Lauschet v Malaysian Airlines System Berhad

HER HONOUR: On 17 July 2014, Malaysia Airlines flight MH17, a passenger flight from Amsterdam to Kuala Lumpur, crashed in East Ukraine killing all passengers on board. Gabrielle Lauschet was an Australian woman on board the plane.

The plaintiff in these proceedings is Tim Lauschet, her only son. Mr Lauschet wishes in due course to bring an action for damages against the carrier. Any such claim would be governed by the 1999 Montreal Convention as incorporated into the law of Australia by the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth).

The provisions of both the Convention and the Act are in some respects obscure; for example, in their identification of the precise nature of a claim that may be brought against a carrier, the heads of damage that may be awarded and requirements of proof. The plaintiff accordingly seeks declaratory relief to have those matters clarified before bringing proceedings claiming damages. He has done so by summons filed 17 July 2015.

Upon what is in effect (but not literally) the first return date of the summons, the defendant, Malaysian Airlines System Berhad, sought to have the proceedings referred to me as duty judge for case management.

The plaintiff had come to Court seeking directions for the defendant to file its evidence first; the plaintiff then to file any evidence and for the matter then to return to Court for directions. The defendant submitted that the matter should proceed on pleadings and proposed a timetable for that to occur.

It should be noted that each party was endeavouring in those competing proposals to propose orders which would serve the overriding purpose under s 56 of the Civil Procedure Act 2005 (NSW). For his part, the plaintiff was concerned not to launch expensive litigation if certain heads of damage he might wish to claim are not available under the legislation to which I have referred. There is considerable good sense in that approach.

The defendant, for its part, was concerned that the summons as presently drawn seeks hypothetical advice contrary to the principles stated by the High Court in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334. There may also be some force in that concern. The defendant sought to make clear that it does not wish to be obstructive to any claims arising from the tragic events of July last year. The defendant did not today contend that the summons was liable to be dismissed on the grounds of the principles stated in Bass but rather wished to have the issues better clarified in order to consider that issue.

Without pre-empting any argument that might have to be considered in the future, it may be observed that there are potentially some difficulties with the summons as presently framed. To a degree, those difficulties reflect the obscurity of the laws to which I have referred but I think there is also a need for the prayers for relief sought in the summons to be articulated more clearly.

Article 17 of the Montreal Convention governs the liability of a carrier in the case of death and injury of passengers. Article 17(1) provides:

Article 21(1) provides that for damages arising under art 17(1) not exceeding 100,000 special drawing rights for each passenger, the carrier shall not be liable to exclude or limit its liability. I was informed at the case management hearing this morning that the relevant entitlement is now a larger number of special drawing rights equating to a sum of approximately $215,000.

Section 9 of the Civil Aviation (Carriers Liability) Act explains the enforcement of those remedies in this jurisdiction. Section 9D(3) provides:

Section 9D(4) provides:

Each of those provisions appears to create a separate remedy; subs (3) dealing with the remedy at the suit of a family member of the passenger who has died or suffered bodily injury and subs (4) dealing with the remedy obtainable at the suit of a person in the position of personal representative of the deceased passenger in that capacity.

To illustrate the difficulty I have perceived with the summons in its present form, the first prayer for relief in the summons is in the following terms:

That claim for relief appears to reflect a contention that in the case of death of a passenger on board an aircraft, damages, whether enforced at the suit of a family member or a personal representative of the deceased, necessarily exceed the cap and, accordingly, that proof of damages is not required.

Alternatively, the plaintiff appears to contend that proof to the ceiling of the cap (that is, the number of special drawing rights referred to in the Convention) is a sufficient basis for entitlement to payment of the cap.

The summons is presently not expressed in terms apt for declaratory relief such as to resolve or determine those contentions. The summons should, in my view, seek relief in the form of, for example, a declaration “that the plaintiff, being a family member who sustained damage because of his mother's death, is entitled to payment of the specified number of special drawing rights" or, for example, a declaration “that the plaintiff, being the personal representative of the deceased, is entitled to claim [some specified amount]".

Articulation of the relief sought in that manner will better crystallise the issues so as to enable the defendants to consider whether to challenge the proceedings altogether and otherwise so as to enable the parties to prepare evidence or a set of agreed assumptions and submissions with a view to having the summons determined at an early hearing date. That is in the interests of justice because one thing that is clear is that the Convention imposes an absolute bar of two years from the date of the accident.

With great respect to the pleader, who has evidently given careful thought to the difficult and complex problem presented by these circumstances, the present prayers for relief in the summons appear to me to entail two vices. One is that they do not make clear what the plaintiff contends should be the proper construction of the relevant law. Each contention of the plaintiff should be expressed in the terms of a declaration that could be made by the Court. Presently, each of the declarations includes language such as "a declaration as to the nature and character of items or heads of damage that may be taken into account" and like language.

Secondly, each of the declarations presently sought is sought "in the circumstances that have occurred" but there is no specification of the circumstances contended to have occurred.

It would, in my respectful opinion, be preferable if, whether in the summons or in some separate document, the plaintiff were to tease out the assumptions to be made as to "the circumstances that have occurred" and state each declaration sought on those assumptions in terms reflecting the legal proposition contended for by the plaintiff. Having regard to the overriding purpose of the Civil Procedure Act, I do not think it is appropriate to direct that the proceedings proceed on pleadings.

The orders I propose, subject to anything further the parties may wish to put, are that the plaintiff serve points of claim together with any further amended summons within a specified period, that the defendant have an opportunity to respond to the points of claim and that the proceedings then come back before me for further directions.

I direct the plaintiff to serve his points of claim together with any further amended summons on or before 18 September 2015. I direct the defendant to serve a response to the points of claim on or before 9 October 2015 and bring the proceedings back before me on Friday, 16 October 2015.

I make no order as to costs.