Piscioneri v Reardon (No 2)
[2017] ACTSC 242
•17 September 2015, 28 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Piscioneri v Reardon (No 2) |
Citation: | [2017] ACTSC 242 |
Hearing Date: | 17 September 2015 |
DecisionDates: | 17 September 2015, 28 August 2017 |
ReasonsDate: | 28 August 2017 |
Before: | Refshauge J |
Decision: | 17 September 2015 1. That new proceedings be commenced and that the Application in Proceedings filed in the current proceedings be removed from the current proceedings and started as the Originating Application in the fresh proceedings. 2. That Edward Campbell Patrick Earl be examined in relation to the identity and whereabouts of the individual who posted as “Shinymetalass” on the “ZGeek.com” forum. 3. That the question of costs be reserved. 28 August 2017 4. That the application for costs by Gabriella Jean Piscioneri be dismissed. 5. That Gabriella Jean Piscioneri pay the costs of Edward Campbell Patrick Earl of the application for preliminary discovery and the examination of Mr Earl. |
Catchwords: | PRACTICE AND PROCEDURE – DISCOVERY – Preliminary discovery – application for order that witness be orally examined as to the identity of persons posting online under pseudonyms – pre-conditions for an examination made out – s 650 of the Court Procedure Rules 2006 (ACT) PRACTICE AND PROCEDURE – COSTS – Award of costs – manner in which a preliminary discovery application is defended is relevant to costs – costs are at the discretion of the Court – plaintiff to pay the costs for the examination of the witness |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 5, 6, 61, 75, 76, 211, 650, 650(1)(d), 650(8), 651, 653, 1703, 1721, 6606, 6611 Supreme Court Rules 1937 (ACT), O 34A |
Cases Cited: | Age Co Ltd v Liu [2013] NSWCA 26; 82 NSWLR 268 Airways Corp of New Zealand Ltd v Price Waterhouse Coopers Legal [2002] NSWSC 138 |
Texts Cited: | Civil Procedure ACT (LexisNexis, Sydney, 1994) looseleaf, Service 116 |
Parties: | Gabriella Jean Piscioneri (Plaintiff) Marek Janusz Michael Reardon (Defendant) Edward Campbell Patrick Earl (Respondent to the Application) |
Representation: | Counsel In person (Plaintiff) No appearance (Defendant) Mr S Malcolmson (Respondent to the Application) |
| Solicitors In person (Plaintiff) No appearance (Defendant) Eatons Lawyers (Respondent to the Application) | |
File Number: | SC 395 of 2014 |
REFSHAUGE J:
In about 2010, the applicant, Gabriella Jean Piscioneri, was the subject of various comments on an internet website (Zgeek).
Entries on websites such as Zgeek made by persons reading it who then wish and proceed to comment on it are termed “posts”, and such comments are said to be posted on it. Some posts on it were said by Ms Piscioneri to be defamatory and she has commenced various proceedings, including these proceedings, and also proceedings against Anthony Scott Brisciani, claiming damages for the alleged defamatory comments. In the latter case, the ACT Supreme Court found that Mr Brisciani had, in publications on Zgeek, defamed Ms Piscioneri both in posts he had made and as administrator and operator/moderator of the site: Piscioneri v Brisciani [2015] ACTSC 106. A challenge by Mr Brisciani to the findings and by Ms Piscioneri to the amount of damages was dismissed: Brisciani v Piscioneri (No 4) [2016] ACTCA 32.
The Court of Appeal in Brisciani v Piscioneri (No 4) said at [5] that Zgeek was described in the pleadings as “a site wherein members from across the world are able to post opinion and comment in discussion threads about the affairs of the day”. The website describes itself as characterised by “profanity”, “manifest irreverence”, “references to modern ‘geek’ and popular culture” and “language and graphic content”, with “tendencies to the puerile, profane, sarcastic and obscene.”
In proceedings SC 395 of 2014 against Marek 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 also dismissed: Piscioneri v Reardon [2016] ACTCA 33.
Apart from the filing of the application, the subject of these reasons, and the filing of a draft of the orders made on 28 October 2014, no other steps appear to have been taken in these proceedings by Ms Piscioneri and, therefore, r 75 of the Court Procedures Rules 2006 (ACT) would appear to apply to them. Thus, the proceedings will be taken to be dismissed.
For reasons set out below (at [56]-[65]), this dismissal may not affect this application. Were, however, Ms Piscioneri to wish to reinstate the proceedings against Mr Reardon, she would have to apply under r 76 of the Court Procedures Rules. The principles that the Court applies to such applications are set out in Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v Lah [2009] ACTSC 113 at [30]-[55] and Blunden v Commonwealth [2014] ACTSC 123 at [27]-[49].
Nevertheless, on 7 September 2015, Ms Piscioneri filed an Application in Proceeding in these proceedings seeking an order that Patrick Earl attend before the Court to be examined “in relation to the identity and/or whereabouts or both of potential defendants”.
On 17 September 2015, I permitted Ms Piscioneri to examine Mr Earl, which she then did. There were procedural complications to the matter and it was appropriate that reasons be given for the orders I made. These are those reasons.
The legal basis for the application
Until about 1972, a plaintiff who was uncertain about whether he, she or it had a cause of action against another person or who did not know the identity or whereabouts of a potential defendant had difficulty in finding out these matters.
There was a limited capacity to do so by a suit for discovery which, however, had some technical and other limitations: Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 at 173-6, 205-6.
When New South Wales made the Supreme Court Rules 1970 (NSW), commencing on 1 July 1972, it made in Pt 3 summary provisions for preliminary discovery of such information, including the obtaining of relevant documents, at the same time widening the old law to make the remedy more easily and helpfully available. See Stewart v Miller [1979] 2 NSWLR 128 at 131, 135.
These procedures were followed by the Federal Court of Australia and then later in other jurisdictions. Such rules were first made in this Territory when O 34A was inserted into the Supreme Court Rules 1937 (ACT) (ACT Supreme Court Rules) in 1992.
The relevant provisions are now in rr 650 and 651 of the Court Procedures Rules which are in the following terms:
Division 2.8.6 Preliminary discovery
650 Discovery to identify potential defendant
(1) This rule applies if –
(a) a person (the applicant) has, or is likely to have, a cause of action against someone (the potential defendant); and
(b) either –
(i) the applicant wants to start a proceeding in the court against the potential defendant for the cause of action; or
(ii) the following provisions apply:
(A) the applicant is a party to a proceeding in the court;
(B) the potential defendant is not a party to the proceeding;
(C) the applicant wants to make a claim for relief in the proceeding against the potential defendant for the cause of action;
(D) the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and
(c) the applicant, after making reasonable inquiries, cannot ascertain the identity or whereabouts of the potential defendant sufficiently to start the proceeding, or make the claim for relief, against the potential defendant; and
(d) someone else (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the potential defendant.
NoteThe road transport authority cannot be required to comply with a preliminary discovery order in certain circumstances (see Road Transport (General) Act 1999, s 236).
(2) If subrule (1) (b) (i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (Inspection, detention, custody and preservation of property – orders etc)) against the other person.
(3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the other person.
Note Pt 6.2 (Applications in proceedings) applies to the application.
(4) The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of information, documents or things in relation to which the application is made.
Note 1For an application mentioned in r (2), div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc.
Note 2For an application mentioned in r (3), r 6008 (Application in proceeding – filing and service) deals with service of the application and supporting affidavit.
(5) The court may order the other person –
(a) to attend before the court to be examined in relation to the identity or whereabouts of the potential defendant; or
(b) to produce to the court any document or thing that is, or has been, in the other person’s possession relating to the identity or whereabouts of the potential defendant; or
(c) to make and serve on the applicant a list of the documents or things that are, or have been, in the other person’s possession relating to the identity or whereabouts of the potential defendant; or
(d) to produce for inspection by the applicant any document or thing that is, or has been, in the other person’s possession relating to the identity or whereabouts of the potential defendant.
(6) If the court makes an order under subrule (5) (a) (an order for attendance), the court may –
(a) order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession relating to the identity or whereabouts of the potential defendant; and
(b) direct that the examination by the court be held before the registrar.
(7) An order under this rule in relation to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.
(8) Rule 6606 (1) (Compliance with subpoena) and rule 6611 (Costs and expenses of compliance with subpoena) apply, with necessary changes, in relation to an order for attendance under this rule as if the order were a subpoena.
(9) In this rule:
identity or whereabouts, of the potential defendant, includes –
(a) whether the potential defendant is an individual or a corporation; and
(b) for an individual – the potential defendant’s name, home address or other whereabouts, occupation and sex; and
(c) for a corporation – the potential defendant’s registered office, business address or other whereabouts.
651 Discovery to identify right to claim relief
(1) This rule applies if –
(a) a person (the applicant) has, or may have, a cause of action against someone (the potential defendant); and
(b) either –
(i) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to start a proceeding in the court against the potential defendant for the cause of action; or
(ii) the following provisions apply:
(A) the applicant is a party to a proceeding in the court;
(B) the potential defendant is not a party to the proceeding;
(C) the applicant, after making reasonable inquiries, cannot obtain sufficient information to decide whether to make a claim for relief in the proceeding against the potential defendant for the cause of action;
(D) the claim for relief could properly have been made in the proceeding against the potential defendant if the potential defendant were a party; and
(c) the applicant has reasonable grounds for believing that the potential defendant has or has had possession of a document or thing that can assist in deciding whether to start the proceeding, or make the claim for relief, against the potential defendant; and
(d) inspection of the document or thing by the applicant would help in making the decision.
(2) If subrule (1) (b) (i) applies, the applicant may apply to the court by originating application for an order under this rule (and, if relevant, an order under rule 715 (Inspection, detention, custody and preservation of property – orders etc)) against the potential defendant.
(3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for an order under this rule (and, if relevant, an order under rule 715) against the potential defendant.
Note Pt 6.2 (Applications in proceedings) applies to the application.
(4) The application must be supported by an affidavit stating the facts on which the applicant relies, and stating the kinds of documents or things in relation to which the application is made.
Note 1For an application mentioned in r (2), div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc.
Note 2For an application mentioned in r (3), r 6008 (Application in proceeding – filing and service) deals with service of the application and supporting affidavit.
(5) The court may order the potential defendant to produce the document or thing to the applicant.
(6) An order under this rule in relation to any document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.
The facts
As required, Ms Piscioneri filed an affidavit in support of her application. The affidavit was read. She referred in the affidavit to a number of statements that had been made about her in 2010 on Zgeek which she said were defamatory of her. They were, she said, made by unidentified persons. It appears that many used pseudonyms when posting comments on the website. Certainly, the posts quoted in her affidavit were posted by persons using the pseudonyms “Shineymetalass”, “Sagacious” and “NosfeR2D2”.
Ms Piscioneri had made an earlier application in the defamation proceedings against Mr Brisciani. I did not have details of that application or the circumstances under which it was made. It also appears that Ms Piscioneri was able to interrogate Mr Brisciani on 18 October 2013 in other proceedings. Thereby, she was also to ascertain that the person who used the pseudonym “Sagacious” on Zgeek was Mr Reardon and that he identified the persons who used other pseudonym names “Shinymetalass” and
“that-bloke”.
It may have been as a result of this information that Ms Piscioneri commenced the proceedings against Mr Reardon.
Mr Brisciani told Ms Piscioneri that “that-bloke” was a person called Eric Allbutt. She searched the electoral roll and found no such person on the electoral roll in Australia. In 2014, however, Mr Brisciani told Ms Piscioneri that “that-bloke” was, in fact, Mr Earl.
In earlier, unrelated proceedings, Ms Piscioneri was able to question Mr Earl on 6 April 2010 and he stated that he knew who the person was who used the pseudonym “Sagacious”.
Ms Piscioneri deposed that on 17 August 2011, Mr Earl said that he used the pseudonym “NosfeR2D2” (sometimes spelt “Nosfer2D2” in the material in these proceedings) on Zgeek. This was said by Mr Earl, who used the pseudonym, to be an amalgamation of the vampire name “Nosferatu” and the name of the robot from the “Star Wars” movies, “R2D2”.
She then deposed, in her affidavit, to a number of messages on Zgeek on 3 February 2010 which she said were defamatory.
Ms Piscioneri also relied on two emails she sent to Mr Earl and one to Mr Brisciani. In the former, she sought Mr Earl’s confirmation that he used the pseudonym “that-bloke” on Zgeek and asked whether he had used any other pseudonyms. She asked him about the identity of persons who used other pseudonyms.
In the email to Mr Brisciani, she asked him to confirm the identities of persons who used the pseudonyms “that-bloke” and “Vjay” on Zgeek and to provide records about the user of the pseudonyms “Vjay” and “Bobdown”. She did not pursue these matters in her current application.
Mr Earl made an affidavit, also filed in the proceedings. It was read. He deposed that he had been employed at Reardon and Associates, lawyers, where he acted for Mr Brisciani and, as a result, he became aware that Ms Piscioneri had been a solicitor who was no longer practising.
Mr Earl deposed to certain matters about the way in which his attention had been brought to this application. It appears that a copy was originally sent by Ms Piscioneri to an email address that he had not used for some years, even though Ms Piscioneri had relatively recently sent him about 13 communications to a different but current email address he was now using.
When he finally saw the application and accompanying email from Ms Piscioneri, he responded by email and in some detail. It is not necessary for me to record all that was said in his email response. He did point out that Ms Piscioneri had examined him on 17 August 2011 as I mentioned above (at [18]). Indeed, he included a copy of the transcript of portion of those proceedings.
Those were unrelated proceedings involving Mr Brisciani. The transcript records that there was very limited examination of Mr Earl. He was asked if he knew the identity of “any of the other people” who posted on Zgeek and he said he did know some of them, but he was concerned that, if he were to reveal their identities, that information would be used “for an ulterior purpose”.
He agreed that he had used the pseudonym “NosfeR2D2”. The other questions he was asked were subject to objection and disallowed as irrelevant to those proceedings.
In the email, he raised issues of legal professional privilege that would limit any answers he may be able to give and to the costs he would incur of being brought to Canberra for any examination.
His affidavit also referred to those matters and the need he had to retain legal representation because Ms Piscioneri had not responded to his email.
He then referred to an email sent to my Associate on 11 September 2015 by Ms Piscioneri in which she said:
However, as the application is in relation to Mr. Earl (as I am seeking to examine him in relation to matters that could determine if he and or Toni Whitaker should be added as
co-defendants in SC 395 of 2014) it is my submission that Mr. Reardon and Mr. Malcolmson do not have standing to appear in relation to the application.
Ms Piscioneri did respond to Mr Earl’s affidavit by email dated 16 September 2015 which was admitted into evidence. She raised in it some procedural matters which showed a regrettable lack of understanding of the process that she had initiated. I do not need to address those issues.
Ms Piscioneri also tendered a letter which she had sent Mr Earl. Although it was dated 14 September 2015, she said that she had written it on 16 September 2015. The discrepancy in the date was unexplained. It is troubling that such a letter is backdated. She said that the letter was in response to Mr Earl’s email to which I have referred above (at [25]-[28]).
The letter also traversed a number of matters that do not seem to me to be relevant to these proceedings, nor that I need to address. She did say that she was prepared for Mr Earl to appear by video link as had happened before. She also stated her belief that, so far as Mr Brisciani was concerned, he had waived any legal professional privilege when he had, in other proceedings, given evidence under oath of the personal identities of those who used pseudonyms “Sagacious” and “Shinymetalass” on Zgeek. She then added the curious comment that:
I say that if you don’t breach ‘legal professional privilege’ you could be seen as committing some other far more serious ‘breach’ say, fraud. Wouldn’t you say that a client and a lawyer (and others) concealing a potential defendant’s identity under the guise of ‘legal professional privilege’ is fraud.
I have to say that this seems to me an odd comment to be made by an admitted lawyer, as Ms Piscioneri is, though she is not practising, and betrays an inaccurate understanding of legal professional privilege.
Pre-Trial Discovery
As is clear from the two rules, the terms of which are set out above (at [13]), there are two matters which a potential plaintiff may seek by preliminary discovery: the identity or whereabouts or both of a potential defendant (r 650 of the Court Procedures Rules) and the identity of a cause of action (r 651). The two are different matters and, as can be seen from the rules, there are different conditions to the exercise of the power of the Court.
Ms Piscioneri purported to proceed under r 650 of the Court Procedures Rules as she sought “the identity and/or whereabouts of potential defendants”, a matter that was referred to in that rule.
She also sought that Mr Earl produce any records in his or his lawyer’s possession which might assist her to work out the identity and whereabouts of potential defendants. In relation to this order, she sought, however, those documents “to enable [her] to identify the right to claim relief”. That latter order, however, can only be made under r 651 of the Court Procedures Rules for which different pre-conditions apply.
Ms Piscioneri did not press that application.
The Court has a discretion as to whether to make an order or not, even were the necessary pre-conditions or jurisdictional facts to be proved to the Court’s satisfaction. See John Fairfax & Sons Ltd v Cojuango (1987) 8 NSWLR 145 at 149, 150; Wyeth v Secretary, Department of Health and Ageing [2009] FCA 313; 255 ALR 352 at 354-5; [15], [17]. This discretion may be exercised not to make an order, for example, because the Court is satisfied that the potential plaintiff has an effective remedy for the wrong, but merely that the sought information might lead to a greater remedy. There is also, as pointed out by Gobbo J in G Breschi & Son Pty Ltd v AFT Ltd [1988] VR 109 at
115-16, a discretion as to the ambit of any order to be made.
In order to obtain relief under r 650 of the Court Procedures Rules, Ms Piscioneri had to show a number of matters, referred to as “jurisdictional facts”: Wyeth v Secretary, Department of Health and Ageing at 354; [15].
In the first place, Ms Piscioneri had to show that she has, or it is likely to have, a cause of action against someone. This, Lindgren J held in Levis v McDonald (1997) 75 FCR 36 at 41, in relation to similar provisions, means that “the prospects of an applicant’s case for relief might be relevant to the exercise...”
The level of satisfaction of the Court as to the availability and viability of a cause of action has been variously described. Thus, as Sheppard J said in Stewart v Miller at 140, the application cannot be sustained where the applicant’s claims are “merely speculative”. See also Rush v Commissioner of Police [2006] FCA 12; 150 FCR 165 at 169; [5]. In Perpetual Trustee Co Ltd v Wilkins [2001] NSWSC 1192, Santow J referred to “a serious question to be tried” (at [34]), or “an arguable case” (at [35]). Of course, at least a cause of action must be properly identified or the application will fail: Blann v Nationwide News Ltd (1998) A Def R 52-050.
If the Court considers that the applicant does not have a cause of action against the person whose identity or whereabouts is sought to be established, the application will fail: Hordern House Pty Ltd v Arnold [1989] VR 402.
Secondly, Ms Piscioneri must demonstrate that she has an intention to commence proceedings against the person whose identity or whereabouts is sought: Re Application of Cojuango (1986) 4 NSWLR 513 at 521; Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 at 13. That intention, however, does not have to be immutably fixed or unqualified: Roads and Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114; 47 MVR 502 at 505; [12].
In New South Wales, it is not necessary that the proceeding be brought in the court making the order: Airways Corp of New Zealand Ltd v Price Waterhouse Coopers Legal [2002] NSWSC 138 at [5]-[10]. That, however, is different in this jurisdiction where the rule refers to “proceedings in the court”, then the applicant “may apply to the court”. This provision did not appear in O 34A of the ACT Supreme Court Rules.
Rule 5 of the Court Procedures Rules defines “court” to mean “the Supreme Court, the Magistrates Court or both, whichever is appropriate in the context of the provision”. The construction of r 650 seems to me to require that the court, that is this Court or the Magistrates Court, in which the action is to be taken, is the court in which the application is to be made. It follows, too, that the Magistrates Court has jurisdiction under this provision, but only in respect of potential proceedings in that Court.
Alternatively, Ms Piscioneri must show that she is a party to pending proceedings and wants to make a claim in those proceedings against a party who is not a party to the proceedings. She must show that the claim for relief could properly be made in those proceedings against the potential defendant.
That, however, is complicated for it means that the court must be mindful of the rules relating to joinder of parties and joinder of causes of action.
Thirdly, Ms Piscioneri must show that she has made reasonable inquiries which have not led to the discovery of the identity or whereabouts of the potential defendant.
There is no clear criterion to determine what is reasonable in relation to such inquiries. It is, as was pointed out in Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd at 505; [14], a question of fact in all the circumstances.
Clearly, in order to satisfy the criterion, therefore, the applicant must set out the substance of the inquiries that have been made and the results of the inquiries: Age Co Ltd v Liu [2013] NSWCA 26; 82 NSWLR 268 at 281; [52].
That there are other inquiries that could have been made does not necessarily mean that those that the applicant has made do not meet the criterion: Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 at 307. Thus, the cost and delay that other inquiries might entail is relevant to the assessment of whether the applicant has met the criterion: Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd at 505; [14]. Nevertheless, just because information is unavailable from one source, the applicant may be required, to show reasonable inquiries, to find out if the information can be discovered from another source: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad [2001] FCA 1223; 187 ALR 279 at 286; [25].
An applicant, however, is not required to make inquiries that will be or are likely to be fruitless: Australian Broadcasting Corporation v Seven Network Ltd [2005] FCA 1851 at [13].
Those inquiries must show that the information necessary has not been able to be obtained through the reasonable inquiries.
Finally, Ms Piscioneri must show that the potential examinee may have information or may have or have had possession of a document or thing that would tend to assist in ascertaining the identity or whereabouts of the potential defendant.
It is, therefore, not necessary that the applicant prove that the desired information, document or thing will necessarily reveal the identity or whereabouts of the prospective defendant: Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd at 506; [16]. Thus, the information sought might simply identify someone who may know who the potential defendant is: Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317; 245 FCR 129 at 143-6; [57]-[70].
Consideration
It became clear, in the course of the hearing, that Ms Piscioneri was seeking to commence defamation proceedings against the person who posted on Zgeek under the pseudonym “Shinymetalass”. It appears that the posts on which she relies were as follows:
Shinymetalass 03.02.2010 at 10.25 pm: “This is a total load of shit. She will get eaten alive for instituting unmeritorious proceedings will have a costs order ats her and will end up facing disciplinary proceedings.
Shinymetalass 03.02.2010 at 10.30 pm: “Turn on a useless sack of shit who has no respect for her duty to the court and correct procedure. Fucking oath.”
Other information, to which I do not need to refer, makes it clear that “she” and the subject of the posts is Ms Piscioneri.
I am satisfied that, in the circumstances, especially in the light of other proceedings, Ms Piscioneri has an arguable case that this statement is defamatory of her.
A problem, however, was that the current proceedings were against Mr Reardon who does not appear to be “Shinymetalass”. Indeed, if he were, then Ms Piscioneri would not be able to succeed with her application for he is presently the defendant and so his identity or whereabouts are not amenable to being discovered under r 650 of the Court Procedures Rules; in short, he is not a potential defendant whose identity or whereabouts is all that can be discovered by action under the rule.
Further, if he is not the author of the posts, then there appeared to me to be no basis on which the author could have been joined in the proceedings.
Under r 211 of the Court Procedures Rules, parties may be joined as defendants in the same proceedings if either separate proceedings against them may give rise to a common issue of law or fact and any of the rights to relief are in relation to or arise out of the same transaction or event, or series of transactions or events.
While the rule is said in Payne v British Time Recorder Co Ltd [1921] 2 KB 1 at 6 to be required to be interpreted widely, it does not seem to me that the separate publications by Mr Reardon (as claimed in these proceedings) should be joined with different publications by other persons, just because they are all posted on the same website and relate to the same plaintiff.
Each publication is a separate cause of action: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1 at 64; [311]. It is difficult to see a relevant common issue of law or fact arising and, in any event, the rights to relief did not arise out of the same transaction or event, or series of transactions or events.
For this reason, it seemed to me that, despite her claim, Ms Piscioneri was seeking the identity or whereabouts of a potential defendant against whom she could commence separate proceedings rather than one who could be joined to these proceedings.
Mr Earl, through his counsel, Mr S Malcolmson, did not contest that, under r 6 of the Court Procedures Rules, I should make appropriate directions to rectify the position. That would be done by taking the application out of the proceedings against Mr Reardon and deeming it to be an originating application for orders under r 650 in respect of potential proceedings to be commenced were Ms Piscioneri minded to commence them after examining Mr Earl.
I was satisfied, especially given the proceedings already undertaken by her and her statements to me, that Ms Piscioneri did intend to commence proceedings for defamation arising out of the published posts.
Having considered the evidence, I was also satisfied that Ms Piscioneri had made reasonable inquiries as required, at least as to the whereabouts of the author.
I was further satisfied that Mr Earl, given the information he had already given to Ms Piscioneri referred to above (at [26]) and the context of his refusal to give further information, was a person who could reasonably likely have information about the user of the pseudonym and the person’s whereabouts.
Mr Malcolmson raised the problem that Ms Piscioneri may wish to commence proceedings against Mr Earl. While the rule is not intended to permit a prospective plaintiff to interrogate a potential defendant, it appears from Taylor v Osborne [1973] 1 NSWLR 52 at 56, that the information, if properly sought in accordance with the rule, may show that the correct defendant is actually the examinee.
It is suggested in Civil Procedure ACT (LexisNexis, Sydney, 1994) looseleaf, Service 116 at 2992; [650.20], that the rule does not allow a potential defendant to be examined. There is a reference to the mention in r 650(1)(d) of “someone else (the other person)”, and this is suggested to mean that a potential defendant cannot be examined under the rule. This is not entirely clear, as “someone else” in the sub-rule, could simply mean a person other than the applicant, not necessarily a person other than the potential defendant. Given that information is, inter alia, being sought and being sought compulsorily about the identity of the potential defendant, it seems unlikely that it was intended that the “someone else” would be the potential defendant. In addition, if the identity of the potential defendant is known, but not the whereabouts, which information could be sought under the rule, then service as required under r 61 of the Court Procedures Rules would not be possible.
Thus, it seems to me tolerably clear that the reference to “someone else” means someone other than the potential defendant. This is also consistent with the unlikelihood of the rules subjecting a potential defendant to such a compulsory examination without the mention being clearly expressed. That, however, does not mean that, as Taylor v Osborne holds, if the person is otherwise properly examinable, not then being seen as a potential defendant, the procedure is inappropriate if the person turns out to be a potential defendant.
The Court should be astute to ensure that such a person is not, unless it is not reasonably foreseeable, examined and, if it turns out that the examinee is shown to be a potential defendant, the examination does not intrude into his, her or its rights.
Ms Piscioneri was permitted to examine Mr Earl on the basis that she was not seeking to show that he himself was a potential defendant.
In the event, as Ms Piscioneri had made out the pre-conditions for the examination, I permitted it to proceed. It was convenient for it to be conducted immediately as Mr Earl was then available and, by consent, the examination was then conducted and concluded.
Disposition
Accordingly, I made the orders necessary to regularise these proceedings and to permit Ms Piscioneri to examine Mr Earl. These are my reasons for doing so.
Costs
Ms Piscioneri sought her costs on the basis that her application had been successful. Mr Earl sought his costs. I reserved my decision.
Ordinarily, Mr Earl would, for the reasons outlined above (at [69]-[71]), be unlikely to be the potential defendant. He is, thus, a third party brought into the proceedings in which he has no direct interest.
Ms Piscioneri has been successful in her application. It is, however, an application necessary for the proceedings, but not because she is seeking any relief against Mr Earl in the sense of any of her rights being vindicated as against him.
I have inspected the authorities; there are, perhaps, unsurprisingly, different approaches to costs depending on whether the application for preliminary discovery is made under r 650 or r 651 of the Court Procedures Rules or the equivalent provisions in other jurisdictions. After all, the latter involves a respondent to the application who becomes a party to any proceedings, whereas in the former case, the respondent is, to all intents and purposes, a stranger to the proceedings, brought in because of knowledge he or she may have. This is, of course, an application of the former heard under r 650.
There is, in this sense, a close similarity in the case dealt with here with the proceedings under a subpoena where ordinarily the party who seeks the subpoena must pay the addressee for the costs of compliance: r 6606 of the Court Procedures Rules. Indeed, r 650(8) specifically applies the subpoena costs rules (rr 6606 and 6611) to an order under that rule. Those costs can later in the trial be recovered from the losing party if the party who pays them is ultimately awarded costs: Hardy v Wilson (1883) 9 VLR (Eq) 135 at 137.
Nevertheless, the starting point for a consideration of costs is r 1721 of the Court Procedures Rules, namely that the costs are in the discretion of the Court. See Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10 at [43]-[44], Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2]. It is also important to note that different courts may have differing rules and practices so that, especially in such a discretionary area, authorities from other jurisdictions must be considered with care.
In Liu v The Age Company Ltd [2016] NSWCA 115; 92 NSWLR 679 at 730-5;
[248]-[275], the NSW Court of Appeal considered the question of costs at some length and in some detail. The views of that Court may be summarised as follows:
(1) As noted above, the Court begins its consideration of such a matter in the light of the fact that costs are in the discretion of the Court.
(2) In that jurisdiction, it is also relevant that r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) prescribes that costs should follow the event, unless it appears to the court that some other order should be made as to the whole or any part of the costs. There is no equivalent rule in the Court Procedures Rules in this Territory, though the Court of Appeal has noted that this is usual practice: GJ v AS (No 4) [2017] ACTCA 7 at [25]-[27].
(3) Despite these matters, the width of the statutory discretion cannot be narrowed by a legal rule devised by the court to control its exercise: Norbis v Norbis (1986) 161 CLR 513 at 537.
(4) A person against whom a preliminary discovery order is made may, under
r 5.8 of the Uniform Civil Procedure Rules (similar to r 653 of the Court Procedures Rules), be subject of a costs order, even though not a party. That provision thus provides an exception to r 1703 of the Court Procedures Rules, prescribing when costs orders can be made against non-parties.(5) The manner in which the preliminary discovery application is defended, if at all, is clearly relevant.
(6) In particular, the authorities suggest that where the defence of the application is adversarial, the ordinary rule that costs follow the event may be appropriate.
(7) It is also relevant whether the party, the subject of preliminary discovery, is “a mere witness or bystander” or, instead, is a joint tortfeasor with the potential defendant.
(8) Ordinarily, such proceedings are “not truly ordinary adversarial proceedings”.
(9) There may be a case for a person against whom a preliminary discovery application is made acting reasonably in opposing the order if there are reasonable doubts about whether discovery should be given.
In Sites N Stores Pty Ltd v Whirlpool.Net.Au Pty Ltd [2015] FCA 1474, the respondent was the host of an internet discussion forum for technology related matters on which a number of people anonymously posted negative comments about the applicant. The applicant applied for preliminary discovery to determine the identity of those people.
Moshinsky J made orders for preliminary discovery. His Honour said at [29] as to costs:
In relation to costs, in my view the prospective applicants should pay Whirlpool’s costs of and incidental to the proceeding, including Whirlpool’s costs associated with making discovery. Although the prospective applicants have been largely successful in obtaining the discovery sought, there was no obligation upon Whirlpool to provide the documents prior to the proceeding being commenced. Once it was commenced, Whirlpool appropriately sought particulars from the prospective applicants. Following receipt of these particulars, Whirlpool acted reasonably in consenting to discovery in respect of many of the usernames. To the extent to which Whirlpool did dispute discovery, it raised reasonable arguments and was partially successful.
In this case, Mr Earl was, in reality, a bystander. He had acted for Mr Brisciani, the owner and administrator of Zgeek (Piscioneri v Brisciani at [45]). He had also posted on the website apparently as “NosfeR2D2” but there was no evidence before me that any of his postings were or might be defamatory.
Mr Earl, who accepted that he was NosfeR2D2, had made posts at around the time of the posts by Shinymetalass, the subject of this application. While his posts were temporally part of the series of posts that included the Shinymetalass posts referred to above (at [56]), his posts did not seem to me to be defamatory (as opposed to being lamely disrespectful of lawyers) nor did they associate himself with the posts of Shinymetalass. Thus, in response to the second post, set out above (at [56]), he intervened and the following was posted as set out in Ms Piscioneri’s affidavit, noting the relative time:
Nosfer2d2 03.02.2010 at 10.30 pm: “They stopped using lawyers because lawyers are closer to rats scientifically speaking.”
Shinymetalass 03.02.2010 at 10.38 pm: “Don’t start we will be here forever.”
Nosfer2d2 03.02.2010 at 11.00 pm: “I heard whats [sic] [the] difference between 3,000,000 million sperm and a kiwi. [sic] One of the sperm might work.”
I do not consider that Mr Earl was a joint tortfeasor or associated in a relevant way with the posts of Shinymetalass.
So far as the hearing of the application was concerned, I accept, too, that it was a difficult application to which Mr Earl had to respond. It took some time to work out just exactly what Ms Piscioneri sought to do.
Thus, Ms Piscioneri’s Application in Proceeding merely sought to have Mr Earl examined in relation to the identity or whereabouts of “potential defendants”. The affidavit did not give much more information, referring to a range of pseudonyms, though without citing any allegedly defamatory matter for many of them.
Indeed, there was some indication that Ms Piscioneri already had some information about the identity of Shinymetalass, so that the fact that the application sought to allow Ms Piscioneri to ask questions about that pseudonym would not have been so obvious from the affidavit.
Further, there was, at some stage, a suggestion that, when Ms Piscioneri wished to ask Mr Earl questions, she thought of him as a possible defendant, a matter not within the scope of r 650 of the Court Procedures Rules.
Ultimately, Mr Earl, through his counsel, significantly co-operated with the proceedings and they were not, so far as he was concerned, “conducted in an adversarial fashion” to use the phrase used in the authorities.
In the circumstances, I am satisfied that Ms Piscioneri’s application for costs should be dismissed. I am satisfied that Ms Piscioneri should pay Mr Earl’s costs of the application and of the examination.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 28 August 2017 |
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