Qantas Airways Limited v S.S. Pharmaceutical Co Limited

Qantas Airways Limited sought special leave to appeal to the High Court of Australia from a decision of the Full Court. The dispute concerned the application of Article 25 of the Warsaw Convention, Hague Protocol, in circumstances where the respondent, S.S. Pharmaceutical Co Limited, alleged damage to goods during carriage by air. Qantas Airways Limited was the applicant, and S.S. Pharmaceutical Co Limited and R.P. Scherer Pty Limited were the respondents.

The primary legal issue before the High Court was whether the Full Court had erred in drawing certain inferences, particularly in relation to the application of the principles established in *Jones v Dunkel* and *Briginshaw v Briginshaw*. Specifically, the applicant argued that there was a difference in approach between the majority and minority judgments in the Full Court regarding the drawing of adverse inferences when a party fails to call evidence, and whether these inferences could be drawn with equal force when the issue involved a matter of gravity to which *Briginshaw* principles also applied. A further question related to whether the proved facts, including an admission and the failure of the defendant to call evidence, enabled the requisite inferences to be drawn to bring the case within Article 25 of the Warsaw Convention, suggesting reckless acts or omissions.

The applicant contended that the Full Court majority incorrectly applied the principles of *Jones v Dunkel*, which generally permits an adverse inference to be drawn against a party who fails to call evidence that would elucidate a matter in dispute. The applicant argued that this principle should not apply with the same force when the issue is one of gravity, such as that requiring consideration under *Briginshaw v Briginshaw*, which deals with the standard of proof for serious allegations. The applicant sought to demonstrate a question of principle concerning the interaction between these two lines of authority, suggesting a misapplication of established principles by the majority.