Mackellar Mining Equipment Pty Ltd v Thornton

Case [2018] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2018] QSC 186

PARTIES:

MACKELLAR MINING EQUIPMENT PTY LTD (ACN 010 398 428) AND DRAMATIC INVESTMENTS PTY LIMITED (ACN 059 863 204) TRADING AS PARTNERSHIP 818

(First Applicant)

AND

JANET ELIZABETH WRIGHT AS REPRESENTATIVE OF THE ESTATE OF LESLIE ARTHUR WRIGHT (DECEASED)
(Second Applicant)

v

TRAD THORNTON AND THE PARTIES LISTED ON THE ORIGINATING APPLICATION

(Respondents)

FILE NO/S:

BS No 2252 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2018 & 15 June 2018, further written submissions 10 July 2018 & 24 July 2018.

JUDGE:

Lyons SJA

ORDER:

The application is dismissed. I will hear from the parties as to costs.

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – RESTRAINT OF PROCEEDINGS – OF FOREIGN PROCEEDINGS: ANTI SUIT INJUNCTIONS – GENERALLY – where the respondents commenced proceedings in Missouri in May 2008 – where the applicants in this matter sought declarations on liability and an anti-suit injunction in March 2017 – whether the proceedings in the United States are vexatious or oppressive –whether Missouri is the appropriate forum – whether the proceedings in Missouri are too far advanced – whether the application for an anti-suit injunction was made promptly

PRIVATE INTERNATIONAL LAW – CHOICE OF LAW – GENERALLY - where there is an issue as to whether Missouri law or Queensland law would apply to the proceedings – where there is a significant connection to Australia – where an assessment is required to consider what law would apply to the matter – whether Missouri law would apply – whether Queensland law would apply


Civil Aviation Act 1988 (Cth)

Civil Aviation (Carriers’ Liability) Act 1959 (Cth)

Restatement (Second) of Conflict of Laws § 6, 6A, 145, 175, 178

Revised Statutes of the State of Missouri 537.080, 537.090

Trade Practices Act 1974 (Cth) s 75

Uniform Civil Procedure Rules 1999 (Qld)


Dicey, Morris and Collins, The Conflict of Laws, 15th ed (2012)

I. C. F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 9th ed (2014)


Ace Insurance Ltd v Moose Enterprise Pty Ltd [2009] NSWSC 724

Aggeliki Charis Compania Maritima S. A. v Pagnan S.p.A (The Angelic Grace) [1995] 1 Lloyd’s Rep 87

Bell Helicopter Textron, Inc. v. Arteaga 113 A.3d 1045 (Del. 2015)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Herold v Seally (No 2) [2017] FCA 543

Johnson v Avco Corp., No. 4:07-cv-1695, 2009 WL 4042747 (E.D. Mo 2009)

Livingston v Baxter Health Care Corp. 313 S.W.3d 717 (Mo. App. 2010)

Toepfer International GmbH v Molino Boschi SRL [1996] 1 Lloyd’s Rep 510

Thompson v. Crawford, 833 S.W.2d. 868 (Mo. 1992) (en banc)

Thornton v. Hamilton Sundstrand Corp., No. 12 C 329, 2013 WL 4011008, at *3 (N.D. Ill. Aug. 6, 2013)

Transfield Shipping Inc v Chiping Xinfa Huayu Alumina Co Ltd [2009] EWHC 3642

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AGLC
Mackellar Mining Equipment Pty Ltd v Thornton [2018] QSC 186
Case
[2018] QSC 186
Decision Date

CaseChat Overview and Summary

In the matter of Mackellar Mining Equipment Pty Ltd v Thornton, the respondents, who are relatives of 12 deceased passengers and two deceased pilots, commenced proceedings in Missouri in May 2008. The applicants, Mackellar Mining and the widow and executor of the will of the late Leslie Arthur Wright, sought declarations on liability and an anti-suit injunction in March 2017. The dispute arose from a tragic aircraft accident in Queensland that occurred on 7 May 2005. The aircraft, leased to Transair, crashed during a scheduled flight, resulting in the deaths of all on board. The applicants sought to restrain the respondents from continuing with the proceedings in Missouri, arguing that the Missouri court was an inappropriate forum and that the proceedings were vexatious or oppressive.

The court had to determine whether the Missouri proceedings were vexatious or oppressive, whether Missouri was the appropriate forum, whether the proceedings were too far advanced, and whether the application for an anti-suit injunction was made promptly. Additionally, the court needed to decide which jurisdiction's law should apply to the proceedings: Missouri or Queensland. The applicants argued that Queensland law should apply because of the significant connection to Australia, including the location of the accident, the residence of the deceased, and the operation of the aircraft under an Australian Air Operator's Certificate.

The court considered the principles of private international law and the concept of 'most significant relationship' as outlined in the Restatement (Second) of Conflict of Laws. The court found that Missouri law would apply to the proceedings, as it was the state with the most significant relationship to the occurrence. The court noted that Missouri courts would apply Queensland law to certain issues due to the strong ties to Australia. However, the court also found that the Missouri proceedings were not vexatious or oppressive, and that the application for an anti-suit injunction was not made promptly. Consequently, the application was dismissed.

The court will hear from the parties regarding costs.

Orders

Orders of the court

The application is dismissed. I will hear from the parties as to costs.

Background

Background to the litigation

On 14 December 2017, the Missouri Court set the matter down for a 3 week jury trial which is now due to commence on 15 July 2019.Background On 17 June 2003, Mackellar Mining Equipment Pty Ltd (“Mackellar Mining”) entered into a business venture with Dramatic Investments Pty Limited, known as Partnership 818. The second applicant is the widow of the late Leslie Arthur Wright (“Mr Wright”), and is executor of his will. Partnership 818 was the owner of a Fairchild Metro 23 aircraft, (VH-TFU) (“the aircraft”). Partnership 818 leased the aircraft to Lesbrook Pty Limited (“Lesbrook”), which traded as Transair. Transair operated the aircraft pursuant to an Air Operator’s Certificate issued by the Civil Aviation Safety Authority (“CASA”) under the Civil Aviation Act 1988 (Cth) between aerodromes which included aerodromes at Bamaga, Lockhart River and Cairns in the State of Queensland. Mr Wright was the chief pilot of Transair. On 7 May 2005, in the course of a scheduled flight between Bamaga and Cairns, with a stop at Lockhart River, the aircraft crashed into the side of a mountain on approach to the Lockhart River aerodrome. The pilots at the time were Captain Brett Hotchin and Timothy Down. The aircraft was destroyed and all on board perished. The respondents are all relatives of 12 of the 13 deceased passengers and the two deceased pilots. All of the respondents are ordinarily resident in Australia. All but one are Australian citizens and all but two are Queensland residents. The aircraft was purchased by Partnership 818 from Lambert Leasing Inc. (“Lambert Leasing”). The applicants argue that the agreement was dated 9 May 2003 and was exchanged on or about 6 June 2003. The aircraft was flown from the US to Australia on or about 17 June 2003. The applicants argue that the sale of the aircraft was completed and property in the aircraft was transferred from the vendor to the purchaser pursuant to a Bill of Sale dated 26 June 2003, after the aircraft had been flown to Australia. The respondents argue, however, that the aircraft was purchased in Missouri, pursuant to a contract dated 9 May 2003, and the place of performance was Missouri. At the time of the accident, the aircraft was operated pursuant to a Certificate of Airworthiness issued by CASA on 4 July 2003, which was in force at the time of the accident. Transair leased the aircraft from Partnership 818 pursuant to a lease agreement dated 17 June 2003 and took possession of the aircraft after it arrived in Australia. The accident was the subject of an investigation by the Australian Transport Safety Bureau which published Reports dated 4 April 2007 and June 2009. The deaths of those on the flight were also the subject of a coronial enquiry by the State Coroner of Queensland in 2007 and the Findings of Inquest were published on 17 August 2007. It is uncontroversial that the accident occurred as the aircraft approached the Lockhart River aerodrome for landing. It impacted terrain in the Iron Range National Park on the north-western slope of South Pap, which is a ridge approximately 11 kilometres north-west of the Lockhart River aerodrome. Immediately prior to the accident, the aircraft was flying in cloud and was being operated under Instrument Flight Rules (“IFR”) which required the operation of the aircraft by way of navigational instruments. The weather conditions at the time it approached the aerodrome did not permit an approach under the Visual Flight Rules (“VFR”). The approach to runway 12 at the Lockhart River aerodrome was undertaken as an Area Navigational (Global Navigational Satellite System) or RNAV (GNSS) approach.

Evidence

Evidence Before The Court

The Restatement Commentary also provides in relation to § 178 the proposition that “In a situation where one state is the state of domicil of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages.”[11][11] Exhibit 24(1). The evidence of Professor Waters Professor Melissa Waters has sworn two affidavits in these proceedings, each attaching an expert report.[12] Professor Waters is a Professor of Law at Washington University located in St Louis, Missouri in the US and specialises in international law, conflicts of law, foreign relations law and international human rights law. [12] Exhibit 1: Affidavit of Professor Melissa Waters sworn 24 February 2017 and Exhibit 15: Affidavit of Professor Melissa Waters sworn 29 November 2017. Professor Waters’ detailed report of 20 July 2016 considers at length the laws of Missouri and how they would apply on the basis of a number of factual assumptions. These include: the fact that the aircraft was on a domestic, intrastate flight in Australia; was operated by an Australian operator; that all the deceased were Australian citizens and residents; and all the plaintiffs in the Missouri proceedings were Australian residents. She also noted that Lambert Leasing was a Delaware Corporation with its principal place of business in Virginia and that the aircraft was ferried to Australia where Partnership 818 leased it to Transair. For the purposes of the opinion report, Professor Waters assumed that the only relevant contacts with Missouri were Lambert Leasing’s storage of the aircraft in Springfield, Missouri, from March to June 2003 and Wright’s inspection of it there. It was also assumed that Lambert Leasing retained control and ownership of the aircraft until delivery to Partnership 818 in Australia. The report states that in 1969, Missouri adopted the “most significant relationship” test set forth in the Restatement (Second) which essentially provides that that the rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has the most significant relationship to the occurrence.[13] Her conclusion was that the Missouri Court would apply Queensland law when the relevant principles were taken into account which included the place of injury, the place where the conduct causing the injury occurred, the domicil, residence, nationality, place of incorporation and place of business as well as the place where the relationship between the parties was centred.[13] Restatement (Second) of Conflict of Laws §145. Professor Waters noted that in Australia there was a comprehensive regulatory regime under the CACL Act and that certain limitations on liability would apply to Mr Wright but that Missouri law does not provide for similar limitations on liability for suit for carriers or their agents. She considered therefore that a conflict existed between Queensland law and Missouri law but that the choice of law rules required application of Queensland law in this respect as well. In this regard she noted the wrongful death proceedings had been instituted in Australia under the Act and had all been concluded. In her evidence at the hearing, Professor Waters discussed the Missouri choice of law principle of ‘depecage’ which is a process where the Court considers the issues individually and decides what the most appropriate law is for the particular issue. This is evaluated on an issue by issue basis and the courts consider different state laws as well as different international laws, if required. Courts that follow such a practice are considered ‘modern courts’ who follow the Restatement (Second).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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