Glass JA agreed with the judgments both of the President and Priestley JA.
25 In Proctor at first instance Cross J, at 267, said that he did not accept the submission that the plaintiff would in any case be entitled to raise the New South Wales Act claim under his original pleaded statement of claim. His Honour said at 267-268:
"The originally pleaded action was framed in 'negligence', a factor which is irrelevant under the fresh claim; and such negligence is, in fact, particularised. ….. The original statement of claim cannot in my opinion be construed to include a claim under the Aviation Liability Act. That original claim did not refer to that Act and did not plead elements essential for claim under that Act, ie that the defendant was the holder of a charter licence; and that the flight was pursuant to a contract of carriage…."
26 Black DCJ regarded it as unsafe to rely upon what he described as "the remnants of Mr Justice Cross's judgment at first instance". His Honour said:
"It is said by Mr Macrell that the statement of claim is defective and would be struck out because it does not allege the defendant held the relevant licence under s27 of the Act.
Secondly, it does not plead that this was an interstate carriage by reason of the ticket having been originated at Coolangatta and then for travel within New South Wales and thirdly, because it only refers to causes of action, namely, negligence and breach of contract and does not refer to Pt 4 of the Act, it therefore cannot be regarded as an action under Pt 4.
In my judgment, the first two specific matters of which he complains are equally capable of being matters of evidence. What this document, the statement of claim does is it notifies the defendant that the plaintiff was a passenger, pursuant to a specified ticket, upon an aircraft operated by the defendant, duly authorised to operate a commuter and charter airline and that when leaving the aircraft at Dubbo, the plaintiff had an accident.
Because of the statute, paragraph five could be regarded as irrelevant. Because of the statute, paragraphs eight, nine and ten could be regarded as irrelevant and eleven also.
That leaves paragraphs one to four and paragraph twelve, which clearly make a claim, in the particular circumstances against the defendant. I do not regard it as necessary for a pleading to refer to a particular statute and in my judgment, the pleading as filed does come within the description of an action being brought within s34 of the Civil Aviation (Carriers' Liability) Act 1959, Commonwealth and accordingly, would not be dismissed or struck out under Pt 9, r17 or Pt 11A, r13.
In those circumstances, it is proper accordingly, to make an order in accordance with the terms of paragraph one of the plaintiff's notice of motion. In those circumstances, as is readily apparent from many of the cases to which I have been referred, it is unnecessary for me to express any view about the alternative application in paragraph two of the plaintiff's notice of motion, but in deference to the arguments extensively addressed to me, I should say, although of course, this is not a necessary part of my finding, that in view of the decision of Timmeny v British Airways PLC, to be found in volume 102, of the Australian Law Reports at 565, I do not see that once the two years have elapsed, allowing an amendment and backdating it to revive a matter which is subject to Commonwealth legislation would be something that I was entitled to do and had it been necessary for me to go on and consider the alternative application, I would have felt obliged to dismiss it."
27 Mr Hislop QC, who appeared for the plaintiff, and forcefully put the argument that leave to appeal should be refused or, alternatively, the appeal dismissed, referred us to Wickstead v Browne (1992) 30 NSWLR 1. As appears from the joint judgment of Handley JA and Cripps JA at 15 in that case the appellant had pleaded that the respondent "owed to him a duty of care to take reasonable steps to ensure that his funds were handled in a proper trustee and/or fiduciary manner and conformably to the terms of the deed of 2 June 1982". Paragraph 24 alleged that in breach of and in reckless disregard of this duty the defendant "caused, permitted and/or allowed TEA to apply such funds for its own purposes in an unsecured and unauthorised manner". Paragraph 25 pleaded that the defendant allowed such misapplication to continue and such misapplications to be repeated. Paragraphs 26 and 27 alleged that as a result of such misapplication of his money the plaintiff suffered loss and damage occasioned by the negligence of the defendant. Their Honours said at 15:
"Particulars of the negligence included causing, permitting or allowing the plaintiff's funds to be and remain borrowed by TEA in an unsecured manner, causing, permitting or allowing TEA to perpetrate a breach of trust and/or breach of fiduciary duty and causing, permitting or allowing such breach of trust or breach of fiduciary duty to continue until TEA was placed in liquidation."
28 After referring to the principles of equity stated by Lord Selborne LC in Barnes v Addy (1874) LR 9 Ch App 244 at 251-2, their Honours said:
"It is clear that the appellant's legal advisers who settled the statement of claim and argued the case before the master and the judge had no idea that they had pleaded a case within these principles. The claim was pleaded and supported as one based on a common law duty of care in tort. However the Supreme Court Rules Part 15, r7, only requires a pleading to contain a statement of the material facts on which the party relies. As Scrutton LJ said in Konskier v B Goodman Ltd [1928] 1 KB 421 at 427:
'….a plaintiff is not now bound to state the legal effects of the facts on which he relies; he is only bound to state the facts themselves.'
Stripped of irrelevant and, as we believe, misconceived allegations of the existence and breach of a duty of care at common law the statement of claim relevantly alleges that the respondent caused TEA to apply the appellant's funds to its own use in breach of trust. ……The statement of claim therefore pleads facts which if proved at the trial would establish that the respondent 'participated in' this fraudulent conduct or 'assisted in a dishonest and fraudulent design'."
29 In the result, their Honours were satisfied that although the paragraphs were drawn with other causes of action in mind, they sufficiently pleaded a claim that the respondent was liable in equity because he participated with knowledge in breaches of trust and fiduciary duty by TEA. Kirby P agreed with that part of the judgment in respect of the claim based upon the alleged breach of fiduciary duty.
30 I have stated at some length the extracts from the pleading in Wickstead v Browne. They stand in stark contrast to the pleadings in the present case. Moreover, Handley JA in Kirby v Sanderson Motors Pty Ltd agreed with the judgment of Hodgson JA, who referred to and explained the limits of the application of the principle in Konskier.
31 Mr Hislop submitted that, similarly to Wickstead v Browne, the statement of claim in this case includes a statement of the facts sufficient to found the statutory cause of action. Section 27(1) in Part IV provides that the Part:
"applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, …… under a contract for the carriage of the passenger:
(a) between a place in a State and a place in another State…."
32 As I have sought to indicate I do not think the statement of claim does plead these facts. Section 26(1) in Part IV relevantly defines "airline licence" to mean "(b) an Air Operator's Certificate in force under the Civil Aviation Act 1988 (Cth) authorising airline operations." While I can accept that one can derive from the pleading sufficient to conclude that the plaintiff was to be carried in an aircraft in the course of commercial transport operations, there is no allegation that the defendant was the holder of an airline licence or that the contract was for the carriage of the plaintiff from a place in one State to a place in another State. On the contrary, the statement of claim suggests that the carriage was intra State. Mr Hislop submitted that the defence filed on behalf of the defendant showed that this was not an issue and that reference to the ticket number particularised would have revealed that the carriage was interstate. This may be so, but in my opinion, the interstate nature of the carriage was not pleaded or relied on. The statement of claim was directed to an action in tort and an action for breach of contract which is the antithesis of a claim based on absolute liability under Pt IV of the Act.
33 Section 34 of the Act provides that the right under Pt IV is extinguished "if an action is not brought by him or for his benefit within two years". This must be read as an action under Pt IV. Neither party directed any argument to para 2 of the plaintiff's notice of motion in the District Court. I deliberately refrain from expressing any view about the merits of that part of the plaintiff's application to the District Court which may now be renewed in that court.