Vock v Qantas Airways Limited - [2021] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

Vock v Qantas Airways Limited [2021] QDC 269

PARTIES:

JEFFREY ALLEN VOCK

(plaintiff)

v
QANTAS AIRWAYS LIMITED

(defendant)

FILE NO/S:

1019/2020

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2021

JUDGES:

Kent QC DCJ

ORDER:

1. Application is dismissed.

2. The parties are to file and serve outlines of submissions as to costs, not exceeding four pages on the following dates: the applicant is to file and serve their outline by 30 November 2021; the respondent is to file and serve their outline by 7 December 2021.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the defendant seeks summary judgement on the basis it was not for relevant purposes the “carrier” – where the plaintiff was injured disembarking a plane – where the limitation period has expired such that another defendant cannot be added

ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the defendant submits that it was not the correct defendant – whether the defendant is the “carrier” or alternatively a “contracting carrier” in line with the statutory interpretation – whether the defendant failed to provide information as to the correct entity – where the defendant submits that it did not make a representation that it was the correct party

LEGISLATION:

Civil Aviation Act 1988 (Cth)
Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Civil Aviation (Carriers’ Liability) Act 1964 (Qld)
Uniform Civil Procedure Rules 1999 (Qld) r 293

CASES:

Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251
Air Tahiti Nui Pty Ltd v McKenzie [2009] 77 NSWLR 299
Brannock v Jetstar Airways Pty Ltd [2010] QCA 218
Commonwealth of Australia v Verwayen [1990] 170 CLR 394
Craine v The Colonial Mutual Fire Insurance Co Ltd [1920] 28 CLR 305
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125
Klement v Pencoal Limited [2000] QCA 152
Parkes Shire Council v South-West Helicopters Pty Ltd (2019) 266 CLR 212
Sarat Chunder Dey v Gopal Chunder Laha (1892) L R 19 Ind App 203
Swain v Hillman [2001] 1 All E R 91
The Henrik Sif [1982] 1 Lloyds Rep 456
Tritton Resources Pty Ltd & Ors v Ever Rock Navigation SA [2019] FCA 276

COUNSEL:

Mr R McIlwaine SC for the plaintiff
Mr T Brennan SC for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff
HWL Ebsworth Lawyers for the defendant

Introduction

This is an application by the defendant for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), seeking judgment with costs against the plaintiff.
The basis of the application is that having regard to the circumstances of the event causing the plaintiff’s injuries and the operation of the relevant statutory framework – broadly, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”) and…

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

Case: [2021] QDC 269
Decision Date: 23 November 2021

CaseChat Overview and Summary

In the case of Vock v Qantas Airways Limited, the plaintiff was injured while disembarking a QantasLink flight at Brisbane airport. The plaintiff brought the claim against Qantas Airways, who argued that it was not the correct defendant under the statutory framework of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and the Civil Aviation (Carriers’ Liability) Act 1964 (Qld). Qantas sought summary judgment on the basis that it was not the “carrier” and that the limitation period had expired, precluding the addition of another defendant.

The court had to decide two main legal issues: whether Qantas was the correct defendant within the meaning of the statutory framework and whether an estoppel prevented the plaintiff from denying that Qantas was the carrier. The court found that the plaintiff had reasonably attempted to identify the correct defendant, and it was not necessarily a criticism of the plaintiff's solicitor for not searching the public register of Australian Aircraft. The court concluded that there was a triable issue as to whether an estoppel arose, preventing the plaintiff from denying that Qantas was the carrier, and the respondent's prospects of success on this issue were real rather than fanciful.

The court dismissed the application for summary judgment and ordered the parties to file and serve outlines of submissions as to costs by specified dates. The respondent was also required to file and serve a reply to the defendant’s pleadings, potentially seeking an extension of time under the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. Application is dismissed.

2. The parties are to file and serve outlines of submissions as to costs, not exceeding four pages on the following dates: the applicant is to file and serve their outline by 30 November 2021; the respondent is to file and serve their outline by 7 December 2021.

Background

Background to the litigation

The basis of the application is that having regard to the circumstances of the event causing the plaintiff’s injuries and the operation of the relevant statutory framework – broadly, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”) and the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) (“the Queensland Act”) - the plaintiff’s claim cannot succeed because- the chosen defendant was not “the carrier” within the meaning of the Commonwealth Act such that the statutory entitlement to compensation is not engaged as against that defendant; and - the relevant limitation period has expired leaving no recourse to add the correct defendant because any cause of action the plaintiff had is by operation of law extinguished. The limitation period in this case is two years, and may not be extended.[1]The Commonwealth Act enacts a number of international conventions and protocols dealing with air travel, and the State Act applies to intrastate travel as set out below.Broadly, the issues which emerge are the merits of the contested construction argument as to the availability of the statutory cause of action, and the respondent’s secondary argument to the effect that in any case the applicant is estopped from denying that it was the carrier. As set out below, the estoppel argument is in my conclusion the deciding one, however the various arguments on both issues are canvassed.[1]See Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at [51], [59]-[60].The facts The plaintiff was injured on 10 April 2018 while disembarking QantasLink flight QF2331 at Brisbane, having flown from Gladstone. It seems reasonably clear that Qantas Airways, through Corporate Travel Management (“CTM”) contracted with an entity described as “Hospital and Health Service Central Queensland” (HHSCQ) in arranging the flight, the purpose of which was for the plaintiff to accompany his mother-in-law to Brisbane for medical treatment.[2] [2]See Exhibit SK7 to the affidavit of Ms Kaurin, court file doc no. 9 at page 22; exhibit SK 15 at p160; email from Mr Rose to Ms Kaurin of 22 June 2021, exhibit SK 27. The claim and statement of claim were issued on 1 April 2020, shortly before the expiration of the relevant limitation period on 9 April 2020 (thus the defendant was not required to serve and file its defence within the limitation period). The evidence also indicates that the respondent’s solicitor, Ms Kaurin, had been reasonably active in taking instructions and making arrangements for the issuance of initiating process in the period from September 2019 onwards. In particular, as described in her affidavit, she made various efforts to identify the correct defendant.[3][3]See Ms Kaurin’s affidavit paragraphs 7 to 25. The present argument surfaced on 5 May 2020 (shortly after the expiration of the limitation period) when the applicant’s defence was served on Ms Kaurin pleading, inter alia, that the defendant was not the “carrier” and thus not liable for the accident. The present application was filed on 28 June 2021 and argument was heard on 15 October 2021.The applicant’s submissionsStatutory construction as to correct defendant

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not clear to me that Ms Kaurin can necessarily be criticised for not searching the “public register of Australian Aircraft” as the applicant argues. The exercise in doing so, described by Mr Pool in his second affidavit, presumably on instructions, would not, it seems to me, be obvious to even an experienced legal practitioner. To criticise Ms Kaurin for not using the register to find out if Qantas owned any Dash-8’s seems, with respect, to be something of a counsel of perfection.Conclusion My conclusion, therefore, is that there is a triable issue as to whether an estoppel arises preventing the applicant from denying that it was the carrier. The respondent’s prospects of success on that issue are in my view real rather than fanciful. It follows that the application must be dismissed. In the circumstances it is not necessary for me to reach a concluded view on the question of whether, as a matter of statutory construction, the applicant was a carrier, or a contracting carrier, or neither. Thus the application is dismissed. The parties are to file and serve outlines of submissions as to costs, not exceeding four pages on the following dates: the applicant is to file and serve their outline by 30 November 2021; the respondent is to file and serve their outline by 7 December 2021. Obviously it is necessary in the ongoing conduct of the litigation for the respondent to file and serve a reply, agitating the estoppel discussed above in an appropriately particularised pleading (I note other amendments to the pleadings are also foreshadowed). It would be necessary to seek an extension of time for doing so under UCPR 7.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vock v Qantas Airways Limited [2021] QDC 269
PARTIES:	JEFFREY ALLEN VOCK (plaintiff) v QANTAS AIRWAYS LIMITED (defendant)
FILE NO/S:	1019/2020
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	23 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2021
JUDGES:	Kent QC DCJ
ORDER:	1. Application is dismissed. 2. The parties are to file and serve outlines of submissions as to costs, not exceeding four pages on the following dates: the applicant is to file and serve their outline by 30 November 2021; the respondent is to file and serve their outline by 7 December 2021.
CATCHWORDS:	COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the defendant seeks summary judgement on the basis it was not for relevant purposes the “carrier” – where the plaintiff was injured disembarking a plane – where the limitation period has expired such that another defendant cannot be added ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the defendant submits that it was not the correct defendant – whether the defendant is the “carrier” or alternatively a “contracting carrier” in line with the statutory interpretation – whether the defendant failed to provide information as to the correct entity – where the defendant submits that it did not make a representation that it was the correct party
LEGISLATION:	Civil Aviation Act 1988 (Cth) Civil Aviation (Carriers’ Liability) Act 1959 (Cth) Civil Aviation (Carriers’ Liability) Act 1964 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 293
CASES:	Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 Air Tahiti Nui Pty Ltd v McKenzie [2009] 77 NSWLR 299 Brannock v Jetstar Airways Pty Ltd [2010] QCA 218 Commonwealth of Australia v Verwayen [1990] 170 CLR 394 Craine v The Colonial Mutual Fire Insurance Co Ltd [1920] 28 CLR 305 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 Klement v Pencoal Limited [2000] QCA 152 Parkes Shire Council v South-West Helicopters Pty Ltd (2019) 266 CLR 212 Sarat Chunder Dey v Gopal Chunder Laha (1892) L R 19 Ind App 203 Swain v Hillman [2001] 1 All E R 91 The Henrik Sif [1982] 1 Lloyds Rep 456 Tritton Resources Pty Ltd & Ors v Ever Rock Navigation SA [2019] FCA 276
COUNSEL:	Mr R McIlwaine SC for the plaintiff Mr T Brennan SC for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff HWL Ebsworth Lawyers for the defendant