Dannawi v Naoum
[2010] FMCA 1003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DANNAWI v NAOUM | [2010] FMCA 1003 |
| BANKRUPTCY – Petition. PRACTICE & PROCEDURE – Adjournment where debtor’s grounds of objections are identical to matters currently being considered by NSWSC in relation to stay of judgment – service of petition – whether debtor is the State of Lebanon or a “separate entity” as defined in the Foreign States Immunities Act 1985 (Cth). |
| Legal Profession Act 1994 Foreign States Immunities Act 1985 (Cth), cl.3, ss.23, 24, 25 |
| Applicant: | NABIL ZAFER DANNAWI |
| Respondent: | ROBERT NAOUM |
| File Number: | SYG 1976 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 December 2010 |
| Date of Last Submission: | 7 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mitry Lawyers |
| Counsel for the Respondent: | Mr C. Evatt |
| Solicitors for the Respondent: | Cadmus Lawyers |
ORDERS
Matter adjourned until 1 April 2011 with liberty to the applicant to restore the matter on two days prior notice for the purpose of taking an earlier date following an earlier decision of the New South Wales Supreme Court.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1976 of 2010
| NABIL ZAFER DANNAWI |
Applicant
And
| ROBERT NAOUM |
Respondent
REASONS FOR JUDGMENT
There comes before me today for hearing a bankruptcy petition against Mr Robert Naoum. Mr Naoum is the Consul-General for Lebanon in New South Wales. In 2009 Mr Naoum was the object of a posting on a website run by Mr Dannawi which he believed defamed him. He took the unusual step, in relation to defamation proceedings, of seeking an injunction to restrain the publication and was successful before Patten AJ of the Supreme Court of New South Wales on an interim basis. However, when the matter came before Harrison J of the same court for more a considered decision he failed. Mr Naoum appealed Harrison J’s decision to the Court of Appeal where McColl JA, Beazley and Macfarlan JJA agreeing, decided on 21 August 2009 that the application for leave to appeal would be dismissed with costs. Mr Dannawi then sought to enforce the costs orders he had obtained from the Court of Appeal and from Harrison J. He obtained a costs assessment and in, accordance with the Legal Profession Act 2004, filed that assessment with the Local Court whereupon it became a judgment of that court. He sought to enforce the judgment and eventually issued a bankruptcy notice.
Mr Naoum did not seek to set aside the bankruptcy notice but refused to accept service of the petition that followed. He also commenced by way of correspondence, his claim that he was entitled to diplomatic immunity in respect of the enforcement of the costs judgment against him. Mr Dannawi was required to obtain substituted service of the bankruptcy petition, which he did by order of a Registrar of this court on 29 September 2010. It is noteworthy that Mr Naoum did not seek review of that decision. He comes to the court today continuing his argument with regard to diplomatic immunity and now says, in addition, that the order for substituted service was invalid because it did not comply with the requirements of the Foreign States Immunities Act 1985 (Cth).
In regard to Mr Naoum’s alleged personal immunity, the matter was considered in some detail by Magistrate Heilpern in the Local Court of New South Wales where Mr Naoum sought but did not obtain a stay of the judgment. Having considered the papers and submissions made in the case before me I am satisfied that the matters with which Mr Naoum wishes me to deal in respect of the alleged immunity are substantially identical with those considered by Magistrate Hielpern and were the subject of his judgment dated 25 October 2010. That judgment, I am told has been appealed to the Supreme Court of New South Wales where the application for leave to appeal (which those appearing for Mr Dannawi say was not necessary) is due to be heard on 23 February 2011.
However, I am now informed by the parties that an application is going to be made to the Supreme Court this month for security for costs and also for expedition. Those appearing for Mr Naoum have indicated to me that there will be no resistance to the application for expedition. In those circumstances I am of the view that comity requires that I should postpone the hearing of the petition pending the decision of the Supreme Court, because that court is currently seized of the very matters that I have been asked to consider.
This leaves the question of whether the petition was validly served in accordance with the order for substituted service or whether the petition was required to be served in accordance with the provisions of the Foreign States Immunities Act1985. In clause 3 of that Act there is an interpretation of various terms used. Foreign State is defined as:
“a country, the territory of which is outside Australia, being a country that is:
(a) an independent foreign state; or
(b) a separate territory (whether or not it is self-governing) that is not part of an independent sovereign state.”
There is also a definition of a separate entity. This states that a separate entity is:
“In relation to a foreign State, means a natural person (other than an Australian citizen) or a body corporate or corporation sole (other than a body corporate or corporation sole that has been established by or under a law of Australia) who or that:
(a) is an agency or instrumentality of the foreign State; and
(b) is not a department or organ of the executive government of the foreign State.”
The Act provides in s.9 that there is a general immunity from jurisdiction for a foreign state but then proceeds to deal with cases where a foreign state has submitted to jurisdiction. Part III of the Act deals with service and judgments. Section 23 deals with service of initiating process by agreement and s.24 refers to service through the diplomatic channels. Section 25 states:
“Purported service of an initiating process upon a foreign State in Australia otherwise than as allowed or provided by section 23 or 24 is ineffective.”
The short point Mr Evatt, on behalf of Mr Naoum, seeks to make is that Mr Naoum is a foreign State or possibly a separate entity of a foreign State. This is not a submission that I accept. The State of Lebanon has not been sued in these proceedings. Nor was it a party to the proceedings brought by Mr Naoum against Mr Dannawi. Mr Naoum may be the Consul-General for Lebanon but that would not constitute him as a separate entity of that state because it is Mr Naoum’s argument in relation to his own personal immunity that he is an organ of the executive government of Lebanon. He claims that he is a diplomat. He cannot be a separate entity and a diplomat at the same time. To my mind the reference in the Act to separate entity is to some organisation which is clearly acting on behalf of the state in relation to its affairs. So, for example, if there was such a thing as the State of Lebanon Cultural Organisation that might constitute a separate entity of the state.
In these circumstances I am satisfied that Mr Naoum was properly served with the petition and that the petition should be heard as soon as possible after the Supreme Court has made its decision upon the appeal against the decision of Magistrate Heilpern.
I adjourn the matter until 1 April 2011 with liberty to the applicant to restore the matter on two days prior notice for the purpose of taking an earlier date following the earlier decision of the New South Wales Supreme Court. Costs are reserved.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM delivered on 7 December 2010.
Date: 21 December 2010
0
0
0