Nasr v Etihad Airways PJSC

[2013] NSWCA 381

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Nasr v Etihad Airways PJSC [2013] NSWCA 381

Hearing dates:

12 November 2013

Decision date:

12 November 2013

Before:

Meagher JA at [1];
Barrett JA at [1]

Decision:

Application for leave dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - claim for damages for defamation - commenced more than three years after publication - struck out because statute-barred - application for leave to appeal - dismissed - no question of principle.

Legislation Cited:

Limitation Act 1969, s 14B, s 56A
Supreme Court Act 1970, s 101(2)(e), (r)

Category:

Principal judgment

Parties:

Nabil Nasr (Applicant)
Etihad Airways PJSC (First Respondent)
Omar Yassine (Second Respondent)

Representation:

Counsel:
N Nasr in person (Applicant)
J Gruzman (First Respondent)
No appearance (Second Respondent)
Solicitors:
Karl Balian & Co Pty Ltd (First Respondent)
Sterling Legal (Second Respondent)

File Number(s):

2013/214235

 Decision under appeal 

Jurisdiction:

9111

Citation:

Nasr v Etihad Airways PJSC [2013] NSWSC 1041

Date of Decision:

2013-06-21 00:00:00

Before:

Adams J

File Number(s):

2012/386466

Judgment

1. THE COURT: The applicant (Mr Nasr) seeks leave to appeal from a judgment of Adams J: Nasr v Etihad Airways PJSC [2013] NSWSC 1041. By that judgment the primary judge ordered that Mr Nasr's statement of claim in proceedings for damages for defamation be struck out. Leave is required to appeal from that judgment either because it was interlocutory or, if final, involves an amount in issue of less than $100,000: s 101(2)(e), (r), Supreme Court Act 1970. It is not necessary to decide whether the order striking out the statement of claim was final or interlocutory.

1. On 13 December 2012 Mr Nasr brought proceedings against a Ms Nahyan and Etihad Airways PJSC (Etihad) for damages for defamation resulting from alleged conduct of Etihad on 22 May 2009. Mr Nasr alleges that a travel agency with which he was associated, Advance Travel Gosford, had arranged tickets and reservations with Etihad on that date on behalf of 100 passengers travelling to Lebanon. He alleges that when those passengers arrived at check-in they were denied boarding and informed by Etihad that the tickets they were holding were a "scam and fraud and unpaid for". Mr Nasr alleges that the making of those allegations was defamatory of him and his business.

1. On 15 March 2013 Mr Nasr filed an Amended Defamation Claim which named three further defendants, Middle East Travel, Abdullah Elmir and Omar Yassine. That pleading made the same allegations, but in more detail, against each of the defendants. On 14 May 2013 Mr Nasr further amended his claim to remove as named defendants, Ms Nayhan, Middle East Travel and Abdullah Elmir.

1. On 14 June 2013 Etihad and Mr Yassine filed motions to strike the proceedings out on grounds which included that the actions for defamation were not maintainable because they were brought more than one year after the publications complained of: s 14B, Limitation Act 1969. Those motions were returnable on 21 June 2013. On that day they were referred by Senior Deputy Registrar Kenna to Adams J for hearing. Following short argument Adams J dismissed the proceedings with costs. His Honour did so on the basis that the claims made were statute barred.

1. In his draft notice of appeal, Mr Nasr describes his three grounds of appeal as follows:

1. On 21st of June Judge Adams admitted that he has not read any of my submitted file and yet dismissed my case.

2. Senior Deputy Registrar Kenna referred the matter to Judge Adams in my absence despite my attendance to her court at 9.00am on 21 June 2013.

3. On 24 May 2013 Registrar Bradford stated that on 21 June 2013 there will be only mention and if I am ready he will then refer the matter for hearing and in fact I was still waiting for the AFP to provide certain documents in their possession.

1. These grounds do not address or challenge the merits of the decision to strike out on the basis that the defamation claim was statute barred. The proceedings were commenced more than three years after the alleged defamation in May 2009. Section 14B provides for a limitation period of one year. Section 56A permits the Court "if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of publication" to extend that limitation period to a period of up to three years running from the date of publication. As the primary judge observed at [4], even if Mr Nasr was in a position to satisfy the requirements of that section, he could not obtain an extension of time which would prevent the action from being statute barred. It follows that the primary judge was correct in concluding that the proceedings were statute barred and in striking out the statement of claim.

1. The proposed grounds of appeal do not raise any matter which could possibly produce a different outcome to that resulting from the primary judge's orders. Nor do they indicate that Mr Nasr was denied procedural fairness. When the proceedings were before Registrar Bradford on 24 May 2013 they were stood over to 21 June with an indication that on that day directions would be made for the filing of evidence and a date fixed for the hearing of the motions. On 21 June it would seem that there was no appearance before the Registrar by Mr Nasr at the time the matter was called. The defendants indicated they were ready to proceed with their motions. They were then referred to Adams J. At that time Mr Nasr appeared in person and Adams J proceeded to hear the motions. The transcript does not suggest that Mr Nasr sought an adjournment or argued that he was not ready to proceed with the hearing of the motions.

1. At the commencement of the hearing of the motions Adams J pointed out that he had not had an opportunity to look at the file and requested that counsel explain to him what the matter was about. That occurred. By the time the matter was finally disposed of the primary judge was aware of the relevant issues, as his reasons confirm.

1. Mr Nasr's appeal has no prospects of success. For that reason the application for leave should be dismissed with costs.

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Decision last updated: 13 November 2013