Air Tahiti Nui Pty Ltd v McKenzie

The dispute in *Air Tahiti Nui Pty Ltd v McKenzie* concerned a claim for personal injury brought by a passenger against an Australian subsidiary of Air Tahiti Nui. The passenger had purchased a ticket from the Australian subsidiary for a flight operated by the French parent company. The question arose as to which entity was the proper defendant under the relevant international conventions and domestic legislation governing air carriage. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the Australian subsidiary could be considered the "contracting carrier" for the purposes of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), and whether the subsidiary was estopped from denying that it had entered into an agreement for carriage as a principal. These issues required the court to consider the application of the Montreal Convention and the Guadalajara Convention, as well as principles of contract formation and estoppel under Australian law.

The Court of Appeal reasoned that the determination of whether the Australian subsidiary was the contracting carrier depended on whether it made an agreement for carriage as a principal, rather than merely acting as an agent for the French parent company. The court found that the evidence supported the conclusion that the Australian subsidiary had entered into an agreement for carriage as a principal. Furthermore, the court held that the principles of estoppel by representation were applicable to the formation of contracts for carriage, and that the Australian subsidiary was estopped from denying its entry into such an agreement. The court affirmed that the law governing contract formation in this context was domestic law.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.