Wheeldon v Picture This Ballooning Pty Ltd; Fookes v Picture This Ballooning Pty Ltd (Ruling)
[2025] VCC 1527
•21 October 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 |
| v | |
| PICTURE THIS BALLOONING PTY LTD -and- | Defendant Case No. CI-23-06120 |
| ROBERT FOOKES | Plaintiff |
| v | |
| PICTURE THIS BALLOONING PTY LTD | Defendant |
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JUDGE: | Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2025 | |
DATE OF RULING: | 21 October 2025 | |
CASE MAY BE CITED AS: | Wheeldon v Picture This Ballooning Pty Ltd; Fookes v Picture This Ballooning Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1527 | |
Review of Ruling by Judicial Registrar
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Subject:Review of Ruling by Judicial Registrar
Catchwords: Requirements of an indorsement on a writ – whether indorsement on each plaintiff’s writ disclosed a cause of action – whether all elements of section 4 of the Civil Aviation (Carriers’ Liability) Act 1961 (Vic) required to be pleaded on an indorsement
Legislation Cited: County Court Civil Procedure Rules2018 (Vic); Civil Aviation (Carriers’ Liability) Act 1959 (Cth); Civil Aviation (Carriers’ Liability) Act1961 (Vic)
Cases Cited:Air Link Pty Ltd v Paterson, Paterson v Air Link Pty Ltd [2005] HCA 39
Agtrack v Hatfield [2005] HCA 38
Buttigieg v VL Finance Pty Ltd (1986) VR 392
Elsum v Jameson [1974] VR 529
Renowden v McMullin (1970) 123 CLR 584; [1970] HCA 24
Ruling: The indorsements comply with rule 5.04(2)(b) of the County Court Civil Procedure Rules2018 (Vic) and disclose a cause of action pursuant to section 4 of the Civil Aviation (Carriers’ Liability) Act1961 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allen | Shine Lawyers |
| For the Defendant | Mr D Lloyd SC & Mr L Howe | Ligeti Partners Lawyers as agents for GSG Legal |
HER HONOUR:
1Ms Wheeldon and Mr Fookes, the plaintiffs in their respective proceedings, each say they were injured during a hot air balloon ride operated by the defendant, Picture This Ballooning Pty Ltd (“Picture This”), on 31 December 2021.
2Picture This brought applications for the plaintiffs’ statements of claim to be struck out and to dismiss the proceedings. Those applications were dismissed by Judicial Registrar Bales on 24 June 2025.
3Picture This now seeks review of the decisions of the Judicial Registrar, and seeks orders in each proceeding that:
(a) The Statement of Claim dated 12 August 2024 be struck out pursuant to Order 23.02 of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”);
(b) The proceeding be dismissed; and
(c) The plaintiff[s] pay the defendant’s costs of the proceeding, including the costs of this application and the application that was before the Judicial Registrar.
4Under 84.03 of the Rules, this review is a new hearing.
5On 10 November 2023, Ms Wheeldon and Mr Fookes each issued a writ with a general indorsement. On 12 August 2024 they each filed statements of claim. The statements of claim were filed more than two years from the date of the accident.
6Picture This say the plaintiffs failed to bring their claims in time. The indorsement on each of their writs was so deficient that it did not meet the requirements of an indorsement under the Rules, in that it did not disclose a cause of action. Picture This says the entitlement to claim damages is, accordingly, extinguished and therefore the statements of claim must be struck out and the proceedings dismissed.
The issue for determination
7The issue in each case is whether the indorsement on the writ disclosed a cause of action within the meaning of the legislation.
8Depending on the answer to that question, a further issue may arise in relation to whether the statement of claim can be amended. The parties have requested that I deliver my ruling in relation to the first issue, which, in turn, will determine whether I uphold or overturn the decision of the Judicial Registrar. The parties requested to be heard on the appropriate form of orders prior to the making of those orders. I acceded to that request.
9For the reasons that follow I am satisfied that the indorsement on the writ disclosed a cause of action and therefore the question as to whether the statement of claim can be amended does not arise. Nevertheless, I will hear the parties on the appropriate form of orders.
The indorsement on the writ
10Each writ contained the following indorsement:
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 [he][she] 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.
The Legislative framework
11Pursuant to section 5 of the Civil Aviation (Carriers’ Liability) Act 1961 (Vic) (“the Victorian Act”), the provisions of Parts IV and IVA of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Carriers’ Act”) apply (with some exceptions) to carriage to which the Victorian Act applies.
12The Victorian Act applies to:
The carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in Victoria and another place in Victoria, not being carriage to which Part IV of the Carriers’ Act applies or to which the Warsaw Convention, or the Warsaw Convention as affected by the Hague Protocol, applies.[1]
[1] Section 4 of the Victorian Act
13Section 34 of the Carriers’ Act, which applies to claims brought under the Victorian Act by reason of section 5 of the Victorian Act, provides:
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.
14Section 28 of the Carriers’ Act, which applies to claims brought under the Victorian Act, provides:
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.
The County Court Civil Procedure Rules
15Rule 5.04(2) of the Rules requires an indorsement on a writ to, with reasonable particularity, give notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.
16Rule 1.13 provides that a pleading includes an indorsement of claim on a writ which constitutes a statement of claim, and includes particulars of any pleading. However rule 5.04(3) provides that an indorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed “Statement of Claim”.
17As neither of the indorsements on the writs filed by the plaintiffs were headed “Statement of Claim”, the indorsements are not pleadings pursuant to the Rules. Further, it is apparent that the indorsements were never intended to be statements of claim. They did not comply with Order 13. A statement of claim in each proceeding was served, in accordance with the Rules, after service of the writ.
What does an indorsement on a writ require?
18An indorsement on a writ, not being a pleading, should not be construed as a pleading but read for what it is, namely a notice of the nature of the claim, the cause of the claim and the relief sought. It will suffice if it conveys that information generally without particularity, unless particularity is indispensable to notify of the required elements, for example identification of the instrument upon which a claim is founded.[2]
[2] Renowden v McMullin (1970) 123 CLR 584 at [595-596]; [1970] HCA 24 at [15]-[16]
19In Buttigieg v VL Finance Pty Ltd,[3] the Full Court of the Supreme Court of Victoria held that the rules require only that an indorsement on a writ contain a statement which is sufficient to give notice of the nature of the claim, and the cause thereof, and the relief required.[4] Further, the word “cause” is directed to the cause of action in the technical legal sense but the indorsement does not have to employ the precise legal nomenclature of the cause of action. It must give sufficient notice of what the cause of action is.
[3] (1986) VR 392 (“Buttigieg”)
[4] Buttigieg, 397
20In Buttigieg, the indorsement pleaded that the first defendant became indebted to the plaintiff pursuant to an agreement in writing. The Court found this statement made it “clear enough” that the cause of action was a breach of contract to pay money. Nowhere did the indorsement state that the first defendant had breached its contract to pay, but the indorsement did convey “clearly enough” that the plaintiff claimed a liquidated amount from the first defendant. The only way the claim for that liquidated amount could be relevant to the stated obligation to pay, would be if the obligation had not yet been met. The Court noted that, though it was possible to read the indorsement “as if it were nonsense”, the law “does not favour any such exercise in obscurantism”, especially when the alternative reading enables full and sensible effect to be given to all the words used and discloses a perfectly logical relationship between the claim and the obligation.[5]
[5] Buttigieg, 397 [25]-[35]
Plaintiffs submissions
21The plaintiffs say their indorsements disclosed:
(a) the general nature of the event giving rise to the claim, being an accident in the course of a hot air balloon flight;
(b) the date of the carriage and the accident;
(c) the route of the carriage, being entirely within Victoria;
(d) the plaintiffs’ relationship to the event, being that they were passengers on board the balloon;
(e) the defendant’s relationship to the event, being the owner of the hot air balloon; and
(f) the impact of the event on the plaintiffs, namely that they had sustained injuries as a result of the accident.
22There was no error in the plaintiffs referring to the Carriers’ Act because, pursuant to section 5 of the Victorian Act, section 28 of the Carriers’ Act applies. The fact that the flight was wholly within Victoria was stated in the indorsement (Glenburn to Yarra Glen in the State of Victoria). The indorsement could not sensibly be read as meaning that Glenburn was somewhere other than Victoria. The defendant has not established that there is a “Glenburn” anywhere other than Victoria. Further, the defendant knew that Glenburn was in Victoria.
23The reference to section 28 of the Carriers’ Act may not have been necessary to comply with rule 5.04(2)(b) of the Rules but clarified the statutory right that the plaintiffs sought to invoke. A later clarification, in the statement of claim, that section 28 of the Carriers’ Act was relied on by reason of section 5, simply made abundantly clear the particular statutory pathway by which the action had already been brought.
Defendant submissions
24Picture This says the plaintiffs are required, under section 4 of the Victorian Act, to plead:
(a) the carriage was carriage of a passenger in an aircraft;
(b) the defendant was the holder of an airline licence or a charter licence;
(c) the flight occurred in the course of the defendant’s commercial transport operations;
(d) the carriage was pursuant to a contract for reward;
(e) the flight was wholly between two places in Victoria;
(f) the flight was not one to which Part IV of the Carriers’ Act or the Warsaw Convention applied; and
(g) the injuries suffered were an accident and occurred on board or in the course of any operations of embarking or disembarking the aircraft.
25Picture This says the plaintiffs’ indorsement does not disclose a cause of action because the plaintiffs failed to plead:
(a) the carriage was carriage of a passenger;
(b) the defendant was the holder of an airline licence or a charter licence;
(c) the subject flight took place in the course of the defendant’s commercial operations under a contract for the carriage;
(d) the flight took place wholly within the State of Victoria, as there was no reference to the locality of ‘Glenburn’; and
(e) the Carriers’ Act or the Warsaw Convention did not apply.
26The plaintiffs were also required to plead that the injuries were sustained in an accident which occurred on board or in the course of any operations of embarking or disembarking the aircraft. These are matters that are not only required by section 4 of the Victorian Act but give notice of the nature of the claim under rule 5.04(2) of the Rules.
27Picture This says the failure to plead the necessary elements required to disclose a cause of action means the plaintiffs have not met the conditions precedent necessary to invoke their rights under the Victorian Act. This is fatal to them now exercising those rights and is not cured by filing a statement of claim after the two-year period has elapsed. As the defect is not curable, the plaintiffs’ rights are extinguished and the claims must be dismissed.
28Picture This says Buttigieg is authority for the proposition that it is substance, not form, that matters when deciding whether the nature of the claim has been sufficiently outlined in an indorsement. It has no relevance in this case, where the criticism of the indorsement is the absence of critical matters, rather than the form in which they appear.
29Instead, regard should be had to Elsum v Jameson[6] where the Full Court of the Supreme Court of Victoria held that an indorsement did not give sufficient notice of the claim, because it identified only that the plaintiff claimed damages from a motor vehicle accident, and failed to identify any involvement of the defendant driver.
[6] [1974] VR 529 [533] (“Elsum”)
Does the indorsement disclose a cause of action?
30The indorsement is not a pleading and does not need to comply with the requirements for a pleading under Order 13 of the Rules.
31The indorsement need only to identify the nature of the claim, the cause of the claim and the remedy sought.
32In Agtrack v Hatfield,[7] the High Court considered the question of whether the respondent, Mrs Hatfield, had brought “an action” within two years after the date of the accident which killed her husband, so as to meet the requirements of section 34 of the Carriers’ Act. Mrs Hatfield had not identified that she was proceeding under Pt IV of the Carriers’ Act.
[7] [2005] HCA 38 (“Agtrack”)
33Rule 13.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) requires a pleading to identify the specific provisions of any Act relied upon. Analysis of the pleadings demonstrated that Mrs Hatfield had brought an action in exercise of her rights within two years of the accident. It was unnecessary to show that she had in her mind that she was relying on Pt IV of the Carriers’ Act.
34The majority accepted the submission that it would be an error to focus on the particular pleading rules of the State jurisdiction in which the case was brought, and it would be a further error to reason, from those requirements, a conclusion as to whether an action had been brought, within the meaning of section 34 of the Carriers’ Act.[8]
[8] Agtrack [43]
35Callinan J, dissenting on this point, said that it was necessary to analyse what was required to bring a claim in the Supreme Court of Victoria, but was satisfied that Mrs Hatfield had issued her writ and indorsement with the reasonable particularity that rule 5.04(2)(b) required. Although she had misdescribed her indorsement as a statement of claim, effectively electing the provisions of rule 5.04(2)(a), her indorsement was not a statement of claim because it did not comply with the provisions of Order 13, which set out the requirements for a pleading. However, Order 13 did not operate to deny that she had done what was necessary to bring an action within two years of the relevant events as required by the Act.[9]
[9] Agtrack [106]
36Mrs Hatfield may have been completely unaware of the Carriers’ Act and its displacement of all other causes of action, but that did not defeat her right to proceed. There was no reason “cause” should not be understood as the event or circumstances giving rise to the claim. So too, “the nature of the claim” was to be understood as the type of claim, namely a claim for damages, and the relief or remedy sought could be understood as a claim for damages arising out of the death of a passenger, caused by an accident, in the course of the operation of the aircraft. That the accident may have been negligently caused was of no significance and any pleading of that sort could be struck out. Callinan J noted that the pleading “at least implied” that the appellant was engaged in a commercial activity or aircraft charter and the deceased’s flight was of “a commercial character”. It was sufficient that at least one destination identified was in the Northern Territory, to which the Carriers’ Act applied.[10]
[10] Agtrack [98]-[101]
37In Air Link Pty Ltd v Paterson, Paterson v Air Link Pty Ltd,[11] an action was brought by the passenger within the time specified in the Carriers’ Act, but without reference to it. The claim was framed as a claim for damages for common law negligence and breach of contract, in apparent ignorance that no such causes of action existed in respect of air carriage injuries, having been abolished by the Carriers’ Act, which substituted different legal entitlements.
[11] [2005] HCA 39 (“Air Link”)
38Section 34 of the Carriers’ Act required that “an action” must be brought by the passenger within a specified time, and that action must be a claim for damages. However the content of the action was otherwise unspecified and left to local law and practice.[12] Air Link argued that the “action” brought by Mr Paterson was for a right that no longer existed. The Court of Appeal considered the original statement of claim fell so far short of an “action” under Pt IV of the Carriers’ Act that it should be characterised otherwise.[13]
[12] Air Link [54]
[13] Air Link [70]
39However the High Court considered Mr Paterson had done enough in his statement of claim to bring an action within time, and to attract federal jurisdiction. He had pleaded that he had been carried by an aircraft operated by Air Link. This was taken, in favour of Mr Paterson, to plead that Air Link had any necessary Air Operaters Certificate until “the unlikely event of its denial by Air Link”. He had pleaded that he had purchased a ticket, which included a flight between Dubbo and Cobar, both in New South Wales. He did not set out the sectors of carriage the ticket provided for, which included destinations within New South Wales and between New South Wales and Queensland. The Court was satisfied that it was permissible to leave the element of interstate travel, which would attract the federal jurisdiction, and which was indicated by the sectors of travel shown on the face of the ticket, as a matter for evidence.
40The Court held that whether a claim had been brought within the two-year period prescribed by section 34 of the Carriers’ Act, was not dictated by rules of pleading, if any, which arose in the court where the action was instituted. The Court said the statement of claim was expressed in terms which attracted section 28 of the Carriers’ Act and therefore the fact that the statement of claim did not mention or refer to Pt IV of the Carriers’ Act did not mean that the Carriers’ Act was not engaged.
41Picture This says this case is different from Agtrack, because, in Agtrack, Mrs Hatfield had already pleaded sufficient facts to bring a claim under the Victorian Act, albeit that her claim should have been brought under the Carriers’ Act. She had brought “an action” for her benefit, within the two-year period required by section 34 of the Carriers Act and there was no extinguishment of her rights.
42Picture This says, in Air Link, Mr Paterson had also pleaded sufficient facts to bring the claim under the Carriers’ Act, notwithstanding that it was expressed as a claim in negligence and contract.
43Agtrack and Air Link make clear that pleading the correct, or indeed any, legislation, is not a pre-condition to bringing a claim. The question in this case is whether the indorsement on each of the plaintiffs’ claims is sufficient to invoke their rights under the Victorian Act.
44Each plaintiff pleads they were “on board” the aircraft. While it is possible that they could have been “on board” as a stowaway, or as crew, the law does not favour an exercise in obscurantism. I am satisfied that it is sufficient to identify that each plaintiff was “on board” the hot air balloon, to establish that they were passengers on the aircraft.
45Section 4 of the Victorian Act applies where the aircraft is operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for carriage of a passenger between a place in Victoria and another place in Victoria, not being carriage to which Pt IV of the Carriers’ Act applies or the Warsaw Convention.
46In Air Link, a pleading that Mr Paterson had been carried by an aircraft operated by Air Link was taken, in favour of Mr Paterson, to assert that Air Link had any necessary licence or certificate. By that same reasoning, by pleading that they were on board “the defendants Kavanagh B-350 the hot air balloon”, the plaintiffs have made it clear enough that they allege that Picture This had any necessary airline or charter licence.
47I do not accept the submission that the plaintiffs have failed to plead that the flight took place wholly within the State of Victoria. The phrase “travelling from Glenburn to Yarra Glen in the State of Victoria” would, on an ordinary reading of that phrase, be understood to be referring to two places in the State of Victoria. It is tolerably clear that the words “in the State of Victoria” apply to both identified places. It would be unusual to write “Glenburn in the State of Victoria to Yarra Glen in the State of Victoria”. On the other hand, if one of the localities was not within the State of Victoria, one would expect that this would be identified e.g. “Glenburn, in the State of New South Wales, to Yarra Glen in the State of Victoria”. There was no comma after Glenburn to grammatically separate it from the words “in the State of Victoria”. The plaintiffs have sufficiently pleaded that the travel was from one place in Victoria to another place in Victoria.
48By identifying that the travel was wholly within Victoria, there is no need for the plaintiffs to have pleaded that the Carriers’ Act or the Warsaw Convention did not apply. The Victorian Act must apply.
49The final element of section 4 of the Victorian Act that Picture This contends has not been pleaded in the indorsement, is that the carriage was pursuant to a contract. There is nothing in the indorsement which sets out the existence of contract. There is no mention of a ticket, as in Air Link. It may be that identification as a “passenger” is sufficient to imply the existence of a contract of carriage, but this is unlikely given that the Victorian Act requires the passenger to be carried under a contract of carriage, suggesting that there might be passengers who are carried in some other way.
50In any event, although the Victorian Act applies only to carriage which fulfils the requirements of section 4, this does not automatically mean that, in an indorsement on a writ, each element of section 4 must be pleaded in order for the plaintiffs to bring “an action” pursuant to section 34 of the Carriers’ Act.
51All that is necessary, pursuant to rule 5.04(2)(b), is a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, the cause of the claim and the remedy sought.
52In Elsum, the indorsement was in these terms: “The plaintiff’s claim is for damages arising out of a motor car accident that occurred on or about 12 December 1968 on Burwood Highway Vermont, as a result of which the plaintiff suffered loss and damage”. The plaintiff in the title was described as suing personally and as the executor of the will of another.
53The Full Court held that the indorsement did not contain a statement sufficient to give notice of the nature of the claim and the cause thereof. It was impossible to know how the plaintiff personally, or as executor of the will of the deceased, suffered loss and damage from the accident referred to in the indorsement. It was equally impossible to determine how or in what circumstances the defendant incurred any legal liability to the plaintiff personally or as executor of the will of the deceased, or to the deceased herself, for the car accident or for the damage allegedly caused.
54The words “notice of the nature” of the claim must have some work to do. The requirements of a pleading under Order 13 are not what is envisaged by the words “notice of the nature” of the claim brought. In Elsum, the indorsement did not indicate the “nature of the claim” because it failed to identify if the damages claimed were suffered by the plaintiff personally or in his capacity as executor of the will of the deceased, whether they were bodily injuries, how the defendant was liable, or indeed how the defendant was even involved. It did not, for example, allege that the defendant was the driver of a vehicle involved in the car accident. The Full Court said that the words “the nature of the claim and the cause thereof” must add something to the words “the relief or remedy required in the action”. That is, it would be insufficient simply to plead, as the plaintiff in Elsum had done, that an accident had occurred and the plaintiff sought damages. Something in the nature of the cause of action must be identified, for example, that the defendant had driven negligently.
55I am satisfied in this case that the plaintiffs have sufficiently identified the “nature of the claim” brought, namely a claim for bodily injury, caused by a balloon accident. The cause was the “accident”, namely the unexpected landing in turbulence of the aircraft on 31 December 2021 when the balloon was travelling between Glenburn and Yarra Glen. The remedy sought is damages pursuant to section 28 of the Carriers’ Act. There was no requirement to plead the Carriers’ Act. Though a more helpful pleading would have identified that the damages were sought pursuant to section 28 of the Carriers’ Act by reason of the operation of section 5 of the Victorian Act, it was sufficient for the plaintiffs to plead that they were seeking damages.
56However the fact that section 28 of the Carriers’ Act was pleaded, albeit without the necessary reference to the Victorian Act, does not negate that the indorsement gave notice of nature of the claim. Further, it assists the plaintiffs because it identifies that they are bringing their claims in circumstances where, they say, section 28 applies, namely as passengers who sustained injuries resulting from an accident which took place on board an aircraft.
57Given that the entitlement of a passenger on an aircraft within Australia to any damages is entirely governed by the legislative provisions of either the Carriers’ Act or the Victorian Act, and that it is only enlivened if bodily injury is sustained during an accident, the plaintiffs have sufficiently identified the nature of the claim and the cause thereof.
58Accordingly I am satisfied that the plaintiffs’ indorsements are sufficient for the purposes of rule 5.04(2)(b), and mean that each plaintiff has brought an action pursuant to section 4 of the Victorian Act, for his or her benefit, within two years of the date of the accident.
59I will hear the parties on the appropriate form of order.
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