Ramandious v Habashy (No. 2) - [2015] NSWDC 146

District Court

New South Wales

Medium Neutral Citation: Ramandious v Habashy (No. 2) [2015] NSWDC 146
Hearing dates: 16 April 2015
Date of orders: 16 April 2015
Decision date: 16 April 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to the solicitors for the defendants to withdraw on the basis that they will file a Notice of Ceasing to Act.
(2) Grant leave to the plaintiff to rely on the Affidavit of Simon Maxwell of 15 April 2015, and note the contents of the affidavit of Mr Samir Habashy of 15 April 2015.
(3) The first defendant’s application for a second mediation date following the failure to attend the first mediation date by both defendants is refused.
(4) Note the first defendant appeared at 9:30am with Mr Hagen, but has left the court precinct after a short adjournment. The first defendant was called three times outside Court 13D at 10:40am – no appearance. Second defendant does not appear; first defendant advises the second defendant is overseas.
(5) Direct the defendants to file their Defence in 21 days.
(6) Defer the costs issues raised in my orders of 19 March 2015 until further order.
(7) Matter stood over for further directions to Thursday 14 May 2015 at 9:30am.
(8) Costs of today are reserved.
(9) Plaintiff to notify the defendants of the orders and that if they do not attend on the next occasion orders will be made in their absence.

Catchwords: PRACTICE AND PROCEDURE - parties ordered to attend court-annexed mediation - defendants failed to appear at mediation - no sufficient explanation given for the failure to attend - whether second mediation should be ordered - consideration of court resources - application for second mediation refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 26 and 28
Defamation Act 2005 (NSW)
Cases Cited: Mead v Allianz Australia Insurance Ltd [2007] NSWSC 500
Ramandious v Habashy [2014] NSWDC 237
Category: Procedural and other rulings
Parties: Plaintiff: Father Georgious Ramandious
First Defendant: Samir Habashy
Second Defendant: Ezat Andrawes
Representation:
Counsel:
Plaintiff: Mr S Maxwell (Solicitor)
Defendants: Mr O Hagen (granted leave to withdraw); Mr S Habashy (in person); No appearance for the second defendant
Solicitors:
Plaintiff: Sanford Legal
Defendants: Bateman Battersby (granted leave to withdraw); Mr S Habashy (in person); No appearance for the second defendant

File Number(s): 2014/212581
Publication restriction: None

Judgment

The Background to this application

The plaintiff commenced proceedings for defamation for publications in “Egypt News” on 5 March 2014 and 2 April 2014. The defendants, who appeared for themselves at the commencement of this litigation, filed a Defence on 4 September 2014 which failed to identify any of the defences generally pleaded under Defamation Act 2005 (NSW). The defendants then retained solicitors and Mrs Barnett of counsel. Following an imputations argument, an Amended Statement of Claim was filed: Ramandious v Habashy [2014] NSWDC 237.
On 22 December 2014 the parties were ordered to attend a court ordered mediation before an Assistant Registrar of this court…

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 Ramandious v Habashy (No. 2)

Details

AGLC: Ramandious v Habashy (No. 2) [2015] NSWDC 146
Case: [2015] NSWDC 146
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the case of Ramandious v Habashy (No. 2), the parties involved were the plaintiff, Ramandious, and the defendants, Habashy. The dispute pertained to the failure of the defendants to attend a court-annexed mediation session, a matter that was before the Supreme Court of New South Wales. The court was tasked with determining whether a second mediation session should be ordered and the implications of the defendants' absence on the allocation of court resources. The plaintiff had sought recourse for the defendants' failure to attend the first mediation session without providing a sufficient explanation, and had applied for a second mediation to be ordered.

The legal issues before the court included whether the refusal to attend the first mediation without adequate reason justified the ordering of a second session, and how to balance the need for efficient use of court resources against the potential benefits of further mediation. The court had to consider the extent to which the defendants' absence could be tolerated and whether it was appropriate to direct them to attend another mediation session. The court also needed to address the consequences of the defendants' actions on the progression of the case, including the potential need to make orders in their absence.

The court found that the defendants' failure to attend the mediation without providing a satisfactory explanation was not justified, and their application for a second mediation was refused. The court emphasised the importance of respecting court processes and the need for parties to adhere to court-ordered mediation sessions. The first defendant's appearance at the hearing, only to leave shortly after, and the second defendant's absence, with the first defendant indicating that the second defendant was overseas, further supported the court's decision. The court determined that the defendants' failure to attend the mediation without a compelling reason warranted the refusal of a second mediation session, and it directed the defendants to file their defence within a specified timeframe. The matter was then stood over for further directions, with costs of the hearing reserved and a warning issued to the defendants that further non-attendance could result in orders being made in their absence.

The final orders of the court included granting leave for the defendants' solicitors to withdraw, allowing the plaintiff to rely on certain affidavits, and directing the defendants to file their defence. The court also deferred the costs issues to a later date and warned the defendants of the consequences of not attending future hearings. The matter was set for further directions, and the plaintiff was instructed to notify the defendants of the court's orders.

Orders

Orders of the court

(1) Grant leave to the solicitors for the defendants to withdraw on the basis that they will file a Notice of Ceasing to Act.

(2) Grant leave to the plaintiff to rely on the Affidavit of Simon Maxwell of 15 April 2015, and note the contents of the affidavit of Mr Samir Habashy of 15 April 2015.

(3) The first defendant’s application for a second mediation date following the failure to attend the first mediation date by both defendants is refused.

(4) Note the first defendant appeared at 9:30am with Mr Hagen, but has left the court precinct after a short adjournment. The first defendant was called three times outside Court 13D at 10:40am – no appearance. Second defendant does not appear; first defendant advises the second defendant is overseas.

(5) Direct the defendants to file their Defence in 21 days.

(6) Defer the costs issues raised in my orders of 19 March 2015 until further order.

(7) Matter stood over for further directions to Thursday 14 May 2015 at 9:30am.

(8) Costs of today are reserved.

(9) Plaintiff to notify the defendants of the orders and that if they do not attend on the next occasion orders will be made in their absence.

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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Medium Neutral Citation:	Ramandious v Habashy (No. 2) [2015] NSWDC 146
Hearing dates:	16 April 2015
Date of orders:	16 April 2015
Decision date:	16 April 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the solicitors for the defendants to withdraw on the basis that they will file a Notice of Ceasing to Act. (2) Grant leave to the plaintiff to rely on the Affidavit of Simon Maxwell of 15 April 2015, and note the contents of the affidavit of Mr Samir Habashy of 15 April 2015. (3) The first defendant’s application for a second mediation date following the failure to attend the first mediation date by both defendants is refused. (4) Note the first defendant appeared at 9:30am with Mr Hagen, but has left the court precinct after a short adjournment. The first defendant was called three times outside Court 13D at 10:40am – no appearance. Second defendant does not appear; first defendant advises the second defendant is overseas. (5) Direct the defendants to file their Defence in 21 days. (6) Defer the costs issues raised in my orders of 19 March 2015 until further order. (7) Matter stood over for further directions to Thursday 14 May 2015 at 9:30am. (8) Costs of today are reserved. (9) Plaintiff to notify the defendants of the orders and that if they do not attend on the next occasion orders will be made in their absence.
Catchwords:	PRACTICE AND PROCEDURE - parties ordered to attend court-annexed mediation - defendants failed to appear at mediation - no sufficient explanation given for the failure to attend - whether second mediation should be ordered - consideration of court resources - application for second mediation refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 26 and 28 Defamation Act 2005 (NSW)
Cases Cited:	Mead v Allianz Australia Insurance Ltd [2007] NSWSC 500 Ramandious v Habashy [2014] NSWDC 237
Category:	Procedural and other rulings
Parties:	Plaintiff: Father Georgious Ramandious First Defendant: Samir Habashy Second Defendant: Ezat Andrawes
Representation:	Counsel: Plaintiff: Mr S Maxwell (Solicitor) Defendants: Mr O Hagen (granted leave to withdraw); Mr S Habashy (in person); No appearance for the second defendant Solicitors: Plaintiff: Sanford Legal Defendants: Bateman Battersby (granted leave to withdraw); Mr S Habashy (in person); No appearance for the second defendant
File Number(s):	2014/212581
Publication restriction:	None