Qantas Airways Ltd v Lustig

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FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Lustig [2015] FCA 253

Citation: Qantas Airways Limited v Lustig [2015] FCA 253
Parties: QANTAS AIRWAYS LIMITED (ACN 009 661 901) v PETER LUSTIG, GIUSEPPE DE SIMONE and VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
File number: NSD 1542 of 2013
Judge: PERRY J
Date of judgment: 25 March 2015
Catchwords:

CONSTITUTIONAL LAW - Where claims instituted in the  Victorian Civil and Administrative Tribunal (VCAT) under the Fair Trading Act 1999 (Vic) - Where challenge to jurisdiction of VCAT – Whether VCAT exercises judicial power in original jurisdiction – Whether VCAT is a “court of a State” within s 77(iii) of the Constitution – Where federal judicial power cannot be vested in VCAT – Whether provisions of State law conferring jurisdiction on VCAT should be read down – Whether the matter falls within federal jurisdiction - Where defence relies upon Part IV, Civil Aviation (Carriers’ Liability) Act 1959 (Cth) –Whether VCAT erred in considering the validity of the defence in determining whether it has jurisdiction - Whether defence is colourable

PRACTICE AND PROCEDURE - Whether matter should be remitted to VCAT - Whether VCAT has power to refer the matter to the Victorian Supreme Court under s 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) where it has no jurisdiction over the matter

Legislation:

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Part IIIC: s 25L, Part IV: ss 27, 34, 36
Civil Aviation Act 1988 (Cth)
Commonwealth Places (Application of Laws) Act 1970 (Cth) ss 3, 4
Constitution ss 72, 75, 76, 77(iii)
Crimes (Aviation) Act 1991 (Cth)
Fair Trading Act 1999 (Vic) ss 3, 43, 107, 108, 111, 112
Federal Magistrates Act 1999 (Cth) s 39
Interpretation of Legislation Act 1984 (Vic) s 6
Judiciary Act 1903 (Cth) ss 39, 78A
Trade Practices Act 1974 (Cth)
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 3, 8, 9, 10, 11, 12, 13, 14, 16, 16A, 23, 24, 42, 43, 51, 77, 97, 98, 121, 122, 123, 124, 142, 143

Additional Protocol No. 4 to Amend Convention for the Unification of Certain Rules Relating to International Carriage By Air, open for signature at Montreal on 25 September 1975 (Montreal Protocol No. 4)
Convention for the Unification of Certain Rules Relating to International Carriage by Air, open for Signature at Warsaw on 12 October 1929 (Warsaw Convention)
Cases cited: ABY, ABZ v Patient Review Panel (Health and Privacy) [2011] VCAT 905
Agtrack v Hatfield [2005] HCA 38; (2005) 223 CLR 251
Ahmed v Harbour Radio Pty Ltd [2009] FCA 1113; (2009) 180 FCR 313
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349; (2006) 236 ALR 385
Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559
Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
Burgundy Royale Investments Pty Ltd…
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Details
Case
[2015] FCA 253
Decision Date

CaseChat Overview and Summary

The matter before the Federal Court of Australia was a challenge to the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) by Qantas Airways Ltd against Messrs Lustig and De Simone. The dispute arose from an incident on 6 April 2006 at Sydney’s Kingsford Smith Airport where Messrs Lustig and De Simone were removed from a Qantas flight. The plaintiffs brought claims against Qantas in VCAT, which Qantas sought to have dismissed on the basis that VCAT lacked jurisdiction. The primary legal issues before the court were whether VCAT exercised judicial power in an original jurisdiction, whether VCAT could be considered a “court of a State” under s 77(iii) of the Commonwealth Constitution, and if VCAT could be vested with federal judicial power. Additionally, the court had to determine if the provisions of state law conferring jurisdiction on VCAT should be read down, and whether the matter fell within federal jurisdiction.

The court held that VCAT did not exercise judicial power in an original jurisdiction and thus could not be considered a “court of a State” within the meaning of s 77(iii) of the Constitution. Consequently, VCAT could not be vested with federal judicial power. The court further ruled that the provisions of state law conferring jurisdiction on VCAT should not be read down as it would be inappropriate to determine the validity of the federal defence raised by Qantas at this stage. The court also noted that the matter did not fall within federal jurisdiction as it pertained to events occurring in a state place, not a Commonwealth place. The court found that VCAT had the power to dismiss the proceedings but could not transfer them to another court under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Therefore, the court made a declaration that VCAT lacked jurisdiction and issued a writ of prohibition directing VCAT to take no further steps in the proceedings other than dismissing them and dealing with any costs. The question of costs was reserved for later determination.

The final orders of the court were:
1. A declaration that VCAT lacks jurisdiction to entertain the applications.
2. A writ of prohibition issued restraining VCAT from taking any further step in the proceedings other than making orders for the dismissal of the proceedings and costs.
3. The question of costs is reserved.

Orders

Orders of the court

2. A writ of prohibition issue restraining the Victorian Civil and Administrative Tribunal from taking any further step in proceedings C2022/2012 and C2377/2012 other than making orders for the dismissal of the proceedings and costs.

3. The question of costs is reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It follows, in my view, that VCAT has power only to dismiss the proceedings and deal with any questions as to costs to the extent to which they may arise. Contrary to the submissions by Messrs Lustig and De Simone and the State, VCAT has no power to transfer the proceedings to a court under s 77 of the VCAT Act. It is therefore appropriate not only to make a declaration that VCAT lacks jurisdiction to entertain the applications, but also to issue a writ of prohibition as sought by Qantas directing that VCAT take no further step in the proceedings other than making orders for dismissal of the proceedings. I do not, however, consider that any case was made out for the injunctions sought by Qantas against Messrs Lustig and De Simone to restrain them from taking any further step in the VCAT proceedings otherwise than for the purpose of obtaining or consenting to the orders for dismissal of the proceedings. 2. BACKGROUND This proceeding finds its genesis in an incident at Sydney’s Kingsford Smith Airport on 6 April 2006. While fully accepting that there is controversy as to events occurring on that day and that it is not appropriate in these proceedings to endeavour to resolve those issues, the following is set out by way of general background, drawing upon the recitation of facts in Lustig v R [2009] NSWCCA 143; (2009) 195 A Crim R 310 (Lustig v R) at [6]-[17]. On 6 April 2006, Messrs Lustig and De Simone sought to board an aircraft operated by Qantas on flight QF431 from Sydney to Melbourne. Mr Lustig is a solicitor and Mr De Simone was his client at the time. Members of Mr Lustig’s family were also present and preceded the first and second respondents in boarding the aircraft. The first and second respondents both held economy class tickets for the flight. Upon boarding the aircraft the first and second respondents were greeted by a Qantas flight attendant and were required to walk through the business class section of the plane in order to reach their allocated seating in the economy section. A coat locker was located near the aircraft’s point of entry and one of the respondents asked the flight attendant whether they could hang certain items in the locker. Whatever the article was and whoever made the request, the flight attendant declined the respondent’s request to use the coat locker and indicated that there was no room in the locker for economy class passengers’ items. One of the respondents then proceeded to open the coat locker, which was not full at the time. A verbal altercation then occurred between the flight attendant and the first and second respondents during which the Qantas employee indicated that passage may be refused as a result of the first and second respondents’ conduct on the aircraft and directed the first and second respondents to disembark onto the aerobridge connecting to the terminal. At some point shortly thereafter, whilst on the aerobridge Mr Lustig was informed that he would not be allowed to travel to Melbourne on the flight. At approximately the same time, Mr De Simone re-entered the aircraft and took his seat in economy class. Mr Lustig also re-entered the aircraft from the aerobridge and, following another altercation on board the aircraft between Mr Lustig and a flight attendant, made an announcement to certain passengers on board before proceeding to take his own seat in economy class. Airport personnel and security staff were called to attend on board the aircraft and requested Mr Lustig and Mr De Simone disembark from the aircraft. Approximately 10 to 15 minutes later, the first and second respondents agreed to leave the aircraft and were arrested and charged by the Australian Federal Police shortly after disembarking.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The third respondent, VCAT, filed a submitting appearance, save as to costs.1.2 Summary of conclusions In my view, there is no basis on which this Court could decline to exercise jurisdiction of which it is properly seized and none was identified by the first and second respondents. Furthermore, to the extent to which they made submissions on matters they described as disputed facts relating to the events on 6 April 2006 at the Sydney Airport, it is not for this Court to determine those issues as Messrs Lustig and De Simone also acknowledged in their written submissions. For the reasons given below, Qantas’ contention that VCAT lacks jurisdiction because of the federal defence raised by Qantas is correct. As VCAT is not a court of a State for the purposes of s 77(iii) of the Commonwealth Constitution, it cannot be vested with the judicial power of the Commonwealth. Nor do I consider that the defence is colourable or fabricated. That being so, as this Court is seized only of the jurisdictional issue, it is not appropriate to go further and to consider otherwise whether the defence is valid. Nor is it necessary for me to consider whether the claims instituted in VCAT were necessarily federal on the alternative basis put by Qantas by reason of the events of 6 April 2006 having occurred in a Commonwealth place. It follows, in my view, that VCAT has power only to dismiss the proceedings and deal with any questions as to costs to the extent to which they may arise. Contrary to the submissions by Messrs Lustig and De Simone and the State, VCAT has no power to transfer the proceedings to a court under s 77 of the VCAT Act. It is therefore appropriate not only to make a declaration that VCAT lacks jurisdiction to entertain the applications, but also to issue a writ of prohibition as sought by Qantas directing that VCAT take no further step in the proceedings other than making orders for dismissal of the proceedings. I do not, however, consider that any case was made out for the injunctions sought by Qantas against Messrs Lustig and De Simone to restrain them from taking any further step in the VCAT proceedings otherwise than for the purpose of obtaining or consenting to the orders for dismissal of the proceedings. 2. BACKGROUND This proceeding finds its genesis in an incident at Sydney’s Kingsford Smith Airport on 6 April 2006. While fully accepting that there is controversy as to events occurring on that day and that it is not appropriate in these proceedings to endeavour to resolve those issues, the following is set out by way of general background, drawing upon the recitation of facts in Lustig v R [2009] NSWCCA 143; (2009) 195 A Crim R 310 (Lustig v R) at [6]-[17]. On 6 April 2006, Messrs Lustig and De Simone sought to board an aircraft operated by Qantas on flight QF431 from Sydney to Melbourne. Mr Lustig is a solicitor and Mr De Simone was his client at the time. Members of Mr Lustig’s family were also present and preceded the first and second respondents in boarding the aircraft. The first and second respondents both held economy class tickets for the flight. Upon boarding the aircraft the first and second respondents were greeted by a Qantas flight attendant and were required to walk through the business class section of the plane in order to reach their allocated seating in the economy section. A coat locker was located near the aircraft’s point of entry and one of the respondents asked the flight attendant whether they could hang certain items in the locker. Whatever the article was and whoever made the request, the flight attendant declined the respondent’s request to use the coat locker and indicated that there was no room in the locker for economy class passengers’ items. One of the respondents then proceeded to open the coat locker, which was not full at the time. A verbal altercation then occurred between the flight attendant and the first and second respondents during which the Qantas employee indicated that passage may be refused as a result of the first and second respondents’ conduct on the aircraft and directed the first and second respondents to disembark onto the aerobridge connecting to the terminal.

Ratio Decidendi

Legal Principle Established

Finally, the Tribunal expressed doubt about whether it had power to order Qantas to give Mr Lustig and Mr De Simone 10 million and 50 million Frequent Flyer points respectively by way of exemplary damages. While it is not necessary to determine the point here, I consider that the Tribunal’s doubt in this regard is well placed. However, the Tribunal considered that the issue was one to be determined at the hearing of the claims (at [96]). It also observed that, as the claim was presently particularised limiting the claims for damages for $9999.00 so as to engage the small claims jurisdiction of the Tribunal, Mr Lustig and Mr De Simone could not obtain an order from the Tribunal for damages in Frequent Flyer points greater than the total value of $9999.00 if (contrary to their submissions) the Tribunal considered that it was appropriate to place a value on the Frequent Flyer points claimed (at [97]). 4. CONSIDERATION4.1 VCAT VCAT is established by s 8(1) of the VCAT Act. The Tribunal is not described as a court but has an official seal (s 8(2), VCAT Act) of which all courts must take judicial notice when affixed to a document (s 142). The Tribunal comprises a President, Vice Presidents and Deputy Presidents, senior members and ordinary members (s 9, VCAT Act, since repealed). The President must be a judge of the Supreme Court, while each Vice President must be a judge of the County Court. The President and each Vice President hold office for a period not exceeding five years and their appointment does not affect the tenure of office, status or remuneration as a judge of the Supreme Court or County Court as the case may be (ss 10 and 11, VCAT Act). While Deputy Presidents must be admitted to legal practice for no less than five years, there is no requirement that senior and ordinary members be admitted to legal practice. Where the member has not, however, been admitted to legal practice, the person must, in the Minister’s opinion, have “extensive knowledge or experience in relation to any class of matter in respect of which functions may be exercised by the Tribunal”. Each Deputy President, senior member and ordinary member must be appointed for a term expiring seven years after the date of appointment (or on attaining 70 years of age) and may be appointed on a full-time or part-time basis (ss 12, 13 and 14, VCAT Act). Furthermore, members are eligible reappointment under s 16 and for internal promotion (s 16A). All members are appointed by the Governor in Council on the recommendation of the Minister (s 16) but in the case of the President and each Vice President, the Minister must first consult with the Chief Justice or Chief Judge as applicable (s 10(1) and 11(2), VCAT Act). Non-judicial members (being members other than the President or a Vice-President) may be removed from office by the Governor in Council on the recommendation of the Minister after an investigation into the member’s conduct by a person nominated by the President and appointed by the Minister (ss 23 and 24, VCAT Act). All members have the same protection and immunity as a judge of the Supreme Court in the performance of their duties (s 143).