Singapore Airlines Ltd v Pavlinovich - [2000] WASC 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SINGAPORE AIRLINES LTD -v- PAVLINOVICH & ORS [2000] WASC 48

CORAM: MASTER BREDMEYER

HEARD: 23 FEBRUARY 2000

DELIVERED : 25 FEBRUARY 2000

PUBLISHED : 29 FEBRUARY 2000

FILE NO/S: CIV 1985 of 1998

BETWEEN: SINGAPORE AIRLINES LTD (ARBN 001 056 195)
Plaintiff
AND
NEVAN PHILLIP PAVLINOVICH
First Defendant
JANICE ETHEL PAVLINOVICH
Second Defendant
FRANA ELIZABETH PAVLINOVICH
Third Defendant

Catchwords:

Pleading - Application to strike out particulars

Legislation:

Unfair Contracts Act 1977 (UK)

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff:     Mr M F Dwyer
First Defendant             :     Mr N W McKerracher QC
Second Defendant         :     Mr N W McKerracher QC
Third Defendant           :     Mr N W McKerracher QC

Solicitors:

Plaintiff:     Corrs Chambers Westgarth
First Defendant             :     Murfett & Co
Second Defendant         :     Murfett & Co
Third Defendant           :     Murfett & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Anchor Products Ltd v Hedges (1967) 115 CLR 493
Bruce v Odhams Press Ltd [1936] 1 QB 697
Dare v Pulham (1982) 148 CLR 658
Gaston v United Newspapers Ltd (1915) 32 TLR 143
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Speidel v Plato Films Ltd [1961] AC 1090
Water Board v Moustakas (1988) 77 ALR 193

MASTER BREDMEYER: This is an application by the plaintiff to strike out parts of the defendant's amended substituted defence and counterclaim of 11 October 1999. I will refer to the first defendant as "the defendant". The other defendants are guarantors and play a very minor role.
The plaintiff objects to the phrase tacked onto six of the particulars of breach of care:
"Such events would not occur if reasonable maintenance and maintenance practices were in place and enforced by the plaintiff".
I think this sentence can stand. It is both an allegation of fact and an inference the Court at trial will be asked to draw. It is an allegation of fact because the defendant's counsel said in argument that they will call a maintenance aircraft expert to say that the failure mentioned in the particular (for example, of the hydraulics operating the windflaps, undercarriage and brakes) would not have happened if reasonable maintenance had been carried out. Secondly, it is an inference. The defendant will ask the Judge to infer, whether the expert was called or not, that that inference can be drawn from the fact that the hydraulics failed. An inference does not have to be pleaded but I have occasionally seen one pleaded in the form "From A, B and C the plaintiff will ask the Court to infer X and Y". The sentence attacked does not reverse the onus of proof. I propose to let it stand.
A second general matter relates to breach of the implied term in par 23(b):
"Failed, contrary to the term pleaded in paragraph 22.1, to carry out:
(i)proper maintenance of its aircraft;
(ii)proper safety checks of its aircraft
in accordance with the Singapore Aviation Authority Regulations or the Boeing Recommended Manufacturer's Procedures or otherwise, and as a result of such failure the plaintiff's aircraft suffered numerous faults and failures which rendered them unsafe.
(c)Failed, contrary to the term pleaded in paragraph 22.2, to give adequate instruction or training in relation to the safe operation of aircraft on which the first defendant was being trained.
(d)Failed, contrary to the term pleaded in paragraph 22.2, to take reasonable steps to ensure that all its employees complied with international regulations designed to ensure the safe operation of its aircraft.
(e)Failed, contrary to the term pleaded in paragraph 22.2, to provide competent pilots of aircraft in which the first defendant was required to travel."
I consider the defendant needs to give particulars of the Singapore Aviation Authority Regulations and/or the Boeing Recommended Manufacturer's Procedures. The plaintiff says they should be in the pleading. The defendant says "give me a request for particulars and I will answer it". The plaintiff says that is putting it to too much trouble and expense and further delay in formulating the questions, waiting for the answers, and then possibly dealing with a dispute over inadequate answers or objections. I am going to take a mid‑course. I think the defendant should provide them. They are fairly technical and can usefully go in a separate documents. I will order the defendant to provide them. Hence there will be no need for a request.
I turn now to other objections to the numbered particulars.
(i) This particular is arguable and not embarrassing. The aircraft that suffered depressurisation was not the one which the defendant was flying. It is nevertheless relevant. It shows that depressurisation can happen (arguably due to bad maintenance) and that a pilot needs proper instruction about that - about what to do if it does happen.
(ii) The plaintiff seeks particulars of the Singapore Aviation Authority Regulations and the Boeing procedures and I have ordered that they be provided. The plaintiff also seeks particulars of what maintenance procedures were not carried out. I do not consider the pleader is required to do that, for example, to plead that a maintenance service, say a week before 24 December 1992, failed to service the hydraulics, or that a maintenance check carried out on the day of the flight failed to discover that the oil in the hydraulics was dangerously low. The defendant's case is not so specific. In this particular it has given an example of the hydraulics failing on 24 December 1992, and from that the Court is going to be asked to infer that the plaintiff failed to carry out proper maintenance. In addition, an expert may be called to say that such a failure would not have occurred if proper maintenance had been carried out.
Similar comments apply to particulars (iii) and (iv).
I strike out particular (v) as conceded.
Particular (vi) relates to an incident of flying into Bombay during an outbreak of Bubonic Plague. I will order the defendant to provide particulars of the International Safety Regulations said to have been breached by being ordered to fly into that city. It can be done in a separate document.
Particular (vii) refers to flying over an active volcano. I will order the defendant to provide particulars of the International Safety Regulations said to have been breached. It can be done in a separate document. I consider that this particular arguably supports the plea, assuming, as I must for the purposes of this application, that there is an International Safety Regulation prohibiting a plane flying over an active volcano, then for Air Singapore employees to tell the pilots to fly over the volcano, is arguably unsafe.
I consider particular (viii) is good, subject to particulars which I have previously ordered on Singapore Aviation Regulations etc.
Particular (ix) relates to a stick‑shaker alert which occurred at 1100 feet. I think it is embarrassing. It is not clear to me from the wording why the pilot is said to be incompetent. Was it his incompetence which caused the stick to shake? In argument, Mr McKerricher said the captain was incompetent for permitting his under‑trained second officer to land the 747 aircraft. Maybe so, but that is not pleaded. I consider the particular should state what the second officer did which shows his incompetence. Just to say that he was a low‑time pilot and had failed two previous "checks to line", shows the potentiality for incompetence but not incompetence itself. If, for example, he did not hold the stick firmly enough, or his speed was too slow, this should be pleaded. I will strike it out and it can be remedied by a re‑pleading.
Particular (x) relates to swapping a defective part. The second and third sentences are embarrassing and should be struck out. They do not assist the understanding of the plea. They did when the original wording of the plea was in, but now that half of it has been deleted, the second and third sentences only cause confusion and should also be deleted. The plaintiff says that this is a general allegation and should therefore be disallowed. It is not specific to an aircraft flown by this defendant. I do not think that matters. If this practice goes on, then the airline has not provided a reasonably safe system of work for the defendant. He is liable one day to get one of these aircraft with a known defective part in it.
In relation to particular (xi) I will order the defendant to provide particulars of the International Safety Regulations said to have been breached by the crew members using Mandarin and not English.
Particular (xii) will be struck out. The defendant has abandoned this particular.
Paragraph 26 deals with loss and damage and is unclear and will be struck out. As pleaded, it means that by reason of the plaintiff's breaches (ie its safety breaches), the defendant suffered loss and damage, namely the opportunity to further his flying career. I understood that to mean that he lost his job as a pilot and could not get another job as a pilot. I am told from the defendant's counsel that that is not right. I am told that each of the plaintiff's various breaches of safety practices over the period 1992 to 1995 amounted to a repudiation of the contract and, at each point in time, the defendant could have got a flying job with better pay with Ansett. So I am told that evidence will be led of the different pay packages offered by Air Singapore and Ansett over those years. This paragraph needs to be re‑pleaded.
I consider par 27 is in order. The defendant is not required to plead law. He is not required to plead the relevant section or sections of the Unfair Contracts Act 1977 (UK) which is said to apply in Singapore to this contract.
In summary:
(1) I strike out particulars (v), (ix) and (xii) and the second and third sentence of (x). I strike out par 26. I give leave to re‑plead within 21 days.
(2) I order the defendant to provide particulars of the Singapore Aviation Authority Regulations and/or the Boeing Recommended Manufacturer's Procedures said to have been breached by particulars (i), (ii), (iii) (iv), (viii) and (x) within 21 days.
(3) I order the defendant to provide particulars of International Safety Regulations said to have been breached by particulars (vi), (vii) and (xi) within 21 days.
(4) The particulars ordered in (iii) and (iv) can be in a separate document.
(5) Costs in the cause.