1. It is to be hoped that the philosophy underlying section 7 of the Civil Procedure Act 2010 (Vic) has not escaped the Respondent entirely.

1. The first issue before me was the Respondent's application to be represented in the section 75 hearing by legal practitioners. The Applicant opposed the application. However, as the Respondent had previously been granted leave to be represented by a solicitor, and as I was satisfied that the presence of Counsel would not unfairly disadvantage the Applicant and that the legal issues concerning this dispute over jurisdiction warranted the presence of legal practitioners, I granted the Respondent leave to be represented by a legal practitioner. After making this order the Applicant sought to be assisted by her daughter, a law graduate, and I had no hesitation in allowing that to occur. As the daughter is not a professional advocate there is no requirement to make a specific Order to that effect.

1. I will deal with the relevant issue, being the Tribunal's jurisdiction, briefly. There is nothing to be gained by the publication of a lengthy decision in view of the reported decisions of this Tribunal in Ali v Malaysian System Berhad [2007] VCAT 1967 and Rosengarten v American Airlines [2011] VCAT 1535, or the various Court decisions which were cited by the Respondent including Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148.

1. I think it is sufficient to say the following, which is consistent with the Respondent's well prepared submissions.

1. When dealing with an application under s75(1) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal assumes for the purposes of that application that the facts alleged by the Applicant in the claim are proven. The Tribunal proceeds from those facts to consider whether the Applicant's case is - in this case - "misconceived or lacking in substance".

1. The Applicant's claim - the "facts" for the purposes of the section 75 application - is that the Applicant's teeth were injured on her international flight, on the Respondent's aircraft, for which she had purchased a ticket. The claim, then, was in respect of a "personal injury" within the meaning of s9E of the Civil Aviation (Carriers Liability) Act 1959 (C'th) ["Carriers' Liability Act"] which Act[1] has the effect of incorporating into Australian law the Convention for the Unification

of Certain Rules for International Carriage by Air done at Montréal on 28 May 1999 ["1999 Montreal Convention"] . The Applicant's purchase of a ticket is significant in that under Article 1(1) the 1999 Montréal Convention applies to "all international carriage of persons, baggage or cargo performed by aircraft for reward".

1. Pursuant to s9E of the Carriers' Liability Act**,** the liability of the Respondent in respect for personal injury suffered by a passenger is governed exclusively[2] by the 1999 Montreal Convention**.**

1. Article 17(1) of the 1999 Montreal Convention 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.

1. The injury to the Applicant took place on board the aircraft. I accept the Respondent's submission that the expression "the accident" in Article 17 is of very wide meaning. Relevantly, there is no room to argue that the giving of a contaminated muffin to a passenger is not an accident but is some other breach of obligation taking the matter outside the Convention. In this respect the Respondent cited the English case of Stott v Thomas Cook Tour Operators Ltd ( Secretary of State for Transport intervening) [2014] UKSC 15, in which the alleged discrimination against a disabled passenger was held to be subject to the 1999 Montreal Convention even where, in normal usage, an act of discrimination would not be called an accident.

1. Article 29 of the 1999 Montreal Convention provides:

In the carriage of passengers, baggage and cargo, 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 set out in this Convention without prejudice to the question as to other persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

1. The effect of the above, particularly s9E of the Carriers Liability Act and Article 17(1) of the 1999 Montreal Convention, is that the remedy for personal injury against the Respondent precludes the availability of any other rights or remedies, however founded, unless brought under the 1999 Montreal Convention. The Convention has displaced other causes of action and created new ones, as well as having set out a regime for the determination of those causes of action.
2. That regime includes Article 33 of the 1999 Montreal Convention, which provides that an action for damages must be brought in a Court.

1. This Tribunal is not a "Court" in the context of this proceeding. It has not been vested with Commonwealth judicial power. Because the dispute arises under the Carriers Liability Act and the 1999 Montreal Convention it is a Commonwealth matter, and the Tribunal is not vested with the judicial power of the Commonwealth. In this regard I adopt the reasoning of Perry J in Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148.

1. In these circumstances the Tribunal has no jurisdiction. Its only power is to dismiss the proceeding. Were the proceeding not a "small claim" [3] the Tribunal would have power to deal with questions of costs, but because it is a small claim the Tribunal is not even the empowered[4] to do that.

1. It follows that I will dismiss the proceeding. I make no comment on the merits of the claim, because the concept that the Applicant's allegations of fact are to be treated as proven only applies in this s75 application and not for other purposes. The Applicant is entitled to issue proceedings in a Court having jurisdiction and in view of the costs which have undoubtedly been incurred to date I express the hope that the parties will discuss the claim on a without prejudice basis expeditiously.

[1] Section 9B of the Carriers' Liability Act: "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".

[2] Section 9E of the Carriers' Liability Act: "Subject to section 9F [which is irrelevant to this case] the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury".

[3] See s183(a) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[4] See clauses 4C and 4I(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).