Gibson v Malaysian Airline System Berhad

Case [2016] FCA 1476


FEDERAL COURT OF AUSTRALIA

Gibson v Malaysian Airline System Berhad [2016] FCA 1476

File number: NSD 1067 of 2016
Judge: PERRAM J
Date of judgment: 9 December 2016
Catchwords:

PRACTICE AND PROCEDURE – representative proceedings – strike out application – whether pleading discloses reasonable cause of action – whether leave to replead

AVIATION – compensation under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – The 1999 Montreal Convention – Article 17–Death and Injury of Passengers–Damage to Baggage and Article 33–Jurisdiction

Legislation:

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9D

Federal Court of Australia Act 1976 (Cth) s 33C(1)

Federal Court Rules 2011 (Cth) rr 8.21, 822, 16.53, 16.54

Cases cited:

Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512

Australian Securities and Investments Commission v Australian Property Custodian Holdings (No 2) [2013] FCA 409

Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106

Rothmans of Pall Mall (Overseas) Ltd. and Others v Saudi Arabian Airlines Corporation [1981] Q.B. 368

United Airlines Inc v Sercel Australia Pty Ltd (2012) 260 FLR 37

Date of hearing: 11 November 2016
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: Mr C Barry QC with Mr J Rowe
Solicitor for the Applicant: LHD Lawyers
Counsel for the Respondent: Mr D Lloyd with Mr M Kalyk
Solicitor for the Respondent: GSG Legal

ORDERS

NSD 1067 of 2016
BETWEEN:

CASSANDRA JANE GIBSON

Applicant

AND:

MALAYSIAN AIRLINE SYSTEM BERHAD (ARBN 996 903)

Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

9 DECEMBER 2016

THE COURT ORDERS THAT:

1.Paragraph [7] of the Applicant’s statement of claim dated 1 July 2016 be struck out.

2.The Applicant file any application to amend within six weeks hereof.

3.The Applicant pay the Respondent’s costs of the strike out application.

4.The matter be listed for further directions on 28 March 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRAM J:

  1. This is a procedural determination in a class action proceeding arising out of the MH17 disaster in the Ukraine.  On 17 July 2014, all 283 passengers and the crew on board a Boeing 777-200 aircraft operated by the Respondent airline were killed when it was shot down by a warhead deployed by persons presently unknown.  The flight was en route from Amsterdam to Kuala Lumpur.

  2. One of the passengers on board was Liliane Derden.  According to paragraph [3] of the statement of claim which has been filed, the Applicant is her daughter and personal representative, which I take to mean either that she is the executrix of the estate under a grant of probate or an administratrix under letters of administration. 

  3. The Applicant has commenced this proceeding on her own behalf, but her originating application is explicit that the claim is also a class action.  It states…

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Details
AGLC
Gibson v Malaysian Airline System Berhad [2016] FCA 1476
Case
[2016] FCA 1476
Decision Date

CaseChat Overview and Summary

In the Federal Court, Gibson sought to bring a representative proceeding on behalf of passengers who suffered injuries following a Malaysian Airlines flight from Perth to Kuala Lumpur. The dispute centred on the adequacy of Gibson's pleadings under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and the interpretation of the 1999 Montreal Convention. The Respondent, Malaysian Airline System Berhad, applied to have parts of Gibson's statement of claim struck out, arguing that it failed to disclose a reasonable cause of action. The court was required to determine whether Gibson's statement of claim was sufficient to proceed and, if not, whether Gibson should be granted leave to amend the pleadings.

The court examined the legal sufficiency of Gibson's claim, considering the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and the 1999 Montreal Convention. The court assessed whether Gibson's statement of claim adequately disclosed a cause of action by examining if it complied with jurisdictional and substantive requirements under the relevant legislation. In particular, the court focused on whether Gibson had properly invoked the jurisdictional provisions of Article 33 of the Montreal Convention, which relates to the court's jurisdiction over claims arising from passenger injuries. The court also scrutinised whether the claim sufficiently detailed the damages and losses alleged, in line with Article 17 of the Montreal Convention, which governs compensation for death, injury, and baggage damage.

Following its analysis, the court found that Gibson's statement of claim was deficient in several respects. Specifically, the court held that paragraph [7] of the statement of claim did not disclose a reasonable cause of action as it did not clearly articulate the applicable jurisdictional provisions of the Montreal Convention. Consequently, the court struck out the offending paragraph and ordered Gibson to file any necessary amendments within six weeks. The court further ruled that Gibson pay the Respondent's costs for the strike out application and listed the matter for further directions to address the remaining issues in the case. This decision underscored the necessity for precision in pleading jurisdictional and substantive elements in international aviation claims.

Orders

Orders of the court

1. Paragraph [7] of the Applicant’s statement of claim dated 1 July 2016 be struck out.

2. The Applicant file any application to amend within six weeks hereof.

3. The Applicant pay the Respondent’s costs of the strike out application.

4. The matter be listed for further directions on 28 March 2017.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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