By Tim Maybury -
Snapshot
- Is a defamation claim in which there has been a final determination of liability but not an assessment of damages at the time of a bankruptcy a provable debt in that bankruptcy?
- The Federal Court considered this question and the question of what makes a judgment ‘final’ in a thought-provoking judgment.
- Practitioners would do well to consider Stewart J’s obiter in this case as it has potentially broad application across practice areas.
The applicants at first instance, Mr Sarina and Mr Green, commenced a proceeding in the Federal Circuit and Family Court of Australia (Division 2) (‘FCFCOA’) on 11 May 2018 alleging the respondent, Mr O’Shannassy, had defamed them in an email. Following a relatively lengthy procedural history, on 30 October 2020 the action was dismissed and on 17 December 2020 costs orders were made. The applicants appealed to the Federal Court of Australia and on 19 November 2021 Rares J allowed the appeal and ordered the matter be remitted to the FCFCOA for an assessment of damages, noting the Court on appeal was not in a position to assess the damages (Sarina v O’Shannassy [2021] FCA 1649 at [93]).
