Piscioneri v Whitaker - [2017] ACTSC 174

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 Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Piscioneri v Brisciani [2015] ACTSC 106 Re South American and Mexican Company, Ex parte Bank of England [1895] 1 Ch 37
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…

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 Whitaker

Details

AGLC: Piscioneri v Whitaker [2017] ACTSC 174
Case: [2017] ACTSC 174
Decision Date: 14 July 2017

CaseChat Overview and Summary

The case of Piscioneri v Whitaker involved a dispute between the plaintiff and the defendant over defamatory statements made by the defendant about the plaintiff. The matter was heard in the Federal Circuit Court of Australia. The plaintiff sought damages for defamation and was granted a default judgment as the defendant failed to respond to the proceedings. The court was required to determine the appropriate amount of damages to award the plaintiff.

The primary legal issue before the court was the calculation of damages for the defamatory statements made by the defendant. The court considered the nature and extent of the defamation, the harm caused to the plaintiff's reputation, and the appropriate remedy for the harm suffered. The court also took into account the defendant's failure to respond to the proceedings, which led to the default judgment.

In its decision, the court found that the defamatory statements made by the defendant were serious and had caused significant harm to the plaintiff's reputation. The court awarded the plaintiff $9,600 in damages, reflecting the harm suffered and the need for deterrence and reparation. The court also ordered the defendant to pay the plaintiff's disbursements incurred in the proceedings.

The final orders of the court were that judgment was to be entered in favour of the plaintiff for the sum of $9,600, and that the defendant was to pay the plaintiff's disbursements incurred in the proceedings.

Orders

Orders of the court

(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.

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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