Kern v Qantas Airways Limited

1. [1]

   HER HONOUR: This matter arises out of an engine failure that occurred during flight QF32 from Singapore to Sydney on 4 November 2010. The plaintiff was a passenger on that flight. By amended statement of claim filed 1 July 2015, the plaintiff seeks damages in the sum of $3,301,502,000,000 against the first defendant as carrier, the second defendant as the manufacturer of the aircraft and the third defendant as the manufacturer of the engine that failed.

2. [2]

   The plaintiff is Seymour P Kern. The first defendant is Qantas Airlines Limited (“Qantas”). The second defendant is Airbus Australia. The third defendant is Rolls Royce Plc (“Rolls Royce”). The plaintiff relied upon his affidavits dated 10 July 2015, 15 July 2015, 21 July 2015, 22 July 2015, 4 August 2015, 17 August 2015, 20 August 2015, 28 August 2015 and 29 September 2015. Qantas and Rolls Royce relied upon the affidavit of Andrew Michael William Dunn sworn 30 July 2015. AGAP relied upon the affidavit of Gregory John Williams sworn 24 September 2015.

3. [3]

   There are four notices of motion before the Court. By notice of motion filed 30 July 2015, Qantas and Rolls Royce seek firstly, an order that these proceedings as against Qantas be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on the basis that it is statute barred pursuant to s 9B of the Civil Aviation (Carriers’ Liability Act) 1959 (Cth) (“Carriers’ Liability Act”) and Article 35 of the Montreal Convention 1999; and secondly, an order that the amended statement of claim filed 1 July 2015 as against Qantas and Rolls Royce be struck out pursuant to UCPR 14.28(1). At the hearing, Mr Chen of counsel appeared for Qantas and Rolls Royce.

4. [4]

   By notice of motion filed 25 September 2015, Airbus Group Australia Pacific Limited (“AGAP”) seeks firstly, an order pursuant to UCPR 13.4 that these proceedings be dismissed; and secondly, an order pursuant to UCPR 14.28 that the plaintiff’s amended statement of claim filed 1 July 2015 be struck out. At the hearing, Mr Potts of counsel appeared for AGAP.

5. [5]

   The plaintiff has filed two notices of motion dated 17 August 2015 and 28 August 2015. He appeared without legal representation. I shall deal with the defendants’ motions first, followed by the plaintiff’s motions.

Legal advice

1. [6]

   On 6 August 2015, Button J made an order referring the plaintiff to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance.

2. [7]

   This Court asked the plaintiff whether he had received the benefit of pro bono legal advice. He replied that he had but that the assistance he received “did not understand or have information that we needed for our case, so I just went on my own. It doesn’t work”. (T2.7-2.9).

3. [8]

   The plaintiff has had the benefit of earlier legal advice. On 26 June 2015, Robyn Burgess of Slater and Gordon lawyers spoke to the plaintiff by telephone. On 30 June 2015, Ms Burgess wrote to the plaintiff confirming her advice. Ms Burgess stated:

4. [9]

   So far as the plaintiff’s public liability claim is concerned, Ms Burgess advised that to prove a claim in negligence it is necessary to show:

5. [10]

   Ms Burgess confirmed her earlier advice to the plaintiff that he did not have a viable claim.

Summary judgment

1. [11]

   UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.

2. [12]

   UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.

3. [13]

   UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).

4. [14]

   In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application (at [3] in O’Brien):

The pleading in the amended statement of claim

1. [15]

   On 25 June 2015, the plaintiff commenced these proceedings by the filing of a statement of claim. On 1 July 2015, the plaintiff filed an amended statement of claim. On 2 July 2015, the statement of claim and the amended statement of claim were served on Qantas (Aff. Dunn 30/7/2015). On 9 July 2015, the statement of claim and the amended statement of claim were served on Rolls Royce (Aff. Dunn 30/7/2015).

2. [16]

   The pleading in the amended statement of claim is as follows.

3. [17]

   On 4 November 2010, the plaintiff was a passenger aboard flight QF32 from Singapore to Sydney (25).

4. [18]

   The aircraft was an Airbus 380 fitted with Rolls Royce engines at the time of the incident (25).

5. [19]

   Approximately 20 minutes out of Singapore there was an explosion and the Captain “then announced that engine 2 was out of commission but that the plane could still be navigated back to Singapore with three engines” (25-26).

6. [20]

   Following the event, the aircraft returned to, and landed safely in, Singapore. (26).

7. [21]

   The plaintiff is “suing primarily for...compensatory damage...” as well as “pursuing the matter primarily on the basis of punitive damages” (26).

8. [22]

   In relation to the claim for compensatory damages the “type of claim” is identified as “Torts Gross Negligence Personal Injury” (3). The heads of damage that are claimed include non-economic loss, economic loss and out of pocket expenses (4).

9. [23]

   On 6 August 2015, in an exchange with the Registrar at a directions hearing, the plaintiff stated (as set out in Aff. Williams 24/9/2015):

10. [24]

    I accept that the plaintiff did not suffer any physical injury and that he asserts there is nothing wrong with him psychologically. If this is correct, then he has no claim for personal injuries.

11. [25]

    In his various affidavits and in oral submissions, the plaintiff’s focus of concern is with an alleged violation of informed consent. In oral submissions, he explained that the defendants should have set out the problems with the engine in the written terms and conditions that are forwarded to the passengers when they purchase their plane tickets. The transcript of those submissions encapsulates his argument more fully. It is as follows:

12. [26]

    I shall deal with the claims against each of the defendants in turn.

(1) Qantas

1. [27]

   Qantas submitted that the proceedings against it should be dismissed because the plaintiff’s claim against it is one that engages the Carriers’ Liability Act and the Montreal Convention; and by virtue of s 9B of the Carriers’ Liability Act and Article 35 of the Montreal Convention, the plaintiff’s claim is statute barred. Qantas says that this fatal flaw cannot be overcome by repleading.

Aviation law – personal injury claims

1. [28]

   I acknowledge that I have adopted and largely reproduced the helpful submissions prepared by counsel for Qantas on this topic.

2. [29]

   Claims for damages for personal injury in connection with international carriage by air are governed by a series of international conventions, ratified by Australia, collectively described as the “Warsaw System” rules. Those conventions are the Warsaw Convention 1929, the Hague Protocol 1955, the Guadalajara Convention 1961, the Montreal Protocol No 4 1975 and the Montreal Convention.

3. [30]

   These conventions have been incorporated into domestic legislation, the current form of which is the Carriers’ Liability Act. Section 9B of the Carriers’ Liability Act reads:

4. [31]

   The Montreal Convention came into force in Australia on 24 January 2009 by the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth).

5. [32]

   The ratification by Australia of the Montreal Convention confers no rights upon the plaintiff; rather, Part 1A of the Carriers’ Liability Act creates and confers the rights: see Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 at 199.

6. [33]

   The Montreal Convention, contained in Schedule 1A to the Carriers’ Liability Act, applies to all “international carriage of persons”: see Article 1, paragraph 1.

7. [34]

   The Montreal Convention defines “international carriage” to mean “any carriage in which, according to the agreement between the parties, the place of departure and the place of destination... are situated... within the territories of two States Parties”: see Article 1, paragraph 2. Article 1 directs attention to the carriage that is anticipated by the parties according to their agreement. In Grein v Imperial Airways Ltd [1937] 1 KB 50; [1936] 2 All ER 1258 at 128, Greene LJ explained:

8. [35]

   In the event that the Montreal Convention applies to a carriage, the Montreal Convention prevails over the other Warsaw System rules to which the State Parties are commonly a party: see Article 55, paragraph 1.

9. [36]

   As was pointed out by the Victorian Court of Appeal in Qantas Ltd v Povey [2003] VSCA 227; (2003) 11 VR 642, the Carriers’ Liability Act does not identify the State Parties to the relevant conventions. In these circumstances, the United Kingdom, Singapore and Australia have all ratified the Montreal Convention, and so each is a “State Party”.

10. [37]

    Thus, by operation of Article 55, paragraph 1 of the Montreal Convention, the terms of the Montreal Convention prevail over the other Warsaw System rules and apply to the plaintiff’s claim arising out of his carriage on QF32 on 4 November 2010.

11. [38]

    However, the plaintiff disagrees that the Montreal Convention should apply. His position is that “Let it be known to all parties that we are not to be governed by the unfair Montreal Convention. Thus, would it be proper to draft a new name, Convention. Perhaps we call it the Sydney Convention authored by Seymour P Kern” (Aff. Kern 17/8/2015). In oral submissions, the plaintiff elaborated on what would form the basis of his “Sydney Convention”, namely that there would be no limitation period and no monetary threshold for claims:

12. [39]

    The liability of the carrier under the Montreal Convention in respect of personal injury suffered by a passenger “is in substitution for any civil liability of the carrier under any other law in respect of the injury”: see s 9E of the Carriers’ Liability Act. Article 29 of the Montreal Convention further provides that “in the carriage of passengers... any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention”. Hence, the Montreal Convention, as given force of law by the Carriers’ Liability Act, provides the exclusive remedy for the plaintiff against Qantas arising out of his international carriage by air, to the exclusion of any contract or other common law cause of action: see Sidhu & Abnett (known as Sykes) v British Airways plc [1997] AC 430; [1997] 1 All ER 193; Stott v Thomas Cook Tour Operators Ltd [2014] AC 1347; [2014] 2 All ER 409; cf Povey v Qantas Airways Ltd at 203 [my emphasis added].

13. [40]

    In United Airlines Inc v Sercel Australia Pty Ltd (2012) 260 FLR 37; [2012] NSWCA 24, the Court of Appeal adopted Sidhu. Allsop P (Macfarlan JA and Handley AJA agreeing) at [96] stated:

14. [41]

    Chapter III of the Montreal Convention deals with the liability of the carrier and the extent of compensation for damage. The liability of the carrier, in the case of personal injury, is determined by Article 17 of the Montreal Convention which provides:

15. [42]

    The essential feature of the statutory framework for the international carriage of passengers (under the Warsaw System rules generally) is the imposition of strict liability on the air carrier for any injuries sustained by a passenger so that an injured passenger need not prove negligence, provided that Article 17 of the Montreal Convention is satisfied: see Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 at 260.

16. [43]

    In cases where the amount of compensation claimed is less than 113,100 Special Drawing Rights (a monetary unit of the International Monetary Fund, approximately $228,000) then the liability is strict subject to contributory negligence (see “Exoneration” in Article 20). In cases where the amount of compensation claimed is more than 113,100 Special Drawing Rights, then three defences are available: contributory negligence (Article 20); if the carrier proves “that such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents” (Article 21(2)(a)); or if the carrier proves that the damage was “solely due to the negligence or other wrongful act or omission of a third party” (Article 21(2)(b)).

17. [44]

    Finally, there is a two year limitation period to commence any action. Article 35(1) provides:

Qantas’ submissions - cause of action extinguished

1. [45]

   Counsel for Qantas submitted that there can be no issue about the international character of the carriage, the agreement entered was for travel by air from London to Singapore and from Singapore to Sydney. Picking up Article 1(1) of the Montreal Convention, there was international carriage that, according to the agreement between the plaintiff and Qantas, involved the place of departure and the place of destination situated within the territories of two State Parties, the United Kingdom (or Singapore) and Australia.

2. [46]

   According to counsel for Qantas, it is apparent from the amended statement of claim that the underlying claim involves a claim for personal injury. There are several references to “personal injury” in the amended statement of claim, and several references to phrases that are associated with a claim for personal injury - such as “negligence” and “non-economic loss”. The proper finding is that the present claim is “in respect of personal injury suffered by a passenger” within s 9E of the Carriers’ Liability Act and an “action for damages” within Article 29 of the Montreal Convention.

3. [47]

   Hence, Qantas submitted that the proceedings against it should be dismissed because the plaintiff’s claim against it is one that engages the Carriers’ Liability Act and the Montreal Convention; and so was required to, but did not, comply with the prescribed time restrictions.

Qantas - Conclusion

1. [48]

   The claim made by the plaintiff against the Qantas in the amended statement of claim is a claim governed by the Montreal Convention. Any claim the plaintiff desired to bring against Qantas arising out of the event on 4 November 2010 was required to, but did not, comply with the time restrictions prescribed by Article 35 of the Montreal Convention. That is, any proceedings were required to be “brought within a period of two years” from the event or are otherwise extinguished: see Agtrack (NT) Pty Limited v Hatfield at 259, 268-269.

2. [49]

   The limitation period is two years from the date of arrival at the destination. That equates to two years from 5 November 2010 at the latest, ie, 5 November 2012. The plaintiff commenced proceedings on 1 July 2015, over two years out of time. Hence, his claim is statute barred and an extension of time cannot be given. The plaintiff has had the benefit of prior legal advice and he says that he has not suffered personal injury. The expiry of the limitation period is a fatal flaw which cannot be overcome. In the exercise of my discretion, I would not grant the plaintiff leave to replead the claim against Qantas. In these circumstances, it is my view that the plaintiff’s claim against Qantas should be dismissed.

(2) Submissions of AGAP – wrong defendant

1. [50]

   AGAP is not named as a defendant in the amended statement of claim. The second defendant is named as “Airbus Australia”. The statement of claim was served on AGAP at its principal place of business in Bankstown. The amended statement of claim names “Airbus Australia” as the second defendant. Airbus Australia is not a business name, nor is it a company in existence in Australia (Aff. Williams 25/9/2015, para 7).

2. [51]

   Counsel for AGAP submitted that given that AGAP was served with the amended statement of claim, and given the fact that the named second defendant is described as “Airbus, Australia”, to guard against the possibility that the amended statement of claim might be taken to name AGAP as a defendant, it has filed the present motion seeking to have the proceedings dismissed or struck out. AGAP has nothing to do with the manufacture of commercial fixed-wing aeroplanes (Aff. Williams 25/9/2015, para 16). It was not involved in the manufacture, sale or maintenance of the Airbus aeroplane QF32.

3. [52]

   The plaintiff appears to assert that he intends to sue all “Airbus” entities throughout the world. In an email dated 23 August 2015 to Registrar Kenna, copied to AGAP’s solicitors, the plaintiff stated:

4. [53]

   In oral submissions, the plaintiff explained that he has asked AGAP to supply details of all its registered companies in the world and it has not done so.

5. [54]

   AGAP has written to the plaintiff to advise him that the manufacturer of the plane on which he flew was a company called Airbus SAS (Ex GJW-6). AGAP's legal representatives do not act for, nor appear for, Airbus SAS. In Mr Williams affidavit [at 16], he says that he has been advised by Mr Robert Holtsbaum, General Counsel for AGAP, that:

6. [55]

   Despite being so advised, the plaintiff has not taken any step to amend his pleading.

7. [56]

   It is my view that AGAP had nothing to do with the events the subject of these proceedings. AGAP is not a proper defendant to these proceedings. As the named second defendant is a non-entity, once again taking into account that the plaintiff has received prior legal advice and has been advised by AGAP as to the correct entity to join (albeit in France), and that the plaintiff says he has not suffered personal injury, I would not grant leave for him to replead. I dismiss the proceedings against the named second defendant.

(3) Rolls Royce

1. [57]

   Rolls Royce seeks an order that the plaintiff’s claim be dismissed. Counsel for Rolls Royce relied upon Clarke v New South Wales [2015] NSWSC 1054, where Garling J summarised the principles relevant to an application under UCPR 14.28(1) at [36] to [45]:

2. [58]

   Rolls Royce submitted that the pleading in the amended statement of claim infringes each of those principles.

3. [59]

   It is my view that from a fair reading of the amended statement of claim, it is not clear what case Rolls Royce is expected to meet. The amended statement of claim should be struck out against Rolls Royce.

4. [60]

   While it may be possible to claim against Rolls Royce as the manufacturer of the engine installed in the Airbus, as that claim may not fall within the Montreal Convention, in the exercise of my discretion I would not grant the plaintiff leave to do so on the basis that the plaintiff has already had one opportunity to amend his pleading, has received legal advice and says that he had not suffered personal injury. While he has foreshadowed that although he was working on another “set that is supposed to be coming out”, there is very little change (T81.13-20). The amended statement of claim as against Rolls Royce is dismissed.

The plaintiff’s motions

1. [61]

   By notice of motion filed 17 August 2015, the plaintiff now seeks the following orders:

2. [62]

   The plaintiff sought to rely on his affidavit filed 17 August 2015 in support of the motions. At the hearing, counsel for Qantas objected to a paragraph of that affidavit that paraphrased a report released by the Australian Transport Safety Bureau (“ATSB”), dated 27 June 2013, titled “In-flight Uncontained Engine Failure Overhead Batam Island, Indonesia 4 November 2010 VH-OQA Airbus A380-842” on the basis that the use of such ATSB reports is inadmissible in evidence in any civil or criminal proceedings pursuant to s 27 of the Transport Safety Investigation Act 2003 (Cth).

3. [63]

   Section 27 of the Transport Safety Investigation Act reads:

4. [64]

   The plaintiff’s response to this objection was that “they were the only people in the world that had access to that evidence, and therefore it was really unfair for them to make a stipulation that you couldn’t use it. Because it wasn’t fair” (T32.36-32.38).

5. [65]

   By notice of motion filed 28 August 2015, the plaintiff seeks the following orders:

6. [66]

   As I have dismissed the amended statement of claim against all three defendants and I have not, in the exercise of my discretion, grant the plaintiff leave to replead, the proceedings should also be dismissed. Hence, it is not necessary to determine the plaintiff’s notices of motion filed 17 August 2015 and 28 August 2015. Those notices of motion should be dismissed.

7. [67]

   Costs are discretionary. Costs follow the event. The plaintiff has been unsuccessful so he should pay the costs.