Lauschet v Malaysian Airline System Berhad (No 2)

The case involved Lauschet as the plaintiff, suing Malaysian Airline System Berhad (MAS) as the defendant, in the context of a claim for damages under the Montreal Convention. The plaintiff, Lauschet, was seeking damages for the death of his son who was killed when Malaysia Airlines flight MH17 was shot down over Ukraine. The dispute was heard in the Federal Court of Australia, which was the relevant forum due to the international implications and the applicability of the Montreal Convention.

The central legal issues that the court had to address were whether the subpoena issued to MAS should be set aside and whether the plaintiff had established a sufficient basis for apprehending that the carrier had in its possession documents warning civilian airlines of the risk of aircraft flying over Ukraine being shot down. The court needed to determine if the plaintiff's claims of oppression, based on evidence provided on information and belief, were sufficient, especially considering the lack of details regarding the informant's role or the source of their knowledge.

The court found that the plaintiff's claims of oppression were not adequately supported because they were based solely on information and belief without any specific details about the informant's role or the source of their knowledge. The court held that the plaintiff had not established a sufficient basis for apprehending that MAS had relevant documents warning of the risks over Ukraine. Consequently, the court dismissed the plaintiff's application to set the subpoena aside. The court concluded that the plaintiff's evidence did not meet the required standard to warrant the setting aside of the subpoena, and the plaintiff's claim for damages under the Montreal Convention was not advanced sufficiently to warrant further proceedings on this basis.