Page v Sydney Seaplanes Pty Ltd t/as Sydney Seaplanes

Supreme Court of NSW|2020-09-08|Before: Adamson J

Solicitors: Shine Lawyers (Plaintiff) GSG Legal (Defendant) File Number(s): 2020/140378

Introduction

Alexander Page (the plaintiff) is the father of a young girl who was killed when, on 31 December 2017, the seaplane in which she was a passenger crashed in the course of a flight between Cottage Point and Rose Bay. The plaintiff commenced proceedings in the Federal Court which were dismissed for lack of jurisdiction. He now seeks an order in this Court that the proceedings be treated as if they had been commenced in this Court.
Sydney Seaplanes Pty Ltd (the defendant) contends that this Court ought not make the order as the proceedings in the Federal Court were dismissed and the plaintiff is now out of time. It also seeks an order by notice of motion that the plaintiff pay the defendant's costs of the proceedings in the Federal Court. Further, and in the alternative, it seeks an order for security for costs. The parties agreed that the motion should be deferred until a determination is made whether to grant the relief in the summons.

The relevant facts

On 18 December 2019 the plaintiff commenced proceedings in the Federal Court against the defendant claiming damages under ss 28, 31 and 35 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Commonwealth Carriers' Act), as incorporated by s 5 of the Civil Aviation (Carriers' Liability) Act 1967 (NSW) (the NSW Carriers' Act) (the Federal Court proceedings). He alleged that the defendant was strictly liable to pay him damages for the death of his daughter.
The defendant successfully moved for dismissal of the proceedings on the ground that the Federal Court did not have jurisdiction to hear the action as the flight took place solely in New South Wales.
On 24 April 2020, Griffiths J dismissed the amended originating application for want of jurisdiction and ordered the plaintiff to pay the defendant's costs, as agreed or taxed: Page v Sydney Seaplanes Pty Ltd [2020] FCA 537. Griffiths J held that the plaintiff's claim did not involve a "federal matter" because his only claim was under the NSW Carriers' Act and that therefore the Federal Court did not have jurisdiction to determine it. There was no appeal from that decision.
On 11 May 2020 the plaintiff commenced proceedings in this Court by summons. He sought orders that the Federal Court proceedings be treated as proceedings in this Court pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (the State Jurisdiction Act), that the Federal Court proceedings be recorded as proceedings in this Court and that the Federal Court proceedings be deemed to have been brought in this Court on the day it was first recorded as a proceedings in the Federal Court, 23 December 2019.
On 17 July 2020 the defendant filed a bill of costs in the Federal Court arising from the costs order made by Griffiths J.

Relevant statutory provisions

It is common ground that the NSW Carriers' Act, to the extent to which it incorporates the Commonwealth Carriers' Act (the CACL Regime), governs any claims for death or personal injury arising from the incident. It is also common ground that the plaintiff's sole cause of action for any of the alleged injuries arising from the incident derives from the NSW Carriers' Act.
It was common ground that the effect of the CACL Regime is that carriers are strictly liable for damages as long as the plaintiff can establish that an "accident" occurred in the course of a flight or while embarking or disembarking.

The Commonwealth Carriers' Act

Pursuant to s 11(1) of the Commonwealth Carriers' Act, the Warsaw Convention, as amended by the Hague Protocol, has the force of law in Australia.
Part IV of the Commonwealth Carriers' Act, which is entitled "Other carriage to which this Act applies", relevantly includes ss 27 and 28, as well as s 34.
Section 27 of the Commonwealth Carriers' Act provides for the application of Part IV. It reflects the Commonwealth's heads of power with respect to interstate, overseas and intra-Territorial trade and commerce. Of importance, it does not purport to govern intra-state flights, that being understood to be something to which Commonwealth legislative power did not necessarily extend: Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3. In 1983 the High Court in Commonwealth of Australia v Tasmania (1983) 158 CLR 1; [1983] HCA 21 held, by majority (Mason, Murphy, Brennan and Deane JJ, Gibbs CJ, Dawson and Wilson JJ dissenting) that the Commonwealth's plenary power with respect to external affairs in s 51(xxix) of the Constitution, authorised it to legislate so as to implement treaty obligations. Notwithstanding this decision, the Commonwealth Carriers' Act was not amended to cover the field of Australia's international obligations under conventions such as the Warsaw Convention.
As the flight in the present case was a purely intra-NSW flight, s 27 does not make Part IV applicable.
Section 34 of the Commonwealth Carriers' Act provides: "34 Limitation of actions The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination: (a) the date on which the aircraft ought to have arrived at the destination; or (b) the date on which the carriage stopped; whichever is the later."
It was common ground that the limitation in s 34 of the Commonwealth Carriers' Act derived from Article 29 of the Warsaw Convention, which is reproduced in Sch 2 to the Commonwealth Carriers' Act as follows: "1. The right to damages shall be extinguished if an action is not brought within 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. 2. The method of calculating the period of limitation shall be determined by the law of the Court seised of the case."
Section 34 does not apply of its own force to the present case. However, as set out below, it is an "applied provision" which applies to the present case by reason of the NSW Carriers' Act.
It was common ground that the following were features of claims resulting from the death of a passenger following an aircraft crash: 1. the claimant does not have to prove negligence as the liability is strict; 2. there is a limit on the damages recoverable; and 3. there is a time bar of two years, after which the right of action is extinguished.

The NSW Carriers' Act

Section 2(1) of the NSW Carriers' Act contains the following definition: "applied provisions means the provisions of the Commonwealth Act and the Commonwealth Regulations as they apply under this Act as laws of the State."
Section 4 of the NSW Carriers' Act provides that the Act applies to carriage but does not include carriage to which Part IV of the Commonwealth Carriers' Act applies. Section 5 of the NSW Carriers' Act provides that, relevantly, Part IV of the Commonwealth Carriers' Act (including s 34) applies as if those provisions were incorporated in the NSW Carriers' Act and if the references in the Commonwealth Carriers' Act were references to the NSW Carriers' Act. It follows that, by reason of ss 4 and 5 of the NSW Carriers' Act, s 34 of the Commonwealth Carriers Act is incorporated into the NSW Carriers' Act.
Of present relevance, s 6A of the NSW Carriers' Act, which was inserted by the Civil Aviation (Carriers' Liability) Amendment Act 1996 (the 1996 Amendment) and became operative on 1 December 1996, provides in part: "6A Administration of the applied provisions as Commonwealth laws (1) It is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State. …"
Thus, s 34 of the Commonwealth Carriers' Act is incorporated into the NSW Carriers' Act with the additional status accorded to it by s 6A of the NSW Carriers' Act which has the effect that the applied provisions prevail over State laws with which they are inconsistent: see South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 at [154] (Basten JA).

The State Jurisdiction Act

The State Jurisdiction Act came into force on 10 December 1999 in response to the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 (Re Wakim) which was handed down on 17 June 1999. Re Wakim relevantly decided that the jurisdiction that could be conferred on a federal court was limited by reference to the matters in ss 75 and 76 of the Constitution, and that no polity other than the Commonwealth could confer such jurisdiction. It followed that State cross-vesting legislation was invalid in so far as it purported to confer jurisdiction on the Federal Court to decide matters in which this Court had jurisdiction other than by reason of a law of the Commonwealth or another State. In other words, the NSW Parliament, for example, cannot confer jurisdiction on the Federal Court with respect to State matters.
The Honourable Jeff Shaw, the then Attorney-General of New South Wales, said, of present relevance in the Second Reading Speech for the Bill which became the State Jurisdiction Act (New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 July 1999 at 1813): "On 17 June 1999 the High Court handed down its decisions in the matters of Re Wakim; Ex parte McNally, Re Wakim; Ex parte Darvall, and Re Brown; Ex parte Amman, which considered the validity of certain provisions of the Commonwealth Corporations Act 1989 and the Commonwealth Jurisdiction of Courts (Cross-Vesting) Act 1987 that provide for the cross-vesting of jurisdiction between Federal, State and Territory courts. The majority of the High Court determined that the vesting of State jurisdiction in Federal courts is ineffective. The effect of the court's decisions is to invalidate decisions previously made by the Federal Court and the Family Court relying purely on cross-vesting arrangements and to prevent the further exercise of such jurisdiction by those Federal courts."
Section 3 of the State Jurisdiction Act relevantly contains the following definitions: "… federal court means the Federal Court of Australia or the Family Court of Australia. ineffective judgment has the meaning given by section 4. judgment means a judgment, decree or order, whether final or interlocutory, or a sentence. liability includes a duty or obligation. proceeding includes an initiating application. relevant State Act means any of the following Acts or parts of Acts: … (b) Civil Aviation (Carriers' Liability) Act 1967 … State matter means a matter: (a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a Territory, …"
Section 4(1) of the State Jurisdiction Act defines "ineffective judgment" as a reference to a judgment of a federal court in a State matter given or recorded before the commencement of the section in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act. In other words, an ineffective judgment was designed to cover judgments by federal courts under cross-vesting laws which purported to vest federal courts with jurisdiction over State matters.
Section 11 of the State Jurisdiction Act provides in part: "11 Certain proceedings may be treated as proceedings in Supreme Court (1) In this section: limitation law means: (a) the Limitation Act 1969, or (b) any other law that provides for the limitation of liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced. relevant order means: (a) an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction, or … (2) A person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order. (3) If the Supreme Court makes an order under subsection (2), the proceeding, despite the relevant order: (a) becomes, and must be recorded by the Supreme Court as, a proceeding in the Supreme Court, and (b) for the purposes of any limitation law and for all other purposes, is deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the federal court. (4) The Supreme Court may make such ancillary orders in relation to an order under subsection (2) as it considers necessary for the purposes of the proceeding being treated as, becoming and being recorded as, a proceeding in the Supreme Court."

The parties' submissions

Mr Roberts, who appeared on behalf of the plaintiff, submitted that the evident purpose of s 11 of the State Jurisdiction Act was to permit an application to this Court by a plaintiff whose proceedings had been dismissed by the Federal Court for want of jurisdiction, whilst preserving the commencement date of the Federal Court proceedings for all purposes, including those associated with limitation laws. He submitted that there was no inconsistency between s 11 of the State Jurisdiction Act and s 34 of the Commonwealth Carriers' Act in so far as it was incorporated into the NSW Carriers' Act, since the two could operate together.
Mr Roberts also emphasised the effect of Art 29.2 of the Warsaw Convention and contended that s 11 was part of the "method of calculating the period of limitation" to which respect had been given in the convention.
Mr Lloyd SC, who appeared on behalf of the defendant, submitted that once the Federal Court proceedings had been dismissed, the action was extinguished by s 34 of the Commonwealth Carriers' Act and could not be revived by s 11 of the State Jurisdiction Act. As the proceedings in this Court were not commenced until after the two-year period had expired, Mr Lloyd contended that the plaintiff's rights had already been extinguished. He contended that s 11 of the State Jurisdiction Act could not save the proceedings because the language of s 11 was confined to "limitation" or "barring" of the claim rather than to "extinguishment" and that, under s 34, the plaintiff's right of action had been extinguished. Mr Lloyd accepted that the plaintiff's interpretation was open on the wording of the provision but submitted that the better view was that it did not cover the present case. He submitted, in effect, that the plaintiff's only cause of action was against his solicitors for commencing the proceedings in the wrong court.
Mr Lloyd submitted that the purpose of the State Jurisdiction Act would be achieved by confining the reference to dismissed proceedings in the definition of relevant order in s 11(1). The construction for which he contended would have the effect that this Court could only make ancillary or consequential orders, such as costs orders, in proceedings which had been dismissed by the Federal Court for want of jurisdiction.
Further, Mr Lloyd submitted that if s 11 of the State Jurisdiction Act had the effect for which the plaintiff contended, it was inconsistent with s 34 of the Commonwealth Carriers' Act, which had been incorporated into the State Carriers' Act. He also submitted that, in determining the question of inconsistency, the appropriate approach was not to regard s 11 of the State Carriers' Act and s 34 of the Commonwealth Carriers' Act (in so far as it applied to intra-state travel by reason of s 6A) as being legislation of the same Parliament. He contended that s 34 had been accorded particular status by s 6A of the NSW Carriers' Act and therefore the appropriate approach was to give primacy to s 34 and not to strive for a consistent interpretation as would be appropriate when construing acts of the same Parliament.
He relied on the consequence that, if s 11 had the effect for which the plaintiff contended, the plaintiff could commence proceedings in this Court years after the dismissal of proceedings in the Federal Court which would be treated as if they had been commenced on 18 December 2019. Mr Lloyd contended that such an absurd result could not have been intended and was not consistent with the limitation on the bringing of claims within Art 29.1 of the Warsaw Convention.
Mr Lloyd raised the question of the effect of s 109 of the Constitution on this issue. By reason of the terms of s 78B of the Judiciary Act 1903 (Cth), I could not complete the hearing of the matter on 8 September 2020 until notices under that section had been issued to the Attorneys-General of the States and the Commonwealth. I am satisfied that notices were issued to each of these persons. Replies were received from all Attorneys-General save for the Attorney-General for Western Australia, whom I am satisfied was served.
Mr Lloyd relied on Timeny v British Airways plc (1991) 56 SASR 287 (Timeny), which has been approved by the High Court in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 (Agtrack). Mr Roberts principally relied on Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 (Residual). These authorities, and other relevant authorities, will be addressed below.

Consideration

It was common ground that there was no authoritative statement which decided the question at issue in the present case. Both parties sought to fortify their submissions by reference to authorities. In these circumstances it is convenient to analyse what the authorities referred to by the parties decided with a view to assessing their effect in the present case. I propose to refer to the authorities in chronological order, in part because s 6A of the State Carriers' Act only became operative in 1996.

Relevant authorities on the Commonwealth and State Carriers' Acts

Proctor v Jetway Aviation (1984)

In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, Mr Proctor commenced proceedings against Jetway Aviation for compensation following the death of his wife in a plane crash in the course of an intra-state flight between Sydney and Dubbo. In the statement of claim, he alleged the relevant facts although he did not refer to the NSW Carriers' Act. He also alleged negligence, which was irrelevant as the scheme provides for strict liability. More than two years after the plane crash, Mr Proctor sought leave to amend his statement of claim to add a claim under the NSW Carriers' Act.
The primary judge held that the effect of s 34 of the Commonwealth Carriers' Act, as incorporated into the State Carriers' Act, was that, on expiry of the time limit of two years, Mr Proctor's cause of action was extinguished and could not be revived: Proctor v Jetway Aviation Pty Ltd [1982] 2 NSWLR 264. Mr Proctor's appeal was allowed on the basis that the Court's powers of amendment permitted the Court to allow a party to amend a statement of claim to add a claim which would otherwise have been statute-barred because the amendment could date back to the filing of the original statement of claim. The change in the Court's powers of amendment had been effected by an amendment to the Supreme Court Act 1970 (NSW), which, in a Schedule to the amending Act, had included amendments to the Supreme Court Rules 1970 (NSW) which, in Pt 20, r (4) treated amendments to pleadings as effective from the date of filing of the original pleading. As the amendment to the Supreme Court Act post-dated the Carriers' Acts, it prevailed to the extent of the inconsistency.
The Court of Appeal rejected the argument put by Jetway Aviation that the time limitation in the NSW Carriers' Act was to be distinguished from a time limitation in the Limitation Act 1969 (NSW). Moffitt P (Glass and Priestley JJA agreeing) said, at 176: "It was sought to argue, however, that the nature of the expiry provision I the Aviation Act had material points of difference from those in the Limitation Act 1969. I do not think there are any differences material to the question for decision and certainly not in relation to the construction of the plain words of r 4 [of Pt 20 of the Supreme Court Rules]. The argument based on alleged futility has no place in the Aviation Act any more than it had in the Limitation Act, despite the absence in the former of a provision such as s 63(2). As earlier stated, once an amendment is validly made, it operates from the date of the filing of the statement of claim, so, in terms of s 34, the action in respect of the cause of action under the Aviation Act is 'brought within two years'."

Timeny (1991)

In Timeny, the plaintiff, Timeny, brought proceedings against British Airways for injuries allegedly sustained on 18 June 1985 in the course of a flight between Adelaide and London. The proceedings were commenced in the District Court of South Australia on 2 May 1988. In its defence, British Airways alleged that the plaintiff's claim had been extinguished because it had not been brought within two years of the plaintiff's arrival at her destination. She sought an extension of time under s 48 of the Limitation of Actions Act 1936 (SA) which was refused by the Deputy Master of the Court on the basis that her claim had been extinguished before she had filed proceedings. An appeal to a single judge was dismissed.
The plaintiff appealed to the Full Court of the Supreme Court of South Australia, which held that s 48 of the Limitation of Actions Act could not be used to extend time with respect to an action under the Commonwealth Carriers' Act which had not been commenced within two years. The Court held that the right to damages created by the Warsaw Convention is to be distinguished from a remedy barred by the lapse of time and that once the right under the Convention had been extinguished, it could not be revived.
Bollen J (King CJ and Cox J agreeing) said at 297: "I think that the new right is a right to damages exercisable and existing for the period of two years mentioned in Art 29(1). The two year period is not a mere period of limitation operating at its expiration to bar a remedy. It is an integral part of a right. Some courts have regarded it as a condition precedent to the exercise of the right. That is to say, the bringing of proceedings within the stated time is a condition precedent to the exercise of the right or of the obtaining of its benefit. I do not see it as a condition precedent. Perhaps I am playing with words. Be it an integral part or a condition precedent, failure to bring an action within that two years causes the right to be extinguished, to die, and to die beyond revival."

Agtrack (NT) Pty Ltd v Hatfield and Air Link Pty Ltd v Paterson

On 8 and 9 March 2005, the High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) heard two cases which concerned claims under air carriers legislation, Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 (Agtrack) and Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39 (Air Link).

Agtrack (2005)

In Agtrack, the plaintiff claimed damages resulting from the death of her husband when the aircraft in which he was a passenger crashed on a charter flight in the Northern Territory. Because the flight occurred within a territory, the liability of the carrier, Agtrack (NT) Pty Ltd, was governed by the Commonwealth Carriers' Act. In her statement of claim, the plaintiff alleged material facts and alleged a claim in negligence and in contract but did not allege a claim under the Commonwealth Carriers' Act. More than two years after she had filed her statement of claim, the plaintiff sought leave to amend to articulate a claim under the Commonwealth Carriers' Act. The carrier denied that the plaintiff, in her original statement of claim, had brought an action under the Commonwealth Carriers' Act and contended that her right to damages had been extinguished by s 34 of the Commonwealth Carriers' Act, thereby depriving her of her right to amend to add the claim.
The High Court held that, although the plaintiff in her original statement of claim had not expressly referred to the Commonwealth Carriers' Act, it was not necessary that she do so since she had alleged sufficient facts to demonstrate that the Commonwealth Carriers' Act applied. This was sufficient to dispose of the carrier's appeal. However their Honours also considered a second issue, which did not arise, and which concerned the construction of s 34 of the Commonwealth Carriers' Act.
The plurality (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) summarised the effect of the authorities as follows: "[49] … In Shawcross and Beaumont, Air Law, it is said respecting Art 29: 'If the right of action is 'extinguished', it would seem that it is completely destroyed and not merely rendered unenforceable by action.' [50] In Kahn v Trans World Airlines Inc, the Appellate Division of the Supreme Court of New York gave detailed consideration to the travaux préparatoires of the Warsaw Convention. The Court concluded from these materials: 'Based upon the foregoing, it is abundantly clear that the delegates to the Warsaw Convention expressly desired to remove those actions governed by the Convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws of the member states, and that the two year time limitation specified in Art 29 was intended to be absolute - barring any action which had not been commenced within the two year period. Moreover, it is equally clear from the delegates' discussion that the only matter to be referred to the forum court by para 2 of the present Art 29 was the determination of whether the plaintiff had taken the necessary measures within the two year period to invoke that particular court's jurisdiction over the action.' The Court added: '[I]t is readily apparent that the time limitation incorporated in Art 29 was intended to be in the nature of a condition precedent to suit, and that it was never intended to be extended or tolled by infancy or other incapacity. In addition, such an intent on the part of the draftsmen is fully consistent with one of the Convention's overall purposes - that of establishing 'a uniform body of world-wide liability rules to govern international aviation'.' The South Australian Full Court reached a conclusion to similar effect in Timeny v British Airways Plc. [51] The result is that there is a strong body of authority construing Art 29 of the Warsaw Convention as imposing a condition which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right. Such a distinction is well understood in Australian law and thus is readily accommodated in the drafting of s 34 of the Carriers' Act." [Footnotes omitted.]
At [55], the plurality emphasised the importance of giving the Commonwealth Carriers' Act a construction "harmonious with that which applies to the international carriage dealt with under the Convention, in particular with reference to Art 29 of the Warsaw Convention".

Air Link Pty Ltd v Paterson (2005)

In Air Link, Paterson, a passenger on a flight between two locations in New South Wales, Cobar and Dubbo, alleged that he suffered injuries while disembarking from the flight. He commenced proceedings in the District Court against the carrier. Although the statement of claim contained allegations of material facts, the plaintiff did not invoke a right to claim damages under Part IV of the Commonwealth Carriers' Act or the State Carriers' Act. Because the ultimate destination was outside New South Wales, the Commonwealth Carriers' Act arguably applied of its own force. However, if the NSW Carriers' Act applied, s 34 of the Commonwealth Carriers' Act applied by reason of s 6A of the NSW Carriers' Act.
The carrier pleaded, by way of defence, that the claim was not maintainable. The High Court reversed the decision of the Court of Appeal and held that the allegations in the original statement of claim were sufficient to show that Part IV of the Commonwealth Carriers' Act applied. On this basis, the High Court held that an action within the meaning of s 34 of the Commonwealth Carriers' Act had been brought within time. Because it was held that the cause of action had not been extinguished, it was open to the plaintiff to amend her claim to put beyond doubt her reliance on the Commonwealth Carriers' Act.
The High Court in Air Link considered that the result in Proctor v Jetway Aviation followed from the circumstance that the Supreme Court Rules, which allowed for back-dating of an amendment to the date of the original filing, was subsequent legislation which implicitly repealed the State Carriers' Act to the extent of any inconsistency. However, their Honours considered that, in Air Link, the process of construction was altered by the circumstance that s 6A of the NSW Carriers' Act, which gave force to s 34 of the Commonwealth Carriers' Act, was inserted by the 1996 Amendment, and therefore post-dated the Supreme Court Rules considered in Proctor v Jetway Aviation.
At [18] the plurality distinguished Proctor v Jetway Aviation as follows: "Nothing decided in Proctor touches the present litigation. Here the Carriers' Act directly applies. There may be difficulties in accommodating the reasoning in Proctor to a provision subsequently included in the State Act by the Civil Aviation (Carriers' Liability) Amendment Act 1996 (NSW). Section 6A(1) of the State Act now states: 'It is the intention of Parliament that the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State.' However, the construction of s 6A(1) may be left for another occasion in which it is immediately relevant."

Parkes Shire Council v South West Helicopters Pty Ltd (2019)

In Parkes Shire Council v South West Helicopters Pty Ltd (2019) 266 CLR 212; [2019] HCA 14, the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) said of present relevance: "It was the evident intention of the Warsaw Convention and the CACL Act [Commonwealth Carriers' Act] to limit that liability notwithstanding the domestic law of participating nations. The 'cardinal purpose' of the CACL Act in giving effect to the Convention was to achieve uniformity in the law relating to liability of air carriers, so that, in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law. A construction of Pt IV consistent with the purpose of the Convention is to be preferred, especially given that by s 11(1) of the CACL Act the Warsaw Convention as amended by the Hague Protocol has the force of law in Australia …" [Footnotes omitted.]

Authorities on the question of jurisdiction and the State Jurisdiction Act

Damberg v Damberg

In Damberg v Damberg [1999] NSWSC 1208 Austin J considered the effect of s 11 of the State Jurisdiction Act. Proceedings had been commenced in this Court by adult children of a marriage in respect of whom orders had been made in the Family Court in purported exercise of cross-vested jurisdiction of this Court. On the basis of Re Wakim, it was appreciated that, in so far as the Family Court purported to make orders affecting the property rights of adult children, the judgment was an "ineffective judgment" within the meaning of s 4 of the State Jurisdiction Act. The plaintiffs sought declarations in this Court that the orders of the Family Court were effective judgments of this Court.
Austin J held that the effect of s 6 of the State Jurisdiction Act was that the judgment of the Family Court was taken to be a judgment of this Court. Thus, there was no need for a declaration. In so far as the plaintiffs sought an order for costs of the Family Court proceedings, Austin J found that the proper procedure was to enforce the judgment by summons under s 7 of the State Jurisdiction Act and that an order for costs could be made in those summons proceedings.
His Honour said at [9]: "S 11 of the Act is directed to a different though overlapping situation. It applies in a case where there is a 'relevant order'. That expression is defined in s 11(1). Approximately speaking, a relevant order is an order of a federal court, whether made before or after the commencement of the Act on 9 July 1999, acknowledging in some way that it does not have jurisdiction to hear and determine a proceeding which is before it relating to a State matter. Where a relevant order has been made, s 11(2) empowers a party to the federal court proceeding to apply to the Supreme Court for an order that the proceeding be treated as a proceeding of the Supreme Court. S 11 obviously has potential application in a case where there is a proceeding in a federal court such as the Family Court of Australia which has not yet proceeded to judgment of any kind. It also has potential application in a case where a judgment, interlocutory or final, has been delivered and orders have been made in the federal court, but some additional relief is sought and the federal court determines that it lacks jurisdiction to grant the additional relief. Thus, if a final judgment in a federal court proceeding has been delivered but the federal court has not made an order with respect to costs, s11 is potentially available to permit the party seeking costs to obtain an order of the Supreme Court that the proceeding be treated as a proceeding of the Supreme Court, and then to seek an order for costs in the Supreme Court. Proceedings for that purpose are brought by summons under Pt 77 r 141 of the Supreme Court Rules."

Residual Assco Group Ltd v Spalvins (2000)

In Residual, the High Court considered the South Australian equivalent to the State Jurisdiction Act (the SA Act). The plaintiff, Residual Assco Group Ltd, commenced proceedings in the Federal Court under the Corporations (South Australia) Act 1990 (SA). Following Re Wakim, the proceedings were stayed for want of jurisdiction. The plaintiff commenced proceedings in the Supreme Court of South Australia under s 11(2) of the SA Act. The defendants argued that s 11 of the SA Act was invalid as it was inconsistent with the provisions of the Federal Court Act 1976 (Cth), on which the Federal Court's power to stay the proceedings had been based.
The High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held, relevantly, that s 11 of the SA Act was valid. The Court said, at [19] that s 11 of the SA Act operates only with respect to first instance proceedings in the Federal Court which had not been determined on the merits. The Court rejected an argument that the effect of s 11 was to "revive" proceedings in the Federal Court. Their Honours considered the status of federal proceedings and their connection with the State proceedings and said: "[25] The enactment of s 11(3)(b) of the State Act is only consistent with the Supreme Court proceeding being a proceeding linked to, but operating independently of, the federal court proceeding. If the object and effect of s 11 was that, upon the making of an order under s 11(2), the federal court proceeding was transferred to the Supreme Court, there would be no need to make provision for the effect of a limitation law on the proceeding. [26] A limitation law operates on the commencement of a proceeding. If s 11 was intended to authorise a Supreme Court 'take-over' of the federal court proceeding, the Supreme Court would be taking over or receiving proceedings already commenced. Any limitation law, whether applying directly under a law of the federal Parliament or through the agency of s 79 of the Judiciary Act, would apply as at the date that the federal court proceeding was commenced. There would be no need to declare, as s 11(3)(b) does, that, for the purpose of any limitation law, the proceeding 'is taken to have been brought in the Supreme Court on the day on which' it commenced in the federal court. The enactment of s 11(3)(b) only makes sense if s 11 is dealing with a proceeding that is distinct and separate from the federal court proceeding that has been dismissed or otherwise disposed of. The purpose of s 11(3)(b) is to ensure that the proceeding which commences in the Supreme Court after a s 11(2) order is made is not defeated by a limitation law merely because the date of that order is after a relevant State limitation period had expired. If the proceeding was commenced in the federal court after a State limitation law had expired, s 11(3)(b) will not save it. [27] The purpose of s 11(3)(b) is a strong indicator that the purpose of s 11 is to enable a party to proceedings in a federal court relating to a State matter to bring new proceedings in the Supreme Court whenever the federal court has disposed of its proceedings on the basis that it had no jurisdiction to deal with them. That being so, the textual points upon which the defendants rely cannot prevail. In construing a statutory provision, we should always keep in mind what Learned Hand J said in Cabell v Markham: 'Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.' [28] Moreover, legislation 'must not be read in a spirit of mutilating narrowness.' If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open. Courts in a federation should approach issues of statutory construction on the basis that it is a fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid." [Footnotes omitted.]

The questions for determination

The following issues arise for consideration: 1. Whether, on a proper construction of s 11(2) of the State Jurisdiction Act, a proceeding which has been finally determined by the Federal Court may be treated as a proceeding in this Court and determined on its merits pursuant to s 11(2); 2. if so, whether s 34 of the Commonwealth Carriers' Act is a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act; and 3. if s 34 of the Commonwealth Carriers' Act is a "limitation law" within the meaning of s 11(1) of the State Jurisdiction Act, whether s 11(3) is inconsistent with s 34 of the Commonwealth Carriers' Act as enacted into law in the State of New South Wales by the NSW Carriers' Act, such that s 34 of the Commonwealth Carriers' Act prevails over s 11(3) of the State Jurisdiction Act.
The parties addressed the questions separately. However, they are related in that, the question of inconsistency affects the question of construction. Nonetheless, it is useful to consider the questions separately in order to deal with the way the parties approached the ultimate issue: whether the plaintiff is entitled to the relief sought in the summons.

The first issue: whether a proceeding which has been dismissed in the Federal Court can be treated as a proceeding under s 11(2) of the State Jurisdiction Act

Mr Roberts contended that the order made by Griffiths J on 24 April 2020 was a "relevant order" within the meaning of s 11(1) of the State Jurisdiction Act because it was an order of a federal court dismissing a proceeding relating to a State matter for want of jurisdiction. He submitted that, on this basis, the plaintiff was entitled to an order under s 11(2).
Mr Lloyd submitted that the Court could only make an order under s 11(2) of the State Jurisdiction Act if proceedings in the Federal Court had not finally been disposed of or, with respect to proceedings which had been dismissed, the Court could treat the proceedings as proceedings in this Court for the purposes of making an ancillary order such as an order for costs. He contended that his construction was consistent with what Austin J said in Damberg v Damberg and that, on that construction, s 11(2) of the State Jurisdiction Act would not extend to this Court having the power to treat a proceeding which has been dismissed by the Federal Court as being capable of being revived so as to permit the plaintiff to pursue the substantive relief in the dismissed proceedings.
I do not consider that what Austin J said in Damberg v Damberg in the passage extracted above ought be taken to have addressed exhaustively the ambit of s 11(2) of the State Jurisdiction Act. It concerned a different situation, that of an ineffective judgment, which was deemed to be a judgment of this Court by reason of s 6 of the State Jurisdiction Act. Accordingly, what his Honour said in the extract set out above ought not be taken as bearing on the present question, with which his Honour was not concerned in that case. I am not persuaded that s 11 ought be read down to confine the power of this Court in proceedings which have been dismissed by the Federal Court to the making of ancillary or consequential orders.
In my view, the order made by Griffiths J in the Federal Court on 24 April 2020 was a "relevant order" within the meaning of s 11(1) of the State Jurisdiction Act because his Honour dismissed the proceeding, which was related to a State matter, for want of jurisdiction. The effect of the order being a "relevant order" is that the plaintiff, as a party to the proceeding in which a relevant order was made, is entitled to apply to this Court for an order that the proceeding be treated as a proceeding in this Court and this Court is empowered to make such an order: s 11(2). It cannot, however, be said that the Federal Court proceedings have been "revived" since this analysis was rejected by the High Court in Residual for the reasons extracted above.
Accordingly, in my view, on a proper construction of s 11(2) of the State Jurisdiction Act, a proceeding which has been finally determined by the Federal Court may be treated as a proceeding in this Court and determined on its merits pursuant to s 11(2). The proceedings in this Court are new proceedings which are related to the Federal Court proceedings.

The second issue: is s 34 of the Commonwealth Carriers' Act a 'limitation law' within the meaning of s 11(1) of the State Jurisdiction Act?

Pursuant to s 11(3) of the State Jurisdiction Act, the effect of an order under s 11(2) is that the proceeding, despite the relevant order, becomes a proceeding in this Court which "for the purposes of any limitation law and for all other purposes" is deemed to have been brought in this Court on the day the proceedings were commenced in the Federal Court: s 11(3). This qualification on the operation of s 11 is the subject of the second issue.
As set out above, s 11(1) of the State Jurisdiction Act defines limitation law as including "any other law that provides for the limitation of liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced". While there is plainly a distinction, established by the authorities referred to above, between laws which bar a right of action and those which are effective to extinguish a right of action, I am not persuaded that this distinction is material to the classification of s 34 as a limitation law. Whether or not s 34 of the Commonwealth Carriers' Act bars a right of action, it limits the liability of the carrier by reference to the time when a proceeding on the claim is commenced. A carrier will, if other matters are established, be liable if the action has been brought within two years of the material date (in this case the death of the plaintiff's daughter). A carrier will not be liable if the action has been brought outside that time. Accordingly, I consider that the definition of limitation law in s 11(1) is apt to include s 34 of the Commonwealth Carriers' Act.
I add for completeness that whether s 34 of the Commonwealth Carriers' Act is a "limitation law" is not determinative since s 11(3) provides that the proceeding in the Supreme Court "for the purposes of any limitation law and for all other purposes" is deemed to have been brought in this Court on the day it was commenced in the Federal Court. Thus, even if s 34 were not a limitation law, the proceeding would still be deemed to have been brought in this Court on the day it was commenced in the Federal Court, subject to the answer to the third issue set out below.

The third issue: is s 11(3) of the State Jurisdiction Act inconsistent with s 34 of the Commonwealth Carriers' Act as enacted into law in the State of New South Wales by the NSW Carriers' Act?

The third issue arises if the second issue is answered in the affirmative.
When determining inconsistency, there is a distinction between the appropriate rule when construing statutes of the same parliament (such as the State Jurisdiction Act and the State Carriers' Act) and statutes of different parliaments (such as the State Jurisdiction Act and the Commonwealth Carriers' Act). Barrett J in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 (partially reported at (2003) 59 NSWLR 196) regarded the following as "settled law": "[111] … [T]he test of implied repeal is the test of contrariety or repugnancy. The covering the field approach taken in cases regarding inconsistency between State and Commonwealth statutes is not relevant in cases regarding inconsistencies between two State statutes. This is because there is a presumption that exists when comparing State statutes - and does not when comparing State statutes to Commonwealth statutes - that the legislature did not intend to contradict itself (see Butler per Fullagar J at 276, set out below). [112] In applying the contrariety test, courts have been guided by several principles. Three of these principles are relevant here. They are the presumption of consistency, the 'rule of commonsense', and the maxim generalia specialibus non derogant. [113] As to the first of these principles, the presumption of consistency, Fullagar J said, in Butler [Butler v Attorney-General (1961) 106 CLR 26] (at 275) that: 'The two Acts must be considered together, I would think, without any a priori assumption, but, if any assumption is to be made, it should be that the legislature believed its own Act to be valid: Wenn's Case (1948) 77 CLR 84.' Then (at 276) his Honour put the proposition in stronger terms, saying: 'It should be pointed out in this connection that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, paramount legislature, and there can be no presumption, either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other.'"
The effect of s 6A of the State Carriers' Act is to elevate s 34 of the Commonwealth Carriers' Act to the status of Commonwealth legislation. However, s 6A cannot, in terms, have the effect of transforming s 34 into applicable Commonwealth legislation. Thus, s 109 of the Constitution is not engaged. However, s 6A evinces an intention on the part of the NSW Parliament that s 34 is to have paramountcy over inconsistent provisions in the State Carriers' Act. The observations made by the High Court in Air Link about Proctor v Jetway Aviation indicate that s 6A of the State Jurisdiction Act makes a difference to the interpretation of NSW legislation since s 34 is not to be treated as having the status of a State law which has been incorporated into a State Act, but rather as having a higher status. There are obvious ramifications for the determination of inconsistency arising from the difference in status between s 11 of the State Jurisdiction Act and s 34.
Another principle is also relevant: if an Act purports to give effect to an international agreement, the court may take the agreement into account to resolve any uncertainty or ambiguity in the Act: Yager v The Queen (1977) 139 CLR 28 at 43-44; [1977] HCA 10 (Mason J). Thus, this Court is entitled and, indeed, bound to take into account the international agreements since the purpose of the Commonwealth Carriers' Act and the NSW Carriers' Act was to implement them into Australian law: s 33 of the Interpretation Act 1987 (NSW).
The State Jurisdiction Act purports to address proceedings which were commenced within time in the Federal Court but in respect of which this Court, but not the Federal Court, has jurisdiction. Section 11 of the State Jurisdiction Act is thus to be contrasted with s 48 of the Limitation Act in Timeny, which was a general section which permitted the Court to extend time limits which had expired. As was established in Residual, the proceeding in the Supreme Court is not the same proceeding as the Federal Court proceedings. This is evident from the wording of s 11(2), which expressly immunises the new proceeding in the Supreme Court from the effects of limitation laws.
The third issue is to be considered against the background of Art 29 of the Warsaw Convention which includes the time limit of two years. It is important to recall that the wording of Art 29.1, set out above, requires "an action" to be brought within two years of, relevantly, the date of the accident. If this does not occur, "the right to damages shall be extinguished".
In the present case, the plaintiff brought an action in the Federal Court within two years of the date of the accident. Thus, his right to damages was not extinguished under Art 29.1. However, it is common ground that his action was brought in a court which did not have jurisdiction to determine his claim to damages. Thus, his claim was dismissed and he brought a new, but related, action in this Court more than two years after the accident.
In order to determine whether his claim for damages was extinguished by s 34 (which purports to implement Art 29), it is necessary to address why the Federal Court did not have jurisdiction. As is evident from the authorities referred to above, the purposes of the international code of which Art 29 forms part include the conferral of valuable rights (to damages without the need to prove negligence or other wrongful act) on, relevantly, surviving relatives of those killed in air accidents and the limitation of carriers' liability (by specifying the time within which the action may be brought, two years, and by providing that the right to damages is extinguished after that time).
The reason why the Federal Court did not have jurisdiction was a matter internal to Australian law which was the result of a combination of factors peculiar to Australian law, including: the terms of the Constitution, the choice by the Commonwealth Parliament to implement its obligations under conventions such as the Warsaw Convention through dove-tailing Commonwealth and State legislation (the Commonwealth and State Carriers' Acts) and the decision in Re Wakim which limited the jurisdiction of Federal Courts. The mechanism by which signatories to an international convention comply with their obligations to implement laws to give effect to such conventions is a matter for each signatory which depends in turn on the legal and constitutional structure of each. These matters are matters of domestic law.
It is evident from Art 29.2 of the Warsaw Convention that matters of limitation are to be left to the domestic courts of signatory States. This does not mean that a general provision, such as s 48 in Timeny or Pt 20, rr 1 and 4 of the Supreme Court Rules can override the extinction of rights in Art 29.1 which takes effect two years after the accident. As referred to above, it is of importance in the present case that an action was brought within the two-year period and therefore the carrier knew that the plaintiff was making a claim in a court for damages in circumstances where the State Carriers' Act applied and the defendant would, on that basis, be strictly liable to the plaintiff.
The effect of s 11 of the State Jurisdiction Act, as explained by the High Court in Residual is to remedy the consequences of the Federal Court's lack of jurisdiction in State matters. That the States chose to remedy these consequences in the way provided for in s 11 may reflect constitutional considerations. The choice was dictated, or influenced, by domestic law. As Young J said of the State Jurisdiction Act in Blacker v National Australia Bank Ltd [2000] NSWSC 805 at [14]: "The statute is remedial legislation. Its purpose is to ensure that citizens are prejudiced as little as possible by the constitutional hiccups referred to earlier. The statute should be given a benign construction."
As referred to above, s 34 of the Commonwealth Carriers' Act, as incorporated into the State Carriers' Act, is entitled to precedence, by reason of s 6A. It is thus necessary to address whether the device provided for in s 11, which Kirby J in Residual described as having a "mechanical" purpose and involving the adoption of a "fiction", is inconsistent with s 34.
I am not persuaded that there is any inconsistency which cannot be resolved with due regard given to the precedence of s 34. While it must be accepted that the effect of the order made by Griffiths J was to bring the Federal Court proceedings to an end, in so far as the plaintiff claimed damages against the defendant for the death of his daughter, it does not follow that the proceedings in this Court ought be viewed as if there had never been proceedings in the Federal Court. Nor do I regard as persuasive the argument pressed by Mr Lloyd that, if the plaintiff's construction of s 11 is correct, the plaintiff would be entitled to claim damages in this Court ten years from now and be in the same position as in the present case where he commenced proceedings a matter of weeks after the dismissal of the Federal Court proceedings by Griffiths J.
It is plain from s 11(2) that this Court has a discretion whether to make an order under that section. Any delay between the order for dismissal and the commencement of proceedings in this Court would be germane to the exercise of the discretion. The decisions in Air Link and Agtrack also involved the exercise of discretion by a court. In those cases, the discretion was whether to allow an amendment to put beyond doubt that the plaintiff's claim was brought under the CACL Regime.
For these reasons, I am not persuaded that there is any inconsistency between s 11 of the State Jurisdiction Act and s 34 of the Commonwealth Carriers' Act, as made applicable to the NSW Carriers' Act by s 6A of the NSW Carriers' Act. Accordingly, s 11 applies in terms to the present case with the result that the plaintiff is entitled to the relief sought in the summons.

Costs

It was common ground that costs ought follow the event, in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

For the reasons given above, I make orders in terms of the summons as follows: 1. The Federal Court proceeding NSD2138/2019 be treated as a proceeding in the Supreme Court pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW); 2. The Federal Court proceeding NSD2138/2019 be recorded by the Supreme Court as a proceeding in the Supreme Court; 3. Declare that the Federal Court proceeding NSD2138/2019 is deemed to have been brought in the Supreme Court on 23 December 2019, being the date on which the proceeding was first recorded as a proceeding in the Federal Court. 4. Order the defendant to pay the plaintiff's costs of the proceedings commenced by summons on 11 May 2020.

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: 28 October 2020

Whether Civil Aviation (Carriers' Liability) Act 1959(Cth)s 34

Civil Aviation (Carriers' Liability) Act 1967(NSW)

Civil Aviation (Carriers' Liability) Amendment Act 1996(NSW)

Federal Court Act 1976(Cth)

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