (sic)
locust 17-02-2005 09:40 PM If there’s anything worse than a rapist, it’s someone who perverts the justice system.
The jurors did that, and the lawyer would have too if she hadn’t spoken up/ (sic)
ajcrowley 17-02-2005 09:55 PM Quote: Originally Posted by sagit
Unfortunately she isnt (sic) to blame. The juror who conducted his own investigation should not have done so. She would be required to pass on the information, regardless of how regrettable the result.
Direct your (understandable) anger at the juror.
exactly. (sic)
ashet 17-02-2005 10:05 PM The law is not about justice, its (sic) about process...and it stinks. (sic)
Whiskers 17-02-2005 10:09 PM All information and evidence has to be carefully sifted before being presented to jurors. It is a basic tenet of the legal system.
The jurors did not merely go for a run in their local park- (sic) they went there with the specific intention of carrying out an experiment to establish elements of the offence.
As for the lawyer who ‘blew the whistle’ I would have done exactly the same thing. Lawyers
cop a lot of crap- (sic) some of it is deserved- (sic) but this is an example of a lawyer representing her ethical duties and she is shot down. Sure, the result is really fucking tragic, and I feel for this girl immensely- (sic) but if you want to be angry at anyone- (sic) be angry at the fuckhead jurors who decided to conduct their own investigation AND then tell a lawyer about it!
Whiskers 17-02-2005 10:15 PM As an aside, Dilligaf- the fact she was at a party should make no difference. Did you know- that (sic) if you are at a party, and ask a lawyer there about a legal issue, however trivial, and that lawyer gives you advice that later proves to be incorrect and causes you some form of measurable loss- you would still be entitles (sic) to sue that lawyer for professional negligence/misconduct? Even though there is no formal retainer.
In short- a lawyer is always a lawyer- and that duty is always with them.
Jimma 17-02-2005 10:24 PM I think everyone is looking at this the wrong way. It’s not a case of what has to be done to
make laws work, and what the current law is – it’s about justice and being a decent person. In this one case, where the jurors actions make no difference, it wouldn’t have hurt for this
lawyer to have pretended she heard nothing. I hate the fact that society is more interested
in rules than morals and logic. It’s a fair enough rule I’ll admit, but enforcing rules is a job,
and nobody takes their job so seriously as to enforce a rule that is useless. it’s like your
boss doesn’t fire you for taking 61 minutes for lunch instead of an hour, but if you were to
take a two hour lunch every day for a week after being told each day not to, you’d lose
your job as you broke the rule stating lunch hours are supposed to be one hour. This juror
was in the wrong, but it’s not the victim of crime’s fault that they stuffed up. It is however
now thanks to this lawyer that the victim’s attackers will be free 10 years earlier. I’m not
saying it’s her fault as technically she was doing what she’s told – but technically
thousands of nazi troops were just doing what they were told and enforcing the rules in
their system when they killed 7 million jews (sic). The legal system works better when thetechnicalities are not as important as the cold hard facts.
and3w 17-02-2005 10:29 PM I wish I could agree – my heart tells me you are right – but the problem is that as soon as
you allow 1 person (in this case her) to judge what is rihght (sic) and what is wrong you
may as well forget about the jury system. I see lots of cases in the papers that seem
morally wrong to me BUT as in this case, who made ME (or her) Judge, Jury &
executioner.No, if you have a system of law you HAVE to stick to it even when, as in this case, justice does not appear to have been done.
Hired Goon 17-02-2005 10:29 PM
Obviously these jurors had been watching too much CSI and thought it would be a good
idea to go and do some self investigation. I agree, it’s not really her fault, even if she is a
scumbag lawyer.
However, the jury system is fairly questionable. But they are told to play by the rules
clearly, it’s just some are too stupid to listen.
Movius 17-02-2005 10:59 PM Quote: Originally Posted by Godwin
As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.
well (sic) done Jimma.
Pirate 17-02-2005 11:03 PM Quote: Originally Posted by Movius
I am calling into question your ability to put any thought into a post beyond , (sic)
“Maybe if I write a long barely coherent rant just to agree with the sites (sic) owner,
people will think i’m (sic) cool.”
Hey Im allowed to have my opinion right or wrong. People aren’t cool if they think the same
way as I do. It just happens.
I personaly (sic) believe she should have shut up. The guys where (sic) found guilty of the crime, but she must have known that this was going to cause a retrial which could have put those mongrels back on the street. Luckily it was only 10 years off.
Movius 17-02-2005 11:40 PM Quote: Originally Posted by Pirate
Hey Im allowed to have my opinion right or wrong. People aren’t cool if they think the
same way as I do. It just happens.
I’m not criticising your opinion as such. I’m criticising the quality of the initial post in this
thread, which is of poor quality and belittles a serious issue and questioning his motives for
posting it.
Originally Posted by Pirate
I personaly (sic) believe she should have shut up. The guys where (sic) found guilty of the crime, but she must have known that this was going to cause a retrial which could have put those mongrels back on the street. Luckily it was only 10 years off.
I am of the understanding there wouldn’t have been a retrial if it weren’t for the actions of
these jurors (feel free to correct me if i’m (sic) wrong). So more scrutiny should be given to
these idiots for either not taking their role seriously enough or being to (sic) stupid to
understand that “DO NOT VISIT THE CRIME SCENE” means don’t visit the crime scene.
As has been mentioned the lawyer had a responsibility to tell the judge what had happened
(and if she hadn’t someone else would have), so merely even if she had the intention of
covering her own arse, I believe her actions were justified. The implications of legal professionals of any role not taking these sorts of actions seriously are serious and dangerous.
Lastly, I don’t believe she could have known (for sure) whether the victim would have been
able to testify again or not. If she had been able to take the stand any re-trial would have
most likely resulted in no reduction in sentence.
dilligaf 18-02-2005 08:56 PM Quote: Originally Posted by Movius
I am calling into question your ability to put any thought into a post beyond , (sic)
“Maybe if i (sic) write a long barely coherent rant just to agree with the sites (sic)
owner, people will think i’m (sic) cool.”
Mmmmmm, coz (sic) thats (sic) definately (sic) my motivation. I PM’d pirate to ask why
there wasnt (sic) a linky from the tool of the week
Quote:
Originally Posted by dilligaf
There is no link to a thread to further to your bitching on Gabriella Piscioneri. Well, there isnt (sic) one on the front page.
so i (sic) could post what i (sic) wanted.
He then told me to make my own thread.
Quote:
Originally Posted by Pirate
Feel free to make one :) I’ll link it if you do.
I wanted to post my point of view on the issue. If i (sic) wanted to kiss pirates (sic) arse id (sic) pay to be here. I cant (sic) afford that money at the moment, so thats (sic) why i (sic) decide not to kiss his arse. If i (sic) was kissing his ase (sic) i (sic) would be rather blatant
about it by creating a thread “Pirate is my idol. I want to have his babies” That, is kissing
arse. (sic)
This thread is my opinion.
dilligaf 18-02-2005 08:59 Quote: Originally Posted by Jimma
I think everyone is looking at this the wrong way. It’s not a case of what has to be
done to make laws work, and what the current law is – it’s about justice and being a
decent person. In this one case, where the jurors actions make no difference, it
wouldn’t have hurt for this lawyer to have pretended she heard nothing. I hate the fact
that society is more interested in rules than morals and logic. It’s a fair enough rule I’ll
admit, but enforcing rules is a job, and nobody takes their job so seriously as to
enforce a rule that is useless. it’s like your boss doesn’t fire you for taking 61 minutes
for lunch instead of an hour, but if you were to take a two hour lunch every day for a
week after being told each day not to, you’d lose your job as you broke the rule
stating lunch hours are supposed to be one hour. This juror was in the wrong, but it’s
not the victim of crime’s fault that they stuffed up. It is however now thanks to this
lawyer that the victim’s attackers will be free 10 years earlier. I’m not saying it’s her
fault as technically she was doing what she’s told – but technically thousands of nazi
troops were just doing what they were told and enforcing the rules in their system
when they killed 7 million jews (sic). The legal system works better when thetechnicalities are not as important as the cold hard facts.
Exactly.
She should have used DISCRETION on the issue.
dilligaf 18-02-2005 09:03 PM Quote: Originally Posted by and3w
I wish I could agree – my heart tells me you are right – but the problem is that as soon
as you allow 1 person (in this case her) to judge what is rihght (sic) and what is wrong
you may as well forget about the jury system. I see lots of cases in the papers that
seem morally wrong to me BUT as in this case, who made ME (or her) Judge, Jury &
executioner.No, if you have a system of law you HAVE to stick to it even when, as in this case, justice does not appear to have been done.
I never siad (sic) that it wasnt (sic) against the law to go to the scence (sic) of the crime. My point was it had no effect on the outcome of the trial, so the lawer (sic) should have used her discretion. People like her are book smart. She could recite every line of her goddam law textbooks, but she cant (sic) be in touch with the wider community because she doesnt (sic) have the one thing a book cant (sic) give you, a personality.
Afro88 18-02-2005 09:40 PM Quote: Originally Posted by dilligaf
Exactly.
She should have used DISCRETION on the issue.
Unfortunately lawyers in this case can’t use discretion. If she did, and it resurfaced later on
somehow, she’d get her ass kicked, sued for all she’s got and the dude would be out of jail.
Lawyers are supposed to be emotionless. The more they follow rules and not use discretion, the more clear the trial becomes, because the only way to make sense of something judicially is to apply it to a set of rules. The more these rules are followed
(hopefully) the more accurate the findings at the end. That’s the way the constitution was
designed and is maintained. If lawyers start to judge a case for themselves, the system
falls apart.
It’s the juror’s fault, they were supposed to follow these rules for a reason. Because they
didn’t, the trial was invalidated and they had to start again. Don’t shoot the messenger –
the guy that fucked up was the juror, he knew what he was doing and what the
consequences were.
Girl. 18-02-2005 09:42 PM Everyone hates lawyers until they need one.
Movius 18-02-2005 09:49 PM Quote: Originally Posted by dilligaf
Mmmmmm, coz (sic) thats (sic) definately (sic) my motivation. I PM’d pirate to ask
why there wasnt (sic) a linky from the tool of the week
so i (sic) could post what i (sic) wanted.
He then told me to make my own thread.
I wanted to post my point of view on the issue. If i (sic) wanted to kiss pirates (sic)
arse id (sic) pay to be here. I cant (sic) afford that money at the moment, so thats (sic)why i (sic) decide not to kiss his arse. If i (sic) was kissing his ase (sic) i (sic) would be
rather blatant about it by creating a thread “Pirate is my idol. I want to have his babies”
That, is kissing arse. (sic)
This thread is my opinion.
thats good (sic). It’s still a poorly thought-out one that; a) Places no blame on the parties
that have broken the law (jurors) and all the blame on the person performing the duty they are required to (lawyer) and b) Assumes that the sole purpose of the legal system relates to this specific case and the ramifications that any actions may have on the future cases are irrelevant.
The Cunt 18-02-2005 10:02 PM You can’t handle the truth!!!
Jimma 19-02-2005 07:41 PM Quote: Originally Posted by Quirk
Intentional invocation of this so-called “Nazi Clause” is ineffectual.
well (sic) done Movius.
Movius 19-02-2005 08:53 PM Quote: Originally Posted by Jimma
well (sic) done Movius.
I wasn’t invoking it to end the thread. I was using the quote to highlight the stupidity of the
comparison.
Jimma 19-02-2005 09:21 PM It wasn’t hyperbolic as I truly believe that following rules just because they have been made
to maintain somebody’s idea of justice can end up causing a great evil to be done. If I had
said “this woman is like Hitler because Hitler was evil and so is she” then my comparison
would have been in bad taste and irrelevant, but such is not the case as my comparison was to highlight the moral dillema (sic) with certain forms of logic rather than to present someone as an evil person.
26. I will refer to the ‘Tool of the Week’ and ‘Bitching and Rants’ forums hereunder
collectively as the 2005 ZGeek posts.
27. The plaintiff tendered a series of letters that she wrote to both the defendant and, during periods in which the defendant has been legally represented throughout these
proceedings, the defendant’s lawyers. The first of these letters is dated 27 December
2009, which the plaintiff wrote shortly after becoming aware of the 2005 ZGeek posts.
These letters requested the defendant to, inter alia, “take any and all pictures, photos,
screenshots or references etc (however written or produced) to [herself] and [her]
facebook or any facebook avatar that [she] has used from [ZGeek]”, “to immediately
remove from the internet any and all hyperlinks that include [her] name and the name
Zgeek including but not limited to those which link to the Zgeek website.” She also
spoke with the defendant on the telephone. Following the initiation of this correspondence, a number of further ZGeek posts appeared online. The plaintiff tendered a number of these ZGeek posts which she claims defame her (I will refer to these posts collectively hereunder as the 2010 ZGeek posts). I will set out the content of those posts pleaded as defamatory in the Amended Originating Claim and tendered at the hearing:
(a) Exhibits 7 and 35 (pleaded at paragraph (c) of the Amended Originating Claim) are print outs of a thread titled ‘The Myrmidon friends send me another legal threat!’, dated 11 January 2010 which reads:
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 (sic) 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
(sic) would like to help fight this case (the first of it’s (sic) type in Australia) please contact
me.
Also, I have been sitting on some evidence for a while. Click the comments to check it out.
The material provided to me indicates that there are 53 responses to this
thread. Annexed to this judgment and marked with the letter “B” is a copy of
the Exhibit 35. Whilst I will not recite all the responses here, I note that
Schedule “A” to the Statement of Claim makes particular reference to some of
those replies:
(i) at paragraph (ee) a reply by the defendant under the pseudonym ‘Pirate’
dated 11 January 2010 at 7:52 am reads:
I just called the person and tried to have a rational conversation to see if they knew about the 1 year limitation on defamation and if we could sort this out. I got my ear chewed off
and I couldn’t get a word in. Lovely, rational people these are.
(ii) at paragraph (gg) a reply written under the pseudonym ‘~vjay~’ dated 11
January 2010 at 7:27 am:
Total eye rolling moment here.
No one even remembered the original post existed or her name until she chose to throw a instead, she might enjoy it more.
tantrum about it.
(iii) at paragraph (hh) a reply written under the pseudonym ‘banga’ dated 11
January 2010 at 7:41 am reads:
this (sic) person obviously has to (sic) much time on their hands after filling out their dole forms , (sic) must be relaxing to park ur (sic) arse down and think of numerous ways to ruin a hard working mans (sic) life with fabricated information, not to mention the total waste of time and money this debacle has cost T (sic)
(iv) at paragraph (kk) a reply written under the pseudonym ‘RedMaN’ dated
11 January 2010 at 8:09 am reads:
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.
(v) also at paragraph (kk) a reply written under the pseudonym ‘cranky’
dated 11 January 2010 at 8:33 am reads:
there (sic) needs to be some sort of 3 strikes policy with this clueless bullshit. they (sic)
obviously need to have their internets (sic) removed.(vi) at paragraph (ll) a reply written under the pseudonym ‘rickbitch’ dated 11 January 2010 at 12:07 pm, quoting an earlier post of ‘Pirate’, reads:
“Pirate;1550183 wrote: How can you do a cease and desist on defamation? If you mean,
are we going to counter sue for costs? Then yes, that is on the cards.”
You can demand that they cease and desist their frivolous and vexatious legal threats on the basis that they have no case to pursue due to the statute of limitations of defamation. That should have been the reply to the first letter.
The reply to the second letter (this one) should have been a threat, or even a summons, on the basis that you are suing her for harrasement (sic).
The best defence is a good offence.
(vii) at paragraph (qq) a reply written under the pseudonym ‘frednurk’ dated
11 January 2010 at 3:56 pm reads:
There is more than one way to skin a cat.
A lawer (sic) in Australia is answerable to the governing body in each respective State or
Territory of the Commonwealth.
If you want this prick to turn contrite overnight then complaint to his/her overlords.
Professional bodies take an exceptionally dim view of members that bring their profession into disrepute.
Trust me. This works a treat.
(viii) at paragraph (rr) a reply written under the pseudonym ‘durus’ dated 11
January 2010 at 8:15 pm reads:
You know it seems like he thinks he can be the next Paris Hilton by getting lots of negative media coverage and then turning it around to make money from it. Unfortunately for
him/her Paris’s negative media attention was over something that most of us do not find
overly horrifying if kept private. While his choice of act for garnering attention most people will neither understand nor respect. So upcoming fail very soon. Will have to remember to
donate to the fund. I’m looking forward to you suing for costs when this is over.
(ix) at paragraph (ss) a reply written under the pseudonym ‘KrisEz’ dated 11
January 2010 at 7:52 am reads:
HAHAHAH FUCK YOU PIRATE, TO THE STOCKADE WITH YA!
but (sic) in all seriousness this person should do more constructive things with their time,
like write cranky letters to the editor for daily newspapers.(x) at paragraph (tt) a reply written under the pseudonym ‘PsychoNavigator’
dated 11 January 2010 at 9:54 am reads:
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 (sic) GONNA FILL ITSELF!
(xi) at paragraph (uu) a reply written under the pseudonym
‘PsychoNavigator’ dated 11 January 2010 at 7:56 am reads:
Then sue her back! Maybe the internet will divide by zero!
(xii) at paragraph (vv) a reply written under the pseudonym ‘dwarfthrower’
dated 11 January 2010 at 8:20 pm reads:
Just send her a very polite letter saying that if she agrees to enter this year’s boobie comp
you’ll be happy not to proceed with any further legal action.
(xiii) at paragraph (ww) a reply written under the pseudonym ‘Lurgen’ dated
11 January 2010 at 11:59 am reads:
Defamation? Hate speech? Pornography? Death threats? These are but a few of my favourite things!
Pirate, you will die. There, I said it. So I will I though (sic). As will the battery on my laptop.
The battery will go first. Then it’s a race between you and me, but just quietly I’m not trying
very hard so don’t be upset if you win. Will you sue me for stating a biological fact? I hope
not but hey, it’s a crazy world out there.
Pornography? Yes please. More actually, just not on the front page, you know my thoughts
on that
Hate speech? I hate speech. And speakers. Unless they’re really high quality, in which
case they’re good for music.
And defamation? Pirate, you’re not a pirate at all. You’re a wench. A short, steenin’ wench.
With a funny looking site filled with IT desk helpers (like desks need help in the first place, who the fuck do you think you are anyway?). Plus you pooped in my shoe once. You or
Aftaimage, I forget which. Doesn’t matter which, you’re then (sic) one who did it so get
back here and clean it up. And you (sic) upcoming movie will be rubbish, your special
effects will be cheap and shoddy plus your script has had problems since day one.
BTW, I’m broke at the moment so won’t donate this time around but I’m glad you’re still
fighting the good fight (this is where I’m actually serious BTW). If it were me (and thank
fuck it ain’t, because I just threatened you, said stuff about pron and defamed you) I’d be
finding a nice solid opportunity to counter-sue and going beserk. But that takes money, and
I can assure you that if I had it I’d fund the entire battle. Because idiots seem to rule our
world. Morons who have no chance of success through legitimate means, so resort to
stupid legal battles. Dumb. Common as dirt.
(b) Exhibit 26 (pleaded at paragraph (d) of the Amended Originating Claim) contains, according to the plaintiff, relevant parts of the thread titled ‘Update on Myrmidon Enterprises legal harassment of Zgeek’, dated 11 January 2010. This thread contains a pixelated image of the plaintiff’s Facebook profile
picture. The posts reads:
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 (sic).
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 (sic) Nolan. We took the screenshot (pictured) from their facebook profile and
surprise, surprise. Look who’s on it.
This exhibit is annexed to this judgment and marked with the letter “C”.
(c) Exhibit 28 (pleaded at paragraph (f) of the Amended Originating Claim) is titled ‘ZGeek being sued for defamation for the fourth time’, dated 5 November
2010, reads:
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 (sic) it as an example on how I ‘encourage” (sic) you guys to be bad people. So
please don’t.
(Emphasis as per original)
This thread has 20 replies. Annexed to this judgment and marked with the
letter “D” is the exhibit. The plaintiff makes particular reference at paragraph
(zz) of Schedule “A” to the Amended Statement of Claim to a reply written
under the pseudonym ‘Marchpig’ dated 6 November 2012 at 12:08 am which
reads:
and (sic) if I win the lotto this week, we’re gonna bury the bitch in so much litigation she’ll
wish she never heard of JoNo
(d) Exhibit 20 is a thread titled ‘ZGeek’s Legal Page’. It appears that the material was downloaded or printed on 13 July 2013, however it is unclear what date
the thread was initially written. It reads: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.
28. A pixelated screenshot of the plaintiff’s personal Facebook account was published in the post ‘Update on Myrmidon Enterprises legal harassment of Zgeek’, at [28 (a)]
above. These screenshots showed her Facebook friends to include Greg Smith and
Jonathon Nolan, though the plaintiff’s name, profile picture and other Facebook friends
were pixelated. The plaintiff gave evidence that her profile picture depicted green basil and was not a picture of herself. The plaintiff testified that the publication of her Facebook profile picture on the ZGeek website allowed people to identify her, as any of her Facebook friends, or friends of her Facebook friends, would be able to connect the pixelated profile picture with her name. She also noted that over 700 Facebook friends of Mr Nolan would have been able to identify the plaintiff via her profile picture through
his ‘friends list’. I note that the defendant testified, however, that the Facebook pages of
both Mr Nolan and Mr Smith were ‘locked’ such that the public would not have been
able to access their profiles or their ‘friends list’, however, existing friends would still
have had access to their ‘friends list’.29. The plaintiff specifically brought my attention to posts where the defendant referred to
the plaintiff as an “ex-lawyer” or an “ex-solicitor”, such as that titled ‘ZGeek’s Legal Page’, as [28 (d)] above. The plaintiff submits that being called an ex-lawyer is defamatory “because being a lawyer is one of those professions that unless you’re
struck off you’re still a lawyer. It’s not a job like being a policeman or being a – you
know, anything else, a caretaker. It’s an actual profession and unless you’re struck off
by the relevant regulatory body you’re still a lawyer. And I have never been struck off
by any regulatory body, and I am still a lawyer. So I say that people reading that
somebody is an ex-lawyer would think, “That person has been struck off, they’re not a lawyer any more, they’ve been disbarred.”” It was put to the plaintiff in cross
examination that, from a layman’s point of view, when a person leaves a career, it is
common practice to use the prefix ‘ex’. It was put to the plaintiff that the term ‘ex- lawyer’ does not imply that a lawyer has been struck off by a regulatory body. The
plaintiff rejected this assertion.
The commercial nature of ZGeek
30. An extract of information from the Australian Business Register confirms that the defendant is the owner and administrator, for the purpose of registration, of the domain name
31. The plaintiff submitted that ZGeek is a website of a commercial nature and is not
merely the defendant’s hobby. She tendered segments of ZGeek that display
advertisements, specifically an advertisement for the law firm that the defendant had engaged to represent him from time to time in the current and related legal
proceedings. She also tendered evidence of ZGeek’s paid subscription service. The
plaintiff tendered a document setting out the registration details of ZGeek, which
describes the “Nature of business” as “web development and computer sales” and
specifies the “Trading status” as “TRADING from 01/05/2002 to 19/07/2005”.
The defendant’s evidence
The ZGeek posts
32. The defendant submitted the following regarding the 2005 posts involving the plaintiff:
The post that [the plaintiff] refers to in 2005, it starts off with my ignorance and then ignorance of a few others. Because at the time of the 2005 postings papers like the Murdoch Press, News Limited, were coming out with sensationalist news items. Basically,
they weren’t explaining the aspect that she had a responsibility to report the jurors. So, in
this thread, we’ve started off with myself and this guy ranting because we don’t know
better. We then have about four or five people come in and defend Ms Piscioneri.
...
...if you read the thread in context, Ms Piscioneri is vindicated for what she did. And the people, myself and the other guy, were pulled up on it and basically told we were wrong.
So I just don’t understand how it’s defamatory in that respect, because a rational person
would see it for what it is.
33. The defendant submitted that a person of reasonable mind looking at the threads on ZGeek would find the plaintiff had been vindicated given the number of posts that support her actions and rebut the assertions made by himself and other members condemning the plaintiff. It was put to the defendant in cross examination, and he had to accept the proposition, that there is no evidence to demonstrate that every person who viewed the post would have read the thread in its entirety, and indeed may not have read any material that vindicates the plaintiff. The defendant also accepted in cross examination that, between the years 2005 and 2009, the 2005 ZGeek posts had been viewed 360 times.
34. The defendant went on to testify that the material on ZGeek was “based on the truth of
the media coverage at the time and fair comment”. He also highlighted that the bottom
of all webpages on ZGeek have a disclaimer saying that the material on the site are the
opinions of the poster, and that none of the material is presented as fact.35. In relation to the “ex-lawyer” posts, the defendant submitted that, from a layman’s perspective, the term ‘ex-lawyer’ implies only that a person is no longer practising as a
lawyer, not that the lawyer has been ‘struck-off’ by a regulatory body.
36. The defendant initially testified that ZGeek was unmoderated and any person from the general public would be able to post material on the site, which would instantly appear without first being screened or edited by the defendant. The defendant then said that he does have the ability to remove material from the site, and that ZGeek has software that allows him to automatically censor any material on the site. After the plaintiff requested that the material identifying her be removed from ZGeek, the defendant took
steps to ensure that no publications from 2010 onwards included the plaintiff’s name on
the site. He also took steps to request that Google remove any links that connected to material on ZGeek concerning the plaintiff. In cross examination, the plaintiff asked the defendant how it was possible that, in these circumstances, two men, Eric Allbutt (who
used the pseudonym ‘That-Bloke’ on ZGeek) and another user (who used the pseudonym ‘~vjay~’), were able to identify the plaintiff from the moderated ZGeek
posts. The defendant explained that those men were moderators of ZGeek who needed to know who the plaintiff was for the purposes of ensuring that her name was not mentioned on ZGeek.
The effect on the plaintiff
37. The defendant testified that the plaintiff had failed to provide any evidence or proof that the posts on ZGeek caused her to suffer. He further submitted that the plaintiff has been subject to a public reprimand from a Law Society for bringing the administration of justice into disrepute and unsatisfactory professional conduct. The reprimand was available online for the general public, including prospective employers, to view. The defendant submitted that, if the plaintiff had suffered damage to her reputation or her business reputation, this was more likely a result of the public reprimand rather than the ZGeek posts.
The commercial nature of ZGeek
38. The defendant reiterated in his evidence in chief that ZGeek is “a silly site”, “extremely
irreverent” and “not meant to be taken seriously at all”. He submitted that the site has
“never tried to be a source of truth” and is intended to be an online community for
people to organise games, get-togethers and other social activities. He submitted that, whilst the site was initially set up as a commercial venture and was registered for an Australian Business Number (ABN), that is no longer the nature of the site and the ABN has since expired. ZGeek is now an incorporated association.
39. The defendant further submitted that ZGeek does not get a significant amount of traffic, with approximately 1,000 active users. It was put to the defendant in cross examination that ZGeek has over 23,000 users. The defendant explained that this number had been
“bumped up”:
Yes, there’s not much of it bumped up, because basically any person can come, even bots.
Basically spanners (sic) will come to the site and register an account, but usually we delete them off, but I decided to leave them so it would basically look like we had a huge community.
40. It was put to the defendant in cross examination that ZGeek hosted advertisements. In cross examination the defendant accepted that, whilst ZGeek hosted a link to his
lawyers’ website, this was not a paid advertisement; rather, it was in gratitude for legal
services provided to the defendant. The defendant also accepted that ZGeek used AdSense, an advertising program run by Google by which sites are able to generate income by hosting banner ads. The defendant testified that ZGeek had earned a small amount of money, at most $306.00 in one day, however, he never actually received
this money as ZGeek was banned from AdSense in July 2010 for being “too rude basically and immature”. The defendant testified that he tried to earn an income
through the website from time to time to cover the hosting fees associated with running
a website, but “wasn’t looking to make a huge amount of money”. The defendant also
testified in cross examination that any income generated through the site from subscriptions or donations went to site costs such as running competitions, buying prizes, organising events and funding these legal proceedings. The defendant testified that ZGeek no longer offers paid subscriptions.
The 2005 ZGeek posts: Relevant law and consideration
41. As the nature of the 2005 ZGeek posts differs substantially from the nature of the 2010 ZGeek posts, I will consider them separately.
42. Since 1 January 2006, defamation in all States and Territories has been governed by the national uniform defamation laws. In the ACT the uniform defamation laws are encapsulated in chapter 9 of the Civil Law (Wrongs) Act. Common law principles of defamation are largely retained except to the extent that the Act provides otherwise, pursuant to s 118:
Tort of defamation
(1) This chapter relates to the tort of defamation at general law. (2)
This chapter does not affect the operation of the general law in relation to the tort of defamation except to the extent that this act provides otherwise (whether expressly or by necessary implication).
(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if this chapter as in force immediately before the commencement of this section had ever been enacted.
43. As the uniform defamation laws came into effect on 1 January 2006, this legislation covers any ZGeek posts published after 1 January 2006. The Act therefore covers the 2010 ZGeek posts, but not the 2005 ZGeek posts, as they were published prior to 1 January 2006. The 2005 ZGeek posts are primarily governed by the common law.
44. The common law provides that, in order to make out a cause of action in defamation, the plaintiff needs to establish three elements. These are publication, identification and defamatory meaning. I will consider each of these elements in turn. As a preliminary issue, I will consider whether the defendant, as the owner and operator of ZGeek, is capable of being held vicariously liable for the forum posts of others.
Liability
45. Although the defendant has not specifically raised this argument, I think it is necessary for me to determine whether the defendant can be held liable for the matter published on Zgeek, given that much of the material complained of is written by people other than the defendant. Internet content hosts can, in some circumstances, be vicariously liable for matter published by others, by virtue of the failure to remove from public display defamatory material published by the third party. In order to be vicariously liable, the host must have failed to remove the material after being notified of its existence, and the host must be a publisher, as opposed to a mere passive facilitator of the material: see Godfrey v Demon Internet [2001] QB 201; Bunt v Tilley [2006] 3 All ER 336. In this case, I note that the defendant personally authored some of the ZGeek posts, indeed he initiated the discussion regarding the plaintiff in 2005, and was the owner and administrator of the site ZGeek at all relevant times during which other users posted relevant material on the website. The defendant gave evidence that, as the administrator and owner of ZGeek, he had the ability to moderate and remove any content that was posted on ZGeek.
46. I am satisfied that the defendant cannot be said to be a mere passive facilitator of the
ZGeek posts, as his own post titled ‘Tool of the Week’ initiated the discussion of the
plaintiff, he actively engaged in the ongoing discussion and he had the ability to remove the posts from ZGeek at any time. Whilst the defendant has not specifically argued this point and has implicitly accepted liability, I make it clear that I am satisfied that the defendant is directly liable for those posts he authored, and vicariously liable for the posts of other users, if I find them to be defamatory.
Publication
47. The term ‘publication’ is not defined in the Act and, as such, the common law definition
applies. It is well settled at common law that, in the context of defamation, publication is the communication of defamatory matter of and concerning the plaintiff to some person other than the plaintiff. Publication need only be to one person and may occur by
almost any method of communication. Section 116 of the Act defines ‘matter’ to
include:
a program, report, advertisement or other thing communicated by means of television,
radio, the internet or any other form of electronic communication.It is clear that the ZGeek posts fall within the meaning of the term ‘matter’ and were published within the common law meaning of the term ‘publication’.
48. The place of publication with regards to material published on the internet is the place where the material is downloaded on to the computer of a person who has used a web browser to pull the material from the web server, as this is where the damage to reputation may be done: see Dow Jones & Co v Gutnick (2002) 210 CLR 575. In this case, it is not contested that the ZGeek posts were downloaded in the ACT. The ACT is therefore an appropriate jurisdiction in which to bring this claim.
49. The original publisher may, in certain circumstances, be liable for republication of the original defamatory matter by a third party: see Speight v Gosnay (1891) 60 LJQB 231. This will be the case where the republication adheres to the sense and substance of the original publication and:
(a) the original publisher expressly or impliedly requested or authorised the repetition of the original publication; (b) the original publisher intended that the repetition should take place; (c) the repetition is the natural or probable consequence of the original publication; or (d) there is a duty or obligation on the recipient of the original publication to repeat the original publication. 50. However, where the republication is the voluntary and unauthorised act of a free agent, the original publisher will not be liable as such republication may not be the natural and probable consequence of the original publication.
51. The plaintiff has submitted that ZGeek posts were republished on a second website
called ‘Wayback Machine’. Annexure A depicts a screenshot of the ZGeek website which displays the initial ‘Tool of the Week’ post which is hosted on the second website
“Wayback Machine” at I understand that this is an archival site that saves copies of screenshots from various websites at different points in time. I am satisfied that this constitutes republication, as archival of online material is the natural and probably consequence of posting material online.
Identification
52. The identification of the plaintiff is not in issue in relation to the 2005 posts, as she is clearly identified by name and other identifying material.
Defamatory meaning
53. Common law principles determine what is defamatory in relation to both the 2005 ZGeek posts and the 2010 ZGeek posts. A publication is defamatory of a person if it tends, in the minds of ordinary and reasonable people, to injure his or her reputation either by:
(a)
causing them to think less of the plaintiff in the sense that it disparages him or her, conveying something to his or her discredit;
(b) causing others to shun or avoid him or her; or (c) subjecting him or her to hatred, ridicule or contempt. 54. In this case the plaintiff submits that, by reason of the publication of the ZGeek posts, the plaintiff:
(a) Has been brought into hatred, ridicule and contempt.
(b) Has been gravely disparaged and injured in her reputation, including her business and professional reputation and will continue to suffer loss and damage including damage to her business and professional reputation. 55. The plaintiff claims that the ZGeek posts, in their natural and ordinary meaning, conveyed a large number of defamatory imputations. The natural and ordinary meaning of a publication is that meaning which the publication would convey to the ordinary reasonable person: see Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [5], [8] and [23]. This goes beyond the literal meaning and includes what the ordinary reasonable person reads between the lines: see John Fairfax Publications Pty Ltd v Rickin (2003) 201 ALR 77 at [24]. The defendant denies that any of the ZGeek posts, in their natural and ordinary meanings, are capable or bearing, or in fact bear, any defamatory imputations pertaining to the plaintiff. I agree with the defendant to some extent on this point. For example, the plaintiff pleads at paragraph 6 (n) of her Amended Statement of Claim that the ZGeek posts convey an imputation that the
plaintiff “was like Hitler and was violent.” In my opinion, the material clearly does not
convey this imputation and I am satisfied that no reasonable, ordinary reader of the ZGeek posts would understand this to have been implied. On the other hand, I am satisfied that the ZGeek posts do convey other imputations pleaded by the plaintiff, including that pleaded at paragraph 6 (a), which reads:
The plaintiff was a person who made moral judgments. The plaintiff was a person who did not adhere to the code of behaviour that is considered socially right or acceptable. The plaintiff was a person who was not concerned with the principles of right and wrong behaviour.
56. I note that, under the common law, I am not bound to determine the case by reference to the imputations pleaded by the plaintiff, and it is up to me, as the tribunal of fact, to determine the actual meanings of the words and the actual defamatory imputations of the ZGeek posts: see Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1021. This more flexible approach was adopted by the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, where Kirby J said at 579-80:
In jurisdictions where this matter is not regulated by statute, courts have commonly exercised a measure of discretion and flexibility where the essence of the sting of the defamation complained of at the end of the trial does not exactly, or entirely, coincide with the imputations pleaded. In part, this approach reflects the modern attitude to pleading of civil causes by which overly pedantic or rigidly technical rules tend to be avoided where they would inhibit the attainment of justice. In part, it arises from the recognition by courts of the way in which pleading is commonly done. In part, it arises from a recognition of the ample power of the trial judge to protect the defendant from injustice by ordering further particulars before the trial or by adjourning or terminating the hearing if that course is needed to prevent surprise or injustice. In part, the judicial approach arises from the entitlement of the tribunal of fact always to examine the entire publication to see the matter complained of in its context. An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run the risk that the alleged wrong was forgotten or overlooked. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers.
57. As such, I do not see any need to recite exhaustively the list of imputations pleaded by
the defendant. It is suffice to note that the plaintiff’s pleadings were sufficiently clear so
as to allow the defendant to know the ambit of the case against him for the purposes of pleading his defence. In determining what imputations are capable of being conveyed by the ZGeek posts, I am guided by the NSW Supreme Court, where Nicholas J said in Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763, at [10]:
The principles applicable to the correct approach of the court on the question of capacity are well known. A court must keep in mind that a reasonable person can and does read between the lines in light of his general knowledge and experience of worldly affairs, and will draw implications much more freely than a lawyer, especially when they are derogatory. Each alleged imputation is to be considered in the context of the entire article. One must try to envisage people between those who are unusually suspicious and those who are unusually naive and see what is the most damaging meaning they would put on the words in question. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it (see e.g. Lewis v Daily Telegraph Ltd [1964] AC 234, pp 258, 259, 277, 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, para 17).
I note that, whilst the above principles were elucidated in the context of an application to strike out imputations pleaded by a plaintiff, I am satisfied that they nonetheless apply to my task in this case as the tribunal of fact (noting that in NSW, the tribunal of fact in defamation cases is a jury).
58. It was argued by the defendant that, when the discussion is read in its entirety, the 2005 ZGeek posts cannot be said to be defamatory as, whilst some posters clearly
disagreed with the plaintiff’s actions, a number of other posters “redeemed” the plaintiff by explaining the plaintiff’s duty as a solicitor to report the juror. In determining whether
a publication is defamatory, it is the broad impression conveyed by the publication as a whole which must be considered: see Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632. Any qualifying material appearing in the same publication cannot be disregarded, as the bane inherent in one part may be completely cured by the antidote provided by the context of the whole. In Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21, Higgins J said at 30:
The real question is whether those allegations are so apparently and expressly refuted in the matter complained of, that, as read and understood by an ordinary reader, they would convey no inference defamatory of the plaintiff... It would be enough if the reader, of the
these publications and was able to identify that the publications pertained to the plaintiff. Whilst the plaintiff need only establish that one person was able to identify her
in order to complete a cause of action in defamation, the plaintiff’s damages will be
limited to publication to those readers who, possessing particular knowledge of the plaintiff, were able to identify the plaintiff: see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348.
82. I briefly note that the defendant gave evidence at the hearing that he had made the identity of the plaintiff known to two moderators of ZGeek, namely the users posing
under the pseudonyms ‘That-Bloke’ and ‘~vjay~’. The defendant testified that he needed to reveal the plaintiff’s identity to these people so that they could ensure that the plaintiff’s name did not appear on the website and was promptly redacted from any
posts that published her name. The plaintiff attempted to rebut the defendant’s
assertion that these two users were moderators by tendering an excerpt of a transcript of Magistrates Court proceedings dated 6 April 2010. These proceedings involved the same plaintiff and defendant. It relevantly states:
You encouraged people to make posts about me?---You weren’t identified. I took pains not
to identify you.
Well, if I wasn’t identified how come a person has written here “If you Google this person’s
name you see that they brought the administration of justice into disrepute”. How would
that person know?---Some people are smart.
Some people are smart?---Yes.
The plaintiff submitted that this was evidence of a prior inconsistent statement that should cast doubt on whether those users were actually moderators. I reject this argument. It is clear from the Magistrates Court transcript that the defendant was not provided with the name of the user who posted the comment quoted by the plaintiff, nor any other context surrounding the post. It was not put to the defendant that he had not appointed moderators of the website, or that the person who posted that comment was
not a moderator. I see no reason to doubt the defendant’s evidence that the users ‘That-Bloke’ and ‘~vjay~’ were appointed as moderators of ZGeek. The assertion that
the defendant had appointed moderators is consistent with the fact that, at the time of the 2010 ZGeek posts, the defendant was in the midst of defamation proceedings and
would have been aware of his potential liability if the plaintiff’s name was not redacted
from posts. In these circumstances, it seems to me unreasonable to penalise the defendant simply for taking steps to ensure that the plaintiff could not be identified by the wider public.
83. In summary, I am satisfied on the balance of probabilities that the plaintiff was capable
of being identified to Marek Reardon in the forums titled ‘Latest desperate attempt to silence ZGeek’ and ‘The Myrmidon friends send me another legal threat!’. Beyond this,
whilst I accept that the plaintiff was identifiable in the 2010 ZGeek posts to the two moderators, I am not satisfied that the plaintiff has discharged her onus to prove that she was otherwise identified in this material.
Defamatory meaning
84. Given that I am satisfied that a person was able to identify the plaintiff from the posts
‘Latest desperate attempt to silence ZGeek’ and ‘The Myrmidon friends send me
another legal threat!’, I am now required to consider whether those forums bear a
defamatory meaning.
‘Latest desperate attempt to silence ZGeek’
85. The plaintiff specifically claims that the use of the term “ex-lawyer” in the forum ‘Latest desperate attempt to silence ZGeek’ is defamatory. 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.86. Unfortunately, the copy of this forum that was tendered into evidence does not show part of the material in the forum, presumably due to a problem with a photocopier or printer. I accept, however, that one post included in this forum is capable of conveying a defamatory imputation about the plaintiff:
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]...
This post conveys imputations that the plaintiff is a “retard” and a “misfit” and thus is
disparaging of the plaintiff. I am satisfied that this defames the plaintiff.
87. The balance of this forum primarily deals with content of, and the process of serving, apprehended violence orders. This material is not defamatory.
‘The Myrmidon friends send me another legal threat!’
88. I am satisfied that this forum contains material that is defamatory of the plaintiff. I note the following posts in particular:
~vjay~ 11-01-2010 07:27 AM Total eye rolling moment here.
...
I guess she likes the attention... I suggest she runs around topless in Parliament House for it instead, she might enjoy it more.
banga 11-01-2010 07:41 AM
this (sic) person obviously has to (sic) much time on their hands after filling out their dole forms , (sic) must be relaxing to park ur arse down and think of numerous ways to ruin a hard working mans (sic) life with fabricated information, not to mention the total waste of time and money this debacle has cost T (sic)
RedMaN 11-01-2010 08:09 AM 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.
PsychoNavigator 11-01-2010 09:54 AM 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!
LisaJ 11-01-2010 10:32 AM I can’t believe that they wait 5 years to say something!! and (sic) 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...89. The above material conveys imputations that the plaintiff is “stupid”, “retarded” and
attention-seeking. I am satisfied that these imputations are disparaging of the plaintiff
and therefore convey a defamatory meaning.
Conclusion
90. I am satisfied that aspects of the 2010 ZGeek posts convey a defamatory meaning. I am further satisfied that one person was able to identify the plaintiff in those posts. Thus, whilst a cause of action in defamation is made out, any award of damages will be limited by the fact that only one person was able to identify the plaintiff.
Defences raised by the defendant
91. I note that, although the Act provides an imposition of a limitation period for civil actions for defamation of one year following publication, the defendant has not pleaded this in his defence and, as such, I will not consider the limitation period in these reasons. The Amended Defence was not drafted by the defendant personally, but by a nominated legal practitioner and settled by counsel. The ordinary effect of a statutory bar is not to extinguish the right on which the plaintiff relies, but to bar the remedy. Failure to plead the statutory bar constitutes a waiver of reliance on the statute: see Piscioneri v
Reardon [2015] ACTSC 61 at [53] – [56] and the cases there quoted.
92. The defendant raises three defences, namely the defence of qualified privilege, the defence of honest opinion and the defence of triviality. I will deal with each of these defences in turn.
The defence of qualified privilege
93. The defendant pleads that the defence of qualified privilege applies, as the defendant
“had a duty both social and moral, to publish the matter complained of by reason of its
public importance, and the readers either in fact or have or were believed to have a
reciprocal interest in receiving such a communication.”
94. The defence of qualified privilege is governed by s 139A the Act:
Defence of qualified privilege for provision of certain information
(1) 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.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes, on reasonable grounds, that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the
circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and (c) the seriousness of any defamatory imputations carried by the matter published; and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and (e) whether it was in the public interest in the circumstances for the matter published to be published expediously; and (f) the nature of the business environment in which the defendant operates; and (g) the sources of the information in the matter published and the integrity of those sources; and (h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by
the defendant to obtain and publish a response from the person; and(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
95. I note that this section came into effect in 2006 and, as such, does not apply to the 2005 ZGeek posts. 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.
96. The common law defence of qualified privilege governs the 2005 ZGeek posts. The common law relevantly provides that a defence of qualified privilege is available where the publication is made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive it. In Megna v Marshall [2010] NSWSC 686, Simpson J said at [50]:
I have come to the conclusion that the determination of a defence of qualified privilege at common law involves three strands of inquiry:
identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to the subject matter;
determination whether the content of the communication was relevant, germane, or
sufficiently connected to that occasion or subject matter; (only if both occasion and relevance are established), determination whether, notwithstanding that there is a qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice...
97. I am not satisfied that an occasion of qualified privilege existed in relation to the publication of the 2005 ZGeek posts. Whilst the subject matter, being the Skaf trials, was a matter of public interest, the defendant was not under a social or moral duty to publish the matter, nor did the recipients of the forum have a reciprocal interest in receiving the information contained in the post. In coming to this conclusion, I take into account the fact that the publication itself was not in the public interest: see Bennette v Cohen at [207]. I note that it is clear that the substance of the publications were obviously poorly researched, as the defendant did not appear to take any reasonable steps to verify the information in the matter published, nor approach the plaintiff for her
‘side of the story’ prior to publication. Even 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. The
defendant cannot be said to be under any moral or social duty to publish such ill- informed views, as it clearly goes against the public interest for such material to be disseminated.
98. For these reasons, I am not satisfied that the publication of the 2005 ZGeek posts is justified by the defence of qualified privilege at common law.
The defence of honest opinion
99. The defendant pleads that the ZGeek posts amounted to expressions of honest opinion within the meaning of the Act and the defence of fair comment under the common law. In cross examination the defendant gave the following testimony:
It’s – so in reference to my defence on the 2005 posts, I do say it was based on the truth of
the media coverage at the time and fair comment. I did say in the thread as well “this is my
opinion”. On the bottom of all pages on the site it has a disclaimer saying that the posts on
this site are opinions of the poster, not of ZGeek. The word “opinion” is used a lot on our
site. We’re not showing anything as fact. Yes. So I’m not sure how that would affect.100. The defence of honest opinion appears in s 139B of the Act:
Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that –
(a)
the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)
the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that—
(a)
the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was
published; or
(b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at
the time the defamatory matter was published; or(c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by
the commentator at the time the defamatory matter was published.
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or (c) was published on an occasion that attracted the protection of— (i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii) the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.
101. Again, I note that the Act applies only to the 2010 ZGeek posts. For the reasons given in relation to the defence of qualified privilege above, I am not satisfied that the material in the 2010 ZGeek posts related to a matter of public interest, and accordingly the defence of honest opinion cannot apply pursuant to s 139B (1) (b).
102. I turn to the common law in relation to the 2005 ZGeek posts. The common law defence of fair comment is applicable when the following elements are made out:
(a) the publication is a comment as opposed to a statement of fact; (b) the comment is based upon facts truly stated, or sufficiently identified; (c) the comment relates to a matter of public interest; and (d) the comment is fair in the sense that it is the honest expression of the commentator’s real view: see LexisNexis, Halsbury’s Laws of Australia, (at 23
March 2015) 145 Defamation, ‘5 Honest Opinion and Fair Comment’ [145-
1950].
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.
104. The defence of honest opinion cannot apply.
The defence of triviality
105. Finally, the defendant has pleaded that the ZGeek posts were trivial. The defence of triviality is found in s 139D of the Act:
Defence of triviality
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.
106. Again, I note that this statutory defence only applies to the 2010 ZGeek posts. 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.
107. I have already discussed the issue of the common law principle of mere abuse in relation to the 2005 ZGeek posts. 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.
Conclusion
108. In summary, I accept that the ‘Tool of the Week’ forum and at least the first post of the ‘Bitching and Rants’ forum, as it appeared after the first post was published and before
the ‘vindicating’ responses were published, defame the plaintiff. I also accept that the
forums titled ‘Latest desperate attempt to silence ZGeek’ and ‘The Myrmidon Friends send me another legal threat!’ defame the plaintiff, if only to one person. I am not
satisfied that any defences pleaded by the defendant apply.
Damages
109. It is now left for me to determine an appropriate amount of compensation to award to the plaintiff for any damage suffered as a result of this defamation. I note that damage may be inferred without proof of actual loss or injury to the plaintiff. However, s 139E of the Act dictates that, in determining the amount of damages that should be awarded to the plaintiff, I must ensure that the damages bear an appropriate and rational relationship to the harm sustained by the plaintiff. This approach was also articulated in s 136 of the Act as it stood in February 2005 prior to the adoption of the national uniform defamation laws.
110. The common law provides that general damages are to be assessed based on what is
necessary to compensate for injury to the plaintiff’s reputation, as a remedy for hurt
feelings and to vindicate the plaintiff for having been publically defamed.
The plaintiff’s hurt feelings
111. The plaintiff testified that she conducted a series of Google searches after becoming aware of the material on ZGeek. She submitted that all of those searches produced
links to ZGeek, specifically the ‘Tool of the Week’ thread, until those links disappeared in October 2010. She testified she was “quite horrified” when she discovered the links,
as “it linked [her] name with these horrible, vulgar words, and... it suggested that [she]
was somehow associated with... what the word said.” The plaintiff further submitted
that she has been reluctant to give people her name. She submitted that she has an uncommon name and because of this, people would more easily be able to locate material relating to her online. She also noted that her legal practice was run under her own name. As a result the plaintiff felt that she has affected particularly harshly by the
defendant’s conduct.
112. The plaintiff further testified that the fact that the defendant continued to publish material relating to her in 2010 also caused her significant stress. The plaintiff described the effect these posts had on her:
Once again I was shocked. I had chest pains because I realised that he wasn’t going to stop, even though I’d sent him the letters of concern, so it heightened my fears of, you
know, what was going on and who he was. He was a person I had never met or heard of
before, and I’d read this stuff about these other people who had sued him and, yes, really
just worried me that I was his target and I didn’t know why I was his target.
113. Section 139G of the Act provides that, in awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of
publication or at any other time except to the extent that the defendant’s malice or other
state of mind affects the harm sustained by the plaintiff. I am satisfied that the
defendant’s intention in the 2010 ZGeek posts was to dissuade the plaintiff from
pursuing legal action. The plaintiff testified that she “felt it was harassing, just a
continuation of harassment to dissuade me from continuing with legal action against
[the defendant]”, and that “the tenor of these posts was an attempt to dissuade me from
taking legal action”.
114. The plaintiff further submitted that the posts prevented her from engaging in activities she enjoyed. For example, the plaintiff had recently started using Facebook and was enjoying connecting with members of her family outside of Canberra prior to discovering the ZGeek posts. The plaintiff stated that she ceased using Facebook because she could not be assured that the people she interacted with on that site were who they said they were, given the ease of setting up false accounts. She testified that she felt fearful for her family.
115. It is clear that the publication of the ZGeek posts had a detrimental impact on the
plaintiff’s wellbeing.
Damage to reputation
116. The plaintiff testified that she “gave up her practising certificate” at the end of 2007.
She explained that she had decided to do this for a number of reasons, citing a car accident she was involved in in March 2006 and financial problems that had flowed from that, as well as being the subject of a reprimand from the Law Society. The plaintiff further testified that she has made a number of unsuccessful attempts to seek employment since giving up her practising certificate. She tendered a number of these applications at the hearing, but was unable to provide any direct evidence that she was unsuccessful in finding employment after 2007 as a result of the posts on ZGeek. In
relation to any detrimental impact the posts had on her practice ‘G J Piscioneri and Co’, the plaintiff simply testified that “the phone stopped ringing as much as it used to”. It
was put to the plaintiff in cross-examination that her employment prospects would not have been damaged by the material on ZGeek so much as the online link to the reprimand from the Law Society, as this would have been a more reliable source of information. The plaintiff did not accept this proposition.
117. I am not satisfied that the material would have had a detrimental effect on the plaintiff’s
professional reputation within the legal community. Whilst the content of the ZGeek posts was certainly vulgar and offensive, if a legal professional were to read it, they would come away knowing that the plaintiff had simply complied with her duties as a
legal professional. For this reason, I reject the plaintiff’s assertion that the ZGeek posts
had a detrimental effect on her search for employment within the legal field. However, I accept that potential employers outside of the legal profession may have been influenced by the ZGeek posts in their decision not to hire her, however it is difficult to say to what degree this might have been the case.
118. The extent to which the defamatory material was circulated is also relevant to the
extent to which the plaintiff’s reputation was damaged by the publications. During cross
examination, the defendant testified that ZGeek.com currently has about 1,000 active members, however conceded that, in previous Magistrates Court proceedings, he had given evidence that the website had over 20,000 members. The evidence before me
suggests that the ‘Tool of the Week’ thread accumulated approximately 360 views
between the time the first post was published in 2005 and the time the thread was
removed from ZGeek in 2009. The ‘Bitching and Rants’ forum accumulated
approximately 554 views during the same time period, however I assume that the
number of people who viewed the first comment by ‘diligaf’ in isolation of the other
posts would be a significantly smaller number. As I have already stated, I am only
satisfied that one person was able to identify the plaintiff in the 2010 ZGeek posts.
Vindication
119. The gravity of the defamation, the social standing of the plaintiff and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the plaintiff: see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ.
120. 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. It is not necessary for the plaintiff to prove good reputation as it is assumed in her favour: see Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 482, 483 per Hunt J,
however I note that there is nothing to suggest that the plaintiff’s social standing was
anything other than exemplary at the time the 2005 ZGeek posts were initially published. Evidence that the plaintiff was subject to a public reprimand by the Law Society in 2007, however, indicates that her professional reputation was somewhat diminished.
Aggravated damages
121. 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 $10,000.00 is appropriate.
Mitigation of damages
122. I take into account the steps the defendant took to mitigate damages, as outlined in his Amended Defence:
(a) 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; (b) 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;
(c) 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(d)
contacting Google Inc. to remove its index references to the posts concerning the plaintiff.
Conclusion
123. Taking the above into account, it is appropriate to award the plaintiff $82,000.00 in damages inclusive of aggravated damages and interest.
Decision
124. I am satisfied that the defendant defamed the plaintiff through the publication of the ZGeek posts.
125. Judgment is entered in favour of the plaintiff. The defendant is ordered to pay the plaintiff the sum of $82,000.00 in damages.
126. I will hear the parties on the question of costs.
I certify that the preceding one hundred and twenty- six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
Associate:
Date: 6 May 2015
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.
Annexure A
Annexure B
Annexure C
Annexure D
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