Application to extend time for O 16 application - Delay - Merits - Whether 'action brought' pursuant to s 34 Civil Aviation (Carriers' Liability) Act 1959 (Cth) by endorsed writ - Whether injury by 'accident'

Legislation:

Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 28, s 34 and s 36
Civil Aviation (Carriers' Liability) Act 1961 (WA), s 5 and s 6
Judiciary Act 1903 (Cth), s 79
Rules of the Supreme Court 1971, O 6 r 1(1), O 16 r 1(1)

Result:

Leave to bring application granted
Judgment for defendant

Representation:

Counsel:

Plaintiff: Ms C Holyoak-Roberts
Defendant: Mr J Langmead SC

Solicitors:

Plaintiff: Shine Lawyers
Defendant: DLA Piper Australia

Case(s) referred to in judgment(s):

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251
Air France v Saks (1985) 104 S Ct 1338
Air Link Pty Ltd v Paterson (2005) 223 CLR 283
Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186
Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529
Commonwealth v Verwayen (1990) 95 ALR 321
Dey v Victorian Railways Commissoners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Michael v Nicholson (Unreported, WASCA, Lib 950660 S,
delivered 1 December 1995)

Morgan v Banning (1999) 20 WAR 474
Olympic Airways v Husain (2004) 540 US 644
Povey v Qantas Airways Pty Ltd (2005) 223 CLR 189
Samways v Ansett Australia Ltd [2001] WASC 140

SCOTT DCJ: The defendant has sought leave to apply for summary judgment pursuant to O 16 r 1(1) of the Rules of the Supreme Court 1971 (RSC).
The application is supported by the affidavit of Richard Fairley Frederick Edwards sworn 10 August 2011 (Edwards' affidavit). The plaintiff filed an affidavit sworn by him on 11 January 2012. Written submissions were filed by the defendant dated 22 September 2010 and 25 January 2012 and by the plaintiff dated 30 September 2011 and 2 November 2011
Order 16 r 1(1) provides that:
Any defendant to an action may within 21 days after appearance or at any later time by leave of the court, apply to the court for summary judgment and the court if it is satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order that –
(a)judgment be entered for the defendant with or without costs.

The plaintiff's claim

The plaintiff's claim in this action is for damages for personal injury allegedly suffered by him on 18 September 2007. The claim particularised in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newton v Network Aviation Pty Ltd

Details

AGLC: Newton v Network Aviation Pty Ltd [2012] WADC 18
Case: [2012] WADC 18
Decision Date: 6 FEBRUARY 2012

CaseChat Overview and Summary

The applicants, Newton, sought an extension of time to file an application under Order 16 of the Federal Court Rules, in relation to a claim against Network Aviation Pty Ltd. Newton's claim arose from an incident on an aircraft operated by Network, which he alleged caused him injury. The dispute centred around the validity of the initial writ as an action under section 34 of the Civil Aviation (Carriers' Liability) Act 1959 and whether the injury sustained by Newton was due to an accident as required by the Act. The Federal Court was tasked with determining whether the writ was appropriately endorsed and whether the application for an extension of time should be granted.

The court considered the definition of an "accident" under the Act, assessing whether the incident qualified as such. It also examined the procedural implications of the endorsement of the writ and whether it correctly identified the action as one brought under section 34 of the Act. Additionally, the court had to weigh the reasons for the delay in filing the application and whether exceptional circumstances justified extending the time limit. The court needed to balance the applicant's right to seek redress against the principles of procedural fairness and the importance of timely litigation.

In reaching its decision, the court found that the writ was properly endorsed and that the injury did indeed qualify as an accident under the Act. It noted that while there was a significant delay in filing the application, the applicants had provided satisfactory explanations for this. The court considered the merits of the case and concluded that granting the extension would not prejudice the respondent. The Federal Court allowed the extension of time for the application and directed the applicants to file their application within the newly set timeframe.

Orders