Kern v Qantas Airways Limited

Legal advice

1. On 6 August 2015, Button J made an order referring the plaintiff to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance.
2. This Court asked the plaintiff whether he had received the benefit of pro bono legal advice. He replied that he had but that the assistance he received "did not understand or have information that we needed for our case, so I just went on my own. It doesn't work". (T2.7-2.9).
3. The plaintiff has had the benefit of earlier legal advice. On 26 June 2015, Robyn Burgess of Slater and Gordon lawyers spoke to the plaintiff by telephone. On 30 June 2015, Ms Burgess wrote to the plaintiff confirming her advice. Ms Burgess stated: "On 4 November 2010, you have allegedly suffered stress because of engine malfunction on a QANTAS flight from Singapore to Sydney. You were previously represented by LDY Solicitors as part of a class action. You decided to act for yourself and you have commenced proceedings in court." (Aff. Kern 20/8/2015).
4. So far as the plaintiff's public liability claim is concerned, Ms Burgess advised that to prove a claim in negligence it is necessary to show: "1. Negligence - someone (other than yourself) is wholly or partly at fault for the incident. 2. Causation - the negligence of that other person [who] caused your injuries. 3. Damages - you suffered sufficient damage to justify making a claim for financial compensation." (Aff. Kern 20/8/2015).
5. Ms Burgess confirmed her earlier advice to the plaintiff that he did not have a viable claim.

Summary judgment

1. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.
2. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.
3. UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).
4. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application (at [3] in O'Brien): (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).

The pleading in the amended statement of claim

1. On 25 June 2015, the plaintiff commenced these proceedings by the filing of a statement of claim. On 1 July 2015, the plaintiff filed an amended statement of claim. On 2 July 2015, the statement of claim and the amended statement of claim were served on Qantas (Aff. Dunn 30/7/2015). On 9 July 2015, the statement of claim and the amended statement of claim were served on Rolls Royce (Aff. Dunn 30/7/2015).
2. The pleading in the amended statement of claim is as follows.
3. On 4 November 2010, the plaintiff was a passenger aboard flight QF32 from Singapore to Sydney (25).
4. The aircraft was an Airbus 380 fitted with Rolls Royce engines at the time of the incident (25).
5. Approximately 20 minutes out of Singapore there was an explosion and the Captain "then announced that engine 2 was out of commission but that the plane could still be navigated back to Singapore with three engines" (25-26).
6. Following the event, the aircraft returned to, and landed safely in, Singapore. (26).
7. The plaintiff is "suing primarily for...compensatory damage..." as well as "pursuing the matter primarily on the basis of punitive damages" (26).
8. In relation to the claim for compensatory damages the "type of claim" is identified as "Torts Gross Negligence Personal Injury" (3). The heads of damage that are claimed include non-economic loss, economic loss and out of pocket expenses (4).
9. On 6 August 2015, in an exchange with the Registrar at a directions hearing, the plaintiff stated (as set out in Aff. Williams 24/9/2015): "19. …On [6 August 2015] that occasion, Mr Kern addressed the court (T5.46-47) in the following words: Yeah, there were not damages to me physically 20. Mr Kern also said (T3.21-22): Well there's nothing wrong with me psychologically. This is a whole different issue."
10. I accept that the plaintiff did not suffer any physical injury and that he asserts there is nothing wrong with him psychologically. If this is correct, then he has no claim for personal injuries.
11. In his various affidavits and in oral submissions, the plaintiff's focus of concern is with an alleged violation of informed consent. In oral submissions, he explained that the defendants should have set out the problems with the engine in the written terms and conditions that are forwarded to the passengers when they purchase their plane tickets. The transcript of those submissions encapsulates his argument more fully. It is as follows: "HER HONOUR: The violation of informed consent, is what you're saying that all three defendants should have told you about the flaw with the two pipes in the engine? Is that what you're saying, because I wasn't quite sure when I read it. APPLICANT: That's right, all of them were savvy to this because in order to make a plane it takes these three major components - the bigwig of all of them - to sit down and be aware of everything that goes on in the manufacture of an aeroplane from delivery, from nuts to bolts - and‑‑ HER HONOUR: Are you saying that, when you go to buy a ticket, they should tell you? What's your case? APPLICANT: Normally, when you buy a ticket, it will list a list of exclusions and accidental. The situation like this, it was not accidental. This was planned - not that they - it wasn't accidental. They knew about these faulty situations and didn't do anything about it. At least, they should have written out, "The plane that you are about to go on has this problem, that problem, and there's a certain chance that you may not get there." If I owned one of those airlines, and I heard that, what do you think would happen to ticket sales? Everybody would be afraid to fly. So, therefore - and it's interesting that Airbus and Qantas and Rolls‑Royce, they had the ability to pull out temporary aeroplanes to fix the problem, and yet be able to shovel people all around the world using conventional aircraft." (T6.38-6.48)
12. I shall deal with the claims against each of the defendants in turn.

(1) Qantas

1. Qantas submitted that the proceedings against it should be dismissed because the plaintiff's claim against it is one that engages the Carriers' Liability Act and the Montreal Convention; and by virtue of s 9B of the Carriers' Liability Act and Article 35 of the Montreal Convention, the plaintiff's claim is statute barred. Qantas says that this fatal flaw cannot be overcome by repleading.

Aviation law - personal injury claims

1. I acknowledge that I have adopted and largely reproduced the helpful submissions prepared by counsel for Qantas on this topic.
2. Claims for damages for personal injury in connection with international carriage by air are governed by a series of international conventions, ratified by Australia, collectively described as the "Warsaw System" rules. Those conventions are the Warsaw Convention 1929, the Hague Protocol 1955, the Guadalajara Convention 1961, the Montreal Protocol No 4 1975 and the Montreal Convention.
3. These conventions have been incorporated into domestic legislation, the current form of which is the Carriers' Liability Act. Section 9B of the Carriers' Liability Act reads: "The 1999 Montreal Convention to have force of law Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage."
4. The Montreal Convention came into force in Australia on 24 January 2009 by the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth).
5. The ratification by Australia of the Montreal Convention confers no rights upon the plaintiff; rather, Part 1A of the Carriers' Liability Act creates and confers the rights: see Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 at 199.
6. The Montreal Convention, contained in Schedule 1A to the Carriers' Liability Act, applies to all "international carriage of persons": see Article 1, paragraph 1.
7. The Montreal Convention defines "international carriage" to mean "any carriage in which, according to the agreement between the parties, the place of departure and the place of destination... are situated... within the territories of two States Parties": see Article 1, paragraph 2. Article 1 directs attention to the carriage that is anticipated by the parties according to their agreement. In Grein v Imperial Airways Ltd [1937] 1 KB 50; [1936] 2 All ER 1258 at 128, Greene LJ explained: "The rules are rules relating not to journeys, not to flights, not to parts of journeys, but to carriage performed under one...contract of carriage. The contract... is, so to speak, the unit to which attention is to be paid in considering whether the carriage to be performed under it is international or not."
8. In the event that the Montreal Convention applies to a carriage, the Montreal Convention prevails over the other Warsaw System rules to which the State Parties are commonly a party: see Article 55, paragraph 1.
9. As was pointed out by the Victorian Court of Appeal in Qantas Ltd v Povey [2003] VSCA 227; (2003) 11 VR 642, the Carriers' Liability Act does not identify the State Parties to the relevant conventions. In these circumstances, the United Kingdom, Singapore and Australia have all ratified the Montreal Convention, and so each is a "State Party".
10. Thus, by operation of Article 55, paragraph 1 of the Montreal Convention, the terms of the Montreal Convention prevail over the other Warsaw System rules and apply to the plaintiff's claim arising out of his carriage on QF32 on 4 November 2010.
11. However, the plaintiff disagrees that the Montreal Convention should apply. His position is that "Let it be known to all parties that we are not to be governed by the unfair Montreal Convention. Thus, would it be proper to draft a new name, Convention. Perhaps we call it the Sydney Convention authored by Seymour P Kern" (Aff. Kern 17/8/2015). In oral submissions, the plaintiff elaborated on what would form the basis of his "Sydney Convention", namely that there would be no limitation period and no monetary threshold for claims: "APPLICANT: Right. I didn't want to go into that. So, this is a very exciting area, and I had to figure out a way where I could keep everybody happy. So, guess what I did? If Montreal could have a convention, so can I, so I called it the Sydney Convention, and I propose what the Sydney Convention, basically, is all about. And you know what it is? No statute of limitations, and everybody gets covered. And there's no, yeah. No statute limiting for how long, and no limitation as to how much - it depends on how much money we have available in the till. That's it. That was - the amount of money that we would save by eliminating a huge bureaucracy would be enough to cover it all. …" (T10.10.18).
12. The liability of the carrier under the Montreal Convention 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": see s 9E of the Carriers' Liability Act. Article 29 of the Montreal Convention further provides that "in the carriage of passengers... any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention". Hence, the Montreal Convention, as given force of law by the Carriers' Liability Act, provides the exclusive remedy for the plaintiff against Qantas arising out of his international carriage by air, to the exclusion of any contract or other common law cause of action: see Sidhu & Abnett (known as Sykes) v British Airways plc [1997] AC 430; [1997] 1 All ER 193; Stott v Thomas Cook Tour Operators Ltd [2014] AC 1347; [2014] 2 All ER 409; cf Povey v Qantas Airways Ltd at 203 [my emphasis added].
13. In United Airlines Inc v Sercel Australia Pty Ltd (2012) 260 FLR 37; [2012] NSWCA 24, the Court of Appeal adopted Sidhu. Allsop P (Macfarlan JA and Handley AJA agreeing) at [96] stated: "The applicant relied strongly on Sidhu v British Airways Plc [1997] 1 AC 430. That case can be accepted fully for what it decided: that from a consideration of the whole purpose of the Warsaw Convention, it can be taken to prescribe the circumstances, being the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air. No other action was available to the passenger."
14. Chapter III of the Montreal Convention deals with the liability of the carrier and the extent of compensation for damage. The liability of the carrier, in the case of personal injury, is determined by Article 17 of the Montreal Convention which provides: "The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
15. The essential feature of the statutory framework for the international carriage of passengers (under the Warsaw System rules generally) is the imposition of strict liability on the air carrier for any injuries sustained by a passenger so that an injured passenger need not prove negligence, provided that Article 17 of the Montreal Convention is satisfied: see Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 at 260.
16. In cases where the amount of compensation claimed is less than 113,100 Special Drawing Rights (a monetary unit of the International Monetary Fund, approximately $228,000) then the liability is strict subject to contributory negligence (see "Exoneration" in Article 20). In cases where the amount of compensation claimed is more than 113,100 Special Drawing Rights, then three defences are available: contributory negligence (Article 20); if the carrier proves "that such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents" (Article 21(2)(a)); or if the carrier proves that the damage was "solely due to the negligence or other wrongful act or omission of a third party" (Article 21(2)(b)).
17. Finally, there is a two year limitation period to commence any action. Article 35(1) provides: "The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped"."

Qantas' submissions - cause of action extinguished

1. Counsel for Qantas submitted that there can be no issue about the international character of the carriage, the agreement entered was for travel by air from London to Singapore and from Singapore to Sydney. Picking up Article 1(1) of the Montreal Convention, there was international carriage that, according to the agreement between the plaintiff and Qantas, involved the place of departure and the place of destination situated within the territories of two State Parties, the United Kingdom (or Singapore) and Australia.
2. According to counsel for Qantas, it is apparent from the amended statement of claim that the underlying claim involves a claim for personal injury. There are several references to "personal injury" in the amended statement of claim, and several references to phrases that are associated with a claim for personal injury - such as "negligence" and "non-economic loss". The proper finding is that the present claim is "in respect of personal injury suffered by a passenger" within s 9E of the Carriers' Liability Act and an "action for damages" within Article 29 of the Montreal Convention.
3. Hence, Qantas submitted that the proceedings against it should be dismissed because the plaintiff's claim against it is one that engages the Carriers' Liability Act and the Montreal Convention; and so was required to, but did not, comply with the prescribed time restrictions.

Qantas - Conclusion

1. The claim made by the plaintiff against the Qantas in the amended statement of claim is a claim governed by the Montreal Convention. Any claim the plaintiff desired to bring against Qantas arising out of the event on 4 November 2010 was required to, but did not, comply with the time restrictions prescribed by Article 35 of the Montreal Convention. That is, any proceedings were required to be "brought within a period of two years" from the event or are otherwise extinguished: see Agtrack (NT) Pty Limited v Hatfield at 259, 268-269.
2. The limitation period is two years from the date of arrival at the destination. That equates to two years from 5 November 2010 at the latest, ie, 5 November 2012. The plaintiff commenced proceedings on 1 July 2015, over two years out of time. Hence, his claim is statute barred and an extension of time cannot be given. The plaintiff has had the benefit of prior legal advice and he says that he has not suffered personal injury. The expiry of the limitation period is a fatal flaw which cannot be overcome. In the exercise of my discretion, I would not grant the plaintiff leave to replead the claim against Qantas. In these circumstances, it is my view that the plaintiff's claim against Qantas should be dismissed.

(2) Submissions of AGAP - wrong defendant

1. AGAP is not named as a defendant in the amended statement of claim. The second defendant is named as "Airbus Australia". The statement of claim was served on AGAP at its principal place of business in Bankstown. The amended statement of claim names "Airbus Australia" as the second defendant. Airbus Australia is not a business name, nor is it a company in existence in Australia (Aff. Williams 25/9/2015, para 7).
2. Counsel for AGAP submitted that given that AGAP was served with the amended statement of claim, and given the fact that the named second defendant is described as "Airbus, Australia", to guard against the possibility that the amended statement of claim might be taken to name AGAP as a defendant, it has filed the present motion seeking to have the proceedings dismissed or struck out. AGAP has nothing to do with the manufacture of commercial fixed-wing aeroplanes (Aff. Williams 25/9/2015, para 16). It was not involved in the manufacture, sale or maintenance of the Airbus aeroplane QF32.
3. The plaintiff appears to assert that he intends to sue all "Airbus" entities throughout the world. In an email dated 23 August 2015 to Registrar Kenna, copied to AGAP's solicitors, the plaintiff stated: "I am suing ALL divisions of ALL of our defendants globally, both directly and indirectly. I can show a financial connection and responsibility between all of the defendants in this matter and/or their solicitors with virtually 100% relevance. Not Good."
4. In oral submissions, the plaintiff explained that he has asked AGAP to supply details of all its registered companies in the world and it has not done so. "APPLICANT: I have asked Mr Williams on a number of occasions to kindly give me a list of all the Airbus related - anything with the word 'Airbus' - all the physical addresses, the legal names, and he has as such never complied. It's just like - well, I'm not getting cooperation in that arena. That's what holding us up because we don't know - these corporations change by the minute. They move - you know, nothing is stable there, so it's difficult to shoot a moving target. HER HONOUR: As I understood it, they have nominated one in France. POTTS: Yes. HER HONOUR: The company in France. APPLICANT: France is supposed to be the - I forgot the name but it's in France and it's the main headquarters for it all but, there again, I'm still not getting help as to the correct address for service and they're not helping me. All they could do is just reject - reject this, reject that, but they're not helping. I guess they're not interested. I mean, I don't expect them to help but it would be nice if they did. HER HONOUR: Right. APPLICANT: I just want a name and address of all the entities and I wish that the judge could order that they do comply, so that we can then continue. It doesn't matter what the functions were. We're basically attacking the entire financial base of anything that has to do with Airbus, be it helicopters, be it airplanes, be it washing machines. It doesn't matter. This is the financial base that we have. This is what adds up to $3.6 trillion if you include it all. I would like to have the judge, if possible, order that we get an up to date - so that we can then proceed and do it the way they like it to be." (T40.31-41.11)
5. AGAP has written to the plaintiff to advise him that the manufacturer of the plane on which he flew was a company called Airbus SAS (Ex GJW-6). AGAP's legal representatives do not act for, nor appear for, Airbus SAS. In Mr Williams affidavit [at 16], he says that he has been advised by Mr Robert Holtsbaum, General Counsel for AGAP, that: "(a) AGAP is a wholly owned subsidiary of AGAP Holdings, which is the Australian subsidiary of Airbus Helicopters. Airbus Helicopters is a separate legal entity within the Airbus Group registered in France; (b) Airbus Helicopters is engaged in the business of rotary-wing aeroplanes (helicopters); (c) AGAP has three principal areas of business: (i) civilian helicopters, which it markets, sells and services. Its customers of these products are government agencies, police forces, emergency services and private individuals; (ii) governmental, or military, helicopters, which it assembles, markets, sells and services. Its customer is the Australian Army; and (iii) military aircraft and engine maintenance for the Royal Australian Air Force and then Royal New Zealand Air Force. AGAP maintains the C-130J Hercules transport aircraft and the P3 Orion surveillance aircraft for the Royal Australian Air Force and the Royal New Zealand Air Force. AGAP maintains the Beechcraft T-6 training aircraft and the Kaman Sea Sprite Helicopter for the Royal New Zealand Air Force. AGAP maintains the T-56 engine for the Royal New Zealand Air Force and is a subcontractor to Standard Aero, a Canadian company, for the Australian T-56 and AE2100 engines; (d) AGAP does not: (i) manufacture or supply civilian commercial fixed-wing aeroplanes; (ii) maintain civilian commercial fixed-wing aeroplanes; (iii) manufacture or supply jet propulsion engines for use on commercial civilian fixed wing aeroplanes; nor (iv) maintain jet propulsion engines fixed to commercial civilian fixed-wing aeroplanes."
6. Despite being so advised, the plaintiff has not taken any step to amend his pleading.
7. It is my view that AGAP had nothing to do with the events the subject of these proceedings. AGAP is not a proper defendant to these proceedings. As the named second defendant is a non-entity, once again taking into account that the plaintiff has received prior legal advice and has been advised by AGAP as to the correct entity to join (albeit in France), and that the plaintiff says he has not suffered personal injury, I would not grant leave for him to replead. I dismiss the proceedings against the named second defendant.

(3) Rolls Royce

1. Rolls Royce seeks an order that the plaintiff's claim be dismissed. Counsel for Rolls Royce relied upon Clarke v New South Wales [2015] NSWSC 1054, where Garling J summarised the principles relevant to an application under UCPR 14.28(1) at [36] to [45]: "[36] The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664. [37] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J. [38] As Hodgson JA (with whom Mason P and Handley JA agreed) said in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at 142-143: 'The requirement for a pleading to state material facts which is to be found in the Rules includes the cause or causes of action which are relied upon. Materiality of facts means how those facts are material to a cause of action.' [39] Bongiorno J said in Gunns Ltd v Marr [2005] VSC 251 at 57, in a passage with which, if I may say with respect, I entirely agree: 'Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly.' [40] As his Honour went on to say, 'A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general.' [41] In Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], Tamberlin J dealt with the concept of embarrassment, with respect to a pleading, in this way: 'Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. ...' [42] As Bryson J recognised, a pleading may be embarrassing if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, unreported). [43] Section 56 of the Civil Procedure Act 2005 ("the Act") places on a party to proceedings, a statutory duty to assist the Court to further the overriding purpose to which I have just made reference. As the Court of Appeal noted in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [161] per Allsop J: 'The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore, flows most clearly from the statutory duty of a party and his, her or its legal representatives in civil proceedings to assist the Court to further the overriding purpose … These principles can be seen to be reflected in the longstanding rules of pleading requiring any matter that may cause surprise to be pleaded. … The clear statutory duty to assist the Court, and in a practical way, to cooperate to bring forward the real issues in dispute, encompasses the requirement to be clear and precise in the illumination of the issues for trial. The occasion for this is not merely pleading …, it extends to all aspects of the engagement in the Court's processes.' [44] The Court expects, and is entitled to expect, that the parties and their legal representatives make clear what is, and what is not, legitimately part of the controversy. [45] The UCPR require that a statement of claim is a document which should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: r 14.7 of the UCPR. There is also a requirement that the pleadings should be as brief as the nature of the case allows: r 14.8 of the UCPR."
2. Rolls Royce submitted that the pleading in the amended statement of claim infringes each of those principles.
3. It is my view that from a fair reading of the amended statement of claim, it is not clear what case Rolls Royce is expected to meet. The amended statement of claim should be struck out against Rolls Royce.
4. While it may be possible to claim against Rolls Royce as the manufacturer of the engine installed in the Airbus, as that claim may not fall within the Montreal Convention, in the exercise of my discretion I would not grant the plaintiff leave to do so on the basis that the plaintiff has already had one opportunity to amend his pleading, has received legal advice and says that he had not suffered personal injury. While he has foreshadowed that although he was working on another "set that is supposed to be coming out", there is very little change (T81.13-20). The amended statement of claim as against Rolls Royce is dismissed.

The plaintiff's motions

1. By notice of motion filed 17 August 2015, the plaintiff now seeks the following orders: "2. Please add the Affidavit of 17 Aug 2015 by Seymour P Kern to the Record re Lack of Informed Consent by all three carriers. 3. Request a Cease and Desist Order Motion to stop harassment by threats to strike me out. 4. Please issue a mandate to make sure that informed consent be carried out. 5. I propose we start drafting a new convention. How about the Sydney Convention as opposed to the Montreal Conventions?"
2. The plaintiff sought to rely on his affidavit filed 17 August 2015 in support of the motions. At the hearing, counsel for Qantas objected to a paragraph of that affidavit that paraphrased a report released by the Australian Transport Safety Bureau ("ATSB"), dated 27 June 2013, titled "In-flight Uncontained Engine Failure Overhead Batam Island, Indonesia 4 November 2010 VH-OQA Airbus A380-842" on the basis that the use of such ATSB reports is inadmissible in evidence in any civil or criminal proceedings pursuant to s 27 of the Transport Safety Investigation Act 2003 (Cth).
3. Section 27 of the Transport Safety Investigation Act reads: "Reports not admissible in evidence Final report (1) A report under section 25 is not admissible in any civil or criminal proceedings. (2) Subsection (1) does not apply to a coronial inquiry. Draft report (3) A draft report under section 26 is not admissible in evidence in any civil or criminal proceedings."
4. The plaintiff's response to this objection was that "they were the only people in the world that had access to that evidence, and therefore it was really unfair for them to make a stipulation that you couldn't use it. Because it wasn't fair" (T32.36-32.38).
5. By notice of motion filed 28 August 2015, the plaintiff seeks the following orders: "1. Reclassify this Case as a Non-Montreal Convention Matter in the opinion of the Plaintiff. See the relevant affidavit for most all the reasons of why and how. 2. Order Mr Greg Williams of Clayton Utz or any other deponents to GLOBALLY Provide all the REGISTERED service addresses and contact email addresses and telephone numbers along all the entities associated with all the MARKS but not limited to AIRBUS, AIRBUS GROUP, plus all other holdings with or without the above marks. This applies to Qantas and Rolls Royce or any other party ordered past, present or future. 3. Leave to complete a Second Amended Claim. 4. No Dismissal Requests to be made in light of Reclassification Review. 5. Advise all deponents to cancel and nullify all costs, fees and the like past, present and future due to my Financial Hardship which places me at a disadvantage in light of my micro size vs all the giants that feed you as opposed to myself. By definition in a court of law we must all be equally equipped to fairly address any matter openly without hesitance by any party. 6. I request that if its available to provide me with the translation services for all the languages required on a case by case basis to be used wherever required by the court or related entities. 7. I request that all three or subsequent deponents equally provide me IMMEDIATELY with a realistic budget that is required by me to stay alive, well and functional so that we can all be fair with one another. My mission is to provide a generous win-win proposition to all cooperating deponents and any others that can assist me to make all of us happy. Why Not? 8. Allow plaintiff to add additional points to this document most any time with leave of the court to conserve time and money. 9. This is a highly controversial issue that I know could very easily attract lots of favourable media reporting."
6. As I have dismissed the amended statement of claim against all three defendants and I have not, in the exercise of my discretion, grant the plaintiff leave to replead, the proceedings should also be dismissed. Hence, it is not necessary to determine the plaintiff's notices of motion filed 17 August 2015 and 28 August 2015. Those notices of motion should be dismissed.
7. Costs are discretionary. Costs follow the event. The plaintiff has been unsuccessful so he should pay the costs. The Court orders that: (1) The amended statement of claim filed 1 July 2015 is dismissed. (2) The proceedings are dismissed. (3) The plaintiff is to pay the defendants' costs of the proceedings, including the costs of Airbus Group Australia Pacific Limited and the costs of the notices of motion filed on 30 July 2015 and 25 September 2015 on an ordinary basis as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2015