Aerolink Air Services Pty Ltd v Bankstown Airport Ltd

Court of Appeal (NSW)|2023-04-18|Before: Meagher JA, Kirk JA, Leeming JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant (Aerolink Air Services Pty Ltd) occupied hangar premises of the respondent (Bankstown Airport Ltd). After termination of that arrangement, the appellant was in the process of removing its property from the hangar when a fire broke out in a storeroom in the hangar. Earlier proceedings addressing the issue of liability established that the respondent, whilst not liable for any damage caused by the fire, was liable as bailee for the destruction of any of the appellant's property after it was removed by the respondent from the premises. The hearing before the primary judge was to assess the quantum of any liability of the respondent. His Honour dismissed that claim, finding that none of the items said to have been destroyed by the respondent - namely, the logbooks for six (which was amended to five) aircraft owned by the appellant - had been destroyed the respondent. Of those, the primary judge found that the logbooks for three of those aircraft had been destroyed in the fire, and that the logbooks for one aircraft (a Bell helicopter) had survived the fire, but were then placed into a box marked with the aircraft's registration number and removed from the hangar by the principal of the appellant, Mr Ryan. In relation to the logbooks for the remaining aircraft (a Cessna), the primary judge was not satisfied that they had survived the fire and were subsequently destroyed by the respondent. On appeal, the appellant only challenged findings of the primary judge with respect to the logbooks for the Bell helicopter and Cessna. The principal issues before the Court of Appeal were whether the primary judge erred: (i) in finding that the logbooks for the Bell helicopter were in the marked box that was removed from the hangar by Mr Ryan after the fire; and (ii) in not being satisfied that the logbooks for the Cessna survived the fire, remained in the hangar and were subsequently destroyed by the respondent. The Court (Meagher JA; Kirk JA and Simpson AJA agreeing) dismissed the appeal, holding: As to issue (i):

JUDGMENT

MEAGHER JA: The task of the primary judge (Leeming JA, exercising jurisdiction as a judge of the Supreme Court) was to assess the amount of damages, if any, suffered by the appellant (Aerolink) by reason of the respondent's (BAL) breaches of duty as bailee in removing and destroying items owned by it from Hangar 410 at 16 Drover Road, Bankstown Airport on or about 30 July 2014. The only items of value claimed to have been removed were aircraft logbooks that had survived an earlier fire in the hangar. This is an appeal from the primary judge's orders dismissing that claim for damages.

Overview

From about December 1999, Aerolink had sub-leased or licensed that hangar from BAL. On 6 March 2013, a fire broke out in a storeroom in the hangar. By that time, Aerolink's sublease and licence had expired, and it was in the process of removing its property from the hangar. The fire caused extensive damage. On 13 March 2013, the director and co-owner of Aerolink, Daniel Ryan, removed some undamaged boxes and materials from the hangar. He was thereafter prevented from having access to it because of a concern that the fire-damaged area, and any goods or chattels in it that might have been salvageable, were contaminated with asbestos. On 30 July 2014, such of those items that remained in the hangar were removed by BAL, used as landfill and, in that process, destroyed.
Following a trial of liability questions only, White J held that in doing so BAL had breached its duty as bailee with respect to such of Aerolink's "logbooks, filing cabinets and other material contained in its filing cabinets that survived the fire" (Aerolink Air Services Pty Ltd v Bankstown Airport Limited [2019] NSWSC 1283). His Honour rejected Aerolink's primary claim that BAL was liable in negligence for the fire and damage it caused to Aerolink's property. White J entered judgment for Aerolink for damages to be assessed in respect of the material which had survived the fire.
Aerolink's claim to more than nominal damages before the primary judge was in respect of the disposal and loss of the logbooks for six aircraft - five fixed-wing and one helicopter - in relation to each of which there were separate logbooks for the airframe, engine or engines, and each propeller. The aircraft were: 1. Embraer Bandeirante N110EM; 2. Embraer Bandeirante VH-WBR; 3. Embraer Bandeirante VH-OZF; 4. Piper Navajo VH-SIN; 5. Cessna VH-XMA; and 6. Bell 206 JetRanger VH-BEK (a Bell helicopter).
Shortly before the assessment of damages hearing, Aerolink abandoned its claim in relation to the logbooks for aircraft VH-OZF, it having been established by inquiries of BAL that this aircraft and its logbooks were in Maryborough, Queensland, where they had been located since 2006 (J[4]).
At the conclusion of argument on the fourth day of the hearing, the primary judge delivered reasons for judgment and ordered that the proceedings be dismissed (Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587).
As to aircraft N110EM, VH-WBR and VH-SIN, his Honour found that their logbooks had been destroyed in the hangar fire on 6 March 2013 (J[104]). There is no appeal from that finding.
As to the logbooks for aircraft VH-BEK, the primary judge found that they "were not destroyed in the fire" (J[105]). Before the fire on 6 March 2013 the archive box containing those logbooks was taken out of the storeroom where the boxes of logbooks were kept, and on 13 March 2013 taken from the hangar by Mr Ryan (J[45]-[50], [105]). That finding is challenged by grounds of appeal 1 and 2, which focus on the question whether the box contained those logbooks.
As to the logbooks for aircraft VH-XMA, the primary judge was not satisfied that they were in the storeroom on 6 March, survived the fire on that day, and were not removed from the hangar until disposed of by BAL on 30 July 2014 (J[106]). His Honour's not making findings to that effect is the subject of ground 2, although that ground in its terms challenges affirmative findings (which were not made) that the logbooks for this aircraft, and aircraft VH-BEK, survived the fire and were removed from the premises by Mr Ryan on 13 March 2013 and not destroyed by BAL. In the argument of the appeal, no point was taken as to the form of ground 2.
For the reasons which follow, the appeal should be dismissed with costs.

Review of factual findings

The primary judge's conclusions involve the rejection of significant aspects of Mr Ryan's evidence as unreliable in the face of objectively established and contemporaneous facts. However, this is not an appeal in which the Court is required to exercise any particular restraint with respect to interference with those findings (cf Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]-[25]; Lee v Lee (2018) 266 CLR 129; [2019] HCA 28 at [55]). At J[103], the primary judge made plain that his findings, and the rejection or non-acceptance of his evidence, were not based upon any assessment of Mr Ryan's demeanour: … I saw Mr Ryan give evidence by AVL over around about a day. I do not hold myself out as being in any especially advantageous position, or having any special ability, to distinguish people telling the truth from people reiterating something that they have come to believe to be true or people telling something they know to be a lie or people who haven't really bothered to work out whether what they are saying is true or false. The reliability of testimonial evidence is best determined by reference to the context, the inherent probabilities, and most significantly, the contemporaneous documents which, as I have sought to explain, in this case are numerous. No part of the findings that I make is dependent upon Mr Ryan's demeanour.

Reasoning of the primary judge

An understanding of the arguments made in support of the two grounds of appeal requires a familiarity with the primary judge's reasons for reaching his challenged, as well as unchallenged, conclusions and the findings which underlie those conclusions. Most of those underlying findings are not challenged. Before considering the conclusions and findings that are challenged, I propose to summarise, albeit at some length, the primary judge's findings and reasons supporting his conclusions in relation to the logbooks of the five aircraft in question.

Initial claim in the underlying proceedings

Aerolink's statement of claim in the underlying proceedings was filed on 22 January 2016, well after the disposal on 30 July 2014 of any logbooks and other material that may have survived the fire. As pleaded, that claim related to the destruction in the fire of the logbooks for aircraft N110EM, VH-WBR and VH-SIN; and was that BAL was liable in negligence, for breach of contract and for breach of duty as bailee in respect of that destruction of those logbooks. That claim as first made was not that the logbooks of any of those aircraft had survived the fire, suffering only superficial or minor damage. Nor was it that the relevant breaches of duty or contract occurred when any logbooks, having sustained such damage, were later disposed of by BAL in July 2014 (see J[70]-[75]).
In the hearing before White J in July and August 2018, such a claim was permitted to be made in relation to the logbooks for those three aircraft, although not pleaded (see judgment of White J at [164]). And notwithstanding that the amended statement of claim then filed did not make any claim in respect of damage to logbooks for the remaining aircraft VH-XMA, VH-BEK or VH-OZF, the evidence in the assessment proceedings was prepared on the basis that Aerolink's claim was also made with respect to the logbooks of those three additional aircraft. The claim in respect of the logbooks for VH-OZF was then abandoned before the final hearing.
The limited nature of Aerolink's initial claim and its significance for the proceeding before the primary judge is referred to at J[3] and explained at J[102]: In 2016, the primary case advanced by the plaintiff involved destruction in the fire of logbooks for three particular aircraft. The case that I have heard over the last four days will fail if that aspect of the primary case is made out - that is to say, if I am satisfied that aircraft logbooks were destroyed in the fire. That is a difficulty that has not squarely been confronted by Mr Ryan in his evidence. The way in which important documents (a verified statement of claim and an affidavit) were drafted in 2016 is not explained by the fact that when the matter went to trial in 2018, the plaintiff was permitted to expand its case to an unpleaded claim based on the destruction of chattels on 30 July 2014.

The questions for the primary judge

The primary judge recorded at J[6] that, to succeed in that claim to damages in respect of the logbooks for those five aircraft, Aerolink was required to establish: (1) that those logbooks were in the hangar and survived the fire on 6 March 2013; (2) that they were not removed from the hangar between 6 March 2013 and 30 July 2014; and (3) that they were taken away by a contractor retained by BAL on the latter date. As to the first matter, as appears immediately below, Aerolink's claim was that none of the logbooks was destroyed in the fire, each having survived with little or only minor damage, which meant that they did not have to be 'recreated' (the expression used by Mr Ryan in his affidavit).

Aerolink's case

The primary judge recorded the essence of Aerolink's case at J[52]. The logbooks for each of the six aircraft were ordinarily kept in six boxes, one for each aircraft, on the top of shelving in the south-eastern corner of the storeroom in the hangar. In para 21 of his affidavit of 18 September 2020, Mr Ryan said that during his inspection of the fire scene on 8 March 2013 he recalled seeing that "all of the logbooks were still there, and none had been totally destroyed". His evidence was that "some logbooks had some fire damage to the outside covers", but that "the pages inside had not been destroyed". A photograph taken by Mr Ryan on that day (identified as photograph 484) shows a pile of logbooks and the remains of a box (J[7]). Mr Ryan suggested that two of the engine logbooks in that pile "probably related" to an Embraer Bandierante aircraft (J[9]).
Aerolink claimed that the partly damaged logbooks shown in photograph 484 related to one or more of the five aircraft (being those other than VH-OZF) and were salvageable, that they were not removed from the storeroom or from the hangar in March 2013 and that they remained in the possession of BAL until July 2014, when they were disposed of. In support of the survival of those logbooks, Aerolink relied on a 14 January 2014 email communication in which Ms Burnicle, an in-house lawyer for BAL, reported to a loss adjuster retained by BAL's liability insurer that, having earlier "looked through" the site, "there does not appear to be much able to be salvaged save for some logbooks and the contents of a couple of filing cabinets".

Mr Ryan's affidavit evidence

Mr Ryan's evidence was especially relevant in two significant respects.
The first concerned the manner of storage of the logbooks. In his affidavit of 18 September 2020, Mr Ryan also stated that he "had a cardboard box for each aircraft (in other words six separate cardboard boxes) in which I stored each of the logbooks for each of the aircraft"; and that he "wrote with a texter [sic] on the front of the box the registration number of the aircraft and placed all of the logbooks in those boxes" on the top shelf of the shelving in the storeroom. If the logbooks were ever removed to enable entries to be made in them, Mr Ryan "would ensure that they were returned to me and placed back in the boxes. There was nowhere else that I ever kept such logbooks." That evidence was led in part to explain why Mr Ryan might have been able to be satisfied on 8 March 2013, as he maintained, that all of the logbooks were still in the storeroom immediately after the fire. As a result of the photographic evidence led in the respondent's case, the significance of which first became apparent to Mr Ryan during his cross-examination, the fact of this work practice, which the primary judge accepted, was critical to findings made in relation to the logbooks of the Bell helicopter.
On 13 March 2013, Mr Pellegrino, a Senior Forensic Fire Examiner retained on behalf of BAL, took a large number of photographs, including photograph 1079 (J[35]). That photograph showed the western door of the hangar in the middle background and, relevantly, two cardboard boxes in the foreground on a metal base table (see J[36] and [37]). An enlarged version of that photograph showing those two boxes became Exhibit I (J[37]). The box on the right in that exhibit has the appearance of an archive box. It is rectangular in shape, has a fitted lid, and its four sides are a brownish colour across the top and bottom (the top brownish band being slightly wider than the bottom one) and separated by a wider white band. It also has a cut-out carry handle. Photograph 1105 (J[38]), taken by Mr Pellegrino from the other side of the hangar and looking back towards the metal table in photograph 1079, shows another cardboard box on the floor, which has the same appearance as the archive box on the table.
The primary judge found that Ex I "clearly shows (and counsel agreed as much) a brown archive box, undamaged by fire, with a texta handwritten label VH-BEK", which "Mr Ryan agreed [he removed]… from the hangar on 13 March 2013" (J[76]). These findings as to the appearance of that box and as to its having been removed from the hangar by Mr Ryan are not challenged. Rather, Aerolink challenges the finding that this archive box contained the logbooks for that aircraft, and contends for a finding that the box was a 'fresh' or 'new' storage box into which items relating to VH-BEK (but not logbooks) had been placed after the fire. It is contended that at that time the box was labelled "VH-BEK" using a texta. There is no evidence from Mr Ryan or anyone else which in terms describes the happening of these events.
The second significant matter addressed by Mr Ryan's affidavit evidence is that dealt with in para 21 of the same affidavit (see [17] above). His evidence was that on 8 March 2013 "all of the logbooks were still there [in the storeroom] and none had been totally destroyed". Accordingly, he was "relieved that none of the logbooks would need to be recreated because none had been destroyed".
That being the position was challenged in a cross-examination which included the following responses to questioning directed to establishing that Mr Ryan was not able to identify as being in the storeroom after the fire any particular logbooks from any of the five aircraft. Nor was he able to describe the extent of damage to any logbook from any of those aircraft.
At first, Mr Ryan maintained that he "saw logbooks relating to all of what I thought were the aircraft". As he then explained, he "assumed that [all of the logbooks] were still there", because in each case the boxes for each of the aircraft were still there. However, he "didn't go through [all the logbooks]" but knew "what a logbook looks like and I know that those logbooks, for the relevant boxes that were there, were not totally destroyed, and the photograph shows they weren't totally destroyed". The photograph referred to is photograph 484, taken by Mr Ryan on the day these observations were said to have been made. (The more general significance of the photographic evidence is considered below.)
Mr Ryan said that, after the fire, the six boxes were in the storeroom. When asked whether he had found the box for the "Maryborough Embraer", he responded "No. That box would have been with the other boxes in the storeroom, they've either fallen off the shelves, or where the firefighters had put them when they were putting the fire out". He said that the five boxes other than that box were found "on the floor" in the storeroom. He then said that he "could see [the logbooks] in the boxes on the floor with some on their side; actually, most of them were on their side, and the relevant documentation for those aircraft was there". However, he "didn't… go through the books to see what aircraft that paperwork and the logbooks related to". With reference to photograph 484, he said that the blue book on the top of that pile of logbooks and remains of a box was "pulled out of" another pile of logbooks that he made and "put on top of that box".
It did not follow from this evidence that any of the logbooks seen in the storeroom must have related to one of the five aircraft. And at J[10], the primary judge found in relation to that blue book: … the blue logbook at the top of the pile was the logbook for a left-hand propeller of a Japanese aircraft. The letters "LH" can be made out on the cover, as can some Japanese characters and (but only barely) the word "propeller". That propeller was not related to any of the aircraft the subject of the claim. I accept Mr Ryan's evidence that that aircraft had been sold and was now located in Darwin (T22.19).
His Honour also found at J[62] that the evidence did not establish that the only aircraft operated by Aerolink in 2013 were the six aircraft described in [4] above. Nor did it establish that the only logbooks in the hangar at the time of the fire were logbooks relating to those aircraft other than VH-OZF. Furthermore, his Honour found that the evidence did establish that Aerolink had before 2013 owned at least two other aircraft, one of which was the Japanese aircraft.

Expert and photographic evidence of fire scene

Mr Hirst, an insurance loss adjuster, inspected the fire scene on 8 March 2013 in the presence of Mr Ryan, who drew his attention to some papers in a box on the floor and said "these are some of the logbooks". Mr Hirst took a photograph of those logbooks, identified as photograph 682 (J[26]). That photograph (at J[7]) is of the remains of the same box and pile of books shown in Mr Ryan's photograph 484, which was taken later on the same day and after some debris covering the pile of books had been removed. The same pile of books and box remains were also photographed by Mr Pellegrino on 13 March 2013 (see photographs 1188, 1189). Mr Hirst's evidence, not challenged in cross-examination, was that the "only documents that could have been logbooks were in the box on the ground" shown in these photographs, and that he "did not observe any other documents in the storeroom that could have been the logbooks".
Mr Pellegrino attended the fire scene on 13 March and later on 28 March 2013. He took photographs on each occasion and gave evidence as to the condition of the storeroom and the items in it on 13 March 2013, some of which is summarised at J[15]. If there were six boxes of logbooks in the storeroom at the time of the fire, Mr Pellegrino said that he would have expected to have been able to identify what was left of them. However, he did not see any area of such "remaining debris". He confirmed that other photographs taken on 13 March 2013 (including photographs 1188 and 1189) were of the same pile of books and box remains as shown in Mr Ryan's photograph 484.
In his second affidavit, Mr Pellegrino expressed the opinion that the pile of books and box remains shown in Mr Hirst's photograph 682 were probably stored on the floor in the location shown in that photograph at the time the fire started. He also considered that the debris shown as covering that pile of books in that photograph had probably fallen early in the fire, which would explain why the blue book on the top of the pile had no obvious signs of residue or other damage from the fire. He accepted in cross-examination that it was also possible that the blue book was later placed on the top of the pile.
At J[11], the primary judge refers to evidence of Mr Craig Smith, BAL's airport facility manager, who was not cross-examined. His evidence included a recollection of Mr Ryan taking photographs and pointing to a box and saying "these are logbooks" and "we should be able to salvage them".
Thus the only photographic evidence of damaged logbooks and remains of a box in the storeroom on 8 March 2013 was that shown in Mr Hirst's photograph 682 and Mr Ryan's photograph 484. Mr Pellegrino's photographs 1188 and 1189, taken five days later, show the same subject.
As to the logbooks shown in those photographs, the primary judge found at J[16] that there was: … no unambiguous documentary evidence establishing that any of the logbooks relating to the five aircraft the subject of this claim were the logbooks seen in Mr Ryan's photograph. The only logbook which can confidently be identified from Mr Ryan's photograph is a logbook on the top of the pile. That was the logbook for a propeller which was not associated with one of the five aircraft the subject of this claim.

Subsequent conduct of Mr Ryan and Aerolink

His Honour then turned to conduct of Mr Ryan and Aerolink on and after 11 March 2013, assessing whether it was consistent with Mr Ryan's evidence that as at 8 March 2013 none of the aircraft logbooks had suffered damage which required that it be recreated. That conduct included the commencement and pursuit of the underlying proceedings.
First, Mr Ryan met with Dr Green, a fire investigator retained on behalf of Aerolink, and inspected the fire scene, also in the company of Mr Pellegrino, on 13 March 2013. Dr Green first met Mr Ryan outside the premises on 11 March 2013. However, they were not permitted to inspect the fire scene on that day (J[22]). In that first meeting, Mr Ryan told Dr Green that the "fire had destroyed paperwork on the history of the aircraft"; that "without stringent paperwork on the maintenance of aircraft, the aircraft become unserviceable"; and that "this situation had affected two and maybe three aircraft" (J[54]). Although Mr Ryan did not recall the last part of this conversation, the primary judge found that he did say to Dr Green that only two and maybe three aircraft had been affected by "destroyed paperwork". He also found that Dr Green made a contemporaneous note of what he had been told (J[56]). Neither of those findings is challenged.
Secondly, Mr Ryan had communications with Ms Burnicle in December 2013 concerning his further access to the hangar. In his email of 18 December 2013, Mr Ryan stated that, having consulted someone from Embraer, it was "a waste of time for us to try and salvage anything", so that all that was left was to "clean up the residue from the fire and take it to the tip". As the primary judge inferred, that statement conveyed that Mr Ryan then believed that "nothing valuable remained in the hangar" (J[59]). That was not consistent with a belief that there were any logbooks in the hangar which, if not salvaged, would have to be recreated. In the subsequent exchanges between them, Mr Ryan's position did not relevantly change. In reply to Ms Burnicle's email of 14 January 2014, Mr Ryan requested a "couple of weeks notice" of the commencement of any clean-up, so that he could "notify our insurers and see if they wish to attend".
Thirdly, in April 2014, Mr Ryan requested a quotation from Mr Newberry as to the cost of recreating aircraft logbooks which had been destroyed. That request was made only in respect of the two Embraer aircraft, N110EM and VH-WBR, and Piper VH-SIN. If Mr Ryan was in April 2014 of the same view that he asserted he was in March 2013 (see [23] above), namely that "none of the logbooks would need to be recreated because none had been destroyed", then that quotation was unnecessary. However, if the position as at April 2014 was, as Mr Ryan conceded to Dr Green, namely that "two or maybe three" aircraft required new "paperwork", then the obtaining of a quotation from Mr Newberry in respect of those aircraft was wholly explicable.
Fourthly, in the January 2016 statement of claim, the amounts quoted by Mr Newberry for recreating logbooks were claimed as damages on the basis that the logbooks for three aircraft had been destroyed in the fire. Mr Ryan accepted in cross-examination that the pleaded damages claim adopted quotations given on the basis that the logbooks for three aircraft had been destroyed. When asked why such quotations were sought if in fact the logbooks had only suffered minor damage (as was stated in para 21 of his September 2020 affidavit), Mr Ryan responded that he had assumed the logbooks for the three aircraft had been destroyed because he had not been given any access which would have enabled him to assess the extent of any damage. That answer was not consistent with what he had said to Dr Green and his belief as communicated to Ms Burnicle. Nor was it consistent with his affidavit evidence that he had been "relieved" that none of the logbooks had been destroyed. On the face of it, that answer was not consistent with para 21. Mr Ryan was then asked why quotations were only sought from Mr Newberry in respect of three of the five remaining aircraft. As the primary judge observed at J[73], Mr Ryan was unable to give any satisfactory answer to that question.
Finally, in 2018 Aerolink and Mr Ryan brought proceedings in the Local Court against an insurer for alleged damage to VH-WBR in a cyclone in Fiji in 2012. In their reply to an allegation by the insurer that the aircraft's logbooks were not kept up to date, Mr Ryan and Aerolink pleaded "that logbooks were kept as at the time of the cyclone (and were later lost in a fire)". In cross-examination before the primary judge, Mr Ryan accepted that he had given instructions to that effect and that it was his understanding in February 2020 that the logbooks for that aircraft "were destroyed" in the March 2013 fire (J[88]). That understanding was not consistent with his belief as described in para 21 of his affidavit. It was, however, consistent with what he had communicated to Dr Green and Ms Burnicle within nine months of the fire.

Unchallenged findings in relation to aircraft N1110EM, VH-WBR and VH-SIN

The primary judge found that the logbooks for these three aircraft were destroyed in the fire on 6 March 2013. His Honour's reasoning supporting that conclusion included (J[104]): That [it] is consistent with what Mr Ryan is recorded as having told Dr Green a few days later. It is consistent with the quotation obtained from Mr Newberry in April 2014. It is consistent with the pleadings that commenced this proceeding. It is consistent with Mr Ryan's verification of those proceedings… It is also consistent with the primary case that was run and lost before White J in 2018, noting that highly conspicuous by its absence in the case as initiated in 2016 is any allegation of what occurred on 30 July 2014.
That finding necessarily involves the rejection of Mr Ryan's affidavit and oral evidence as to what he observed at the fire scene on 8 March 2013 with respect to the presence of the logbooks and their condition. That evidence was in very general terms and did not speak as to the logbooks for any particular aircraft. His Honour's finding that it was only the logbooks of three of the five aircraft which were destroyed leaves the logbooks of VH-BEK and VH-XMA unaccounted for.
I propose to deal first with the grounds of appeal as they relate to the Bell helicopter.

Ground 1

Ground 1 is: The learned trial judge erred in finding that the logbooks for the [Bell helicopter] were contained in a box depicted in photograph 1079 (Judgment [77]).
His Honour found at J[77]: … there seems no reason to doubt in light of all that I have read and heard that that box contained the logbooks (and other documentation) for the Bell helicopter, that it was not damaged by the fire, and that it was removed more than a year prior to 30 July 2014.
Ground 1 challenges only the first of these findings, namely that the box shown in photograph 1079 contained the logbooks for the Bell helicopter. The finding that this box and its contents were removed by Mr Ryan more than a year before 30 July 2014 is not challenged.
In terms, the challenged finding was that the box "contained logbooks in accordance with the methodology described by Mr Ryan" (J[105]). The evidence of that methodology or practice is summarised at [20] above. It was not until he was confronted with Ex I that Mr Ryan suggested that the practice he had earlier described might be applied to "anything [that] came out of any particular aircraft" (J[84]).
Aerolink submits that, having regard to that and other evidence of Mr Ryan, the primary judge should have found that the box shown in Ex I was a 'new' storage box which was marked with that label after the fire to record that it contained unspecified items relating to the Bell helicopter, which items had survived the fire.
When first confronted with the fact of the labelled box during cross-examination, Mr Ryan nevertheless accepted that on 13 March 2013 he was removing Aerolink's possessions from the hangar, and that they included the box marked "VH-BEK". It is unlikely that he would have done so without knowing or having a belief at that time as to what the box contained. In the ordinary course, that knowledge or belief would have informed what he later said to Dr Green as to the number of aircraft whose logbooks had been destroyed.
In his evidence which followed, Mr Ryan gave what the primary judge described as "four different answers covering that box" (J[79]). They were: (1) that he did not know what was in that box (J[80]); (2) that he would not have moved only one box containing logbooks out of the storeroom into the space of the hangar instead of moving all of them (J[81]); (3) that the box looked too small to store logbooks, and looked like a box that had some sort of component in it (J[82]); and (4) that his practice of labelling boxes in the manner described in his affidavit evidence applied to "anything [that] came out of any particular aircraft" (J[84]). His Honour was not persuaded by any of these responses that the labelled box contained something other than the logbooks for that aircraft.
Aerolink challenges that conclusion, focusing in particular on answers (3) and (4). It is separately submitted that the primary judge proceeded on an erroneous view that these four "different" answers of Mr Ryan about the contents of the box were "inconsistent". His Honour made no such observation.
Mr Ryan's first answer that he did not know what was in a box was not wholly consistent with his earlier evidence in cross-examination that during his inspection of the storeroom after the fire he was able to recognise the six boxes containing logbooks for each of the aircraft, notwithstanding that they were no longer on their shelves. There was no suggestion in this evidence that there might have been some difficulty in identifying those boxes because there were likely to be other boxes with the registration number of an aircraft written in texta on their front which contained other items, but not logbooks, relating to that aircraft.
Furthermore, as to Mr Ryan's fourth answer addressing the same subject, the primary judge rightly observed that there was no indication in his affidavit evidence "that there might be more than one box per aircraft" with a handwritten texta label (J[85]). That observation was undoubtedly correct. However, it was said that his Honour erred in not having regard to Mr Ryan's other evidence concerning the removal from the hangar or storage of aircraft parts and components.
In his oral evidence, as the primary judge noted, Mr Ryan maintained that his practice of labelling boxes "applied to anything [that] came out of any particular aircraft", and that "it would have been written on it somewhere what aircraft it came out of". That answer does not deny that Mr Ryan had a specific practice and methodology adopted for the storage of the logbooks in single archive boxes so that they were easily identified by the fact that the aircraft's registration number was written in "texta on the front of the box". Mr Ryan's oral evidence suggested no more than that, for the purpose of identifying something that had "come out of an aircraft", such an item, or what it was stored in, might be recorded in some way on the item or the box containing it.
In his first affidavit of 16 December 2016, Mr Ryan described a system that he followed from late February 2013, when he began removing new and second-hand aircraft parts from the storeroom as part of the process of vacating the hangar. Aerolink submitted that the primary judge should have taken this procedure or system into account in drawing any inference as to the contents of the box marked "VH-BEK" because it was "inherently plausible and coherent" that spare parts might similarly have been placed into boxes marked as belonging to a particular aircraft.
The principal difficulty for this submission is that Mr Ryan's evidence did not support a finding that this system would or might have had that result. When removing new and second-hand aircraft parts from the storeroom, Mr Ryan would fill a "brand-new 'Kennards' cardboard box" with parts, and then write on it "the location that I had taken the parts from in the storeroom". Mr Ryan also prepared an inventory of the parts being removed which included a column headed "Location". The location, identified by a letter and number such as "A2" or "E1", signified where the new or second-hand part had been located in the storeroom. It was no part of that process to record on any relevant cardboard box the or an aircraft registration number, particularly in circumstances where the part or parts may have related to more than one of the six aircraft. Accordingly, this evidence did not support a finding that the labelled archive box might have contained new or second-hand parts for the Bell helicopter.
The primary judge was justified in giving little or no weight to Mr Ryan's second answer that he would not have moved only one box containing logbooks out of the storeroom. That answer presupposes that there was no good reason to move only one box of logbooks, or the logbooks from one box, as had apparently occurred in relation to VH-OZF some years earlier; or that Mr Ryan had not started upon the task of removing the logbooks from the storeroom and was prevented from completing that exercise because of the occurrence of the fire. There was no other evidence led from Mr Ryan which gave any reason for thinking that the box did not contain logbooks, as its appearance and the letters written in texta conveyed.
Addressing Mr Ryan's third answer, the primary judge is said to have erred in not accepting his evidence that the marked box was "too small" and looked "like a box that had some sort of component in it". Whilst, as his Honour acknowledged, there are difficulties in arriving at "accurate opinions of scale from photographs", he was justified in not treating as accurate and reliable this answer in circumstances where the photographic evidence permitted the conclusion that the labelled box was "substantially the same size" as the other archive boxes shown in photographs 1079 and 1105. The latter photograph shows that the box marked "VH-BEK" in Ex I is the same rectangular shape with carry handles at each end as the similarly coloured rectangular box sitting on the hangar floor in front of the metal base table shown in photograph 1105.
The question remains whether the primary judge erred in finding that the box marked "VH-BEK" contained logbooks. That finding was plainly open on the evidence and no aspect of Mr Ryan's evidence is or provides a sound reason for not holding that his practice for marking and storing single boxes containing logbooks was as he described and that the archive box was so marked in accordance with that practice.
That those logbooks were not damaged in the fire and were removed from the hangar on 13 March 2013 is consistent with the evidence and findings supporting his Honour's conclusion that the logbooks for aircraft N1110EM, VH-WBR and VH-SIN were destroyed in the fire. That the logbooks of four or more aircraft were destroyed in the fire is inconsistent with his Honour's unchallenged finding as to what Mr Ryan told Dr Green and his subsequent conduct in retaining Mr Newberry and prosecuting a claim for damages on the basis only that the logbooks for three aircraft had been destroyed in the fire.
If the box did not contain the logbooks, on Aerolink's case those logbooks remained in the storeroom after the fire in an essentially undamaged condition which meant, according to Mr Ryan's evidence, that they did not need to be recreated. That being the position would have been contrary to Mr Ryan's belief, as communicated to Ms Burnicle in December 2013, that "nothing valuable remained in the hangar".
Furthermore, a finding that the logbooks for VH-BEK were not damaged in the fire and removed from the hangar is consistent with the evidence that there were fire-damaged logbooks as photographed in the storeroom which remained in the hangar after the fire. The primary judge was not persuaded that any of those logbooks belonged to any of the five aircraft on which Aerolink's claim was based (J[108]).
The contrary finding for which Aerolink contends requires the acceptance of the evidence of Mr Ryan as to the likely contents of the archive box, as well his observations on 8 March 2013, which included that "all of the logbooks were still there… and none had been totally destroyed". The latter evidence was conceded to be wrong, at least in relation to the logbooks for VH-OZF (J[18], [107]), and otherwise rejected by the primary judge as unreliable and wrong in relation to the three aircraft whose logbooks were destroyed in the fire.
The weight of the evidence supported the finding made by the primary judge that the archive box contained the logbooks for the Bell helicopter. That was the correct finding, having regard to the whole of the evidence. Ground 1 should be dismissed.

Ground 2

Ground 2 was that the primary judge: … erred in finding that the logbooks for the Bell Helicopter and the logbooks for the [Cessna VH-XMA] were removed from the premises by Mr Ryan (Judgment [106]) and were not destroyed or wrongfully disposed of by the defendant.
As regards the Bell helicopter, this ground should be dismissed for the same reason as ground 1. The primary judge did not err in finding that the labelled archive box contained the logbooks for this aircraft. That archive box and its contents were removed from the hangar by Mr Ryan. It follows that the primary judge did not err in finding that the box and its contents were not destroyed or disposed of by BAL.

Ground 2

This ground is set out above.
As has already been observed, the primary judge did not find: that the logbooks for Cessna VH-XMA survived the fire on 6 March 2013; that they were not removed from the premises between that date and 30 July 2014; or that on that later date they were removed and destroyed.
His Honour's relevant findings are at J[106]-[108]: I am unpersuaded that the logbooks for the remaining aircraft, the Cessna VH-XMA, were destroyed on 30 July 2014. They may have been destroyed in the fire, although, if they were, it would accord with the inherent probabilities and what has happened in relation to other aircraft, for Mr Newberry to have been asked to obtain a quote for them and for them to have been included as one of the particulars of damage in the statement of claim filed in 2016. It is possible that they were located in the archive box visible in the 13 March photographs which Mr Ryan said he removed and which I find that he removed on that day. But whether or not that is so, it is inherently plausible that if the Cessna's logbooks survived the fire, they were located by Mr Ryan on 8 March or 13 March, and were taken away by him on the latter day. It is possible, having regard to the way in which Mr Ryan has been prepared to commence proceedings in this Court without checking that logbooks of one of his planes survived both the fire and the destruction (VH-OZF), that the same is true for those pertaining to the Cessna VH-XMA. I do not consider that it is necessary, in order to resolve these proceedings, to make any more precise finding in relation to Mr Ryan's knowledge of those books. In other words, the finding that I make is consistent with Mr Ryan merely being as careless as he was in his evidence concerning the Cessna logbooks as I know him to have been in relation to those of VH-OZF which is no longer part of this claim. I am conscious of the evidence, especially Ms Burnicle's emails following her inspection in December or January 2014, that some logbooks remained in the hangar. They may well have been logbooks for aircraft which the plaintiff had formerly owned, such as the logbook for the left hand propeller which may be seen in Mr Ryan's photograph. But for the reasons I have given, I am unpersuaded that they were logbooks of any of the five aircraft on which this claim is based.
This ground of appeal may be dealt with shortly.
The primary judge's reasoning proceeds as follows.
It was possible that the logbooks for VH-XMA were in the storeroom and destroyed in the fire, although if that had occurred, it was inherently likely that Mr Newberry would have been asked to provide a quote and a claim would have been made in respect of their destruction (J[106]). He was not and the proceedings subsequently brought did not make a claim on that basis.
It was also possible that the logbooks had "survived the fire" undamaged because they were removed from the storeroom before the fire. In that event, it was inherently plausible that they were also removed from the hangar by Mr Ryan on 13 March 2013. That was consistent with his having removed on that day the archive box containing the logbooks for VH-BEK and other property and items that he regarded as having some value. It was possible that the logbooks for VH-XMA were contained in the second archive box visible in photograph 1105 (J[106]).
The remaining possibility was that the logbooks for this aircraft were in the storeroom, exposed to the fire, survived it suffering minimal damage, and were not removed from the hangar on 13 March 2013 by Mr Ryan. However, the only logbooks identified in the evidence as damaged in the fire were those shown in Mr Ryan's photograph 484 (J[16]). The logbooks in that photograph are the only logbooks that the evidence identifies as having remained in the hangar after March 2013, and are referred to in Ms Burnicle's email of 14 January 2014. His Honour was not persuaded that the logbooks for VH-XMA formed part of the logbooks in that photograph (J[16], [108]).
Accordingly, his Honour was not satisfied on the balance of probabilities that the logbooks for this aircraft were in the hangar on 6 March 2013, survived the fire on that day, and were not removed from the hangar between then and 30 July 2014.
Whilst acknowledging that it was "plausible" that Mr Ryan had removed the logbooks, Aerolink submits that his Honour should have accepted Mr Ryan's evidence that he did not remove the logbooks for VH-XMA from the storeroom before the fire. It also submits that it is likely that some of the logbooks in the photographic evidence and subsequently observed by Ms Burnicle related to VH-XMA.
The primary judge was plainly justified in regarding Mr Ryan's evidence, including as to whether he removed the logbooks for this aircraft, as unreliable. That was so in circumstances where he had removed the box containing the logbooks for the Bell helicopter on 13 March 2013, and had indicated to Ms Burnicle in December 2013 that he believed that "nothing valuable remained in the hangar". The weight of the evidence was against there being any logbooks for VH-XMA in the hangar which had survived the fire with minimal damage, as Mr Ryan maintained.
The primary judge did not err in not being persuaded as to each of the matters in [75] above.

Conclusion

The appeal in relation to the logbooks of each of Cessna VH-XMA and Bell JetRanger VH-BEK should be dismissed with costs.
KIRK JA: I agree with Meagher JA.
SIMPSON AJA: I agree with Meagher JA.

Amendments 11 May 2023 - Word duplication in [73] deleted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2023

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Judgment (18 paragraphs)

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Cases Cited (6)