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Air Link Pty Ltd v Paterson

Air Link Pty Ltd v Paterson

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Case Copied 10 August 2005 76 min read

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
Matter No S420/2004
AIR LINK PTY LIMITED  APPELLANT
AND
MALCOLM IAN PATERSON  RESPONDENT
Matter No S57/2005
MALCOLM IAN PATERSON  APPLICANT
AND
AIR LINK PTY LIMITED  RESPONDENT
Air Link Pty Limited v Paterson
Paterson v Air Link Pty Limited
[2005] HCA 39
10 August 2005
S420/2004 and S57/2005
ORDER
Matter No S420/2004
Appeal dismissed with costs.

Matter No S57/2005
1.Special leave to appeal granted.
2.Appeal allowed with costs.
3.Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 27 September 2002 and in their place order that the appeal to that Court is dismissed with costs.

On appeal from the Supreme Court of New South Wales
Representation:
Matter No S420/2004
R F Margo SC with R M Peters and M J Leeming for the appellant (instructed by Norton White)
D F Jackson QC with P A Regattieri for the respondent (instructed by M J Duffy & Son)
Matter No S57/2005
D F Jackson QC with P A Regattieri for the applicant (instructed by M J Duffy & Son)
R F Margo SC with R M Peters and M J Leeming for the respondent (instructed by Norton White)
Intervenors:
H C Burmester QC with B F Quinn intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor's Office)
M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with A Rao intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)
P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, McHUGH, GUMMOW, HAYNE AND HEYDON JJ. By Ordinary Statement of Claim issued out of the District Court of New South Wales at Dubbo on 22 September 2000, Mr Paterson claimed damages in respect of personal injuries he allegedly sustained on 25 September 1998 when alighting at Dubbo Airport from the aircraft of Air Link Pty Limited ("Air Link") after a flight from Cobar to Dubbo.
In its Grounds of Defence dated 8 March 2001, Air Link pleaded that its carriage of Mr Paterson had been subject to Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Act") and that its liability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] HCA 39
Decision Date: 10 August 2005

CaseChat Overview and Summary

The case of *Air Link Pty Ltd v Paterson* involved a dispute concerning a passenger's claim for personal injury sustained while disembarking from an aircraft. The passenger, Mr Paterson, brought an action against the carrier, Air Link Pty Ltd, seeking damages under Part IV of the *Civil Aviation (Carriers' Liability) Act 1959* (Cth). The central question before the High Court of Australia was whether Mr Paterson's action had been validly brought within the two-year time limit prescribed by the Act, or if the right to damages had been extinguished by the effluxion of time.

The High Court was required to determine whether Mr Paterson's original statement of claim constituted an "action" brought under Part IV of the *Carriers' Act* within the meaning of the statutory limitation period. This involved considering whether the imperfections in the pleading were so significant as to deprive the initiating process of the character of a validly commenced action, or if it was merely a defective but sufficient commencement. The Court also had to consider the implications of local law and practice in defining what constitutes the bringing of an action, particularly in light of the provisions of the Warsaw Convention, which the *Carriers' Act* largely adopted.

The Court reasoned that while an action must be a claim for damages brought for the passenger's benefit within the specified time, the precise content of such an action is not defined by the *Carriers' Act* or the Warsaw Convention. Instead, it is governed by local law and practice, consistent with Article 28.2 of the Warsaw Convention which states that questions of procedure are governed by the law of the court seised. The High Court found that the Court of Appeal had correctly concluded that Mr Paterson's action was not brought within the two-year period because the statement of claim was not sufficiently clear in its invocation of Part IV of the *Carriers' Act*.

In Matter No S420/2004, the appeal was dismissed with costs. In Matter No S57/2005, special leave to appeal was granted, the appeal was allowed with costs, and the orders of the Court of Appeal of the Supreme Court of New South Wales were set aside and replaced with an order dismissing the appeal to that Court with costs.

Orders

Orders of the court

Matter No S420/2004

Appeal dismissed with costs.

Matter No S57/2005

1. Special leave to appeal granted.

2. Appeal allowed with costs.

3. Set aside orders 2, 3 and 4 of the orders of the Court of Appeal of the Supreme Court of New South Wales entered on 27 September 2002 and in their place order that the appeal to that Court is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HUGH, GUMMOW, HAYNE AND HEYDON JJ (dissent) KIRBY J (dissent) CALLINAN J (dissent)

It was inherent in this conclusion that the Court of Appeal was of the view that Mr Paterson's action was "not brought" within two years because that expression had to be read as meaning an "action" sufficiently clearly brought under Pt IV[40]. On the approach taken in Air Link No 1, the alternative question of amendment of the statement of claim arose for decision. Following this decision, Mr Paterson applied to the District Court to resolve that question.[40]Air Link No 1 [2002] NSWCA 85 at [33].Issues for decision on the "action … brought" question Content of "action" undefined:Neither the Carriers' Act, nor the Warsaw Convention, contains any definition of what is required for the bringing of an action, so as to escape the consequences of extinguishment provided for in the case of default. The Court of Appeal was correct to conclude that it would not be sufficient for a passenger, making a claim for damages under Pt IV of the Carriers' Act, to commence an action expressed in any terms at all. The "action" must be a claim for damages brought by the passenger or for his benefit and within the specified time. But, otherwise, the content of the "action" is unspecified. It is left to local law and practice. That conclusion is harmonious with the provisions of Art 28.2 of the Warsaw Convention that "[q]uestions of procedure shall be governed by the law of the Court seised of the case". It is also consistent with the terms of Art 29.2, committing the calculation of the period of limitation to such a court. Obviously, neither the Warsaw Convention, nor the Carriers' Act adopting its terms, could deal with every conceivable variation in factual circumstances, including in the constitution of an "action" brought to pursue the right to damages given by law. Characterisation of the process:It follows that the essential issue in this part of these proceedings is whether, by the characterisation of the "action" constituted by Mr Paterson's original statement of claim in the District Court, it can be said, with reference to any applicable local law and practice, that an imperfect, defective yet sufficient "action" was brought. Or are the imperfections, defects and insufficiencies of Mr Paterson's pleading such as to deprive the initiating process of the character of "an action", sufficient to satisfy s 34 of the Carriers' Act? Issues, so stated, are unsatisfying. They invoke impressions and judgments upon which minds will inevitably differ. There is no ultimate certainty, because each case will depend upon its own facts, specifically an analysis of the language of the contested pleading to decide whether, read as a whole, it constitutes the initiating document of an "action" that is "brought" under the Carriers' Act or not. It was this very imperfection in the arguments for Mr Paterson (and concern for their implications for cases under the Warsaw Convention and it successors) that led Air Link to press for more precise criteria, such as the Court of Appeal had demanded.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.