Air Link Pty Ltd v Paterson - [2002] NSWCA 85

CITATION: AIR LINK PTY LTD v PATERSON [2002] NSWCA 85

FILE NUMBER(S): CA 40415/01

HEARING DATE(S): 6th March 2002

JUDGMENT DATE:
26 March 2002

PARTIES :

Air Link Pty Limited - Claimant
Malcolm Ian Paterson - Opponent

JUDGMENT OF: Mason P at 1; Sheller JA at 2; Beazley JA at 35

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 133/00 (Dubbo)

LOWER COURT
JUDICIAL OFFICER : Black DCJ

COUNSEL: R F Margo - Claimant
J D Hislop QC/P Regattieri - Opponent

SOLICITORS: Norton White - Claimant
M J Duffy & Son - Opponent

CATCHWORDS: PRACTICE AND PROCEDURE - statement of claim - pleadings - statutory claim - Civil Aviation (Carriers' Liability) Act 1959 (Cth), Part IV - inter State carriage - appeal allowed

LEGISLATION CITED: Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Civil Aviation (Carriers' Liability) Act 1967 (NSW)
Air Transport Act 1964
Civil Aviation Act 1988 (Cth)
Compensation to Relatives Act 1897

CASES CITED:
Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44
Staples v City and Country Helicopters Pty Ltd (1993) 119 FLR 291
Proctor v Jetway Aviation Pty Ltd (1982) 2 NSWLR 264
Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166
Wickstead v Browne (1992) 30 NSWLR 1
Barnes v Addy (1874) LR 9 Ch App 244
Konskier v B Goodman Ltd [1928] 1 KB 421

DECISION: 1 Leave to appeal; 2 Appeal allowed; 3 Set aside the orders made by his Honour Judge Black on 18 May 2001; 4 Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black

CA 40415/01
DC 133/00 (Dubbo)

MASON P
SHELLER JA
BEAZLEY JA

AIR LINK PTY LIMITED v PATERSON

On 22 September 2000 the opponent began proceedings by statement of claim in the District Court of New South Wales in Dubbo to recover damages for injuries he claimed to have sustained after a flight from Cobar when disembarking at Dubbo from an aircraft owned and operated by the claimant. Both parties accepted that Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Act) applied to the air carriage of the opponent as the ticket for carriage had originated in Queensland.

Pursuant to s36 of the Act, the liability of the claimant to the opponent for any injury suffered during disembarkation was to be found under Part IV and was in substitution for any civil liabilities of the carrier under any other law in respect of the injury. Section 28 makes that liability absolute on proof of injury.

The opponent's statement of claim, which was filed three days before the expiration of the limitation period in Pt IV, pleaded his cause of action without reference to the Act. The claim pleaded was founded on causes of action for negligence and breach of contract.

At first instance, the claimant alleged that the statement of claim was defective and ought to be struck out. Black DCJ found that irrespective of the…

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: [2002] NSWCA 85
Decision Date: 26 March 2002

CaseChat Overview and Summary

Air Link Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by Judge Black in the District Court. The dispute concerned a claim brought by Mr Paterson against Air Link Pty Ltd under Part IV of the *Civil Aviation (Carriers' Liability) Act 1959* (Cth) for damages arising from an interstate carriage.

The primary legal issue before the Court of Appeal was whether Mr Paterson's statement of claim adequately pleaded a cause of action under Part IV of the *Civil Aviation (Carriers' Liability) Act 1959* (Cth), particularly in relation to the requirement of interstate carriage. The court also considered whether the pleadings were sufficient to establish liability under that Part.

The Court of Appeal found that the statement of claim, as it stood, did not sufficiently particularise the interstate nature of the carriage, which was a necessary element for a claim under Part IV of the Act. The court reasoned that the pleadings lacked the specificity required to demonstrate that the carriage in question was indeed interstate, as contemplated by the legislation. Consequently, the court allowed the appeal, setting aside the orders made by Judge Black. Air Link Pty Ltd was ordered to pay Mr Paterson's costs of the application and the appeal, as well as the costs of the proceedings in the District Court.

Orders

Orders of the court

1 Leave to appeal; 2 Appeal allowed; 3 Set aside the orders made by his Honour Judge Black on 18 May 2001; 4 Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AIR LINK PTY LTD v PATERSON [2002] NSWCA 85
FILE NUMBER(S):	CA 40415/01
HEARING DATE(S):	6th March 2002
JUDGMENT DATE:	26 March 2002
PARTIES :	Air Link Pty Limited - Claimant Malcolm Ian Paterson - Opponent
JUDGMENT OF:	Mason P at 1; Sheller JA at 2; Beazley JA at 35

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 133/00 (Dubbo)
LOWER COURT JUDICIAL OFFICER :	Black DCJ

COUNSEL:	R F Margo - Claimant J D Hislop QC/P Regattieri - Opponent
SOLICITORS:	Norton White - Claimant M J Duffy & Son - Opponent
CATCHWORDS:	PRACTICE AND PROCEDURE - statement of claim - pleadings - statutory claim - Civil Aviation (Carriers' Liability) Act 1959 (Cth), Part IV - inter State carriage - appeal allowed
LEGISLATION CITED:	Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Aviation (Carriers' Liability) Act 1967 (NSW) Air Transport Act 1964 Civil Aviation Act 1988 (Cth) Compensation to Relatives Act 1897
CASES CITED:	Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44 Staples v City and Country Helicopters Pty Ltd (1993) 119 FLR 291 Proctor v Jetway Aviation Pty Ltd (1982) 2 NSWLR 264 Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 Wickstead v Browne (1992) 30 NSWLR 1 Barnes v Addy (1874) LR 9 Ch App 244 Konskier v B Goodman Ltd [1928] 1 KB 421
DECISION:	1 Leave to appeal; 2 Appeal allowed; 3 Set aside the orders made by his Honour Judge Black on 18 May 2001; 4 Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black