Aerolineas Agentinas v Federal Airports Corporation

[1996] FCA 164

CATCHWORDS

PRACTICE AND PROCEDURE - Amendment of statement of claim

AEROLINEAS ARGENTINAS AND ORS v FEDERAL AIRPORTS CORPORATION
No. NG978 of 1993
Beazley J
6 March 1996
Sydney

IN THE FEDERAL COURT OF AUSTRALIA )
  )    No. NG978 of 1993
NEW SOUTH WALES DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN:AEROLINEAS ARGENTINAS

First Applicant
  AIR CALEDONIE
  INTERNATIONAL
  Second Applicant
  AIR FRANCE
  Third Applicant
  AIR LANKA
  Fourth Applicant
  AIR MAURITIUS
  Fifth Applicant
  AIR NAURU
  Sixth Applicant
  AIR NEW ZEALAND LIMITED
  Seventh Applicant
  AIR NIUGINI
  Eighth Applicant
  AIR PACIFIC LIMITED
  Ninth Applicant
  ALITALIA LINEE AEREE
  ITALIANE S.P.A.
  Tenth Applicant
  ALL NIPPON AIRWAYS CO
  LIMITED
  Eleventh Applicant
  ANSETT TRANSPORT INDUSTRIES
  (OPERATIONS) PROPRIETARY
  LIMITED
  Twelfth Applicant
  AUSTRALIAN AIRLINES LIMITED
  Thirteenth Applicant
  BRITISH AIRWAYS PLC
  Fourteenth Applicant
  CANADIAN AIRLINES
  INTERNATIONAL LIMITED
  Fifteenth Applicant
  CATHAY PACIFIC AIRWAYS LTD
  Sixteenth Applicant
  CONTINENTAL AIRLINES INC.
  Seventeenth Applicant
  EAST WEST (AIRLINES)
  OPERATIONS LTD
  Eighteenth Applicant
  P.T. GARUDA INDONESIA
  Nineteenth Applicant
  JAPAN AIRLINES CO LIMITED
  Twentieth Applicant

K L M ROYAL DUTCH AIRLINES
  Twenty First Applicant
  KOREAN AIR
  Twenty Second Applicant
  LAUDA-AIR
  Twenty Third Applicant
  LUFTHANSA GERMAN AIRWAYS
  Twenty Fourth Applicant
  MALAYSIAN AIRLINE SYSTEM
  SDN BERHAD
  Twenty Fifth Applicant
  MIDDLE EAST AIRLINES
  Twenty Sixth Applicant
  NORTHWEST AIRLINES INC
  Twenty Seventh Applicant
  OLYMPIC AIRWAYS S.A.
  Twenty Eighth Applicant
  PHILIPPINE AIRLINES INC
  Twenty Ninth Applicant
  QANTAS AIRWAYS LTD
  Thirtieth Applicant
  SINGAPORE AIRLINES LTD
  Thirty First Applicant
  SOUTH AFRICAN AIRWAYS LTD
  Thirty Second Applicant
  THAI AIRWAYS INTERNATIONAL
  LTD
  Thirty Third Applicant
  UNITED AIRLINES INC
  Thirty Fourth Applicant

AND:FEDERAL AIRPORTS CORPORATION

Respondent

CORAM:BEAZLEY J

PLACE:    SYDNEY
DATE:     6 March 1996

REASONS FOR JUDGMENT

On the 21 December 1995, I delivered judgment on the separate question whether the applicants, in proceedings to recover monies paid to the respondent, could collaterally challenge  the validity of the respondent's determination made June 1991 (the June 1991 determination), imposing charges on airlines  using certain of the respondent's airports, or whether it was necessary for any such challenge to be first by way, of or at least made contemporaneously with, an application under the Administrative Decisions (Judicial Review) Act, (1975) (Cth) (the AD(JR) Act).  I determined that collateral challenge was available. 

My decision in that respect made it unnecessary to determine a further question relating to the time in which proceedings under the AD(JR) Act were to be commenced.   However, I considered it appropriate to express my views on that issue.  It is this aspect of my judgment which requires elaboration because of issues which arose in the process of the parties preparing short minutes of order to reflect my reasons for judgment of 21 December 1995.  It is appropriate that I recount certain of the history to place the issue at hand in context.

On 26 August 1993, the applicants commenced proceedings in the Supreme Court of New South Wales by way of statement of claim, seeking recovery of the sum of approximately $25 million, being monies paid under the June 1991 determination (the recovery proceedings).  As originally pleaded, the applicants also sought declarations that the June 1991 determination was invalid, and that no amounts are or were ever payable by the applicants pursuant to the determination. 

The respondent contended that the claim made by the applicants was a special Federal matter within the meaning of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and applied to have the Supreme Court proceedings transferred to this Court. On 19 November 1993, Ireland J ordered that the proceedings be transferred to this court.

On the 24 December 1993, the applicants filed a notice of motion seeking an extension of time in which to commence proceedings challenging the June 1991 determination.  The application was formulated as an application under s 11(3) of the AD(JR) Act and was initially argued on that basis by counsel for the applicants.  For convenience I will refer to this notice of motion as the extension of time application. 

Both parties approached the court for the determination of a separate question, although at that time they did not agree as to the formulation of the question.  However, both agreed as to issue involved - namely, whether the applicants were entitled to bring the recovery proceedings without having challenged the June 1991 determination in appropriately constituted administrative law proceedings.  This issue itself  involved the determination of a another question - whether the June 1991 determination was administrative in nature.  I determined that the June 1991 determination was administrative in nature.  I further determined that notwithstanding the scheme of the AD(JR) Act, collateral challenge remains available in Australia for jurisdictional error.

Strictly, this meant that it was not necessary to consider the application for extension of time.  However, I considered it appropriate to do so.  I was sitting as a trial judge.  An appeal in the matter would not be unexpected, given its complexity and novelty, and the fact that large sums of money were at stake.  In such circumstances it is appropriate for a trial judge to consider all issues before the court.

It became clear during the course of hearing the application for extension of time that s 11(3) did not apply, but that any  time issue in relation to the commencement of AD(JR) proceedings by the applicants was to be determined under s 11(4) (the s 11(4) issue).  It was apparent to me during the hearing that counsel for the applicants accepted that this was so.  Section 11(4) provides:

"Where:

(a)no period is prescribed for the making of applications for orders of review in relation to a particular decision;

...

the Court may:

(c)In a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph...

...

if the Court is of the opinion that the application was not made within a reasonable time after the decision was made."

I approached the s 11 (4) issue on the basis that an application under the AD(JR) Act had been filed at the same time as the application for extension of time.  However, an application in the form of the draft application annexed to the affidavit in support of the application for extension of time was not filed until 5 January 1996 (proceedings NG 93 of 1996).  The immediate effect of my error in approaching the matter on this basis is obvious.  I made a determination in respect of an unfiled application.  The consequence is that there is no s 11(4) determination in respect of proceedings NG 93 of 1996.  If the respondent now wishes to have the court exercise its discretion under s 11(4) to refuse to allow that application to proceed, it would have to make the appropriate application.  The respondent considered it was unnecessary to do so as it has at all times treated the original statement of claim filed in the Supreme Court as an application under the AD(JR) Act.  Indeed, its view has always been that as no collateral challenge is available in respect of a decision which falls within s 3 of the AD(JR) Act, the statement of claim could have been nothing else. 

There are difficulties with the respondent's approach.  First, whilst the statement of claim initially included relief by way of the declarations to which I have referred, relief which is available under s 16 of the AD(JR) Act, the applicants undertook to amend the statement of claim so as withdrew those claims during the course of the proceedings before Ireland J in the Supreme Court.  The only relief it thereafter claimed in the statement of claim was for the recovery of the monies paid under the allegedly invalid determination.  Secondly, I treated the matter on the basis that the statement of claim was a common law claim and that the applicants had in fact filed an application under the AD(JR) Act.

That left the question of what should be done to give effect to my reasons for judgment of 21 December, 1996.  Three courses suggested themselves.  First, the statement of claim could now be treated as an application under the AD(JR) Act.  I do not consider that an appropriate way to proceed, given the way I approached the matter.  Nor do I consider that that approach was consistent with the way the applicant had presented its case.  The second possibility would be for the respondent to make an application under s 11(4) in respect of the AD(JR) application filed on 5 January 1996.  A third course was for the applicants to make an application to amend the statement of claim so as to include in it an application under the AD(JR) Act.  The applicants invoked this course and made an oral application to amend the statement of claim to incorporate the claim made in the draft AD(JR) application. 

Counsel for the respondents opposed the application to amend.  His opposition to the proposed amendment, whilst not merely formal, was based upon his concern that the respondent could not be expected to know all the ramifications which might flow from the amendment.  However, counsel for the respondent had already agreed with counsel for the applicants that the only delay of which the respondent complained was that which occurred prior to the 26 August, 1993, that is the date of filing the statement of claim.

After hearing both parties, I considered that leave to amend should be granted.  The considerations which were relevant to the s 11(4) issue are also relevant to the application to amend.  I considered that the amendment should be allowed for the same reasons that I was not prepared to exercise my discretion under s 11(4).  Consistent with what I had intended in my reasons for judgment of 21 December, 1995, I consider that the amendment should date from 24 December 1993, the date on which the application for extension of time was filed.   Neither counsel opposed that course.   Counsel are to incorporate the order as to amendment in the short minutes of order which are to be brought in in respect of judgment of 21 December.

I certify that this and the preceding 7 pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Beazley.

Associate:

Dated:    6 March 1996.

APPEARANCES

Counsel for the Applicant:           Messrs Campbell QC and Sullivan

Solicitors for the Applicant:             Messrs Middletons Moore & Bevin

Counsel for the Respondent:          Messrs A Robertson & P Braham

Solicitors for the Respondent:       Messrs Mallesons Stephens Jaques

Dates of hearing:  5, 23 and 29 February, 1996