Qantas Airways Limited v S.S. Pharmaceutical Co Limited

[1991] HCATrans 42

__&,r	-!.), AUSTRALIA (!'-
-)).)).)~~««.<-<...~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1990

B e t w e e n -

QANTAS AIRWAYS LIMITED

Applicant

and

S.S. PHARMACEUTICAL CO LIMITED

and R.P. SCHERER PTY LIMITED

Respondents

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Qantas 1 15/2/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 10.07 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, OC:  May it please Your Honour, I appear

with my learned friend, MR A.J. MEAGHER, for the

applicant. (instructed by Ebsworth & Ebsworth)

MR W.W. CALDWELL, QC: If the Court pleases, I appear with

MR R.I. HARPER, for the respondents. (instructed

by Messrs Withnell & Co)

MR RAYMENT:  Your Honours, to the extent to which it may be

necessary, we have collected the principal cases to

which reference may need to be made in the course of the argument and may I hand up for Your Honours that volume.

MASON CJ:  Mr Rayment, it may shorten this case if I invite

you to deal with one question in particular. On

the face of it, your case and the ground of appeal

basically is that the Full Court was wrong in

drawing the inference that it did. Now, looked at

in that light only, the application is not one that

would readily commend itself for the grant of

special leave. So, the vital question must be,

viewed from your point of view, "Is there a

difference in approach that amounts to a question

of principle between the majority and the minority

judgments?" Now, would you deal with that and seek

to demonstrate that there is some difference.

MR RAYMENT:  Yes, Your Honour. What we submit about it is

that there are two questions of principle which

arise, bearing in mind what Your Honour has drawn

to my attention. The first, we submit, is of

general application in relation to the drawing of

inferences and the second is a particular question

about Article 25 of the Warsaw Convention, Hague

Protocol which is set out - - -

MASON CJ:  Now, the first one, as a matter of principle, is

not particularly inviting because, after all, the

principle is clearly established and you almost get

to a position where all you can say in relation to

that is there is a misapplication of the principle.

MR RAYMENT: Well, Your Honour, there is a stark difference,

in our respectful submission, between the judgment

of the majority and the judgment of the learned President on this very matter. The question is

whether - it may be framed in a number of ways but

it really relates to the relationship between Jones

v Dunkel and the line of country to which it refers on the one hand, and Briginshaw v Briginshaw on the other. It may be stated in a number of ways. It

may be stated as being the question whether the

principles in Jones v Dunkel apply with equal force

- full force and vigor - where the issue is one of

gravity to which the principles in Briginshaw also

apply.

Qantas 15/2/91

The majority in the Court of Appeal suggested

that the question is to be answered in the

affirmative. At page 54 they seem to say so, in

our submission, in express terms. Half-way down

pc!""ge 54 Their Honours say:

In Jones v Dunkel the competing

inferences open on the evidence were the
existence or absence of negligence on the part
of the defendant driver and a majority of the

High Court held that the adverse inference,

that is of negligence, could more readily be

drawn because the defendant failed to go into

the witness box.

Stopping there, it was just - reasonable

satisfaction on the balance of probabilities in

respect of a civil wrong.

The question for this Court, is whether

the proved facts, the admission of "deplorably

bad handling" -

which was an admission, Your Honours will have

noticed, contained in a letter - or an alleged

admission -

and the failure of the defendant to call

evidence enabled the requisite inferences to

be drawn which brought the case within

Article 25. These were that the damage was

the result of reckless acts or omissions with

knowledge that damage would probably result,
rather than either recklessness without such

knowledge or mere gross negligence.

Where the inference of greater fault is

open on the evidence we see no difficulty in

drawing that more adverse inference where the

defendant fails to call evidence. As Rich J

(who was part of the majority) said in

Insurance Commissioner v Joyce, (1948) 77 CLR

39 at 49 where an inference is open and the

defendant elects not to give evidence "the

Court is entitled to be bold".

And they decide the issue conformably with that

statement of principle. They conceive from remarks

that appear earlier in their judgment that the

principal issue is the effect that the failure to

call evidence has on the outcome of the case.

By contrast, Your Honours, the President

stressed the stringency of the test proposed by

Article 25 by reference to the travaux

preparatoires and spoke at page 94 of the very

heavy onus lying on the respondents. His approach

Qantas 15/2/91

is illustrated at page 99. He says there at about

line 9, quoting the words of Article 25:

This composite phrase suggests the need for a

very high level of indifference to the

property of the consignor.

He referred, at page 101, to the need to provide

"proof to an appropriately high standard" and

referred to Briginshaw. That is lines 10 to 12.

He went on there to say:

The respondents relied heavily upon the

failure of Qantas to call its employees to

give evidence. It is important to keep in

mind what flows from that failure. The

absence of evidence cannot fill gaps in the

case of a party which bore the onus of proving

the matter in contest. Care must be taken to

avoid substituting speculation, guesswork and

suspicion for facts, proof and inference.

This warning has been given many times, both

by the High Court of Australia and by this

Court.

And he refers to Insurance Commissioner v Joyce and

other cases.

The well known principle of evidence law

explained in Jones v Dunkel applies only where

a party is required to explain or contradict

something. For that situation to arise, there

must be some evidence which gives rise to the

requirement. If a plaintiff, bearing the onus

of proof, has tendered no evidence on an

issue, nor evidence from which an inference

may properly be drawn, there is no obligation

on the defendant to go into evidence to cure

the plaintiff's problem. The mere fact that

evidence on a particular issue may be

overwhelmingly, or even exclusively, available

to a defendant, does not reverse the onus of

proof and cast upon the defendant the

obligation to call such evidence.

Then he applies that approach to the matter to

reach the opposite result.

The majority, Your Honours would recall, had

referred to Mr Justice Rich's judgment in Insurance

Commissioner v Joyce, (1948) 77 CLR 39, and that is one of the cases we have handed up there. Could I

go straight to page 49, which is the page referred

to by Their Honours. It is tab 3, Your Honours.

The context of Mr Justice Rich's remarks was this:

there was a negligence case involving an allegation

of drunkenness and there was a defence of volenti

Qantas 4 15/2/91

non fit injuria. The question was whether the

defence of volenti non fit injuria was made out.

The majority referred to the statement of

His Honour half-way down page 49:

Obviously the question was one to be decided

on circumstances. But when circumstances are

provided indicating a conclusion and the only
party who can give direct evidence of the

matter prefers the well of the court to the witness box a court is entitled to be bold.

His Honour went on to note, not something with respect to the Briginshaw case but with respect to criminal law. His Honour said later on the page:

But this is not a criminal case in which we

are called upon to allow our imagination to

play upon the facts and find reasonable

hypotheses consistent with innocence.	A
balance of probability is enough.

While it is, we submit, settled law that the

civil onus is one of reasonable satisfaction, that

remark has different content as one knows from

Briginshaw's case where the allegation is a grave

one. One would hesitate to say that it was enough

to be satisfied on the balance of probabilities

rather than to be reasonably satisfied in the case

of a grave allegation. We submit that His Honour's

reference to "a balance of probability" should

sound a note of caution if one seeks to transpose

those remarks to a case which must be proved

clearly having regard to the fact that grave

allegations are being made.

DEANE J: But when you move out of the area of moral

turpitude, Briginshaw, really, has not got much to

say, has it? I mean, say the issue here was

whether workman A had seen the goods on the tarmac

and, I know contrary to what is said to be the

facts but, completely uncovered and it was about to

rain, and said, "I should cover those or they'll be	ruined but, hang it, I'm going to morning tea." It
is drawing a rather long bow to say the ordinary
onus of proof goes out the window and you are in
the moral turpitude and Briginshaw territory.

MR RAYMENT:  The language of Article 25, in our respectful

submission 1 is the language of moral turpitude.

You must either - - -

DEANE J: Well, you say that but on the facts I gave you, on

any approach, Article 25 would apply, would it not:

if you identified a person who saw the thing -

"It's going to rain - really, they'l~ be ruined"

Qantas 5 15/2/91

but with a not unknown approach of workmen, "I'm

going to morning tea" - - -

MR RAYMENT:  Yes, if you had those facts, if you were

reasonably satisfied of those facts, you would

probably have a case within Article 25.

DEANE J:	Yes, and I would not say moral turpitude.
MR RAYMENT:	Your Honour would be actually finding that that

workman, if you found Article 25 applied - I follow

what Your Honour means. There can be, as it

were -

DEANE J: But I am delaying you. Really though, it seems to

me that you have got to get on to the construction

of Article 25.

MR RAYMENT:	Yes.
MASON CJ:	Have you not got to demonstrate that there is a

question of principle in the interpretation given

by the majority and the minority in relation to the

words "with knowledge that the damage would

probably result"?

MR RAYMENT:  Yes. Well, that is really what I want to come

to, Your Honours, and I will go straight there. It

really depends on the proper interpretation, in our

respectful submission, of Article 25 and one can

consider that in the context of the case which was

referred to in the Court of Appeal of Goldman v

Thai Airways. We have put in that collection of

authorities an unreported decision of His Lordship

Mr Justice Owen in the High Court of Justice in

England in Curtner v Beaton, and it is at tab 4.

Could I go to a discussion of Goldman's case in

His Lordship's judgment at page 48. Your Honours,

His Lordship distinguishes, about line F, between

the various kinds of knowledge that are required by

this article.

At first sight it would seem possible to

construe "knowledge" objectively or
subjectively and it could mean present

awareness or learning latent but not present

in mind at the time.

We submit learning which is latent is presumably

something which a person would, if an interlocutor,

spoke to him about the various things he did know,

realize that he knew but which was not in fact

present to his mind at the relevant time.

His Lordship says:

I am bound by the - - -

Qantas 6 15/2/91

DEANE J:  I am just wondering what he means when he says:

which by reasoning, which I regard as

compulsive - - -

MR RAYMENT:  Yes. Maybe that word is used where we would

use "compelling".

construe not an English Statute but an

lays down the need for subjective awareness.

international convention which has been

three phrases were considered -

incorporated into English law by a Statutory clear that

Instrument, referred to the Travaux

and I think the President makes the same point in

the instant case. The alternatives put before

those who drew a protocol were:

(a) "and has acted recklessly" -

the lowest version -

(b) "and has acted recklessly and knew or

should have known that damage would probably

result"; and -

finally -

(c) "and has acted recklessly and knew that

damage would result".

And with the word "probably", that was the third

version which was accepted.

The rejection of (a) and (b) and choice

of (c) indicates the meaning to be attributed
to the words. In accordance with this
reasoning Eveleigh LJ said:

"Article 25 requires the plaintiff to prove

the following ........ (3) that it (the damage

was done when the doer was aware that damage

would probably result".

This conclusion was reached by the other

members of the court.

Purchas LJ at p.1202B said:

"The true interpretation of Article 25 when it

is read as a whole involves the proof of

actual knowledge in the mind of the pilot at

the moment at which the omission - which would

of course include commission in appropriate

Qantas 7 15/2/91

cases - occurs, that the omission (or

commission) is taking place and that it does

involve probable damage of the sort

contemplated in the Article".

And then he refers to another remark of

Lord Justice Eveleigh's.

That distinction, in our respectful

submission, between latent knowledge and present

awareness points up a matter about the judgment of

the majority in this case which may well have the

result that there is, in fact, a difference created

between the majority view in this case and the
decision of the English Court of Appeal in Goldman
although Their Honours purport to follow that

decision. They seem to primarily distinguish in

point of knowledge between actual knowledge and

imputed knowledge and that is, for example, at

page 50, line 11. They say:

Nevertheless it helps to reinforce the valid points that the state of mind involved goes

beyond mere carelessness and that actual, as distinct from merely imputed, knowledge must be shown.

It is actual knowledge, whether it is present

awareness or, presumably, whether it is latent

awareness.

What they say, Your Honours, at page 55,

especially lines 9 to 11, is consistent with a view

that latent knowledge was enough.	They say they
knew this and they knew that.

On that basis such servants and agents must also have known that such "deplorably bad

handling" of the cargo would probably result

in damage to the cargo.

Another way of putting this proposition about

the majority judgment is that it is difficult to

see, in our submission, how by any process of
reasoning, present awareness, in the sense which

that expression is used by Mr Justice Owen could

possibly be inferred here. And the contrast with

that approach to the matter is perhaps best made

out from page 104 in the judgment of the learned

President. In commenting on the trial judge's

judgment, he said, as point (3) at line 20, that:

Ignores the requirement of showing that the

knowledge that damage would probably result

existed contemporaneously with the reckless

conduct which caused that damage.

Qantas 8 15/2/91

Your Honours, it is true that it would be

necessary to write a judgment about factual

questions in order to resolve an appeal in this

case. We submit that the view of the learned

President is far more consistent with the view of

Article 25 which found favour with the English

Court of Appeal.

GAUDRON J:  Mr Rayment, are we not just speaking in levels

of generality? There is no doubt about that: if

somebody has knowledge that goods which are subject

to water damage, if left open to water, will

probably suffer damage.

MR RAYMENT:  Yes. Your Honour, could we just go to, first

of all -

GAUDRON J: If the question is more specific, "Did they know

it was going to rain and they would probably be

damaged?", you arrive at another issue.

MR RAYMENT:  Your Honours, the circumstances are shortly

described by the trial judge at pages 2 and 3, the
circumstances in which these goods first arrived.

At the foot of page 3 they say that:

the pharmaceutical capsules were first stowed

in plastic bags, sealed with ties. The plastic

bags were then placed in No 3 Board cardboard

cartons and those cartons were each sealed

with 48 mm red PVC adhesive tape. The cartons

were then placed in five standard IATA

configuration twin cushion high wet strength

waterproof glue corrugated cardboard

containers. The five IATA containers were

fastened with metal staples, strapped with 12

mm polypropylene banding tape and then each

wrapped in a 150 micron plastic bag sealed by

shrink wrapping. One of the reasons for the vinyl plastic sheeting is for the purpose of waterproofing. The cartons were each marked

with a stencilled umbrella. That was intended

to denote, in accordance with international

practice, that the goods in the carton would

be damaged if exposed to water.

Then at page 7 His Honour notes at line 8 that one

of the witnesses called by my learned friend,

Mr Caldwell:

Mr King, who has had great experience with the

carriage by air of cargo, deduced that "there

had been a waterproof plastic sheet placed
over the consignment whilst it was on the

tarmac but that "through the operation of the

wind, water had got into the cardboard which

would then soak up water. I am unable to

Qantas 9 15/2/91

explain the water damage on top of the cartons
but it could explain why the water damage is
extensive all the way round the bottom of

each".

Now, in those circumstances where, in other

words, you have cargo apparently protected by

shrink wrapping which would be visible and which is

then, apparently, covered with a tarpaulin or clear

plastic sheeting in order to protect it from the

rain - very hard, in our respectful submission - it

is impossible, in our submission, to infer in those

circumstances what the majority inferred at

page 55, line 7, that the person in question left

the cargo in the open without taking the steps that

they knew would be essential to protect that cargo

if it should rain heavily. Why should it be

inferred that they did not think that the placing

of a plastic sheet over the cargo would suffice?

In my respectful submission, if one looks at the

language of the judgment, it is not clear that the

court has done more than distinguish between actual

and imputed knowledge. If one stands back from it

and looks at the result they arrived at and the way

in which they have done so, it strongly suggests some misapplication, we submit, of provisions of

Article 25.

DEANE J: Except is not your real quarrel with the majority

judgment on page 52, lines 11 to 18, where while

Their Honours do not say it, they seem to be

proceeding almost on the basis that they were left

completely uncovered?

MR RAYMENT:	Yes.
DEANE J:	I mean that helps an attack on the judgment,

perhaps, if you get leave but it seems to me that

that is what - - -

MR RAYMENT: Your Honour, Their Honours do say that but they

also seem to give credence to the goods having been

covered.

DEANE J:  They say it is consistent with it but what seems

to have influenced them was the allegation of "left

uncovered" and the lack of denial and they do not

refer to that evidence that you just referred us

to.

MR RAYMENT:  No. But they do say, at line 16:

although the fact that the cartons appear to

have suffered more at the bottom than the top

is consistent with some kind of attempt at

covering having been made.

Qantas 10 15/2/91

DEANE J: Well, that is what I was referring to.

MR RAYMENT:  They seem to accept that it is proper to take

that matter into account in deciding the case.	How
t_hen can they draw the inference - - -

DEANE J: But the rest of the judgment reads to me as a

leaning towards "completely uncovered" but I could

be wrong on that.

MR RAYMENT: It is left, I think, after that remark has been

made.

The trial judge seems to have, if one reads the concluding words of his judgment, seems to have

thought it was sufficient to decide that Qantas had
the relevant knowledge rather than identifying any

particular person, who - or even by description who

had the relevant knowledge at the relevant time.

Of course, the article refers to, "the carrier, its

servants or agents", but if an allegation is to be

made against the carrier it cannot be made out, in

our respectful submission, by piecing together the

knowledge of various people. The trial judge's

judgment is consistent with relevant knowledge

having been in different persons' minds at once.

In our respectful submission, standing back

from this judgment, for the conclusion to have been

arrived at which was arrived at, in our submission,

must have followed from some view of Article 25 which was different from that which the English

Court of Appeal enunciated in Goldman's case.

DEANE J:  What would be your approach as to the conditions

relating to costs if leave were granted?

MR RAYMENT:  Your Honour, we would, of course, accept

whatever conditions the Court put upon the grant of

leave. We draw attention to the fact that my

learned friend's client is an insurer and this

really is - although a dispute about the Warsaw

Convention - a dispute between insurers, each of

whom has some interest in Article 25 being either
widened or narrowed, as the case may be. After

all, it is my learned friend's client who started

this case and who made it an Article 25 case, but

that is all we would want to put about it,

Your Honour.

MASON CJ: Yes, thank you, Mr Rayment. Yes, Mr Caldwell?

MR CALDWELL: Your Honours, in relation to the submission

that there is a difference between the majority and
the minority on the construction of Article 25 of
the Convention, it is our submission that there is

no - - -

Qantas 11 15/2/91

MASON CJ: That is the only question we want to hear you on,

Mr Caldwell.

MR CALDWELL:  If Your Honours please - and to which my

friend takes Your Honours to the decision of

M'.r Justice Owen, in our submission, there is no

difference between the approach taken in the Court

of Appeal and that is clear from the judgment of

the majority at page 49 where Their Honours state
the requirements that they accept from Goldman, and

at line 15:

Finally, the requirement of knowledge involves
"the proof of actual knowledge in the mind of
the (actor] at the moment at which the
omission occurs, that the omission is taking
place and that it does involve probable damage
of the sort contemplated in the article".

So what the majority thereafter deal with is actual knowledge at the moment when the omission occurs

and it is to that which the findings made which are

expressed in the conclusion at page 55 are

directed.

DEANE J: But if one goes to the majority judgment, what do

you say about the evidence of Mr King

Mr Justice Rogers referred to on page 7? Did the

majority accept that approach or did the majority

reject that approach?

MR CALDWELL:  Your Honours, the evidence quoted by

Mr Justice Rogers at page 7 is itself ambivalent

because, as Mr King stated, he was unable to
explain the water damage on the top of the cartons
by referring to there being a plastic sheet being

placed.

DEANE J: But if one accepts, as a starting point, that what

happened was there was a waterproof plastic sheet

placed over the consignment while it was on the

tarmac and through the operation of the wind, the

water got into the cardboard. It is difficult to

difference in the conception of the operation of	avoid the impression that there must somehow be a
clause 25 of the majority and that of Mr Justice
Kirby. Precisely what it is is a bit hard to say.

MR CALDWELL:	We would suggest, Your Honour, that the majority in the Court of Appeal, by the reference
to which Your Honour has already referred at
page 52, took into account the evidence of Mr King.
The reference at line 17 on page 52:

the fact that the cartons appear to have

suffered more at the bottom than the top is

Qantas 12 15/2/91

consistent with some kind of attempt at

covering having been made.

But the conclusions involve a weighing up of that

~vidence as opposed to the weight of the admission

made that the goods were left uncovered, which

appears in the correspondence and to which the

majority have referred higher on that page and it

is on the basis then that the majority proceed to
the findings later. It is a matter, we would

suggest, of merely a factual assessment of the

weight of that admission coupled with the absence

of calling the officer who made the admission to
explain what he meant by it with rather

inconclusive evidence as to whether the goods were

covered at all. We would suggest that that is not

a matter that illustrates any difference in

approach. The test stated as to what Article 25

requires is clearly expressed in the judgment of

the majority. There is no difference between that

statement and the expression of it in the minority.

It really just raisesd a matter, we would suggest,

of weight of competing evidence which is not a

matter which will elucidate the meaning of

Article 25.

The judgment of Mr Justice Kirby, we submit,

does not turn upon that particular piece of

evidence as being of significance. Rather, it

depends almost completely, we suggest, upon an

inference or assumption upon which His Honour acted

stated at page 96 where - to appreciate the

position of the inference, one needs to read from

the foot of page 95 at line 23 where His Honour

referred to:

the invariable practice followed by Qantas and

Mr Lambert was to have cargo on the tarmac

ready for loading some five and a half hours

before the scheduled departure of the outgoing

flight. It may be inferred that this

invariable procedure was adopted by Qantas to

ensure that the loading of cargo would not

delay on time departures of passenger flights

on which cargo was also carried. It may also

be inferred that -

and this, we suggest, is the foundation of

His Honour's difference -

normally, this practice did not result in

damage to cargo (including cargo with umbrella

signs and other markings) if properly covered

with plastic.

In that statement of His Honour's assumption he

does not mention tarpaulins. It then goes on:

Qantas 13 15/2/91

Wrapped in netting, placed on pallets covered

with plastic sheeting and later covered with

tarpaulins, as were available at Sydney

Airport, there is no reason to believe that the positioning of cargo on the tarmac for

some five and a half hours would involve any

risk of water damage.

Well, it is our submission that on the

evidence such an assumption was demonstrably wrong

and contrary to the evidence and that His Honour's

difference of assessment of fact therefore falls.

Firstly, it is a very favourable assumption to make

when it was not supported by evidence and,

clearly, if that had in fact been the experience of

Qantas, it would have been a simple matter for

Qantas to call evidence of it.

Secondly, it was contrary to the evidence

adduced that it was a practice that if it was

raining heavily at the time the cargo was unloaded,

it was stored undercover in a cargo shed or at

least in a tunnel. That is referred to by the

majority at page 52, line 27, and is not mentioned

in Mr Justice Kirby's judgment.

Thirdly, there was evidence from the

plaintiff's letter of complaint that the same thing

had happened to earlier cargo consigned by the

plaintiffs, and that is referred to by the majority

at page 51, line 27 - again, not referred to by

Mr Justice Kirby.

Finally, we would emphasize that the director

of cargo, as the obvious witness to prove the

matters the subject of Mr Justice Kirby's

assumption, was not called. One can infer that he

was not able to give evidence of that kind that was

favourable to Qantas. It is that which, we submit,

was the very basis of His Honour's differing

assessment of the facts.

Those are our submissions that go to the

question of construction. Does the Court wish to

hear me on the question of costs if leave be

granted?

MASON CJ: Yes.

MR CALDWELL:  An affidavit has been filed which I hope

Your Honours have with the papers dealing with the

position of the particular cargo insurer.

MASON CJ: Yes.

MR CALDWELL:  Could I ask Your Honours to look at the order

made at first instance which indicat~s the

Qantas 14 15/2/91

difference which results from a conclusion of the

matter on the recklessness issue favourable to

Qantas as opposed to an unfavourable conclusion.

It is at page 40. The judgment given below,

i~clusive of interest on the basis of the present

~inding was for $144,000 and some dollars. Then at

page 41, declaration 4, His Honour declared what

the position was, in effect, if his finding on

Article 25 was rejected. It is $133,000. So, what

this appeal is about is $11,000. As submitted in

the affidavit, the particular cargo insurer has no

interest in running a test case about the

interpretation of Article 25 and it is our

submission, therefore, that the airline should be

ordered to pay the costs of an appeal in any event.

MASON CJ: Yes, thank you, Mr Caldwell. Mr Rayment, what do

you say about granting special leave in reply to

Mr Caldwell's submissions?

MR RAYMENT:  Your Honours, I think, really, I would be

joining issue with my learned friend on matters

that I have already dealt with in-chief in

principal terms. We submit that the result in the

case shows that some error was made by the Court of

Appeal in the construction of Article 25 of the

Warsaw Convention because the facts, in our

respectful submission, simply could not support the
result. That error may have been that which is

identified at page 50 of the application book, that

is, the distinction between actual knowledge on the

one hand, and imputed knowledge on the other. But

I think, otherwise, I would be repeating myself in-

chief, if Your Honours please.

The importance, of course, of Article 22 or

Article 25 in general is enormous in international aviation.

MASON CJ: There is no doubt about that. Yes, thank you,

Mr Rayment. The Court will consider this matter

and will announce its decision at 2.15 or

immediately after the adjournment.

AT 10.49 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.21 PM:

MASON CJ:  The outcome of this case turns on inferences to

be drawn from established facts. As such, it is

Qantas 15 15/2/91

not a case appropriate for the grant of special
leave unless the challenge to the majority judgment
in the Court of Appeal raises a question of law

involving the interpretation of the critical words

in-Article 25 of the Warsaw Convention. We are not

J;)t;rsuaded that such a question of law arises from

the judgments in the Court of Appeal and,

accordingly, we would refuse the application.

MR CALDWELL:  I ask for costs, if the Court pleases.

MASON CJ:  Yes. You do not resist that, Mr Rayment?

MR RAYMENT:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 2.22 AM THE MATTER WAS ADJOURNED SINE DIE

Qantas 16 15/2/91