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Bankrupt solicitor’s defamation action hits wall
An NSW solicitor’s bankruptcy status threw a wrench in his defamation action over comments that suggested he allegedly committed fraud and was kicked out of the legal profession.
Naomi Neilson
Solicitor Saba Hanania brought defamation action against Bradley James Robinson and Elizabeth Abbate in the NSW Supreme Court over allegedly published imputations that suggested he was struck off the roll of solicitors and was guilty of fraud.
“The plaintiff, who became ill, gave notice to the Law Society of NSW that he was ceasing practice as a solicitor [and] 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,” the court said.
Although the court originally issued ex tempore reasons for judgment in early July and directed Hanania file a short minute of orders, it later came to its attention the solicitor had been the subject of a bankruptcy order and was currently an undischarged bankrupt.
The July proceedings had been listed at short notice, and the court did not have the opportunity to read the defendant’s affidavits. It was in one of the two that the bankruptcy order was mentioned.
At the relisted hearing, Hanania admitted to being an undischarged bankrupt but said he was currently appealing the orders.
However, the difficulty under the Bankruptcy Act 1966 meant any action commenced by a bankrupt is stayed until the trustee makes an election to prosecute or discontinue. If it does not make a decision, the trustee “shall be deemed to have abandoned the action”.
Hanania claimed the defamation action should continue because, as a bankrupt, he is entitled to be employed and earn wages, but “the wrong done to him” has prevented him from doing so”.
He added that defamation is a “wrong or injury”, as it relates to damage to reputation, and is exempt from the act on those grounds.
However, Justice Stephen Rothman said the defamation proceedings did not seek damages or compensation, with Hanania only seeking injunctive relief in the summons and notice of motion.
“The foregoing does not suggest that injunctive relief can never be the subject of relief for damages or in proceedings that are otherwise for damages or compensation for a personal injury or wrong at the behest of the bankrupt,” Justice Rothman said.
“One may imagine, in such proceedings, injunctive relief may be necessary in order to preserve the capacity of a court to resolve the issues.
“Nevertheless, such a situation is not now before the court as presently constituted and does not require determination or further discussion.”
In these circumstances, the orders made in July were vacated and the summons dismissed.
Hanania was also ordered to pay costs.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
