Lauschet v Malaysian Airline System Berhad (No 2)

[2018] NSWSC 821

Supreme Court

New South Wales

Medium Neutral Citation:	Lauschet v Malaysian Airline System Berhad (No 2) [2018] NSWSC 821
Hearing dates:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to have subpoena set aside dismissed
Catchwords:	PRACTICE & PROCEDURE – application to set subpoena aside – claim of oppression supported only by evidence on information and belief – failure to specify details as to informant’s role or source of knowledge – claim for damages under the Montreal Convention – commercial carrier shot down over the Ukraine – fact in issue as to whether accident due to the negligence or other wrongful act or omission of the carrier – basis established for apprehending carrier in possession of documents warning civilian airlines of risk of aircraft flying over the Ukraine being shot down
Legislation Cited:	Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature on 28 May 1999, art 21
Category:	Procedural and other rulings
Parties:	Tim Lauschet Malaysian Airline System Berhad
Representation:	Counsel: CT Barry QC, J Rowe (Plaintiff) J Simpkins (Defendant)   Solicitors: Leitch Hasson & Dent (Plaintiff) Clyde & Co (Defendant)
File Number(s):	2015/210056
Publication restriction:	None

Judgment – EX TEMPORE

1. HER HONOUR: The plaintiff in these proceedings is the son of a woman who was killed in the air crash of flight MH17, which left the Netherlands on 17 July 2014. It is uncontroversial that the crash occurred because the aircraft was shot down while flying over the Ukraine. The defendant is Malaysian Airline System Berhad.

2. The claim invokes Article 21 of the Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature on 28 May 1999 (“Montreal Convention”) which allows a claimant to obtain damages exceeding the cap imposed by that article if the carrier fails to prove that damage was not due to the negligence or other wrongful act or omission of the carrier.

3. The airline has filed a defence in which it asserts, in accordance with that article, that the plaintiff is not entitled to damages exceeding the cap because the damage was not due to its negligence or other wrongful act or omission. The particulars appended to the pleading assert, among other things, that it was reasonable for the airline to select and fly the aircraft conducting flight MH17 along the flight path upon which it was travelling at the time that it was shot down.

4. By subpoena served earlier this year, the plaintiff seeks a number of documents directed to that issue. The defendant, by notice of motion dated 29 March 2018, moves the Court to set aside the subpoena in whole or in part.

5. A principal basis for the objection to the subpoena was an argument that compliance with it would be oppressive. However, the evidence relied upon to support that contention was based only on information and belief. Specifically, the defendant relied on a letter dated 22 March 2018 from its solicitor to the solicitor for the plaintiff setting out the matters relied upon to support contention that it would be oppressive to comply with the subpoena. The affidavit then said, "I am informed by Sheikh Ahmad Ibrahim and believe those matters to be true." The affidavit did not specify who Mr Ibrahim is or what knowledge he might have of the matters set out in the letter. The affidavit was objected to on that basis by Mr Barry QC, who appears with Mr Rowe for the plaintiff, and its use in the present application was confined accordingly, that is, the letter was not admitted to prove the truth of its contents.

6. The appropriate course in the circumstances in my view is to proceed on the basis that there is no cogent evidence of oppression such as to warrant declining to compel production of documents otherwise relevant to a fact in issue in the proceedings.

7. Separately, Mr Barry tendered a document which is page 182 of the report prepared by the Dutch aviation authority that investigated the air crash. That document shows a timeline of downed aircraft above the eastern part of the Ukraine in the period from 22 April 2014 to 17 July 2014 and "NOTAMS" (Notices to Airmen) from 1 March 2014 to 18 July 2014. The timeline establishes that there is at least a basis for apprehending that, subject to what evidence might be brought forward, a compelling case might be made that there was a series of shoot downs in the period leading up to 17 July 2014 which it might be argued ought to have put civilian airlines on notice of a risk of flying over the area in question. That is the case with which the plaintiff will seek to meet the defence to which I have referred.

8. The subpoena was largely drafted by reference to that timeline document. I am satisfied that the documents sought are relevant to a fact in issue in the proceedings and that it is appropriate to compel the defendant to produce those documents.

9. During the course of argument a number of further points were taken by the defendant as to the overly ambitious wording of the subpoena. Mr Barry frankly acknowledged that, in some respects, its terms could be narrowed and that has been agreed in a manner the transcript will reveal. In particular, I note that, as to category 1 (which seeks documents relating to the permanent place of residence of the plaintiff's late mother), that material ought to be produced unless there is a concession made by the defendant as to this Court's jurisdiction to entertain the claim.

10. As to categories 11 to 16, amendments to the subpoena have been agreed broadly to confine the documents required to be produced to those held by the defendant between 22 April 2014 and 16 July 2014 and so as to remove the obligation to produce documents "in respect to" specified incidents, requiring instead production of documents "recording or referring to" those incidents.

11. Category 17 in the subpoena was not pressed. Category 18 in the subpoena sought "the training records for each operating pilot on the defendant's flight MH17 from Amsterdam to Kuala Lumpur on 17 July 2014". Mr Barry frankly acknowledged that a category in those terms might be understood to be too broad. What was intended to be sought was documents recording training given to operating pilots as to the appropriate response to notifications of the kind to be produced in response to other paragraphs of the subpoena. Narrowed in those terms, that category also should be allowed.

12. With those amendments to the subpoena, I am satisfied that production should be required and that the defendant's application should otherwise be dismissed.

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Decision last updated: 06 June 2018