Nasr v Etihad Airways PJSC [2013] NSWSC 1041

Supreme Court New South Wales

Medium Neutral Citation: Nasr v Etihad Airways PJSC [2013] NSWSC 1041 Hearing dates: 21 June 2013 Decision date: 21 June 2013 Jurisdiction: Common Law Before: Adams J Decision: The statement of claim is struck out with costs. Legislation Cited: Limitation Act 1969 Cases Cited: In the Matter of Jireh Karalae Pty Limited [2011] NSWSC 1162 Category: Interlocutory applications Parties: Nabil Nasr (Applicant) Etihad Airways PJSC (First Respondent) Omar Yassine (Second Respondent) Representation: Counsel: J Gruzman (First Respondent) Solicitors: Karl Balian & Co Pty Limited (First Respondent) Sterling Legal (Second Respondent) File Number(s): 2012/386466 Publication restriction:

EX TEMPORE JUDGMENT 1The plaintiff had a travel business and had arranged for customers to fly to Lebanon with the first defendant on 22 May 2009. His statement of claim, which was filed initially on 13 December 2012, with subsequent amendments filed on 15 March 2013 and 14 May 2013, alleges in substance that he had arranged tickets and reservations on that date for about 100 passengers to travel to Lebanon. The plaintiff alleges that, when the passengers arrived at the check-in, they were denied boarding and were informed by Etihad (or employees of Etihad), in effect that the tickets that those passengers were holding were a "scam and fraud and unpaid for". In the circumstances, if this allegation were true, it might well be that the plaintiff was defamed by such assertions. (The plaintiff alleges various other facts which followed from the refusal to check-in his clients which are not presently relevant.) 2The second defendant is named because, as it appears from the statement of claim, his travel agency benefited from the diversion of customers from the plaintiff's business. I note, however, that the statement of claim does not allege any facts which could make him a party to the alleged defamation, although it is claimed that he had conspired with Etihad. 3The defendants seek to strike out the statement of claim upon a number of grounds but it is necessary only to refer to that which concerns the application of the Limitation Act 1969. Section 14B of the Act provides that an action for defamation is not maintainable if brought after the expiration of one year commencing on the date of the publication of the matter complained of. 4As I have already mentioned, the statement of claim alleges defamatory statements made by or on behalf of the first defendant. Section 56A of the Act provides for an extension of time but only up to three years from the date of publication. Accordingly, even if the plaintiff was in a position to satisfy the requirements of section 56A that "it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of publication", he would only be able to obtain an extension to 22 May 2012 which is some seven months before proceedings were actually commenced. 5Mr Nasr has brought to my attention the fact that he was involved in earlier proceedings against Etihad. Those proceedings were not for defamation but rather in connection with the winding up of Jireh Karalae Pty Limited (a company owned by the plaintiff) by Etihad and involved the question of whether moneys were owed to Etihad as claimed in the statutory demand which gave rise to the winding up and, secondly, whether the company had a claim against a third party: see In the Matter of Jireh Karalae Pty Limited [2011] NSWSC 1162. It is clear that the litigation which came before White J had nothing to do in a legal sense with the present proceedings. 6It follows that a Limitation Act defence must necessarily succeed. 7Accordingly, the statement of claim must be struck out with costs.