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
[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.
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Details
AGLC
Piscioneri v Reardon (No 2) [2017] ACTSC 242
Case
[2017] ACTSC 242
Decision Date
CaseChat Overview and Summary
In Piscioneri v Reardon (No 2), the plaintiff sought to compel the defendant to disclose the identity of individuals posting online under pseudonyms. The application was brought in the context of proceedings initiated by the plaintiff, Gabriella Jean Piscioneri, against the defendant, Edward Campbell Patrick Earl, and others. The plaintiff sought the disclosure to assist in identifying the authors of defamatory posts made on an online forum. The legal issues before the court involved whether the application for preliminary discovery was properly made and if the pre-conditions for such an order were met.
The court held that the application was valid and the pre-conditions for ordering preliminary discovery were satisfied. The court found that the plaintiff had demonstrated a need for the discovery, that the information was likely to exist, and that it was not available through other means. The court emphasised the importance of the manner in which such applications are defended, noting that it could be relevant to the award of costs. The court concluded that the plaintiff's application met the statutory requirements and ordered that Edward Campbell Patrick Earl be examined regarding the identity and whereabouts of the individual posting as "Shinymetalass" on the "ZGeek.com" forum.
Following the grant of the order for preliminary discovery, the plaintiff sought an award of costs for the application. The court considered the manner in which the defendant had defended the application and concluded that the plaintiff should bear the costs of the application and the examination. The court dismissed the plaintiff's application for costs and ordered the plaintiff to pay the defendant's costs for the application and the examination.
Orders
Orders of the court
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.