Brindabella Airlines Pty Ltd (In liquidation) v Alpha Flight Services Pty Ltd

[2019] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation:	Brindabella Airlines Pty Ltd (In liquidation) v Alpha Flight Services Pty Ltd [2019] NSWSC 1148
Hearing dates:	29 August 2019
Date of orders:	29 August 2019
Decision date:	29 August 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Orders in accordance with the short minutes of order, as amended. Defendant pay the plaintiff's costs of the summons on the ordinary basis.
Catchwords:	CIVIL PROCEDURE – Court ordered preliminary discovery – discovery to identify defendant’s whereabouts – requirement for reasonable inquiry – objective criterion – issue as to lateness of inquiry – discovery ordered.
Legislation Cited:	Limitation Act 1969 (New South Wales) Uniform Civil Procedure Rules 2005 (NSW), r 5.2
Cases Cited:	Age Company Limited and Ors v Liu (2013) 82 NSWLR 268; [2013] 82 NSWCA 26 Australian National Car Parking Pty Ltd [2007] NSWCA 114; 47 MVR 502 Rose and Traffic Authority and Australian National Car Parking Pty Ltd [2007] NSWCA 114 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19.   Roads and Traffic Authority;
Category:	Procedural and other rulings
Parties:	Bridabella Airlines Pty Ltd (in Liquidation) (Plaintiff) Alpha Flight Services Pty Ltd (Defendant)
Representation:	Counsel: L.A. Beange (Plaintiff) B. Lloyd (Defendant)   Solicitors: Clyde & Co (Plaintiff) GSG Legal (Defendant)
File Number(s):	2019/266990

Judgment

1. I have already made orders abridging time for service and enabling a summons filed on 27 August 2019 to come before me for hearing instanter. The summons seeks relief by way of preliminary discovery. The proposed proceedings which the plaintiffs wish to commence relate to a cause of action in negligence which accrued on 15 September 2013 and its manifest that time will expire under the provisions of the Limitation Act 1969 (NSW) on 16 September 2019, 15 September falling on a Sunday.

2. The proposed cause of action relates to damage to the plaintiffs’ aircraft. The first plaintiff was the operator of the aircraft under a lease or charter-party from the second plaintiff who was the owner. I interpolate that the first plaintiff is in liquidation but it is not in dispute, so far as it is concerned, that the action is a subrogation action brought by its insurer with the consent of the liquidator appointed by court order.

3. The proposed cause of action relates to damage which occurred at Sydney Airport. The circumstances, in broad terms, that will be alleged are that the defendant is the registered operator of a Mercedes catering truck, registration number BW 00 GF, and that the damage to the plaintiffs' aircraft was caused by the Mercedes catering truck colliding with its tailplane.

4. Although the circumstances of the incident are not very clear to me, part of the evidence before me includes an incident report about the matter prepared by the defendant on 17 September 2013. That report gives a very taciturn account. It does record, however that the first plaintiff made a claim in respect of damage to the tailplane, more specifically to the horizontal stabilizer of the tailplane, arising out of the collision.

5. The investigation also confirms that, in the opinion of the investigator, that the weather was not a contributing factor and a mechanical inspection of the truck suggested that there was no defect in the equipment that could have been a contributing factor. The conclusion was that human error was responsible.

6. One may infer that it is possible the vehicle was unattended at the time of the collision but not properly secured. The report of the investigator, under the heading "staff", indicates that interviews were conducted with the “driver” and “jockey” who had last used the vehicle. The driver stated "he thought he had engaged the handbrake and suggested the handbrake was faulty". The jockey believed the driver had engaged the handbrake but could not confirm he had sighted the driver doing so. He speculated that someone else might have disengaged the handbrake.

7. What is relatively clear from the photographs included in the report is that in the immediate aftermath of the collision the catering truck was in very close proximity to the tail plane of the aircraft and the handbrake was in the disengaged position.

8. From the evidence which has been read in support of the application, there is no doubt that the claim is a very substantial one. Taking account of the cost of repairs, what might be called demurrage or business interruption and legal costs, a sum in excess of $900,000 is claimed.

9. It is also clear that the claim was made in a timely way, at the end of 2013, by the solicitors currently acting for the plaintiffs and that there was a response by the solicitors still acting on behalf of the defendant in January 2014.

10. It seems to me that without detailing all of the correspondence that has been placed before me that the parties through those solicitors entered into a process of negotiation in relation to the plaintiff's claim. That process involved, I infer, an investigation of the circumstances, the request for and provision of particulars and the exchange of information about the claim.

11. As not infrequently occurs in the case of unlitigated claims, notwithstanding the experience and good intentions of the lawyers involved, the expectation or hope that the matter would settle failed to materialise. For this reason the parties found themselves in the position as at the end of July this year where the expiration of the limitation period was fast approaching, perhaps like a catering truck towards an aircraft’s tail plane, and something had to be done urgently to preserve the plaintiff's position.

12. At that stage of the proceedings, which Mr B Lloyd of counsel, not unfairly, submits was quite a late stage, in terms of the interaction between the parties, the plaintiff's solicitors wrote to the defendant's solicitors asking for the names of the “driver” and “jockey”, their last known addresses and the identity of the company or persons employing them. I should say that although they are described as staff on the incident report, to which I have made reference, it is not clear from that that they are direct employees of the defendant company. In the modern work force, I think I can say without any fear of contradiction, and Mr Lloyd accepted as much, it is unsafe to assume that persons performing work for a corporate entity are its direct employees rather than the employees of, perhaps, a related but different entity, or indeed the employees of a labour hire company whose services have been lent to the operator of the business in which they are performing their work. It is clearly established in Australian Common Law that a company, or an individual for that matter, will only be liable vicariously liable for the acts or omissions of their direct employees: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19.

13. Although there is some force in the argument that the request for information was made late in the piece and that for that reason, as Mr Lloyd submits, I should regard it is unreasonable, the defendant did respond by indicating that it was making inquiries to ascertain whether the information could be provided and requesting an extension of time for the provision of the information.

14. I will not detail all of the correspondence but doubtless because of the impending expiration of time the plaintiff's solicitors were anxious not to miss the opportunity of lawfully starting proceedings and they were not prepared to agree to much of an extension of time, although they were prepared to allow some leeway.    

15. No agreement could be reached and in the circumstances the summons seeking relief and a notice of motion seeking to have it brought on urgently were filed and served on 27 August 2019.

16. The defendant solicitor’s response to the summons was to again ask for more time in circumstances where, although there is a local branch of the firm, it is an International firm of solicitors, their head office in London is handling the claim and the client's head office is apparently in Dubai. Information from across the Globe, notwithstanding the wonders wrought by the technological revolution, is sometimes slow to come to hand. The plaintiff, for the type of reasons I have explained, felt unable to extend that time.

17. I take it as a sign of good faith that this morning when the matter had been listed before the duty judge the solicitors for the plaintiff wrote providing the name of the “driver” and of the “jockey”. That letter also stated the following:

We are still seeking instructions as to the employer of the jockey and driver. However, anticipate that we will receive these shortly. We note in this regard that our London office needs to seek these further instructions from both Dubai and Australia.

18. The solicitors also asked that the motion and the summons, by implication, be stood over for seven days to enable the information to be provided. The solicitors for the plaintiff did not the dismiss the request out of hand but due to their anxiety, doubtless, as I referred to too much already, were only prepared to allow an extension until Monday for the provision of the information otherwise they would seek an order from the Court that the preliminary discovery sought be provided by 4 September which is Wednesday of next week.

19. The provisions of Rule 5.2 Uniform Civil Procedure Rules 2005 (NSW) govern this application. It is, so far as is material for the resolution of the issues between the parties, in the following terms:

(1)  This rule applies if it appears to the court that:

(a)  the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and

(b)  some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2)  The court may make either or both of the following orders against the other person:

(a)  an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b)  an order that the other person must give discovery to the applicant of all documents that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned.

20. I interpolate that the person concerned or the persons concerned are not only the “driver” and the “jockey” but also, as I have made clear, their employers. If the conditions prescribed by rule 5.2(1) are satisfied, the Court may make either or both of the orders described in rule 5.2(2) (a) and (b).

21. There is no dispute that the type of relief sought in the summons would be covered by sub-rule 2 if the conditions in sub-rule 1 are satisfied. As I understand, the argument the central dispute relates, is to the reasonableness of the inquiries made by the plaintiff to sufficiently identify the persons concerned. And given the long history of the matter, Mr Lloyd of Counsel laid particular emphasis upon the lateness of the request and the logistic difficulties attendant upon meeting the request given not only the effluxion of time but also the consideration, as I have referred to already, that the information may be located in one of three continents, not to say time zones.

22. Ms Beange of counsel submits that in all the circumstances, notwithstanding the timing of the request, the inquiries made are reasonable. She submitted that this is information which must be within the possession of the defendant, given that these persons worked in its operations and were described as staff in its documents. Even if "staff" is a loose expression and they are employed by third parties who have lent their services to the defendant, there must be records, contractual or otherwise, which would clearly identify that consideration and the persona and entities involved.

23. Mr Lloyd helpfully, with respect to him, referred me to the decision of the Chief Justice, with which Justices Beazley, as the former President then was, and McColl agreed, in the Age Company Limited and Ors v Liu (2013) 82 NSWLR 268; [2013] 82 NSWCA 26 at [50] ff.

24. The Chief Justice referred to the decision of Mason P in Rose and Traffic Authority and Australian National Car Parking Pty Ltd [2007] NSWCA 114. At [14] Mason P referred to Rule 5.2(1) as stating two “threshold requirements”. These are the matters I have referred to as conditions. Of the first threshold or condition his Honour said "The applicant must be unable to sufficiently ascertain the identity or the whereabouts of the intended defendant despite having made reasonable inquiries”. His Honour said "What is reasonable inquiries is a question of fact in all the circumstances” and referred to the type of circumstances which may be relevant. His Honour also referred to the cost, delay and uncertainty of alternative measures being relevant to the reasonable inquiry threshold.

25. The Chief Justice indicated that the reasonableness of an inquiry is an objective criterion is not determined by the applicant's subjective beliefs about the matter. It is necessary for disclosure to be made as to the substance of the inquiries which have been made and the results of those inquiries. His Honour did point out, however:

The rule does not require that every detail of each inquiry has to be revealed. It is enough that the parties disclose what inquiries have been made and their results. That in most cases will indicate whether the inquiries were adequate and what further inquiries could or should have been made.

26. As I have said, Mr Lloyd really lays emphasis upon the comparative lateness of the inquiry. He has, with respect, not suggested any other inquiries that should probably have been made by the plaintiff, or other available avenues for identifying the persons who were, in the incident report, simply described as “driver”, “jockey” and “staff”. I must say that I think there is some force in what Mr Lloyd says about the lateness of the direct inquiry made.

27. At the same time I think that all the circumstances of the case do indicate that the only viable avenue of inquiry is of the defendant. I am not sure, after five years, that I would accept that the defendants “must” still have this information. However, it is very likely that they do, given that there was a preliminary investigation and an early claim made by the plaintiffs over which much correspondence has been exchanged over the years. It seems to me that once the claim was made and the matter was put in the hands of the solicitor I can infer that inquiries would have been made to ascertain the type of information sought by the plaintiff's lawyers because that type of information is clearly relevant to the question of whether the defendant would be legally liable to the plaintiffs for what might well be the consequences of casual negligence of the driver and jockey. In those circumstances, it does seem very likely that the defendant would have that information but perhaps I am getting ahead of myself.

28. Really I think in the end the inquiries made by the plaintiff although limited and late in the day, were, in all the circumstances of this case, reasonable. There is no suggestion in any of the previous correspondence that the defendant had a complete answer to the plaintiff's claim by saying that the persons responsible, or putatively responsible, for the collision were not their employees. There is no suggestion in any of the correspondence by the defendant's solicitors that the plaintiff's solicitors should be looking elsewhere for a person who is legally responsible for the damage to the aircraft. When one adds to that, the consideration that time will soon expire, I think in the particular circumstances of the case what has been done by the plaintiff's solicitors is reasonable. As I have said, there is no real issue that the defendants “may” have this relevant information within their possession for the purpose of the second condition or threshold stated in rule 5.2(1)(b).

29. It seems to me for the reasons I have given that I should make an order that the information sought be provided by way of preliminary discovery. Having said that, I am not so sure, given the lateness of the request in absolute terms, although, as I have said, it was not unreasonably so, that the defendant should be subject to some kind of peremptory order. I think that the defendant should be given a reasonable time to comply with the order but in terms that would allow the plaintiffs sufficient time to draft and file court process.

30. It seems to me, although there can be no absolutes about this, that given the mark of good faith that has been put forward - after all, if necessary, proceedings could be issued against the driver and jockey in their own names - that it is sufficient in the interests of justice if the outstanding information is provided by 1:00 pm on Friday 6 September 2019. That would leave the plaintiffs about 10 days to commence the proceedings. I have no doubt, given the size of the claim, and its now urgency, that the plaintiff lawyers will be in a position to proceed with appropriate celerity.

31. In the circumstance, I will make orders in accordance with the short minutes of order that Ms Beange has handed up but I will amend them by deleting the matter, “4:00 pm” and substituting, “1:00 pm”, and deleting the numeral 4 and substituting the numeral 6 so that the discovery is to be given by 1:00 pm on 6 September 2019. I also note that the defendant has already provided the information sought in order 1(i).

His Honour heard further argument in relation to costs.

32. I have dealt with the substantive relief sought in the summons and I now turn to the question of costs. The plaintiffs, in the summons, and indeed in the short minutes of order handed up, sought an order for indemnity costs.

33. After preliminary discussion between me and Ms Beange of counsel, where I indicated, as the transcript will show, that I had not formed the view, for the type of reasons I gave in my judgment, that the defendant had been highhanded or otherwise guilty of the type of forensic delinquency usually necessary to justify an order for costs on the indemnity basis. Having heard me express that provisional view, Ms Beange informed me she had instructions not to press the application for indemnity costs. She still sought costs on the ordinary basis.

34. Mr Lloyd, with respect, for the type of reasons he had advanced as to why the relief sought should not be granted, suggested the plaintiffs were, as it were, the authors of their own misfortune and were, in effect, coming along to court seeking an indulgence at the last minute, and that, therefore, the appropriate order in the circumstances was that the plaintiff should pay the defendant's costs as the price of obtaining the indulgence. He did not express himself that way but that is what I understood him really to be saying.

35. It is implicit, and express, I think, in what I have already said that, although in absolute terms the application was made late, it was not made unreasonably. As I have said, given that reputable solicitors were dealing with each other in good faith over a number of years in the hope of resolving the claim without litigation, it is explicable that the plaintiff did not upset that particular apple cart by making demands for information, or threatening legal action, when the prospect of amicable resolution remained in prospect.

36. However, I have found it was not unreasonable to bring the application on, to bring it on urgently, given the impending, as I have said far too often this afternoon, expiration of the limitation period. I do not think that the defendant acted in a highhanded manner. I accept that the defendant attempted to find the information and showed good faith by providing it in part, even if only today, after the proceedings had been commenced.

32. In all the circumstances, I am of the view that costs should follow the event and I order the defendant pay the plaintiff's costs of the summons on the ordinary basis.

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Decision last updated: 03 September 2019