Hadley v China Southern Airlines Company Limited
[2014] QCAT 289
| CITATION: | Hadley & Ors v China Southern Airlines Company Limited [2014] QCAT 289 |
| PARTIES: | David Wayne Hadley (First Applicant) Alexzandra lynette Hadley (Second Applicant) Alexzandar David Hadley (Third Applicant) Jie Feng (Fourth Applicant) |
| v | |
| China Southern Airlines Company Limited ACN 079 289 124 (Respondent) |
| APPLICATION NUMBER: | MCDO186/14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 21 May 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The Application to transfer the claim to the Magistrates Court filed by the First Applicant on 7 May 2014 is refused. 2. The claim is struck out for want of jurisdiction. |
| CATCHWORDS: | Consumer dispute – Claim for Damages – alleged refusal to board international flights to China – breach of Article 22 of the Convention for the Unification Rules for International Carriage – breach of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – application to transfer proceedings to Magistrates Court Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
REASONS FOR DECISION
The applicants made application on 7 May 2014 under section 52 of the Queensland Civil and Administrative Tribunal Act 2009 for the claim to be transferred to the Magistrates Court.
The applicants state that due to want of jurisdiction for the tribunal to hear a matter relating to the Montreal Convention the matter should be transferred to the Magistrates Court which does have jurisdiction to hear the matter.
The application was served on the respondent and they provided a response on 13 May 2014. They claim that the application to transfer the application to the Magistrates Court should be dismissed. The grounds they based their application to dismiss was on the fact that they state that the claim does not constitute a “denied boarding” claim as defined under the Montreal Convention and that the applicant ‘has already agreed to the offer presented to them’ by China Southern Airlines. They stated they had proof and attached it to the response. They further claim that the applicant could not prove that they had suffered any financial loss.
The QCAT Act provides, in summary, that the Tribunal may, by order, transfer a proceeding or part of a proceeding to another tribunal, court or other entity if it either considers it may be more appropriately dealt with by the relevant entity or if the Tribunal considers it does not have jurisdiction to hear all the matters in a proceeding. If the Tribunal transfers a matter then the proceeding to the relevant entity is taken to have started at the time the proceeding started with the Tribunal.[1]
[1]QCAT s 52.
The Tribunal, if so inclined to order a transfer, can also give directions. As His Honour, Justice Wilson stated in the decision of M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors[2] to ‘...facilitate the transfer, including an order under an Act or other law for starting a proceeding before the relevant entity’. In that case procedural difficulties arose that prevented the claim being transferred from QCAT to the Supreme Court.
[2][2010] QCAT 454.
As in this case there are procedural difficulties if Mr Hadley’s application to QCAT is transferred to the Magistrates Court. Despite evidence and attachments, the claim is not in a form which would constitute an adequate pleading. Because the claim was filed referring to damages from breach of the Civil Aviation (Carriers Liability) Act 1959 and reference to the Montreal Convention it may be that the Magistrates Court is not the appropriate forum for the matter to be heard. The matter may need to be heard in the District or Supreme Courts. The claim currently lists four applicants, and from perusal of the claim two of the applicants may be minors and therefore this alone may invoke complications not properly considered by the applicants.
The respondent alleges that the matter should be refused to be transferred to the Magistrates Court as the matter had settled pursuant to an agreement reached between the parties. The respondent provided evidence of negotiations between the parties and it appears that settlement may have been reached. For whatever reason the applicant does not wish to resolve the matter by consent and he is entitled to a hearing if that is what he so desires. The issue is that a hearing can only proceed after the appropriate originating application and pleadings being filed in the appropriate jurisdiction.
The respondent alleges that the applicants have not been able to produce any evidence that they suffered a loss which entitles them to compensation as is required to prove for damages under the Montreal Convention for “denied boarding”. The respondent denies liability and claim that the reason that the bookings were ‘missing on their reservation system’ was due to an error or mistake made when their travel consultant changed their booking and that the problems with boarding was caused by the applicants travel consultant, Flight Centre.
The claim as it currently stands, has multiple issues that render it in a form that would not be appropriate to be transferred. The claim would be required to be re-pleaded in any event if the QCAT application was simply transferred to another jurisdiction to be heard, whether it is the District or Supreme Courts.
The applicants are at liberty to still commence any application in the appropriate jurisdiction at any time, as they are still within the required time limitation period.
For the reasons articulated I find that the orders I make are as follows:
ORDERS
1. THAT the Application to transfer the claim to the Magistrates Court filed by the First Applicant on 7 May 2014 is refused.
2. THAT the claim is struck out for want of jurisdiction.
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