Fattouh v Gulf Air Company GSC & Anor

District Court of NSW|2007-07-06

CITATION: Fattouh v Gulf Air Company GSC & Anor [2007] NSWDC 153

DECISION: First defendant's motion for an order that the Court has no jurisdiction over the first defendant in respect of the subject-matter of the proceedings is dismissed. First defendant to pay the plaintiff's costs of the motion.

CATCHWORDS: AVIATION - Carriage by air - Injury to passenger - Carrier's liability - International convention on carriage by air having force in domestic law - Jurisdiction granted by international convention - Agreement or contract for international carriage - Airline ticket - Whether ticket a contract of carriage - Return ticket - Meaning of "place of destination" - Interpretation - Rules of construction of international conventions - Jurisdiction of domestic court upheld

Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 5, 8(1)(e), 25K, 25L, 25M, 34, 36, and Sch 5 LEGISLATION CITED: Judiciary Act 1903 (Cth), s 39(2) Sea-Carriage of Goods Act 1924 (Cth) Stamp Act 1921 (WA) Warsaw Convention 1929 as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975, Arts 1, 3, 4, 17, 18, 24, 28, 32

Aanestad v Air Canada Inc 390 F Supp 1165 (1975) Abdulrahman Al-Zamil v British Airways Inc 770 F 2d 3 (1985) Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2005) 223 CLR 25 Air Link Pty Ltd v Paterson (2005) 218 ALR 700 Butz v British Airways Inc 421 F Supp 127 (1976) Coyle v PT Garuda Indonesia 363 F 3d 979 (2004) Emery Air Freight Corporation v Merck Sharpe & Dohme (Australia) Pty Ltd (1999) 47 NSWLR 696 Fothergill v Monarch Airlines Ltd [1981] AC 251 Gayda v Lot Polish Airlines 702 F 2d 424 (1983) Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 Grein v Imperial Airways Ltd [1937] 1 KB 50 Holmes v Bangladesh Biman Corporation [1989] 1 AC 1112 CASES CITED: Hurley v KLM Royal Dutch Airlines 602 F Supp 1249 (1985) Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 Lee v China Airlines Ltd 669 F Supp 979 (1987) MacRobertson Miller Airline Services v Commissioner of State Taxation (Western Australia) (1975) 133 CLR 125 Oceanic Sun Line Special Shipping Company Inc v Fay (1987) 8 NSWLR 242) Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Petrire v Spantax SA 756 F 2d 263 (1985) Povey v Qantas Airways Ltd (2005) 223 CLR 189 Robertson v American Airlines Inc 365 US App DC 217 (2005) Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368 Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142 Swaminathan v Swiss Air Transport Co Ltd 962 F 2d 387 (1992) Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1

Ahmed Bader Eddine Fattouh - Plaintiff PARTIES: Gulf Air Company GSC - First Defendant Jihad Saleh - Second Defendant

Mr BJ Gross QC (Plaintiff) COUNSEL: Mr AP Spencer (First Defendant) No appearance for Second Defendant

SOLICITORS: Carroll & O'Dea (Plaintiff) Norton White Lawyers (First Defendant)

1 The present proceedings relate to a claim by the plaintiff, Ahmed Bader Eddine Fattouh, for damages for personal injury allegedly sustained by him on 21 February 2005 during an international airline flight about two hours before the aeroplane landed in Sydney. The plaintiff was an economy class passenger on the flight operated by the first defendant, Gulf Air Company GSC trading as "Gulf Air", and while standing in the aisle talking to a seated passenger he claimed another passenger, Jihad Saleh who was named as the second defendant, punched him on the left side of the head. In the result, the plaintiff said he was wounded and suffered bodily injury and damage. 2 The plaintiff brought the action against the first defendant pursuant to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Carriers' Liability Act). The claim against the second defendant, who has been named but not as yet served with the claim, was brought in trespass against the person for assault and battery causing damage.

3 By notice of motion filed on 19 February 2007, as amended on 25 June 2007, the first defendant sought an order declaring that the Court had no jurisdiction over it in respect of the subject-matter of the proceedings so that the claim should be dismissed. At this stage, the first defendant had not filed a notice of defence but resisted the claim on the sole basis of a lack of jurisdiction according to the notice of motion so as to avoid any suggestion it had waived or submitted to jurisdiction by a contest on the merits: see Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368 at 375-376 per Mustill J as followed and applied in Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1 at 18-19 per Knight DCJ. Accordingly, on 6 July 2007 I ordered that the jurisdictional question be decided separately from any other question or further trial of the proceedings.

4 The plaintiff is, and was at the relevant time of travel, a resident of Lebanon who lived in Tripoli with his family other than one of his sons, Tarek Fattouh, who lived with his wife and children at Greenacre in Sydney. The plaintiff first came to Sydney in 2002 when he visited his son and stayed for about three months. An affidavit sworn by Mr Fattouh on 22 June 2007, on which there was no cross-examination, detailed the action taken by him to assist in arranging a second trip to Sydney by the plaintiff. It seems he attended the Punchbowl office of Gitani Travel Agency Pty Limited in December 2004 to make application for a visitor's visa for his father and then returned on 10 February 2005 to finalise the arrangements as to dates of travel, airline and prices. He paid Gitani Travel the amount of $1,790 and was informed that the Tripoli office of Gitani Travel would contact the plaintiff when the tickets were ready for collection; Mr Fattouh confirmed the arrangements with the plaintiff who, he said, only had to pick up the tickets in Tripoli as he had paid for the trip already and there was no payment made by the plaintiff.

5 The general manager of the first defendant for Australia and South Pacific, Robin Middleton, on 19 April 2007 swore an affidavit, not subject to cross-examination, which set out matters concerning the airline's system for the sale of and payment for tickets, details of the plaintiff's ticket and booking record, and including the terms of the first defendant's general conditions of carriage.

6 Matters of note emerging from Mr Middleton's affidavit may be shortly summarised in the following way - o The plaintiff's ticket was issued on 17 February 2005 by Gitani Travel of Tripoli, Lebanon (apparently not the same entity as its namesake at Punchbowl, Sydney although the principals of each may be related). o The ticket was for carriage of the passenger, the plaintiff, by Gulf Air and was valid for Gulf Air flights only. o The "origin/destination" shown on the ticket was "BEYBEY" which indicated that Beirut ("BEY") was both the point of origin and destination. o The abbreviation on the ticket "SITI" indicated that the transaction originated in Lebanon as being "sold in ticketed in" that country by a reservation and booking of seats on the flights concerned. o The fare for the ticket was paid in cash with US dollars, but if it was made by credit card to Gitani Travel in Punchbowl (as Mr Fattouh said) then such payment would have been remitted to Gitani Travel in Tripoli for payment to the first defendant. o The passenger contact was "Mary" of Gitani Travel in Tripoli. o The ticket showed flights for the plaintiff from Beirut to Bahrain on 20 February 2005, Bahrain to Sydney on 20 February 2005, Sydney to Bahrain on 18 May 2005 and Bahrain to Beirut on 19 May 2005.

7 The plaintiff duly travelled in accordance with the flights as shown on the ticket and, on the final leg of the flight after a stop-over in Singapore, at about 8.30am before landing in Sydney the assault allegedly occurred. Again in accordance with the ticketing arrangements, and after the visit to his son and family in Greenacre, the plaintiff on 18 May 2005 flew from Sydney to Bahrain and on 19 May 2005 from Bahrain to his original departure point of Beirut in Lebanon.

8 The parties to the motion agreed the following facts: 1. The First Defendant is and was at all material times a carrier and the alleged events giving rise to the plaintiff's claim occurred during international carriage, within the meaning given to those terms in the Civil Aviation (Carriers' Liability) Act 1959 (Cth) and the Montreal No 4 Convention.

At the time of the alleged incident as a result of which the Plaintiff allegedly suffered injury, and to which this proceeding relates, the Plaintiff was a passenger travelling on a passenger ticket numbered 5124321862 ("the Ticket"), a copy of which is attached and marked "A", on Flight GF 148 operated by the First Defendant from Bahrain to Sydney.

The First Defendant's General Conditions of Carriage (Passenger and Baggage), a copy of which is attached and marked "B", formed part of the terms and conditions of the contract of carriage.

Honouring the Ticket, the First Defendant carried the plaintiff on the following flights performed by the first defendant:

(a) GF910 from Beirut (Lebanon) to Bahrain on 20 February 2005; and

(b) GF148 from Bahrain to Sydney (Australia) on 20 February 2005; and

(d) GF911 from Bahrain to Beirut (Lebanon) on 19 May 2005.

Each of Australia and Lebanon are High Contracting Parties to the Montreal No 4 Convention.

10 The parties to the motion submitted the following as issues arising in the proceedings: The Plaintiff's claim is for damages under Article 17 of the Warsaw Convention as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975 ("the Montreal No 4 Convention") which is Schedule 5 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). The Plaintiff concedes that the Court only has jurisdiction if he can satisfy the Court that the proceeding falls within one of the four grounds for jurisdiction identified in Article 28 of the Montreal No 4 Convention. Of these four grounds, the Plaintiff relies only on the fourth, namely that Sydney was the place of destination within the meaning given to that term by the Montreal No 4 Convention.

The following questions have been raised by the parties for determination:

A. Whether the Plaintiff was at the relevant time being carried by the First Defendant according to an agreement for the carriage of the Plaintiff from Beirut to Bahrain to Sydney to Bahrain to Beirut or according to an agreement for the carriage of the Plaintiff from Beirut, or Bahrain to Sydney.

B. Whether any contract or contracts of carriage were made by the First Defendant with the Plaintiff's son.

C. Whether an operative contract for carriage was only completed in respect of each flight to a destination by the act of the First Defendant issuing a boarding pass to the Plaintiff at the check-in counter at each place of departure, to permit and enable the Plaintiff to be carried on each flight to such destination.

D. Whether Sydney was the place of destination within the meaning given to that term by the Montreal No 4 Convention.

11 The essential and ultimate issue for determination, as the matter was argued, was whether Sydney was the "place of destination" as properly understood in Art 28 of the Montreal No 4 Convention. If it was, then the Court had jurisdiction to hear and determine the plaintiff's claim for damages against the first defendant pursuant to Art 17 of the Montreal No 4 Convention; if it was not, then the Court lacked jurisdiction and the orders sought in the motion must succeed.

12 For the plaintiff, it was put that the place of destination was Sydney. The first defendant submitted that it was Beirut in Lebanon.

13 The parties were agreed that the Carriers' Liability Act applied to the present action. That Act, as its long title indicates, is "An Act relating to Carriage by Air." Section 25K gives the Montreal No 4 Convention (the Convention), as it says, "the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage." The scheme created by the statute in presently relevant respects may be shortly stated. The Convention means the Convention known as the Warsaw Convention 1929 as amended at The Hague, 1955, and by Protocol No 4 of Montreal, 1975: s 5. The text of the Convention is taken to be the text set out in Sch 5 to the statute: s 8(1)(e). The liability of a carrier in respect of personal injury suffered by a passenger is in substitution for any civil liability of the carrier under any other law in respect of the injury: ss 25L and 36. Jurisdiction with respect to civil matters arising under the statute is conferred on this Court by s 39(2) of the Judiciary Act 1903 (Cth) and, for that purpose, the jurisdiction of State courts is preserved by taking an action under the Convention not to be a matter arising directly under a treaty: s 25M.

14 The principal provisions of the Convention for present purposes are: Article 1

This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward…

For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory or another State is not international carriage for the purpose of this Convention.

Carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State. Article 3

In respect of the carriage of passengers a ticket shall be delivered containing: (a) an indication of the places of departure and destination;

(b) if the places of departure and destination are within the Territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c) a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for death or personal injury and in respect of loss or damage to baggage.

The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not effect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention… Article 4

In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph 1, shall contain: (a) an indication of the places of departure and destination; … 2. The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage… … Article 17

The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18

The carrier is liable for damages sustained in the event of the destruction or loss of, or damage to, any registered baggage, if the occurrence which caused the damage so sustained took place during the carriage by air. … Article 24

In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. … Article 28

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either…or before the Court having jurisdiction at the place of destination.

Questions of procedure shall be governed by the law of the Court seised of the case. … Article 32

Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void… …"

15 In so identifying the relevant legislative provisions, it is important to emphasise that the Convention as international law has been expressly incorporated by the Carriers' Liability Act into Australian domestic law: see Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 199-200 in para [14]. And, by s 36 of the statute, the liability of the carrier is in substitution for any civil liability of the carrier under any other law in respect of the injury: see also Povey in para [14]. Thus, the present cause of action is to be seen as one created by Australian federal law and as engaging the exercise of federal jurisdiction: Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2005) 223 CLR 25 in paras [24]-[32].

16 It would clearly appear to be settled law that in interpreting an international convention, such as the presently relevant Convention, which has become part of the law of Australia that special considerations apply by comparison with the task of interpreting a domestic statute. In Povey (at 230-233 in paras [128]-[143]) as to conventions under the Carriers' Liability Act, Kirby J offered six reasons for this which, in summary, were - o The Convention is an international code governing the liability of air carriers and, as such, it is intended to be applied, and interpreted, so as to achieve uniformity of application. o The Convention is the product of an international compromise not so much with considerations of principle, justice and equity as of international and domestic politics, business pressures, technical advances in aviation, changing policy judgments and the differing approaches of municipal judges to claims. o The Convention is intended to have a uniform operation, in substitution for a multitude of differing outcomes affecting an international industry of ever-growing size and importance , so that it is imperative that domestic courts should give close attention to relevant rulings made by the courts of treaty partners. o In construing the Convention regard may be had under the Vienna Convention on the Law of Treaties to supplementary sources in determining the meaning where a provision is ambiguous or obscure. o The ultimate focus must be on what the actual words used in the Convention mean. o Deference to international comity will sometimes appear to be in conflict with the ultimate judicial duty to give meaning to the words of the treaty; what one judicial observer regards as ambiguous or obscure will be seen by another as clear and incontestable, demanding but one outcome based on the text. 17 In Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 113-114, Meagher JA (with whom Powell JA and Stein JA agreed) cited with approval the following passage from the judgment of Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282: The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux préparatoires , doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text.

The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141 at 152, "unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.

18 Meagher JA (at 114) added: The common law position in relation to the interpretation of international agreements directly incorporated into domestic law is repeated by art 31 and art 32 of the Vienna Convention on the Law of Treaties 1980 (Cmnd 7964). Paragraph 1 of art 31 provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 32 provides: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

In Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 335, Einfeld J accepted that "international obligations incorporated directly into domestic law are able to be interpreted according to principles of international law, not domestic law." Gummow J said (at 535-536): …it is to be remembered that the terms used are not those drafted by Parliamentary Counsel, but are the result of negotiations between a number of contracting State parties with various legal systems and methods of legislative drafting…the applicable rules of interpretation are those recognised by customary international law, as codified by the Vienna Convention on the Law of Treaties (Cmnd 7964, 1980): see Zoeller v Federal Republic of Germany (1989) 91 ALR 341 at 348-350; Thiel v Federal Commissioner of Taxation (1990) 94 ALR 647 at 658; Littrell v USA [1992] 3 All ER 218 at 221.

19 However, it is to be noted that in Povey (at 202 in para [25]) Gleeson CJ, Gummow, Hayne and Heydon JJ, in affirming the principles of construction outlined above for international treaties, nevertheless added that "the ultimate questions are, and must remain: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law?"

20 Of course, as the agreed issues accept, the ultimate question in the present case involves the meaning of the expression in Art 28 of the Convention, that is, "the place of destination", as to whether in the circumstances of the international carriage of the plaintiff it was Sydney or Beirut. In light of the apparently well-settled approach to the interpretation of the Convention as incorporated by the Carriers' Liability Act, the proper approach to the construction of the Warsaw Convention generally was the subject of some caution by Mason P, with whom Sheller JA agreed, in Emery Air Freight Corporation v Merck Sharpe & Dohme (Australia) Pty Ltd (1999) 47 NSWLR 696 at 704 in paras [49]-[51]. His Honour commented, whilst acknowledging the need to pay deference to the decisions of courts of other signatory countries (see Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 176, 186 and 213), that the United States was not a signatory to the original Warsaw Convention and as "most of that case law coming from the United States Court of Appeals, Second Circuit, the Circuit that includes New York City" there was "an additional reason for close examination of the American case law considering the unamended Convention."

21 The apparent tension which may result from an endeavour to achieve international uniformity in the interpretation of the Convention by deferring to relevant rulings made by the courts of other States seemed a matter at the core of the above-cited comments by Kirby J in Povey. That tension, as I reason and understand it, was very much acknowledged by Mason and Wilson JJ in Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142 in relation to the incorporation of the Hague Rules in the Sea-Carriage of Goods Act 1924 (Cth). Their Honours said (at 159-160): To say this is not to assert that we should exclude from our consideration of the rules settled by an international convention the meaning which has been consistently assigned by a national court to words and expressions commonly used in the documentation by which international trade is transacted, when the convention, in seeking to regulate the rights and liabilities of parties to international trading transactions, uses those words and expressions…Nor do the principles of interpretation of an international convention exclude recourse to the antecedent municipal law of nations for the purpose of elucidating the meaning and effect of the convention and the new rules which it introduces. It would be extremely difficult to interpret the new rules as if they existed in a vacuum without taking into account antecedent municipal law and the problems which its application generated. However, in resorting to antecedent municipal law we need to recollect that it is the language of the Hague Rules that we are expounding, the antecedent law providing a background for that exposition by enabling us more readily to gauge the sense and direction of the new rules which the convention introduces.

22 In the recent decision of Air Link Pty Ltd v Paterson (2005) 218 ALR 700 at 716-717 in paras [78]-[80], Kirby J revisited this question and commented that "a purposive approach to the construction of legislation (such as the Carriers' Act, including s 34) is now mandated in Australia by federal law: Acts Interpretation Act 1901 (Cth), ss 15AA and 15AB. His Honour in that respect then referred to what Lord Diplock said in Fothergill, as I have recited it above, and concluded that "a purposive approach [is] the appropriate and safe course to adopt: see Fothergill at 272 per Lord Wilberforce."

23 I will have in mind the above statements as to the interpretation of the Convention in determining the present issues.

24 It was common ground that the events giving rise to the plaintiff's claim occurred during international carriage within the meaning of that term in Art 1(2) of the Convention. It was common ground too that by reason of Art 3(2) the passenger ticket issued to the plaintiff was prima facie evidence of the conditions of contract between the parties for that carriage. Neither party relied on the fact that the plaintiff's son, Mr Fattouh, made the arrangements for the plaintiff's travel and purchased the ticket so as to create a contract between Mr Fattouh and the first defendant. It was accepted that any relevant contract for carriage was between the plaintiff as passenger and the first defendant as carrier - that, in my view, must be correct according to Art 1(2) of the Convention which makes "international carriage" as meaning carriage "according to the agreement between the parties" (emphasis is mine). Indeed, in MacRobertson Miller Airline Services v Commissioner of State Taxation (Western Australia) (1975) 133 CLR 125 at 146-147, Jacobs J accepted, even if the passenger did not obtain the issue of the ticket, that nevertheless the passenger did in fact enter into a contractual relationship with the carrier; in such a situation, his Honour considered there would be two contracts.

25 The submission for the first defendant was that either at the time of issue of the ticket to the plaintiff on 17 February 2005 in Tripoli or at a time thereafter (no later than when the plaintiff boarded the aircraft in Beirut on 20 February 2005) a contract of carriage came into existence between the plaintiff and the first defendant. That was, so the submission went, the relevant contract of carriage for the purposes of these proceedings. It provided, according to the ticket issued, for the first defendant to carry the plaintiff from Beirut via Bahrain to Sydney and return on a journey commencing on 20 February 2005 so that pursuant to Art 1(2) the place of destination was therefore Beirut.

26 Against that, it was put for the plaintiff that whilst the ticket as containing the respective flight coupons and contractual provisions was the primary evidence of the parties' contractual relationship and at least prima facie evidence thereof, it was evidence of only an executory contract of carriage; the question of the place of destination according to the reference of that place in Art 1(2) was determined by the executed contract to which the plaintiff was a party (emphasis added). In other words, the mere issue or delivery of the ticket, as here, in Tripoli in return for payment having been made in Sydney did not amount to a contract. Reliance was placed on MacRobertson Miller.

27 Perhaps strangely, but with one exception, both counsel advised that there was no Australian case directly in point on the issue to be decided here as to the meaning of the place of destination as used in Art 28 of the Convention. The exception was the decision of Knight DCJ in this Court in Vertzyas as referred to earlier. Other than that decision, my researches give the same result. His Honour, consistent with the principles as to the proper interpretation of international conventions, found "that the United States and Canadian courts have consistently regarded the place of destination within the meaning of the Convention as being the ultimate destination as determined from the contract evidenced by the ticket: see 50 NSWLR 1 at 12-13 in para [47] and cases there cited. In addition, Knight DCJ considered (50 NSWLR at 13 in paras [50]-[51]) that the Court of Appeal in England took the same general approach in Grein v Imperial Airways Ltd [1937] 1 KB 50 so that he was required to follow that line of authority.

28 Senior counsel for the plaintiff, although acknowledging that Knight DCJ referred to and distinguished MacRobertson Miller, submitted his Honour's decision was wrong and should not be followed because it was given per incuriam in the absence of any reference to the decisions in Oceanic Sun Line Special Shipping Company Inc v Fay of the NSW Court of Appeal (1987) 8 NSWLR 242 and of the High Court (1988) 165 CLR 197. It was submitted that his Honour was bound to follow MacRobertson Miller which supported the plaintiff's position that the mere issue or delivery of the ticket in return for payment did not amount to a contract and the carrier was not in contractual relations with the intending passenger until it had provided a seat on the aeroplane.

29 MacRobertson Miller was concerned with the question whether an airline ticket, albeit in that case one concerned with domestic air travel, was "a memorandum of a completed agreement" so as to be dutiable under the Stamp Act 1921 (WA). It was held by the whole Court (Barwick CJ, Stephen and Jacobs JJ) that it was not. In that case, the ticket contained two flight coupons, one for a journey from Perth to Port Hedland and the other from Port Hedland to Perth.

30 The Chief Justice held (at 133) that the conditions in the ticket meant that "the exemption of the ticket in this case fully occupies the whole area of possible obligation, leaving no room for the existence of a contract of carriage." His Honour added (at 133) that "quite apart from the particular terms of the ticket in the instant case, the issue of a ticket by an airline operator neither constitutes an agreement nor a memorandum of agreement" so that (at 134) "the airline operator was not in contractual relations with the intending passenger until it had provided him with a seat on the aeroplane." It was reasoned by Barwick CJ in this way (at 134): The issue of the ticket, in my opinion, is mainly a receipt for the payment of the fare, though it also stipulates an occasion when the fare may not be refundable though actual carriage has not ensued. The payment made on the making of the reservation ought, in my opinion, to be regarded as no more than the prepayment of the fare payable for an actual carriage performed. Having regard to the known contingencies of airline operation it would be incongruous to infer the making of a promise to carry from the mere payment of the fare and its acknowledgment by the issue of a ticket. The ticket, apart from any specific terms it might contain, would not be regarded as entitling its holder to a place on a particular flight. It should be regarded as doing no more than denominate the carriage which, if performed, will earn the prepaid fare. If, as in the present case, the ticket contains terms of carriage, these will, given the performance of the denominated carriage, regulate the relationship of the parties during and in connexion with such carriage and thus their respective rights in relation thereto.

31 The same conclusion was reached by Stephen J who reasoned as follows (at 139-140):

The cases, including some of the few passages which I have cited, are replete with references to passengers who elect not to read ticket conditions, no doubt the common behaviour of most passengers; they, it is said, do not thereby escape being bound by those conditions. This rule of law, which is directed to identifying the agreed terms of the particular contract, does not detract from but, rather, supports the proposition that acceptance, and the resultant formation of the contract, does not occur upon tender of the ticket. It occurs after that event, either when the passenger has by actual conduct intimated his acceptance of the offer, for instance by immediately boarding the vehicle in question, or, absent any such conduct, when a reasonable time has passed during which the passenger has had an opportunity of reading the conditions appearing on the ticket and has not then rejected the offer and demanded the return of his fare… If this, then, be the correct view of the time of formation of such a contract as the present one, it necessarily follows that in the typical circumstances referred to…the completed ticket itself will not, when it comes into existence, then record any existing agreement nor itself be an agreement; it will be no more than a written offer open for acceptance…

32 Jacobs J reached the same conclusion by stating (at 146-147):

It thus appears that, although a passenger by possession of a ticket or by embarking on the travel may accept the offer constituted by the ticket and be a contracting party to a contract of carriage, it is not a contract of carriage which is in writing by virtue of the ticket; it is a contract which may arise only by presentation of the ticket.

Where the original contracting party and the passenger are different, there are on analysis found to be the two contracts. In the present case, the purchaser of the ticket and the passenger were the same person, but it cannot be said that the ticket itself was the agreement…

33 It will be apparent that the reasoning and conclusion reached in MacRobertson Miller directly supported the submission here for the plaintiff. That is, there could be no international carriage until the parties, carrier and passenger, had reached an agreement which was made, not by the ticket, but by the passenger accepting the offer in the ticket by his conduct in boarding the aircraft after presentation of the ticket.

34 In Oceanic Sun Line Shipping, in relation to a booking made in Sydney for a cruise in the Greek Islands, the Court of Appeal (Glass and McHugh JJA, Kirby P dissenting) distinguished MacRobertson Miller on the basis, as McHugh JA (with whom Glass JA agreed) said (8 NSWLR at 267), that "the circumstances surrounding travel on a domestic or, if it matters, an international flight are very different from those surrounding travel by boat." For that view, his Honour relied on what Barwick CJ observed in MacRobertson Miller (133 CLR at 135), namely: …a promise to carry may be more appropriately made by a steamship company than by an airline operator. The marked degree of certainty on the one hand and of uncertainty on the other affords good ground for distinguishing the inferences which, apart from express provisions, might be drawn in the one case though not in the other.

35 Although in the minority, Kirby P found (8 NSWLR at 251) as unconvincing the attempt to distinguish air transport from other forms of transport for the application of legal principles. As to the binding effect of MacRobertson Miller , the President considered himself "bound by the analyses in MacRobertson" and that "if they are applicable to the contractual arrangements here, and cannot be distinguished, the binding rule in that decision must be given effect" (8 NSWLR at 253-254). His Honour found no distinguishing features.

36 On appeal in the High Court, which affirmed the decision of the Court of Appeal, MacRobertson Miller was again distinguished. In that respect, as a factual matter, in Oceanic Sun Line Shipping Wilson and Toohey JJ dealt with the documents received in Sydney by the intending passenger (165 CLR at 203-206) to the effect that an exchange order was given by or on behalf of the carrier in Sydney to the intending passenger and on arrival in Athens the exchange order was presented to obtain passage tickets, boarding passes and luggage labels; and the exchange order set out the name of the ship, sailing date, time of sailing and of embarkation, ports of departure and arrival, names and cabin number, fare charged, nationality of the passengers, their sex and the fact they were adults, total passage fare, port taxes and the full amount paid. In contrast, in MacRobertson Miller, as Wilson and Toohey JJ noted, the ticket issued to the passenger contained a coupon on which the seat allocation was endorsed when the ticket was presented before departure and there were on the inside cover of the ticket "conditions of carriage" in which the airline operator reserved the right to abandon any flight, to cancel any ticket or booking and to refuse to carry any passenger without assigning any reason therefor. With that factual distinction in mind, Wilson and Toohey JJ said (165 CLR at 205-206): …no tickets were available in Sydney. Nevertheless the exchange order constituted a contract made between the parties whereby in consideration of money paid by the respondent the appellant allocated to him an identified cabin on an identified cruise…When he left Australia the respondent had a contractual right to receive from the appellant on presentation of the exchange order in Athens a passage ticket which enabled him to board the vessel and occupy the specified cabin for the duration of the cruise subject only to such conditions as are found to form part of the contract.

37 The conclusion of Wilson and Toohey JJ (165 CLR at 207), given the factual distinction with MacRobertson Miller, was that "there was a contract once the exchange order issued allocating a particular cabin to the respondent and with all remaining to be done being the exchange of the order for a ticket in Athens…there was such a contract." Brennan J reached the same conclusion (165 CLR at 227).

38 In the present case, of course, the plaintiff's ticket did not allocate any particular seat to him nor did it confer any right to board the proposed flight; that occurred only when he presented the ticket and received a boarding pass allocating a particular seat: see Arts 5 and 6 of the general conditions of carriage. Those conditions issued by the first defendant to the plaintiff, on an overall view of them, contained terms similar to those in MacRobertson Miller as to refusal to carry: Art 7.1; cancelling a ticket: Art 7.2; and changing flight times: Art 9.1.1. It follows, I think, that the conditions in the present case are different from those considered by Knight DCJ in Vertzyas so that, unlike his Honour, there is no basis for me to distinguish MacRobertson Miller.

39 I therefore reach the view that, as Kirby P held in Oceanic Sun Line Shipping, I am bound to follow the High Court decision in MacRobertson Milleras the analysis therein is applicable to the contractual arrangements in the present case. It may be added that McHugh JA in Oceanic Sun Line Shipping did not raise any question about the correctness of the reasoning in MacRobertson Miller and in the appeal no member of the High Court, other than distinguishing it on the facts, raised any doubts about its correctness in terms of legal principle.

40 On the contractual question, I conclude that the issue of the ticket to the plaintiff in Tripoli, Lebanon did not create an agreement between the parties for the international carriage of the plaintiff. Such an agreement was created, including as to the general conditions of carriage, only when the plaintiff presented the ticket to the first defendant in Beirut and embarked on the carriage after allocation of a particular seat on the aeroplane.

Whether any contract of carriage made with the plaintiff's son

41 Neither party contended that any relevant contract was made by the first defendant with the plaintiff's son, Mr Fattouh. At most, following the reasoning of Jacobs J in MacRobertson Miller, Mr Fattouh entered into a contract with the first defendant/Gitani Travel in consideration of the fare paid by him for the plaintiff to receive the benefit of the issue of a ticket - but, as I have found, that is not an agreement for international carriage.

42 It follows from the identification of the contract here for the carriage of the plaintiff that such contract was completed in respect of each flight when the relevant coupon contained in the ticket as presented was removed by the first defendant and a boarding pass for that flight issued to the plaintiff.

43 In the present case, there were four flight coupons - (i) Beirut to Bahrain; (ii) Bahrain to Sydney; (iii) Sydney to Bahrain; and (iv) Bahrain to Beirut. Thus, in my view, in respect of the plaintiff's proposed travel according to the ticket four operative contracts arose when the coupon for the flight concerned was exchanged for a boarding pass for that flight.

44 At the relevant time of the plaintiff's injury he was being carried pursuant to the contract made on 20 February 2005 for carriage on the flight from Bahrain to Sydney.

45 The crucial and ultimate question in this case is where was the "place of destination" within the meaning of Art 28 of the Convention. The plaintiff said it was Sydney so as to give this Court jurisdiction to determine his damages claim; the first defendant said it was Beirut in Lebanon so that there was no jurisdiction in this Court but only in the courts of Lebanon.

46 Senior counsel for the plaintiff relied on MacRobertson Miller for the proposition that the plaintiff only became a party to a contract with the first defendant when he presented his ticket, containing a series of flight coupons, at Beirut for the initial flight to Sydney via Bahrain. Thus, as I understood the argument, there was not one but rather a series of international contracts of carriage each one for a specific flight. On the relevant flight here when the plaintiff was injured the place of destination, according to the flight coupon concerned for which the boarding pass issued, was Sydney. I think there is much force in this approach.

47 However, whatever be the time of formation of the contract of carriage, counsel for the first defendant submitted that the phrase "place of destination" was to be interpreted in the manner required of a term forming part of an international treaty, that is, to achieve the unification of certain rules relating to international carriage by air. And, as the submission went, it was obvious that one area in which the Convention sought to bring regularity was the identities of the courts with jurisdiction to hear and determine claims brought under it. On the authorities, it was put that the overwhelming view was that in the case of carriage pursuant to a ticket for a return journey the place of departure and the place of destination were one and the same: see eg Grein v Imperial Airways Ltd [1937] 1 KB 50; and Holmes v Bangladesh Biman Corporation [1989] 1 AC 1112 at 1131. Thus, in the present case, that place was Beirut in Lebanon.

48 I have difficulty with that submission of the first defendant. At the outset, the identity of courts with jurisdiction does not necessarily bring regularity or uniformity because the Convention itself in Art 28 recognises relevant courts in four situations: first, where the carrier is ordinarily resident; second, the principal place of business of the carrier; third, where the carrier has an establishment by which the contract was made; and, fourth (as here), the place of destination. Those "places" could, in any particular situation, all be different. As was observed by the learned author in Australian Travel and Tourism Law (Cordato, 4th ed, 2006, LexisNexis Butterworths, at 245): Usually the claim will be brought in the plaintiff's "home country", being the place in which the booking was made. However, the choice under this article (Art 28) permits what is known among lawyers as "forum shopping." That is, a plaintiff (passenger) bringing the action may choose the country in which the claim is to be brought, relying upon a different and more generous view of how much the courts or juries award for the injury or loss in question. Damages awarded by juries in the United States are more generous than those awarded elsewhere. If art 25 can be used to remove the liability limits, it is better to sue in the United States where the older version of art 25 contains an easier test. Also, it may be preferable to commence legal action in a Western country rather than a developing country because of the predictability of the legal system and the better prospect of recovery of damages.

49 Another immediate difficulty with the submission is that it seemed to view the "place of destination" in Art 28 in isolation from the rest of the Convention and, in particular, by ignoring or disregarding the fundamental application of the Convention by Art 1(1) to "international carriage" as defined in Art 1(2) as being dependent upon the "agreement between the parties." In other words, in my view, for the Convention to apply there must be a relevant contract of carriage according to which there is a place of departure and a place of destination within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State. Construing, as I think one must in order to create legal relations between parties, an "agreement" as synonymous with "contract", the Convention only operates to regulate international carriage if there be a contract for carriage between the places specified. So, in the present case, at the relevant time of the plaintiff's injury there was a contract for carriage between Beirut and Sydney; whilst proposed, however, no contract had been completed for the return journey from Sydney to Beirut. The former situation represented an executed contract whereas the latter was merely executory.

50 Be that as it may, the parties developed their cases on this aspect by detailed reference to the authorities in England and the United States, but, I repeat, in the absence of any Australian authority other than Vertzyas. However, as I have found, that case is distinguishable on its facts as involving one contract of international carriage on the conditions contained in the ticket.

51 It is helpful at the outset to deal with the perceived purpose of the Convention. In Australian Travel and Tourism Law (at 207) it was remarked: The predominant issues in the industry were (and still are) safety and reliability. The Warsaw Convention was drawn up under the sponsorship of the International Civil Aviation Organisation (ICAO). It was prompted by a concern that without a uniform international regime limiting and defining the circumstances for the recovery of losses arising in the course of air carriage, the capital needed for the funding of international airlines would be "scared away by the fear of a single catastrophic accident. The original goals of the Warsaw Convention were to establish uniform liability limits applicable internationally and to develop uniform procedures for dealing with claims for death or personal injury and loss or damage to baggage and cargo caused by air travel accidents.

The Warsaw Convention represents an historic trade-off by the owners of airlines who obtained a limitation on the amount of their liability for death or injuries to passengers and loss and damage to baggage, against a strict liability to pay all claims made, without proof of negligence or fault required.

The effect of the Warsaw Convention is, therefore, to imply a powerful condition of safe carriage into air travel for death or injury to passengers. This is done by stating that the airline is liable (up to a monetary limit) to compensate the passenger for personal injury (or his or her family in the event of his or her death) without proof of any fault by the airline.

Compensation is available on the same basis for loss or damage to baggage.

52 For his proposition that a return ticket journey resulted in the place of departure and the place of destination being the same place, counsel for the first defendant referred to Grein where Greene LJ, with whom Talbot J agreed, said ([1937] 1 KB at 78-82): 1. "Place of departure and place of destination." The use of the singular in this expression indicates that in the minds of the parties to the Convention every contract of carriage has one place of departure and one place of destination. An intermediate place at which the carriage may be broken is not regarded as a "place of destination." Having regard to its context, and particularly to the fact that it is in the contract that the place of departure and the place of destination are to be looked for, the meaning of the expression appears to me to be "the place at which the contractual carriage begins and the place at which the contractual carriage ends..."

…In all these cases the same reason for the application of an international code exists. The desirability of excluding considerations of different systems of law and any possible conflict between them… ... The conclusion to which I have come is that the contract by reference to which the place of departure and the place of destination are to be ascertained may be any contract of carriage whether for a single journey, for a circular journey or for a return journey; that the place of departure and the place of destination mean the places at which under the particular contract in question the contractual carriage begins and ends;…the mischief requiring to be remedied by the adoption of an international code is the same - namely, the possibility of questions arising between the parties as to the law applicable to the contract which they have made.

53 Their Lordships in the majority in Grein reached the conclusion they did by reason of the finding of one contract embodied in a return ticket so that the place of departure was conterminous with the place of destination. Essentially, it nevertheless depended on the finding of the scope of the relevant contract. For instance, in the minority judgment in Grein, Greer LJ found (([1937] 1 KB at 67) "the Convention makes the character of the carriage or journey depend on the contract entered into by the passenger with the carrier…the contract seems to me clearly to be a contract for two carriages…" Again, then, in resolving this present issue one returns to the factual position and to what I think the decisive consideration, namely, the terms of the relevant agreement between the parties as to the carriage. I repeat, in the present case applying MacRobertson Miller there was no contract of carriage evidenced by the ticket for a return flight (Beirut to Bahrain to Sydney to Bahrain to Beirut) but rather a series of contracts of international carriage made as the ticket was presented on each occasion according to the coupon for that segment of the travel. Therefore, I do not think the reasoning in Grein assists the first defendant here.

54 It is convenient at this point to deal with a further submission put for the first defendant that in identifying the place of destination in a contract of international carriage one cannot proceed on a narrow view of contract inhibited by the usual requirements of domestic law but rather according to what the Convention itself requires. For example, under Art 1(3) it is expressly provided for the purposes of the Convention that carriage by several successive carriers is deemed to be one undivided carriage if it has been regarded by the parties as a single operation "whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State." This provision was relied upon by Greene LJ in Grein ([1937] 1 KB at 78), where his Lordship said: …the conception of the contract…is extended to include the case where there is a series of contracts, provided the parties have regarded the carriage as a "single operation."…the justification for so doing lies in the fact that the parties have regarded the carriage to be performed thereunder as a single operation, a justification which has its basis in reason and good sense.

55 The provisions of Art 1(3), however, depend on their being "several successive air carriers" and not, I would emphasise as here, only one carrier being the first defendant. The concept of "successive", in my understanding, implies a temporal connotation of an uninterrupted course of events or a regular sequence. In any event, the article requires the parties to regard it as a single operation and, I have to say, there is nothing in this case other than the single ticket, and even then a ticket with four flight coupons - remove one but the remaining coupons may not necessarily be used by the passenger, to support that finding. Also, it may be said against the application here of Art 1(3) and how the parties regarded the operation that there was a period of three months the plaintiff stayed in Sydney before returning to Lebanon, a fact very much, in my view, against a finding of an undivided carriage. The point is emphasised by the fact that during that three-month period there was no contract for the flight back to Beirut.

56 The issue arose for consideration in the American case of Petrire v Spantax SA 756 F 2d 263 (1985) where a passenger had two tickets for travel respectively from Madrid to New York and then New York to Madrid but with a stay of only five days in New York before return. The United States Court of Appeals for the Second Circuit held the place of destination to be Madrid where the passenger was killed when the aeroplane crashed on take-off in Madrid en route for New York. The Court referred, significantly in my view, to "the contemplated degree of continuity of the journey being ticketed." I think a period of three months sufficiently lengthy to properly take the present case outside the scope of Art 1(3) as one undivided carriage; and that is so even if the article were, in its terms but contrary to my view, to apply to a single carrier even though all relevant contracts had not been completed.

57 Reference was made by both counsel to very many authorities from courts in the United States. The earliest was Aanestad v Air Canada Inc 390 F Supp 1165 (1975) in which Hall DJ of the United States District Court for the Central District of California said: In speaking of the "place of destination," as used in the Warsaw Convention, it is noted that it does not say "final" or "ultimate" destination...

The only conclusion that can be reached then, is that "the place of destination" as used in the Warsaw Convention is considered by both the Canadian C.T.C. and the United States C.A.B. (national airline regulatory authorities) to describe at least two "places of destination," viz, the "place of destination" of a particular flight either an "outward destination" from the "point of origin" or from the "outward point of destination" to any place in Canada.

58 Aanestad concerned a flight from Montreal to Los Angeles with a return flight from Los Angeles to Montreal no later than one month later. The District Court held that for the purposes of Art 28 and Art 1 of the Convention the place of destination was Los Angeles in respect of the flight from Montreal to Los Angeles on which the passenger was killed. This decision is direct support for the plaintiff here.

59 However, about a year or so later the United States District Court for the Eastern District of Pennsylvania in Butz v British Airways Inc 421 F Supp 127 (1976) reached a contrary view in relation to a round trip from London to New York and return from New York to London after a stay of up to 45 days. McGlynn DJ expressly disagreed with the reasoning in Aanestad. His Honour said: It is my conclusion that there is only one place of destination for Warsaw Convention purposes which in this case was London. I cannot accept plaintiff's contention that each place where a particular flight terminated is a "place of destination" since the application of the convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket.

60 Subsequent cases in the United States have followed Butz: see Petrire; Abdulrahman Al-Zamil v British Airways Inc 770 F 2d 3 (1985); Lee v China Airlines Ltd 669 F Supp 979 (1987); Swaminathan v Swiss Air Transport Co Ltd 962 F 2d 387 (1992); Gayda v Lot Polish Airlines 702 F 2d 424 (1983); Coyle v PT Garuda Indonesia 363 F 3d 979 (2004); Robertson v American Airlines Inc 365 US App DC 217 (2005); and Hurley v KLM Royal Dutch Airlines 602 F Supp 1249 (1985).

61 For myself, and with all respect for the developed line of authority in the United States, I am firmly of the view that the approach initially stated in Aanestad was correct. The basis for this is that the United States cases moved according to the relevant contract being in the ticket rather than, as in MacRobertson Miller, according to the completed contract being on the presentation of the ticket for issue of a boarding pass and seat allocation.

62 I am satisfied that there is nothing in the Convention or in its purposes to deny the contractual approach. Indeed, Art 1(2) expressly adopts it and Art 1(3) also is reliant on how the parties regard the operation but, it is to be emphasised, once there is "a single contract or…a series of contracts" (emphasis added).

63 If one were to follow international precedent for reasons of uniformity of approach and comity then the United States line of authority and Grein would be adopted. However, I am bound by the decision in MacRobertson Miller, as Kirby P emphasised in Oceanic Sun Line Shipping, which dictates here the nature and scope of the relevant contract for the purposes of the Convention as its analysis is applicable to the present contractual arrangements. That approach to the construction of the Convention, in my view, is consistent with what the majority of the High Court in Povey said was the ultimate question, namely, what the relevant treaty provides and how its international obligation is carried into effect in Australian domestic law. Once that be accepted, as I think it must, the place of destination for the plaintiff here was Sydney.

64 For the foregoing reasons, I answer the questions posed by the parties in the four issues as follows: A. An agreement for the carriage of the plaintiff from Beirut to Bahrain to Sydney.

65 It follows that the Court has jurisdiction over the first defendant in respect of the plaintiff's claim. The first defendant's motion should be dismissed with costs.

66 I make the following orders - 1. First defendant's motion for an order that the Court has no jurisdiction over the first defendant in respect of the subject-matter of the proceeding is dismissed.

First defendant to pay the plaintiff's costs of the motion.

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