Saba Hanania v Bradley James Robinson - [2024] NSWSC 930

Supreme Court

New South Wales

Medium Neutral Citation: Saba Hanania v Bradley James Robinson & Anor [2024] NSWSC 930
Hearing dates: 4 July 2024
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   To the extent necessary, the Court vacates any and all Orders that may have been made in this matter on 4 July 2024;
(2)   The Court dismisses the Summons filed on 18 January 2024 and the Motion, notice of which was filed on 11 June 2024;
(3)   The plaintiff shall pay the defendants’ costs of and incidental to the proceedings.

Legislation Cited:
Commonwealth Constitution
Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Cox v Journeaux (No 2) (1935) 52 CLR 713;
Samootin v Shea [2010] NSWCA 371;
Faulkner vBluett (1981) 52 FLR 115
McMahon v John Fairfax Publications Pty Ltd(No 7) (2013) 277 FLR 418; [2013] NSWSC 933
Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404

Category: Procedural rulings
Parties: Saba Hanania
(Plaintiff)
Bradley James Robinson (First Defendant)
Elizabeth Abbate (Second Defendant)
Representation: Counsel:
Solicitors:
Hanna Law (First and Second Defendants)

File Number(s): 2024/21559
Publication restriction: Nil.

JUDGMENT

HIS HONOUR: The above matter came before the Court by motion on notice. The motion sought interlocutory injunctions and permanent injunctions. There was no claim for damages or compensation.
The cause of action for the Court, on 4 July 2024, was said to be a cause of action in defamation.
It is alleged that the defendants published imputations against the plaintiff that the plaintiff was struck off the roll of solicitors and had committed fraud. On the material before the Court at present, each of those imputations, if they were published, were incorrect. The plaintiff, who became ill, gave notice to the Law Society of NSW that he was ceasing practice as a solicitor, as a consequence of which, the Law Society of NSW appointed a manager for his practice from the time, or shortly after the time, that he was to have ceased the conduct of the law practice.
On 4 July 2024, the Court, as presently constituted, issued ex tempore reasons for judgment, the effect of which was that the Court indicated that it would grant interlocutory injunctions in terms to be resolved by the Court and directed the plaintiff to file a Short Minute of Order.
The proceedings on 4 July 2024 were listed at short notice. The Court intimated that it had read the plaintiff’s affidavit. It had not had an opportunity to read the defendants’ affidavits. Nevertheless, the Court had read both sets of submissions.
The affidavits, or one of them, filed by the defendant, referred to the circumstance that the plaintiff was the subject of a Bankruptcy Order in the Federal Court of Australia on 15 December 2022. The plaintiff has not filed a Statement of Claim in defamation (or any other cause of action)…

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.

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Details

Case: [2024] NSWSC 930
Decision Date: 31 July 2024

CaseChat Overview and Summary

Saba Hanania, a former solicitor, filed a summons and motion seeking injunctions against Bradley James Robinson and Elizabeth Abbate in relation to alleged defamatory publications made by the defendants. Hanania claimed that the defendants had published incorrect information suggesting that he had been struck off the roll of solicitors and had committed fraud. The matter was heard in the Supreme Court of New South Wales, where the Court issued ex tempore reasons for judgment, indicating that it would grant interlocutory injunctions. However, the Court was not aware at the time that Hanania was an undischarged bankrupt. The defendants raised Hanania's bankrupt status as a bar to the proceedings, citing sections 60 and 116 of the Bankruptcy Act 1966 (Cth). The Court concluded that the Bankruptcy Act did not permit Hanania to seek injunctive relief as he was a bankrupt, and the proceedings were not for damages or compensation for a personal injury or wrong done to him.

The court reasoned that the Bankruptcy Act provisions meant that actions commenced after a person becomes bankrupt are stayed until the trustee makes an election, and if no election is made, the action is deemed abandoned. The Court found that Hanania's claim for injunctive relief did not fall within the exceptions under the Bankruptcy Act, as the Act only allows for actions concerning personal injury or wrongs done to the bankrupt, their spouse, or family. Since the proceedings sought injunctive relief rather than damages or compensation, the Court concluded that the Bankruptcy Act barred Hanania's claim. The Court dismissed the summons and motion, and ordered Hanania to pay the defendants' costs of the proceedings.

The court's decision underscores the importance of considering a litigant's financial status when determining the scope of permissible legal actions. By highlighting the limitations imposed by the Bankruptcy Act, the Court ensured that the legal process adhered to federal legislation governing bankruptcy proceedings in Australia.

Orders