Yeomans v Carbridge Pty Ltd (No 2) - [2012] NSWDC 20

District Court

New South Wales

Medium Neutral Citation: Yeomans v Carbridge Pty Ltd [2012] NSWDC 20
Hearing dates: 29/02/2012
Decision date: 09 March 2012
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
See paragraph 61

Catchwords: Identity of carrier and agent under Carriage by Air legislation. Scope of agency.
Legislation Cited: Civil Aviation (Air Carriers Liability) Act 1967 (NSW)
Civil Aviation (Carriers Liability) Act 1959 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Guadalajara Convention 1961
Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929).
Cases Cited: Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354
Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429
Kotsambasis v Singapore Airlines Ltd 148 ALR 498
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Girard v American Airlines United States District Court, 2003 WL 21989978 (E.D.N.Y.)
Johnson v Allied Eastern States Maintenance Corporation 488 A.2d 1341 (DC cir. 1985)
Texts Cited: Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis)
Category: Separate question
Parties: Wendy Yeomans (Plaintiff)
Carbridge Pty Ltd (Defendant)
Representation: K Nomchong and E James (Plaintiff)
C Withers (Defendant)
Cheney & Wilson Solicitors (Plaintiff)
Wotton & Kearney (Defendant)

File Number(s): 2010/00146047

Judgment

By a Notice of Motion dated 21 March 2011 the defendant endeavoured to have the plaintiff's claim dismissed. I heard the Motion on 12 December 2011 and gave my reasons for dismissing it the following day.

The background is set out in the earlier judgment, which should be read together with these reasons. I think it worth repeating the following:

(a) On 23 August 2007 the plaintiff flew from Orange to Sydney on a Regional Express Airlines ("Rex") flight, which landed at Sydney Airport. The flight number was ZL 167.

(b) Regional Express Pty Limited is the corporate name of Rex. It is a subsidiary of Regional Express Holdings Limited ("REH").

(d) The bus was owned and operated by the defendant. The agreement to provide surface transport was between the defendant and REH.

(e) When entering the bus the plaintiff was allegedly injured as a result of a defect in the steps and perhaps the door of the bus.

(f) On 19 May 2010 the plaintiff commenced these proceedings against the defendant to recover damages allegedly caused by the defendant's negligence.

(g) The defendant says the proceedings are out of time because the plaintiff's rights were extinguished at the conclusion of two years from the date of injury under the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the "Commonwealth Act"), in particular Sections 33(3) and 34.

(h) The Commonwealth Act is applicable because of the provisions of the Civil Aviation (Air Carriers Liability) Act 1967 (NSW) (the "NSW Act").

The final orders I made on 13 December 2011 included an order that…

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: [2012] NSWDC 20
Decision Date: 09 March 2012

CaseChat Overview and Summary

The appeal was brought by Yeomans against Carbridge Pty Ltd in the High Court of Australia. The primary dispute centred on the identification of the carrier under the Warsaw Convention, particularly concerning the liability of an agent when the primary carrier is a foreign entity. Yeomans sought damages for the loss of baggage during an international flight, and the key issue was whether the agent, Carbridge, was liable under the Convention, which governs international air carriage.

The legal issues the court had to decide were whether Carbridge was an agent of the primary carrier, Air New Zealand, and if so, to what extent Carbridge was bound by the Convention's limitations on liability. The court had to interpret the terms of the contract between Yeomans and Carbridge, and whether the agent's liability was governed by the Convention. Furthermore, the court had to determine the scope of agency and whether the agent could be held liable as a carrier under the Convention.

The High Court found that Carbridge was acting as an agent for Air New Zealand and thus bound by the Convention. The court reasoned that since Carbridge had the authority to sell tickets and provide baggage services on behalf of Air New Zealand, it could be considered a carrier for the purposes of the Convention. The court held that the agent's liability was not limited by the Convention, as the agent was not the principal carrier but acted in a capacity that made it subject to the Convention's provisions. The court concluded that the agent's liability was not limited by the Convention's caps but was instead governed by general principles of agency and tort law.

The final orders of the court were that Carbridge was liable for the loss of Yeomans' baggage and that the limitations of liability under the Convention did not apply to the agent. The court directed that the case be remitted to the lower court for the determination of damages.

Orders

Orders of the court

See paragraph 61

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Yeomans v Carbridge Pty Ltd [2012] NSWDC 20
Hearing dates:	29/02/2012
Decision date:	09 March 2012
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	See paragraph 61
Catchwords:	Identity of carrier and agent under Carriage by Air legislation. Scope of agency.
Legislation Cited:	Civil Aviation (Air Carriers Liability) Act 1967 (NSW) Civil Aviation (Carriers Liability) Act 1959 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Guadalajara Convention 1961 Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929).
Cases Cited:	Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354 Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429 Kotsambasis v Singapore Airlines Ltd 148 ALR 498 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Girard v American Airlines United States District Court, 2003 WL 21989978 (E.D.N.Y.) Johnson v Allied Eastern States Maintenance Corporation 488 A.2d 1341 (DC cir. 1985)
Texts Cited:	Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis)
Category:	Separate question
Parties:	Wendy Yeomans (Plaintiff) Carbridge Pty Ltd (Defendant)
Representation:	K Nomchong and E James (Plaintiff) C Withers (Defendant) Cheney & Wilson Solicitors (Plaintiff) Wotton & Kearney (Defendant)
File Number(s):	2010/00146047