Supreme Court New South Wales Medium Neutral Citation: Naoum (Consul General for Lebanon in Sydney) v Dannawi [2011] NSWSC 23 Hearing dates: 25 January 2011 Decision date: 25 January 2011 Jurisdiction: Common Law Before: Pembroke J Decision: 1 I order the plaintiff to give to the defendant security for the defendant's costs of these proceedings; 2 The amount of security should be agreed between the parties or fixed by a Registrar of this court; 3 I order a stay of the proceedings unless and until security is provided in an amount and form that is agreed, or failing agreement, fixed by a Registrar; 4 I dismiss the application for expedition; 5 I order the plaintiff to pay the costs of both notices of motion. Catchwords: SECURITY FOR COSTS - diplomatic immunity - personal right of action for defamation - not in exercise of consular function Legislation Cited: Consular Privileges & Immunities Act 1972 (Cth) Vienna Convention on Consular Relations 1963 Cases Cited: Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 Packer v Meagher [1984] 3 NSWLR 486 Category: Principal judgment Parties: Robert Naoum (Consul General for Lebanon in Sydney) (Plaintiff) Nabil Zafer Dannawi (Defendant) Representation: Counsel: M Rollinson (Plaintiff) P A Maddigan (Defendant) Solicitors: Cadmus Lawyers (Plaintiff) Mitry Lawyers (Defendant) File Number(s): 2010/00224488 Judgment EX TEMPORE 1There are two Notices of Motion before me. One seeks expedition of these proceedings. Both parties join in this application. The other seeks security for costs. The factual history of these proceedings is long and tortured. The plaintiff has been unsuccessful every step along the way. I have reached the view that it is probable that he will continue to be unsuccessful and that the circumstances justify an order for security for costs. The sequence of events which gives rise to me having reached that conclusion is as follows: (a) On 5 August 2009 the plaintiff commenced proceedings for defamation against the defendant seeking, among other things, injunctive relief. On the same day Patten AJ granted injunctive relief on an interim basis; (b) On 12 August 2009 Harrison J discharged the injunction and ordered the plaintiff to pay the defendant's costs; (c) On 21 August 2009 the Court of Appeal dismissed the plaintiff's application for leave to appeal from that decision with costs; (d) On 23 July 2010 the costs of the proceedings became the subject of a judgment in the Local Court in the sum of $17,691.36 payable by the plaintiff; (e) On the same day, the plaintiff filed a Notice of Motion in the Local Court seeking a permanent stay of the costs judgment; (f) On 3 September 2010, the Notice of Motion was heard by Magistrate Heilpern. The plaintiff sought a stay in reliance on Articles 43 to 45 of the Vienna Convention on Consular Relations. The Convention has the force of law in Australia by reason of s 5 of the Consular Privileges and Immunity Act. The plaintiff, I should observe, is the Consul for Lebanon in Sydney; (g) On 26 October 2010 the Magistrate gave a reserved judgment which was manifestly careful and well-reasoned. He dismissed the application for a stay; (h) Meanwhile in September 2010 the defendant commenced bankruptcy proceedings against the plaintiff for non-payment of the costs judgment; (i) By a final counterpoise, on 23 November 2010 the plaintiff then sought leave to appeal from the Magistrate's decision that diplomatic and consular immunity did not apply. 2The security which the defendant now seeks is in respect of the costs of those proceedings, namely the application for leave to appeal from the Magistrate's decision dismissing the stay application based upon diplomatic and consular immunity. 3There are two factors in these circumstances which I regard as special and which justify the grant of security. The first is the long history of repeated failure in each and every application brought by the plaintiff in this litigation. In many, possibly all of those applications, he has been represented by Mr Clive Evatt of counsel. In all of those failed applications the defendant has incurred costs. And the plaintiff has demonstrated an obdurate unwillingness to pay those costs. 4It would be oppressive to the defendant and it would impose an unfair hardship to him, if the plaintiff were permitted to litigate further without facing up to his liability to pay the defendant's costs. If security were ordered it might even result in the plaintiff conducting a realistic appraisal of his claim and its legal and factual merits. 5The second factor is that I see no sound basis for the plaintiff's underlying contention that he is entitled to diplomatic immunity. I regard it as groundless. I mentioned that the Vienna Convention has the force of law by reason of the Consular Privileges and Immunities Act. Section 10 of the Act provides that consular employees of a consular post of an overseas country are entitled to immunity from jurisdiction in respect of official acts performed in the exercise of their functions. 6Similarly, Article 43 of the Convention states that "Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions". Article 5 of the Convention sets out a long list of what consular functions amount to. They include, as one might expect, helping and assisting nationals, safeguarding the interests of nationals, acting as notary and civil registrar, issuing passports, furthering the development of commercial, economic, cultural and scientific relations and performing any other functions entrusted to a consular post. 7It is reasonably clear, given the nature of the plaintiff's cause of action for defamation, and the language of both the Convention and the Act, that the plaintiff's contention is unlikely to succeed. Diplomatic and consular immunity is only available in respect of actions performed in the exercise of a consular function. It goes without saying that defamation is a personal cause of action whose object is to vindicate and protect the personal reputation of the person defamed: Packer v Meagher [1984] 3 NSWLR 486 at 492 (Hunt J), see also Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [42] (McColl JA). The proceedings were brought by the plaintiff in his personal capacity. The content of the matter of which he complained was directed at his character, reputation, esteem and standing. 8It follows, in my view, that the only possible way in which the plaintiff could have commenced the proceedings for defamation was in his personal capacity rather than in his consular capacity. It also follows that he cannot avoid his liability for the payment of the defendant's costs of his failed action by sheltering behind diplomatic and consular immunity. 9For those reasons I propose to make the following orders: (a) I order the plaintiff to give to the defendant security for the defendant's costs of these proceedings; (b) The amount of security should be agreed between the parties or fixed by a Registrar of this court; (c) I order a stay of the proceedings unless and until security is provided in an amount and form that is agreed, or failing agreement, fixed by a Registrar; (d) I dismiss the application for expedition; (e) I order the plaintiff to pay the costs of both notices of motion. 10I should explain that I have dismissed the application for expedition because I do not regard expedition as being warranted given my views about the underlying claim and the necessity that there be security for the defendant's costs. If security is provided and the stay is lifted, and expedition becomes necessary, the plaintiff can make a further application for expedition. But the effect of my orders is that the proceedings will come to a halt as of today and will only be revived if and when the plaintiff provides security for the defendant's costs of these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2011