Piscioneri v Whitaker
[2017] ACTSC 174
•14 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Piscioneri v Whitaker |
Citation: | [2017] ACTSC 174 |
Hearing Date: | On the papers |
DecisionDate: | 14 July 2017 |
Before: | Elkaim J |
Decision: | (i) Judgment for the plaintiff in the sum of $9,600. (ii) The defendant is to pay the disbursements incurred by the plaintiff in the proceedings. |
Catchwords: | DEFAMATION – Publication – Default Judgment – calculation of damages. |
Legislation Cited: | Civil Law Wrongs Act 2002 (ACT) s 139F Civil Law (Wrongs) Non-Economic Loss Declaration 2017 (ACT) |
Cases Cited: | Aktas v Westpac Banking Corp Limited [2009] NSWCA 9 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 |
Parties: | Gabriella Jean Piscioneri (Plaintiff) Toni Fay Whitaker (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) Mr S Malcolmson (Defendant) |
| Solicitors Self-represented (Plaintiff) IBT Law (Defendant) | |
File Number: | SC 463 of 2015 |
ELKAIM J:
The plaintiff commenced proceedings by the filing of a statement of claim on 10 December 2015. The claim is for damages from the defendant for defamation of the plaintiff.
The defendant filed a defence on 18 July 2016.
On 9 March 2017, the defence was struck out and judgment was entered for the plaintiff. An application to set aside the judgment was dismissed by Mossop J on 30 May 2017. His Honour then adjourned the matter for the assessment of damages. The matter was allocated to me for this purpose.
With the agreement of the parties, and no doubt to limit costs, his Honour ordered that the assessment occur by way of the filing of submissions and without the need for an oral hearing. I did, however, give the parties some leeway in allowing further written submissions to be made to meet opposing submissions.
The only evidence in the assessment hearing is the plaintiff’s affidavit, filed on 18 May 2017. The defendant told Mossop J that the plaintiff was not required for cross-examination on this affidavit.
A very broad background to the plaintiff’s claim can be found in other litigation, most particularly in Piscioneri v Brisciani [2015] ACTSC 106, a decision of Burns J. This decision was the subject of an appeal, by both parties. The appeal and cross-appeal were dismissed: Brisciani v Piscioneri [2016] ACTCA 32.
It is important to note, however, that the specific internet posts which are the subject of this claim were not considered in the above matter.
The plaintiff’s claim is for damages of three types: compensatory, aggravated and exemplary. In her written submissions, the plaintiff submitted that “damages should be in the range of $15,000.00 to $20,000.00 with a component of aggravated damages”.
In addition, the plaintiff has suggested that additional damages might be ordered “if the court accepts that damages should be awarded for ‘punishment’”. I note that s 139H of the Civil Law Wrongs Act 2002 (ACT) states:
A plaintiff cannot be awarded exemplary or punitive damages for defamation.
The defendant’s submission on damages is that there should be no allowance because any award of damages would amount to, in essence, double compensation, having regard to the damages that the plaintiff recovered in the litigation mentioned above involving Mr Brisciani. In that litigation, the plaintiff was awarded damages of $82,000, including aggravated damages of $10,000 and interest.
Before examining the assessment of damages, it is necessary to deal with three preliminary points arising from the defendant’s written submissions. The defendant says that, firstly, the proceedings are out of time, secondly, that they are affected by an issue estoppel and, thirdly, that the question of identification should be limited to the findings of identification made by Burns J in the above litigation.
The difficulty with the above three points is that they are essentially assertions of a defence to the claim against the defendant. If fully litigated, they may, if accepted, have defeated the plaintiff’s claim. I would add, however, that the establishment of an issue estoppel would have been problematic where the estoppel is said to arise from a case in which the parties were different from the present case.
The entry of judgment for the plaintiff precludes the agitation of these three points. If there is an estoppel in this matter, it is the estoppel created by the judgment. The following passage from the judgment of Vaughan Williams J in In re South America and Mexican Company, Ex parte Bank of England [1895] 1 Ch 37 is often quoted to illustrate this estoppel:
It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter. The basis of the estoppel is that, when parties have once litigated a matter, it is in the interests of the estate that litigation should come to an end; and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by the judgment if the case had been fought out to the bitter end.
The next point that arises is: what are the facts that the defendant is denied from challenging? Is it every assertion of fact in the statement of claim or some more limited list of facts derived from the pleading? Lord Herschell, in In re South American and Mexican Company, said:
The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as it is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.
I think that I should proceed on this basis: the establishment of the right to damages flows from the entry of judgment for the plaintiff. The facts and legal consequences alleged by the plaintiff, as going to the issue of liability, cannot be challenged by the defendant.
The facts and legal consequences include the following:
(a)The plaintiff worked as a solicitor in her own practice between 1996 and 2007.
(b)On 3 February 2010, the defendant published two posts relating to the plaintiff on an internet site called ZGeek.
(c)The posts were read by at least two persons, namely Marek Reardon and Patrick Earl, on or after 3 February 2010.
(d)Other persons may have seen the posts.
(e)The defendant wrote the posts under the name “Shinymetalass”.
(f)The posts are set out in Schedule “A” of the Statement of Claim.
(g)The posts were defamatory of the plaintiff.
(h)The plaintiff was identified as the subject of the posts. The number of readers who actually identified the plaintiff is unknown.
The two posts are:
(a)“Latest Desperate attempt to silence Zgeek” Username “Shinymetalass”. 03.02.2010 at 10.25 pm. “This is a total load of shit. She will get eaten alive for instituting unmeritorious proceedings and will have a costs order ats her and will end up facing disciplinary proceedings.”
(b)“Latest Desperate attempt to silence Zgeek” Username “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”.
Turning to the assessment of damages, the judgment entered against the defendant goes no further than giving the plaintiff an entitlement to damages. Although a somewhat academic consideration in this case, any damages awarded for non-economic loss cannot exceed $389,500 (Civil Law Wrongs Act 2002 (ACT) s 139F and Civil Law (Wrongs) Non-Economic Loss Declaration 2017 (ACT)).
The assessment of damages can only be derived from evidence put forward by the plaintiff for the purpose of making the assessment. In this case, that evidence is limited to the affidavit of the plaintiff filed on 18 May 2017.
As stated above, the defendant told Mossop J that there was no objection to the affidavit and that the plaintiff was not required for cross-examination on her affidavit. There is no reason why I should not accept the contents of the affidavit.
Paragraphs [8], [9], [10] and [11] of Ms Piscioneri’s affidavit set out the effects of the defendant’s defamatory conduct on her. These paragraphs are as follows:
8.I found the defendant’s posts to be very insulting. They were made at a time that I was taking legal action against Mr. Brisciani. I was thus feeling the effects of not only the posts that he published on his website for years without my knowledge but ongoing insults and defamatory posts published on the Zgeek website, during the course of proceedings I initiated be protected from Mr Brisciani and defamation proceedings.
9.I still do not know what the defendant looks like and this is of concern to me due to her conduct and the inherent malice in the posts that she seems to bear towards me.
10.From what I can tell the posts by the defendants were viewed by other members of the profession that the defendant and I belong to. Mr Reardon (the defendants one time employer who used the pseudonym ‘Sagacious’) and by Mr. Earl (the defendant’s one time colleague who used the pseudonym ‘Nosfer2d2) also seem to have made posts on the website on which the defendant published the defamatory posts.
11.I felt fear throughout court proceedings because of the number and the nature of posts by unidentifiable persons such as the defendant.
The effects are a combination of the plaintiff’s reaction to the posts and her apparent distress at the manner in which the proceedings were conducted.
There is no doubt that the approach taken by a defendant to proceedings, including the necessity for them to be prolonged due to procedural failures or manipulation on the part of the defendant, can be taken into account in the assessment of damages. The NSW Court of Appeal, in Harbour Radio P/L & Anor v John Tingle [2001] NSWCA 194, said this at paragraphs [17] to [19]:
The question whether particular conduct gives rise to an entitlement to aggravated damages is a question of fact: see Triggell v Pheeney (1951) 82 CLR 497 at 516. Such damages may only be awarded where “there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”: Triggell v Pheeney at 514.
In Triggell v Pheeney, the majority in the High Court (Dixon, Williams, Webb and Kitto JJ) stated at 514:
“It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable.”
Their Honours concluded at 515 – 516:
“... that it is open to the jury to regard the defendant as having no genuine belief in the plaintiff’s dishonesty and as improperly putting forward the possession of such a belief in his defence, and secondly that such conduct may lawfully be taken into account in the assessment of damages”.
Damages arising from the manner in which the defendant conducted the proceedings are properly classified as aggravated damages. It is plain from the above quoted passage from Triggell that, in order for the plaintiff to recover such damages, it is necessary for her to establish a lack of bona fides on the defendant’s part.
Other than the factual assertions made in paragraph [7] of her affidavit, which I accept, there is no evidence to suggest a lack of bona fides. There are circumstances in which the simple act of not complying with orders of a court might be inferred as indicating the necessary lack of bona fides. I do not think that is the case here.
Almost to the contrary, when the matter was before me for directions, the plaintiff very fairly indicated, on a number of occasions, that some leniency should be shown to the defendant because she was known to be caring for a young child.
I have no doubt that extra anguish has been caused to the plaintiff by the delay in the proceedings but I am not prepared to find that such delay was a product of any malice or deliberate conduct on the part of the defendant. I specifically reject the plaintiff’s submission that the contents of the defendant’s written submissions should give rise to an increase in damages or some form of punitive damages.
Accordingly, I decline to award any aggravated damages.
Turning now to compensatory damages, the defendant submits that I should take into account the damages awarded by Burns J in Piscioneri v Brisciani [2015] ACTSC 106. In essence, the defendant says that the plaintiff has already been compensated. As already noted, the plaintiff was awarded damages of $82,000 including interest and aggravated damages. The appeal against this quantum was dismissed.
I do not accept the defendant’s submissions on this point. As I read the decision of Burns J, he was compensating the plaintiff for the hurt feelings she suffered flowing from the material posted by the defendant in the matter before his Honour, albeit on the same ZGeek site. There is nothing in his Honour’s judgment that would indicate that the compensation was for all of the posts on the site or that the two posts which are the subject of this litigation were considered as a source of the defamation of the plaintiff.
In my view, the plaintiff is entitled to be compensated specifically for the defamation arising from the two posts published by the defendant. However, I do think that, in assessing the level of compensation, it is appropriate to take into account that the posts were on the same internet site as the posts which were the subject of the matter before Burns J. In addition, as His Honour said at paragraph [115]:
It is clear that the publication of the ZGeek posts had a detrimental impact on the plaintiff’s wellbeing.
This, I think, has a mitigating effect on the extent of damages which flow from this defendant’s posts, these posts being two of the ZGeek posts. This approach is also consistent with s 139I(1) of the Civil Law Wrongs Act 2002 (ACT), which states:
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
Sub-paragraphs (c) and (d) are the most relevant here. Although arguably there is no “evidence” of the matters referred to in these sub-paragraphs, I am of the view that the references in the defendant’s written submissions to the decision of Burns J are sufficient to allow me to consider his Honour’s award of damages in mitigation of the damages in the present case.
Returning to the assessment of damages, and in particular compensatory damages, in paragraph [110] of his judgment Burns J said:
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 publicly defamed.
McClellan CJ at CL, in Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9, at paragraph [89], said this about damages:
An award of damages in defamation serves three purposes. It provides reparation for the harm done to the plaintiff’s reputation; consolation for distress or hurt to the plaintiff’s feelings; and vindication of the plaintiff’s reputation: Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44 (at 60). The first two purposes are frequently considered together. In John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131 McHugh JA (with whom Kirby P relevantly agreed) discussed the impact of time on damage caused by a defamation. There may be continuing damage to feelings and reputation after publication right up to the date of the verdict (at 143):
In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will, be higher than the amount which would have been awarded as at the date of publication or even as at the date of the writ.
His Honour continued at paragraph [91] as follows:
The assessment of damages in defamation is necessarily imprecise. Damages are “at large” in the sense that they cannot be arrived at through calculation or the application of a formula.
I do not think that the content of the plaintiff’s affidavit allows me to reach any conclusion about any damage to the plaintiff’s reputation. I think that the relevant paragraphs, as quoted above, go more towards her hurt feelings than any effect on her reputation.
In her affidavit the plaintiff says that she “found the defendant’s posts to be very insulting”. The insult was increased because the posts were published against the background of, and while, the plaintiff was taking legal action against Mr Brisciani.
In paragraph [11] of her affidavit, the plaintiff says:
I felt fear throughout court proceedings because of the number and the nature of posts by unidentifiable persons such as the defendant.
Without doubting the plaintiff’s feelings of fear, I do not think that the contents of paragraph [11] can give rise to any component of the general damages that I intend to award. The plaintiff is entitled to damages caused by the defamatory remarks made by the defendant, not by the posts made by “unidentifiable persons”.
Although the ZGeek site was apparently accessible through Google, there is little other evidence from which I can ascertain the extent to which the posts were read by any particular number of people.
In paragraph [118] of his judgment, Burns J made these findings:
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.
I have already said that I do not consider that the findings made by Burns J gave rise to any issue estoppel against the plaintiff in this matter. However, they do give an indication of the limited scope of identification of the plaintiff, which is not contradicted in the plaintiff’s affidavit. I am not in a position to say that, in the present case, only one person was able to identify the plaintiff. However, I think I can find that the number of persons who read the posts, and also identified the plaintiff, was small.
The result of the above discussion concerning damages is that their extent must be modest. In my view, an appropriate sum for compensatory damages is $7,500. The plaintiff is entitled to interest dating back to 2010. I think most of the damage occurred at the time of, or for a short period after, the publication. I allow interest at 4% for 7 years. This is $2,100. The total judgment sum is $9,600.
The plaintiff, who has represented herself, seeks costs. Although the plaintiff is a solicitor, she is not a practising solicitor. This means that the various arguments arising from the Chorley principle do not apply (London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872).
In Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 the High Court restated this general principle at paragraph [2]:
The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.
In my view “justice requires” that the plaintiff not be out of pocket by her pursuit of the proceedings. To this end, I think she should be entitled to her disbursements.
Accordingly I make the following orders:
(i)Judgment for the plaintiff in the sum of $9,600.
(ii)The defendant is to pay the disbursements incurred by the plaintiff in the proceedings.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 14 July 2017 |
1
5
2