Future Systems (AUST.) Pty Ltd v Nautilus Aviation Pty Ltd - [2023] WASC 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FUTURE SYSTEMS (AUST.) PTY LTD -v- NAUTILUS AVIATION PTY LTD [2023] WASC 204
CORAM:   MASTER SANDERSON
HEARD:   2 MARCH 2023
DELIVERED          :   13 JUNE 2023
FILE NO/S:   CIV 2381 of 2021
BETWEEN:   FUTURE SYSTEMS (AUST.) PTY LTD
Plaintiff

AND

NAUTILUS AVIATION PTY LTD
First Defendant

THE COMMONWEALTH OF AUSTRALIA
Second Defendant

NAUTILUS AVIATION HELI PTY LTD
Third Defendant

Catchwords:

Summary judgment - application by first and third defendants - Turns on own facts

Legislation:

Civil Aviation (Carriers' Liabiility) Act 1959 (Cth)
Civil Aviation (Carriers' Liability) Act 1964 (Qld)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	R Cywicki
First Defendant	:	T J Brennan SC & M Sims
Second Defendant	:	M Rush KC & PA Walker
Third Defendant	:	T J Brennan SC & M Sims

Solicitors:

Plaintiff	:	Hale Legal
First Defendant	:	Carter Newell
Second Defendant	:	Minter Ellison
Third Defendant	:	Carter Newell

Cases referred to in decision:

Barclay v Penberthy [2012] HCA 40; (2012) 246 CLR 258
Garnett v Qantas Airways Limited [2021] WASCA 110; (2021) 358 FLR 398
Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14; (2019) 266 CLR 212

MASTER SANDERSON:

This is an application by the first and third defendants (the defendants) for an extension of time to bring a summary judgment application and for summary judgment against the plaintiff. In the alternative, the defendants seek to strike out certain paragraphs of the plaintiff's amended statement of claim. Unusually the second defendant does not support the defendants' application. In short written and oral submissions, the second defendant submitted summary judgment ought not be granted. It is worthy of note that were the defendants' summary judgment application to succeed, the action against the second defendant would continue. This is a rather curious state of affairs.
There was no dispute between the parties as to the relevant principles relating to summary judgment. However, as this is an application brought by the defendants under O 16 of the Rules of the Supreme Court 1971 (WA), it does differ in some respects from an application for summary judgment brought under O 14. Two points should be highlighted. First, the plaintiff is bound by its statement of claim - or in this case, the amended statement of claim. It is not open to a plaintiff to claim there are further material facts which have not been pleaded which would stand in the way of summary judgment being granted.
Second, the facts pleaded in the statement of claim must be accepted for the purposes of the summary judgment application. It may be at trial some or all of the facts alleged by the plaintiff are not proved. But for the purposes of summary judgment, it must be assumed they will be proved. This is a manifestation of the rule that on a summary judgment application, the version of events most favourable to…

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: [2023] WASC 204
Decision Date

CaseChat Overview and Summary

Future Systems (Aust.) Pty Ltd brought an action against Nautilus Aviation Pty Ltd, the Commonwealth of Australia, and Nautilus Aviation Heli Pty Ltd, seeking compensation for losses arising from a helicopter crash in north Queensland. The defendants filed an application for an extension of time to bring a summary judgment application and for summary judgment against the plaintiff, as well as an application to strike out certain paragraphs of the plaintiff's amended statement of claim. The second defendant did not support the application. The central legal issues were whether the defendants were entitled to an extension of time to bring the summary judgment application and whether the plaintiff's claims were suitable for summary judgment. The court found that the defendants had not provided a satisfactory explanation for the delay in bringing the application, and the strength of their summary judgment application was not compelling enough to justify the extension of time. Furthermore, the court held that the issues raised by the plaintiff's claims were too complex and novel for summary judgment to be appropriate. Consequently, the application for an extension of time was dismissed.

The court emphasised that the plaintiff's claims were governed by the Civil Aviation (Carriers' Liability) Acts of both the Commonwealth and Queensland, which establish a national scheme for liability in civil aviation. The defendants argued that the plaintiff's claims were precluded by the exclusive liability provisions in the Acts, but the court found that the issues raised by the plaintiff's claims were complex and required full argument at trial. The court also noted that the second defendant had submitted that the plaintiff's claims might potentially fall within the scope of the Acts, raising a novel question of law that should not be determined on a summary basis.

Based on the complexity and novelty of the issues, the court concluded that the case was not suitable for summary judgment and dismissed the application. The parties were directed to confer in relation to the pleading and, if necessary, file short submissions on the adequacy of the pleading within 14 days of the publication of the reasons for decision. The plaintiff was to respond 7 days thereafter. The costs of the application, including reserved costs, were to be costs in the cause.

Orders