Yeomans v Carbridge Pty Ltd (No 3)

District Court

New South Wales

Medium Neutral Citation:	Yeomans v Carbridge Pty Ltd (No 3) [2012] NSWDC 91
Hearing dates:	21/06/2012
Decision date:	22 June 2012
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Leave to file a Reply. Estoppel to be dealt with as a separate question. Estoppel allegation not successful. Proceedings dismissed.
Catchwords:	Leave to file a Reply, estoppel
Legislation Cited:	Civil Aviation (Air Carriers Liability) Act 1967 (NSW) Civil Aviation (Carriers Liability) Act 1959 (Cth) Civil Liability Act 2002 Uniform Civil Procedure Rules 2005 (NSW) Motor Accidents Compensation Act 1999
Cases Cited:	Air Link Pty Ltd v Paterson [2009] NSWCA 251 Air Tahiti Nui Pty Ltd v McKenzie (2009) 264 ALR 709 Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA [1985] 1 WLR 925 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Commonwealth v Verwayen (1990) 170 CLR 394 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Category:	Interlocutory applications
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

1. This is the third judgment I have given in this matter. The background facts are set out in the earlier judgments. I do, however, think it worth repeating or adding the following by way of history:

(a)   On 23 August 2007 the plaintiff took a Regional Express Airlines ("Rex") flight from Orange to Sydney.

(b)   After landing, the plaintiff needed to travel on a bus to reach the terminal. The bus was owned and operated by the defendant.

(c)   When the plaintiff was boarding the bus she was injured, apparently due to a defect in the bus.

(d)   On 19 May 2010 the plaintiff filed a Statement of Claim against the defendant to recover damages caused by the defendant's alleged negligence.

(e)   On 21 March 2011 the defendant filed a Notice of Motion seeking orders for the dismissal of the plaintiff's claim on the basis that the proceedings had been filed outside the relevant limitation period. This limitation period was said to be that imposed by Sections 33 and 34 of the Civil Aviation (Carriers Liability) Act 1959 (Cth) which is imported into the law of New South Wales by the Civil Aviation (Air Carriers Liability) Act 1967 (NSW). I will refer to the two acts collectively as the "aviation legislation".

(f)   I gave judgment on the above Notice of Motion on 13 December 2011. The Motion was dismissed but in the course of my judgment I made a finding that the plaintiff's accident had occurred "in the course of any of the operations of embarking or disembarking".

(g) The orders I made on 13 December 2011 included the setting down of the hearing of separate questions pursuant to Rule 28.4 of the Uniform Civil Procedure Rules 2005 (the "UCPR"). I heard the evidence and argument on the separate questions on 29 February…