AIR LINK PTY LTD v PATERSON

COUNSEL : R F Margo - Claimant J D Hislop QC/P Regattieri - Opponent SOLICITORS : Norton White - Claimant M J Duffy & Son - Opponent CATCHWORDS : PRACTICE AND PROCEDURE - statement of claim - pleadings - statutory claim - Civil Aviation (Carriers' Liability) Act 1959 (Cth), Part IV - inter State carriage - appeal allowed Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Aviation (Carriers' Liability) Act 1967 (NSW) LEGISLATION CITED : Air Transport Act 1964 Civil Aviation Act 1988 (Cth) Compensation to Relatives Act 1897 Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44 Staples v City and Country Helicopters Pty Ltd (1993) 119 FLR 291 Proctor v Jetway Aviation Pty Ltd (1982) 2 NSWLR 264 CASES CITED: Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 Wickstead v Browne (1992) 30 NSWLR 1 Barnes v Addy (1874) LR 9 Ch App 244 Konskier v B Goodman Ltd [1928] 1 KB 421 DECISION : 1 Leave to appeal; 2 Appeal allowed; 3 Set aside the orders made by his Honour Judge Black on 18 May 2001; 4 Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40415/01 DC 133/00 (Dubbo)

MASON P SHELLER JA BEAZLEY JA

On 22 September 2000 the opponent began proceedings by statement of claim in the District Court of New South Wales in Dubbo to recover damages for injuries he claimed to have sustained after a flight from Cobar when disembarking at Dubbo from an aircraft owned and operated by the claimant. Both parties accepted that Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Act) applied to the air carriage of the opponent as the ticket for carriage had originated in Queensland. Pursuant to s36 of the Act, the liability of the claimant to the opponent for any injury suffered during disembarkation was to be found under Part IV and was in substitution for any civil liabilities of the carrier under any other law in respect of the injury. Section 28 makes that liability absolute on proof of injury. The opponent's statement of claim, which was filed three days before the expiration of the limitation period in Pt IV, pleaded his cause of action without reference to the Act. The claim pleaded was founded on causes of action for negligence and breach of contract. At first instance, the claimant alleged that the statement of claim was defective and ought to be struck out. Black DCJ found that irrespective of the pleadings relating to tort and contract, the statement of claim as filed did come within the description of an action brought under the Act. The claimant challenged this finding of the trial Judge and the issue on appeal was whether the statement of claim sufficiently pleaded the statutory cause of action. HELD (per Sheller JA, Mason P and Beazley JA concurring)

1. If the plaintiff's right to recover damages for injury depends exclusively upon the provisions of a statute it is essential that the claim states the material facts demonstrating that entitlement and it is desirable that the statutory provision be so identified.
2. All of the allegations pleaded in the statement of claim were pleaded as facts going to support the causes of action in tort and contract. The statement of claim as a whole did not plead the statutory cause of action. If the allegations of negligence and breach of contract were ignored, what remained did not plead the statutory cause of action.
3. This case was distinguishable on the facts from Wickstead v Browne (1992) 30 NSWLR 1. The present pleadings stood in contrast to the pleadings in Wickstead, where the court was satisfied that although the paragraphs were drawn with other causes in mind they sufficiently pleaded the relevant claims.
4. The inter State nature of the carriage was not pleaded or relied upon. The statement of claim was directed to actions in tort and contract which are the antithesis of a claim based on absolute liability under Pt IV of the Act. The statement of claim was defective and accordingly the appeal was allowed.

Legislation Cited Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Aviation (Carriers' Liability) Act 1967 (NSW) Air Transport Act 1964 Civil Aviation Act 1988 (Cth) Compensation to Relatives Act 1897 Cases Cited

Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44 Staples v City and Country Helicopters Pty Ltd (1993) 119 FLR 291 Proctor v Jetway Aviation Pty Ltd (1982) 2 NSWLR 264 Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 Wickstead v Browne (1992) 30 NSWLR 1 Barnes v Addy (1874) LR 9 Ch App 244 Konskier v B Goodman Ltd [1928] 1 KB 421 ORDERS

1. Leave to appeal; 2. Appeal allowed; 3. Set aside the orders made by his Honour Judge Black on 18 May 2001; 4. Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40415/01 DC 133/00 (Dubbo)

MASON P SHELLER JA BEAZLEY JA

Tuesday, 26 March 2002 AIR LINK PTY LIMITED v PATERSON Judgment 1 MASON P: I agree with Sheller JA. 2 SHELLER JA:

This appeal illustrates the timely care that must be taken in deciding how proceedings should be brought against an air carrier to recover for injuries or damage suffered during flight. On 22 September 2000 the plaintiff, Malcolm Ian Paterson, who is the opponent to this application for leave to appeal, began proceedings by statement of claim in the District Court of New South Wales at Dubbo to recover damages for injuries he claimed to have sustained after a flight from Cobar when disembarking at Dubbo from an aircraft owned or operated by the defendant and claimant, Air Link Pty Limited. The plaintiff was travelling on a ticket for carriage from a place in Queensland to Cobar and return. Both parties accept that Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Act) applied to the air carriage of the plaintiff. 3 Subject to s37, which has no application here, s36 in Part IV of the Act provides that "the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury". Section 28 in Part IV provides: "Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking." 4 The parties accept that perforce of s36 the liability of the defendant to the plaintiff for any injury suffered during disembarkation was to be found under Part IV and was in substitution for any civil liability of the carrier under any other law in respect of the injury. Section 28 makes that liability absolute on proof of injury resulting from an accident. 5 Section 31 in Part IV limits the liability of the carrier under the Part in respect of each passenger to a maximum monetary amount. Section 34 in Part IV provides: "The right of a person to damages under this Part 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, …."

The action referred to must necessarily be an action under Pt IV. It should be remarked that the plaintiff's statement of claim was filed about three days before the expiry of the two year limitation period in s34.

Statement of Claim 6 The plaintiff's statement of claim pleaded his cause of action without mention or reference to Part IV or to the Act. In para 2 of the statement of claim it was alleged that the defendant was authorised under the Air Transport Act 1964, a New South Wales Act, to operate a commuter and charter airline in New South Wales. In para 3 it was alleged that on or about 25 September 1998 the plaintiff was a passenger on the defendant's flight No 648 from Cobar to Dubbo. Paragraph 4 set out the circumstances of the alleged accident and para 5 the injuries, loss and damage sustained by the plaintiff "as a result of the negligence and/or breach of duty of care of the Defendant by its servants or agents". There followed "Particulars of Negligence". Paragraph 6 set out the particulars of injuries alleged to have been suffered. Paragraph 7 referred to disabilities, out of pocket expenses and economic loss alleged to have been suffered and as set out in the plaintiff's particulars. In para 8 the plaintiff claimed further and/or in the alternative that "on or about 20 September 1998, the Plaintiff purchased from the Defendant, through its agent, Qantas Airways Limited, ticket No 4463500449, including for the Defendant's flight 648 from Cobar to Dubbo on 25 September 1998". In para 9 the plaintiff alleged that it was an implied term of the agreement between the plaintiff and the defendant that the defendant would transfer the plaintiff in its aircraft in a safe and proper manner. Paragraph 10 alleged a breach of this term and para 11 that in consequence of the breach the plaintiff had sustained the injuries, loss and damage earlier particularised. 7 In short, the statement of claim pleaded a claim founded on causes of action for negligence and breach of contract by the defendant while the plaintiff was a passenger on its aircraft during intra State carriage from Cobar to Dubbo. Nothing in the statement of claim suggested that the claim was made under Part IV of the Act for injuries sustained during interstate carriage.

Grounds of Defence 8 On 8 March 2001 the claimant filed a notice of grounds of defence which put in issue the allegations in paras 4, 5, 6, 7, 9, 10 and 11 and continued as follows: "8. In further answer to the Statement of Claim or alternatively, the Defendant was at all material times the holder of an air operator's certificate in force under the Civil Aviation Act, 1988 authorising airline and charter operations. 9. On 25 September 1998, the aircraft on which the Plaintiff was carried between Cobar and Dubbo was an aircraft operated by the Defendant in the course of operations in which the aircraft was used, for reward, for the carriage of passengers. 10. The Plaintiff travelled on the aircraft operated by the Defendant between Cobar and Dubbo on 25 September 1998 pursuant to a ticket issued by Qantas Airways Ltd for carriage from Gold Coast to Cobar and return. Particulars Ticket No 081 4463500449 2 was issued to Mr M Patterson by Qantas Airways Ltd for carriage from: Gold Coast to Sydney on 20 September 1998, from Sydney to Dubbo on 20 September 1998, from Dubbo to Cobar on 20 September 1998, from Cobar to Dubbo on 25 September 1998, from Dubbo to Sydney on 25 September 1998, and from Sydney to Gold Coast on 25 September 1998. 11. The carriage of the Plaintiff between Gold Coast and Cobar and return was regarded by the parties as a single operation agreed upon by a single contract evidenced by the said ticket. 12. The carriage of the Plaintiff by the Defendant between Cobar and Dubbo was carriage on an aircraft operated by the holder of an air operator's certificate authorising airline and charter operations in the course of commercial transport operations pursuant to a contract for the carriage of the Plaintiff from a place in Queensland to a place in New South Wales and subject to Part IV of the Civil Aviation (Carriers' Liability) Act , 1959 (Cth). 13. The liability of a carrier under Part IV of the Civil Aviation (Carriers' Liability) Act, 1959 in respect of the Plaintiff's alleged injuries is in substitution for any civil liability of the carrier under any other law in respect of the alleged injuries. 14. In the premises the proceeding pleaded in the Statement of Claim is not maintainable and is liable to be dismissed." 9 The facts the defendant pleaded, if made out, established that, pursuant to s36 of the Act, Part IV provided the exclusive remedy available to the plaintiff to recover compensation for his personal injury. The plaintiff's only remedy was under Part IV. Any action under Part IV was extinguished by s34 on 22 September 2000.

Notices of Motion 10 On 7 May 2001 the plaintiff filed a notice of motion in the District Court at Dubbo for the following orders: "1. That paragraph 14 of the Notice of Grounds of Defence be struck out. 2. Alternatively, that the Plaintiff be given leave to amend the Statement of Claim in the form annexed to the Affidavit of Stephen Michael Duffy sworn 7 May 2001." 11 Mr Duffy's affidavit annexed a proposed amended form of statement of claim. That statement of claim alleged that

(a) the defendant was at all material times the holder of an air operator's certificate in force under the Civil Aviation Act 1988 authorising airline and charter operations;

(b) the plaintiff was travelling between Cobar and Dubbo on a ticket issued by Qantas Airways Limited for carriage from Gold Coast to Cobar and return; and

(c) the carriage of the plaintiff by the defendant between Cobar and Dubbo was carriage on an aircraft operated by the holder of an air operator's certificate authorising airline and charter operations in the course of commercial transport operations pursuant to a contract for the carriage of the plaintiff from a place in Queensland to a place in New South Wales and subject to Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). 12 The plaintiff also pleaded that the liability of the defendant under Part IV in respect of the plaintiff's alleged injuries was in substitution for any civil liability of the defendant and any other law in respect of the alleged injury. 13 In this proposed amended statement of claim no mention was made of claims for negligence or breach of contract. The form of the amended statement of claim, in contrast to the original statement of claim filed, pleaded a claim under Part IV of the Act. 14 On 17 May 2001 the defendant filed a notice of motion pursuant to Part 11A rule 3 that the proceedings be dismissed. Both notices of motion came on for hearing before his Honour Judge Black. On 18 May 2001 his Honour made an order in accordance with para 1 of the plaintiff's notice of motion, made no order in relation to para 2 and dismissed the defendant's notice of motion. It is from that decision that this application by the defendant for leave to appeal comes.

Reasons for judgment in the District Court 15 In his reasons for judgment Judge Black summarised the dispute as follows: "The dispute arises because, in essence, the defendants [sic] say the plaintiff has not commenced an action against them in any appropriate way. The time for doing so has expired, therefore, they should not be allowed to amend and in consequence of all that, their motion dismissing the proceedings should be granted." 16 His Honour referred to the defendant's submissions that, if the Act applied, no other action could be brought and that the statement of claim as framed could not be said to amount to bringing an action under Part IV of the Act. Part 5 of the District Court Rules is directed to the commencement of proceedings. Rule 6A in that Part provides that a statement of claim lodged to commence an action shall contain: "(a) a statement of each cause of action in respect of which the action is brought, and a statement of the amount of debt or damages, or other relief, claimed in respect of each such cause of action." 17 The statement of claim filed by the plaintiff did not comply with this rule. There was no statement of the statutory cause of action and the amount of damages claimed, $750,000, exceeded the maximum amount recoverable in such a cause of action. We were told from the bar table that Judge Black was not referred to this rule. 18 Part 9 of the District Court Rules is directed to pleading and particulars. Rule 3 provides: "3(1) A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved. (2) Subrule (1) has effect subject to this Part and to Part 5." 19 Rule 9 provides: "(1) The plaintiff shall, in his originating process, plead specifically any matter which, if not pleaded specifically, may take the defendant by surprise." 20 In Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44 Hodgson JA, with whose judgment Mason P and Handley JA agreed, said, referring to Part 9, rules 3(1) and 9(1): "21 …….even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier v B Goodman Limited [1928] 1 KB 421 at 427 as establishing that there is never any requirement to do more than set out facts. Where there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action. 22 In the District Court, Pt5 r6A(a) directly requires the statement of causes of action. I see this not as contradicting Pt 9 r3(1), but as making it clear that the statement of material facts should be so presented as to amount also to a statement of a cause or causes of action. That is, the statement should convey just what causes or causes of action are being relied on. The statement should also convey exactly what relief is claimed in respect of each cause of action."

If the plaintiff's right to recover damages for injury depends exclusively upon the provisions of a part or section of a statute it is essential that the claim states material facts demonstrating that entitlement and it is desirable that the statutory provision be identified. 21 If one were to strip away, by ignoring or omitting it, the core of the statement of claim - namely, para 5, the allegation of negligence, and paras 9, 10 and 11, the allegations of the terms of the contract of carriage and its breach - a course, in my opinion, impermissible in determining what causes of action the plaintiff relied on, there is left no more than allegations about the defendant's corporate status, that it was authorised to operate a commuter and charter airline in New South Wales and that the plaintiff was a passenger on a flight between Cobar and Dubbo and was injured when alighting from the defendant's aircraft at Dubbo for reason that the stairs were not properly and safely positioned. The injuries, disabilities and out of pocket expenses were particularised and the pleader referred to the ticket number which included the flight from Cobar to Dubbo. The carriage pleaded is intra State carriage by a carrier authorised to engage in such carriage. The safety of the positioning of the stairs is irrelevant to the absolute liability of the carrier under Part IV. 22 All these allegations were pleaded as facts going to support the causes of action in tort and contract. Their presence is thus explained. The statement of claim as a whole did not plead the statutory cause of action. In my opinion, if the allegations of negligence and breach of contract are ignored, what remains does not plead the statutory cause of action. 23 Judge Black referred to Staples v City and Country Helicopters Pty Limited (1993) 119 FLR 291, a decision of Cullinane J in the Supreme Court of Queensland, but held that it could be distinguished on the basis that the relevant rules of court in Queensland were different from those of the District Court. His Honour referred to Proctor v Jetway Aviation Pty Limited, at first instance, (1982) 2 NSWLR 264, and on appeal, (1984) 1 NSWLR 166. His Honour said that what in his view was significant was that the Court of Appeal expressly said: "We do not need to decide whether or not [Cross J, the first instance judge] was right in what he said about the nature of the pleading, because we have allowed the appeal on another ground." 24 In that case the claim was pleaded under the Compensation to Relatives Act 1897. The Court of Appeal held that the plaintiff should be permitted to amend its statement of claim to bring a claim under the Civil Aviation (Carriers' Liability) Act 1967 (NSW), even though the amendment was out of time pursuant to s34 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). By the operation of s5 of the State Act, the provisions of Pt IV of the Commonwealth Act, of which s34 is one, are incorporated into the State Act so as to apply to intra State air carriage. In that context, Moffitt P said, at 176, that it was not necessary for the Court to determine whether the essentials of the claim under the Act sufficiently appeared in the statement of claim. Priestley JA said, at 184: "The statement of claim was clearly not drafted with Civil Aviation (Carriers' Liability) Act 1967 (NSW) …. in mind and did not contain allegations of fact which it would be necessary to prove if a claim under that Act were to be sustained."

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.

Orders 34 I would propose the following orders: 1. Leave to appeal; 2. Appeal allowed; 3. Set aside the orders made by his Honour Judge Black on 18 May 2001; 4. Opponent to pay the claimant's costs of this application and of the appeal and the costs of the proceedings before Judge Black. 35 BEAZLEY JA: I agree with Sheller JA. **********

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