Wheeldon and Fookes v Picture This Ballooning Pty Ltd (Ruling)
[2025] VCC 824
•21 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-23-06119
| ELIZABETH WHEELDON | Plaintiff |
| and | |
| PICTURE THIS BALLOONING PTY LTD | Defendant |
-and-
Case No. CI-23-06120
| ROBERT FOOKES | Plaintiff |
| v | |
| PICTURE THIS BALLOONING PTY LTD | Defendant |
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JUDGE: | JUDICIAL REGISTRAR BALES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2025 | |
DATE OF RULING: | 21 June 2025 | |
CASE MAY BE CITED AS: | Wheeldon and Fookes v Picture This Ballooning Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 824 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to strike out pleading and dismiss proceedings – amendment to statement of claim – limitation of actions – “action” under Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic); Civil Aviation (Carriers’ Liability) Act 1959 (Cth); Civil Aviation (Carriers’ Liability) Act 1961 (Vic)
Cases Cited:Renowden v McMullin and Anor (1970) 123 CLR 584; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2003) 7 VR 63; Air Link Pty Ltd v Paterson (2005) 223 CLR 283; Willmott Forests Ltd (Receivers and Managers appointed) (In liq) v Armstrong Dubois Pty Ltd [2016] VSC 61
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr L B R Allan | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P W Lithgow | Ligeti Partners Lawyers as agents for GSG Legal |
HER HONOUR:
The application
1This is a summons application by the defendant filed on 3 February 2025 seeking the following orders:
(a) The Statement of Claims dated 12 August 2024 be struck out pursuant to rule 23.02 of the County Court Civil Procedure Rules 2018 (“the Rules”);
(b) The proceedings be dismissed;
(c) The plaintiffs pay the defendant’s costs of the proceedings, including the costs of this application;
(d) Such further or other orders as the Court may think fit.
2This application relates to two proceedings:
· Elizabeth Wheeldon (hereinafter “the first-named plaintiff”) v Picture This Ballooning Pty Ltd (proceeding number CI-23-06119); and
· Robert Fookes (hereinafter “the second-named plaintiff”) v Picture This Ballooning Pty Ltd (proceeding number CI‑23‑06120).
3The application is opposed by the plaintiffs.
Background
4On 31 December 2021, the plaintiffs went on a hot-air balloon ride which was operated by the defendant. The pilot of the aircraft was informed of increasing winds and attempted to land the aircraft urgently, striking the ground on landing and bouncing three times, before the hot air balloon ended on its side.
5The plaintiffs suffered physical and psychiatric injuries and seek damages, interest and costs in both proceedings.
6On 10 November 2023, each of the plaintiffs instituted a proceeding by filing two Writs and a General Indorsement, seeking damages for injuries sustained during the hot-air balloon incident.
7The General Indorsements read as follows:
“1.On or about 31 December 2021 the Plaintiff was on board the Defendant’s Kavanagh B-350 hot-air balloon (‘the aircraft’), travelling from Glenburn to Yarra Glen in the State of Victoria, when (she/he) sustained injuries in an accident on the aircraft when it unexpectedly landed in turbulence.
2.The Plaintiff claims damages from the Defendant pursuant to section 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), in addition to:
a.Interest on damages;
b.Costs; and
c.Such further relief that the Court considers just.
Date: 9 November 2023.”
8On 12 August 2024, the plaintiffs filed two Statements of Claim pleading a cause of action arising pursuant to s5 of the Civil Aviation (Carriers’ Liability) Act 1961 (Vic) (“the Victorian Act”).
9The Statement of Claim filed on behalf of the first-named plaintiff on 12 August 2024 reads as follows:
“THE DEFENDANT
1.As at 31 December 2021 (the said date), and currently, the Defendant was and is a corporate entity, registered under the Corporations Act 2001 (Cth), and is thereby capable of being sued in its own name.
2.On the said date, the Defendant relevantly owned and operated a Kavanagh B-350 hot-air balloon (the aircraft) under a licence issued to it by the Civil Aviation Safety Authority.
3.On the said date, the Defendant was operating the aircraft from a place in the State of Victoria to another place in the State of Victoria, namely travelling from Glenburn to in or about Yarra Glen in the State of Victoria (the flight).
4.In the premises of the three preceding paragraphs, the aircraft flight on the said date was an intrastate flight to which the Civil Aviation (Carriers’ Liability) Act 1961 (Vic) (the Civil Aviation Act (Vic)) applies.
THE SAID DATE
5.On the said date, for reward, the Defendant agreed to take the Plaintiff, and others, on the flight.
6.During the flight, the pilot of the aircraft was informed of increasing winds and attempted to land the aircraft urgently, striking the ground on landing (the crash).
PARTICULARS
The aircraft struck the ground, bouncing three times before ending on its side.
THE CIVIL AVIATION ACT
7.Pursuant to section 5 of the Civil Aviation Act (Vic), Parts IV and IVA of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Civil Aviation Act (Cth)) shall apply to and in relation to carriage to which the Civil Aviation Act (Vic) applies.
8.Pursuant to section 28 of Part IV of the Civil Aviation Act (Cth), the Defendant is strictly liable for any bodily injury of any passenger resulting from an accident which took place on board the aircraft.
9.Within the meaning of ‘accident’ in section 28 of Part IV of the Civil Aviation Act (Cth), the crash was an accident.
PARTICULARS
The crash was an unexpected, abnormal, untoward, and/or unusual event or happening external to the Plaintiff.
10.Pursuant to section 28 of Part IV of the Civil Aviation Act (Cth), the Plaintiff suffered bodily injury resulting from the accident which took place on board the aircraft.
PARTICULARS OF INJURY
(a) left ankle injury, including fracture thereto, requiring surgery;
(b) left leg injury;
(c) right hip injury, including labral tear, requiring surgery; and
(d) psychiatric injuries that resulted from the physical injuries.
11. In the premises, the Defendant is strictly liable to the Plaintiff for damages for his injuries resulting from the accident within the meaning of section 28 of the Civil Aviation Act (Cth).
INJURY, LOSS AND DAMAGE
12.By reason of the Plaintiff’s bodily injury in the accident while on board the aircraft, the Plaintiff has suffered loss and damage.
PARTICULARS REQUIRED BY RULE 13.10(4)
The Plaintiff’s date of birth is ## ## 1970.
At the time of the accident, the Plaintiff was working as a relief physical education teacher at Carey Grammar and also worked as a support co-ordinator with Health Ability three days per week. The Plaintiff was also in the throes of setting up her own support coordinator business as an (sic) NDIS provider, which the Plaintiff had registered, called Circletalk. The Plaintiff intended to run this business three days per week, while teaching two days per week, but for the incident.
As a result of the incident, the Plaintiff struggled to get back to work.
She returned to Health Ability one day per week in about February 2023, working from home, took another approximately one month off work, and then returned in March/April 2023 two days per week from home.
The Plaintiff re-commenced working on her own business in about October 2023, trying to build up that work. Further, in about April 2023, the Plaintiff returned to occasional casual classroom teaching, finding the same very difficult due in particular to her physical injuries.
Accordingly, the Plaintiff has suffered loss of earnings and loss of earning capacity.
The Plaintiff will set out his loss and damage in a List of Special Damages in due course.
13.In the premises above, the Plaintiff claims damages under section 31 of the Civil Aviation Act (Cth).
AND THE PLAINTIFF CLAIMS:
A. Damages;
B. Interest;
C. Costs.”
10The Statement of Claim filed on behalf of the second-named plaintiff on 12 August 2024 is identical to the Statement of Claim filed on behalf of the first-named plaintiff (above), save for paragraphs 10 and 12, which read as follows:
“10.Pursuant to section 28 of Part IV of the Civil Aviation Act (Cth), the Plaintiff suffered bodily injury resulting from the accident which took place on board the aircraft.
PARTICULARS OF INJURY
(a) left knee;
(b)left ankle; and
(c)psychiatric injuries that resulted from the physical injuries.”
…
“INJURY, LOSS AND DAMAGE
12.By reason of the Plaintiff’s bodily injury in the accident while on board the aircraft, the Plaintiff has suffered loss and damage.
PARTICULARS REQUIRED BY RULE 13.10(4)
The Plaintiff’s date of birth is ## ## 1969.
At the time of the accident, the Plaintiff was working as an Executive Manager at the 000 Call Centre.
As a result of the incident, after time away from work because of his injuries, the Plaintiff has managed to return to work. However, the Plaintiff has and will have ongoing difficulty with work that involves prolonged standing, walking, twisting, turning, kneeling, squatting, walking on uneven ground and climbing. These restrictions are permanent.
Accordingly, the Plaintiff has suffered loss of earnings and loss of earning capacity.
The Plaintiff will set out his loss and damage in a List of Special Damages in due course.”
11The defendant has not filed a defence.
12The proceeding was listed before me on 24 January 2025, as originally the parties could not agree on the future timetabling of the proceedings. These issues were discussed between the parties and the directions hearing did not proceed.
13The parties advised the Court that the defendant may file a further application to strike out the Statements of Claim.
14The defendant then later filed a Summons, and the matter was listed before me for hearing on 17 March 2025.
Defendant’s submissions
15The defendant filed an Outline of Submissions dated 14 March 2025 and an affidavit in support dated 3 February 2025.
16The defendant, relying on Renowden v McMullin and Anor,[1] says, in reference to the Statements of Claim filed on 12 August 2024, that amendments seeking to raise a cause of action, not included in a plaintiff’s original pleading, and where the plaintiff seeks to introduce a “new” claim at a time when such a claim would be statute barred, should not be allowed.
[1] (1970) 123 CLR 584 (“Renowden”)
17The defendant submits that the Victorian Act incorporates certain parts of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”) into the Victorian Act and that the Commonwealth Act itself has no independent operation with regard to the plaintiffs’ intrastate flight. Therefore, in the present proceedings it is the Victorian Act that the plaintiffs needed to enliven, not the Commonwealth Act.
18The defendant has outlined a summary of the principles from the High Court in Renowden,[2] insofar as they relate to general indorsements. (reproduced below):
[2] Ibid
(a) an indorsement is notice of the plaintiff’s claim, cause of action and relief sought and is not a pleading;
(b) an indorsement is general in nature, and need not identify the plaintiff’s claim with any particularity;
(c) insufficiency of the indorsement does not render the writ a nullity;
(d) the indorsement marks out the perimeter or range of the area within which the plaintiff may express its claim later in a statement of claim;
(e) the statement of claim is the specific way of stating the claim the plaintiff indorsed on the writ;
(f) the alteration, modification, or extension in the statement of claim must remain within the area marked out by the indorsement;
(g) the basic nature of the claim contained in the indorsement cannot be changed, but the plaintiff has broad authority to widen, lessen or express in better terms its claims so long as the substance is consistent with the original claims contained in the indorsement;
(h) the indorsement on the writ determines the essential nature of the action, but neither defines, nor necessarily forms part of, the definition of the issues for trial;
(i) once a statement of claim is served it is the base document and, subject to recourse to the indorsement for the purposes of resolving an ambiguity, for all other purposes; and
(j) unless the claims that are notified by the statement of claim fall within the notice given by the indorsement then the indorsement is required to be amended.
19In the defendant’s view, the plaintiffs’ defect lies in the plaintiffs’ reliance on the Commonwealth Act despite the Victorian Act being the only applicable legislation, and that the mischaracterisation affects the basis of each claim.
20Therefore, the General Indorsements do not put the defendant on notice of a justiciable cause of action and the Statements of Claim seek to assert rights under the Victorian Act and the claims exceed the scope of the General Indorsements and violate Renowden’s principles.
21The defendant goes on to say that neither issues outlined above render the proceedings a nullity in circumstances where an amendment to the General Indorsements is available to the plaintiffs to correct the defect and that rule 14.03(2) of the Rules entitles the addition or substitution of new causes of action in a statement of claim that is not contained within an indorsement.
22It is conceded and highlighted ‘for completeness’ by the defendant that the High Court and the New South Wales Court of Appeal have conversely allowed an amendment to a statement of claim in similar circumstances to this proceeding.[3]
[3]Proctor v Jetaway Aviation Pty Ltd [1984] 1 NSWLR 166; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 (“Agtrack”) and Air Link Pty Ltd v Paterson (2005) 223 CLR 283
23In Proctor v Jetaway Aviation Pty Ltd,[4] an amendment to the statement of claim to introduce the applicable state statutory provision where only the Commonwealth statute had previously been pleaded was allowed outside the two-year extinguishment period.
[4] Ibid
24In Agtrack (NT) Pty Ltd v Hatfield,[5] an amendment to the statement of claim to specifically invoke a cause of action pursuant to the Commonwealth Act was allowed, although the two-year extinguishment period provided for by that Act had expired, and in Air Link Pty Ltd v Paterson,[6] the claim was pleaded in negligence and breach of contract. Following expiry of the two-year extinguishment period, leave was sought to withdraw the negligence and breach of contract claims and substitute a claim under the Commonwealth Act. The amendment was allowed as the facts alleged in the original statement of claim were sufficient to show that the Commonwealth Act applied and that a proceeding, therefore, has been commenced within the required period. The amendment was allowed to “place beyond doubt” the plaintiff’s reliance on the specific statutory regime being the cause of action under the Commonwealth Act.
[5] Ibid
[6] Ibid
25The defendant also submits, however, that in these proceedings, any cause of action pursuant to the Victorian Act has been extinguished by 31 December 2023, by the operation of the two-year period provided for by s34 of the Commonwealth Act as incorporated by s5 of the Victorian Act and so, in these circumstances, to allow an amendment to the General Indorsements to in turn provide a basis to add a new cause of action based on the Victorian Act, would significantly prejudice the defendant by depriving the defendant of a defence relating to the extinguishment of the plaintiffs’ cause of action and run contrary to the High Court’s decision in Renowden.
Plaintiff’s submissions
26The plaintiffs say the defendant’s application entails consideration of the following two issues:
(a) Did the plaintiffs bring an “action” within the meaning of, and within the time permitted by, s34 of the Commonwealth Act as incorporated by s5 of the Victorian Act? and
(b) If so, is any amendment required to the plaintiffs’ Generally Indorsed Writs dated 10 November 2023?
27The plaintiffs highlight that the defendant’s submissions are entirely contrary to the judgment of the High Court in Agtrack (noting it is cited by the defendant in its own submissions).
28The plaintiffs, referring to the joint judgment in Agtrack delivered by Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ, at paragraphs 38 to 44, summarise it as follows (with application to the present matter):
(a) Section 34 of the Commonwealth Act (as incorporated by s5 of the Victorian Act) requires only that “an action” … be “brought by” the plaintiffs “within two years” after the relevant date, in exercise of the right to damages under Pt IV of the Commonwealth Act.
(b) There is no requirement in s34 or Part IV for the plaintiffs to specifically invoke in their pleadings the Commonwealth Act, and nor is there any requirement in the Victorian Act that the plaintiffs expressly invoke the Victorian Act. To the extent that the plaintiffs invoked the wrong Act in their Indorsements, this was surplusage, beyond what was required to comply with s34.
(c) It was sufficient for the plaintiffs’ Indorsements to allege facts showing that Part IV (as incorporated by the Victorian Act, i.e. to carriage to which the Victorian Act applies) applies, for her to have brought an action within the meaning of, and within the time permitted by, s34.
(d) Clearly, the Indorsements did so, indeed the defendant itself submits that “The General Indorsements in the present proceedings provide reasonable particularity by stating the date of the incident, the cause, the aircraft involved, the flight route within Victoria, and the remedies sought”.
29The plaintiff further submits that in applying Agtrack, it is beyond doubt that the plaintiffs’ Writs issued on 10 November 2023 constituted the bringing of an “action” within the meaning of s34 and an amendment of indorsements is not required, but ought be permitted if required.
30The Generally Indorsed Writs refer to a claim by the plaintiffs for “damages from the Defendant pursuant to section 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth)”.
31Section 28 of the Commonwealth Act – being the section referred to in the plaintiffs’ Generally Indorsed Writs, is contained within Part IV of the Commonwealth Act.
32Section 5 of the Victorian Act provides that the provisions of, inter alia, Part IV “shall apply to and in relation to carriage to which this Act applies, and matters connected with such carriage, as if those provisions were incorporated in this Act”.
33In like terms, paragraphs 7 to 11 of the plaintiffs’ Statements of Claim (save for the Particulars of Injury), plead the following:
“THE CIVIL AVIATION ACT
7.Pursuant to section 5 of the Civil Aviation Act (Vic), Parts IV and IVA of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Civil Aviation Act (Cth)) shall apply to and in relation to carriage to which the Civil Aviation Act (Vic) applies.
8.Pursuant to section 28 of Part IV of the Civil Aviation Act (Cth), the Defendant is strictly liable for any bodily injury of any passenger resulting from an accident which took place on board the aircraft.
9.Within the meaning of ‘accident’ in section 28 of Part IV of the Civil Aviation Act (Cth), the crash was an accident.
PARTICULARS
The crash was an unexpected, abnormal, untoward, and/or unusual event or happening external to the Plaintiff.
10.Pursuant to section 28 of Part IV of the Civil Aviation Act (Cth), the Plaintiff suffered bodily injury resulting from the accident which took place on board the aircraft.
PARTICULARS OF INJURY [first-named plaintiff]
(a) left ankle injury, including fracture thereto, requiring surgery;
(b) left leg injury;
(c) right hip injury, including labral tear, requiring surgery; and
(d) psychiatric injuries that resulted from the physical injuries.
(PARTICULARS OF INJURY [second-named plaintiff]
(a) left knee;
(b)left ankle; and
(c)psychiatric injuries that resulted from the physical injuries.)
11.In the premises, the Defendant is strictly liable to the Plaintiff for damages for (his/her) injuries resulting from the accident within the meaning of section 28 of the Civil Aviation Act (Cth).
As such, the plaintiffs’ Statements of Claim fell well within the parameters of the plaintiffs’ Generally Indorsed Writs, even without recourse to the latitude permitted by the principles summarised in Willmott Forests Ltd (Receivers and Managers appointed) (in liq) v Armstrong Dubois Pty Ltd.”[7]
[7] [2016] VSC 61 at paragraph [30]
Applicable statute and principles
34I am asked to use my discretion and strike out the pleadings dated 12 August 2024 and dismiss both proceedings. This is, in summary, based on the assertion that the plaintiffs have introduced a new cause of action by the filing of these pleadings. The original Indorsements relied squarely on the Commonwealth provisions and that these amendments bring about this new claim.
35I am encouraged to accept that the original Indorsements’ reliance on those Commonwealth provisions is flawed, as it is the Victorian Act that the plaintiffs need to rely on in respect to the liability of the carrier and their intrastate flight, and that any amendments to the Indorsements to the same extent are statute barred and would prejudice the defendant by depriving them of a defence relating to the extinguishment of the plaintiffs’ cause of action.
36These propositions are derived from the following statutes which I will highlight for completeness.
37Section 28 of the Commonwealth Act provides for liability of the carrier on death or injury, and reads as follows:
“28 Liability of the carrier for death or injury
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 bodily 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.”
38Section 34 of the Commonwealth Act provides a limitation to those actions and outlines that:
“34 Limitation of actions
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)the date on which the aircraft ought to have arrived at the destination; or
(b)the date on which the carriage stopped;
whichever is the later.”
39However, the Victorian Act, specifically s5, provides that the provisions of Part IV and (less relevantly) Part IVA of the Commonwealth Act, shall apply to and in relation to carriage to which this Act applies, and if matters connected with such carriage, as if those provisions were incorporated into this Act, stating:
“5 Application of provisions of Parts IV and IVA of Commonwealth Act
The provisions of Parts IV and IVA of the Commonwealth Act (other than sections twenty seven, forty and forty-one) and subject to any regulations made by the Governor in Council pursuant to section seven of this Act the provisions of the Commonwealth Regulations shall apply to and in relation to carriage to which this Act applies, and matters connected with such carriage, as if those provisions were incorporated in this Act and as if, in those provisions as so incorporated—
(a) general references to Part IV or IVA of the Commonwealth Act were references to this Act;
(b) a reference in one of those provisions to another of those provisions were a reference to that other provision as applying by virtue of this Act;
(c) the reference in subsection (5) of section twenty-nine of the Commonwealth Act to carriage referred to in subsection (4) of section twenty-seven of the Commonwealth Act were a reference to the carriage of a passenger where—
(i) the carriage of the passenger between two places was to be performed by two or more carriers in successive stages;
(ii) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts;
and
(iii) this Act would have applied to that carriage if it had been performed by a single carrier under a single contract;
and
(d) the references in section 31, 41C(2)(b) and 41D of the Commonwealth Act to the regulations relating to certain matters were references to the provisions of the Commonwealth Regulations relating to those matters as applying by virtue of this Act.”
40Rule 23.02 of the Rules provides:
“23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”
41Rule 5.04 of the of the Rules provides:
“5.04 Indorsement of claim on writ
(1) A writ shall contain an indorsement of claim.
(2) The indorsement of claim shall be—
(a)a statement of claim; or
(b)a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.
(3) An indorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed ‘Statement of Claim’.”
42In Renowden,[8] the High Court held that amendments seeking to raise a cause of action, not included in a plaintiff’s original pleading, and where the plaintiff seeks to introduce a “new” claim at a time when such a claim would be statute barred, should not be allowed.
[8] Supra
43However, as highlighted in paragraphs 23 and 24 of this ruling, and agreed between the parties, the decisions in Agtrack, Proctor and Airlink, all illustrate the New South Wales Court of Appeal and the High Court’s position to allow amendments, I believe, in very similar circumstances to this proceeding.
44Willmott[9] highlights that if a proceeding is commenced by writ, it must be done in one of two methods: Either the writ must be endorsed with a statement of claim, which is a pleading, or an indorsement, which is not a pleading. They are different in kind and consequences. The indorsement must comply with rule 5.04(2)(b); that is, it must be a statement sufficient to give, with reasonable particularity, notice of three things:
(a) first, the nature of the claim. This refers to the foundation for the relief or remedy claimed;
(b) second, the cause thereof. The word ‘cause’ is not directed to the physical acts which caused the injury or loss in question but to the cause of action; and
(c) third, the relief or remedy sought in the proceeding.
[9] Supra at paragraph [20]
45Where the indorsement of claim on a writ does not constitute a statement of claim in accordance with rule 5.04 and a defendant files an appearance, the plaintiff shall serve a statement of claim on that defendant within 30 days after the appearance, unless the Court otherwise orders.
Analysis
46The aircraft accident that took place on 31 December 2021 was an intrastate flight within Victoria.
47The Victorian Act applies in terms of liability to the carrier, which, as mentioned, incorporates the Commonwealth Act (Part IV relevantly).
48The Indorsements and the Statements of Claim are not, in my view, so far apart that it renders it appropriate to enliven the Renowden’ principles and instead, in adopting the words in Agtrack, I am satisfied that sufficient facts have been pleaded to raise a claim by the plaintiffs within the timeframe required under the Act.
49There can be no doubt that the plaintiffs have pleaded an action within the two- year time limit; that is, that an aircraft accident took place, and that the cause of action is derived from the Commonwealth provisions.
50Central key facts were properly contained in the Indorsements and there is no requirement to expressly invoke either State or Commonwealth Act.[10] Any amendment in the Statements of Claim has essentially characterised those liability provisions which the facts would establish in any event.
[10] Agtrack at paragraphs [42]-[43]
51To adopt the commentary of AJ Derham in Willmott,[11] the general allegations made in the Indorsements lays a sufficient general net so as to encompass the more particular allegations in the Statements of Claim.
[11] at paragraph [76]
52The Statements of Claim do not make allegations which travel beyond the perimeter set by the Indorsements.[12]
[12] Willmott at paragraph [113]
Conclusion
53I accept that Agtrack can be distinguished by the facts; that is to say, the plaintiff in that case failed to invoke rights under the Commonwealth Act, nor did it mention any State or Territory equivalents. In this case, the plaintiff has generally referred to liability deriving from s28 of the Commonwealth Act and later arguably expanding and clarifying on this in paragraph 7 of the pleadings that, by virtue of s5 of the Victorian Act, Parts IV and IVA of the Commonwealth Act shall apply to, and in relation to, carriage to which the Victorian Act applies.
54Not all of the facts of the claim were pleaded in the Indorsements; however, as is the convention, these facts were elaborated on in far greater detail and particularisation in the subsequent Statements of Claim.
55I am satisfied the plaintiffs had filed ‘an action’ by way of Writ and indorsement of claim on 10 November 2023 and that the subsequent Statements of Claim filed on 12 August 2024 went further to particularise those facts and claims.
56Therefore, s34 is, in my view, satisfied, and the plaintiffs’ claims for damages under this part were filed within two years and therefore the right to damages is not extinguished.
57The plaintiffs are not, in my view, seeking to raise a cause of action not included in the plaintiffs’ original Indorsements and I do not accept that the plaintiffs are seeking to introduce a new claim.
58I do not foresee any prejudice to the defendant with the filing of the Statements of Claim dated 14 August 2024, as any additions and/or changes or greater detail only elaborate and provide clarity.
59I am satisfied that the claims in the Statements of Claim fall within the notice given by the Indorsements and so the Indorsements, in my view, do not require amendment.[13] The defence relating to extinguishment does not apply in the circumstances outlined by the defendant and therefore there is no prejudice to the defendant.
[13] Willmott
60Simply put, an action was brought, no new claim has been made, so neither the Indorsements nor the Statements of Claim require amendment.
61The defendant’s application is refused.
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