Newton v Network Aviation Pty Ltd - [2012] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NEWTON -v- NETWORK AVIATION PTY LTD [2012] WADC 18

CORAM: SCOTT DCJ

HEARD: 26 OCTOBER 2011, 19 DECEMBER 2011

DELIVERED : 6 FEBRUARY 2012

FILE NO/S: CIV 2706 of 2009

BETWEEN: WALTER JOSEPH NEWTON
Plaintiff
AND
NETWORK AVIATION PTY LTD
Defendant

Catchwords:

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 the statement of claim is made pursuant to the Civil Aviation (Carriers' Liability) Act1959 (Cth) (Commonwealth Act) read with and applied pursuant to the provisions of s 5 and s 6 of the Civil Aviation (Carriers' Liability) Act 1961 (WA) (WA Act). The relevant sections of the Commonwealth Act are as follows:
Section 28:
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damages sustained by reason of … any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Section 34:
The right of a person to damages under this Part is extinguished if an action is not brought by him or her … within two years after the date of arrival of the aircraft at the destination …
Section 36:
The liability of a carrier under this Part in respect of personal injury suffered by a passenger … is in substitution for any civil liability of the carrier under any other law in respect of the injury.
In his statement of claim the plaintiff alleges:
(a)The defendant operated a passenger carrying operation on an aircraft between Perth and Woodie Mine Site in Western Australia on 18 September 2007 (par 4).
(b)The plaintiff was booked for carriage as a passenger on the flight (par 7).
(c)The plaintiff is and was at the time of the flight about 1.96 metres tall (par 8).
(d)Upon the plaintiff's embarkation on the plane, the flight's hostess directed the plaintiff to a seat being a single seat on the front left hand side in the passenger area of the plane immediately behind the galley (par 9).
(e)The seat had insufficient leg room for the plaintiff such that the plaintiff was required to sit in an awkward and an uncomfortable seating posture (par 10).
(f)Once he was seated and before the flight departed, the plaintiff drew the awkward seating posture and his discomfort to the attention of the hostess and asked the hostess to relocate him to another seat (par 11).
(g)The hostess said to the plaintiff that she was unable to relocate him to another seat until the plane was in the air (par 12).
(h)As a result the plaintiff sat in the seat in an awkward posture during the remainder of the boarding time and for about the first 30 minutes of the flight which resulted in external stress being placed on his lower spine (par 13).
(i)As a result of sitting in that awkward position, the plaintiff developed severe pain particularly in his lower back and right buttock. This is referred to as the 'accident' (par 14).
(j)About 30 minutes after take off, the plaintiff requested the hostess to move him to another seat and as a result she did so. That previously unused seat had greater leg room (par 15).
(k)He suffered injury caused by the accident and claims that the defendant is liable to him for damages pursuant to the provisions of s 28 of the Commonwealth Act read with and applied by the provisions of s 6 of the WA Act (par 16) and claims damages.
With respect to the defendant's application to extend the time within which it may bring its application pursuant to O 16 r 1(1), it is necessary to consider the history of the proceedings, which are summarised in Edward's affidavit and a chronology annexed to the defendant's first outline of submissions (chronology).
Relevantly:
(a)The writ of summons was filed on 11 September 2009.
(b)The writ of summons was served on the defendant on 10 September 2010.
(c)The statement of claim was served on the defendant on 5 October 2010.
(d)On 13 October 2010 the defendant confirmed that the plaintiff was a passenger on a flight operated by it on 18 September 2007.
(e)The defendant filed its defence on 25 October 2010.
(f)The parties have exchanged lists of discoverable documents and have sought and obtained from each other copies of the documents they require.
(g)The defendant arranged for the plaintiff to be medically examined by two medical practitioners in respect to whom relevant reports were provided to the plaintiff's solicitors by 18 April 2011.
(h)On 1 July 2011 the defendant commenced a conferral process with the plaintiff with respect to the defendant's intention to make an application for summary judgment under O 16.
The defendant's application for summary judgment is well out of time. It is incumbent the defendant to justify any delay by affidavit evidence. In my view having regard to the content of the Edwards' affidavit and the chronology, the delay in making the application is unfortunate and unsatisfactory. Before it filed its defence on 25 October 2010, the defendant was aware of the specific nature of the plaintiff's claim, the statement of claim having been served on 5 October 2010 and it was armed with sufficient information and instructions to its solicitors for a defence to be prepared and then filed and served on 25 October 2010.
As a consequence at some point before 25 October 2010 the defendant must have had sufficient information available to it which could have enabled it or its advisors to make a determination as to the merits of a summary judgment application under O 16.
However, from the chronology it is apparent that senior counsel provided his advice to the defendant on the merits of the plaintiff's action on 6 June 2011. What followed was the commencement of the conferral process with respect to the defendant's intention to make an application for summary judgment. I infer from those facts that it was from senior counsel's advice that the issue now raised was flagged and which prompted this application to be made..
Nonetheless, there was a delay of about eight months between the date by which the application for summary judgment could have been made without leave and the commencement of the conferral process.
By that time there had been work undertaken by the solicitors for the plaintiff in considering the defence, filing a reply to defence, giving discovery, inspecting the defendant's discovered documents and no doubt undertaking work towards preparation for trial.
Counsel for the plaintiff in her outline of submissions said that the absence of any justified delay is fatal to an application for an extension of time. With due respect that constitutes a misreading of the decision relied on by her, namely Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186 [10]. That was not what his Honour Templeman J said in that case. I suspect that the submission may have been based on the commentary in the Red Book referring to Michael v Nicholson (Unreported, WASCA, Library No 950660S, delivered 1 December 1995). In that case Kennedy J said 'clearly, the onus is on the applicant to justify any delay, and this requires evidence on affidavit. There was no such evidence in the present case and, in my view, this should have been fatal to the application under O 16 …' (my underlining)
Mr Edwards in his affidavit has sought to explain the delay. Order 16 applications ought to be made promptly before costs are incurred, perhaps unnecessarily. It is unsatisfactory that the action proceeded and work was undertaken and costs incurred before the issue now raised was considered.
Be that as it may, there are in my view case management considerations which ought to be taken into account in determining whether there ought to be leave. Those are whether it is appropriate, notwithstanding the lateness of the application, to determine an application which on the defendant's submissions will summarily deal with the plaintiff's claim and thereby save costs being unnecessarily incurred by both parties by the action proceeding to trial.
There is force in that submission. In my view the merits of the defendant's application ought to be dealt with as part of my consideration as to whether there ought to be leave as the defendant seeks.

Order 16 – principles

A very clear case must be made before the court will intervene to prevent a plaintiff submitting his or her case for trial in the ordinary way. To that end once it appears that there is a real question to be tried whether that question be one of fact or law and the rights of the parties depend upon it, a court will not dismiss the action: Dey v Victorian Railways Commissoners (1949) 78 CLR 62, 91.
The power to order summary judgment, as it is with respect to an application under O 14, should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. In this case the defendant says that there ought to be summary judgment against the plaintiff because:
1.any right to damages which the plaintiff may have had against the defendant was extinguished on 18 September 2009 because the indorsement of claim on the writ (which was filed within the two year period) was entirely insufficient to constitute an action being brought against the defendant pursuant to s 34 of the Commonwealth Act; and/or
2.the plaintiff did not suffer his alleged injury as a result of an 'accident' within the meaning of that term in s 28 of the Commonwealth Act.
On the other hand the plaintiff says that there are questions to be tried namely:
(a)the action was brought by the indorsed writ pursuant to s 34 of the Commonwealth Act;
(b)alternatively the defendant has waived its right to maintain that the action was not brought or is estopped from doing so;
(c)the plaintiff's alleged injury resulted from an accident within the meaning of that term in s 28 of the Commonwealth Act.

Commonwealth and State Acts

The Commonwealth Act gives domestic legislative force to international conventions with respect to the regulation of the carriage of passengers and baggage. Part IV of the Commonwealth Act mirrors the relevant international conventions but by that Act is applicable to interstate flights in Australia and international flights to which the relevant conventions do not apply.
Sections 5 and 6 of the WA Act render the provisions of Pt IV of the Commonwealth Act applicable to intrastate flights in Western Australia.
The provisions of the Commonwealth Act, rendered applicable by s 5 and s 6 of the WA Act include s 28, s 34 and s 36.
By s 36 of the Commonwealth Act the common law rights otherwise available to a person who suffers injury in the manner prescribed by s 28 have been substituted based on substantially different legal principles. Common law notions of fault and obligation have been replaced by strict liability.
Events giving rise to legal claims at common law are replaced by the need to prove an 'accident'. The quid pro quo for the benefit of strict liability is a limitation on the amount of damages which may be recovered from a carrier.
A strict time limit is fixed for the bringing of actions, after which the right to damages is extinguished. To this end s 34 imposes a condition being the time within which an action must be brought which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 [51].
Consequently, the bringing of an action pursuant to s 28 of the Commonwealth Act is a condition precedent to suit. Section 28 creates the statutory right available to a plaintiff. If an action is not brought within the two year period required by s 34 what ensures is not the expiry of a relevant period of limitation, but the removal of a pre‑requisite for the existence of the right sought to be litigated: Agtrack v Hatfield [59].

Meaning of 'action brought'

Neither the Commonwealth Act nor the international conventions contain any definition of what is required for the bringing of an action, so as to escape the consequences of extinguishment provided for in the case of default.
It is not sufficient for a passenger, making a claim for damages under Pt IV of the Commonwealth Act, to commence an action which is expressed in any terms at all. The 'action' must be a claim for damages brought by the passenger within the specified time. But, otherwise, the content of the 'action' is unspecified and is left to local law and practice: Air Link Pty Ltd v Paterson (2005) 223 CLR 283 [54]; Airtrack v Hatfield [92].
The question posed by Kirby J in Air Link v Paterson was as follows:
Clearly, an 'action' of sorts was 'brought'. But was it an 'action' of the kind to which s 34 of the [Commonwealth Act] referred? Or was it a proceeding (to use a neutral word) that did not amount to an 'action' for this purpose? [47]
It follows that the essential issue … is whether, by the characterisation of the 'action' constituted by Mr Paterson's original statement of claim in the District Court, it can be said, with reference to any applicable local law and practice, that an imperfect, defective yet sufficient 'action' was brought. Or are the imperfections, defects and insufficiencies of Mr Paterson's pleading such as to deprive the initiating process of the character of 'an action', sufficient to satisfy s 34 of the [Commonwealth Act]?
Issues, so stated, are unsatisfying. They invoke impressions and judgments upon which minds will inevitably differ. There is no ultimate certainty, because each case will depend upon its own facts [56] – [57].
His Honour said:
'Given the time limit and serious consequences of default (extinguishment), a degree of precision in the "action" that is brought could be imputed to the parliament (and the Warsaw Convention) by the requirement stated in s 34. That statement should therefore not be robbed of content."
And at [65]:
Whilst some measure of leniency has replaced the former strictness observed in pleading practice, the objectives of accurate pleading remain. They include the fair notification to the opposite party of the legal character of the claim being brought against it. The defendant should not be obliged, in cases of serious omissions in, or departures from, accuracy in pleading a claim, to guess the nature of the claim and to assume its viability …
At [83] his Honour said:
… it is tolerably clear that the purpose of that precondition [that action be brought within the period of two years] is the need to ensure a formal invocation by the person claiming the right to damages of the jurisdiction of a court or tribunal: the identification by that person in the initiating process of a claim to a "right … to damages"; the nomination of the claim as one arising out of "carriage" on an "aircraft": and the commencement of proceedings "within two years" of the specified aircraft carriage. If the foregoing elements are present the terms of Article 29.1 of the Warsaw Convention and s 34 of the [Commonwealth Act] are fulfilled.
At [86] his Honour said:
'Compliance or non‑compliance with State laws as to procedure and pleading will be relevant in deciding whether the initiating proceeding may be characterised as an "action" falling with s 34 of the [Commonwealth Act]. But the State laws are not themselves determinative of the entitlement. … It is for these reasons that, ultimately, the question to be answered is a question of federal law, not one about compliance, or non‑compliance, with State pleading law or rules of court. The question is whether "an action is not brought" under Pt IV of the [Commonwealth Act] as that phrase is intended to operate for its purpose, relevantly, in s 34 of that Act."
His Honour observed that where there is no definition in the Warsaw Convention or the Commonwealth Act of the pre-conditions for the bringing of an action for limitation purposes, it is proper to draw a necessary inference as to how such a provision will operate, given the vastly differing circumstances of municipal courts and tribunals and local law as to initiating process and related practice. His Honour said that the courts in which federal jurisdiction may be vested vary greatly in the degree of formality required by their initiating pleading and in the detail conventionally observed. The former strictness that accompanied the older style of pleadings, in courts of pleading, has sometimes given way to a more discursive style.
In addition, his Honour said, in most countries (including Australia) litigants with claims of rights to damages are entitled to represent themselves before courts and tribunals and it must have been anticipated that the Warsaw Convention would apply to actions brought by such persons and as a consequence that is good reason why the phrase in the Warsaw Convention and repeated in the (Commonwealth Act) must be given a meaning that works sensibly in the vastly different circumstances in which initiating process is drafted by people of different skills and is a reason for inferring that (s 34) was not intended to have an overly rigid interpretation that would defeat claims for damages, although brought by a formal process within the given period of two years. See Air Link v Paterson [75 – 77].

The relevant matters for consideration and the applicability of state court rules can be distilled from the decisions of the High Court in Agrack v Hatfield and Air Link v Paterson to be as follows:
(a)The State court, seized with federal jurisdiction, is required to give meaning to the phrase 'action … is not brought' so as to fulfil the purposes of the federal law. Because that law deliberately chose, even in the case of air carriage within Australia, to apply the same language as appears in the Warsaw Convention it is necessary to construe that phrase so as to achieve its purpose in the Commonwealth Act consistently also with its purpose in the Warsaw Convention.
(b)The fact of compliance or non‑compliance with State laws on procedure and pleading is relevant to, but not determinative of, a plaintiff's compliance with the requirement in s 34 of the Commonwealth Act. The State rules of practice and procedure are relevant in the determination as to whether what a plaintiff did could properly be characterised as bringing an action within the two year period.
(c)Ultimately, the question to be answered is a question of federal law, not one about compliance, or non‑compliance, with the State pleading law or rules of court. The question is whether 'an action is brought' under Pt IV of the Commonwealth Act as that phrase is intended to operate for its purpose, relevantly, in s 34 of that Act. The court needs to consider the character of the 'action' brought. That is whether the 'action' brought identified the claims essential pursuant to s 34 of the Commonwealth Act.
(c)In the event that, having regard to these principles, an action is not brought within the relevant period of two years then the pre‑requisite to bringing the action has not come into effect and the action is extinguished. If the rights are extinguished they cannot be revived by the purported application to them of state law. Any such law would subvert the applicable federal law effecting the extinguishment. The provisions of s 79 of the Judiciary Act 1903 (Cth) will not then 'pick up' any rules of pleading in the State court to enable any amendment to the initiating process so as to 'reinstate' the right of action.
(d)In the event that action has been brought within the State court within the meaning of s 34 of the Commonwealth Act then s 79 of the Judiciary Act will enable an amendment to any pleadings within the scope of the State court's rules.

Significance of general indorsement of claim on writ

In the leading cases of Agtrack v Hatfield and Air Link v Paterson the respective plaintiffs had indorsed the writ of summons with a statement of claim.
In Agtrack v Hatfield the respondent (plaintiff) pleaded claims in contract and tort. Nonetheless the High Court held that the respondent had pleaded sufficient facts which gave rise to the statutory cause of action pursuant to s 34 of the Commonwealth Act.
In that case the respondent had pleaded that she was the widow of a passenger who had died as the result of an aircraft accident in respect to which she claimed damages from the carrier. Allegations that went beyond what was required to comply with s 34 were surplusage. The surplusage was liable to removal under the court's procedural provisions picked up by s 79 of the Judiciary Act but that did not deny that s 34 had been satisfied.
In Air Link v Paterson the respondent (plaintiff) pleaded that he was a passenger in air carriage pursuant to a specified air ticket, on an aircraft operated by the appellant on a given day which was duly authorised to operate a commuter and charter airline and that he had suffered an accident when disembarking.
The High Court held that whilst there were pleading deficiencies in the statement of claim, the respondent had in that case pleaded sufficient material facts to give rise to a claim under s 34 of the Commonwealth Act.
In the case at hand the writ of summons was indorsed with a general indorsement of claim rather than a statement of claim. That course is, pursuant to O 6 r 1(1) of the RSC, an appropriate means by which a plaintiff suing in this court may initiate an action.
It is appropriate when considering whether 'an action had been brought' by the plaintiff within the framework of s 34 of the Commonwealth Act to have regard to the provisions of O 6 which governs the means by which initiating process in this court can be undertaken.
The indorsement on the writ was in the following terms:
The plaintiff claims damages for personal injury, loss and damage which he sustained on or about 18 September 2007 as a result of the negligence and/or breach of contract and/or breach of statutory duty of the defendant.
Order 6 r 1(1) of the RSC provides:
Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
An indorsement is not a pleading. In ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11] McLure J said:
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
In that case her Honour said that there are three functions of an indorsement to satisfy the requirements of O 6 r 1 and O 20 r 19 of the RSC namely:
Firstly, it marks out the perimeter within which a plaintiff may frame the statement of claim. …
Secondly, an indorsement in a writ has important limitation ramifications. …
Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action. However, it is not intended to be in the nature of a pleading but only a summary of the nature of the claim.
Her Honour at [14] said, with respect to that case:
The indorsement does not put the facts in a recognisable legal framework showing how the respondents' claims arise and the relationship between the claims and the loss. Without further information the reader is left to speculate as to how it is the respondents have a claim for damages against the applicant for representations made by the applicant about a contract between the applicant and a third party. There are a number of possible permutations and links which could theoretically give rise to a claim by the respondents against the applicant for breach of the pleaded causes of action. However, the respondents must state those links so they cannot subsequently be the beneficiary of such an open-ended plea in the event a limitation issue arises.
In considering the 'action' said to have been brought in the indorsed writ of summons, I am of the view that it is encumbent upon the plaintiff to particularise a factual situation which would entitle the plaintiff to approach the court for relief rather than a 'label' which might be conveniently applied to those facts. To that end I adopt the construction favoured by Wheeler J in Morgan v Banning (1999) 20 WAR 474 [485].
I accept that a defective indorsement of claim on a writ of summons issued out of this court does not render a writ a nullity. Morgan v Banning. The issue before me does not, however, turn on whether the indorsement results in the writ being a nullity or not. If the indorsed writ does not constitute an action being brought by the plaintiff pursuant to s 34 of the Commonwealth Act then the action is extinguished. That is because the 'bringing of the action' is a pre‑requisite to suit. If the indorsement on the writ, even if defective, did constitute the bringing of an action, the provisions of the RSC can then take effect so as to enable amendment if for any reason that was necessary for the purposes of a pleading.
I have been referred to a decision of Master Sanderson in Samways v Ansett Australia Ltd [2001] WASC 140 in which on an O 16 application the indorsement of claim was in very similar terms to the indorsement in the present action.
In that matter, the master dismissed the defendant's application for summary judgment and made an order that the plaintiff have leave to amend the indorsement on the writ.
I am not bound by the master's decision. In any event I do not concur with the determination made by him. The High Court decisions to which I have referred post date that decision.
Even taking a liberal approach to the requirements of O 6 r 1 of the RSC, I am of the view that the indorsement on the writ in the present case is so manifestly insufficient that it did not constitute the bringing of an action as that term is construed in s 34 of the Commonwealth Act.
Having regard to the provisions of s 28 and s 34 of the Commonwealth Act and the provisions of O 6 r 1 of the RSC, in order for the plaintiff to bring an action pursuant to s 28 of the Commonwealth Act it would, in my view, be necessary for the plaintiff at the very least, to specify in the indorsement that he was on 18 September 2007 a passenger in air carriage on an aircraft operated by the defendant and that he had suffered personal injury on board the aircraft resulting from an accident. It would not be necessary to specify the legislative provision pursuant to which the action was brought. Apart from a claim that the plaintiff suffered personal injury on 18 September 2007 none of those facts to which I have referred were contained in the indorsement.
In the event that those facts were included in the indorsement it would not, in my view, have been fatal to the plaintiff's claim that an action had been brought that the causes of action which were specified namely negligence and/or breach of contract and/or breach of statutory duty of the defendant, were not available and were surplusage. That would be so because the character of the action would have been made out by the inclusion of the facts I have specified.
The action by the plaintiff has not been brought within the two year period specified in s 34 of the Commonwealth Act. As a consequence the statutory pre‑requisite to the plaintiff's claim has not been made out and the claim was thereby extinguished at the expiration of the relevant two year period, namely 18 September 2007. The right of action was not capable of being 'revived' by subsequent amendment pursuant to the RSC.

Waiver/estoppel

The plaintiff submits that in the event that I was to determine that the plaintiff has failed to bring an action within the two year period the defendant has waived its right to raise objection to the sufficiency of the indorsement, alternatively is estopped from doing so.
The plaintiff submits that after the writ was served the defendant filed an unconditional appearance. The defendant says that the filing of an unconditional appearance constitutes a waiver as to any irregularities arising from a failure by the plaintiff to comply with O 6 r 1(1) of the RSC.
To that end the defendant cites Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529, 539 in which Gibbs J said:
As a general rule an unconditional appearance amounts to a submission to the jurisdiction of the court and to a waiver of irregularity, eg, in the manner of service.
An indorsement which does not constitute the bringing of an action because of its manifest insufficiency is not in my view an irregularity to which the High Court was referring. Indeed there are a number of circumstances in which a defendant after having entered an unconditional appearance may raise objection to a subsequent pleading, such as a statement of claim, which may require the indorsement to be the subject of an application for amendment so as to accommodate the statement of claim upon which the plaintiff wishes to rely.
The sort of irregularity which may attract a waiver is of the nature to which the High Court referred namely the manner of service.
The plaintiff says that upon being served with the writ, alternatively the statement of claim the defendant had seven options namely:
(a)enter a conditional appearance;
(b)if an unconditional appearance had been entered, apply to withdraw the unconditional appearance and enter a conditional appearance reserving the right to set aside the writ;
(c)apply to set aside the writ before being served with the statement of claim;
(d)bring an application to strike out the writ on the basis that the indorsement did not give rise to the cause of action pleaded in the statement of claim;
(e)complain to the plaintiff about the defective indorsement;
(f)request particulars; or
(g)file a defence.
Of those options the defendant chose to file and serve its defence on 25 October 2010 and did not bring an application to strike out the indorsement.
Further, the plaintiff says that in this action he:
(a)filed a statement of claim;
(b)considered the defence;
(c)filed a reply;
(d)participated in discovery; and
(e)undertook work in preparing the action for trial.
The plaintiff submits that these steps have incurred substantial costs.
In addition, the plaintiff says that if the defendant were successful in its application under O 16 the plaintiff would be deprived of the opportunity to have his substantive action determined by the court and be thereby deprived of any opportunity to seek compensation for his injury. As to this submission the defendant says that the fact that the plaintiff may be shut out of litigating his case to trial cannot be a relevant prejudice because in order for the defendant's application to be successful I would need to be satisfied that the plaintiff had no arguable case against the defendant. That indeed is the consequence to a plaintiff as a result of any application for summary judgment by a defendant being successful.
The advantages of there being a summary determination of a case mounted by a plaintiff which has no prospects of success are of course that costs which would otherwise be incurred by both parties would be avoided.
In reality the plaintiff's submission based upon waiver and/or estoppel concerns the conduct of the defendant failing to raise the issue now raised until notice of this application was brought being a number of months after the writ of summons was served during which time the action had progressed.

The law – waiver/estoppel

In Commonwealth v Verwayen (1990) 95 ALR 321 the High Court dealt with the relevant distinction between waiver and estoppel.
At 328 Mason CJ said:
According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305, 326; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 658. However, the better view is that, apart from estoppel and new agreement, abandonment of a right occurs only where the person waiving the right is entitled to alternative rights inconsistent with one another, such as the right to insist on performance of a contract and the right to rescind for essential breach … . This category of waiver is an example of the doctrine of election.
Another category of waiver is one in which a person is prevented from asserting, in response to a claim against him, a particular defence or objection which would otherwise have been available. Here waiver is said to arise when the person agrees not to raise the particular defence or so conducts himself as to be estopped from raising it … .
In that case the respondent's (plaintiff's) contention was that by filing a defence omitting reference to the Limitation Act and a further defence, which may have been available to it, the Commonwealth had irrevocably elected not to plead the defences available to it. His Honour said that the immediate difficulty with that contention was that it did not account for the possibility that leave may be granted to amend the pleadings for the purpose of including the defences.
At 330, his Honour said:
This is not a case in which it could be said that the defendant was required by a certain point in time to elect whether or not to plead the defences. If there was no need to make an election when the defence was first filed, there is no reason why the comparatively insignificant proceedings which followed gave rise to such a need and precluded the reversal of the previous decision. If the facts give rise to a conclusion that the Commonwealth's decision was irrevocable, then the reason is not to be found in the principles of election.
In my view this is not a matter which falls for determination on the principle of waiver.
The real issue is whether the defendant by its words or conduct is estopped from now raising the issue that the plaintiff did not bring an action within the requisite two year period pursuant to the provisions of s 34 of the Commonwealth Act.
There is no assertion by the plaintiff that there was any relevant representation made by the defendant upon which the plaintiff relied. The question is whether by conducting the action and not raising this issue in its defence or otherwise until this application was foreshadowed the defendant can be said to have conducted itself so as to prevent it from unjustly departing from the assumption of fact upon which the plaintiff relied to afford the plaintiff protection against the detriment which would flow from the defendant's change of position if the assumption that led to it, were deserted.
There is in this case no evidence from the plaintiff as to any factual assumptions which he made by reason of the conduct of the defendant or any reliance by him on such conduct.
I can assume given the nature of the work that has been undertaken to date, that the plaintiff has been and is exposed to legal costs of some significance.
Having said that although the plaintiff filed an affidavit sworn 11 January 2012 that affidavit makes no reference to any particular financial or other prejudice he would suffer as a consequence of this application being made at the time it was filed. Although counsel for the plaintiff has relied on an excerpt of the judgment of Deane J in Verwayen (359), there is no evidence referable to the non‑pecuniary matters there referred to.
The High Court in Verwayen made clear the difficulties facing a plaintiff in founding an estoppel based upon matters raised by a party in filing pleadings and other documents in an action, alone.
At 333, Mason CJ said:
In an ordinary case, the nature of pleadings and their susceptibility, whether by leave or otherwise to amendment would make it most unlikely that it could be inferred from the pleadings alone that the pleader had induced another party to make an assumption that a particular matter would or would not be pleaded. The other party might reasonably be expected to appreciate that no inference can be drawn from the state of the pleadings alone at a particular time as to the future course which the pleader may decide to take. Still less would it be reasonable to assume that an implied promise not to amend the pleadings, if such a promise could be identified, would be enforceable in the absence of consideration: see Waltons Stores (Interstate) Ltd. v. Maher (1988), 164 CLR 387, 403.
Deane J at 358 said:
In the ordinary case where a party to litigation amends a pleading to raise a new defence or to assert a new claim, questions of estoppel do not arise. The effect of earlier pleadings will be merely to reflect the particular party's then intentions in relation to the conduct of the action and the other party will not be justified in assuming that subsequent amendment will not be made. Nor, in such a case, will amendment of the pleadings and subsequent conduct of the proceedings on the basis of the amendment give rise to any suggestion of unconscionable conduct on the part of the amending party. It will involve no more than the exercise of the right to seek to raise additional matters of claim or defence in accordance with the procedures laid down for that purpose.

As their Honours said in Verwayen the facts of that case were far removed from the ordinary one.
Deane J at 358 said:
The claimed estoppel does not arise merely from the Commonwealth's failure to deny liability in the pleadings. It arises from the fact that other actions of the Commonwealth constituted an unambiguous representation to Mr Verwayen that liability would not be contested, that is to say, that a limitations defence would not be relied on and that breach of a duty of care would not be denied. The assumption upon which Mr Verwayen acted was knowingly and deliberately induced and the resulting material relationship of wrongdoer and wronged was deliberately established so that the action could proceed expeditiously to the assessment of damages.
In this case I am of the view that there is no prospect of the plaintiff successfully contending that the defendant has waived its entitlement to assert that an action was not brought by the plaintiff pursuant to s 34 of the Commonwealth Act or that it is estopped from raising that issue.
Whilst it was of course preferable for the defendant to have raised the issue earlier there has been no conduct its part upon which the plaintiff has relied and/or acted such that the doctrines of waiver and/or estoppel can be made out.
True it is that the defendant has not pleaded in its defence that the plaintiff has not brought an action under s 34 of the Commonwealth Act. It ought to have done so. Nonetheless for the purposes of this application it is not necessary that the plea be first incorporated in the defence.
The position is that the bringing of the action within a period of two years is a condition precedent to the plaintiff's right to damages. In this case if the action was not brought pursuant to s 34 of the Commonwealth Act the action was extinguished on 18 September 2009. The action which might otherwise have been available to the plaintiff is then irretrievably lost.

Accident

In view of my determination that the plaintiff has not brought an action within the statutory period and that the right of action is extinguished there is strictly speaking no need to deal with the question as to whether the plaintiff's alleged injury resulted from an 'accident'. However, for the sake of completeness I will do so.
The leading cases with respect to the definition of 'accident' for the purposes of s 28 of the Commonwealth Act are not in dispute.
In Air France v Saks (1985) 104 S Ct 1338 the Supreme Court of the United States in dealing with Article 17 of the Warsaw Convention, the wording of which is followed in s 28 of the Commonwealth Act, said:
… liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger.
At (406) the court said:
… when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident … .
The High Court in Povey v Qantas Airways Pty Ltd (2005) 223 CLR 189 adopted the meaning of 'accident' in Saks as being applicable pursuant to s 28 of the Commonwealth Act.
In the case at hand counsel for the defendant referred to the decision in Re; Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72 in which the House of Lords, in applying the definition of 'accident' referred to in Saks, distinguished between the bodily injury to the passenger on the one hand and the 'accident' by which the bodily injury was caused on the other concluding that the injury could not itself be the accident; that it was the injured passenger who must suffer the unintended and unexpected happening and that an event or happening which was no more than the normal operation of the aircraft in normal conditions could not constitute an 'accident' for the purposes of Article 17 of the Warsaw Convention.
In Povey the plaintiff asserted that he suffered from DVT during the course of or following a number of international flights from Sydney to London and return and that as a consequence he sustained injury. He alleged that the DVT had been caused by certain conditions and procedures relating to passenger travel on the flights and that such conditions and procedures constituted an 'accident' within the meaning of Article 17 of the Warsaw Convention.
The alleged flight conditions and procedures were:
(a)cramped seating conditions;
(b)impediments to the passenger leaving his seat;
(c)the offer and supply of alcoholic and caffeinated beverages;
(d)encouraging him to remain seated; and
(e)not warning him about the risk of DVT.
The High Court held that the statement of claim containing these allegations did not disclose an arguable cause of action against the carriers because the alleged flight conditions and procedures could not, if established, constitute an 'accident' as they did not give rise to an unexpected or unusual event or happening that was external to the passenger.
At [34] the court said:
The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury. What that reveals is that the 'accident'… , is not to be read as being sufficiently described as an adverse physiological consequence which the passenger has suffered. It may be accepted that its happening was not intended. In that sense, what is alleged to have happened may be described as 'accidental. But suffering DVT is not an accident. Rather, as the parties to this appeal accepted, 'accident' is a reference to something external to the passenger.
At first blush this decision would seem to be a significant hurdle for the plaintiff. However, there is a need to consider the decision in Olympic Airways v Husain (2004) 540 US 644.
That case concerned the death of a passenger (Dr Hanson) on board an aircraft as a result of exposure to cigarette smoke. A flight attendant had refused requests to move Dr Hanson to a seat further away from those who were smoking on board. The majority applied the test in Saks and held that the Ninth Circuit Court's decision that the flight attendant's refusal to re‑seat Dr Hanson 'was clearly external to Dr Hanson and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr Hanson's requested accommodation'.
In Povey neither party sought to challenge the correctness of what was decided in Husain. The High Court observed that questions of the kind considered in Husain did not arise in Povey because it was central to the appellant's case that nothing happened on board the aircraft which was in any respect out of the ordinary or unusual.
The rationale in Husain has yet to be tested in Australia as far as I am aware. The High Court in Povey did not make any comment critical of the decision in Husain.
In the present case the plaintiff alleges that he drew the attention of the hostess to his awkward seating posture and discomfit and asked her to relocate him. Given that assertion and depending upon any evidence as to industry standards and the defendant's policy and the determination of the surrounding facts there is a reasonable possibility that the rationale in Husain may assist the plaintiff in the present case. I am not satisfied that, with respect to the issue of 'accident' there is no serious case to be tried.
Having regard to the merits of the summary judgment application and notwithstanding the delay in bringing it, the defendant's application for leave to apply for summary judgment pursuant to O 16 r 1(1) of the RSC is allowed. The application is successful and there will be judgment for the defendant against the plaintiff in terms that the plaintiff's claim be dismissed. I will hear counsel on costs.