Street v Arafura Helicopters Pty Ltd t/as Alice Springs Helicopters - [2018] NTCA 11

CITATION:Street v Arafura Helicopters Pty Ltd t/as Alice Springs Helicopters [2018] NTCA 11

PARTIES: STREET, Ryan Michael

v
ARAFURA HELICOPTERS PTY LTD T/AS ALICE SPRINGS HELICOPTERS (ABN 19 071 259 606)

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:AP 2 of 2018 (21556836)
DELIVERED:  16 August 2018
HEARING DATE:  19 July 2018
JUDGMENT OF:  Kelly, Barr and Hiley JJ
CATCHWORDS:

AVIATION – Civil Aviation – Claim for damages caused by injury arising out of helicopter accident – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34 -Limitation period – Right of person to damages extinguished – Appeal dismissed

PRACTICE AND PROCEDURE - Supreme Court procedure – Period of limitation –When proceedings ‘brought’ for purposes of limitation period – Originating motion – Writs – Whether date of filing is the date the documents are received or date they are accepted as filed by the proper officer – unnecessary to decide – Proper officer did not in fact accept the documents lodged – Appeal dismissed
Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34
Supreme Court Rules (NT) r 4.01, r 5.11, r 23.03, r 27.02(1), r 28.01, r 28.02(3), r 28.03, r 47.04
Agtrack NT Pty Ltd v Hadfield (2005) 223 CLR 251, Davies v Lewis [2001] NTSC 105, Gower v Woodman Sales [1988] 2 Qd R 15, Kahn v Trans World Airlines 82 A.D.2d 696 (1981), Povey v Qantas (2005) 223 CLR 189, Visic v Proude [2013] 116 SASR 404, referred to

REPRESENTATION:
Counsel:
Appellant:N Christrup
Respondent:  A Wyvill SC with M Littlejohn
Solicitors:
Appellant:HWL Ebsworth
Respondent:  Piper Ellis
Judgment category classification:    B
Number of pages:  24

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Street v Arafura Helicopters Pty Ltd t/as Alice Springs Helicopters [2018] NTCA 11

No. AP 2 of 2018 (21556836)
BETWEEN:

RYAN MICHAEL STREET

Appellant

AND:

ARAFURA HELICOPTERS PTY LTD T/AS ALICE SPRINGS HELICOPTERS
(ABN 19 071 259 606)

Respondent

CORAM: KELLY, BARR and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 16 August 2018)
THE COURT:
Introduction

The appellant has instituted proceedings in the Supreme Court under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Act”) claiming damages for injuries he sustained in a helicopter accident that occurred in the Northern Territory on 12 November 2013. In its defence, the respondent has pleaded that the appellant’s right to damages has been extinguished under s 34 of the Act because the proceeding was not brought within two years after 12 November 2013 as required by that section.
Section 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) states:
The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her 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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Street v Arafura Helicopters Pty Ltd t/as Alice Springs Helicopters [2018] NTCA 11
Case: [2018] NTCA 11
Decision Date: 16 August 2018

CaseChat Overview and Summary

The appellant, Mr Street, appealed against a decision of Southwood J, who found that his right to damages for injuries sustained in a helicopter accident had been extinguished because the statutory limitation period had expired. The appeal was heard by the Supreme Court of the Northern Territory, which dismissed the appeal. The primary issue before the court was whether the appellant's right to damages had been extinguished due to the expiration of the statutory limitation period under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The court had to determine the date on which the proceedings were 'brought' for the purposes of the limitation period and whether the appellant's action was within the statutory timeframe.

The court found that the statutory limitation period was two years from the date of the accident, which was 12 November 2013. The appellant's solicitors, Slater and Gordon Lawyers, drafted two documents on 11 November 2015, which were intended to commence proceedings. However, these documents were not compliant with the Supreme Court Rules of the Northern Territory. They were not signed, and the statement of claim was not included as part of the writ but as a separate document. Furthermore, the appellant's solicitors had engaged a private enquiry agent to file the documents, which was an error as the solicitors should have engaged local solicitors in Alice Springs to act as their town agents. The court held that because the documents were not properly filed, the proceedings were not 'brought' within the statutory period, and the appellant's right to damages was extinguished. The court also noted that it was unnecessary to decide whether the date of filing was determined by the date the documents were received or the date they were accepted as filed by the proper officer because the proper officer had not accepted the documents as filed.

The Supreme Court of the Northern Territory dismissed the appellant's appeal and affirmed the decision of Southwood J. The court held that the appellant's right to damages had been extinguished because the statutory limitation period had expired. The court did not find it necessary to determine the precise date of acceptance of the documents by the proper officer because it had already concluded that the proceedings were not properly 'brought' within the statutory period. The appeal was dismissed, and the appellant's claim for damages was extinguished.

Orders

Orders of the court

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Background

Background to the litigation

On 12 March 2018, Southwood J determined that question in favour of the respondent. His Honour found that the appellant’s right to damages had been extinguished because he had not brought an action within two years of the material date. The appellant has appealed to this Court against that decision.Background The following background facts have been taken from the judgment of Southwood J in the court below. None of these facts is in contention. On 12 November 2013 the appellant was a passenger in a Bell 206 helicopter operated by the respondent and flown by a pilot employed by the respondent. The helicopter took off from a position south-east of Alice Springs. About one hour into the flight, the pilot told the appellant that the helicopter was going down and that he should brace for impact; the helicopter hit the ground, and the appellant suffered serious injuries. The appellant engaged Slater and Gordon Lawyers as his solicitors and Mr Paul Alexander Jones, a senior associate, was the solicitor who had the conduct of this proceeding on his behalf. Before 11 November 2015, Mr Jones drafted two documents. The first was headed ‘FORM 5A’ at the top; immediately below that was the word ‘WRIT’; and below that were the names of the parties. The second document was headed ‘SUPREME COURT OF THE NORTHERN TERRITORY’; below that were the words ‘ORIGINATING PROCESS’; and below that were again the names of the parties. The documents were intended to have been drafted in compliance with the Rules of the Supreme Court of the Northern Territory. They were not. There were a number of defects: the Writ did not contain an endorsement of claim; a statement of claim is not an originating process; and the documents were not signed. Under r 4.01 of the Supreme Court Rules, except where otherwise provided, a proceeding shall be commenced by writ or originating motion. The statement of claim should have simply been included in Part 2 of the writ. There should not have been two documents. On 11 November 2015 Mr Jones engaged Mr Len Robinson who was a private enquiry agent and process server with Griffiths Investigations to file these documents. Mr Jones sent Mr Robinson an email which stated:I attach a copy of the written Statement of Claim in this matter. I would be grateful if you would attend to the following:File the attached documents with the Supreme Court of the Northern Territory, Alice Springs Registry.Attempt personal service of the filed documents on the Defendant at their principal place of business being Alice Springs Airport Precinct, Davis Drive, Alice Springs.Provide me with an email copy of the signed and sealed Writ and Statement of Claim.As you are aware time is of the essence and I appreciate your assistance and speed in this matter. Instructing Mr Robinson to file the documents was another error. Under the Supreme Court Rules, it was necessary for Slater and Gordon Lawyers to retain solicitors in Alice Springs to act as their town agents, and to provide an address for service within the prescribed distance of the Supreme Court Registry in Alice Springs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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