Gibson v Malaysian Airline System Berhad

1. Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski are not class members within the meaning of paragraph 7 of the amended statement of claim. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 26 June 2019, I approved the settlement of this class action pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) ('the Act'). The class action concerned the tragedy which befell the passengers and crew on board Malaysian Airlines flight MH17 which was shot down over the Ukraine on 17 July 2014. Amongst the passengers on that flight was Ms Fatima Dyczynski, a promising space systems engineer who was returning from Amsterdam where she studied, to visit her parents in Perth for a couple of weeks. They were a very close family, and the loss of their daughter has caused Dr Dyczynski and Mrs Rudhart-Dyczynski untold distress and incalculable, irreversible pain. 2 The terms of the settlement remain confidential but were alluded to in the settlement approval judgment I gave on 26 June 2019: see Gibson v Malaysian Airline System Berhad (Settlement Approval) [2019] FCA 1007. At the time of the settlement hearing I was told there were only 12 class members. The class members were all relatives of deceased passengers. Dr Dyczynski and Mrs Rudhart-Dyczynski were not amongst those 12 class members. Without any disrespect, I will refer to Dr Dyczynski and Mrs Rudhart-Dyczynski as the Dyczynskis. The Dyczynskis found out about the settlement which had occurred only through the media. They were very distressed to hear that the class action had been settled and had been keen to understand why they were not part of that settlement and why they were not kept informed. During this morning's hearing in Sydney, at which they represented themselves, they impressed upon me their desire to see justice done for their daughter and to have all those who are responsible held to account. I accept this. I note for completeness that the Dyczynskis travelled at considerable inconvenience from Perth for this morning's hearing. 3 The immediate issue which arises is whether, as the Dyczynskis contend, they are members of the class and hence entitled to share in the settlement, or whether, as both the lead applicant and the respondent contend, they are not. This is a legal question whose resolution is unswayed by the very considerable sympathy anyone who looks at this matter must bear towards the Dyczynskis. 4 The jurisdiction of this Court to hear claims for compensation in the case of deceased or injured passengers arising from the carriage on a scheduled international passenger flight is governed by the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 ('Montreal Convention'), which in this country is given effect to by the terms of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (see s 9B and Sch 1A). Article 33 of the Montreal Convention deals with the jurisdiction of courts. It provides: Article 33 - Jurisdiction 1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. 2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement. 3. For the purposes of paragraph 2, (a) "commercial agreement" means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air; (b) "principal and permanent residence" means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard. 4. Questions of procedure shall be governed by the law of the court seised of the case. 5 Article 33 therefore allows a claim in the case of a deceased passenger to be brought in five potential locations. These are (a) the state where the carrier is domiciled; (b) the state where the carrier has its principal place of business; (c) the state where the carrier has a place of business through which the contract of carriage was made; (d) the state which is the place of destination; and (e) the state where the passenger had his or her principal and permanent residence at the time of the accident and to or from which the carrier operated services on its own or using another's carrier as an aircraft by commercial agreement, and from which the carrier conducts its business of carriage of passengers from premises leased or owned by the carrier or another carrier. 6 These complex jurisdictional requirements have had a significant impact on the class definition in this proceeding. When the proceeding was initially filed, the class was defined in paragraph 7 of the statement of claim in the following terms: 7. The group members are: a) residents of Australia who are the legal representatives of a passenger who was killed on MH17; or b) not being resident in Australia, who are the legal representatives of a passenger who was killed on MH17 and express the desire to take the benefit of the action (Civil Aviation (Carrier's Liability) Act 1959 (Cth), Section 9D(6)(b)). 7 The Dyczynskis were certainly members of this class at this point, for they undoubtedly fell within paragraph 7(a). However, the airline took the well-founded objection that the class definition which had been pleaded in the original statement of claim did not comply with the requirements of Art 33, and that it included within it persons with respect to whom the court could not have jurisdiction. It filed an application to strike out that part the class definition. In Gibson v Malaysian Airline System Berhad [2016] FCA 1476, I upheld this objection and struck out the class definition in paragraph 7. 8 Subsequently, on 26 July 2017, an amended statement of claim was filed by the lead applicant, which now pleaded a new class definition which was compliant with Art 33. This new form of paragraph 7 was in the following terms: 7. The group members are personal representatives of passengers: i. Whose destination on the contract of carriage was Australia; ii. Whose contract of carriage was made in Australia where the Respondent has a place of business through which the contract was made; or iii. Where Australia was the passenger's principal and permanent place of residence at the time of the accident and to or from which the Respondent operated services on its own or using another carrier's aircraft by commercial agreement and from which the Respondent conducts its business or carriage of passengers from premises leased or owned by the Respondent (or other carrier). 9 The question which arises is whether the Dyczynskis fall within paragraph 7 of this definition. It will be apparent that because the amended form of paragraph 7 was a direct response to a challenge by the airline that the original class definition did not comply with Art 33 of the Montreal Convention, it is appropriate to construe paragraph 7 by reference to Art 33. There is a separate reason to construe it this way: it would be pointless to have a class definition which included persons within it with respect to whom the Court had no jurisdiction. So the immediate question is whether the Dyczynskis fall within paragraphs 7(i) or (ii), it not being suggested that they fell within 7(iii), since Australia was not Fatima's principal and permanent place of residence within the meaning of the Montreal Convention. 10 I do not think that the Dyczynskis fall within paragraph 7(i). Fatima was booked on a return ticket from Amsterdam to Perth. The New South Wales Court of Appeal's decision in Gulf Air Company GSC v Fattouh [2008] NSWCA 225 establishes that the destination of a return ticket for the purposes of Art 33 is the place to which the passenger returns. In this case, that would be Amsterdam. Consequently, Art 33 gives this Court no jurisdiction to hear a claim based on the destination cited in the ticket and correlatively, the Dyczynskis cannot therefore satisfy paragraph 7(i) of the class definition. This does not have the result, I should say, that the Dyczynskis have no claim. It just means that their claim should be before the Dutch courts, not the Australian courts. I also note, for completeness, the Dyczynskis' submission that a return ticket is, in substance, the same as two one-way tickets, but I do not accept that this is so with respect to Art 33. 11 I also do not think that the Dyczynskis fall within paragraph 7(ii) of the class definition. The evidence before me shows that it was Dr Dyczynski who purchased the ticket online in his daughter's name. Dr Dyczynski was in Australia when he did this, but the evidence shows that the ticket was issued either by the airline's office in Amsterdam or by its head office in Kuala Lumpur. This is apparent from the face of the ticket, which shows that the issuing agency was an entity called 'M A S E COMMERCE AMSTERDAM NL', which is nominated as the issuing entity when the ticket is purchased online. That entity is located in the Netherlands. 12 The ticket also contains the code 'RLOC MH', which shows that the reservation was made in Malaysia. I am satisfied, therefore, that the place of business of the airline 'through which the contract was made' was not in Australia. Consistently, the ticket price was denominated in euros. I do not need to determine whether the airline's place of business through which the contract was made was the Netherlands or Malaysia, but I accept that it was clearly not in Australia. It is not necessary in that circumstance to determine where, as a matter of Australian law, the contract of carriage is made, because that is not the question posed by Art 33. 13 Dr Dyczynski submitted that he made the contract from Australia through the airline's website, and I accept there is no doubt that he purchased a ticket in that fashion. However, I do not accept that the purchase by Dr Dyczynski of the ticket created a contract between him and the airline. He purchased the ticket for his daughter and with her authority, so the ticket was in her name and she was the passenger. It was Fatima who had the contractual rights against the airline. Dr Dyczynski paid the price of the ticket, no doubt, but that is not the same thing as forming a contract. 14 In any event, even if the contract had been made with Dr Dyczynski, this would not alter the outcome, because it would remain the case that the contract was made through the airline's relevant place of business, which was either in the Netherlands or Malaysia, but certainly not in Australia. 15 Consequently, it must follow that the Dyczynskis are not class members and are, unfortunately, not entitled to share in the settlement. They had once been class members, but the amendment of the statement of claim on 26 July 2017 removed them as class members. 16 During the hearing before me this morning, the Dyczynskis submitted that they had not been informed that they had ceased to be class members until the settlement had occurred. It is not necessary for present purposes for me to form a view about that. I have heard the Dyczynskis' side of that complaint and understand their anger about that if it be correct. The persons running the class action have not been given an opportunity to put their side of that story. Since I do not need to decide this issue, it is inappropriate in that circumstance for me to proffer any further views on the matter. 17 Accordingly, what I propose to do is to make a declaration that the Dyczynskis are not class members under paragraph 7 of the amended statement of claim. I will make this declaration in the principal proceeding in the form of ancillary declaratory relief under s 33Z(1)(g) of the Act, it being necessary, in my opinion, to clarify the class to effectuate the settlement which has already been approved. I will make no order as to costs. 18 I extend to the Dyczynskis my sympathy at their plight, but I regret I am unable to help them. I thank counsel in particular for their assistance. There remains the other matters which the Dyczynskis wish me to do. These include making orders for the holding of inquiries into the negligence of the airline, and for widespread and detailed examination of what has happened in this case in relation to this flight. None of this can be done outside a properly constituted case, and the present application this morning is not a properly constituted case. This is a class action which has settled. If the Dyczynskis wish to pursue the airline further, they will need to file a case. As I did at the hearing, I will strongly recommend that before doing so they obtain legal advice. 19 I therefore make this order: