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Piscioneri v Reardon

Piscioneri v Reardon

Case [2015] ACTSC 61 28 October 2014

Civil Litigation & Procedure

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Gabriella Jean Piscioneri v Marek Janusz Michael Reardon
Citation:	[2015] ACTSC 61
Hearing Date(s):	28 October 2014
DecisionDate:	28 October 2014
Publication of Reasons Date	14 April 2015
Before:	Refshauge J
Decision:	1. The application is dismissed. 2. The Applicant pay the costs of the application, except for the costs of the preparing and filing of the submissions of the Defendant dated 20 October 2014. 3. Liberty be reserved to the Defendant to apply for the Plaintiff to pay the costs of the submission referred to in Order 2 when any defence pleaded in the proceedings that the applicable limitation period has expired is determined, as the proceedings themselves are determined or otherwise brought to an end. 4. The Applicant be permitted to use a Post Office box as an address for service.
Category:	Principal Judgment
Catchwords:	DEFAMATION – Time for commencement of proceedings – No requirement for leave before filing originating process LIMITATION PERIOD – Fraud and Concealment – Concealing identity – Online username LIMITATION PERIOD – Application seeking extension of time – Statutory bar does not affect the jurisdiction of the court – Expiry of limitation period defence must be specifically pleaded
Legislation Cited:	Legislation Act 2001 (ACT), s 126(1) Limitation Act 1985 (ACT), ss 21B, 33, 41, 44 Limitation Act 1980 (UK), ss 32, 36, 37, 38, 39, 40 Road Transport (Third-Party Insurance) Act 2008 (ACT), s 145(2) Court Procedures Rules 2006 (ACT), r 650
Cases Cited:	Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Cave v Robinson Jarvis & Rolf [2003] 1 AC 384 Commonwealth v Cornwell (2007) 229 CLR 519 Commonwealth v Verwayen (1990) 170 CLR 394 James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347 L & A Services Pty Ltd v J & R [1995] 2 Qd R 10 Milojevic v Roh Industries Pty Ltd (1991) 56 SASR 78 Paramasivam v Flynn (1998) 90 FCR 489 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 Racic v Haltinen [2010] ACTSC 63 Re a Former Officer of Australian Security Intelligence Organisation [1987] VR 875 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Riches v Director of Public Prosecutions [1973] 1 WLR 1019 Robinson v Craven (1994) 63 SASR 267 Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 Singh v Rodden [2013] ACTSC 272 Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420
Parties:	Gabriella Jean Piscioneri (Plaintiff) Marek Janusz Michael Reardon (Defendant)
Representation:	Counsel Gabriella Jean Piscioneri Self-represented (Plaintiff) Mr S Malcolmson (Defendant)
Solicitors Self-represented (Plaintiff) Reardon & Associates Lawyers (Defendant)
File Number(s):	SC 395 of 2014

Refshauge J:

The Plaintiff, Gabriella Jean Piscioneri, is a lawyer, who does not appear to be in current practice. She appears to have ceased practice in 2007.

On 8 September 2014, she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Piscioneri v Reardon

Details

AGLC: Piscioneri v Reardon [2015] ACTSC 61
Case: [2015] ACTSC 61
Decision Date: 28 October 2014

CaseChat Overview and Summary

The parties involved in the case of Piscioneri v Reardon were the Plaintiff, Piscioneri, and the Defendant, Reardon. The dispute centred around defamation claims arising from statements Reardon allegedly made online under a pseudonym. The court hearing this case was the Supreme Court of Victoria. The legal issues before the court included the time frame within which defamation proceedings could be initiated, the implications of fraud and concealment on the limitation period, and the procedural requirements for seeking an extension of time to file such claims. Additionally, the court had to determine whether the expiry of the limitation period must be specifically pleaded as a defence.

The court examined the statutory requirement that defamation proceedings be initiated within a certain time frame, noting that no leave is necessary before filing the originating process. The court also assessed the impact of fraud and concealment on the limitation period, specifically Reardon's concealment of their identity through the use of an online username. The court determined that while the statutory bar does not affect the court's jurisdiction, the defence of the expiry of the limitation period must be specifically pleaded. The court found that the Plaintiff's application for an extension of time to file the proceedings was dismissed, as the necessary conditions for such an extension were not met.

The court ordered that the application be dismissed and that the Applicant pay the costs of the application, except for specific costs related to the Defendant's submissions. Additionally, the court reserved the right for the Defendant to seek costs related to the submissions at a later stage in the proceedings. The Applicant was also granted permission to use a Post Office box as their address for service. The court's decision underscored the importance of timely and specific pleadings in defamation cases, particularly in relation to limitation periods and fraud.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant pay the costs of the application, except for the costs of the preparing and filing of the submissions of the Defendant dated 20 October 2014.

3. Liberty be reserved to the Defendant to apply for the Plaintiff to pay the costs of the submission referred to in Order 2 when any defence pleaded in the proceedings that the applicable limitation period has expired is determined, as the proceedings themselves are determined or otherwise brought to an end.

4. The Applicant be permitted to use a Post Office box as an address for service.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Piscioneri v Reardon [2015] ACTSC 61

Most Recent Citation

Piscioneri v Brisciani [2015] ACTSC 106

Cases citing this decision · 12 of 13 shown

Williams v Australian Capital Territory
[2023] ACTSC 18 Para 1

…ould be raised (before or after a defence has been filed) is the same. Riches was cited with apparent approval by Refshauge J in Piscioneri v Reardon [2015] ACTSC 61 at [63]. His Honour went on (at [64]) to cite the following extract from the judgment of Stephenson LJ, with whom Sir Sebag Shaw agreed, in Ronex Pro…
Castafiore v Uniting Church in Australia Property Trust (NSW)
[2018] NSWDC 83 Para 16

…there may have been some delay by the defendants in providing the information, unless that delay amounts to actual fraud (see Piscioneri v Reardon [2015] ACTSC 61), that is of no assistance to the plaintiff seeking an extension of time.…
Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital
[2018] ACTSC 53 Para 1

…tion; they merely bar the remedy: see Commonwealth of Australia v Mewett (1997) 191 CLR 471; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 ( Piscioneri ) at [54] and the cases there-cited.…
Gabriella Piscioneri v Malcolmson
[2017] ACTSC 278 Para 1

…risciani v Piscioneri [2016] ACTCA 32 at [12]; Piscioneri v Reardon [2016] ACTCA 33 at [46]; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 at [54] and the cases there-cited.…
Piscioneri v Brisciani and Reardon
[2017] ACTSC 237 Para 1

…ioneri CA at [12]; Piscioneri v Reardon [2016] ACTCA 33 ( Piscioneri v Reardon CA ) at [46]; Gabriella Jean Piscioneri v Marek Janusz Michael Reardon [2015] ACTSC 61 ( Piscioneri v Reardon ) at [54] and the cases there-cited.…
Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 2)
[2017] ACTSC 88

…CLR 453 Pascoe-Wabbe v Nusuna Pty Ltd (1985) 3 BPR 97,231 Pavich v Bobra Nominees Pty Ltd (1988) ATPR (Digest) ¶46,039 Piscioneri v Reardon [2015] ACTSC 61 Piscioneri v Reardon [2016] ACTCA 33 Potts v Miller (1940) 64 CLR 282 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 2) […
Piscioneri v Reardon
[2016] ACTCA 33 Para 1

…imary judge indicated that he would publish his reasons in due course. Eventually, on 14 April 2015, the reasons were published: Piscioneri v Reardon [2015] ACTSC 61 ( Piscioneri v Reardon ).…
Brisciani v Piscioneri (No 1)
[2016] ACTCA 30 Para 1

…sitting in this appeal because I am the judge determining applications for leave to appeal against a decision of Refshauge J in Piscioneri v Reardon [2015] ACTSC 61 ( Piscioneri v Reardon ).…
Corkhill v Commonwealth
[2015] ACTSC 216 Para 1

…It is correct to say that a defence of the limitation bar must be pleaded. See Piscioneri v Reardon [2015] ACTSC 61 at [56].…
York v Morgan
[2015] NSWDC 109 Para 20

…ssion that this amounts to fraud is not made out, as there was no concealment of the identity of the person making the claim (cf Piscioneri v Reardon [2015] ACTSC 61) and, additionally, the likelihood of vicarious liability of the fifth defendant for the statements of its servants or agents (whoever they may have…
Piscioneri v Brisciani
[2015] ACTSC 106 Para 53

…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…
Piscioneri v Reardon (No 2)
[2017] ACTSC 242 Para 1

…Janusz Michael Reardon, Ms Piscioneri claimed that Mr Reardon had also published on Zgeek defamatory statements against her. See Piscioneri v Reardon [2015] ACTSC 61. She sought leave to commence proceedings against him but the application was dismissed. An application for leave to appeal from that decision was al…

View all 13 citing cases →

Cases cited in this decision · 14 of 14 shown

Re Felicity; FM v Secretary, Department of Family and Community Services (No 4)
[2015] NSWCA 19 Para 1

…ous name. As is clear from the use of pseudonyms (as, for example, in Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [1]), the use of a pseudonym is to preserve anonymity, that is to conceal the true identity of the person, namely a deliberate concealment. I reje…
Singh v Rodden
[2013] ACTSC 272 Para 1

…that the Registry may not reject the originating process which is not a nullity as held in Racic v Haltinen [2010] ACTSC 63. See also Singh v Rodden [2013] ACTSC 272.…
WorkCover Queensland v Amaca Pty Ltd
[2010] HCA 34 Para 1

…t, then the statutory bar is not an issue in the proceedings. See Robinson v Craven (1994) 63 SASR 267. See also Workcover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 at 434; [31]. If this happens, then the proceedings may be prosecuted in the ordinary way, without any regard to the limitation period.…
Racic v Haltiner
[2010] ACTSC 63 Para 1

…document. Even there, however, it may be that the Registry may not reject the originating process which is not a nullity as held in Racic v Haltinen [2010] ACTSC 63. See also Singh v Rodden [2013] ACTSC 272.…
Commonwealth v Cornwell
[2007] HCA 16 Para 1

…stralia said about the provision in Paramasivam v Flynn (1998) 90 FCR 489 at 511. Indeed, that is made expressly clear in Commonwealth v Cornwell (2007) 229 CLR 519 at 523; [8]. The section is apt to cover the circumstances of Ms Piscioneri.…
Paramasivam v Flynn
[2000] HCATrans 165 Para 1

…alment (s 33(1)(b)). This also follows from what the Full Court of the Federal Court of Australia said about the provision in Paramasivam v Flynn (1998) 90 FCR 489 at 511. Indeed, that is made expressly clear in Commonwealth v Cornwell (2007) 229 CLR 519 at 523; [8]. The section is apt to cover the circumstances of…
Paramasivam v Flynn
[1998] FCA 1711 Para 1

…33(1)(a)) and concealment (s 33(1)(b)). This also follows from what the Full Court of the Federal Court of Australia said about the provision in Paramasivam v Flynn (1998) 90 FCR 489 at 511. Indeed, that is made expressly clear in Commonwealth v Cornwell (2007) 229 CLR 519 at 523; [8]. The section is apt to cover the circum…
Commonwealth v Verwayen
[1990] HCA 39 Para 1

…perties Ltd v John Laing Constructions Ltd [1983] QB 398 at 404. Thus, the statutory bar does not, as Toohey J pointed out in Commonwealth v Verwayen (1990) 170 CLR 394 at 413, go to the jurisdiction of the court to entertain the claim. See also per Mason CJ at 405. It goes to the defences which may be pleaded, inclu…
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd
[1990] HCA 11 Para 1

…and deceit in s 33 of the Limitation Act (the ACT Act) and in reliance on what was said in Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, but she bears no initial onus to show that the limitation period has not expired. This shows that her application was misconceived.…
James v ANZ Banking Group Ltd
[1986] FCA 50 Para 1

…This approach is also entirely consistent with the principle mentioned in James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR 347 at 396, that a court would not consider the matter of the limitation period of its own motion.…
Australian Iron & Steel Ltd v Hoogland
[1962] HCA 13 Para 1

…tute otherwise provides, not to extinguish the right on which the plaintiff relies, but to bar the remedy. See Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-9; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 74-5; Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 at 40…
[1983] QB 398
[1983] QB 398 Para 1

…(1962) 108 CLR 471 at 488-9; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 74-5; Ronex Properties Ltd v John Laing Constructions Ltd [1983] QB 398 at 404. Thus, the statutory bar does not, as Toohey J pointed out in Commonwealth v Verwayen (1990) 170 CLR 394 at 413, go to the jurisdiction of the…
[2003] 1 AC 384
[2003] 1 AC 384

…& Steel Ltd v Hoogland (1962) 108 CLR 471 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Cave v Robinson Jarvis & Rolf [2003] 1 AC 384 Commonwealth v Cornwell (2007) 229 CLR 519 Commonwealth v Verwayen (1990) 170 CLR 394 James v Australia & New Zealand Banking Group Ltd (1986) 64 ALR…
[1973] 1 WLR 1019
[1973] 1 WLR 1019 Para 1

…o obvious that a defendant may raise the statute bar without pleading a defence, where, as Lawton LJ said in Riches v Director of Public Prosecutions [1973] 1 WLR 1019 at 1027, “[t]he delivery of the defence occupies time and waste of money”. That would not appear to be the case here.…

Legislation cited in this decision · 8

Limitation Act 1980 c.58
32, 36, 37, 38, 39, 40 7 mentions (from Para 1)
Seamen's Union of Australia v Utah Development Co
32, 36, 37, 38, 39, 40 7 mentions (from Para 1)
Limitation Act 1985 (ACT)
21B, 33, 41, 44 5 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
650 2 mentions (from Para 1)
Legislation Act 2001 (ACT)
126(1) 2 mentions (from Para 1)
Road Transport (Third-Party Insurance) Act 2008 (ACT)
145(2) 2 mentions (from Para 1)
Limitation Act 1939 (UK)
1 mention
Limitations Act 1985 (ACT)
1 mention