Air Link Pty Limited v Paterson [2005] HCA 39 | Case summary

Air Link Pty Limited v Paterson [2005] HCA 39 | Case summary | Zoe

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.
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.
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.
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.
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.
Reference was made in argument to the earlier decision of the New South Wales Court of Appeal in Proctor v Jetway Aviation Pty Ltd[5] 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").
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[6] that the amendment was allowed under provisions of the Supreme Court Rules[7] 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.
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.
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:

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.
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[10], 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.
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.
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.
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:

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[14] 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[15]. That application concerns the proceedings in Air Link No 1.
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[16]. 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.
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[17], 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".
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.
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[18]. 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[19] in the associated appeal heard concurrently with these proceedings[20]. The decisions now reversed on this point are well reasoned and persuasive.
Usually, this Court would refrain from disturbing a conclusion of a State Supreme Court on matters of court rules, practice and procedure[21]. However, the Carriers' Act imports into air carriage within Australia language derived from the Warsaw Convention and its successors[22]. 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.
Fifteen years ago, in the New South Wales Court of Appeal in Fernance v Nominal Defendant[23] - a case wholly concerned with State law and without any borrowings from international law - I suggested (in dissent) 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"[24]. Now, in the present context, that problem returns to this Court for solution.
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.

Decision at first instance: 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 of other causes of action different from the statutory remedy there provided for air carriage accidents[34]. 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[35]. 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[36].
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]"[37]. 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"[38].
Decision of the Court of Appeal: 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[39]:

Content of "action" undefined: 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.
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: 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?
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.
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[41], 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.

Pleading of superseded claims is ineffective: 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.
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"[42]. The price of the new legal entitlements is a limitation on the amount of damages that may be recovered from an air carrier[43]. A strict time limit is fixed for the bringing of actions, after which the right to damages is "extinguished"[44].
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: 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.
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: 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: Whilst some measure of leniency has replaced the former strictness observed in pleading practice[45], 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[46]. 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: 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[47]. 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[48] 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[49].
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[50]. 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: 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[51], 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.
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"[52]. 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.
The adequacy of a particular pleading for this and other purposes is a question commonly considered by courts such as the Court of Appeal[53]. 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.
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.
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[54]. 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[55]. 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[56]. In this case, the time bar was short, strict and rigid.
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.
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.

International operation: inevitable variations: The Warsaw Convention, which was the origin of the contested phrase in s 34, contemplated that its provisions would operate throughout the world[57]. 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.
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[58]. 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.
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[59]. 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: 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.
A purposive approach to the construction of legislation (such as the Carriers' Act, including s 34) is now mandated in Australia by federal law[60]. Moreover, it is repeatedly observed in the common law and in the decisions of this Court[61]. 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[62], Lord Diplock in the House of Lords explained:

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[64].
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?
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[65].
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.
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: 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.
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.
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.
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: 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.
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.
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.
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[66].
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: 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.
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.

Nevertheless, as other members of this Court in these proceedings, and in the associated appeal in Agtrack[70], 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[71], it is appropriate for me to say that I agree in their conclusion.
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[72]; and the convincing opinions on the point in the South Australian Full Court[73], 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"[74].
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)[75]. 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[76].
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.
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.

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).
On 11 September 2003, the Court of Appeal (Mason P and Beazley JA, Ipp JA dissenting) dismissed the appeal[79]. 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.
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.

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[81] 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.
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[82] of the Judiciary Act, whether there is a conflict between them and the Act, and the application of s 109[83] 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.
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.
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[84] 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.
Ipp JA was therefore correct in holding that Pt 17 r 4 is ultra vires the rule-making power in the District Court Act.

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.
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.
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.
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.
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.
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:

Provision is made for relief against failure to comply with the Rules, either before or after the occasion for compliance arises[85].
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.
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.
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.
In that regard a sharp distinction can be drawn between the facts of the case and the facts of Weldon v Neal[86] 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.
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[87] 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.
A sufficient statement of claim was filed in time here and accordingly the respondent's action was brought within time.
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[88]:

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.
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.
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[92]. 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.
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.
I agree in the orders proposed by Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

Air Link Pty Limited v Paterson

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