Ipsofactoj.com: International Cases [2006] Part 1 Case 15 [HCA]


HIGH COURT OF AUSTRALIA

Coram

Air Link Pty Ltd

- vs -

Paterson

GLEESON CJ

CALLINAN J

GUMMOW J

HAYNE J

HEYDON J

KIRBY J

McHUGH J

10 AUGUST 2005


Judgment

Gleeson CJ, McHugh J, Gummow J, Hayne J & Heydon J

  1. By Ordinary Statement of Claim issued out of the District Court of New South Wales at Dubbo on 22 September 2000, Mr. Paterson claimed damages in respect of personal injuries he allegedly sustained on 25 September 1998 when alighting at Dubbo Airport from the aircraft of Air Link Pty Limited ("Air Link") after a flight from Cobar to Dubbo.

  2. In its Grounds of Defence dated 8 March 2001, Air Link pleaded that its carriage of Mr. Paterson had been subject to Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Act") and that its liability under Pt IV in respect of the alleged injuries was in substitution for any civil liability under any other law.

  3. Part IV of the Carriers' Act comprises ss 26-41. Section 36 provides that, with a qualification not presently material:

    the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

  4. Black DCJ dismissed a motion by Air Link that the proceeding be dismissed and, on the application of Mr. Paterson, struck out an allegation in the Grounds of Defence that the action was not maintainable. His Honour rejected Air Link's submission that the Statement of Claim did no more than allege actions in negligence and contract and could not be regarded as an action brought under Pt IV of the Carriers' Act.

  5. On 26 March 2002, an appeal by Air Link to the Court of Appeal (Mason P, Sheller and Beazley JJA) succeeded ("Air Link No 1" [2002] NSWCA 85). The orders made by the Court of Appeal were treated by the parties as upholding the contention of Air Link that the proceeding as pleaded in the Statement of Claim was not maintainable.

  6. The sequel was a successful application by Mr. Paterson to Graham DCJ for leave to amend the Statement of Claim in terms clearly and exclusively relying on Pt IV of the Carriers' Act. That application was filed on 24 April 2002, well outside the two year period fixed by s 34 of the Carriers' Act. Section 34 states:

    The right of a person to damages under this Part is extinguished if an action is not brought by him or for his 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.

  7. However, Graham DCJ held that under the District Court Rules there was power to allow the amendment and that "the power is not removed because of any inconsistency between those rules and s 34 of the [Carriers' Act]". An appeal by Air Link to the Court of Appeal (Mason P and Beazley JA; Ipp JA dissenting) was dismissed on 11 September 2003 (Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388 ("Air Link No 2")).

  8. Two proceedings are before this Court. They were heard with the appeal in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 [see paras [151]-[259] below] and what follows is to be read with the reasons for dismissing that appeal.

  9. The course of the litigation in all three cases invites attention to the following statement by Dean Griswold in "Renvoi Revisited", (1938) 51 Harvard Law Review 1165]. He wrote at 1166-1167n that:

    the question 'What law is applicable?' must be disposed of in every case which comes before a court. Even if all the elements are local we have to decide that local law applies, and, though it may be assumed or done unconsciously, this is not an essentially different process from that involved where we decide that some foreign law controls because there are foreign elements in the situation. Every case in court involves a choice of law.

  10. These remarks are no less and, indeed, more plainly applicable where, as in Australia, the "local law" includes federal law and the rights at stake in a case may arise under a federal law and the forum may be a court of a State exercising federal jurisdiction with which it has been invested. There is a risk of unconscious assumption that the controlling body of law is that ordinarily applied by the State court under the laws of the State or, at least, that those laws provide the starting point for legal analysis. Such a tendency was apparent in some of the submissions to this Court in all three cases.

  11. The first of the two proceedings for determination here is an appeal by Air Link against Air Link No 2. The issue in that proceeding turns upon the construction of s 34 of the Carriers' Act, in particular the term "is extinguished". It follows from the reasoning in Agtrack that it was only open to Graham DCJ to permit the amendment if in the events that had happened an action had been brought by Mr. Paterson within two years of 25 September 1998.

  12. That raises the issue in the second proceeding, an application for special leave to appeal from Air Link No 1. The issue here is whether, contrary to the decision of the Court of Appeal, an action had been brought by Mr. Paterson under Pt IV and instituted by the Statement of Claim issued on 22 September 2000, and thus within the two year period fixed by s 34 of the Carriers' Act. That issue should be answered favourably to Mr. Paterson. Special leave should be granted in respect of Air Link No 1, the appeal should be treated as heard instanter and should be allowed.

  13. In the exercise by the District Court of federal jurisdiction in the matter arising under Pt IV of the Carriers' Act, there was no footing for the attachment of common law claims, in tort or contract. By force of s 36 of the Carriers' Act, the liability of Air Link to Mr. Paterson under Pt IV was in substitution for any such rights. Section 80 of the Judiciary Act 1903 (Cth) provided that the common law governed the District Court in the exercise of its federal jurisdiction only so far as the common law was applicable and not inconsistent with a federal law such as s 36. Thus the allegations in the Statement of Claim apt to found actions in negligence and contract were surplusage.

  14. The consequence of this outcome in Air Link No 1 is that it was competent for the District Court to grant leave for the filing of the amended Statement of Claim and that the order of the Court of Appeal in Air Link No 2 dismissing the appeal from that order should stand. However, the reasoning of the Court of Appeal for this conclusion turned upon a construction of s 34 of the Carriers' Act which is contrary to that now explained in Agtrack. The result is that the order of the Court of Appeal in Air Link No 2 stands but is to be supported on other grounds.

  15. Reference was made in argument to the earlier decision of the New South Wales Court of Appeal in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 and its significance for the construction of s 34 of the Carriers' Act. Proctor concerned an action by the husband of a passenger killed in the crash of a charter flight involving purely intrastate carriage. The relevant statute was a New South Wales law, the Civil Aviation (Carriers' Liability) Act 1967 (NSW) ("the State Act").

  16. Section 5 of the State Act applied Pt IV of the Carriers' Act as if it was incorporated in the State Act. The Statement of Claim in Proctor had been filed within the time limited by s 34 but the appeal was fought on the basis that the pleading had not been cast in the necessary form to satisfy Pt IV as applied by s 5 of the State Act. An amendment after the two year period to indicate clearly reliance upon the State Act (rather than the Compensation to Relatives Act 1897 (NSW)) was allowed. Priestley JA indicated at 186 that the amendment was allowed under provisions of the Supreme Court Rules (Pt 20, rr 1(1), 4) which had come into force as a Schedule to the Supreme Court Act 1970 (NSW) ("the Supreme Court Act") and which treated amendments as effective from the date of filing of the original pleading.

  17. The State Act was earlier legislation and s 34, as applied by the State Act, was to be read as subject to the later provisions in the Supreme Court Act.

  18. Nothing decided in Proctor touches the present litigation. Here the Carriers' Act directly applies. There may be difficulties in accommodating the reasoning in Proctor to a provision subsequently included in the State Act by the Civil Aviation (Carriers' Liability) Amendment Act 1996 (NSW). Section 6A(1) of the State Act now states:

    It is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State.

    However, the construction of s 6A(1) may be left for another occasion in which it is immediately relevant.

  19. It remains in these reasons to indicate why the appeal in Air Link No 1 should be allowed. This requires further attention to the provisions of Pt IV of the Carriers' Act.

  20. Part IV applies to the carriage of a passenger where the passenger is carried on an aircraft operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract of carriage of the passenger between a place in a State and a place in another State (s 27(1)). Section 27(4) is important for the circumstances of the carriage of Mr. Paterson. This sub-section provides:

    For the purposes of this section, where:

    (a)

    the carriage of a passenger between two places is to be performed by two or more carriers in successive stages;

    (b)

    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

    (c)

    this Part would apply to that carriage if it were to be performed by a single carrier under a single contract;

    this Part applies in relation to a part of that carriage notwithstanding that that part consists of carriage between a place in a State and a place in the same State.

  21. Where Pt IV applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of any personal injury suffered by the passenger resulting from an accident which took place in the course of any of the operations of disembarking (s 28).

  22. Paragraph 4 of the Statement of Claim was expressed in terms which attract s 28. The paragraph read:

    When alighting from [Air Link's] aircraft at Dubbo Airport, at about 4.00 pm, on or about 25 September 1998, [Mr. Paterson] stepped on to a set of stairs at the bottom of the stairway of [Air Link's] aircraft. The set of stairs was not properly and safely positioned and turned over underneath [Mr. Paterson], causing him to fall onto the ground, as a consequence of which he suffered injuries loss and damage.

  23. Paragraph 2 of the Statement of Claim asserted that Air Link was authorised under the Air Transport Act 1964 (NSW) to operate "a commuter and charter airline in New South Wales". There was no allegation that Air Link held an "airline licence" or a "charter licence" as defined in s 26(1) of the Carriers' Act. The definitions in s 26(1) are answered by the existence of an Air Operator's Certificate ("AOC") which is in force under the Civil Aviation Act 1988 (Cth) ("the CAA") and which authorises respectively airline operations or charter operations.

  24. Attention must be given to s 27 of the CAA. Except as authorised by an AOC, Air Link aircraft were not to operate in Australian territory for commercial purposes prescribed by reg 206 of the Civil Aviation Regulations 1988. The commercial purposes so prescribed included the purpose of transporting persons generally for hire or reward in accordance with fixed schedules to and from fixed terminals over specific routes with or without intermediate stopping places between terminals (reg 206(1)(c)), and charter purposes being the carriage of passengers for hire or reward to or from any place not being carriage in accordance with fixed schedules to and from fixed terminals (reg 206(1)(b)). Section 27 is within Pt III of the CAA, as is s 29. Section 29(1)(b) constitutes it an offence for the owner, operator, hirer or pilot of an aircraft to operate the aircraft or permit its operation in contravention of a provision of Pt III.

  25. There is a long-established principle that a person is to be taken to have conformed to the law until "something shall appear to shake that presumption": R v Hawkins (1808) 10 East 211 at 216 [103 ER 755 at 758]; affirmed Hawkins v The King (1813) 2 Dow 124 [3 ER 810]. More particularly, as Lord Ellenborough CJ put it in Williams v The East India Company (1802) 3 East 192 at 199 [102 ER 571 at 574]:

    [the] rule of law is, that where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burthen of proving the contrary, that is, in such case of proving a negative, on the other side.

  26. Accordingly, from the allegation by Mr. Paterson that he had been carried by aircraft operated by Air Link, it was to be taken in favour of Mr. Paterson that Air Link had any necessary AOC. This was to be presumed in favour of Mr. Paterson until the unlikely event of its denial by Air Link.

  27. That the carriage was in the course of operations in which the aircraft was used for hire or reward for the carriage of passengers, and thus "commercial transport operations" within the meaning of s 27(1) of the Carriers' Act[1], appeared from the allegation in par 8 of the Statement of Claim that Mr. Paterson had purchased ticket No 4463500449 on or about 20 September 1998 and that this included Air Link's flight 648 from Cobar to Dubbo on 25 September 1998.

  28. The terms of the ticket which were later in evidence provided for travel on 20 September 1998 between the Gold Coast and Sydney, between Sydney and Dubbo and between Dubbo and Cobar, and on 25 September 1998 from Cobar to Dubbo, Dubbo to Sydney and Sydney to the Gold Coast. The ticket was issued on 20 September 1998 by Qantas Airways Ltd at Coolangatta Airport in Queensland. The carriage between the Gold Coast and Sydney and Sydney and the Gold Coast was to be performed by a carrier other than Air Link.

  29. These circumstances meet the criteria specified in s 27(4) of the Carriers' Act whereby Pt IV applies in relation to carriage between two places in the same State. The carriage of Mr. Paterson was to be performed by two or more carriers in successive stages; it was regarded by the parties as a single operation and Pt IV would apply to the whole of the carriage were it to be performed by a single carrier.

  30. Although the Statement of Claim identified the particular ticket number it did not set out the sectors of carriage for which the ticket provided. However, as explained in Agtrack, the determination of an issue whether an action under Pt IV had been brought within the two year period prescribed by s 34 of the Carriers' Act is not dictated by the rules of pleading, if any, which applied in the court where the action relied upon was instituted. As it happened, Pt 9, r 5 of the District Court Rules 1973 stated:

    Where any document is, or spoken words are, referred to in a pleading:

    (a)

    the effect of the document or of the spoken words shall, so far as material, be stated, and

    (b)

    the precise terms of the document or spoken words shall not be stated, except so far as those terms are themselves material.

  31. Black DCJ had approached the matter correctly and on the footing that a specified ticket had been identified in the Statement of Claim and it was permissible to leave as a matter of evidence the element of interstate carriage indicated by the sectors of travel shown on the face of that ticket. This evidence was admissible on the later determination of a dispute as to whether an action under Pt IV had been brought within time and federal jurisdiction accordingly had been attracted.

  32. The decision of the Court of Appeal in Air Link No 1 turned upon the absence from the Statement of Claim of mention of or reference to Pt IV of the Carriers' Act. However, as has been explained in Agtrack, that absence did not dictate a negative answer to the question of whether federal jurisdiction had been engaged in a matter arising under Pt IV.

  33. The appeal in Air Link No 2 should be dismissed with costs. In respect of Air Link No 1, special leave should be granted, the appeal treated as heard instanter and allowed with costs; orders 2, 3 and 4 of the orders of the New South Wales Court of Appeal entered 27 September 2002 should be set aside and the appeal to the Court of Appeal should be dismissed with costs.

    Kirby J

  34. More than fifty years ago, K M Beaumont, writing on difficulties of construction of the Warsaw Convention on International Carriage by Air ("Warsaw Convention")[2], remarked in "Need for Revision and Amplification of the Warsaw Convention", (1949) 16 Journal of Air Law and Commerce 395 at 411-412

    almost every Article of the existing Convention includes defects or obscurities, and some of them contain several. These are not merely theoretical or technical defects. On the contrary they cause almost daily practical difficulties and problems.

    Despite such difficulties and problems, subsequent revisions of the Warsaw Convention have "addressed only a small proportion of the apparent difficulties with the language" of the original text: South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 334.

  35. Two proceedings are before this Court. They present the latest such difficulties. One is an appeal from a judgment of the New South Wales Court of Appeal (Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388) in proceedings known as Air Link No 2. After the commencement of those proceedings, because of reservations expressed in this Court concerning the disposition of an earlier stage of the dispute between the parties, an application was made for special leave to appeal from that earlier disposition (Air Link Pty Ltd v Paterson [2002] NSWCA 85). That application concerns the proceedings in Air Link No 1.

  36. The two proceedings arise out of an apparent oversight of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Act") on the part of those who originally pleaded the initiating process in the case. The pleader framed the claims in conventional language, expressed as claims for damages for common law negligence and breach of contract. [The relevant paragraphs of the statement of claim are set out in the reasons of Callinan J at [110]]. No such causes of action exist under Australian law in respect of air carriage injuries. They have been abolished by the Carriers' Act. Entitlements under that Act, of a different legal character, have been substituted.

  37. In respect of air carriage within Australia, the Carriers' Act has imported, and applied, as part of Australian municipal law, provisions of the Warsaw Convention, to which Australia is a party. By one such provision (Carriers' Act, s 34; cf Warsaw Convention, Art 29.1), the "right of a person to damages" under that Act is "extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination".

  38. In this matter, an "action" was "brought" by the passenger within the time specified. However, the initiating process made no reference to the Carriers' Act, the applicable Part of that Act, or the substitution there effected of federal statutory entitlements for damages for the common law entitlements purportedly sued for. It is this feature of the case that presents the two central questions in these proceedings. In the application in Air Link No 1, the question is whether the mispleaded "action", brought by the passenger, complies sufficiently with the Carriers' Act so as to avoid the extinguishment of the passenger's right to damages under the applicable Part of that Act. In the appeal in Air Link No 2, the question is whether, if an "action" was not "brought" as required, the right to damages was "extinguished" by the Carriers' Act, forbidding the invocation of State law to permit a subsequent amendment of the pleading to add a cause of action based on the Carriers' Act.

  39. Upon each of these issues, I come to the same conclusion as the other members of this Court. However, I cannot feel the same confidence in the conclusions as my colleagues express: cf In re Hoyles; Row v Jagg [1911] 1 Ch 179 at 184 per Fletcher Moulton LJ. I am conscious that, upon the first issue ("action brought"), this Court is differing from a unanimous opinion of the Court of Appeal of New South Wales in Air Link No 1. Moreover, that is an opinion followed by the Court of Appeal of Victoria (Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63) in the associated appeal heard concurrently with these proceedings[3]. The decisions now reversed on this point are well reasoned and persuasive.

  40. Usually, this Court would refrain from disturbing a conclusion of a State Supreme Court on matters of court rules, practice and procedure: see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 87-88 [40]; In the Matter of an Application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at 897 [96]; 214 ALR 422 at 444; cf R v Elliott (1996) 185 CLR 250 at 257. However, the Carriers' Act imports into air carriage within Australia language derived from the Warsaw Convention and its successors[4]. Therefore, as a matter of logic, a decision on each of the points argued in these proceedings applies to a much wider class of air carriage. Accordingly, the decision must be reached by this Court with close attention to any relevant developments of international law, including decisions of the municipal courts of other states parties to the Warsaw Convention system.

  41. Fifteen years ago, in the New South Wales Court of Appeal in Fernance v Nominal Defendant (1989) 17 NSWLR 710 - a case wholly concerned with State law and without any borrowings from international law - I suggested (in dissent at 730) the need to differentiate a case involving amendments of defective pleading where a party is in "default in expressing the claim" from a case where an attempt is made to breathe life "into an extinct cause of action, overlooked and never acted upon". Now, in the present context, that problem returns to this Court for solution.

  42. In my view, there is a difference, in the application of a statutory limitation of action, between a case where "an action is not brought" at all within the specified time and one where "an action is .... brought" which is defective, but not fatally so, in its expression. It is this distinction that proves determinative in the present case. However, for me, it is a close-run thing. The case is at the borderline, as the reasons of the courts below and the arguments of the parties indicate. In order to refine the reasons for my conclusion, I will demonstrate the not inconsiderable case presented for the opposite outcome.

    "ACTION .... BROUGHT .... WITHIN TWO YEARS"

    THE FACTS AND FEDERAL JURISDICTION

  43. The facts of this matter are set out in other reasons (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ ("the joint reasons") at [1]-[7]; Callinan J at [107]-[115]). Those then representing the plaintiff, Mr. Malcolm Paterson, pleaded a statement of claim in the District Court of New South Wales by which he commenced proceedings against Air Link Pty Ltd ("Air Link"). They did so in an imperfect and defective way: Callinan J at [110]. The applicable provisions of the Carriers' Act are set out in other reasons: Joint reasons at [6], [20]; Callinan J at [119]-[122]. So is a description of the structure and origins of that Act, counterpart State legislation and provisions of the District Court Rules 1973 (NSW) invoked for Mr. Paterson: Joint reasons at [23]-[24], [30]. I will not repeat any of this material. I incorporate it by reference.

  44. In the pleaded circumstances it is now common ground that the only claim for damages that Mr. Paterson enjoyed in law was under the Carriers' Act, a federal law. Likewise it is agreed that, albeit unconsciously, his initiating process necessarily invoked federal jurisdiction, vested in the District Court in accordance with the Constitution, s 77(iii).

  45. A similar case of the unconscious invocation of federal jurisdiction arose in Truong v The Queen (2004) 78 ALJR 473 at 502-503 [163]-[166]; 205 ALR 72 at 112-113. That was a case involving extradition of the applicant to Australia. Accordingly, it attracted the provisions of the Extradition Act 1988 (Cth). A suggested defect in compliance with that Act was only later noticed. It was then claimed that the rule of speciality had not been observed.

  46. In Truong I drew attention to the fact that it is not uncommon for Australian courts to proceed without noticing an applicable federal law. Often they purport to resolve issues which such federal law presents for the outcome of a case without referring to or mentioning that law: (2004) 78 ALJR 473 at 503 [166]; 205 ALR 72 at 112-113 [British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 69 [98] was cited as an illustration]. Nevertheless, the attraction of federal jurisdiction occurs by operation of law. It is not dependent on the intention, awareness or beliefs of the parties.

    APPROACH TO INTERPRETATION

  47. The issue on this aspect of the proceedings (which arises directly in the application for special leave to appeal from the decision of the Court of Appeal in Air Link No 1) is whether Mr. Paterson's "right .... to damages" under the Carriers' Act was extinguished by that Act on the ground that "an action [was] not brought by him .... within two years after the date of arrival of the aircraft". Clearly, an "action" of sorts was "brought". But was it an "action" of the kind to which s 34 of the Carriers' Act referred? Or was it a proceeding (to use a neutral word) that did not amount to an "action" for this purpose?

  48. The question arising as to the meaning of s 34 is the same as that presented by Art 29 of the Warsaw Convention:

    1.

    The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

    2.

    The method of calculating the period of limitation shall be determined by the law of the Court seised of the case.

    [Article 29 of the Warsaw Convention is unchanged in the succeeding modifications of that Convention.]

  49. In accordance with established principles of interpretation governing Australian legislation, designed to give effect to the language of international law to which Australia has subscribed, the expression in the Carriers' Act must, if possible, be given the same interpretation as has been adopted by equivalent courts of other states parties[5]. No differentiation could be drawn on the basis that it was not obligatory for Australia to apply the language of the Warsaw Convention to domestic carriage by air within Australia. Having elected to do so, it must be assumed that an interpretation consistent with any given to the treaty provisions should be adopted, in so far as the treaty language was borrowed.

    JUDICIAL DISPOSITIONS OF THE CASE

    Decision at first instance

  50. Black DCJ, the primary judge in the District Court of New South Wales, rejected Air Link's motion to dismiss the proceedings. He noted that Mr. Paterson's statement of claim had been filed within two years of the accident. He recorded the provisions of s 34 of the Carriers' Act and the abolition by that Act (s 36) of other causes of action different from the statutory remedy there provided for air carriage accidents. However, he pointed out that a pleading in the District Court need contain only a statement in "summary form of the material facts" and not the evidence: District Court Rules 1973 (NSW), Pt 9 r 3(1). He accepted the defects of the pleading so far as reliance on the Carriers' Act was concerned. However, he concluded that it was not necessary for the pleading to name the Carriers' Act expressly. He considered that, on its face, the statement of claim sufficiently notified Air Link that Mr. Paterson was claiming that he was a passenger in air carriage, pursuant to a specified air ticket, on an aircraft operated by the company on a given day which was "duly authorised to operate a commuter and charter airline" and that he had suffered an accident when disembarking the aircraft at Dubbo in New South Wales: Paterson v Air Link Pty Ltd unreported, District Court of New South Wales, 18 May 2001 at 9. [By s 27 of the Carriers' Act, Pt IV applies in identified circumstances to the carriage of passengers within Australia.]

  51. The primary judge therefore found that this statement of the facts was sufficient to engage the Carriers' Act. This meant that the initiating process constituted an "action .... brought within s 34 of the [Carriers' Act]": Paterson v Air Link Pty Ltd unreported, District Court of New South Wales, 18 May 2001 at 9. Black DCJ concluded that it was therefore unnecessary to allow an amendment to the statement of claim. He expressed doubt that there was any power to do so because it would amount to "backdating .... to revive a matter which is subject to Commonwealth legislation": Paterson v Air Link Pty Ltd unreported, District Court of New South Wales, 18 May 2001 at 10.

    Decision of the Court of Appeal

  52. The Court of Appeal disagreed. Its reasons were given by Sheller JA. His Honour set out the language of the statement of claim. The only available explanation for the facts pleaded was that they were intended to support causes of action framed in tort and contract. They did not plead the statutory cause of action. Whilst conceding that a reader could derive from the pleading "sufficient to conclude that the plaintiff was to be carried in an aircraft in the course of commercial transport operations", Sheller JA regarded it as significant that there was no recital that Air Link was the "holder of an airline licence" or that the contract in question was one (as further facts disclosed) of interstate carriage:

    The statement of claim was directed to an action in tort and an action for breach of contract which is the antithesis of a claim based on absolute liability under Pt IV of the [Carriers'] Act.

    [Air Link No 1 [2002] NSWCA 85 at [32]]

  53. It was inherent in this conclusion that the Court of Appeal was of the view that Mr. Paterson's action was "not brought" within two years because that expression had to be read as meaning an "action" sufficiently clearly brought under Pt IV: Air Link No 1 at [33]. On the approach taken in Air Link No 1, the alternative question of amendment of the statement of claim arose for decision. Following this decision, Mr. Paterson applied to the District Court to resolve that question.

    ISSUES FOR DECISION ON THE "ACTION .... BROUGHT" QUESTION

    Content of "action" undefined

  54. Neither the Carriers' Act, nor the Warsaw Convention, contains any definition of what is required for the bringing of an action, so as to escape the consequences of extinguishment provided for in the case of default. The Court of Appeal was correct to conclude that it would not be sufficient for a passenger, making a claim for damages under Pt IV of the Carriers' Act, to commence an action expressed in any terms at all. The "action" must be a claim for damages brought by the passenger or for his benefit and within the specified time. But, otherwise, the content of the "action" is unspecified. It is left to local law and practice.

  55. That conclusion is harmonious with the provisions of Art 28.2 of the Warsaw Convention that "[q]uestions of procedure shall be governed by the law of the Court seised of the case". It is also consistent with the terms of Art 29.2, committing the calculation of the period of limitation to such a court. Obviously, neither the Warsaw Convention, nor the Carriers' Act adopting its terms, could deal with every conceivable variation in factual circumstances, including in the constitution of an "action" brought to pursue the right to damages given by law.

    Characterisation of the process

  56. It follows that the essential issue in this part of these proceedings is whether, by the characterisation of the "action" constituted by Mr. Paterson's original statement of claim in the District Court, it can be said, with reference to any applicable local law and practice, that an imperfect, defective yet sufficient "action" was brought. Or are the imperfections, defects and insufficiencies of Mr. Paterson's pleading such as to deprive the initiating process of the character of "an action", sufficient to satisfy s 34 of the Carriers' Act?

  57. Issues, so stated, are unsatisfying. They invoke impressions and judgments upon which minds will inevitably differ. There is no ultimate certainty, because each case will depend upon its own facts, specifically an analysis of the language of the contested pleading to decide whether, read as a whole, it constitutes the initiating document of an "action" that is "brought" under the Carriers' Act or not. It was this very imperfection in the arguments for Mr. Paterson (and concern for their implications for cases under the Warsaw Convention and it successors) that led Air Link to press for more precise criteria, such as the Court of Appeal had demanded.

  58. The arguments of Air Link on this point are meritorious. For a time, they persuaded me. Out of respect for those who have accepted them[6], I will set out what seem to me to be the best points favouring this approach. I will then explain why I come to the opposite conclusion.

    ARGUMENTS FOR A STRICT MEANING OF "ACTION .... BROUGHT"

    Pleading of superseded claims is ineffective

  59. A number of arguments support Air Link's defence of the Court of Appeal's conclusion in Air Link No 1. Many of them are derived from Sheller JA's reasons in that Court.

  60. Thus, it is clear beyond argument that the pleader in this case did not intend to plead an action based on the Carriers' Act but only one based on the common law of negligence and contract. In this respect, the statement of claim followed familiar language. Yet by federal law (the validity of which is unchallenged), such common law rights had been abolished. Civil liability of air carriers has been substituted, based on substantially different legal principles. Following the Warsaw Convention, common law notions of fault and obligation have been replaced by strict liability. Moreover, events otherwise giving rise to legal claims are replaced by the need to prove an "accident": Povey v Qantas Airways Ltd (2005) 216 ALR 427 at 453 [111]. The price of the new legal entitlements is a limitation on the amount of damages that may be recovered from an air carrier: Carriers' Act, s 31. A strict time limit is fixed for the bringing of actions, after which the right to damages is "extinguished": Carriers' Act, s 34.

  61. Here, according to Air Link, the "action" brought by Mr. Paterson was not one for the only right now given in such circumstances by Australian law, viz that under Pt IV of the Carriers' Act. It was for a superseded right that no longer exists. It was therefore misconceived, unless it could be retrospectively amended and completely re-expressed.

    A degree of precision in "actions" is implied

  62. Where the Federal Parliament has effectively abolished earlier forms of civil liability of air carriers, Air Link argued that courts should not struggle to reinterpret actions clearly framed in terms of superseded law so as to change their character into something they were not intended to be: actions based on the Carriers' Act.

  63. Given the time limit and serious consequences of default ("extinguishment"), a degree of precision in the "action" that is brought could be imputed to the Parliament (and the Warsaw Convention) by the requirement stated in s 34. That statement should therefore not be robbed of content.

    The recognition of federal jurisdiction

  64. The importance of clarity in the identification of the "action" (and of recognising that it is based on the Carriers' Act and not the common law) is also demonstrated by the consequences that follow. These include a need for an election between commencement of the proceedings in the Federal Court of Australia or a State court (with their differing procedures and rules) and recognition that the action involved the invocation of federal jurisdiction. Too lax a view as to the necessities of specificity in the content of the "action" rewards those who fail to recognise and express the law governing the case.

    Upholding the purposes of accurate pleading

  65. Whilst some measure of leniency has replaced the former strictness observed in pleading practice (Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167-172), the objectives of accurate pleading remain. They include the fair notification to the opposite party of the legal character of the claim being brought against it: Bullen & Leake and Jacob's Precedents of Pleadings, 12th ed (1975) at 17. The defendant should not be obliged, in cases of serious omissions in, or departures from, accuracy in pleading a claim, to guess the nature of that claim and to assume its viability. Those who assert must still prove. If they assert completely misconceived and inapplicable claims, the defendant should not be required to interpret the defective process in a way favourable to the plaintiff, on the hypothesis that it is legally viable. Air Link contested the suggestion that it should assume the responsibility of differentiating substance from surplusage in the originating process and subject the language of that document to a strained construction in order to derive from it the legal foundation needed, when those representing Mr. Paterson had failed to specify that foundation.

    Avoiding impositions on the recipient of the action

  66. It may be accepted that specification of the Carriers' Act, or any other statute essential to a viable "action", although good pleading practice, is not an absolute prerequisite to the bringing of an "action" within s 34 of the Carriers' Act: Hatfield (2001) 183 ALR 674 at 681 [33] per Ashley J. However, Air Link's complaints went far beyond this. Air Link contested the suggestion that an adequate "basket of facts" had been pleaded that permitted characterisation of the "action" "brought" by Mr. Paterson as one under Pt IV of the Carriers' Act. Thus, there was no recital of facts that, Air Link argued, were essential to bring an "action" within Pt IV. There was no allegation that Air Link held an "airline licence". There was no allegation that what had happened to Mr. Paterson was an "accident", a precondition to recovery not without difficulties as Povey v Qantas Airways Ltd (2005) 216 ALR 427 demonstrates. Far from there being recitals to characterise the carriage in question as one "between a place in a State and a place in another State", the statement of claim, in its terms, suggested that the carriage was purely intrastate: See Carriers' Act, s 27.

  67. According to Air Link, the problem was therefore not one of surplusage or inadequate description in the facts pleaded but misdescription and misconception that deprived the "action" of the essential character necessary (without substantial amendment impermissible out of time) to enliven rights to damages under the Carriers' Act. According to Air Link, this was not a case where a party had "not quite hit the mark" with its original pleading [Harris v Raggatt [1965] VR 779 at 785 per Sholl J]. It was one involving a fundamental disparity between what had been pleaded and what it was now asserted the "action" truly meant on its face.

    Respecting characterisation by the court below

  68. To the extent that s 34 of the Carriers' Act imported appropriate reference to pleading practice and the rules of the court in which the purported "action" had been brought, in order to decide whether in the particular case an "action" had been "brought" as required under Pt IV of the Carriers' Act (Fernance (1989) 17 NSWLR 710 at 720 per Gleeson CJ), Air Link suggested that this Court should respect the judgment of the Court of Appeal in evaluating the original statement of claim. When it held that the pleading did not meet the contemporary requirements of court rules and the common law, such an assessment constituted a decision on the standards of the particular court and should be upheld.

  69. According to this argument, such standards are proper matters for judgment and the application of the procedural approach of the court "seised of the case": Warsaw Convention, Art 28.2. Although Art 28.2 of the Warsaw Convention was not repeated in Pt IV of the Carriers' Act, the same approach was inherent in the recognition in s 34 that, within Australia, an "action" might be "brought", in pursuit of a person's right to damages, in any Australian court, federal or State, of competent jurisdiction. All such courts have rules, of varying degrees of particularity, governing the initiation of proceedings and the requirements for validly doing so.

  70. The adequacy of a particular pleading for this and other purposes is a question commonly considered by courts such as the Court of Appeal: See e.g. Wickstead v Browne (1992) 30 NSWLR 1; Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135. Such courts recognise the difference between provisions in initiating process, drawn with other entitlements in mind but which sufficiently plead a claim of a different character - which should be taken as included - and cases that do not. In the present case the Court of Appeal considered that 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. This Court was urged to confirm that assessment and to uphold the Court of Appeal's conclusion on such a matter.

  71. To the extent that there was any doubt, Air Link also urged that, the language of s 34 of the Carriers' Act being identical to the limitation in the Warsaw Convention, this Court should follow the trend to strictness in overseas authority on analogous issues concerning the meaning of the Convention.

  72. There can be no doubt that the introduction of a strict time limitation was a part of the deliberate compromise that was struck in achieving agreement on the Warsaw Convention: Kahn v Trans World Airlines Inc 443 NYS 2d 79 at 87 (1981); Fishman v Delta Air Lines Inc 132 F 3d 138 at 144-145 (2d Cir, 1998). During its negotiation, proposals were made that would have allowed exceptions to the two year period in Art 29.1 of the Convention in accordance with the law of the forum court. However, such proposals were not adopted. The only question expressly assigned to the law of the forum in this respect was the strictly limited one, namely how the period of two years was to be calculated[7]. This is why the law of the forum may not be used to interrupt the two year period specified, as for example during infancy or bankruptcy[8]. In this case, the time bar was short, strict and rigid.

  73. Although there is no settled jurisprudence of overseas decisions on when an "action" is "brought", Air Link suggested that the context in the Warsaw Convention supported the strict approach taken by the Court of Appeal in its first decision. Where, as in this case, Australian municipal law had provided expressly for a special form of "action" conforming to the Warsaw Convention, the "action" to be "brought" would, at the least, have to be sufficiently clear and specific as to indicate that it was invoking that municipal law. Otherwise, it would not be an "action" of the kind permitted. It would lack the character necessary to an "action". A court would not distort that character simply because an "action" of a different and erroneous kind had been brought within the two year period allowed for an "action" enlivening the special "right .... to damages" now alone afforded by Australian law.

  74. It will be evident that I regard these arguments as providing substantial reasons for upholding the Court of Appeal's judgment in Air Link No 1. In the end, however, I have reached the opposite conclusion. I will explain why.

    CONCLUSION: AN "ACTION" WAS "BROUGHT"

    International operation: inevitable variations

  75. The Warsaw Convention, which was the origin of the contested phrase in s 34, contemplated that its provisions would operate throughout the world: Reasons of Callinan J at [124]; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 at [75] [see para [226] below]. Where there is no definition in the Convention (or the Carriers' Act) of the preconditions for the bringing of an action for limitation purposes, it is proper to draw necessary inferences as to how such a provision would operate, given the vastly differing circumstances of municipal courts and tribunals and local law as to initiating process and related practice.

  76. Even within Australia, the courts in which federal jurisdiction may be vested vary greatly in the degree of formality required by their initiating pleading and in the detail conventionally observed. In recent years, Australian courts have tended to replace simple uncommunicative process (an ordinary writ), which conveyed no, or no substantial, indication of the nature of the action or claim, with process that identifies the subject matter with a degree of particularity: JL Holdings (1997) 189 CLR 146 at 168. Contrast Common Law Procedure Act 1899 (NSW), s 4 and Supreme Court Rules 1970 (NSW), Pt 7 r 1, Sched F, Form 1. At the same time, the former strictness that accompanied the older style of pleadings, in courts of pleading, has sometimes given way to a more discursive style. These changes render unsafe reference to some earlier judicial authority. If such disparities and variations exist within the unified Australian judicature, it must be expected that even greater variations will exist in the courts and tribunals of the many states parties to the Warsaw Convention. That is inherent in an international system of such widespread application.

  77. In most countries (including Australia) litigants with claims of rights to damages are entitled to represent themselves before courts and tribunals and to bring an action on their own behalf, without legal representation. Many do - Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, (2000) at 359-360 [5.147]. It must have been anticipated that the Warsaw Convention would apply to actions brought by such persons. It was certainly contemplated that s 34 of the Carriers' Act, as an Australian statute, would apply to such persons. The contested words were intended to apply to all such cases all over the world. This is a further reason why the Convention phrase (repeated in the Act) must be given a meaning that works sensibly in the vastly different circumstances in which initiating process is drafted by people of different skills, in different legal cultures and in different countries, including Australia. It is a reason for inferring that the contested provision was not intended to have an overly rigid interpretation that would defeat claims for damages, although brought by a formal process within the given period of two years.

    Adopting a purposive interpretation

  78. In giving effect to the language of the Warsaw Convention, as enacted in terms of s 34 of the Carriers' Act, it is proper to do so, in default of express provisions defining the procedures by which an "action" may be "brought", in a way that assists the achievement of the purposes of the Convention.

  79. A purposive approach to the construction of legislation (such as the Carriers' Act, including s 34) is now mandated in Australia by federal law: Acts Interpretation Act 1901 (Cth), s 15AA. See also s 15AB. Moreover, it is repeatedly observed in the common law and in the decisions of this Court: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 111-113; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78]. However, some of the earliest, and strongest, statements about purposive interpretation in common law courts appeared in the elaboration of the Warsaw Convention itself. Thus in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282; Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 at 633 [5], 634 [7], 677-679 [146]-[150], Lord Diplock in the House of Lords explained:

    The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

    The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [[1978] AC 141 at 152], 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.'

    [See also Povey (2005) 216 ALR 427 at 456-457 [131].]

  80. The special need, in the case of the Warsaw Convention, to consider two texts, the French and the English, has added to difficulties of construction, rendering a purposive approach the appropriate and safe course to adopt: Fothergill [1981] AC 251 at 272 per Lord Wilberforce. See also South Pacific Air Motive (1998) 87 FCR 301 at 333-334..

  81. When this approach is taken to the requirement in Art 29.1 of the Warsaw Convention (repeated with no relevant differentiation in s 34 of the Carriers' Act), a purposive approach encourages a court, construing the provision, to ask why it was so expressed. In particular, why is it stated in such drastic terms, contemplating the extinguishment of the "right .... to damages" where such right had not been claimed in the form of an "action .... brought by him or for his benefit" within the relatively short time interval nominated?

  82. The answer, previously identified, is that this was part of the compromise hammered out in international negotiations. The participants included wealthy and poor countries; countries already with substantial civil aviation and those without; countries concerned about the rights of plaintiffs who had experienced difficulty in proving the cause of air mishaps and establishing conventional requirements of fault and obligation; and countries with governmental air carriers concerned about the extent of their potential liability and keen to be in a position to identify that liability so that they could provide, where desired, for insurance and reinsurance cover: Povey at 456 [129].

  83. If these considerations afford the touchstone for interpreting the phrase "if an action is not brought" in this context, it is tolerably clear that the purpose of that precondition is the need to ensure a formal invocation by the person claiming the right to damages of the jurisdiction of a court or tribunal; the identification by that person in the initiating process of a claim to a "right .... to damages"; the nomination of the claim as one arising out of "carriage" on an "aircraft"; and the commencement of the proceedings "within two years" of the specified aircraft carriage. If the foregoing elements are present, the terms of Art 29.1 of the Warsaw Convention and of s 34 of the Carriers' Act are fulfilled. In that case, the drastic consequence of default, namely entire extinguishment of the right to damages, does not arise.

  84. Tested by these standards, the action brought by Mr. Paterson in the District Court conformed to the statutory (and Convention) language. In effect, the error of the Court of Appeal, in concluding otherwise, was the result of failing to give the language of s 34 a purposive construction. Particularly so when its origin, and operation, within the Warsaw Convention language is to be considered, in all of its differing applications in different countries by different decision-makers.

    The determinant of federal law

  85. The foregoing does not mean that any "action" at all, brought within the interval of two years, would satisfy the Convention and statutory language and save the person with a claim to damages from extinguishment of that right. The process must still qualify as an "action", relevantly one under the Carriers' Act. However, it is important to recognise that, in Australia, the right to damages is one conferred by federal law.

  86. Compliance, or non-compliance, with State laws as to procedure and pleading will be relevant in deciding whether the initiating proceeding may be characterised as an "action" falling within s 34 of the Carriers' Act. But the State laws are not themselves determinative of the entitlement. Similarly, disentitlement, by way of extinguishment of a right to damages, must be sourced to federal law (not State procedural or pleading law as such). It is for these reasons that, ultimately, the question to be answered is a question of federal law, not one about compliance, or non-compliance, with State pleading law or rules of court. The question is whether "an action is not brought" under Pt IV of the Carriers' Act as that phrase is intended to operate for its purpose, relevantly, in s 34 of that Act.

  87. A specific reason why State laws as to procedure and pleading cannot control the meaning of the expression "action is not brought" in s 34 of the Carriers' Act is that the Act, as a federal statute, is expressed to operate throughout Australia. Indeed, by adopting in Pt IV the language of the Warsaw Convention, it is designed to introduce uniform international notions both for the entitlement to damages in respect of accidents in air carriage and as to the extinguishment of that entitlement. By invoking the jurisdiction of differing courts, persons claiming the right to damages in Australia will secure procedural and other entitlements and be subject to various requirements. However, these cannot alter the essential elements of an "action" that qualifies under s 34.

  88. In the application of State law and court rules other consequences might follow for the pleading of a claim and the adequacy of initiating process. But, for the question presented here, the legal criterion is afforded by the Carriers' Act, s 34, a federal law, and, to the extent that it incorporates the same language, the Warsaw Convention and the meaning given to it. With respect, these federal and international considerations were not given proper attention in the courts below.

    The action identified the claim's essentials

  89. When the foregoing elements are introduced into the assessment of whether Mr. Paterson's statement of claim sufficiently answers to an "action .... brought by him" within the time specified by s 34 of the Carriers' Act, the answer given differs from that reached by the Court of Appeal in Air Link No 1.

  90. True, the pleading of the statement of claim is inadequate by orthodox pleading standards and, perhaps, by State court rules and practice. However, these cannot determine the character of the "action" for present purposes. Certainly, the "action" claims a right to damages. It is brought by Mr. Paterson who is identified as an air passenger. It concerns carriage by an aircraft. It specifies the date of the carriage. It sufficiently nominates the circumstances of an event that is clearly capable of description as an "accident". It makes it clear that the carriage was in the course of "commercial transport operations" which, in Australia, requires the carrier to be the holder of an airline licence or a charter licence.

  91. The notion that, receiving the statement of claim, Air Link was in any way surprised or misled by Mr. Paterson's action is fanciful. On the contrary, Air Link's notice of grounds of defence specifically pleaded that it was the holder of an air operator's certificate in force under the Civil Aviation Act 1988 (Cth) and that the aircraft, carrying Mr. Paterson, was operated by it "for reward for the carriage of passengers" as part of a journey in a ticket issued by another carrier for interstate carriage and was subject to Pt IV of the Carriers' Act.

  92. Obviously there were mistakes and inadequacies in the facts pleaded in the statement of claim. But the character of Mr. Paterson's action was clear enough. To plead it correctly under Pt IV of the Carriers' Act, no new ideas were required. Clearly, it would have been preferable for the pleading to have addressed the Carriers' Act and its terms. However, the fundamental purpose of pleading is to state the essential facts that notify the opposite party of the claims being made. It is not normally essential to plead the applicable law: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 472-473; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245.

  93. Measured against the language and purpose of s 34 of the Carriers' Act (and Art 29.1 of the Warsaw Convention), the process begun in the District Court within the two year interval was an "action" that was "brought" within time. The opposite conclusion was erroneous.

    Conclusion: correction required

  94. Whilst I agree that this Court will normally respect conclusions of the Court of Appeal on questions of practice and procedure, including pleading, we are relieved of any obligation to do so in this case. This is because that Court failed to give adequate weight to the federal character of the right of action applicable to the case, the federal specification of the conditions for extinguishment of that right and the proper approach to ascertaining the meaning of those provisions, especially given the source of s 34 in the text of Art 29.1 of the Warsaw Convention.

  95. This is the reasoning that brings me, on the first issue, to the same conclusion as that reached by the other members of this Court.

    "THE RIGHT .... IS EXTINGUISHED"

    CONSEQUENTIAL DECISIONS BELOW

  96. The foregoing conclusion means that the primary judge was correct in deciding that Mr. Paterson's imperfectly pleaded statement of claim nonetheless amounted to an "action" that was "brought" by him within two years of the date of the arrival of the aircraft. It thus means that the right of Mr. Paterson to damages under Pt IV of the Carriers' Act was sufficiently placed before the District Court by the action that he brought. In accordance with federal law, it fell to be decided by that Court, vested for that purpose with federal jurisdiction.

  97. In consequence of this conclusion, the action being brought within the specified time, Mr. Paterson's right to damages was not "extinguished". To the extent that it was not extinguished, questions as to the amendment of the statement of claim, to add a new and different cause of action, purportedly with relation back to the date when the statement of claim was first filed[9], do not arise.

  98. It is true that, in order to clarify the valid "action" that has been "brought" by Mr. Paterson, some amendments of the statement of claim may be needed. Such amendments present an entirely different question from that considered by the second judge of the District Court (Graham DCJ) (Paterson v Air Link Pty Ltd unreported, District Court of New South Wales, 16 May 2002. Those decisions proceeded on the footing, established by the Court of Appeal's holding in Air Link No 1, that Mr. Paterson's original statement of claim was "an action .... not brought by him .... within two years after the date of arrival of the aircraft" within s 34 and hence that his right of action had been "extinguished". The decision of this Court now holds that this premise for the reasoning in Air Link No 2 was incorrect. No question of the extinguishment of Mr. Paterson's right to damages arises.

    RESULTING CORRECTION OF THE RECORD

  99. In one sense, it is unnecessary, and thus undesirable, to consider at any length the decision of the Court of Appeal in Air Link No 2, for which special leave was earlier provided. This is because anything now said in that matter amounts to obiter dicta. The premise for its resolution has been removed. All that remains is a consequential correction of the record in the light of the decision in Air Link No 1. If Mr. Paterson's action is not "extinguished" by s 34 of the Carriers' Act, no occasion arises to decide whether, if that had been so, it would have been competent for the District Court to permit the amendment of the original statement of claim to add a new cause of action based on the Carriers' Act. Inherent in this Court's earlier reasoning is a conclusion that such a cause of action was adequately stated in the "action" that Mr. Paterson "brought".

    THE FINALITY OF "EXTINGUISHMENT"

  100. Nevertheless, as other members of this Court in these proceedings, and in the associated appeal in Agtrack [2005] HCA 38 at [45]-[54] [see paras [159]-[204] below] in the joint reasons and at [108] in the reasons of Callinan J, have expressed conclusions about the finality of extinguishment effected by the Carriers' Act, and the inadmissibility of State law (or State court rules) to subvert that finality, it is appropriate for me to say that I agree in their conclusion.

  101. Having regard to the source of the word "extinguished" and its purposes as revealed by the travaux préparatoires for the Warsaw Convention, Art 29.1; the object of that provision to secure the compromise there agreed; the virtually unanimous interpretation of international decisions and commentators (Kahn 443 NYS 2d 79 at 87 (1981); Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1, par VII[443]); and the convincing opinions on the point in the South Australian Full Court in Timeny v British Airways plc (1991) 56 SASR 287 and by the Court of Appeal in Air Link No 2 (2003) 58 NSWLR 388), there are overwhelming reasons for holding that "extinguished" in s 34 of the Carriers' Act means exactly what it says. Where the action is not brought within the two year period, the right to damages, which might otherwise arise under Pt IV of the Carriers' Act, is "extinguished, dead and gone forever": (1991) 56 SASR 287 at 301 per Bollen J (Cox J agreeing). See Air Link No 2 (2003) 58 NSWLR 388 at 437 [233] per Ipp JA.

  102. In the face of federal law having such a meaning, no State law (including a rule of court permitting amendment of pleadings) could validly operate to contradict the federal provision and resuscitate the extinguished action. Any such State law would not be "picked up" by s 79 of the Judiciary Act 1903 (Cth): See Agtrack [2005] HCA 38 at [59]-[60] [see paras [209]-[210] below]. Alternatively, before the commencement of such proceedings, s 109 of the Constitution would operate to invalidate a State law to the extent, if at all, that it purported to apply to the case in terms inconsistent with s 34 of the Carriers' Act: See Agtrack [2005] HCA 38 at [61] [see para [211] below].

  103. It follows that, on the premise upon which it was obliged to act, the Court of Appeal in Air Link No 2 erred in its reasoning. The dissenting opinion of Ipp JA is to be preferred.

  104. However, the true foundation for the disposition of the appeal in Air Link No 2 is otherwise. The orders in that appeal follow from the conclusion of this Court in Air Link No 1 that Mr. Paterson's action was brought within the time specified by s 34 of the Carriers' Act and thus was not "extinguished". It is competent for the District Court to allow any amendment of the pleading in the "action" that it would otherwise permit in any other viable claim to damages, uninhibited by federal extinguishment of that claim.

    ORDERS

  105. I agree in the orders proposed in the joint reasons.

    Callinan J

  106. This case was argued at the same time as Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 because both cases raised essentially the same point. The reasons in them should therefore be read together. There is yet to be a trial in the matter, the facts and proceedings in which I will shortly summarize. The question which they raise is whether the respondent's action is statute barred.

  107. On 25 September 1998, the respondent was injured as he disembarked from the appellant's aeroplane at Dubbo in New South Wales following a flight from Cobar in the same State. That flight, as the appellant pleaded in its defence, was a segment of a journey from an airport in Queensland on a ticket issued by Qantas Airways Limited, a major airline operator in Australia and overseas. It was therefore a journey in the course of interstate travel under a contract of carriage, relevantly governed by Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act"). The respondent alleges that his injuries were caused by the negligent placement by the appellant of a moveable staircase extending from the aircraft to the tarmac.

  108. As appears from the pleadings, the appellant is the operator of an airline under a licence issued pursuant to the Air Transport Act 1964 (NSW).

  109. On 22 September 2000, the respondent brought an action against the appellant in the District Court of New South Wales, claiming damages in negligence and contract. The respondent's initiating process was filed shortly before the expiration of two years after the respondent's journey, the limitation period imposed by s 34 of the Act.

  110. The respondent's pleading made these allegations:

    2.

    At all material times, the Defendant was authorised under the Air Transport Act 1964 to operate a commuter and charter airline in New South Wales.

    3.

    On or about 25 September 1998, the Plaintiff was a passenger on the Defendant's flight number 648 from Cobar to Dubbo.

    4.

    When alighting from the Defendant's aircraft at Dubbo Airport, at about 4.00 pm, on or about 25 September 1998, the Plaintiff stepped on to a set of stairs at the bottom of the stairway of the Defendant's aircraft. The set of stairs was not properly and safely positioned and turned over underneath the Plaintiff, causing him to fall onto the ground, as a consequence of which he suffered injuries loss and damage.

    5.

    The injuries loss and damage sustained by the Plaintiff were as a result of the negligence and/or breach of duty of care of the Defendant by its servants or agents.

    ....

    8.

     

    Further, and or in the alternative, on or about 20 September 1998, the Plaintiff purchased from the Defendant, through its agent, Qantas Airways Limited, ticket number 4463500449, including for the Defendant's flight 648 from Cobar to Dubbo on 25 September 1998.

    9.

    It was an implied term of the agreement between the Plaintiff and the Defendant that the Defendant would transport the Plaintiff in its aircraft in a safe and proper manner.

    10.

    In breach of the term of the agreement, the Defendant did not transfer the Plaintiff in a safe and proper manner, and the Plaintiff relies upon the particulars set out in paragraphs 3-10 inclusive of this Statement of Claim.

    11.

    As a result of the breach by the Defendant of the term of the agreement, the Plaintiff has sustained injuries loss and damage as particularised in this Statement of Claim, and in his Particulars Pursuant to Part 9 Rule 27.

  111. In its defence, the appellant alleged the following:

    10.

    The Plaintiff travelled on the aircraft operated by the Defendant between Cobar and Dubbo on 25 September 1995 pursuant to a ticket issued by Qantas Airways Ltd for carriage from Gold Coast to Cobar and return.

    11.

    The carriage of the Plaintiff between Gold Coast and Cobar and return was regarded by the parties as a single operation agreed upon by a single contract evidenced by the said ticket.

    12.

    The carriage of the Plaintiff by the Defendant between Cobar and Dubbo was carriage on an aircraft operated by the holder of an air operator's certificate authorising airline and charter operations in the course of commercial transport operations pursuant to a contract for the carriage of the Plaintiff from a place in Queensland to a place in New South Wales and subject to Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth).

    13.

    The liability of a carrier under Part IV of the Civil Aviation (Carriers' Liability) Act 1959 in respect of the Plaintiff's alleged injuries is in substitution for any civil liability of the carrier under any other law in respect of the alleged injuries.

    14.

    In the premises the proceeding pleaded in the Statement of Claim is not maintainable and is liable to be dismissed.

  112. Subsequently, after the limitations period had expired, the respondent sought leave to amend his statement of claim by withdrawing his claims in tort and contract and substituting for them, a claim based exclusively on Pt IV of the Act. Both parties agreed that the appellant's pleading, to the extent quoted, was factually and legally correct, that Pt IV of the Act did apply to the respondent, and defined the appellant's sole obligations and liability to him. Leave to amend accordingly was granted by the District Court (Judge Graham) on 16 May 2002. The nature and result of an earlier application (Air Link Pty Ltd v Paterson [2002] NSWCA 85) by the appellant are fully dealt with in the reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

    THE COURT OF APPEAL OF NEW SOUTH WALES

  113. The appellant appealed against the decision of Graham DCJ. The respondent submitted that Pt 17 r 4 of the District Court Rules 1973 (NSW) ("the Rules") contemplated and allowed amendment out of time, and that r 4 had been picked up and applied by s 79 of the Judiciary Act 1903 (Cth).

  114. On 11 September 2003, the Court of Appeal (Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; Mason P and Beazley JA, Ipp JA dissenting) dismissed the appeal. The majority held that r 4 was both validly made and applicable to substantive limitation periods. Their Honours further found that the rule retained its procedural character despite its intrusion into an area of substantive law. The majority also held that r 4 was picked up and applied as a surrogate federal law by virtue of s 79 of the Judiciary Act. They were of the opinion that s 79 could pick up substantive State laws, even those relating to limitations, assuming that they were not inconsistent with a relevant federal enactment. In this case the majority thought that s 34 of the Act and r 4 operated in different spheres: the former dealt with time limits for bringing actions; r 4 was concerned with pleadings and their amendment.

  115. The view of Ipp JA was that the respondent's amendments reached beyond the scope of r 4. This was so because the respondent sought to plead new facts rather than revising facts already pleaded. His Honour was also of the view that r 4 could be valid only if it were confined to procedural limitation provisions. It could not operate to permit the introduction of new causes of action which had otherwise been extinguished by lapse of time. His Honour thought that rules which purportedly allowed the courts to extend limitation periods, by relating claims back to the date that proceedings (absent those claims) were commenced were not merely procedural: this was so because they substantially extended the limitation periods beyond their expiry date. Ipp JA was also of the opinion that r 4 could not be picked up as a federal law by the Judiciary Act because it would be in conflict with the Act and would therefore attract the operation of s 109 of the Constitution.

    APPEAL TO THIS COURT

  116. In this Court the appellant substantially adopted the reasoning of Ipp JA in the Court of Appeal. It argued that compliance with s 34 of the Act was a condition precedent to the exclusive right to sue for damages given to the respondent by Pt IV of the Act: the respondent's failure to comply with it was incurable either by the Rules or otherwise.

  117. The appellant submitted that the filing of the respondent's statement of claim did not amount to an "action .... brought" by the respondent within the meaning of s 34 of the Act: the effect of that section was to extinguish the respondent's cause of action two years after the date of the accident.

  118. The respondent submitted that Pt 17 r 4(1), (5) and (5A) of the Rules have the effect of deeming his amended statement of claim, filed on 30 May 2002, to have been filed on 22 September 2000. In consequence, the respondent contended, he had brought action within two years as required by s 34 of the Act.

    STATUTORY PROVISIONS

  119. It is necessary to set out the relevant sections of the Act. Section 27 provides:

    27.

    Application of Part

    ....

    (3)

    For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be.

  120. The respondent's journey, and each segment of it were accordingly interstate travel by air and therefore subject to the Act. Disembarkation from an aircraft forms part of a relevant journey pursuant to s 28 of the Act which provides 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 personal 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.

    Section 31 which is as follows (together with s 36) makes provision for a remedy under the Act in lieu of any remedies that might otherwise be available under State or federal law.

    31.

    Limitation of liability

    (1)

    Subject to the regulations relating to passenger tickets, the liability of a carrier under this Part in respect of each passenger, by reason of his injury or death resulting from an accident, is limited to:

    (a)

    where neither paragraph (b) nor paragraph (c) applies - $100,000;

    (b)

    where, at the date of the accident, a regulation was in force prescribing an amount higher than $100,000 for the purposes of this subsection but paragraph (c) does not apply - the amount prescribed by that regulation; or

    (c)

    where an amount that exceeds:

    (i)

    if, at the date of the accident, no regulation was in force as mentioned in paragraph (b) - $100,000; or

    (ii)

    if, at the date of the accident, a regulation prescribing an amount was in force as mentioned in paragraph (b) - the amount prescribed by that regulation;

    is specified, in the contract of carriage pursuant to which the passenger was carried, as the limit of the carrier's liability - the amount so specified.

    Section 34 sets out the limitation period and provides as follows:

    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 for his 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.

    Section 36 provides:

    36.

    Liability in respect of injury

    Subject to the next succeeding section, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

  121. For completeness it should be noted that Pt IV of the Act is directly applied to intrastate travel by the Civil Aviation (Carriers' Liability) Act 1967 (NSW), but it is the former directly, and not the latter which is applicable here by reason of s 27 of the Act.

  122. Part 17 r 4 of the Rules effectively changes the relevant common law and provides:

    4.

    Statutes of limitation

    (1)

    Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.

    ....

    (4)

     

    Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.

    (5)

    Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.

    (5A)

    An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing of the statement of claim.

    (6)

    This rule does not limit the powers of the Court under rule 1.

    Reference should also be made to rr 3, 5 and 7 of Pt 9 of the Rules which are concerned with the contents of originating processes in the District Court.

    3.

    Facts, not evidence

    (1)

    A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.

    (2)

    Subrule (1) has effect subject to this Part and to Part 5.

    5.

    Documents and spoken words

    Where any document is, or spoken words are, referred to in a pleading:

    (a)

    the effect of the document or of the spoken words shall, so far as material, be stated, and

    (b)

    the precise terms of the document or spoken words shall not be stated, except so far as those terms are themselves material.

    7.

    Conditions precedent

    Where it is a condition precedent necessary for the case of a party in any pleading that:

    (a)

    a thing has been done,

    (b)

    an event has happened,

    (c)

    a state of affairs exists, or existed at some time or times,

    (d)

    the party is and has been at all material times ready and willing to perform an obligation, or

    (e)

    the party was at all material times ready and willing to perform an obligation,

    a statement that:

    (f)

    the thing has been done,

    (g)

    the event has happened,

    (h)

    the state of affairs exists, or existed at that time or those times,

    (i)

    the party is and has been at all material times ready and willing to perform the obligation, or

    (j)

    the party was at all material times ready and willing to perform the obligation,

    shall be implied in the pleading.

    APPELLANT'S ARGUMENTS

  123. The appellant puts its arguments with respect to the Act in various ways.

  124. The Act was enacted pursuant to the Warsaw Convention of 1929 as amended from time to time. The Convention established a "uniform international code" for the liability of carriers for injury or death during carriage between countries party to the Convention. It made a compromise between the interests of air carriers and passengers. It took account of the difficulties of proof confronting plaintiffs. It presumed liability of air carriers for injury or death. Carriers could not contract out of it. In return, it relevantly capped damages and extinguished the right to sue for damages after two years. As an international instrument, or perhaps more correctly, an enactment pursuant to such an instrument, it should be construed consistently universally: Sidhu v British Airways plc [1997] AC 430 at 453; El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 at 175-176 (1999); Emery Air Freight Corporation v Nerine Nurseries Ltd [1997] 3 NZLR 723 at 728; Gal v Northern Mountain Helicopters Inc (1999) 177 DLR (4th) 249. In particular "is extinguished" in s 34 should be read as meaning exactly that, beyond resuscitation by local rules of court or otherwise. So much may be accepted but does not meet the real point of the case.

  125. Although the Act incorporates the regime of the Warsaw Convention in Australian law and applies it to air carriage within Commonwealth constitutional power, it does so in various ways. In Pts II and III it is done by reference to a Scheduled English text, to be read with, and subject to express provisions in the relevant Part. In Pt IV it is done by express provisions using the language of the Convention but with modifications. In Pt IIIC it is done by reference to a Scheduled English text, by reference to provisions in Pt IV, and subject to some other express provisions in the Part.

  126. Article 28 of the Warsaw Convention identifies the jurisdictions in which proceedings may be brought and further provides as follows:

    2.

    Questions of procedure shall be governed by the law of the Court seised of the case.

    Even so, the appellant submits, procedures, or local rules relating to them, cannot detract from the clear language of s 34 of the Act which is to the same effect as Art 29.1 which provides as follows:

    The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

  127. The appellant's principal submissions may be summarized in this way. Procedural rules of the lex fori may not be used to falsify, or toll the limitation period, for example, during infancy or bankruptcy, or retrospectively by amendment. The sole Australian decision (i.e. Timeny v British Airways plc (1991) 56 SASR 287) on Art 29 of the Convention which concerned an extension of time to bring an action, is consistent with the decisions of the United States, the United Kingdom, Canada and New Zealand. Notwithstanding differences in procedural provisions, all of the decisions on Art 29 have a common ratio. The majority in the Court of Appeal erred in purporting to distinguish them on the ground that they did not deal with a rule relating to amendment.

  128. The balance of the appellant's submissions are concerned with the meaning and effect of the Rules, whether they can be and are picked up by s 79[10] of the Judiciary Act, whether there is a conflict between them and the Act, and the application of s 109[11] of the Constitution to such a conflict. The relevant Rules, if they do, as appears to be the case, allow the making of the relevant amendment out of time, are in conflict with the Act. State laws cannot be applied by s 79 to circumstances in which their direct operation would be invalidated for inconsistency with an existing law of the Commonwealth. Nor can s 79 authorize a court exercising federal jurisdiction to give an altered meaning to a State law.

  129. There is one further argument of the appellant: that if Pt 17 r 4 has the operation the majority in the Court of Appeal held it does, it is ultra vires the rule-making power. Section 161 of the District Court Act 1973 (NSW) contains the rule-making power and is directed essentially to matters of practice and procedure. Part 17 of the Rules is concerned with amendment, and r 4, which permits amendment, after expiry of a limitation period, of a proceeding commenced within the limitation period, is for present purposes in the same form as Pt 20 r 4 of the Supreme Court Rules of New South Wales. There is no equivalent, however, in the District Court Act of s 6 of the Supreme Court Act 1970 (NSW) which provides that the Supreme Court Rules will prevail over any prior Act inconsistent with them. The principle of statutory construction that requires clear intent to abrogate substantive legal rights applies to delegated legislation. The substantive effect of Pt 17 r 4 is not a mere incident of some other, purely procedural, purpose. As observed by Ipp JA, the clearly stated purpose of the rule is to empower the Court, in its discretion, to defeat statutory limitation periods.

  130. When Pt 17 r 4 was promulgated, most limitation provisions were still regarded as procedural bars to the remedy. That distinction informed the rules of the High Court of England and Wales from which Pt 17 r 4 and its equivalents were derived, and still informs that approach to the identification of the time or event when amendments under rules of court can, and when they cannot, relate back so as to overcome statutory limitation periods. In Australia however, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 has now established that all limitation periods are substantive. One consequence has been to redirect attention to the need for adequate statutory backing for rules of court directed to overcoming limitation periods, and to the lack of adequate backing for Pt 17 r 4.

  131. Ipp JA was therefore correct in holding that Pt 17 r 4 is ultra vires the rule-making power in the District Court Act.

    DISPOSITION OF THE APPEAL

  132. For a number of reasons which will appear, it is unnecessary to deal with all of the appellant's arguments. The first is that when attention is directed to the language of the Act it can be seen that the resolution of the case depends upon the posing and answering of somewhat different questions from those upon which the parties and the courts below tended to focus in this matter. The first question is whether the respondent brought his action within two years after the aircraft upon which he travelled arrived at its destination. The second inquiry is whether the respondent's initiating document, the statement of claim, in the form that it first took, constituted the bringing of an action within the time specified by s 34 of the Act.

  133. In considering these questions it is relevant to keep in mind that an action under the Act is exactly that. It is not an action for breach of the Act.

  134. I have decided that the respondent, by filing the statement of claim in the District Court of New South Wales, did bring an action under the Act within the limitation period prescribed by s 34.

  135. Whilst it may readily be acknowledged that a degree of precision and particularity in pleading is highly desirable, and may, in some circumstances be essential, and that reference in terms to the Act in the respondent's pleading would have been better, I do not consider that its omission is fatal to the respondent's claim. These are my reasons for this conclusion.

  136. The words of the Act are very broad. They require no more than the bringing of an action. Albeit that the travel was travel to which the Act applied, and accordingly action in respect of it would call for a decision in federal jurisdiction, regardless of the locality or designation of the court exercising it, the action has to be able to be seen to be one which has been validly launched in the court the jurisdiction of which the claimant actually seeks to invoke.

  137. Part 1 r 4 of the Rules does not define an action. It does however define an originating process, in simple terms, by reference to the lodging of a document:

    originating process, in relation to any proceedings, means the document by the lodging of which the proceedings are commenced in the Court in its civil jurisdiction.

  138. Provision is made for relief against failure to comply with the Rules, either before or after the occasion for compliance arises: Part 1 r 5 of the District Court Rules.

  139. Division 2 of Pt 5 of the Rules is headed "Manner of commencement of actions". It requires, by r 6, the lodging with the registrar of a statement of claim. Special provision is made for the filing of material to accompany a claim for damages made in respect of personal injuries. There is no issue concerning that here.

  140. The statement of claim was not relevantly deficient by reason of the absence from it of a reference to any of the terms of the contract (the ticket) between the respondent and the appellant's agent, Qantas Airways Limited. Rule 5 of Pt 9 requires, where a document is referred to in a pleading, only that its effect, so far as material, and not its precise terms except so far as they are themselves material, be stated. The points of origin and conclusion of the respondent's total journey have nothing material here to say about the terms or the effect of the respondent's contract. The only light that they would shed on the respondent's claim would be to indicate the nature of the jurisdiction, federal or State, exercisable in determining it. But whether that is indicated or not does not determine what the jurisdiction exercisable is. It is federal jurisdiction whether the parties ultimately apprehend that to be so or not.

  141. The principal purpose of particularity in a statement of claim is to tell the other party the identity of the plaintiff, that he seeks to hold the defendant liable in damages, the facts relied on as giving rise to the claim, and generally the nature of the case against the defendant. Surplusage can be ignored or struck out. Misdescription of the cause of action to which the facts pleaded give rise is easily susceptible of correction. I do not see why, in assessing the sufficiency of a statement of claim for the purposes of the Act, and therefore, in this case, in considering the question whether an action has been brought, reference may not be made both to the matters to which I have referred, and the absence or otherwise of prejudice to a defendant which must have known that the respondent could sue, only either under the Act, or the State Act, which relevantly applied the former, the practical consequences of either being exactly the same.

  142. In that regard a sharp distinction can be drawn between the facts of the case and the facts of Weldon v Neal (1887) 19 QBD 394 which established the important principle that amendments are not admissible when they prejudice the rights of the opposite party, as existing at the date of the amendments, and that significant prejudice would obviously arise when the allowance of the amendment would deny the defendant a defence of limitations. There, the plaintiff sought to set up, in addition to her claim for slander brought within the limitation period, claims far outside it, for assault, false imprisonment, and other causes of action. None of these could possibly be maintained on the same facts as might found a claim for slander. New material facts obviously would have to be pleaded. Even though that is not strictly the issue here, new facts did not have to be pleaded to validate the respondent's statement of claim as a sufficient originating process.

  143. All that was required to found an action under the Act was pleaded here before the amendment was sought to be made: the flight, the date, the event, that is, the accident, the plaintiff, the defendant, and the ticket under which he was travelling. It is true that recourse to further particularity of the ticket, the contract, of which the appellant at all material times had knowledge, and which it subsequently pleaded in its defence, showed that the Act, rather than the Civil Aviation (Carriers' Liability) Act 1967 (NSW) applied (the practical consequences of which were the same), and that the action was in federal jurisdiction. Some analogies may be drawn. It is hardly likely that a person who alleged a breach of contract in a statement of claim filed within time would be held to have failed to have brought an action within the limitation period if, after its expiration, for the first time he identified the term in respect of which he claimed the defendant to be in breach. So too, it is well established that a person can rely upon an after-discovered breach of contract, quite different from one whether established or not, earlier relied on or pleaded (Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359).

  144. A sufficient statement of claim was filed in time here and accordingly the respondent's action was brought within time.

  145. It follows that I do not regard the absence in this case of a reference to the Act in the statement of claim as a fatal defect denying that the action had been brought within the limitation period (see r 6 of Pt 5 of the Rules). This is so because of the special nature of the action here, which is, as I would emphasize, an action of the only kind that can be brought on the facts pleaded, and one which cannot easily be labelled, as can be an action in tort, or contract. It is true that lawyers usually tend to think of a cause of action as the label to be given to the category of claims within which the claim in question on the facts alleged in the case falls. But "cause of action" does not have that meaning exclusively. The phrase is often used in relation to the facts giving rise to a right of action. As Parke B said in Hernaman v Smith (1855) 10 Exch 659 at 666 [156 ER 603 at 606]:

    The term 'cause of action' means all those things necessary to give a right of action, whether they are to be done by the plaintiff or a third person.

    Another statement to a similar effect is as follows in Cooke v Gill (1873) LR 8 CP 107 at 116 per Brett J

    'Cause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse.

    Wilson J said this in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245:

    The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage [cf Cooke v Gill (1873) LR 8 CP 107 at 116; Read v Brown (1888) 22 QBD 128 at 131; Trower & Sons Ltd v Ripstein [1944] AC 254 at 263; Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 610 at 617; Shtitz v CNR [1927] 1 DLR 951 at 953; Williams v Milotin (1957) 97 CLR 465 at 474]. Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. Indeed, a person may be well appraised of all of the facts which need to be proved to establish a cause of action but for want of taking legal advice may not know that those facts give rise to a right to relief.

  146. So to regard a "cause of action", as the facts or events giving rise to a right to sue for a remedy, gives effect to the natural meaning of the word "cause". If one asks the question, what "caused" the wrong sought to be remedied by action, the natural answer is, the events giving rise to the suffering of the wrong. Here of course there need not even be a wrong to ground the action. An accident, whether negligently caused or not, is necessary and sufficient. "Cause of action" in legal parlance is often used interchangeably with the remedy sought: for example, a claim for an injunction, or an account, or for restitution. It may be that the words "right of action" may be more apt than "cause of action" if a label on the claim were mandatory. The former is a term which may in some circumstances be used interchangeably with the latter. All of this serves to show that "cause of action" is not an expression of fixed meaning. I do not think that to state that "the plaintiff claims damages under an enactment" or, "the plaintiff claims damages under Pt IV of the Act" would be the only way to state a cause of action within the meaning of r 6A of the Rules. I would not therefore read "cause of action" unless the context in which it is used requires it, as meaning the label for the claim. Rule 6A of Pt 5 does not so require.

  147. That is enough to dispose of this appeal. The action, brought in this case by the respondent by the filing of the statement of claim stating these facts sufficed: of an accident; that it occurred during disembarkation from an aircraft after an identified journey; where and when it occurred; that it caused the respondent personal injury; that it was a claim against the appellant; the number of the respondent's ticket, that is the contract for the total journey; and the date and issuer of it. Those facts give rise to one, and only one claim, and remedy.

  148. It does not matter, contrary to a suggestion in argument, that the holding of a relevant licence under ss 26 and 27 of the Civil Aviation Act 1988 (Cth) attracting the operation of the Act, was not pleaded. What the respondent did plead was enough to show that the respondent had travelled on an aircraft operated by a carrier whose reputability and legality were recognized by the willingness of another notoriously substantial operator to issue tickets on its behalf, to and from airports at recognizable towns. The appellant, as a licensed operator, could not possibly have been taken by surprise by the absence of any pleading in terms of its holding of a licence or licences: See Pt 9 r 9(1) of the District Court Rules. Furthermore, there is no reason why a presumption of lawfulness should not be made as contemplated by r 6 of Pt 9, that is, that the appellant was operating the flight lawfully, as the holder of all relevant licences.

  149. Nothing that I have said should be taken as casting doubt upon the common law principle, stated in Weldon v Neal, or as suggesting that a right of action under the Act, a federal law, once extinguished can be resurrected under and by a State law or a rule of court of a State.

  150. I agree in the orders proposed by Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

    Agtrack (NT) Pty Limited

    - vs -

    Hatfield [2005] HCA 38

    10 AUGUST 2005


    Judgment

    Gleeson CJ, McHugh J, Gummow J, Hayne J & Heydon J

  151. On 14 August 1997, a Cessna aircraft carrying Mr. S J Hatfield crashed and he was killed. The respondent (Mrs. A C Hatfield) is his widow. The Cessna aircraft was operated by the appellant which carried on an aircraft charter business under the name "Spring Air". The effect of s 27 of the Civil Aviation Act 1988 (Cth) ("the CAA") was that the Cessna aircraft could not operate for commercial purposes in the air space over the territory of Australia[12], except as authorised by an "Air Operator's Certificate" ("AOC") issued under the CAA. Spring Air held an AOC authorising charter operations by the Cessna.

  152. By writ and attached Statement of Claim filed on 22 January 1999 in the Supreme Court of Victoria, Mrs. Hatfield claimed for her own benefit damages against Spring Air. By its Defence dated 24 March 1999, Spring Air admitted some allegations but denied that the claim against it was maintainable. These pleading steps were taken within two years of 14 August 1997. The significance of that anniversary will appear later in these reasons.

    THE COMMON LAW AND LORD CAMPBELL'S ACT

  153. The common law of Australia gave to Mrs. Hatfield no action for damages against Spring Air for loss she suffered by reason of her husband's death: Woolworths Ltd v Crotty (1942) 66 CLR 603. That death took place in the geographical area of the Northern Territory where the plane crashed, but the action was brought in the Supreme Court of Victoria. Both the statute law of the Northern Territory and of Victoria made provision of the same nature as Lord Campbell's Act for recovery for a widow of a deceased husband: Wrongs Act 1958 (Vic), Pt III; Compensation (Fatal Injuries) Act 1974 (NT). However, federal law also makes provision of this nature in the limited circumstances to which Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Act") applies.

  154. Where Pt IV of the Carriers' Act imposes a liability in respect of the death of a passenger, the liability is expressed by s 35(2) thereof as being in substitution for any civil liability of the carrier under any law in respect of that death. The result in the present case was that any operation of the law of the Northern Territory was displaced [Northern Territory v GPAO (1999) 196 CLR 553] and the law of Victoria was, to this extent, rendered invalid by the operation of s 109 of the Constitution.

  155. Mrs. Hatfield relies upon the application of the Carriers' Act to her claim for damages. She accepts the displacement by the Carriers' Act of any State or Territory equivalent of Lord Campbell's Act which otherwise may have applied. It is unnecessary here to consider which statute would have supplied the lex causae in such action instituted in the Supreme Court of Victoria and not involving the exercise of federal jurisdiction: cf Koop v Bebb (1951) 84 CLR 629; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 521-522 [27].

    THE CARRIERS' ACT AND CHOICE OF LAW RULES

  156. Some further reference is necessary to the connection between Mrs. Hatfield's assertion of her right to recover damages under Pt IV of the Carriers' Act and the facts and circumstances located within the geographical area of the Northern Territory. The nature and consequences in law of that geographical connection should not be misunderstood. Mrs. Hatfield does not bring an action in contract or tort. An action in tort or contract may, of course, attract federal jurisdiction as, for example, an action against the Commonwealth to which s 75(iii) of the Constitution applies, or an action in the diversity jurisdiction to which s 75(iv) applies. In contrast, Mrs. Hatfield's rights flow purely and solely from Pt IV of the Carriers' Act.

  157. The Carriers' Act is expressed by s 6 as extending to "every Territory", a term which includes every Territory referred to in s 122 of the Constitution: Acts Interpretation Act 1901 (Cth), s 17. This emphasises the importance of the principle expressed in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (at 518 [18] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) that the Commonwealth of Australia is "a single law area with respect to matters within federal jurisdiction".

  158. Several further propositions stated in the joint judgment in John Pfeiffer are in point. First, at 530 [53], federal jurisdiction is national in nature so that no question arises in matters of federal jurisdiction which involves any choice of law between laws of competing jurisdictions; rather, what is required is identification of the applicable law in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

  159. Secondly, at 531 [55]-[56], by this means, there are "picked up" any applicable common law choice of law rules as modified by the statute law of the State or Territory in question. [See also Blunden v Commonwealth (2003) 78 ALJR 236 at 240 [18]; 203 ALR 189 at 194.] There are no such common law choice of law rules applicable to the present action: cf Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418 at 434-436; Blunden v Commonwealth (2003) 78 ALJR 236 at 240 [18], 241 [23], 244 [40]; 203 ALR 189 at 194, 195, 199. It is not, for example, an action in contract or tort. To the contrary of what appeared to be suggested in some of the submissions, there is no adoption here, by application of choice of law rules pursuant to the Judiciary Act, of the statute law of the Northern Territory as the lex loci delicti.

  160. Thirdly, at 531 [57], the effect of the foregoing is that "if an action is brought in a State court exercising federal jurisdiction, the law of that State will govern the action no matter where the events in question occurred".

  161. Fourthly, that last step is subject to the overriding requirements of the Judiciary Act itself, in particular that found in the phrases in s 79 "except as otherwise provided by the Constitution or the laws of the Commonwealth" and "in all cases to which they are applicable". It will be necessary to return to the significance of those qualifications later in these reasons.

    THE TWO ISSUES

  162. The application of Pt IV of the Carriers' Act to the present facts and circumstances brings several difficulties for Mrs. Hatfield's claim. Neither the writ nor the Statement of Claim in terms invoked rights under the Carriers' Act. Nor, indeed, was there any reference to any of the State or Territory equivalents of Lord Campbell's Act. Spring Air submits that the process nevertheless was expressed in the form to be expected of a Lord Campbell's Act claim and not otherwise. From this, two further issues arise in the appeal.

  163. First, any right to damages otherwise conferred upon Mrs. Hatfield by the Carriers' Act is treated by that statute as having been "extinguished" if "an action" had not been "brought" within two years of 14 August 1997. That is stipulated by s 34. The text of that provision is set out later in these reasons. Mrs. Hatfield maintains that she did bring an action within that period by the Supreme Court proceeding. Spring Air denies this.

  164. The second issue arises as follows. If it transpires that Mrs. Hatfield had not brought an action before 14 August 1999, was the Victorian Supreme Court, in exercise of its powers and procedures "picked up" by s 79 of the Judiciary Act, authorised to permit thereafter amendments to the pleadings to place beyond doubt Mrs. Hatfield's reliance upon the Carriers' Act? Was this course open notwithstanding the use in s 34 of the Carriers' Act of the term "extinguished"? Spring Air contends the answer is "no".

    THE SUPREME COURT PROCEEDINGS

  165. A judge of the Supreme Court (Ashley J - Hatfield v Agtrack (NT) Pty Ltd (2001) 183 ALR 674) in effect answered the second issue "yes", and thus in favour of Mrs. Hatfield. On 6 June 2001, his Honour granted leave to Mrs. Hatfield to file an amended Statement of Claim plainly grounding her action in the Carriers' Act. The Court of Appeal (Ormiston and Chernov JJA, O'Bryan AJA: Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63) dismissed an appeal. This outcome in the Court of Appeal involved an affirmation of the favourable answer to Mrs. Hatfield on the second issue. As Chernov JA put it at 105, the grant of leave to amend was within the powers of the Supreme Court and appropriately given by the Court "[n]otwithstanding that [s 34 of the Carriers' Act] effectively extinguished [Mrs. Hatfield's] cause of action before she had applied for leave to amend".

  166. The Court of Appeal should have answered "no" to the second issue. The term "extinguished" is used in s 34 to mean just that, and the reasons for so concluding are given later in this judgment. However, that does not mean that the appeal to this Court by Spring Air must succeed.

  167. By her Notice of Contention filed pursuant to leave granted during the hearing of the appeal, Mrs. Hatfield submits that the first issue should have been decided in her favour. She contends that sufficient facts had been pleaded to raise a claim by her under Pt IV of the Carriers' Act, so that she had brought an action within two years after 14 August 1997 and there was no extinguishment by operation of s 34. These submissions by Mrs. Hatfield should be accepted, with the result that the appeal to this Court should be dismissed.

  168. In order to explain how these conclusions are reached, it is necessary first to say something more respecting the Carriers' Act.

    THE REQUIREMENTS OF PART IV OF THE CARRIERS' ACT

  169. Part IV of the Carriers' Act (ss 26-41) does not apply to the carriage of a passenger to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies (s 27(1)). It has not been suggested that any of these Conventions applied to the carriage of Mr. Hatfield by Spring Air.

  170. Part IV does not apply to the carriage of Mr. Hatfield unless Spring Air was the holder of an airline licence or a charter licence. The term "charter licence" is defined (s 26(1)) as including an AOC which is in force under the CAA and authorises charter operations. This was admitted on the pleadings.

  171. The next relevant requirements in s 27(1) are that the carriage of the passenger be "under a contract for the carriage of the passenger" and be "in the course of commercial transport operations". The term "contract" includes "an arrangement made without consideration" (s 26(1)). The phrase "commercial transport operations" means "operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo" (s 26(1)). A further relevant requirement of s 27(1) is that Mr. Hatfield was carried by Spring Air under a contract for his carriage between a Territory and a place in Australia outside that Territory, or between a place in a Territory and another place in that Territory. In particulars given with her Statement of Claim, Mrs. Hatfield alleged an agreement to carry her husband and two others on "a tourist flight through parts of the Northern Territory and the Kimberleys", which are situated in Western Australia.

  172. Section 28 creates a "strict" liability as follows:

    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 personal 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.

    Section 35 then makes particular provision respecting the liability imposed by Pt IV on a carrier in respect of the death of a passenger. Subject to immaterial qualifications found in s 37, s 35(2) states that this liability under Pt IV:

    is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.

  173. The statutory liability is enforceable for the benefit of such members of the family of the deceased passenger (including a widow) "as sustained damage by reason of his death" (s 35(3), (5)). The action may be brought by the personal representative of the passenger or by a family member, but only one action is to be brought (s 35(6)). Any provision of an agreement tending to relieve the carrier of liability or to fix a lower limit than that fixed by Pt IV is null and void (s 32).

    A MATTER ARISING UNDER THE CARRIERS' ACT

  174. These provisions of the Carriers' Act are an example of a federal law which creates new rights and duties. A controversy respecting the existence and enforcement of these rights and duties "accordingly supplies an appropriate subject or 'matter' upon which 'judicial power' or 'jurisdiction' may operate, whether the jurisdiction is given in the same breath or quite independently". The words are those of Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 166.

  175. Here, jurisdiction is conferred independently, by laws made in exercise of the power conferred upon the Parliament by s 77(i) and s 77(iii), with respect to "matters" which "arise under" the Carriers' Act within the meaning of s 76(ii) of the Constitution. One such law is s 39B of the Judiciary Act. This states that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under any laws made by the Parliament other than criminal matters. Another is the general investment of State courts by s 39(2) of the Judiciary Act with jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it. It is the investment of federal jurisdiction upon the Supreme Court of Victoria by s 39(2) which Mrs. Hatfield submits was engaged here.

  176. The question whether a State court has exercised federal jurisdiction with which it is invested by a law of the Parliament supported by s 77(iii) of the Constitution may arise in various ways. In some cases, including Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 and LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, the answer to the question determined the competency of a pending appeal to the Privy Council. In other cases, the answer determines whether an appeal lies directly to this Court from an inferior court of a State because, within the meaning of s 73(ii) of the Constitution, this was a "court exercising federal jurisdiction": For example, H V McKay Pty Ltd v Hunt (1926) 38 CLR 308 at 313. In Hume v Palmer (1926) 38 CLR 441 at 451, Isaacs J observed of the decision of a magistrate convicting the appellant in a summary prosecution, despite an objection that the State law in question was invalid by operation of s 109 of the Constitution:

    The Police Magistrate, consequently, whether he intended or not, or whether he knew it or not, was exercising Federal jurisdiction within the meaning of s 73 of the Constitution.

  177. The obligation imposed by s 78B of the Judiciary Act upon courts not to proceed in a pending cause, unless satisfied of compliance with the notice provisions of s 78B, turns upon the question whether that cause "involves a matter arising under the Constitution or involving its interpretation". A criterion similarly expressed governs the removal procedure in s 40(1). The removal procedure in s 40(2)(b) requires there to be "pending in a court of a State a cause involving the exercise of federal jurisdiction by that court".

  178. In the present litigation, the question of the exercise of federal jurisdiction arises in the context of a time stipulation in Pt IV of the Carriers' Act.

  179. It is well settled that a "matter" means more than a legal proceeding (In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265) and that "an important aspect of federal judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled": Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 458-459 [242]. Further, federal jurisdiction may be attracted at any stage of a legal proceeding, as Barwick CJ emphasised in Felton v Mulligan (1971) 124 CLR 367 at 373. Indeed, as early as 1907, this Court had remarked that federal jurisdiction may be raised for the first time in a defence: Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR (Pt 2) 1087 at 1136. In Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 585 [139], Gummow and Hayne JJ said:

    The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

  180. Not all proceedings will be civil in nature. The appellants in Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 had been convicted in a Court of Petty Sessions, on information laid under State law. Hume v Palmer was an earlier example. An appeal lay in these cases under s 73(ii) because the inferior court of the State nevertheless was a "court exercising federal jurisdiction". In Pioneer Express (1958) 101 CLR 536, Dixon CJ explained at 543-544:

    the jurisdiction became federal because some of the defences that failed were founded upon immunities which, according to the defendant's claim, arose under the Constitution of the Commonwealth.

    Many of the "transport cases" reached this Court by a similar path.

  181. This illustrates the point that s 39(2) of the Judiciary Act invests a range of State courts with federal jurisdiction. Some of these are not courts of strict pleading; others are not courts of pleading at all and proceedings may be instituted with brief factual assertions. It should be added that, even under the traditional common law procedures, the initiating writ might be uncommunicative of the legal and factual basis of the claim for damages made in the writ.

  182. Whether federal jurisdiction with respect to one or more of the matters listed in ss 75 and 76 of the Constitution has been engaged in a legal proceeding is a question of objective assessment. If a party on either side of the record relies upon a right, immunity or defence derived from a federal law, there is a matter arising under s 76(ii) of the Constitution. It is not a question of establishing an intention to engage federal jurisdiction or an awareness that this has occurred. Immediate ascertainment of the factual basis of a justiciable controversy and of the attraction of federal jurisdiction in a proceeding will not always be possible by regard simply to allegations pleaded. If the attraction of federal jurisdiction itself is disputed, it may require evidence of the factual basis of the controversy to permit an answer to that question. It is unnecessary to pursue that aspect further in this case. Here, there was a Statement of Claim and a Defence which had been filed before the deadline of 14 August 1999. Regard may be had to both in deciding whether by that date an action under Pt IV of the Carriers' Act had been brought.

    THE JUDGMENT OF ORMISTON JA

  183. In the Court of Appeal, Ormiston JA gave the leading judgment. His Honour would have favoured a holding in favour of Mrs. Hatfield on the first issue were it not for the significance which he held should be given to the recent decision of a court of co-ordinate jurisdiction, namely that of the New South Wales Court of Appeal in Air Link Pty Ltd v Paterson [2002] NSWCA 85 ("Air Link No 1"). However, in a decision to be announced at the same time as that in the present appeal, special leave is granted to appeal from Air Link No 1 and the appeal is allowed. The result is to reinforce the inclination of Ormiston JA in favour of Mrs. Hatfield's submissions on the first issue.

  184. Ormiston JA referred to the treatment in the pleadings of the AOC being a charter licence. Of a complaint that the pleadings did not squarely allege the carriage of Mr. Hatfield as a passenger by Spring Air "in the course of commercial transport operations" as required by s 27(1) of the Carriers' Act, his Honour said:

    But the definition requires only that the 'operations' are those in which 'an aircraft is used, for hire or reward, for the carriage of passengers or cargo'. That is simply satisfied by the allegation that the company was carrying on the business of 'aircraft charter'. It is not the specific flight that had to be for reward;[13] rather it was 'the operations' as a whole which had to be so characterised. An allegation that [Spring Air] carried on a charter business, as appeared in par 1 [of the Statement of Claim], was sufficient, so long as the particular flight was a 'carriage' [which was] 'in the course' of those operations and that was satisfied by the allegation in par 2 that [Mr. Hatfield] 'had agreed' with [Spring Air] that he and other passengers be carried on a sight-seeing tour.

    [(2003) 7 VR 63 at 73]

  185. Ormiston JA went on to conclude that the path of the flight was sufficiently defined by reference to the statement in the particulars that it was to be "through parts of the Northern Territory and the Kimberleys". His Honour added at 73-74:

    Admittedly the starting and finishing points of the flight are not stated and this would have been important if the flight had commenced within one of the States, for it may then have been an intra-state flight. Here, it would have been clear enough that the flight began within the Northern Territory, to which Pt IV applies exclusively, and was not the subject of any State Acts imposing liability for intra-state flights .... Moreover, the particulars of negligence to par 4 also alleged inferentially that one of the landing places during the flight was Timber Creek in the Northern Territory and that, by reason of the provisions of sub-s (3) of s 27, meant that Timber Creek was one of the finishing and starting points of the flight, even if one were to assume, as I would not, that the flight commenced outside the Territory.

    [footnote omitted][14]

  186. Ormiston JA also emphasised that the allegations in the Statement of Claim that the aircraft carrying Mr. Hatfield crashed and that he died the same day indicated that the crash caused the death and that it was to be inferred that the allegation was that the death of Mr. Hatfield resulted "from an accident which took place on board the aircraft" within the requirement of s 28.

  187. Finally, his Honour noted that, whilst the Statement of Claim described Mrs. Hatfield as the "widow" of the passenger and expressed her loss in conventional terms applicable to claims under Lord Campbell's Act, there could be no doubt that she was a "family" member alleging that she had suffered damage within the meaning of s 35 of the Carriers' Act.

    THE SIGNIFICANCE OF STATE PLEADING RULES

  188. There remains the submission, much pressed in oral argument in this Court, that it was essential for the attraction of federal jurisdiction that there appear on the face of the pleadings an invocation of Pt IV of the Carriers' Act. However, counsel for the Attorney-General of the Commonwealth, who intervened, correctly emphasised that it would be an error to focus upon such rules as there were in a particular State jurisdiction respecting pleading requirements, if the court be a court of pleading. It would be a further error to reason from those requirements to a conclusion as to whether an action had been brought within the meaning of s 34 of the Carriers' Act to enforce the right of a person to damages under Pt IV thereof.

  189. Rule 13.02(1)(b) of Ch I of the Rules of the Victorian Supreme Court applies to a claim which "arises by or under any Act" and requires the "pleading" to identify the specific provision relied upon. When "picked up" by s 79 of the Judiciary Act, it may be taken that "Act" is to be understood as including a federal statute. However, there is no requirement in Pt IV that a plaintiff expressly invoke the Carriers' Act in any legal process.

  190. The Attorney-General correctly submitted that a separate and subsequent question may arise as to whether an action brought under Pt IV has been properly pleaded in accordance with any rules of pleading picked up by s 79 of the Judiciary Act. For example, if the relevant rules of court required that any particular statutory provision be referred to, it might be necessary for a plaintiff to amend. However, such amendments would not be disallowed on the basis that there had been a failure to comply with Pt IV of the Carriers' Act. As it happens, in the present case Ormiston JA had said at 75:

    [I]f all the facts were otherwise properly contained in the statement of claim, there would ordinarily be little reason why an amendment should not be permitted to satisfy the rule. It would thus merely characterise a liability which the facts would otherwise establish.

    CONCLUSION RESPECTING THE FIRST ISSUE

  191. It is appropriate now to return to s 34 of the Carriers' Act. This states:

    The right of a person to damages under this Part is extinguished if an action is not brought by him or for his 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.

    The first question posed by s 34 for the present case is whether Mrs. Hatfield had brought an action by herself or for her benefit within two years after "the date on which the carriage stopped" by reason of the crash of the aircraft on 14 August 1997. That, it would appear, was also "the date on which the aircraft ought to have arrived at the destination".

  192. The analysis by Ormiston JA of the pleadings as they stood by 14 August 1999 demonstrates that, within the two year period, Mrs. Hatfield had brought an action in exercise of her right to damages under Pt IV. She was the widow of a passenger who had died as the result of an aircraft accident. She claimed to have suffered damage by reason of the passenger's death and claimed damages from the carrier. The facts alleged in the pleadings showed that Pt IV applied.

  193. Contrary to the submissions by Spring Air, it is unnecessary to show that within this period Mrs. Hatfield had it in her mind, or her lawyers had it in their minds, that they were proceeding under Pt IV. Nor was it a requirement for compliance with s 34 that the Statement of Claim aver reliance upon Pt IV. Allegations that went beyond what was required to comply with s 34 were surplusage. The surplusage was liable to removal under procedural provisions picked up by s 79 of the Judiciary Act, but that did not deny that s 34 had been satisfied.

  194. That conclusion is sufficient to produce an answer in Mrs. Hatfield's favour on the first issue. However, something more should be said of a further submission she made respecting the construction of s 34 of the Carriers' Act. It was contended that it was in any event sufficient that Mrs. Hatfield had brought "an action" within time, albeit not one apt to exercise the right to damages under Pt IV. This construction involves disjoining the words "an action" in s 34 both from what precedes them and from what follows them. The phrase "if an action is not brought by him or for his benefit" is to be read as a whole. The concluding words respecting "benefit" clearly refer to the provisions in s 35 for liability in respect of death. In particular, s 35(3) states:

    Subject to the next succeeding subsection, the liability is enforceable for the benefit of such of the members of the passenger's family as sustained damage by reason of his death.

    Likewise, the "action" spoken of in s 34 is one in exercise of the right to damages under Pt IV which is at peril of extinguishment. The submissions by Mrs. Hatfield on this particular construction point should be rejected. Her case succeeds without the need to make them good.

    CONCLUSION RESPECTING THE SECOND ISSUE

  195. It remains further to consider the construction of the opening words of s 34 of the Carriers' Act "[t]he right of a person to damages under this Part is extinguished". Section 34 is to be construed having regard to the position of Pt IV in the structure of the legislation as a whole. In that regard, reference has already been made to the exclusion of Pt IV from carriage to which applies the Warsaw Convention, the Hague Protocol or the Guadalajara Convention. That carriage is dealt with respectively in Pt II (ss 10-19) (the Warsaw Convention and the Hague Protocol), Pt III (ss 20-25) (the Warsaw Convention without the Hague Protocol) and Pt IIIA (ss 25A-25C) (the Guadalajara Convention).

  196. Articles 28 and 29 of the Warsaw Convention (which appears as Sched 1 to the Carriers' Act) state:

    Article 28

    1.

    An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.

    2.

    Questions of procedure shall be governed by the law of the Court seised of the case.

    Article 29

    1.

    The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

    2.

    The method of calculating the period of limitation shall be determined by the law of the Court seised of the case.

  197. Of the relationship between the reference in Art 28 to questions of procedure and Art 29, Phillips LJ observed in Milor Srl v British Airways Plc [1996] QB 702 at 707:

    In my judgment, that general provision [Art 28] cannot give validity to a rule of procedure of the court seised of the case that is in conflict with an express provision of the Convention. By way of example, if the procedural law of the chosen forum imposed a 12-month limitation period, it does not seem to me that this could displace the two-year period of limitation laid down by article 29 of the Convention.

  198. Section 8(2) of the Carriers' Act states:

    If there is any inconsistency between the text of a Convention as set out in a Schedule and the text that would result if the authentic French texts of the instruments making up the Convention were read and interpreted together as one single instrument, the latter text prevails.

    Article 36 of the Warsaw Convention reads:

    The Convention is drawn up in French in a single copy which shall remain deposited in the archives of the Ministry for Foreign Affairs of Poland and of which one duly certified copy shall be sent by the Polish Government to the Government of each of the High Contracting Parties.

    Australia was one of those High Contracting Parties, as was recited in the preamble to the Carriage by Air Act 1935 (Cth) ("the 1935 Act").

  199. In the work, Warsaw Convention, (2003) (Giemulla & Schmid (eds)), Dettling-Ott writes of Art 29 at pars 15-16:

    The original French text of the Convention names the limit of Article 29 as 'délai .... sous peine de déchéance'. 'Déchéance' should be translated as 'extinction'. The German translation uses the word 'Ausschlussfrist', the English translation [of] the term 'the right shall be extinguished' is used. The wording is clear .... A plaintiff will lose the rights to damages against the carrier if the time-limit of Article 29 expires.

    This notion is supported by the fact that French law uses the term 'déchéance' for a condition precedent (as a typical example Article 340-4 of the French Code Civil with a similar wording).

    In most countries the courts held that Article 29 contains [a] condition precedent. Commentators have also generally argued that Article 29 contains a condition precedent.

    [footnotes omitted]

    In Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1, par VII[443], it is said respecting Art 29:

    If the right of action is 'extinguished', it would seem that it is completely destroyed and not merely rendered unenforceable by action.

  200. In Kahn v Trans World Airlines Inc 443 NYS 2d 79 (1981), the Appellate Division of the Supreme Court of New York gave detailed consideration to the travaux préparatoires of the Warsaw Convention. The Court concluded from these materials at 87:

    Based upon the foregoing, it is abundantly clear that the delegates to the Warsaw Convention expressly desired to remove those actions governed by the Convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws of the member states, and that the two-year time limitation specified in article 29 was intended to be absolute - barring any action which had not been commenced within the two-year period. Moreover, it is equally clear from the delegates' discussion that the only matter to be referred to the forum court by paragraph 2 of the present article 29 was the determination of whether the plaintiff had taken the necessary measures within the two-year period to invoke that particular court's jurisdiction over the action.

    The Court added at 87:

    [I]t is readily apparent that the time limitation incorporated in article 29 was intended to be in the nature of a condition precedent to suit, and that it was never intended to be extended or tolled by infancy or other incapacity. In addition, such an intent on the part of the draftsmen is fully consistent with one of the Convention's overall purposes - that of establishing 'a uniform body of world-wide liability rules to govern international aviation' [Reed v Wiser 555 F 2d 1079 at 1090 (1977)].

    The South Australian Full Court reached a conclusion to similar effect in Timeny v British Airways plc (1991) 56 SASR 287.

  201. The result is that there is a strong body of authority construing Art 29 of the Warsaw Convention as imposing a condition which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right. Such a distinction is well understood in Australian law and thus is readily accommodated in the drafting of s 34 of the Carriers' Act: See The Crown v McNeil (1922) 31 CLR 76 at 100-101; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276-277; Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 130-131, 156; Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 148-149 [32].

  202. Section 4 of the Carriers' Act, as enacted, repealed the 1935 Act, which had given effect in Australia to the Warsaw Convention. The enactment of the Carriers' Act was precipitated by the adoption by Australia of the Hague Protocol to amend the Warsaw Convention. Since that time, provision also has been made (now in Pt IIIA) respecting the Guadalajara Convention. In the Second Reading Speech in the House of Representatives upon the Bill for what became the Carriers' Act, the Minister for Defence said [Parliamentary Debates (Hansard), 7 April 1959 at 905]:

    Part IV of the bill will apply the international rules, with certain modifications to domestic airline operators except when they are engaged in purely intra-state carriage, which is, of course, a matter for the States.

    The reservation respecting purely intrastate carriage was expressed before the litigation in Airlines of NSW Pty Ltd v New South Wales (1964) 113 CLR 1 and Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54. It will be recalled that the litigation produced a situation identified by Menzies J in Airlines [No 2] (1965) 113 CLR 54 at 144:

    It was urged that a decision of this Court leaving intra-State air transport services to the veto of both Commonwealth and State would create a situation of stalemate or deadlock. This argument is irrelevant. A constitutional division of legislative power which is not exclusive may sometimes mean that those who are subject to both Commonwealth and State control have two sets of restrictions to surmount before they can do that which they want to do .... The answer to stalemate or deadlock in such circumstances is co-operation.

  203. In the Second Reading Speech upon the Bill for the Carriers' Act, the Minister went on [Parliamentary Debates (Hansard), 7 April 1959 at 905]:

    The most important objective in applying the principles of the convention to domestic aviation is to deprive the domestic carriers of their present right to contract out of all liability for damage howsoever caused, and to make them liable for proven damages up to [what was then] £7,500. Clause 32 of the bill provides that any contract attempting to fix a lower limit is null and void.

  204. Given the subject, scope and purpose of the statute as a whole, it is readily apparent that s 34 should be given a construction harmonious with that which applies to the international carriage dealt with under the Conventions, in particular with reference to Art 29 of the Warsaw Convention.

    THE OPERATION OF SECTION 79 OF THE JUDICIARY ACT

  205. With respect to the proceeding instituted by Mrs. Hatfield in the Supreme Court of Victoria, which, as has been indicated, invoked federal jurisdiction, s 79 of the Judiciary Act applied. This states:

    The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

  206. Section 34(1) of the Limitation of Actions Act 1958 (Vic) ("the Victorian Limitation Act") states:

    If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the court has commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, an award of costs or otherwise.

    [Reference also was made by the Court of Appeal to the similarly expressed Supreme Court Rules, Ch 1, r 36.01(6).]

  207. The sidenote to s 34 reads "Abrogation of rule in Weldon v Neal (1887) 19 QBD 394". Much attention was given in the submissions to the Court to what Weldon v Neal decided, but, in the event, this is but a distraction from the questions to be decided on this appeal.

  208. It is accepted that, of its own force, s 34 of the Victorian Limitation Act could have no application to the litigation of a matter arising under a law of the Commonwealth: Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]. The question is whether s 34 of the State Act is apt to be given binding effect by s 79 of the Judiciary Act.

  209. The terms of s 79 indicate that this can only be so if the case in question is one in which the State law is applicable: See Solomons v District Court (NSW) at 134-135 [23]-[24]. Section 34 of the Carriers' Act, as indicated earlier in these reasons, is an integral part of the federal statutory right to damages. Section 34 is not a provision which adds a time limitation in respect of a right defined independently of s 34. Section 28 which creates the statutory right expressly does so "[s]ubject to this Part" and thus to s 34. It follows that, if an action was not brought by Mrs. Hatfield or for her benefit within the two year period required by s 34, what ensued was not the expiry of a relevant period of limitation, but the removal of a prerequisite for the existence of the right sought to be litigated. In those circumstances, s 79 did not operate to "pick up" the Victorian provision.

  210. The same conclusion may be reached by another route. Were s 34 of the State statute to be picked up by s 79, it would provide otherwise than as required by s 34 of the Carriers' Act. It would have "derogated from" the extinction wrought by s 34 of the federal statute: Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287 at 296 [22].

    SECTION 109 OF THE CONSTITUTION

  211. Something should be added respecting the operation of s 109 of the Constitution in the circumstances of Pt IV of the Carriers' Act. Earlier in these reasons it has been noted that s 35(2) of the Carriers' Act substitutes the liability under Pt IV in respect of the death of a passenger for any civil liability of a carrier "under any other law". To that extent, the State laws adopting Lord Campbell's Act are rendered invalid. A plaintiff who sued, say, in the diversity jurisdiction in a State court and sought to rely upon Lord Campbell's Act could not do so. By reason of s 35(2) and the operation of s 109 of the Constitution, that State statute would have ceased to be a law of a State within the meaning of s 79 of the Judiciary Act; there would be no subject-matter to be picked up by the operation of s 79.

  212. This operation of s 109 is anterior to any commencement or prosecution of a proceeding in a court. Section 79 begins to operate "only where there is already a court 'exercising federal jurisdiction', 'exercising' being used in the present continuous tense": Solomons v District Court (NSW) at 134 [23].

  213. The relationship between s 109 of the Constitution and s 79 of the Judiciary Act, which is sequential rather than concurrent, was further explained in Northern Territory v GPAO (1999) 196 CLR 553 at 576 [38], 586 [76]. There the expression "threshold issue" was used.

    CONCLUSIONS

  214. The appellant, Spring Air, succeeds on the second issue but it is enough for the respondent, Mrs. Hatfield, that she succeeds and Spring Air fails on the first issue to produce an outcome in her favour.

  215. The appeal should be dismissed with costs.

    Kirby J

  216. This appeal was heard, and is decided, at the same time as the proceedings in Air Link Pty Ltd v Paterson [2005] HCA 39, which raise similar issues.

    TWO PROCEEDINGS RAISE COMMON ISSUES

    Common defects of pleading

  217. Each matter concerns an accident that allegedly occurred following air carriage of a passenger on a journey wholly within Australia. In consequence of the accident, claims of a right to damages were made. Proceedings based on such claims were commenced in State courts of competent jurisdiction. In each case, the pleading of the claim alleged an entitlement to recover damages. Such claims were expressed in terms of negligence and breach of contract. In neither case was the claim brought with express reference to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Act"). That Act was not mentioned. Nor were all of the facts pleaded that would have been conventional and appropriate to the pleading of a claim based on the Carriers' Act.

    Two identical issues

  218. When the defect of pleading was discovered, two critical issues arose in the courts below. The first was whether, notwithstanding the imperfections of the pleading, the plaintiffs' "right .... to damages" under Pt IV of the Carriers' Act survived because the proceedings, as commenced, constituted "an action .... brought" by the plaintiff or for the plaintiff's benefit "within two years after the date of arrival of the aircraft .... or .... the date on which the carriage stopped". If the proceedings did not amount to "an action" so "brought", the right to damages was, by s 34 of the Act, "extinguished"[15].

  219. The second issue, if it was found that the right to damages was "extinguished", was whether, in the circumstances, the "action" could be effectively revived by the exercise by the State court of powers conferred on it by State law to permit an amendment of the original statement of claim so as to re-express the cause of action as one based on Pt IV of the Carriers' Act.

    Resolution of the issues

  220. In each case, the correct answer to the questions, presented by the foregoing issues, is that the proceedings brought by the plaintiff within two years qualified as "an action .... brought" within that limited time. Thus, the right of the plaintiff to damages was not extinguished by s 34 of the Carriers' Act. The conclusion below to the contrary was erroneous. It should be corrected.

  221. In consequence, the second question does not arise, at least on the premise hitherto found, or accepted, that the right to damages was extinguished. Nevertheless, as a matter of principle, where such rights are "extinguished", they cannot be revived by the purported application to them of State law. Any such law would subvert the applicable federal law effecting the extinguishment. The inconsistent State law does not therefore apply. To the extent that it purports to do so it would be invalid under the Constitution.

    THE DISPOSITION OF THE PRESENT APPEAL

    Dispositions in the Supreme Court

  222. The facts and circumstances of these proceedings are set out in other reasons: Reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ ("the joint reasons") at [1]-[2]; reasons of Callinan J at [90]. So are the applicable provisions of State and federal law to which those now representing Mrs. Ann Hatfield ("the respondent") pointed for a favourable answer on the second issue, in the hope of rescuing her from the predicament that arose out of the first. The primary judge in the Supreme Court of Victoria (Ashley J) decided the first issue against the respondent: Hatfield v Agtrack (NT) Pty Ltd (2001) 183 ALR 674 at 681 [33]. He decided the second issue in her favour.

  223. The Court of Appeal of Victoria (Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63) confirmed both conclusions of the primary judge. The respondent sought to protect herself from the challenge to the determination of the second issue, by filing a notice of contention in this Court stating that the first issue should have also been decided in her favour.

    An "action" was brought

  224. My reasons for concluding that the primary judge and the Court of Appeal erred in the conclusion they respectively reached concerning the first issue are, in substance, the same as the reasons stated by me in disposing of the identical questions of principle in Air Link at [75]-[84]. The alleged facts and the pleadings in the two cases are different. The State rules of court invoked to criticise the pleadings, and to suggest that their manifest defects deprived the claim so initiated of the character of "an action .... brought .... within two years", are different. However, there is no difference in the essential issue presented for decision. In each case, for the same reasons, the result on the first issue must be the same.

  225. The right to damages claimed by the respondent in this case is one conferred by federal law, namely the Carriers' Act. The fact of non-compliance with State laws on procedure and pleading is relevant to, but not determinative of, a plaintiff's compliance with the requirement in s 34 of the Carriers' Act. Nor is it determinative of the suggested extinguishment of the right to damages created by Pt IV of that Act if an action is not brought by or for the benefit of the plaintiff within two years of the date on which (in this case) "the carriage stopped". It remains, in each instance, for a court to give meaning to the phrase "action .... is not brought" so as to fulfil the purposes of the federal law. Because that law deliberately chose, even in the case of air carriage within Australia, to apply the same language as appears in the Warsaw Convention, it is necessary to construe the contested phrase so as to achieve its purposes in the Carriers' Act but consistently also with its purpose in the Warsaw Convention.

  226. Approaching s 34 of the Carriers' Act in this way, I would conclude that the statement of claim filed on behalf of the respondent sufficiently identified the claim to "damages", brought by her or for her benefit in respect of the accident that occurred during the carriage by aircraft of her late husband. It thus constituted "an action .... brought by" her within s 34 of the Carriers' Act.

    AMENDMENT OF AN EXTINGUISHED ACTION IS UNLAWFUL

    Conclusions on extinguishment

  227. As in the decision in Air Link, the foregoing conclusion, which logically comes first in disposing of the issues in the appeal, entitles the respondent to succeed on the issue raised by her in her notice of contention. Because the second issue was answered on an assumption that the right of action by the respondent had been extinguished, the reasoning on that point, at first instance and on appeal, has no remaining application. The premise for the observations is invalidated by the decision of this Court on the first issue.

  228. Nonetheless, as other members of this Court (joint reasons at [45]-[54]; Callinan J at [108]) have expressed their conclusions on the extinguishment issue I will simply say that I agree with those conclusions. My reasons are the same as those expressed by me in Air Link at [100]-[104].

    Agreement on other issues

  229. I also agree with what is said in the joint reasons in this case

    • that the Carriers' Act applied to displace or invalidate the Northern Territory or Victorian laws (whichever was otherwise applicable) in so far as such laws provide by statute for compensation to the relatives of a person who died in circumstances occasioning legal liability in another (at [3]-[5]);

    • that the respondent's action is not properly one arising in tort or contract at all but one based solely on Pt IV of the Carriers' Act (at [6]); and

    • that the action is one brought in federal jurisdiction (at [7]) with the consequences that flow from that fact: cf Truong v The Queen (2004) 78 ALJR 473 at 502-503 [164]-[166]; 205 ALR 72 at 112-113.

    Moreover, I agree that the attachment of federal jurisdiction occurs by operation of law. It is not dependent upon the intentions or expectations of the parties or those who plead initiating court process for them: cf joint reasons at [26] citing Hume v Palmer (1926) 38 CLR 441 at 451.

    CONSEQUENCES FOR THE ORDERS IN THIS APPEAL

    Dismissal of the air carrier's appeal

  230. It remains to consider the orders that follow from the foregoing conclusions. In disposing of this appeal, this Court is empowered to make the orders that ought to have been made by the courts below: Judiciary Act 1903 (Cth), s 37. The Court of Appeal dismissed the appeal by Agtrack (NT) Pty Ltd (the appellant in this Court) ("Agtrack") against the orders of the primary judge. Those orders had been in the respondent's favour. They arose, in turn, on summonses brought both by Agtrack and by the respondent herself.

  231. The summons by Agtrack sought judgment in Agtrack's favour; alternatively that the proceedings be struck out or permanently stayed and "[s]uch further order as the Court deems appropriate". The orders made by the primary judge included the order that Agtrack's summons be dismissed: (2001) 183 ALR 674 at 699 [140] per Ashley J. However, in accordance with his conclusion on the second issue, Ashley J acceded to relief sought in the summons brought for the respondent. His Honour granted leave to her to amend her statement of claim to raise a claim under the Carriers' Act: at 699 [139] per Ashley J. The orders reflecting these conclusions were entered as a judgment of the Supreme Court of Victoria.

  232. There is no difficulty in this Court's confirming the dismissal of Agtrack's summons for it is consistent with the conclusion now reached on the first issue that the originating process, imperfect as it was as a pleading, sufficiently answered to an "action .... brought" within the time limited by the Carriers' Act, disentitling Agtrack to peremptory relief. To that extent, it is sufficient for this Court simply to dismiss Agtrack's appeal, so affirming the order of the primary judge to that extent.

    Confirmation of amendment of pleading

  233. But should the supplementary order made by Ashley J, permitting leave to the respondent to file an amended statement of claim, stand? Should it do so given that such order was premised, when it was made, on the conclusion that an "action [was] not brought" but that a power was available (now denied by this Court) to amend the initiating process retrospectively in a way that would repair the statement of claim in an action "extinguished" by s 34 of the Carriers' Act?

  234. Once it is accepted that the respondent's "right .... to damages" under Pt IV of the Carriers' Act was not extinguished for want of the bringing of an "action" in time, such "action" is before the Supreme Court of Victoria. There is then no reason why, in respect of it, any applicable rules of the Supreme Court of Victoria should not be "picked up" so as to be available to that Court for the correction and improvement of the pleading, in order more precisely to state the issues for trial. Certainly, there is no inconsistency between amendment of the pleading of such an "action" and s 34 of the Carriers' Act, so long as a new and different cause of action, or a claim for damages outside the Carriers' Act, is not added to the one already brought (as concluded) in the action under that Act.

  235. The result of this analysis is that the disposition of the respondent's proceedings at first instance should stand. However, the reasoning sustaining that disposition is now different from that offered by the Supreme Court. That reasoning is overruled.

  236. This appeal calls attention once again to the need to frame claims arising out of air accidents in terms of the Carriers' Act, not the superseded common or statute law[16]. In this case, as in Air Link, it happens that the proceedings were commenced and the "action .... brought" within the two year limitation provided by s 34 of the Carriers' Act. However, many other cases have arisen where, for ignorance or oversight of the limitation, the right to damages has been "extinguished". When that happens, the claim to damages is put beyond general powers of revival[17]. State and Territory rules for the amendment of pleadings cannot avail the extinguished action. Fortuitously for the respondent in this case, that outcome does not occur.

    ORDERS

  237. I agree in the orders proposed in the joint reasons.

    Callinan J

  238. These reasons should be read with the reasons for judgment in Air Link Pty Ltd v Paterson [2005] HCA 39.

  239. As in that case, the ultimate question here is whether the respondent brought action within the two years' limitation period prescribed by s 34 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act").

    FACTUAL MATTERS

  240. To the outline of the facts in the judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ, I would add some of the paragraphs pleaded by the respondent in her statement of claim in its first, that is, its unamended form.

    1.

    At all relevant times the Defendant was carrying on the business of aircraft charter under the name of Spring Air.

    2.

    On or about the 13th August, 1997, the Defendant, its servants and agents, had agreed with Stephen James Hatfield ('the deceased') and two others ('the passengers') to carry the deceased and the passengers on a sight-seeing tour in a Cessna 210 ('the aircraft') ....

    3.

    On or about the 14th August, 1997, the aircraft, piloted by Peter Spanovskis, deceased ('the pilot'), and carrying the deceased and the passengers, crashed ('the accident').

    4.

    The accident was caused by the negligence of the Defendant, its servants and agents, including the pilot and the chief pilot, Anthony Langdon Spring.

    [The respondent then pleaded a number of particulars of negligence which need not be set out.]

    5.

    It was an implied term of the agreement that the Defendant, its servants and agents, would take reasonable care for the safety of the deceased and the passengers on the said tourist flight ('the implied term').

    6.

    In breach of the implied term, the Defendant, its servants and agents, failed to use reasonable care in the safety of the deceased and the passengers in the conduct of the tourist flight ('the breach').

    7.

    As a result of the breach and the negligence of the Defendant, its servants and agents, the deceased died on the 14th August, 1997.

    8.

    The Plaintiff brings this action as the widow of the deceased for her benefit.

    There then followed details of the respondent's dependency upon her late husband, and his likely earnings and prospects as are conventionally pleaded in actions brought under Lord Campbell's Act or its analogues in the States and Territories.

  241. The Warsaw Convention upon which the Act is based is intended to operate not only in many countries of greatly differing legal systems, but also in all jurisdictions of each of those countries. In Australia, it is easy to envisage a claim, for example, in respect of lost baggage, for a small amount in a magistrates' court. Until very recent times at least[18], generally the formality and particularity of pleading required for the commencement of proceedings in a court varied according to the position in the hierarchy of the courts of the court whose jurisdiction was sought to be invoked.

  242. There can be no doubt however that the Act, which displaces any law which might otherwise be applicable, requires for its due invocation, that whatever is done in the jurisdiction sought to be enlivened, can be seen to amount to the bringing of an action, within two years of the event giving rise to it. This is so, even though the jurisdiction is federal jurisdiction, whether invoked in a State court vested with it pursuant to s 39 of the Judiciary Act 1903 (Cth) or otherwise. It is not suggested that the proceedings here could not be, or should not have been brought, as they were, in the Supreme Court of Victoria. It is accordingly necessary to ascertain whether what the respondent did here could properly be characterized as bringing an action within two years of her husband's death, and that in turn requires an analysis of the requirements for the bringing of an action in the Supreme Court of Victoria.

  243. Rule 5.01 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) ("the Rules") defines "originating process" as a "writ, originating motion or other process by which a proceeding is commenced".

  244. Rule 5.02 provides that a writ should be in Form 5A which is as follows:

    Form 5A

    WRIT

    IN THE SUPREME COURT OF VICTORIA AT

    BETWEEN

    Plaintiff

    and

    Defendant

    TO THE DEFENDANT

    TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this writ.

    IF YOU INTEND TO DEFEND the proceeding, or if you have a claim against the plaintiff which you wish to have taken into account at the trial, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.

    YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by -

    (a)

    filing a 'Notice of Appearance' in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the writ has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

    (b)

    on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this writ.

    IF YOU FAIL to file an appearance within the proper time, the plaintiff may OBTAIN JUDGMENT AGAINST YOU on the claim without further notice.

    *THE PROPER TIME TO FILE AN APPEARANCE is as follows -

    (a)

    where you are served with the writ in Victoria, within 10 days after service;

    (b)

    where you are served with the writ out of Victoria and in another part of Australia, within 21 days after service;

    (c)

    where you are served with the writ in New Zealand or in Papua New Guinea, within 28 days after service;

    (d)

    where you are served with the writ in any other place, within 42 days after service.

    IF the plaintiff claims a debt only and you pay that debt, namely, $ and $ for legal costs to the plaintiff or his solicitor within the proper time for appearance, this proceeding will come to an end. Notwithstanding the payment you may have the costs taxed by the Court.

    FILED

    Prothonotary

    THIS WRIT is to be served within one year from the date it is filed or within such further period as the Court orders.

    ....

    There is provision of a space on the document for the inclusion of an indorsement.

  245. Rule 5.04(2) specifies the contents of an indorsement of claim which each writ must bear:

    (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.

  246. Unless therefore the unamended writ and indorsement filed by the respondent within time, contained either a statement of claim, or 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, she could not be regarded as having brought action within time as required by s 34 of the Act.

  247. I have concluded that this question should be answered in favour of the respondent.

  248. The fact that she had in mind a claim of the kind to which Lord Campbell's Act gives rise, and may have been completely unaware of the Act, its special provisions and its displacement of all other causes of action, does not defeat her right to proceed under the Act.

  249. As I have observed in Air Link Pty Ltd v Paterson, the words "cause of action" do not have one meaning for all purposes and all occasions. Rule 5.04 of the Rules does not even use the full expression "cause of action". There is no reason why "cause", the word actually used, should not be understood as the event or circumstances giving rise to the claim. So too, "the nature of the claim" can be understood as the type of claim, that is a claim for damages, just as the relief or remedy can be understood as a claim for damages arising out of, or as a result of the death of a passenger (Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 35) caused by an accident in the course of the operation of the aircraft (Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 28). That the accident may have been caused negligently is of no significance, and any pleading of that can be disregarded or struck out.

  250. Paragraphs 1, 2, 5 and 6 of the unamended statement of claim at least imply that the appellant was engaged in a commercial activity of aircraft charter, and that the deceased's engagement of it, and flight on its aircraft were of a commercial character. The language of implied terms used in par 5 in particular would hardly be apt otherwise. As to the route, destination and terminus of the flight, it is enough that one destination in the Northern Territory, to which the Act is applicable, at least is identified, that is Timber Creek.

  251. Although the statement of claim contains much that is surplusage to a claim under the Act, what it does contain is sufficient for a court to say that action has been brought by the filing of the writ, indorsed as it was, with the unamended statement of claim.

  252. At first instance Ashley J thought the respondent's unamended statement of claim deficient in failing to identify, not only the Act, but also the relevant specific provision of it enabling her to claim as required by r 13.02(1)(b) of the Rules which provides as follows:

    (1)

    Every pleading shall -

    ....

    (b)

    where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on.

  253. It is true that the respondent did purport, by heading her indorsement on the writ, "statement of claim", to elect to adopt alternative (a) of r 5.04(2) of the Rules. The fact however that she did so, does not mean that she has not complied with r 5.04, that is, by issuing a sufficient writ and by providing in it, as she did, the reasonable particularity that r 5.04(2)(b) requires.

  254. It would be anomalous if, having complied with one part of r 5.04, the respondent should be taken not to have issued a sufficient originating process because she failed to comply with another part of it, on the basis only that she misdescribed her indorsement as a statement of claim, that being so only because it did not identify the specific provision of an Act to be relied upon.

  255. Regard should be had also to r 14.01 which provides that:

    Where an indorsement of claim on a writ constitutes a statement of claim in accordance with Rule 5.04, no statement of claim shall be served.

  256. It is important to notice that the rule uses the word "constitutes" and not "is or purports to be". In short, unless the indorsement constitutes a statement of claim, a statement of claim must be served within 30 days after the entry of an appearance as required by r 14.02 which also uses the word "constitute". What has happened here may therefore be analyzed in this way. Rule 5.04(2)(b) has been complied with by the respondent for the reasons that I have given. Despite that she and her advisers may have thought that they had filed a writ with an indorsement of claim containing a statement of claim, they did not do so because the indorsement lacking as it did the identification of the relevant specific provision did "not constitute a statement of claim" in fact. Indeed it was then open, indeed obligatory for the respondent to serve a document truly constituting a statement of claim 30 days after the appellant's appearance, or within such further time as the court might allow. Accordingly O 13 did not operate to deny, as was held below, that the respondent had done what was necessary to bring an action within two years of the relevant events as required by the Act.

  257. There is a further reason why the conclusion that I have just stated is the correct one. It is that the pleadings in the case should be read as a whole, and the defence containing all appropriate references to the Act having also been delivered before the expiration of the two years, should be read with the statement of claim and as giving to it all the particularity that either branch of r 5.04(2) requires.

  258. In addition to what I have said in Air Link Pty Ltd v Paterson, with respect to extinguishment, I would make the point that ss 79 and 80 of the Judiciary Act cannot operate to pick up a State rule, or rules of court such as those designed to alter the common law as stated in Weldon v Neal (1887) 19 QBD 394, and which would, if operative, have the effect of amending or detracting from the operation of a federal enactment, here the Act.

  259. I would dismiss the appeal with costs.


[1] The term "commercial transport operations" is defined in s 26(1) as meaning "operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo".

[2] The Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature at Warsaw on 12 October 1929, [1963] ATS 18.

[3] Not without reservations expressed by the participating judges: see Agtrack (2003) 7 VR 63 at 78 [23] per Ormiston JA ("with some reluctance"), 105 [87] per O'Bryan AJA ("a degree of hesitancy"). The primary judge in Agtrack, Ashley J, reached a firm view similar to that of the New South Wales Court of Appeal in Air Link No 1: see Hatfield v Agtrack (NT) Pty Ltd (2001) 183 ALR 674 at 681 [33].

[4] Warsaw Convention, Art 29.1 (Sched 1 to the Carriers' Act); Warsaw Convention as amended at the Hague, Art 29.1 (Sched 2); Montreal No 3 Convention (Warsaw Convention as amended by the Hague Protocol, Ch I of the Guatemala City Protocol and Ch I of the Montreal Protocol No 3), Art 29.1 (Sched 4).

[5] Povey v Qantas Airways Ltd (2005) 216 ALR 427 at 456-457 [128]-[134]; cf Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 at 466-467 [153]-[154]; Sidhu v British Airways Plc [1997] AC 430 at 438, 440-442, 444-445, 450-453; El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 at 169-170 (1999); Corney, "Mutant Stare Decisis: The Interpretation of Statutes which Incorporate International Treaties into Australian Law", (1994) 18 University of Queensland Law Journal 50.

[6] The Court of Appeal in Air Link No 1 [2002] NSWCA 85 at [7], [9]; Ashley J in Hatfield (2001) 183 ALR 674 at 681 [33]. See also Staples v City and Country Helicopters Pty Ltd (1994) 119 FLR 291.

[7] Warsaw Convention, Art 29.2. For example, whether a year means twelve months or 365 days or whether it includes parts of days: Kahn 443 NYS 2d 79 (1981); Gal v Northern Mountain Helicopters Inc (1999) 177 DLR (4th) 249.

[8] Motorola Inc v MSAS Cargo International Inc 42 F Supp 2d 952 (1998); Western Digital Corpn v British Airways plc [2001] QB 733 at 741-742 [14] (CA). But see Pennington v British Airways 275 F Supp 2d 601 (2003); cf Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1, par VII[448]; Giemulla & Schmid (eds), Warsaw Convention, (2003), Art 29, pars 14-18.

[9] Baldry v Jackson [1976] 2 NSWLR 415 at 419. But see Liff v Peasley [1980] 1 WLR 781 at 802-803; [1980] 1 All ER 623 at 641-642; Ketteman v Hansel Properties Ltd [1987] AC 189 at 200.

[10] Section 79 of the Judiciary Act 1903 (Cth) provides:

State or Territory laws to govern where applicable

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

[11] Section 109 of the Constitution provides:

Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

[12] By application of the definition of "Australian territory" in s 3(1) of the CAA and reg 206 of the Civil Aviation Regulations 1988.

[13] The 'contract for the carriage of the passenger' required by s 27(1) includes, according to the definition of 'contract' in s 26(1) 'an arrangement made without consideration'.

[14] Section 27(3) of the Carriers' Act states:

For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be.

[15] Carriers' Act, s 34. The terms of this section are relevantly identical to the provisions of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature at Warsaw on 12 October 1929, [1963] ATS 18, Art 29.1 ("Warsaw Convention"). Although the Warsaw Convention itself did not apply to the air carriage of the passenger, the application of its terms to domestic as well as international air travel was the policy of Pt IV of the Carriers' Act.

[16] Field, "'Turbulence Ahead': Some Difficulties for Plaintiffs with Air Carriers' Liability for Death and Injury under Australian Law", (2005) 13 Torts Law Journal 62. In the Court of Appeal in Agtrack (2003) 7 VR 63 at 67 [1] fn 3, Ormiston JA points out that none of the standard Australian torts textbooks makes clear the substitution of legal rights enacted by the Carriers' Act.

[17] Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1, par VII[443] referring to reported dismissals of actions brought out of time in Australia, England, Scotland, France, Greece, United States and Canada.

[18] In some States uniform civil procedure rules relating to civil proceedings in more than one jurisdiction have been introduced: see for example Uniform Civil Procedure Rules 1999 (Q) which stipulate uniform procedures for the Supreme Court, District Court and Magistrates Courts in Queensland (r 3.1).


Cases

Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; R v Hawkins (1808) 10 East 211; 103 ER 755; Hawkins v The King (1813) 2 Dow 124; 3 ER 810; Williams v The East India Company (1802) 3 East 192; 102 ER 571; South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301; In re Hoyles; Row v Jagg [1911] 1 Ch 179; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72; In the Matter of an Application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881; 214 ALR 422; R v Elliott (1996) 185 CLR 250; Fernance v Nominal Defendant (1989) 17 NSWLR 710; Truong v The Queen (2004) 78 ALJR 473; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30; Povey v Qantas Airways Ltd (2005) 216 ALR 427; Harris v Raggatt [1965] VR 779; Wickstead v Browne (1992) 30 NSWLR 1; Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; Kahn v Trans World Airlines Inc 443 NYS 2d 79 (1981); Fishman v Delta Air Lines Inc 132 F 3d 138; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Fothergill v Monarch Airlines Ltd [1981] AC 251; Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; Paterson v Air Link Pty Ltd unreported, District Court of New South Wales, 16 May 2002; Timeny v British Airways plc (1991) 56 SASR 287; Sidhu v British Airways plc [1997] AC 430; El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999); Emery Air Freight Corporation v Nerine Nurseries Ltd [1997] 3 NZLR 723; Gal v Northern Mountain Helicopters Inc (1999) 177 DLR (4th) 249; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Weldon v Neal (1887) 19 QBD 394; Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; Hernaman v Smith (1855) 10 Exch 659; 156 ER 603; Cooke v Gill (1873) LR 8 CP 107; Woolworths Ltd v Crotty (1942) 66 CLR 603; Northern Territory v GPAO (1999) 196 CLR 553; Koop v Bebb (1951) 84 CLR 629; Blunden v Commonwealth (2003) 78 ALJR 236; 203 ALR 189; Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; Hatfield v Agtrack (NT) Pty Ltd (2001) 183 ALR 674; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; H V McKay Pty Ltd v Hunt (1926) 38 CLR 308; Hume v Palmer (1926) 38 CLR 441; In re Judiciary and Navigation Acts (1921) 29 CLR 257; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Felton v Mulligan (1971) 124 CLR 367; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR (Pt 2) 1087; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536; Milor Srl v British Airways Plc [1996] QB 702; The Crown v McNeil (1922) 31 CLR 76; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; Emanuele v Australian Securities Commission (1997) 188 CLR 114; Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136; Airlines of NSW Pty Ltd v New South Wales (1964) 113 CLR 1; Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; Solomons v District Court (NSW) (2002) 211 CLR 119; Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287; Northern Territory v GPAO (1999) 196 CLR 553; Hume v Palmer (1926) 38 CLR 441; Staples v City and Country Helicopters Pty Ltd (1994) 119 FLR 291

Legislations

Constitution: s.76(ii)

Civil Aviation (Carriers' Liability) Act 1959 (Cth), Pt IV.

Judiciary Act 1903 (Cth): s.39, s.79, s.80.

District Court Act 1973 (NSW).

District Court Rules 1973 (NSW).

Convention for the Unification of Certain Rules Relating to International Carriage by Air ("Warsaw Convention"), opened for signature at Warsaw, 12 October 1929, [1963] ATS No 18.

Authors and other references

Dean Griswold in "Renvoi Revisited", (1938) 51 Harvard Law Review

Bullen & Leake and Jacob's Precedents of Pleadings, 12th ed (1975)

Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, (2000)

Dettling-Ott, Warsaw Convention, (2003) (Giemulla & Schmid (eds)

Parliamentary Debates (Hansard), 7 April 1959

Field, "'Turbulence Ahead': Some Difficulties for Plaintiffs with Air Carriers' Liability for Death and Injury under Australian Law", (2005) 13 Torts Law Journal 62

Shawcross & Beaumont, Air Law, 4th ed (2005), vol 1

Corney, "Mutant Stare Decisis: The Interpretation of Statutes which Incorporate International Treaties into Australian Law", (1994) 18 University of Queensland Law Journal 50

Representations

R F Margo SC with R M Peters and M J Leeming for the appellant, Air Link Pty Ltd (instructed by Norton White)

D F Jackson QC with P A Regattieri for the respondent, Paterson (instructed by M J Duffy & Son)

R F Margo SC with R M Peters and M J Leeming for the appellant, Agtrack (NT) Pty Ltd (instructed by Norton White)

A G Uren QC with P F O'Dwyer SC for the respondent, Hatfield (instructed by Slater & Gordon)


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