Mount Beauty Gliding Club Inc & Anor v Jacob [2004] VSCA 151

5. On 28th October 2003 Master Kings ordered that the following be determined as a preliminary question pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 1996: whether the glider flight on 10th April 1993 on which the respondent was a passenger was pursuant to a contract for the carriage of a passenger within the meaning of s.4 of the Civil Aviation (Carriers' Liability) Act 1961 ("the Victorian Act").

8. The preliminary question was argued before Byrne, J. on the basis of a Statement of Agreed Facts and Issues filed on 24th March 2004, which recited the question for determination and continued:

"Agreed Facts The following has been agreed: 1. On 10 April 1993 the plaintiff was carried as a passenger in an aircraft being a type IS-28B2 glider, registration VH-WVQ (the `Aircraft') operated by the first defendant. 2. On 10 April 1993 the first defendant was the holder of an air operator's certificate (the `Certificate') issued under the Civil Aviation Act 1988 (Cth) by the Civil Aviation Authority and dated 22 January 1990 which authorized charter operations, inter alia, for the carriage of passengers in the aircraft. 3. The Certificate is a charter licence within the meaning of and for the purpose of the Act. 4. The carriage of the plaintiff on 10 April 1993 by the first defendant at Mount Beauty was carriage on the Aircraft operated by the holder of a charter licence in the course of commercial transport operations under a contract of carriage of the plaintiff pursuant to which the plaintiff paid $45.00 to the first defendant. 5. On 10 April 1993 the carriage of the plaintiff as referred to in the preceding paragraphs above was from Mount Beauty airstrip to Mount Beauty airstrip. 6. On 10 April 1993 throughout the carriage of the plaintiff referred to in the preceding paragraphs the second defendant was the pilot of the Aircraft and was the agent of the first defendant and acting within the scope of his authority. Agreed Issue and Consequences The parties further agree that the issue and consequences thereof are as follows: 7. The issue for determination is whether the plaintiff was being carried under a contract for the carriage of a passenger within the meaning of section 4 of the Civil Aviation (Carriers' Liability) Act 1961 (Vic.) 8. If the answer to the preliminary issue is `yes', there should be judgment for the defendants."

12. Section 4 of the Victorian Act provides:

"4. Carriage to which Act applies This Act shall apply to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in Victoria and another place in Victoria, not being carriage to which Part IV of the Commonwealth Act applies or to which the Warsaw Convention, or the Warsaw Convention as affected by the Hague Protocol, applies."

Section 5 applies the provisions of Parts IV and IVA of the Commonwealth Civil Aviation (Carriers' Liability) Act 1959 ("the Commonwealth Act"), as amended from time to time, to such carriage subject to certain modifications and exceptions.

17. Byrne, J. decided that this was not a contract for the carriage of a passenger "between a place in Victoria and another place in Victoria" within the meaning of the section. On the contrary, it was a contract for the carriage of a passenger from Mount Beauty back to Mount Beauty. On 7th April 2004 his Honour answered the preliminary question in the negative.[1] The appellants appealed from that order pursuant to leave granted on 14th May 2004.

20. The appeal came on for hearing on 22nd June 2004. Mr Greenwell explained that, in addition to supporting the order below on the basis that the contract was not for the carriage of a passenger "between a place in Victoria and another place in Victoria", he desired to argue that, in any event, "a glider is not an aircraft within the meaning of s.4". After hearing argument, we ruled that the respondent would be permitted to support the order on that alternative basis. Reasons for that ruling were given, which I do not repeat. It should be emphasized, however, that we approached the matter on the basis that what the respondent sought to do was to withdraw a concession on a question of law. The character of the glider would not be in issue but only whether it was an aircraft within the meaning of the section. We directed the filing of a notice of contention pursuant to Rule 64.17(5), adjourned the further hearing of the appeal and ordered that the respondent pay the appellants' costs of the adjournment.

23. The parties filed a Supplementary Statement of Agreed Facts on 23rd July 2004. Paragraphs 2, 7 and 9 annexed a photograph and description of an IS-28B2 glider, a copy of the glider's certificate of registration and a copy of the air operator's certificate issued to the first appellant. The other paragraphs of the Supplementary Statement of Agreed Facts read:

"1. The carriage of the respondent on 10 April 1993, as alleged in paragraph 4 of the statement of claim, was in an IS-28B2 glider, serial number 046, registration VH-WVQ (`the glider')

...

3. The glider is not a powered machine and the usual modes of launching the glider were and are for it to be: (a) towed behind an engine-powered launch aircraft; (b) pulled along the runway by a 4000 foot long cable retracted by an engine mounted on a vehicle positioned at the opposite end of the runway until the glider is airborne. 4. The usual mode of the glider returning to the ground was and is descent under the pilot's control. 5. An IS-28B2 glider is a machine which derives support in the atmosphere from reactions of the air. 6. The glider was entered on the Register of Australian Aircraft on 20 April 1977 and a certificate of registration in respect of the glider was issued on 24 April 1977.

...

8. On 10 April 1993, the first appellant was authorized by the Civil Aviation Authority to carry passengers for hire or reward within Australia using IS-28B2 gliders in accordance with the terms of an air operator's certificate, number V/T671, dated 22 January 1990.

..."

27. A notice of contention was filed on behalf of the respondent on 29th June 2004. It gave notice that he proposed to support the order below on the following alternative ground:

"1. The glider flight in question was not carriage of a passenger within the meaning of section 4 of the Civil Aviation (Carriers' Liability) Act 1961 for the very reason that the glider was not an aircraft to which section 4 of the Act applied, as it was not an aircraft being used in the course of commercial transport operations."

The notice of contention correctly referred to "the glider" rather than "a glider". That more accurately expressed the contention that junior counsel had foreshadowed. The words ", as it was not an aircraft being used in the course of commercial transport operations" represented a further departure from the original Statement of Agreed Facts and Issues. When the appeal came on for hearing again on 26th July 2004, the Court made an unopposed order that those words be struck out. [2]

32. Before turning to the question to be decided, it will be convenient to refer to the antecedents of the Victorian Act. The purpose of the Commonwealth Act when it was passed in 1959 was to implement the liability regimes in the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air and in the Convention as amended by the Hague Protocol which opened for signature on 28th September 1955. Part II related to carriage to which the amended Convention applied, Part III to carriage to which the unamended Convention applied and Part IV to other carriage within Commonwealth legislative competence, including intrastate flights where the carrier was the Australian National Airlines Commission.[3] The States passed complementary legislation, of which the Victorian Act is an example.

35. The Commonwealth Act and the State Acts have been amended from time to time. As originally enacted, s.27(1) and (3) of the Commonwealth Act read:

"27 (1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger - (a) between a place in a State and a place in another State; (b) between a place in a Territory of the Commonwealth and a place in Australia outside that Territory; (c) between a place in a Territory of the Commonwealth and another place in that Territory; or (d) between a place in Australia and a place outside Australia, not being carriage to which the Warsaw Convention, or the Warsaw Convention as affected by the Hague Protocol, applies.

...

(3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory of the Commonwealth (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be."

It is to that language, and in particular the language of s.27(1)(c), to which Parliamentary counsel would have had regard in drafting the Victorian Act.

40. The principal amendment to Part IV of the Commonwealth Act since 1959, for present purposes, was its extension to the carriage of a passenger in an aircraft operated by the holder of a charter licence. That extension was made in 1970 and the States followed suit. In Victoria the Civil Aviation (Carriers' Liability) Act 1970 inserted a definition of "charter licence" in the Victorian Act and added the words "or a charter licence" after the words "an airline licence" in s.4. The New South Wales, Queensland, Western Australia and South Australian legislation passed in 1970 and 1971 went further. I shall refer to it later. All that need be said for the moment is that, after the 1970 amendments, neither the meaning of the words "between a place in Victoria and another place in Victoria" in s.4 nor the question whether the glider was an aircraft to which that section applied is affected by the section's having originally been restricted to aircraft operated by the holder of an airline licence. Since the Civil Aviation (Carriers' Liability) Act 1970 s.4 is to be construed as a provision applying to aircraft operated by the holder of an airline licence or a charter licence.[4]

43. Article 1(2) of the Warsaw Convention provided:

"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 a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention." (Emphasis added.)

Article XVIII of the Hague Protocol provided that the Convention, as amended by the Protocol, should apply to international carriage as defined in Article I "provided that the places of departure and destination" (emphasis added) referred to in that article were situated either in the territories of two parties to the Protocol or within the territory of a single party with an agreed stopping place within the territory of another State.

48. In a series of decisions those definitions have been construed to include an international round trip.[5] As Byrne, J. explained:

"[W]here a passenger holds a ticket with more than one sector, for example, a return ticket from a place of departure to an overseas location and then back to the same place of departure, the place of destination is the place of departure, the place where the sectors finish. This interpretation applies notwithstanding that the return ticket is left open or that the passenger does not intend to use the return part of the ticket."[6]

52. Taking those decisions into account, his Honour held that s.4 of the Victorian Act applies neither to a joyride, for example a flight beginning and ending in Mildura without an intermediate landing, nor to a round trip, for example a flight from Mildura to Melbourne and return where the passenger disembarks in Melbourne.[7]

He concluded that s.27(1)(c) of the Commonwealth Act deliberately excluded such flights in a Territory, that the Victorian Act was drawn with an eye to the Commonwealth legislation, that the meaning of the word "another" in the expression "another place" was clear and that, in 1970 when the Act was amended, Parliament could not be treated as having omitted words that were necessary to give effect to its intention.[8]

57. The Convention regime involves both benefits and detriments, including strict liability with a monetary limit, a prohibition on contracting out and a two-year limitation period. It is the two-year limitation period which explains the parties' agreement in paragraph 8 of the original Statement of Agreed Facts and Issues that, if the preliminary question is answered in the affirmative, there should be judgment in the proceeding for the appellants.[9] Concentrating on the benefits, Mr Santamaria pointed out that the construction adopted by the judge meant, among other things, that A, whose contract provides for a Mildura-Melbourne leg of an international or interstate flight has the benefits of the Convention regime; so too does B, whose contract is for a domestic one-way flight from Mildura to Melbourne; but C, sitting next to them, whose contract provides for a Mildura-Melbourne-Mildura round trip does not have the benefit of the Convention regime. That benefit is also denied to a person on a joy flight from Mildura.

60. Reference was made on both sides to the modern approach to statutory interpretation, including the adoption of a purposive approach, and the provisions of s.35 of the Interpretation of Legislation Act 1984. It is sufficient, however, if we direct ourselves in accordance with the following passage from the judgment of Brennan, C.J., Dawson, Toohey and Gummow, JJ. in CIC Insurance Ltd. v. Bankstown Football Club Ltd.[10]:

"It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses `context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." (Footnotes omitted.)

64. The mischief to be overcome by the Victorian Act, although "mischief" is not quite the right word, was the inability of the Commonwealth to implement the liability regime in the Warsaw Convention as amended by the Hague Protocol throughout Australia. The Commonwealth had ample legislative power, among other things, with respect to the Territories and the States had ample legislative power with respect to intrastate flights. It would have been astonishing if the Commonwealth had not intended to cover joyrides and round trips, particularly the latter, in a Territory and equally, or more, astonishing if the State had not intended to cover such flights within the State. [11] That result is readily achieved by reading the words "between a place in a Territory of the Commonwealth and another place in that Territory" in s.27(1)(c)[12] as referring to a place of departure and a place of destination in a Territory and, similarly, reading the words "between a place in Victoria and another place in Victoria" in s.4 as referring to a place of departure and a place of destination in the State. Moreover, as we have seen, that is the language of the Convention and the Protocol.[13]

67. Section 27(3) of the Commonwealth Act may be thought to stand in the way of that construction, but I do not think it does. It is primarily directed to an extension of the Act to flights beginning and ending in one State but including a landing or landings at a place or places outside that State. The Territories were included for conformity. Neither constitutional constraints nor Grein v. Imperial Airways Ltd. required them to be included.[14]

Byrne, J. considered that the words in parentheses in s.27(3) threw light on the meaning of "another" in the expression "another place in that Territory" in s.27(1)(c) but they may have been inserted for abundance of caution or greater clarity. It would be anomalous if the liability regime applied to a round trip from Alice Springs to Broken Hill and return, by reason of s.27(3), but not to a round trip from Alice Springs to Darwin and return.[15]

74. Section 27(2) used to provide:

"(2) Where the carrier is the Australian National Airlines Commission, this Part applies in relation to carriage between a place in a State and a place in the same State in like manner as it applies in relation to carriage between a place in a State and a place in another State." (Emphasis added.)

I do not think the apparent contrast between the italicized words and those in s.27(1)(c) is significant. The object of the sub-section was to extend Part IV to a particular kind of intrastate carriage. It was natural, as it was too in s.27(4), which had a similar object, to emphasize "the same State". It was necessary to reproduce precisely the language of s.27(1)(a) but not that of s.27(1)(c). It would be even more anomalous if intrastate round trips operated by the Commission were covered but intraterritorial round trips were not.

79. Mr Santamaria approached the meaning of the words in s.4 of the Victorian Act in a different way. He submitted that the words "between a place in Victoria and another place in Victoria" meant "wholly within Victoria" or that they should be read as if they said "between a place in Victoria and a place in Victoria" or even "between a place in Victoria and that or another place in Victoria".[16] Byrne, J. rightly rejected similar submissions. The first suggested construction would not work unless one added "as regards the places of departure and destination" to cover the case of an aircraft passing through New South Wales or South Australian airspace. The other two constructions involve rewriting the statute. By contrast, the construction in [17] interprets the expressions "a place in Victoria" and "another place in Victoria" by giving each of them a meaning consistent with its context and the purpose of the legislation.

82. The Court invited submissions on that construction. Mr Santamaria agreed that it was open. Mr Langmead contended that it was not. He submitted that the meaning of the words "another place" in s.27(1)(c) and s.4 was plain. Moreover "place of departure" and "place of destination" were terms of art in the Warsaw Convention and the Hague Protocol. Part IV of the Commonwealth Act enacted provisions based on the Convention and the Protocol but, in contrast with Parts II, III, IIIA and IIIC[17], it did not give them the force of law in relation to carriage to which Part IV applied. Counsel did not seek to support Byrne, J.'s application of the line of cases referred to in [13] above to Part IV or to the Victorian Act. He submitted that round trips might well be covered. It was only joyrides that were excluded.

85. I do not accept Mr Langmead's first submission, about the plain meaning of the words, because I do not consider that the language of s.27(1)(c) or s.4 is intractable when it is read in the manner described in the CIC Insurance case. I do not accept his other submissions, because in the end the construction in [17] does not depend on the Convention or the Protocol or the jurisprudence on international round trips. The same result might be achieved simply by remembering that the legislation is concerned with flights by an aircraft, that it is natural enough to think of such a flight as being from one place to another and that the same geographical place may have two characters. Applied to the facts of the present case, Mount Beauty was both the place from which the flight began and the place at which, but for the accident, it would have ended. For similar reasons, it is not decisive that the overall scheme of aircraft regulation in Australia, to which counsel referred us, corresponds only in part with the scheme of the Convention and the Protocol.

88. I should add, nevertheless, that it does not remove all the anomalies to say that round trips are covered but joyrides are not. A round trip might be by helicopter or light aircraft from a country aerodrome to a picnic place and back. In such a case, is there any significant difference from a joyride? The object of the legislation is to regulate carriage by air. It is flight that matters, not whether there is an intermediate landing place or intermediate disembarkation. [18]

91. I have not founded my conclusion on Hansard, but it should be recorded that, in the second reading speech for what became the Commonwealth Act, the Minister for Defence said, "Part IV extends the principles of the amended convention to all domestic carriage by air within Federal competence but with certain modifications which are considered more appropriate for domestic purposes" (emphasis added).[19] In the second reading speech for what became the Victorian Act, the Minister for Transport said that there was "some grave doubt whether these Commonwealth laws would be enforceable on journeys which commence and end within a State", that the Commonwealth Government had suggested that the States should pass "complementary legislation containing penalties and concessions to passengers similar to those which apply for interstate journeys" and that it seemed reasonable that "every passenger in an aeroplane, whether travelling interstate or intrastate, ... should be covered regardless, by having two sets of laws, one the Commonwealth and the other the State, both covering the situation and thereby removing any doubt" (emphasis added).[20] The second reading speeches for the bill to amend the Commonwealth Act in 1970 expressly mentioned "joyrides conducted by the holders of charter licences".[21] There were similar references in the second reading speeches for the bill to amend the Victorian Act.[22]

94. I referred earlier to the interstate legislation passed in 1970 and 1971. The amendments that were made covered joyrides and, except in Queensland, intrastate round trips.[23] In my opinion, they are irrelevant to the construction of the Commonwealth Act and the Victorian Act. At most, they show that those advising the Governments of New South Wales, Queensland, Western Australia and South Australia considered that such amendments were necessary or desirable. It may well be that they were desirable, but they were not necessary, at least after the restriction to aircraft operated by the holder of an airline licence was removed from the context in which s.27(1)(c) and s.4 fall to be construed.

97. I turn to the alternative basis on which the respondent sought to support a negative answer to the preliminary question. Broadly three arguments were advanced. The first had to do with the precise character of the glider flight on 10th April 1993. It was submitted that it did not constitute "carriage ... in the course of commercial transport operations" but was merely a recreational flight, said to be limited by the air operator's certificate to an operational radius of ten kilometres centred on the aerodrome of departure. Further, it was submitted, the certificate applied only when the glider was operated under power and it was not so operated during this flight. It is unnecessary to decide whether those submissions correctly interpret s.4 or the certificate. The argument is met by paragraph 4 of the original Statement of Agreed Facts and Issues, in which it was conceded that the glider, defined as the "Aircraft" in paragraph 1, was "operated by the holder of a charter licence in the course of commercial transport operations".[24]

For similar reasons, we need not be concerned by the fact that "charter licence" is defined in s.2(1) of the Victorian Act by reference to the provisions of the Air Navigation Act 1958, which was repealed in 1990.[25]

102. The second argument was based on the Victorian Parliamentary debates at the time of the 1970 amendments. Omitting footnotes, paragraph 24.1 of the respondent's outline of submissions read:

"The difficulty with respect to charter and joy flights was thoroughly considered in the parliamentary debates. Indeed, gliders were specifically mentioned. The Minister for Transport expressed the view that `I am not concerned about gliders, because I think the suggestion that gliders are involved in commercial operations is rather far-fetched'. Despite this opinion, he was asked to make inquiries to `ascertain whether this type of craft is covered and that the passengers would be protected', to which he agreed. The Member for Broadmeadows asked `that if the investigation prove that the definition is not broad enough to include gliders ... [the Minister for Transport] will undertake that the Government will as a matter of urgency take up with the Commonwealth the question of broadening the definition'."[26]

106. The appellants pointed out that, a few weeks later in the Legislative Council, the Minister for State Development said:

"In another place the question was asked: What is in fact an aircraft? It is any machine that can derive support in the atmosphere from the reactions of the air. It is interesting to note that the following question relating to charter licences was also asked: Does this apply to gliders, balloon travel, and so forth? ... [A] charter flight does in fact include joy flights in a glider or a balloon operated for reward where it would be required to have a charter licence and be subject to this proposed legislation. ... This Bill sets out to ensure that passengers carried in a charter flight, whether by conventional aircraft, glider, or balloon, are adequately covered by the proper provisions."[27]

Mr Langmead submitted that the views of the Minister for Transport were to be preferred to those of the Minister for State Development, but I do not consider that any of those passages is of assistance on the meaning of "aircraft".

111. The third argument was that the Victorian Act is concerned with aircraft involved in public transport services or charter flights of a public transport nature. It was submitted that gliders were not encompassed by the Warsaw Convention or the Hague Protocol and that "aircraft" in s.4 should not be construed to include them. It was pointed out that, in 1961 and 1970, there were no relevant statutory definitions of "aircraft'. A definition using the language of paragraph 5 of the Supplementary Statement of Agreed Facts first appeared in an amendment to the Air Navigation Act 1920 (Cth) in 1974.[28]

114. A glider is an aircraft within the ordinary meaning of that word, even if it more commonly refers to an aeroplane or helicopter.[29] It is not defined in the Victorian Act, the Commonwealth Act, the Warsaw Convention or the Protocol. The Convention is an old treaty, of which the authentic text is in French[30], but the French version suggests no relevant restriction. The word appropriately translated as "aircraft" in the schedules to the Commonwealth Act is "aéronef".[31] The fact that the Convention and the Protocol are unlikely to apply, in practice, to gliders, because they are rarely (if ever) used for international carriage, is an insufficient reason to read down the word "aircraft" in domestic legislation. I express no opinion on the question whether a glider flight is, in principle, capable of coming within the Convention or the Protocol.[32]

117. In Disley v. Levine the claimant was injured in a paraglider accident. A paraglider consists of a canopy which is inflated by the wind to form an aerodynamic wing from which the pilot is suspended by a harness equipped with control lines. It usually carries only one person, but this was a tandem paraglider in which the claimant was under instruction from the defendant for her elementary pilot certificate. The English Court of Appeal held that the paraglider was not an aircraft for the purposes of Schedule 1 to the Air Navigation (No. 2) Order 1995, which was based on the Warsaw Convention as amended by the Hague Protocol and which would have had the effect either of barring the claim altogether or of limiting the amount of damages that could be recovered. That decision is distinguishable in at least three respects. First, it is a case about paragliders.[33]

Secondly, the regulatory context was not the same.[34] Thirdly, two of their Lordships adopted a purposive approach that is not applicable to the Victorian Act.[35] That Act is not concerned with international air carriage, or even public transport in the ordinary sense of those

words.[36]. It is directed to adapting an international regime to domestic purposes, including charter flights.

123. Finally, in relation to both branches of this case, the Victorian Act is remedial legislation. One of its purposes since 1970 has been to prevent charter operators from requiring passengers to prove negligence or contracting out of common law liability altogether. That is another reason for construing s.4 in such a manner as to make the legislation effective and to avoid anomalies and unjust exceptions.

126. For these reasons I would allow the appeal, set aside the order made on 7th April 2004 and, in lieu thereof, answer the preliminary question in the affirmative and order that there be judgment in the proceeding for the appellants.

131. I have had the advantage of reading the draft judgments prepared by Callaway and Nettle, JJ.A. I agree with Callaway, J.A., for the reasons he has stated, that the appeal should be allowed.

134. In the light of the terms of the Warsaw Convention and the Hague Protocol I see no difficulty in treating a place as both the place of departure and the place of destination of a flight, so that, in answering the second description, the place may be "another place" within the meaning of s.4 of the Civil Aviation (Carriers' Liability) Act 1961. That construction avoids denying or applying the benefits and detriments of the liability regime of the Warsaw Convention according to whether a flight ultimately returns to the point of its departure, a result which, in my view, would be anomalous.

138. When the United Kingdom first extended the operation of the principles of the Warsaw Convention to domestic aviation, the relevant order provided in terms that the principles of the Convention as amended should apply to "all carriage of passengers by aircraft for reward other than international carriage"[37].

141. The Minister's speech on the second reading of the Civil Aviation (Carriers' Liability) Bill 1959 (Com) made reference to the way in which the matter had been dealt with in the United Kingdom and suggested that it was intended to achieve something similar in Australia.

144. But as enacted s.27 of the Civil Aviation (Carriers' Liability) Bill 1959 (Com) provided that Part IV of the Act applied only to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger -

"(a) between a place in a State and a place in another State; (b) between a place in a Territory of the Commonwealth and a place in Australia outside that Territory; (c) between a place in a Territory of the Commonwealth and another place in that Territory; or (d) between a place in Australia and a place outside Australia, not being carriage to which the Warsaw Convention, or the Warsaw Convention as affected by the Hague Protocol, applies.",

and that if the carrier were the Australian National Airlines Commission, Part IV would apply to carriage between a place in a State and a place in the same State in like manner as it applied in relation to carriage between a place in a State and a place in another State.

149. Presumably, those restrictions were drafted with the aim of keeping the legislation within the ambit of the Commonwealth's powers to enact legislation with respect to interstate trade and commerce, the territories, external affairs and the Australian National Airlines Commission. But the restrictions appear more stringent than was necessary to achieve that objective. Under Section 122 of the Constitution the Commonwealth had plenary power to make general laws for all the Territories, unrestricted by reference to subject matter.[38] But as drafted s.27 provided that the Act should apply within a Territory only to carriage under a contract for carriage between a place in the Territory and another place in the Territory. It is therefore tempting to think that s. 27(1)(c) of the Act was intended to apply to any contract for carriage within a Territory and that the expression "a place...and another place" was adopted only for the sake of consistency of style with s. 27(1)(a) (and without appreciating that it might limit the operation of s. 27(1)(c) to flights between two different places).

152. As the learned trial Judge pointed out, however, s. 27(3) provides a strong indication to the contrary. In that provision the parenthesis "(whether at the one place or not)" is directed to flights that begin and end in a Territory. Its purpose appears to be to prevent the operation of s. 27 with respect to such flights being limited by implication to flights that begin and end at different places in the Territory. Since s. 27(1)(c) is really the only place from which such an implication might arise, the logical conclusion is that the draftsman did understand the ramifications of the expression "a place...and another place" and used the expression advisedly.

155. A further reason to think that s.27(1)(c) was intended to be confined to contracts for carriage between two different places in a Territory is that the opening words of s. 27 restrict the operation of the section to aircraft being operated by the holders of airline licences. It suggests that the Commonwealth was directing the legislation to airline operations or, in other words, to the carriage of passengers from one place to another. There is a contrary indication in the second reading speech. It was said there that the legislation was intended to apply to "all domestic carriage by air within Federal competence". But that is balanced by an observation made elsewhere in the speech that the Act was aimed at "domestic airline operators".

158. Consequently, I do not consider that it is permissible to attribute to s. 27(1)(c) a meaning other than the natural and ordinary meaning of its terms. I construe s.27(1)(c) as applying only to contracts for carriage between two different places in a Territory.

161. In 1961 the Victorian Parliament enacted the Civil Aviation (Carriers' Liability) Act 1961 with the apparent intention that provisions substantially the same as Part IV of the Commonwealth Act should apply to a defined class of contracts for carriage by air within Victoria. Thus s.4 of the Victorian Act provided that the Act applied to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in Victoria and another place in Victoria [39] (My emphasis).

164. It is significant that the Victorian Parliament eschewed the United Kingdom's approach[40] and chose instead the Commonwealth's approach with respect to Territories of providing that the relevant principles applied within the jurisdiction to contracts of carriage between one place and another place. It suggests that the Victorian Parliament intended the relevant principles to apply in Victoria under the Victorian Act in the same way that the relevant principles applied in the Territories under the Commonwealth Act. That conclusion also derives some support from an observation in the second reading speech, that:

"...Obviously there is some grave doubt whether these Commonwealth laws would be enforceable on journeys which commence and end within a State...The Commonwealth Government has suggested that all the States should pass complementary legislation containing penalties and concessions to passengers similar to those which apply to interstate journeys."

168. In 1970 the Commonwealth amended the Commonwealth Act in order to make it apply to charter flights as well as to airline operations. At that time it was said in the second reading speech that:

" ...the Act will apply to all charter flights and commuter services subject to the Act."

But the terms of the amending legislation were more restricted than that. The only amendment made to s. 27 was to add the words "or a charter licence" after the words "airline licence". Thenceforth s. 27 provided that Part IV applied to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence, and the limitations laid down in ss.27(1)(a) to (d) continued to apply. So, in the case of intra-territorial carriage, the Act remained restricted to carriage under a contract for carriage between a place in a Territory and another place in that Territory.

173. There are some indications in the 1970 Commonwealth second reading speech that the Act as amended was assumed or intended to have a broader operation than that. The Minister said among other things that:

"As I have indicated earlier, the Civil Aviation (Carriers' Liability ) Act applies only to the carriage of passengers and baggage in aircraft operated by the holders of airline licences under the Air Navigation Regulations. This includes passengers carried on airline charter flights as well as on their regular services. The rights of passengers on air taxi flights, charter flights and joyrides conducted by the holders of Charter licences only, however, depend on common law and the terms of the contract between the passenger and the carrier... "The Government cannot see any justification for treating passengers of the airlines and the charter firms any differently in respect to the carriers' liability arrangements.

But it is by no means clear that the amendments were assumed or intended to apply to a contract for carriage within a Territory otherwise than between one place and another place in that Territory.

178. In September 1970 the Victorian Parliament followed the Commonwealth by adding the words "or a charter licence" after the words "airline licence" in s. 4 of the Victorian Act, and there are some indications in the Victorian second reading speech that it was intended or assumed that the Victorian Act as amended would apply to all intra-state charter operations, including "joy flights". It was said in the second reading speech that:

"In order to cover this situation and include all intra-state charter operations, including "joy-ride" flights, it is desirable that Victoria, along with the other States, should amend its legislation to subject intra-state charter operators to the liability provisions of the Commonwealth Act and thereby obtain uniformity throughout Australia. I understand that the other States, if they have not already done so, will pass the necessary legislation."

But there is also an indication that the amendments were intended or assumed to apply only to commuter service operators holding charter licences. It was noted that:

"...prior to an amending Act being passed by the Commonwealth Parliament in June last, commuter service operators holding charter licences were exempt from the necessity to hold airline licences under the Air Navigation Regulations... ..."The Commonwealth Civil Aviation (Carriers' Liability) Act 1970, therefore, includes amendments which apply to all charter flights and commuter services but, for constitutional reasons, its provisions do not apply to intra-state services except those operated by Trans-Australia Airlines."

184. It follows, in my opinion, that this is not a case in which it is clear that the Victorian Parliament has missed the target at which it was aiming, or even that the Victorian Parliament has failed in an attempt to hit a target at which it was aiming[41]. Consequently, I agree with the leaned trial Judge that it is impermissible to construe this legislation otherwise than in accordance with the natural and ordinary meaning of its terms. As so construed, it does not apply to the facts of this case.

[1] Jacob v. Mount Beauty Gliding Club [2004] VSC 103.

[2] There is no reason to think that the concession in paragraph 4 of the Statement of Agreed Facts and Issues was incorrect, especially having regard to the wide definition of "commercial transport operations" in s.26(1) of the Commonwealth Act and s.2(2) of the Victorian Act.

[3] Part IIIA, inserted in 1962, relates to carriage to which the Guadalajara Convention applies. Part IIIC, inserted in 1991, relates to carriage to which the Montreal No. 4 Convention applies.

[4] Commissioner of Stamps (S.A.) v. Telegraph Investment Co. Pty. Ltd. [1995] HCA 44; (1995) 184 C.L.R. 453 at 463 and 479.

[5] The cases are discussed in Vertzyas v. Singapore Airlines Ltd. (2000) 50 N.S.W.L.R. 1 at 12-14.

[6] Jacob v. Mount Beauty Gliding Club at [12].

[7] When I refer to the references to joyrides in Hansard in [[] below, I do not forget Mr Langmead's submission that the word is not a term of art and that ministers may have used it in a different sense.

8] Jacob v. Mount Beauty Gliding Club at [5] and [13]-[30].

[11] As I have already mentioned, the legislation is no longer to be construed by reference to the fact that it was originally restricted to aircraft operated by the holder of an airline licence. The line of cases to which Byrne, J. referred in relation to international round trips had already begun in 1959: see Grein v. Imperial Airways Ltd. [1937] 1 K.B. 50.

[12] The words "of the Commonwealth" were omitted by s.3 of the Statute Law Revision Act 1973.

[13] In addition to Article 1 of the Convention, see Articles 3, 4, 8, 12, 13 and 28.

15] That assumes, as Byrne, J. held, that the line of cases referred to in [[] above does apply to Part IV. See []-[] below.

16] This last suggestion is strikingly reminiscent of the interpretation of s.257D(1)(a) of the Corporations Act 2001 rejected in Village Roadshow Ltd. v. Boswell Film GmbH [2004] VSCA 16, where this Court held that the words "no votes being cast in favour of" could not be read as if they said "no votes being cast in favour of or against". It is one thing to say that p includes q. It is another thing altogether to say that p includes not p.

[17] See ss.11, 21, 25A and 25K.

[18] Similarly, looking ahead to the second part of this judgment, it is flight that matters, not whether the aircraft operates, or is capable of operating, under its own power.

[19] Hansard, House of Representatives, 7th April 1959 at 903.

[20] Hansard, Legislative Council_,_ 26th September 1961 at 145.

[21] Hansard, Senate, 4th June 1970 at 1980 and House of Representatives, 12th June 1970 at 3559.

[22] Hansard, Legislative Assembly, 16th September 1970 at 196-197 and Legislative Council, 29th September 1970 at 378.

[23] Jacob v. Mount Beauty Gliding Club at [22]-[27].

25] The repeal was effected by s.4 of the Australian Airlines (Intrastate Services) Act 1990. The Minister for Transport explained that the Government had received advice that the Air Navigation Act no longer had any practical application in Victoria, due to case law on relevant Commonwealth powers and legislation passed by the Commonwealth Parliament pursuant to those powers: Hansard, Legislative Assembly, 29th March 1990 at 517.

[26] Hansard, Legislative Assembly, 23rd September 1970 at 346 and 347.

[27] Hansard, Legislative Council, 13th October 1970 at 775.

[28] Air Navigation Act 1974, s.5.

[29] Compare the Macquarie Dictionary (revised 3rd ed.) at 38 with the New Shorter Oxford English Dictionary (1993) vol. 1 at 45. See also Miller, Liability in International Air Transport (1977) at 15.

[30] See Article 36 of the Convention, the signature clause of the Protocol and s.8 of the Commonwealth Act.

[31] As to the propriety of having regard to the French version without expert evidence, see Fothergill v. Monarch Airlines Ltd. [1980] UKHL 6; [1981] A.C. 251. We were provided with a deal of material on the meaning of "aéronef" in Annex D to the 1919 Paris Convention for the Regulation of Aerial Navigation and other contexts, but, in my opinion, it is too remote to be of assistance.

[32] Compare Disley v. Levine at 790 [18] and 799 [61].

[33] Nothing I say in this judgment, including fn.[ above, is intended to express a view about paragliders.

34] The paraglider did not, for example, require an air operator's certificate, because it was not flown "on any flight for the purpose of public transport": see Henry, L.J.'s judgment at 793 [31] and 795 [40]-[41]. Mr Santamaria submitted that the glider, and the glider flight, with which we are concerned, unlike a paraglider, would not have been exempt under the 1995 order.

[35] Buxton, L.J. at 799 [60]-[62] and Bodey, J. at 802 [75]. Henry, L.J.'s agreement at 795 [41] is limited by the last 12 words of that paragraph.

[36] "Commercial transport operations" is defined in s.26(1) of the Commonwealth Act to mean operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo. Section 2(2) of the Victorian Act applies that definition to the interpretation of s.4.

[37] See The Carriage by Air (Non-international Carriage)(United Kingdom) Order 1952

[38] Although that may then not have been realised: see Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at pp. 269-271

[39] Not being carriage to which Part IV of the Commonwealth Act applies.

[40] Of laying down that the relevant provisions applied within the jurisdiction to "all carriage of passengers by aircraft for reward other than [Commonwealth regulated] carriage",

[41] Cf Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association [1946] 1 All ER 637 at p. 641; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at p.424; and see Pearce & Geddes, Statutory Construction in Australian 5th Ed at [2.27]