Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Halime v Singapore Airlines Ltd [2018] NSWCA 155 Hearing dates: 16 July 2018 Date of orders: 16 July 2018 Decision date: 16 July 2018 Before: White JA at [1] and [16]; Sackville AJA at [15] Decision: 1. Summons dismissed. 2. The applicant pay the respondent's costs. Catchwords: APPEALS – Summons seeking leave to appeal from summary dismissal of proceedings – Where proceedings commenced 20 years after expiry of limitation period – Where summons seeking leave to appeal filed over three years after orders made – Where applicant pleads that they have suffered psychological trauma and severe trauma after witnessing engine explosion – Warsaw Convention and Hague Protocol applied – No adequate explanation for delay – Proposed appeal would have no prospects of success - Summons dismissed - No question of principle Legislation Cited: Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 11 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 51.10 Cases Cited: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 American Airlines Inc v Georgeopoulos [No 2] [1998] NSWCA 273 Halime v Singapore Airlines Limited [2014] NSWSC 1681 Kotsambasis v Singapore Airlines Limited (1997) 42 NSWLR 110 Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438; [2017] NSWCA 32 South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 Category: Procedural and other rulings Parties: Emile Halime (Applicant) Singapore Airlines Limited (Respondent) Representation: Counsel: Self-represented (Applicant) J Hogan-Doran (Respondent) Solicitors: HWL Ebsworth (Respondent) File Number(s): 2018/85315 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 1681 Date of Decision: 26 November 2014 Before: Adams J File Number(s): 2014/160077 [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.] Judgment 1. WHITE JA: By summons filed on 16 March 2018 the applicant, Mr Emile Halime, seeks leave to appeal from orders made in the Common Law Division (Adams J) on 26 November 2014 that the applicant's statement of claim be dismissed. 2. The applicant's proceedings were summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 3. Uniform Civil Procedure Rule, r 51.10(1)(b) required that a summons seeking leave to appeal from the orders of 26 November 2014 be filed and served within 28 days. The applicant requires an extension of time under r 51.10(2). 4. I would refuse the extension, partly on the ground that the delay of over three years in filing the summons is insufficiently explained, but primarily on the ground that the appeal for which leave is sought would have no prospects of success and the application for leave to appeal is bound to fail. 5. As to the first ground, the delay is gross. The applicant says that the reasons for the delay are that he was unaware of the requirement for the summons to be filed within 28 days. He says that there was no lawyer who would take the matter for him without payment and by inference he says that he was unable to afford legal representation. He was in Lebanon from April 2015 to June 2017. There is no adequate explanation as to why he did not bring the application which he has now brought (without legal assistance) by 24 December 2014. It is not a sufficient excuse that he was unaware of the period for the filing of the summons. The applicant was unrepresented before the primary judge. He is unrepresented now. If he could not obtain legal assistance but wished to pursue the claim he should have done so himself in December 2014. 6. As to the second ground, the applicant pleaded in his statement of claim that he had suffered "psychological trauma and severe trauma" as the result of the explosion of an engine on a Singapore Airlines flight on which he was travelling from Athens to Singapore on 28 May 1992. He alleged that he could see the fire through his window. The applicant says that he suffered an intense panic attack. He elaborated on that in the evidence read on this application. The plane returned to Athens and landed safely. The applicant claims to have suffered psychological trauma which, he alleges, triggered unusual physical reactions in his body. He did not plead that he suffered physical injury. 7. The primary judge accepted (for the purposes of the application for summary dismissal) that the applicant had significant psychological effects from his experience on the flight (Halime v Singapore Airlines Limited [2014] NSWSC 1681 at [1]). The respondent's liability in respect of personal injury was governed by the Convention for the Unification of Certain Rules Relating to International Carriage by Air, commonly known as the Warsaw Convention and the Hague Protocol that by s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) have the force of law in Australia in relation to any carriage by air to which the Convention applies. By s 13 of that Act the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being an injury that resulted in the death of the passenger, was in substitution for any civil liability of the carrier under any other law in respect of the injury. Article 17 of the Convention provided that the carrier was liable for bodily injury suffered by a passenger. 8. The first ground upon which the primary judge dismissed the applicant's claim was that Singapore Airlines could not be held liable for his "significant psychological effects" not being a "bodily injury" under the Convention. His Honour applied the decision of this Court in Kotsambasis v Singapore Airlines Limited (1997) 42 NSWLR 110 in finding that the applicant's injury would not be a "bodily injury" within the Convention. That decision was followed by this Court in American Airlines Inc v Georgeopoulos [No 2] [1998] NSWCA 273. In Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438; [2017] NSWCA 32 Macfarlan JA (with whom Ward and Gleeson JJA agreed) said (at [51]) that compensation under the Montreal Convention (that also confines liability to "bodily injury") for mental injuries is available only if they are a manifestation of physical injuries, or if they result from physical injuries. 9. The applicant's submission was not that his mental injuries resulted from or a manifestation of physical injuries, but rather that physical reactions of which he complains arose from the psychological trauma that he says he suffered. 10. The second ground upon which the applicant's claim was dismissed was that it was brought 20 years after the expiry of the limitation period provided for by Article 29(1) of the Convention. That Article extinguishes a passenger's right to damages if an action is not brought within two years from the date on which the aircraft arrived or ought to have arrived at its destination. The applicant was required to bring his claim by 29 May 1994 at the latest. 11. The primary judge observed that the Convention and the Civil Aviation (Carriers' Liability) Act do not provide a process for extension of the limitation period. 12. The primary judge's conclusion is undoubtedly correct (South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [28]; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 at [50] and [51]) in relation to s 34 of the Act which is in materially the same terms. 13. Granting leave to appeal would be futile. 14. In my view the summons should be dismissed with costs. 15. SACKVILLE AJA: I agree with the judgment of the presiding judge and with the orders his Honour proposes. The only matter I would add is this. If the statement of claim were intended to mount a claim not under the Convention but under the general law, then apart from a number of other difficulties the applicant would face, that claim would also be statute-barred. 16. WHITE JA: Accordingly the orders of the Court are: 1. Summons dismissed. 2. The applicant pay the respondent's costs. ********** 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: 16 July 2018