Samways v Ansett Australia Ltd
[2001] WASC 140
SAMWAYS -v- ANSETT AUSTRALIA LTD [2001] WASC 140
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 140 | |
| Case No: | CIV:1668/2000 | 25 MAY 2001 | |
| Coram: | MASTER SANDERSON | 5/06/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for summary judgment dismissed Leave to amend indorsement of claim | ||
| PDF Version |
| Parties: | ALLAN KEITH SAMWAYS ANSETT AUSTRALIA LTD (ACN 004 209 410) |
Catchwords: | Practice and procedure Application for summary judgment by defendant Indorsement of claim said to be defective Meaning of "cause of action" |
Legislation: | Civil Aviation (Carriers Liability) Act (Clth) 1959 |
Case References: | Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Hamilton Island Enterprises v Commissioner of Taxation [1982] NSWLR 113 Morgan v Banning (1999) 20 WAR 474 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Staples v City & Country Helicopters Pty Ltd (1993) 119 FLR 291 Stumann v Spansteel Engineering Pty Ltd [1986] 2 Qd R 471 Teys Brothers (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd [1990] 2 Qd R 288 Walker v Midlink Nominees Pty Ltd (2000) 22 WAR 318 Weldon v Neal [1887] 19 QBD 394 Zibillari v R [1980] ALR 693 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Miller v BP Ltd [2001] WADC 66 South Pacific Air Motive v Magnus (1998) 87 FCR 301 State Bank of Victoria v Parry (1988) 7 ACLC 226 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANSETT AUSTRALIA LTD (ACN 004 209 410)
Defendant
Catchwords:
Practice and procedure - Application for summary judgment by defendant - Indorsement of claim said to be defective - Meaning of "cause of action"
Legislation:
Civil Aviation (Carriers Liability) Act (Clth) 1959
Result:
Application for summary judgment dismissed
Leave to amend indorsement of claim
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A R Beech
Defendant : Mr B L Nugawela
Solicitors:
Plaintiff : Tottle Christensen
Defendant : D'Angelo & Partners
Case(s) referred to in judgment(s):
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Hamilton Island Enterprises v Commissioner of Taxation [1982] 1 NSWLR 113
Morgan v Banning (1999) 20 WAR 474
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Staples v City & Country Helicopters Pty Ltd (1993) 119 FLR 291
Stumann v Spansteel Engineering Pty Ltd [1986] 2 Qd R 471
Teys Brothers (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd [1990] 2 Qd R 288
Walker v Midlink Nominees Pty Ltd (2000) 22 WAR 318
Weldon v Neal [1887] 19 QBD 394
Zibillari v R [1980] 31 ALR 693
Case(s) also cited:
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Miller v BP Ltd [2001] WADC 66
South Pacific Air Motive v Magnus (1998) 87 FCR 301
State Bank of Victoria v Parry (1988) 7 ACLC 226
(Page 3)
1 MASTER SANDERSON: This is the return of two chamber summonses. The first in time is the defendant's summons seeking summary judgment under O 16. The plaintiff then issued a summons seeking leave to re-amend its writ of summons in terms of a minute of 9 May 2001. Both summonses were dealt with at the same special appointment.
2 The facts which give rise to these applications can be shortly stated. On 12 June 2000 the plaintiff issued proceedings against Ansett Australia Pty Ltd claiming damages for injuries suffered during the course of travel on the defendant's airline on 4 July 1998. The writ was amended on 8 March 2001 when the name of the defendant was amended from Ansett Australia Pty Ltd to Ansett Australia Limited. No doubt the name of the defendant was amended pursuant to the provisions of O 21 r 4. No point was taken by the defendant in relation to that amendment.
3 The indorsement of claim which appeared on the writ of summons issued on 12 June 2000 and which remained unamended by the amendment to the writ of summons of 8 March 2001 is in the following terms:
"The Plaintiff's claim is against the Defendant for damages for personal injuries, recurrences, aggravations and consequential loss or damage together with interest thereon suffered by the Plaintiff on 04 July 1998, such personal injuries having been suffered as a result of the negligence, and/or breach of statutory duty and/or breach of contract on the part of the Defendant, its servants or agents."
4 It is common ground between the parties that the injuries suffered by the plaintiff occurred on a domestic airline service operated by the defendant. As such, any claim in relation to injuries sustained during the course of travel is subject to the provisions of the Civil Aviation (Carriers Liability) Act (Clth) 1959 ("the Act"). Section 28 of the Act is in the following terms:
"Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or 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."
(Page 4)
5 Section 36 of the Act makes it plain that the strict liability imposed by s 28 is in substitution of any other right of action a person injured in transit may have.
6 Section 34 deals with the limitation of actions. It is in the following terms:
"The right of a person to damages under this Part is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination;
(a) the date on which the aircraft ought to have arrived at the destination; or
(b) the date on which the carriage stopped.
whatever is the later."
7 The scheme of the Act may be summarised in the following way. When a person suffers injury during the course of a domestic airline flight strict liability attaches to the airline for the injuries sustained. This strict liability is in substitution for any rights an injured passenger may have had at common law. An action must be brought by an injured passenger within two years of the date of the arrival of the aircraft. If it is not, the action is extinguished - it is not time-barred as is the case under, for instance, the Limitation Act - but extinguished.
8 The plaintiff's argument is that the indorsement of claim properly construed shows that the plaintiff has not brought the action based upon the Act. Rather, the action is brought in the general common law jurisdiction of the court. Such an action is, it is submitted precluded by the provisions of the Act. The only way that the defendant can be liable for the plaintiff's injuries is pursuant to s 28 of the Act. On that basis the plaintiff says that the indorsement of claim is defective and the writ ought be struck out.
9 Faced with this argument the plaintiff sought leave to amend the indorsement of claim. The minute of proposed re-amended writ of summons has an amended indorsement of claim which reads (leaving out the words deleted):
(Page 5)
- "The Plaintiff's claim is pursuant to Section 5 and Section 28 of the Civil Aviation (Carriers' Liability) Act 1961 for damages for personal injuries, recurrences, aggravations and consequential loss or damage together with interest thereon caused by an accident on 04 July 1998, on board an aircraft owned and operated by the Defendant whilst embarking at Sydney Airport on a flight to Brisbane."
10 The defendant says that it is now too late for the writ to be amended in the terms proposed by the plaintiff. It is said that the limitation period found in s 34 of the Act expired, on any view of the matter, on 4 July 2000. Thereafter any cause of action the plaintiff might have had pursuant to the Act was extinguished. Because the indorsement of claim on the writ and subsequently the amended writ did not properly refer to an action brought under the Act, that is the end of the matter.
11 In support of its submission the defendant relies upon the decision of Cullinane J in Staples v City & Country Helicopters Pty Ltd (1993) 119 FLR 291. His Honour was dealing with the Act and an application by the plaintiff to amend the indorsement of claim. The original indorsement of claim was in the following terms:
"The plaintiff's claim is for damages for personal injury and loss occasioned by the negligence and/or breach of duty of the first defendant and the second defendant of 2 October 1987 in the vicinity of Georgetown in the State of Queensland arising out of the operation of a Hiller UH-12E helicopter registration VH-FFT".
12 The plaintiff delivered a statement of claim in which no mention was made of the Act. By their defence the defendants raised the Act and pleaded that the plaintiffs right to damages under the Act had been extinguished because the proceedings had not been issued within two years of the accident. In fact, the accident occurred on 2 October 1987 and the summons was issued on 11 July 1989. It was argued by the defendant that because neither the indorsement of claim, nor the statement of claim, referred to the Act. The claim under the Act became statute-barred on 2 October 1989. As the application to amend the writ and statement of claim was brought after that date, no amendment was possible because the claim was extinguished.
13 In the course of his judgment his Honour referred to two Queensland decisions: Stumann v Spansteel Engineering Pty Ltd [1986] 2 Qd R 471
(Page 6)
- and Teys Brothers (Beenleigh) Pty Ltd v ANL Cargo Operations Pty Ltd [1990] 2 Qd R 288. His Honour also referred to the New South Wales decision of Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166. His Honour concluded that this last decision relied particularly upon the provisions of the New South Wales Supreme Court Act and was not relevant. That aspect of his decision is clearly correct and the case can be put to one side.
14 In the course of his judgment his Honour examined a number of arguments put by the plaintiff. In particular, his Honour considered the argument that an action had been commenced within time and the fact no mention was made of the Act was of no consequence. His Honour summarised the argument as follows:
"The next matter which the applicant relied upon was the language of s 34. It was said that the cause of action was extinguished only if no action was brought within the relevant period and it was said that in the present case an action has been brought, such action claiming damages in respect of the relevant incident and that in these circumstances the provision did not operate to extinguish the cause of action. In my view the section can only be sensibly understood as meaning that the cause of action will be extinguished unless an action is brought claiming damages under Pt IV before the expiration of two years from the relevant date."
15 His Honour went on to conclude that amendment to the writ and statement of claim was not possible because the cause of action was now extinguished. His Honour concluded as follows (at 295):
"However when the writ of summons and the statement of claim are looked at it is impossible to avoid the conclusion that what was being alleged were causes of action which had as their basis negligent conduct on the part of the respondents.
Facts essential to the statutory cause of action were not pleaded. Reference to the proposed amendment show the factual matters which are now sought to be pleaded and which must be pleaded to raise such cause of action.
In my view the fact that these matters are not controversial and indeed were pleaded by the respondents for their own purposes does not affect the conclusion that the new cause of action is sought to be raised by the amendments."
(Page 7)
16 His Honour expressly notes (at 294) that he regards himself as bound by the decision in Stumann (supra). But as his Honour had earlier acknowledged, that decision had to do with an application to amend the name of a party. The facts in Stumann as taken from the headnote were as follows:
"By s 15(3) of the Subcontractors' Charges Act 1974 - 1979, a sub-contractor's charge is extinguished if appropriate proceedings are not commenced to enforce the charge within two(2) months after a notice of claim of charge has been given. In proceedings brought in the District Court to enforce a charge, the Director-General of Works was named as the defendant instead of the State of Queensland which was the 'employer' under the Act. An attempt was made by the appellant to file an amended plaint more than two (2) months after it gave the relevant notice of claim of charge in which the State of Queensland was substituted for the Director-General of Works as a defendant, purportedly in reliance on the power to amend pleadings provided by r 104 of the District Court Rules 1968."
17 The Full Court of the Supreme Court of Queensland (Connolly, Thomas and de Jersey JJ) dismissed the appeal holding that the non-joinder of the State of Queensland could not be cured retrospectively so as to revive the charge. De Jersey J (with whom Connolly J agreed) summarised the position in this way (at 476):
"As I have indicated, however, the charge sought to be enforced had earlier been extinguished by force of statute. Assuming the applicability, to the joinder of parties to proceedings under the Act, of r 104 of the District Court Rules with its retrospective effect, I cannot see how, by reliance upon that procedural rule, a charge which had earlier lapsed, by operation of the Act, could be revived by force of an amendment effected subsequently to that lapsing."
18 Thomas J dealt with the matter in a slightly different way. His Honour referred to the Crown Proceedings Act which dealt with the way in which proceedings were to be initiated against the Crown. His Honour noted that this Act had expressly repealed s 4(2) of the Subcontractors' Charges Act which dealt with the way in which proceedings were to be initiated under that Act and which had prescribed the procedure the plaintiff had followed when proceedings were issued. The amendment to the Subcontractors' Charges Act affected by the
(Page 8)
- Crown Proceedings Act had simply been overlooked by the plaintiff's solicitors. In other words, the plaintiff had sued the wrong party. His Honour concluded that any amendment to the proceedings purportedly affected pursuant to the Rules of Court could not have the effect of reviving an action which had been extinguished.
19 There is a clear distinction to be drawn between the situation which arose in Stumann and the matter under consideration in Staples. With respect to his Honour I can see very little connection between the two fact situations. In Staples the correct party had been sued. It was simply a case that no mention had been made in the indorsement of claim or in the statement of claim of the applicable legislation. Stumann says nothing on that question whatever. In my view it was irrelevant to the matter to be decided by his Honour.
20 The interrelationship between O 21 r 5 permitting amendment of a writ and limitation provisions has been the subject of a number of decisions of the Full Court of this Court. The most recent of these decisions is Morgan v Banning (1999) 20 WAR 474. During the course of her judgment, Wheeler J provided a crisp summation of the central legal issue in amendment applications: (at 484):
"This Court recently had occasion to consider the question of what constituted a 'cause of action' for limitation purposes, in order to determine whether an action for a declaration could be considered to be a 'cause of action' in Judamia v Western Australia (unreported, Supreme Court, WA, Full Court, Library No 960114, 1 March 1996). The court found that in that context, difficulty had been occasioned by the confusion between the old forms of action and the concept of a 'cause of action'. In order to avoid confusion so far as possible I propose in what follows to use the expression 'cause of action' in order to describe merely a factual situation which will entitle a person to approach the court for relief, and 'form of action' to refer to the old categories of action, several of which might be capable of arising out of one factual situation."
21 Her Honour went on to consider the so-called rule in Weldon v Neal [1887] 19 QBD 394 and the difficulty which had been occasioned by the use of the expression "cause of action". Her Honour concluded (at 487):
"… it may be that 'cause of action' in the latter part of O 21, r 5(5) is to be understood as requiring the court to read the
(Page 9)
- indorsement generously and to discern from it (if it be possible) what is the 'cause of action' in the sense of underlying facts entitling the plaintiff to relief which the plaintiff seeks to raise."
22 In my view that is the issue in this case. The underlying facts are that the plaintiff alleges he was injured on a domestic airline flight. True it is that a reading of the indorsement in its present form suggests an action at common law. In fact, the action can only be bought pursuant to the Act. In my view the failure to mention the Act is of no significance. The relevant facts are included in the indorsement and there is no requirement to refer to a particular "cause of action" Prior to the introduction of the Judicature Act there is no doubt that the indorsement would have failed. But to hold that this action should be struck out on the basis of an inadequate indorsement would not only render an injustice to the plaintiff but would allow the old forms of action to speak from the grave.
23 In Staples, Cullinane J implicitly recognised the injustice to the plaintiff in refusing to allow the amendment. His Honour said (at 295):
"The respondents here have been sued within two years and are aware from the pleadings that the plaintiff was claiming damages as a result of the accident. The statutory liability is an absolute one and the respondent's, for the purposes of raising the Acts as an answer to the plaintiff's claim, themselves alleged that the carriage was one to which the legislation applied and which gave rise to an absolute liability. No prejudice of any kind has been or could be suffered by the respondents."
24 That is precisely the position which applies in this case. Yet the defendant seeks to have the action struck out. In my view to do so would render the plaintiff a grave injustice.
25 During the course of his submissions counsel for the defendant quite properly placed great emphasis on the need for courts at first instance to maintain consistency in the interpretation of federal legislation. Reference was made to Zibillari v R [1980] 31 ALR 693 at 703 - 4, Hamilton Island Enterprises v Commissioner of Taxation [1982] 1 NSWLR 113 at 119 and in this Court, Walker v Midlink Nominees Pty Ltd (2000) 22 WAR 318 per Owen J at 324. In this latter case Owen J referred to the High Court decision in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 and continued:
(Page 10)
- "However, a judge sitting at first instance must apply the law. If, in good conscience, he or she feels unable to accept the reasoning and result of a judicial officer of co-ordinate jurisdiction on the same issue, the judge must depart from the earlier reasoning and apply the law as it appears to be. The decision to depart from the earlier judgment is not one that will be taken lightly. Due respect must be afforded to every decision made by a judicial officer. Due weight must be given to the policy considerations that underpin the doctrine of precedent, especially in the area of uniform national legislation. But in the end a judge must apply the law as he or she believes it to be."
26 Ever mindful of the words of Owen J and bearing in mind all the decisions referred to by counsel for the defendant, I have reached the conclusion that in this case I ought not follow the decision of Cullinane J in Staples. I have not reached this conclusion lightly. But in my view the decision in Morgan v Banning and the reasoning of Wheeler J quoted above provides a complete answer to the defendant's application. Any other decision would render an injustice to the plaintiff. In that situation slavish adherence to precedent cannot be justified. Were it the case that the decision in Staples followed the decision in Stumann I would have taken a different approach. But for reasons which I have outlined above I am satisfied that the decision in Staples is not in any way dictated by the decision in Stumann. The fact situations are entirely different.
27 There is one further matter which I should mention. There is one significant difference between the indorsement of claim in this case and the indorsement of claim in Staples. In this case the indorsement does refer to "breach of statutory duty". It may be that this reference to statute is too oblique to satisfy the approach adopted in Staples. In any event, in my view to have distinguished Staples on the basis of the reference to breach of statutory duty in this indorsement would have been nothing more than a resort to sophistry. Even if counsel for the plaintiff had framed his argument on this basis (and he did not) in my view it would have been necessary to confront the underlying ratio of Staples in determining the outcome of this application.
28 For these reasons the defendant's chamber summons seeking summary judgment will be dismissed. There will be an order that the plaintiff have leave to amend its writ of summons in terms of the minute of proposed re-amended writ of summons. I will hear the parties with respect to costs.
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