Patel v Malaysian Airlines Australia Ltd

District Court of NSW|2010-12-14

Background 65.Mr Patel, was born in India in 1965. It was not clarified as to when he had arrived in Australia. He is now aged 45 years. He works as a sales consultant. He described himself as having had a " medical background " in India. That background was in pharmacy. He and his wife have family who have remained in Mumbai. Their son and daughter were also born in India, where they had a very large extended family.

The contracts 66.On 20 November 2008 Mr Patel approached a travel agency known as the Flight Centre in Chatswood, and purchased 2 economy class air tickets with Malaysian Airlines for his children to travel from Sydney to Mumbai and return : Exhibit "M", Tab 1. For the purposes of the contract, those agents were the agents for Malaysian Airlines. 67.The tickets issued for the bookings in question constituted the contracts of carriage between Mr Patel and the airline concerning the travel of his children to India and return. It was a term of these contracts with Malaysian Airlines, that Mr Patel's son and daughter, who were then aged 15 and 12 years respectively, would be able to each travel with 30kgs of check-in luggage with an allowance of 7kgs of carry on board hand luggage in addition to those 30kgs. These were representations made to Mr Patel by or on behalf of Malaysian Airlines when he purchased the two tickets in question.

Breach of contract 68.It is common ground, as was acknowledged by Malaysian Airlines, that on the afternoon of 22 January 2009, due to inexperienced trainee ground staff being on duty at the check-in counter in Mumbai when Mr Patel's children sought to check in for their booked flight to return to Australia, an error was made by the staff on duty in reviewing the agreed terms of travel. That error led to it being asserted to Mr Patel's children that their check-in luggage entitlement was less than 30kgs per passenger. 69.I find that on the day in question the airline's ground staff misleadingly and deceptively misrepresented to Mr Patel's children that they were not entitled check-in luggage to the extent they had presented for check-in, leaving to one side for the moment the question of whether the check-in luggage limit was asserted to be 20kgs or 25kgs, exclusive of the hand luggage allowance. 70.I find that Mr Patel purchased the two tickets in question in reliance on the 30kg per passenger check-in luggage entitlement representations. I also find that at the time Mr Patel purchased the two tickets in question, it was misleadingly and deceptively represented to him that the ticket holders would be entitled to each carry 30kgs of checked-in luggage in addition to their agreed hand luggage. I consider that this misrepresentation is relevantly proven by the fact that the ticket holders, contrary to the agreement, were not permitted to each check in 30kgs of luggage. The consequences of that conduct is a subject to which I shall return.

Discarding of luggage at Mumbai airport by Mr Patel's children 71.I find that in reliance on the representation at the time of ticket purchase that there would be a 30kg per passenger check-in luggage allowance, Mr Patel's children attempted to each check-in that weight of luggage at Mumbai Airport. 72.Mr Patel does not assert that his children's 2 luggage bags were accurately weighed at check-in at 30kgs each. Instead, he has provided an estimate of the respective weights by considering the nature and quantities of the discarded garments in order to arrive at an estimate. That estimate was obviously reconstructed from accounts given to him by his children, and is necessarily hearsay. 73.The question is not whether the evidence should be accepted because it is hearsay because I am allowed to receive hearsay information in these proceedings : s 28(2) of the CTTT Act. The issue here is whether it is open to dispute that the discarded luggage weighed 20kgs in total. I shall return to this topic shortly. 74.I find that as a result of the excess luggage misrepresentation directed at Mr Patel's children by check-in staff at the Malaysian Airlines counter at Mumbai airport, Mr Patel's children responded by acting and relying upon that misrepresentation, and they did so by removing layers of garments and gifts that had been packed in the top layers of their bags, as claimed by Mr Patel. 75.In support of his claim, Mr Patel has submitted a tabulated schedule setting out 7 categories of items that he claims were discarded : Exhibit "M", Tab 37. Within that schedule, amongst other things, he has included estimates of the types of garments and the number of garments that were discarded by his children. He carried out this exercise by consulting his children, his maternal parents-in-law, and his own father, who between them, had provided the majority of the items in question as gifts, including items of traditional Indian dress costume. 76.As would be considered natural in the circumstances, the items being gifts, there was no inventory of the discarded garments, and there were no invoices or receipts for these items. When Mr Patel was challenged in the context of the CTTT hearing to the effect that he had no proof concerning these items, and that he required such proof, on the incorrect assumption that by his own evidence he was not able to provide an estimate of the quantity or the value of the discarded goods, he had subsequently attempted to obtain that evidence from his father and from his wife's parents. 77.It is clear that such requests resulted in incredulous and indignantly expressed refusals, as evident from Exhibit "M", Tab 36. I infer the indignant responses from Mr Patel's father and Mrs Patel's parents were due to cultural considerations. I did not consider their responses unreasonable in the circumstances. Nor do I consider it remarkable that in the context of this dispute, that Mr Patel would have provided them with assistance in the preparation of those responses, as he acknowledged in his evidence. 78.On this question, on behalf of Malaysian Airlines, a credibility challenge was mounted against the notion that some 62 claimed items of clothing could have been dumped at Mumbai airport on the occasion in question. 79.That challenge was based on a number of propositions. These were that it was simply not feasible that there could have been some 62 garments as described, contained in the bulk of the suitcases before the discarding took place. Another proposition relied upon for the challenge was that having regard to the after the event photographs of the airport terminal, its check-in counter, the bins, the description of these areas and Mr Florindo's description of the security arrangements that were then in place, it was unlikely that garments could have been discarded to the extent claimed. 80.The suggestion was that security personnel would have been alerted to the presence of such a quantity of abandoned goods, and there was no record of this having been noted, and the size of the garbage bins in the vicinity of where the goods were discarded would not have been of sufficient size to contain discarded goods of the assumed weight and proportions. 81.For a number of reasons, I do not consider these challenges to be an effective answer to Mr Patel's claim. 82.First , there is an assumption implicit within the challenge that discarded goods of the kind described would necessarily have alerted security staff and would have attracted adverse attention, and that a record of the fact would necessarily have been made. As Mr Florindo agreed, those matters depended on the context, and in this regard, a process of discarding luggage in the presence of, and at the request of, airline staff, may not necessarily have attracted the degree of security attention that was argued would have been the case. 83.Secondly , there is another implicit assumption that the goods were in fact binned. This was not the evidence. The evidence was that the goods were simply discarded. Then there is the further assumption that the bin at the airport that was photographed and measured for evidence was necessarily the same bin as that which was present on the day, or that bins were there in the same quantity and geographic distribution as was shown in the photographs. In my view, these are unwarranted and speculative assumptions. 84.Thirdly , there was no adequate foundation in the evidence to suggest that the baggage items in question were of a kind, type or dimension that did not have the capacity for carrying goods of the claimed weight, or whether or not the bags were of the expandable variety and could have had taken the weights in question. There issue of the bulk of the garments was not explored in any relevant detail in the evidence so as to cast doubt upon Mr Patel's evidence. 85.Fourthly , there is a further implicit assumption that the goods were simply left on the floor, and were not cleared away by cleaners, or by other passengers waiting in the queue, or by airport staff, or by security personnel who took no steps to make a written record that was accessible to Mr Florindo. 86.The above analysis is not intended to be exhaustive because I find it is unnecessary to proceed in further detail along that pathway. This is because the uncontested facts are that Mr Patel's children were each entitled to carry 30kgs of luggage: Exhibit "M", Tab 3. 87.Subsequently, when Mr Patel sought the assistance of the Department of Fair Trading in order to have his complaint looked into, on behalf of Malaysian Airlines, Ms Everett provided information to that department of sufficient specificity to warrant the department writing to Mr Patel on a date in early 2009 which is not clear, but stating that " ... due to error with the Bombay check in staff, only 20 kg were allowed " when 30kgs was the actual baggage entitlement : Exhibit "M", Tab 9, page 1 paragraph 3. 88.Subsequently, on 30 April 20009, Ms Everett wrote to the CTTT on behalf of Malaysian Airlines confirming that the baggage allowance was in fact 30 kg per passenger, and that "... Unfortunately, on the return journey, Malaysia Airlines staff in Mumbai neglected to check the ticket details, and only allowed a baggage weight of 20kgs per passenger with 5kgs grace, being a total of 25kgs per passenger plus 7kgs in cabin luggage " : Exhibit "M", Tab 12, page 1. 89.Without at this point re-opening the debate as to whether it was 10kgs or 20kgs that was discarded, and whether it was 2 lots of 20kgs that was allowed rather than 2 lots of 25kgs, it is not disputed that a significant amount of goods were discarded by Mr Patel's children. 90.In my view, for the purpose of deciding whether it was credible that goods were in fact discarded as claimed, it is plain that there was a significant quantity and weight of discarded garments. I do not regard the arguments raised in an attempt to contradict those propositions to be cogent or credible, as those arguments would seem to apply equally to a significant bulk of discarded garments, whether they would have weighed 10kgs or 20kgs in weight. 91.In these circumstances, I consider that Mr Patel's evidence, based though it was on hearsay accounts obtained by him from his 2 children and from their grandparents, should be accepted. In my view, that evidence was not inherently improbable, and when analysed as I have outlined as above, it was not relevantly, compellingly or necessarily displaced by the evidence of airport practices at Mumbai that was outlined in the evidence of Mr Florindo, whose evidence was, and could only have been, given in general and non-specific terms in the circumstances of his limited knowledge of the events. 92.In my view, there is nothing that emerged from the evidence of Ms Everett or Mr Florindo, or from the documents and photographs tendered, or from the challenges made to Mr Patel's evidence by cross-examination, or in argument, that persuades me otherwise than to accept as reasonable, the evidence given by Mr Patel on the issue of the extent and description of the discarded goods.

Concluded weight of the discarded luggage 93.When the dispute was before the CTTT, the parties were at issue as to the weight of the goods that had been discarded from within the luggage. In the CTTT, Mr Patel's claim was for 20kgs of discarded luggage. In the CTTT, the position advanced by Malaysian Airlines was that only 10kgs of luggage was discarded. 94.That issue was adjudicated upon and resolved with a finding of fact by the Tribunal Member, who determined the dispute between the parties by entering a finding that the discarded luggage weighed 20kgs as claimed by Mr Patel. The finding was stated in the reasons for the decision of the Tribunal, following terms : "I find that on Mr Patel's evidence that 20 Kgs was discarded ..." : Exhibit "M", Tab 13. 95.The above finding was based upon an adjudication of the best evidence the parties chose to produce to the CTTT hearing on the day the dispute was determined. At the time I determined the first phase of this appeal, I considered that the finding I have identified, having been made on the basis I have identified, should not be disturbed or re-litigated. 96.It was for that reason that I set aside the decision of the orders of the Tribunal save for the finding as to 20kgs of luggage having been discarded : paragraph [182(b)] of my reasons dated 26 March 2010. In my view, subject to assessing compensation for the value of those 20kgs of discarded luggage, that is the end of the issue. 97.Notwithstanding those findings, and notwithstanding my clear indication, for the reasons I have given, that I considered the issue of the weight of the discarded luggage to have been finally determined, Mr Davis, counsel appearing on behalf of Malaysian Airlines, nevertheless continued to agitate the issue of the weight of the discarded garments, with a view to protecting the interests of his client on the issue, in the event of a successful appeal from my findings in the matter. 98.It was on that basis that I allowed some cross-examination of Mr Patel to proceed on that issue, and for some of the evidence to be called from Ms Everett, Mr Florindo, as well as tender by the defence of a number documents. I decided that in the circumstances, that evidence and those documents should form part of the record to allow for the possibility of a successful appeal from my findings. However, consistent with my earlier finding, I have not had regard to any evidence that derogated from the finding in the CTTT that 20kgs of luggage was discarded by Mr Patel's children at Mumbai airport on the day in question.

Mr Patel's advance request for provision of assistance to his children 99.A factual and credit issue emerged as to whether Mr Patel had pre-arranged for his children, who were not accompanied by an adult on the flights in question, to be assisted by airline ground staff in the course of the journeys covered by the tickets. Mr Patel claimed that it had been arranged by him with a person named Karen at the Chatswood Flight Centre travel agency, for this to occur. 100.Malaysian Airlines disputed that assertion on several bases, these being the absence of a record within its own records system for a request for such assistance to be provided, and secondly, on the basis of the products of enquiry made by Ms Everett of the Chatswood Flight Centre staff on 17 May 2010, as set out in paragraphs 68 and 69 of her affidavit sworn on 26 July 2010. 101.Ms Everett's account of her 17 May 2010 telephone conversation with Ms Straub of the Flight Centre at Chatswood was that the employee named Karen, who took the booking in question, no longer worked at the agency, and that Ms Straub's check of the booking records showed no request for assistance for Mr Patel's children had been placed with the booking. 102.Mr Patel's account of the relevant events is different. First , there was his direct evidence that he had asked for this type of assistance at the time he made the booking. Secondly , his communications with the Flight Centre on 27 July 2010 which was the very day he had been served with a copy of Ms Everett's affidavit, indicated that Ms Straub had only limited access to the booking information, and since so much time had passed, and the former employee Karen was not available, she was unable to confirm whether or not assistance was requested. When Mr Patel subsequently raised with Ms Straub the effect of Ms Everett's account as outlined in the affidavit, Ms Straub indicated to him that if Ms Everett had rung the agency, she would have been given the same information as was provided to him, namely, an inability to either confirm or deny whether assistance was requested, as she could no longer see the booking : Exhibit "M", Tab 20. 103.Whilst it possible that the booking information in question had become unavailable to Ms Straub between 17 May 2010 and the time of her last email sent to Mr Patel on the subject on 27 July 2010, without specific evidence as to the records system and its workings, I will not speculate on whether that is the explanation for the stated unavailability of the information as indicated to Mr Patel by Mrs Straub. 104.On this issue, I have concluded that I prefer the direct evidence of Mr Patel to the hearsay evidence related by Ms Everett as to whether he had made arrangements with the travel agents for his children to be escorted for the ground components of the journey, including check-in. 105.I have concluded this to be the case because I am persuaded that Mr Patel's evidence on this issue was correct, and because he provided evidence that his children were assisted in this way on the outward and inward bound journeys, as was conceded by Ms Everett. In my view the absence of airline stamps or staff signatures on the " Young Passenger Travelling Alone Form " copied by Mr Patel at Exhibit "M", Tab 5, and later tendered by Mr Patel in its original form as Exhibit "R", does not stand in the way of such a finding. 106.I accept Mr Patel's evidence that the document in question was handed to him in Sydney by the airline staff when he met his children at the airport on their return to Australia. In this regard, I accept Mr Patel's evidence that the spelling of the names of his children confirms the form had been annotated by others. In my view this document tends to support Mr Patel's evidence that he had pre-requested that such assistance be provided to his children. 107.In any event, I do not consider the question of whether or not assistance was requested by Mr Patel, or whether such a request had been entered into the airline's booking record, is of great relevance to the question of breach of contract, or whether the provision of ground support to Mr Patel's children in Mumbai would have made a material difference. I have set out the analysis on this issue as an indication of part of my evaluation of the credibility of Mr Patel's testimony, and this analysis persuades me that he approached the task of providing and giving evidence carefully and truthfully, notwithstanding that he did not have the professional assistance of a lawyer. 108.In my view the issue of whether or not a request was made for assistance to be provided to Mr Patel's children had or had not been entered onto the airline's booking or records system is immaterial to the issue of causation of loss in this case. The children were not of tender ages. They were not infants. They were teenagers, and their need for assistance was relatively limited. The luggage problem with which they were confronted at the airport at Mumbai was not of their making. I find that but for the error on the part of the airline counter staff at Mumbai in not checking the ticketing conditions for Mr Patel's children and in not honouring the representation that 30kgs would be allowed as check-in luggage, the problem under consideration, and the need of Mr Patel's children for assistance, would not have arisen. 109.I consider that the response of Mr Patel's children to that situation, as recounted by Mr Patel, was consistent with what polite and well mannered children would have done out of respect for a directive given to them from someone in authority. 110.Whilst I accept the explanation given by Mr Florindo to the effect that the need for Mr Patel's children to have escort assistance was an issue that had been picked up by airline staff after the children had been checked in, and therefore only really arose because of a concern in his mind, after he had become alerted to their existence, because there was a possibility they could become lost causing delays during a transit stop-over in Kuala Lumpur, that is not the end of the analysis. 111.In my view, the check-in staff at Mumbai should have been sufficiently alert to the problem caused to Mr Patel's children at the time when the counter staff erroneously decided that luggage in excess of 20kgs was not going to be loaded for them without prior payment of excess baggage charges, that a situation of concern was then evolving, and that this involved the discarding of luggage by young persons who were, according to the check-in records, self-evidently travelling unaccompanied by a responsible adult. 112.In those circumstances, I consider that some basic effort was required to assist Mr Patel's children by at the very least, properly reviewing the ticket with them, at which time the problem would have been solved by a proper consideration of the ticket conditions. Alternatively, efforts should have been made to provide Mr Patel's children with some basic assistance in the face of an evolving state of upset and distress on their part. It appears that neither of these alternatives was pursued. 113.It was no answer to the problem to suggest, as was argued, that Mr Patel's children made no contact with relatives or friends in Mumbai to help them when the problems arose, or that they arguably failed to avail themselves of the opportunity to post or forward freight the excess luggage to Sydney, as was suggested in the evidence of Ms Everett. The children had no credit cards, they only had pocket money with them, they did not have a working mobile telephone, and they were upset. There is no evidence that any employee of Malaysian Airlines, or anyone acting on behalf of the airline, or an airport employee, came to the assistance of Mr Patel's children, as would be expected as a matter of ordinary consideration towards young persons in apparent distress. 114.In contrast, an early undated letter from Ms Everett, on behalf of Malaysian Airlines, addressed to the Commissioner for Fair Trading expressed the view of the airline in the following terms, after acknowledging error on the part of the check-in staff, and apologising for same: "However, had Mr Patel's children elected to pay for the additional 10 kgs per passenger in excess baggage, Malaysian Airlines would have reimbursed them for the amount on production of a receipt for excess baggage. Unfortunately, on this occasion, as Mr Patel's children elected to discard some goods rather than pay for the excess baggage, we are not able to reimburse Mr Patel as requested. ... Once again, we sincerely apologise to Mr Patel for the shortfall in our services at check-in at Bombai Airport, however, we are unable to reimburse the cost of the goods dumped as it was Mr Patel's children (sic) choice to do so." [Emphasis added] 115.In the circumstances, I consider that the position evident in that letter to have been somewhat unrealistic, and of a stonewalling character, since at the time, Mr Patel's children had no money available to enable them to follow such a course. In the situation in which they found themselves, the use of the word " elected " to describe the discarding of luggage, provides no justification for the loss that ensued. 116.It was plain from the fact that Mr Florindo had been flown to Sydney to give evidence at the hearing, that Malaysian Airlines had used its resources to examine it's rosters to ascertain the fact that he had been on duty at Mumbai airport on that afternoon, a fact that led to the decision to call him as a witness. 117.It is also is plain that in the context of the dispute between the parties as to what actually happened during the events that occurred at the airport in Mumbai, and from the fact that at an earlier directions hearing, I raised the question of whether the incident of the discarding of luggage may have been recorded on the airport closed circuit security television cameras, and whether such recordings, if they existed, would be of assistance in resolving any disputed matters of fact, it was revealed at the hearing that the issue had in fact been followed up, and as a result, it had been ascertained that any such recordings that may have existed, had been discarded after a lapse of 3 months. 118.In view of the fact that evidence had been obtained from Mr Florindo, and in view of the negative result of the enquiry as to whether CCTV security recordings were in existence, Mr Patel embraced the proposition that it would have been surprising if Malaysian Airlines had not taken the investigatory step of examining the rosters of check-in staff allocated to work at its Mumbai check-in counter on the day in question, in order to seek evidence from such personnel, if indeed such evidence was of assistance to the case that Malaysian Airlines were seeking to make. 119.Mr Patel submitted that it would have been surprising if those resources had not been employed in the way outlined. The submission proceeded to make the point that I should therefore infer that whatever the rostered check-in staff were able to say on the matter, it could not have been supportive of the Malaysian Airlines case, and it could not have been contradictory of Mr Patel's case, for otherwise, a witness from this category of persons would have been expected to have been called to give evidence, just as Mr Florindo had been called to give evidence. 120.As attractive as that proposition appears to be on a superficial examination, I consider that more is required in the form of evidence of the likely terms of such possible evidence, before a non-speculative adverse inference of the kind sought to be drawn, could in fact be drawn : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.

Effects of the events at Mumbai on Mr Patel's children 121.Mr Patel gave hearsay evidence of the upset and distress that had been experienced by his children in the events at Mumbai airport. The hearsay nature of that evidence was objected to, however I admitted that evidence, consistent with my earlier indication, having regard to s 28(2) of the CTTT Act , that the proceedings were not bound by the rules of evidence. 122.Malaysian Airlines had been on some considerable period of notice that such evidence was likely to be given in one form or another, namely by direct evidence or by hearsay. If it wished to test or challenge that evidence it could, if it wished to do so, have appointed an expert medical or psychological examination of Mr Patel concerning his claimed reaction to what his children had told him. That was a course permitted by the Uniform Civil Procedure Rules 2005, Pt 23 r 23.4. I was not informed as to whether or not this in fact had occurred. 123.Mr Patel made it clear that he did not want to call evidence from his son or from his daughter as he did not wish to expose them to the stresses of the litigation process : Exhibit "F", paragraph [44]. In my view this is an understandable parental reaction, as it is commonly understood that the legal process can at times be corrosive to the feelings of individuals. On behalf of the Malaysian Airlines, Mr Davis submitted that such a protective parental attitude was perhaps understandable, but that decisions of that kind had consequences for the course and result of the litigation. 124.In my view, if it had chosen to do so, Malaysian Airlines had a full and unfettered opportunity to explore, test, traduce or challenge any aspect of the evidence given by Mr Patel, including any evidence he gave as to the experiences and reactions that his children had related to him concerning their experiences in the events in question in Mumbai, quite apart from his own observations of the reactions of his children when they related the events to him. 125.It was not put to Mr Patel that he could be incorrect about his perceptions or interpretations of the reactions of his children to the events. Neither was it put that his evidence in this regard was exaggerated. Accordingly, as the evidence of the foundation reactions of Mr Patel's children was not challenged other than on grounds of hearsay, having regard to the entire circumstances that I have reviewed, I did not consider Mr Patel's ultimate reliance on hearsay evidence concerning the reactions of his children to the events that occurred to them at Mumbai airport, to involve procedural unfairness such that I should disregard such evidence, in view of the facilitative approach permitted by s 28(2) of the CTTT Act . 126.I take this view because of the general objects of the CTTT Act , which is to promote the determination of disputes in an informal, fair, expeditious and, ironically in this case, an inexpensive manner : s 3 of the CTTT Act . 127.At an early stage of the dispute, on 24 March 2009, Mr Patel advised Ms Everett, then of Malaysian Airlines, that his children had gone through a very bad experience in the events in question. The email to Ms Everett dated 24 March 2009, being Exhibit "M", Tab 8 stated : " ... I just initiated this action as it was very bad experience for my kids and your ground staff never care for feeling and emotional kids. ... I hope you will understand pain, agony of kids ..." 128.The sentiment within that letter was at odds with the sentiment expressed in the Malaysian Airlines letter dated 30 April 2009 from Ms Everett to the CTTT, in which it was stated : "In correspondence with our Mumbai Airport Manager and staff there is no evidence of Mr Patel's children being harassed or mishandled in any way by check in staff. Our staff have been trained to offer every assistance to all passengers. Mr Patel's children would not have been treated any differently or discriminated against." 129.It is clear that from an early stage, through correspondence, Mr Patel had been complaining about his children having been harassed in the events. I find that contemporaneous evidence to be corroborative of the asserted facts. 130.The accounts given by Mr Patel of what his children had told him indicated that Malaysian Airlines staff had given them two choices, to either pay the excess baggage charges, which they could not have done, or to discard the excess luggage down to 20kgs per passenger. It is understandable that in such circumstances Mr Patel's children could have felt harassed. 131.As a result of the events, Mr Patel's children told him that they felt unhappy, disappointed, frustrated, upset, hurt and distressed by the treatment received from Malaysian Airlines. They told him that during the journey, they felt insecure and had lost their enjoyment to travel, eat and sleep, due to these events : Exhibit "A", paragraphs [34]-[34]. Mr Patel's children described similar feelings in the material submitted on their behalf by Mr Patel : Exhibit "C", paragraph 29]. They also described feeling sadness, disappointed mood, frustration and tension due the discarding of the goods : Exhibit "C", paragraph [26]. 132.Mr Patel recounted that according to his children, no one came to console them during the flight : Exhibit : "E", page 4; Exhibit "F", paragraph, [33] and [38]. In the material submitted on their behalf, Mr Patel's children reiterated their feelings of inconvenience, distress, pain, agony, suffering, and sleeplessness during the journey home : Exhibit "F", paragraph 39. 133.At the CTTT hearing it was recorded that Mr Patel had stated his children had been harassed for a period of 15 hours. From the context in which those remarks arose, I infer that he was speaking of the interval of time that had passed between the time when Mr Patel's children checked in at Mumbai airport, until the time of their arrival in Sydney. 134.I accept Mr Patel's evidence that when he met his children on their return to Sydney, he became aware that they were upset, that they had cried, and that they had been upset during their journey as a result of the unfortunate baggage incident at Mumbai. 135.On the evidence presented by Mr Patel, I am satisfied that his children had suffered emotionally, and were upset and distressed due to the events complained of in Mumbai. This finding is a necessary precursor to any consideration of the effect these events had upon Mr Patel, which is in turn relevant to a determination of Issue 2 in these proceedings. 136.An indication of the extent to which Mr Patel's children had been affected by the events in question was that they had insisted on him lodging an online complaint on the Malaysian Airlines website on the day of their arrival home, as well as requiring him to give them his assurances that he would take action to follow up the complaint. He said, and I accept, that his children demanded these things of him before they allowed him to go to sleep on the evening of the day they arrived home.

Effects of the events at Mumbai on Mr Patel 137.It was plain from the evidence, on the return of his children to Sydney, that Mr Patel was inconvenienced, distressed and vexed by the description of the events in Mumbai that had been reported to him by his children, and by the events themselves. 138.In his written material, Mr Patel made the point that quite apart from the loss of the value of the goods in question, because the goods were gifts, the issue was also the emotional attachment to the goods that had been discarded : Exhibit "H", paragraph [47]. 139.Mr Patel claimed that the harassment of his children, along with the associated pain, suffering, distress and inconvenience they felt, had a major and adverse effect on his own health, which he described as being pre-diabetic, and involving cholesterol issues. Mr Patel has not put forward any medical evidence that would lead to the conclusion that his heath has been detrimentally affected by the events. Mr Patel stated that as he was from a medical background, he was not dependent upon medical or psychiatric advice : Exhibit "H", paragraphs [48]to [49]. Exhibit "2" revealed that Mr Patel's medical background was that he had worked as a pharmacist. It was not clarified as to whether this background relevantly arose in India or in Australia, or both. 140.Mr Patel provided some serology reports relating to his health, in particular results of serial testing of his blood sugar levels and cholesterol. These reports did not provide a relevant comparison between results that preceded the events of 22 January 2009 and the test results that followed in the period since then : Exhibit "H", Annexure "A". Without expert medical evidence interpreting those results I am constrained from drawing my own conclusions from those test results : Strinic v Singh [2009] NSWCA 1. 141.Mr Patel was cross-examined about his prior health history. He acknowledged that he had a prior history of gastric reflux, elevated blood sugar levels and raised cholesterol. He also acknowledged that in 2008, he had suffered from a period of depression. He said that at that time, he found himself struggling to find a job. He said, and I accept, he was never on medication for this, and after a time, that is before the events which are the subject of this case, he was " okay ", from which I infer that he had recovered from his period of depression. In my view, this evidence was credible and not glaringly improbable. 142.Malaysian Airlines tendered some extracts of Mr Patel's medical records copied from documents produced on subpoena. The records from Mr Patel's general practitioner revealed a notation on 6 November 2008, in the context of him and his wife developing a business where there were insurance and finance issues and where he had taken a financial loan in circumstances where people had taken advantage of him. 143.It appeared from the notes that over a period of 9 months, he had been very depressed and had sleeping difficulties. The notes are not entirely clear, but it appeared that he had taken 5 - 10 mgs valium tablets for a short time. By 22 November 2008, which was 2 days after Mr Patel had purchased the tickets for the travel of his children to Mumbai, it was noted that his sleep had improved, his mood was good, he was feeling more optimistic, and he had not been taking valium. 144.The general practitioner's notes confirmed Mr Patel's evidence, and referred to his gastro-oesophageal reflux disease or GORD, for which he was taking medication, as well as a history of feeling anxious and depressed with stress and tension issues at work. The records showed he received dietary advice as well as advice from an exercise physiologist in respect of his blood sugar issues with a view to weight reduction and achieving euglycaemia, or a normal blood sugar levels. 145.Malaysian Airlines tendered the report of a psychiatrist whom Mr Patel had consulted on 6 November 2008 and again on 22 December 2008. The report to the general practitioner concerning those consultations was dated 10 December 2008 : Exhibit "3". That report essentially confirmed the history earlier summarised, and focussed mainly on financial issues and Mr Patel's inability to pay debts. This report confirmed that after taking 5 - 10 years of valium at night Mr Patel's sleep had improved. Any previous psychiatric, drug, alcohol, forensic or family history issues were excluded. It was noted that on the last consultation on 22 November 2008, he was reporting better mood, better sleep and was generally more optimistic. This was in keeping with the evidence Mr Patel had given. 146.There is therefore no evidence that the events in question had caused any exacerbation or recrudescence of any earlier medical problems of a psychological nature that had previously affected Mr Patel. 147.Mr Patel described himself as having been under stress, and he related that stress as being associated with this case. This was against the background of the improvement in his earlier problems with stress, tension and work issues : Exhibit "2", p 4. 148.Mr Patel stated, and I accept, that he saw this case as involving a fight for justice for his son and his daughter. He stated that he found himself in a sad condition in these events. I do not regard anything within Exhibits "2" and "3" as relevantly contradicting that self-assessment. 149.In this regard the defendant must accept and take the plaintiff as he is found. It is no effective answer to Mr Patel's complaints of distress and sadness to point to his earlier history of tension, sleeplessness and depression, especially where Mr Patel has not claimed an exacerbation of those conditions. 150.Having heard Mr Patel's evidence, having reviewed the exhibits he has tendered, and having regard to the evidence he has given, as well as considering the tone and content of his exhibits, I am left in no doubt that Mr Patel has suffered a good deal of emotional distress due to the events in question and that has evolved and continued to this time as a result of those events. Expert medical evidence is not a pre-condition for reaching this conclusion. 151.Mr Patel has also expressed his indignation at having his image tarnished in the aftermath of these events, which I interpret to mean he was upset that his integrity was doubted in the context of the claim that he has made: Exhibit "F", paragraph [22], for example, and elsewhere. 152.Mr Patel has asked that in these proceedings, consideration be given to his losses, both financial and non-financial : Exhibit "F", paragraph [38], and in other places. 153.Mr Patel's evidence left me with the very firm concluded view that he saw himself as being locked into a " t ough " battle with the " muscle-power " of a large, well resourced organisation : Exhibit "F", paragraphs [44] to [48], for example. 154.The events in question have left Mr Patel feeling sad and disappointed : Exhibit "F", paragraph [52]. In my view, Mr Patel has become obsessed with the wrongs he perceived had been occasioned to his children, and to himself, by Malaysian Airlines employees. Consequently he has embarked upon a quest to seek to right those wrongs. 155.As Mr Patel has not tendered any medical evidence on the issue of the possible psychological effects of these events on him, including any possible effects of these events upon his general physical health and wellbeing, any approach to the assessment of damages for compensation must proceed on the basis that the events in question have simply caused Mr Patel to become distressed, inconvenienced, disappointed and vexed. This conclusion should not be interpreted as being in any way deprecatory of Mr Patel's genuineness, or deprecatory of the sincerity of his feelings of grievance that arise from the events. 156.In my view, there is nothing that emerges from the evidence from within Mr Patel's tendered medical records that diminishes his claim of having been adversely affected by the events, as he has described.

Issue 1 - Compensation for discarded luggage 157.I am satisfied to the required standard of proof, on the balance of probabilities, that Mr Patel's children discarded items of luggage from their baggage at Mumbai on 22 January 2009. 158.I do not propose to further review, or to have regard to the evidence by which Malaysian Airlines seeks to dispute that the discarded goods weighed 20kgs, as was claimed by Mr Patel. This is because the finding of the CTTT was that 20kgs was discarded. That finding has not been set aside in the appeal, and it still stands. In my view, in these circumstances, Malaysian Airlines is estopped from denying the effect of that finding. 159.I make the observation that the only reason I permitted Malaysian Airlines to introduce evidence seeking to contest the weight of the discarded goods was to allow for the event of an appeal, as was intimated, in which case the availability of such evidence would enable the Court of Appeal to have that evidence before it for consideration, in the event it were to find that my estoppel finding was wrong, and it was determined that in the circumstances, a different basis should be employed to quantify the value of the loss of the discarded luggage. 160.As to the quantification of Mr Patel's loss, on behalf of Malaysian Airlines, it was submitted that Mr Patel had not produced adequate evidence to justify his claim for the value of the discarded luggage. I do not accept that submission for the reasons that follow. 161.The factual context of that submission was that the discarded goods comprised gifts from Mr Patel's very large family in India. In this regard, Mr Patel made the very valid point that it would be remarkable that such gifts, consisting of garments, would be the subject of retained receipts or other means of proof of purchase, so that the value of the goods could be accurately valued in the event of a loss through whatever means. I accept that submission. 162.In the absence of the availability of a packing inventory for the goods, and in the absence of invoices and receipts, it is incumbent upon Mr Patel to provide some reasonable evidence of the extent of the loss, and some reasonable means by which the value of the loss could be measured. 163.Mr Patel has stated, and I accept, that he has done the best he can to estimate the value of the loss in the circumstances in which he finds himself. In this regard, he has pointed to the schedule of categories, items and values that he has prepared. The effect of his submissions is that in the circumstances, this schedule represents a reasonable method of quantifying his loss : Exhibit "M", Tab 37. 164.I find that the schedule in question had been prepared after Mr Patel had consulted with his children and with their grandparents, in order to prepare an estimate of the value of the discarded goods for the purpose of these proceedings. In this way, I consider that the amount of $2380, as is identified in the schedule, is both fair and reasonable. I do not consider the items or the amounts to be exaggerated, or to represent anything other than a modest estimate. I accept that but for the operation of the Warsaw Convention Article 22, as modified by the Montreal Protocol No 4, the sum of $2380 represents a fair quantification of the loss, and I so find. 165.Notwithstanding the acceptance of that evidence, Malaysian Airlines nevertheless submits that on an application of the Article 22 quantification formula for valuing the loss of baggage, as modified to reflect the obsolescence of the French franc, the maximum amount that could be awarded for this loss is $1489.07. 166.Malaysian Airlines submits, and I accept, that the facts of this case engage the Warsaw Convention because this is stipulated to occur once passengers walk through the entrance doors of an airport in order to board an international flight : Articles 18, 21 and 22 of the Warsaw Convention. 167.Accordingly, notwithstanding my acceptance of Mr Patel's evidence that the discarded goods had a higher value, I find that Mr Patel's entitlement to damages for the value of discarded luggage is to be calculated in accordance with the modified Warsaw Convention formula 250 x 65.5 x 20 x $AUD 0.00454680, which yields $1489.07. 168.In my view, Mr Patel is entitled to interest on the assessed loss of the value of the discarded baggage at $1489.07. This is because according to conventional analysis, the defendant has had the benefit of this sum of money since the time the loss had occurred. I therefore assess pre-judgment interest on that amount in the sum of $277.62, as calculated in the Appendix to my reasons, according the rates prescribed by UCPR Sch 5 and Practice Note DC (Civil) 15.

Issue 2 - Damages for vexation, distress and inconvenience following breach of contract 169.In giving my reasons for allowing the appeal from the decision of the CTTT, I reviewed the authorities along the lines of Baltic Shipping Company v Dillon (1993) 176 CLR 344 concerning the availability of an award of damages for vexation and distress : Patel v CTTT & Malaysian Airlines Australia [2010] NSWDC 38 at paragraphs [110] to [113]. To that review I would also add a reference to Leitch & Ors v Reynolds [2005] NSWCA 259. 170.In Leitch , at paragraphs [113]-[114], Santow JA, with whom Young CJ in Eq and Campbell AJA (as their Honours then were), rejected a submission that mere disappointment due to breach of contract, and vexation related to the litigation rather than to the underlying tortious act, represented an insufficient basis for an award of damages, following the decision of the High Court in Baltic Shipping Company v Dillon. 171.In final submissions, on behalf of Malaysian Airlines, it was submitted that no damages were awardable for the vexation and the like that emanated from the course of this dispute. On the basis of the authority of Leitch that I have cited, I reject that submission. 172.Accordingly, the principles guiding the availability of damages for vexation, disappointment and distress remain as stated in Baltic Shipping Company v Dillon, which followed the remarks by Bingham LJ in Watts v Morrow [1991] EWCA Civ 9 ; (1991) 1 WLR 1421 . I will therefore proceed to assess damages in this case in accordance with those principles, subject to relevant statutory considerations. 173.In this case Mr Patel took the trouble to contractually secure a higher than usual baggage allowance for the travel of his children to India and return. He did so in order to secure peace of mind as to the transport of their luggage home to Australia, in the expectation that they would be returning home with gifts from their large family in India. 174.That contractual expectation, which was secured in NSW, was not met in Mumbai. In fact it was breached and not honoured due to avoidable error on the part of the staff at the Malaysian Airlines counter in Mumbai, who wrongfully informed Mr Patel's children their check-in baggage allowance was limited to 20kgs each in addition to their carry on allowance of 7kgs. Not only was the information to this effect in Mumbai admittedly wrong, but I consider that it was also misleading and deceptive conduct within the meaning of s 52 of the TP Act 1974. 175.When the relevant circumstances of the luggage allowances are viewed as a whole, it seems to me that there were misleading and deceptive representations as to those allowances, both at the time of contract when Malaysian Airlines took the bookings at which time the airline's agents, the Flight Centre, accepted Mr Patel's payment for the fares, and also at the time when airline staff in Mumbai misleadingly asserted there was no entitlement to check in 30kgs of luggage per passenger. 176.I find that at the time Mr Patel paid for the fares he acted on the representation that there would be a 30kg per passenger check-in luggage entitlement. That representation was clearly a relevant misrepresentation as the airline staff did not honour it, and repudiated it wrongfully. 177.On behalf of Malaysian Airlines it was argued that the TP Act had no extra territorial effect in Mumbai, even though the airline trades in this jurisdiction and has submitted to this jurisdiction. It was further argued that as the consent of the Minister had not been obtained by Mr Patel as was required by s 5(1)-(4) of the TP Act in respect of relevant conduct occurring outside of Australia, Mr Patel could not in this instance, maintain an action for damages under s 82 of the TP Act . On reviewing the foregoing submission I accept it as correct. If Mr Patel had taken the opportunity to avail himself of pro bono legal assistance, the position may well have been different, had the consent of the Minister been obtained. 178.However, I consider that it is not necessary for me to examine the authorities concerning any argued extra territorial operation of the TP Act both on that account and because of my finding that there was a relevant misrepresentation that occurred at the time of purchase of the tickets in NSW. 179.In view of the fact that the tickets in question were commercially purchased from an airline operating passenger flights for reward, it cannot be reasonably maintained that the transaction in which the misrepresentation occurred, did not take place in the course of trade or commerce. Similarly, since Mr Patel was the purchaser, in my view it cannot be reasonably maintained that Mr Patel was not a relevant consumer within the meaning of the TP Act . 180.In my view, these matters enliven a claim based on breach of s 52 of the TP Act so as to require damages to be assessed pursuant to s 82 of the TP Act , without the need to consider issues concerning the absence of consent of the Minister. 181.As a consequence of the events complained of which occurred in Mumbai, Mr Patel's children, who were without sufficient funds to pay for excess baggage charges, and who were without other forms of resources or assistance that would have enabled them to transfer any removed portions of their luggage to others for safekeeping or forwarding, felt compelled to discard a total of 20kgs of such luggage in order to enable themselves to be checked in and to board their pre-booked flight home to Australia. 182.As to the events themselves, a consequence of the described events in Mumbai, I accept that Mr Patel's children found they were unable to advocate for themselves. I find that as a consequence his children became upset, tearful and distressed. I find that this led to them having an upset and unpleasant flight home. I also find that in these events, they suffered sleeplessness, anxiety and a loss of appetite as claimed. 183.I find that as a consequence of these events, on their arrival home to Australia, they then related the details of the foregoing events to Mr Patel, who himself then became upset, distressed, inconvenienced and significantly vexed, on learning of the detail of these matters. 184.I also find that as a consequence the foregoing events, progressively from that time, and continuing to the present time, a period of almost 2 years, Mr Patel has continued to harbour a legitimate sense of grievance and injustice concerning the manner in which his children were wrongfully dealt with at Mumbai Airport by airport staff acting on behalf of Malaysian Airlines. 185.I find that Mr Patel's sense of grievance and injustice has continued to cause him significant vexation, distress, disappointment, inconvenience and has left him in what he describes as " a sad " situation. I find that these feelings have become magnified for him because of the way he has perceived his claims were met by what I consider to have been an initial stonewalling of his claim on the part of Malaysian Airlines. He feels, legitimately, in my view, that in this case, his claims were not taken seriously. I find that as a result, he harbours the feeling that he has had to take on a battle of David v Goliath type proportions against a well-resourced defendant, which, notwithstanding an early apology conveyed to him for the breach of contract, has continued to contest his claim for compensation. 186.I find that in these events, not unnaturally, Mr Patel feels that his honour and his integrity, and that of his family, has been unjustifiably questioned, thus perpetuating and magnifying his feelings of vexation. 187.I find that but for the admitted neglect and breach of contract on the part of the Malaysian Airlines staff, and but for the misrepresentation made to him at the time of the purchase of the tickets and concerning the luggage allowances, Mr Patel would not have been beset and burdened with such distracting feelings. It follows that he would not have felt compelled to embark upon the pursuit of his claims for compensation, first by taking the issue up with the Department of Fair Trading, then with the CTTT, and then on appeal to this court in order to have the CTTT orders set aside, following what I find to have been his extreme dissatisfaction with the course of, and with the result of that hearing, which compelled him to proceed to seek a re-hearing of his claims in this court, in his quest for justice. 188.It is plain from the lengths to which Mr Patel has gone in order to seek redress, and from the volume, content and detail of the material he has progressively assembled over time in order to support his cause, that he has expended a very significant amount of time and emotional energy in his pursuit of the findings that he seeks. I find that he has done so to the point of obsession, and in this regard, in my assessment, his character and disposition is such that he is prepared to relentlessly pursue what he believes to be right and fair in the face of perceived injustice. I find that these matters have consumed his energies to a very significant degree over the past 23 months. 189.In my view, in an assessment of damages for inconvenience, distress, disappointment and vexation, arising as they do from breach of contract in the circumstances described, leads me to the view that Mr Patel is entitled to a significant award of damages for non-economic loss as compensation for such matters. In my view, where I have accepted his evidence in its totality, as I have, save for that aspect of his claim made in the absence of medical opinion to the effect that his health has been adversely affected, an award of damages of this kind is not dependent upon medical evidence. In consider that this is so because matters of inconvenience, distress, disappointment, vexation and sadness are not medical diagnoses, and can be readily assessed by the court as matters of fact, as I have found to be the case here. 190.I consider that after having due regard to the evolving state of Mr Patel's vexation, distress, inconvenience, disappointment and his view of his sad situation, including his need to commit himself, his time and his efforts, to pursuing this litigation, the compelling conclusion is that he has suffered a significant distraction from the normal and everyday amenity and enjoyment of his life, and this has progressively remained a feature of his day to day life for the past 23 months. 191.As I have found the relevant conduct giving rise to TP Act remedies arose at the time of purchase of the tickets and not at Mumbai, I consider that the statement in Insight Vacations Pty Ltd at [76] must be distinguished. This leads to the conclusion that s 16 of the CL Act is the required statutory framework within which non-economic damages should be assessed. In this regard I accept the submission made on behalf of Malaysian Airlines to that effect. 192.In those circumstances, having regard to the impact of the events on Mr Patel as described by him, I consider that the appropriate range for assessment of s 16 damages for non-economic loss pursuant to the CL Act is between 17 per cent and 19 per cent of a most extreme case. On account of the factors I have already reviewed as relevantly affecting Mr Patel as a result of the events in question, I reject the submission that the plaintiff's circumstances would not have met the minimum threshold for an award of damages. I therefore assess damages at the mid-point of the range I have identified, at 18 per cent of a most extreme case, in the amount of $12,500. No interest on past non-economic loss damages is awardable for damages assessed pursuant to s 16 of the CL Act . 193.In coming to this view, to allow for the possibility of an appeal, and to allow for the possibility that it may be held on appeal that I have erred in distinguishing the applicability of Insight Vacations Pty Ltd at [76], I take the opportunity to briefly record my views on the range of non-economic damages that I consider would have applied to Mr Patel's circumstances if such damages were to be assessed according to common law principles, unfettered by CL Act considerations. 194.In those circumstances, whilst attempting to be fair to Mr Patel, and not unfair to Malaysian Airlines, I consider that an appropriate award of damages for non-economic loss according to common law principles, taking into account the above matters as they impacted on Mr Patel over the 23 months, would have been in the range of $15,000 to $20,000. On that basis I would have assessed such damages at the mid-point of the identified range, in the amount of $17,500. 195.Had I been required to assess interest on those damages, I would have apportioned all of the damages so assessed to the past, as I find that once these proceedings have been concluded, and in the absence of medical evidence to the contrary, I consider that Mr Patel will have been vindicated, and will no longer have cause to feel distressed, inconvenienced, vexed or sad as a consequence of the events in question. Accordingly, there will be no future component of non-economic damages. 196.In those circumstances, in accordance with conventional common law principles, I would have assessed interest at the half average rate of 2 per cent on $17,500 over 1.9 years in the amount of $665 : MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 at [11].

Disposition 197.The proceedings have been determined in the plaintiff's favour. The plaintiff is entitled to an award of compensation in the assessed amounts. It follows, that unless disentitling factors are shown to exist, the plaintiff is entitled to an order that the costs he has incurred in bringing these proceedings, be paid by the second defendant, Malaysian Airlines Australia Limited. No disentitling circumstances have been shown. As the plaintiff has represented himself throughout these proceedings, it would appear that such costs would be of modest proportions, as in general, the personal expenses of a litigant in person are not awardable as legal costs.

Orders 198.I make the following final orders: (a)In lieu of the orders made by the Consumer, Trader and Tenancy Tribunal on 5 June 2009, which were in part set aside on 28 March 2010, I find a verdict and judgment for the plaintiff in the amount of $14,931.69, being the sum of the following components; (i)Damages assessed for loss of the value of the discarded luggage in the amount of $1489.07; (ii)Interest on $1489.07, assessed in the amount of $277.62; (iii)Damages assessed pursuant to ss 52 and 82 of the TP Act assessed in the amount of $12,500; (b)Save for the cost order made on 11 June 2010, the second defendant, Malaysian Airlines Australia Limited, is to pay the plaintiff's costs, as agreed or assessed, on the ordinary basis, unless otherwise ordered; (c)The exhibits may be returned; (d)After the entry of final judgment and orders, the proceedings are remitted to the Consumer, Trader and Tenancy Tribunal for the notation and entry of final orders in the records of that Tribunal, pursuant to s 67(3)(a) of the Consumer, Trader and Tenancy Tribunal Act 2001; (e)Malaysian Airlines is to have a certificate under the Suitor's Fund Act 1954, if entitled; (f)Liberty to apply on 7 days notice, if further orders are required . APPENDIX Interest calculations on $1489.07 Period Date range Prescribed interest rate Days Interest amount 1 22.01.2009 to 05.03.2009 10% 42 $17.31 2 06.03.2009 to 08.09.2009 9% 186 $68.29 3 09.09.2009 to 14.02.2011 9% 523 $192.02 Total $277.62

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: 16 February 2011

38 Robertson v Balmain New Ferry Co Ltd [1909] UKPC 1; (1910) AC 295 Siemens v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418 Strinic v Singh [2009] NSWCA 1 Watts v Morrow [1991] EWCA Civ 9; (1991) 1 WLR 1421 Young v Insight Vacations Pty Ltd [2009] NSWDC 122 Category: Principal judgment Parties: Kalpesh Patel (Plaintiff) Consumer, Trader and Tenancy Tribunal NSW (First defendant) Malaysian Airlines Australia Ltd (Second defendant) Representation: Counsel: Plaintiff in person Submitting appearance by Consumer, Trader and Tenancy Tribunal Mr AR Davis (Second defendant) Solicitors: Plaintiff in person Submitting appearance by Consumer, Trader and Tenancy Tribunal Lander & Rogers (Second defendant) File Number(s): 2009 of 336102

Prefatory remarks 1.This appeal, which has followed a tortuous path, involved the disposition of the residue of proceedings brought by the plaintiff, Mr Kalpesh Patel, against the second defendant, Malaysian Airlines Australia Limited. The residue of the appeal involved a re-hearing of proceedings that had been previously heard and determined in the Consumer, Traders and Tenancy Tribunal ["CTTT"] on 5 June 2009. 2.Mr Patel appeared as a litigant in person. The CTTT has entered a submitting appearance in the appeal. Malaysian Airlines appeared by solicitors and counsel. 3.The two phases of the appeal occupied a combined total of 8 hearing days. 4.This residual component of the appeal requires the determination of Mr Patel's entitlement to compensation following his successful appeal in which, on 26 March 2010, the orders that had been made in the CTTT were set aside in part : Patel v CTTT & Malaysian Airlines Australia [2010] NSWDC 38, at paragraph [182(b)]. 5.The litigation was obviously of significant importance to the parties, evidenced by the manner in which each party had approached and gathered evidence for the re-hearing. It became apparent during the course of the re-hearing, that the actual amount of the money that was at stake was not necessarily the object upon which either party had focussed their primary attention. 6.In the case of Mr Patel, it appeared to me that his stated quest for justice did not have money as its primary focus. It seemed to me that he was more concerned to redress wrongs that he perceived had been done to his children as a result of an admitted breach of contract by Malaysian Airlines. In his pursuit of that goal, it appeared to me that this case has been consuming of his time, energies, and personal resources, to a remarkable degree. He acknowledged that he had become obsessed with the events in question, and their consequences. 7.In the case of Malaysian Airlines, clearly, it took the litigation very seriously, with various numbers of its employees in attendance in court on most of the hearing days, in addition to counsel and instructing solicitors. It was apparent that Malaysian Airlines had spared little expense in defending the proceedings, as was its right, including to the extent of flying one of its senior employees in Mumbai, to Sydney, in order to give evidence on what I shall describe as systems issues, in contradistinction to evidence on the underlying factual matters. 8.This was obviously a case where, despite the relatively modest amount in dispute between the parties, for whatever reasons, in respect of which I will not speculate, the parties were apparently unable to reach an amicable or mutually acceptable resolution of their differences without an independently imposed adjudication on the issues in dispute. That is not a matter for adverse comment, as it is recognised that some disputes are simply not capable of amicable resolution, and in those circumstances, it is the function of the court to provide that adjudication where it is required to do so. 9.Such cases occasionally arise, and are not without precedent. Over a century ago, a dispute over a matter of perceived principle, that in money terms involved the consideration of a pennyworth of currency, was litigated through all stages to an appeal to the High Court of Australia, and then to the Judicial Committee of the Privy Council : Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 ; Robertson v Balmain New Ferry Co Ltd [ 1909] UKPC 1; (1910) AC 295. 10.There were aspects of the affidavit evidence provided by Malaysian Airlines that touched upon the detail of earlier attempts to resolve the dispute. At the outset, I take this opportunity to record that I have specifically excluded from my consideration, any evidence of that nature, in reaching my conclusions on the matters calling for decision.

Applicable legal principles 25.It is appropriate to review some relevant provisions of the CTTT Act in order to identify the jurisdictional evidentiary and procedural matters that govern these proceedings. 26.These proceedings are a re-hearing of the CTTT proceedings, which indicates that for the purpose of the re-hearing, this court exercises the functions of the Tribunal. In this regard, the court may make such order in relation to the proceedings as it considers should have been made by the CTTT : s 67(3)(a). A rehearing is not limited to the evidence received in the original hearing in the Tribunal, and fresh evidence may be presented and received : s 67(7). 27.Subject to the rules of procedural fairness, the proceedings are not bound by the rules of evidence, and this court, when exercising the functions of the CTTT, may inquire into, and inform itself on any matter in such manner as it thinks fit : s 28(2). The framework of the proceedings is that the CTTT is to act with as little formality as the circumstances of the case permit, according to equity and good conscience, and the substantial merits of the case, without regard to technicalities or legal form : s 28(3). 28.In recognition of the fact that parties frequently appear in CTTT without legal representation, amongst other things, the Tribunal is to ensure that the nature of the assertions made in the proceedings, and the legal implication of those assertions, are made plain to the understanding of the parties in the proceedings, along with the implications of procedural rulings : s 28(4). 29.The Tribunal is obliged to ensure, so far as is practicable, that all relevant material is disclosed in the proceedings with the aim of enabling the determination of all relevant facts in issue in the proceedings : s 28(b). The tribunal can decide the matters upon which it will hear oral evidence and argument : s 28(5)(c). 30.The Tribunal must also ensure that the parties are given a reasonable opportunity to call evidence and to otherwise present their respective cases, as well as ensuring that they are given the opportunity to make submissions in relation to issues that arise in the proceedings: s 35. 31.Plainly, the foregoing provisions are aimed at achieving justice between the parties. In my view they apply equally to an appeal to this court as they do to proceedings in the CTTT. 32.In the paragraphs that follow I set out a summary of the substantive legal principles that apply to these proceedings. 33.There is no controversy over the availability of a claim for damages for disappointment, vexation, inconvenience, and mental distress, including the stress of litigation : Leitch & Ors v Reynolds [2005] NSWCA 259 following Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344, and related cases. Those cases did not involve a consideration of application of the Civil Liability Act 2002. 34.In the present case it is relevant to determine whether the resolution of the matters in dispute requires the exercise of federal jurisdiction, and a determination of whether or not in the circumstances the provisions the Civil Liability Act 2002 are picked up and must be engaged in determining such matters in dispute : Air Link Pty Ltd v Paterson [2009] NSWCA 251 per Allsop P at [2]. In the present case the relevant provision of the CL Act to be considered is s 16, which is concerned with limitations to be applied in respect of any award of damages for non-economic loss. 35.In my reasoning in connection with the first phase of this appeal, I referred to and followed the first instance decision of Young v Insight Vacations Pty Ltd [2009] NSWDC 122, in support of my reasoning concerning non-economic loss not being affected by the CL Act in this particular case : Patel , at paragraph [102 ]. 36.After I had delivered my decision in the first phase of this appeal, the decision in Young was considered on appeal : Insight Vacations Pty Ltd v Young [2010] NSWCA 137. In that case, it has now been clarified and declared, that damages for breach of contract involving the non-economic considerations of disappointment, inconvenience distress and the like, with the qualification that follows, are subject to the constraints of 16 of the CL Act : Insight Vacations Pty Ltd , per Basten JA at [125], with whom Spigelman CJ and Sackville AJA respectively agreed, at [79] and [174] to [177]. 37.The qualification that I refer to in the foregoing analysis assumes that there is no breach of s 52 of the TP Act , and that no damages are awardable pursuant to s 82 of the TP Act , because if there was such a breach, and such damages were awardable, then such damages would be unconstrained by s 16 of the CL Act : Insight Vacations Pty Ltd , per Spigelman CJ, at [76]. In the context of that case, the relevant tortious act occurred outside of Australia. 38.In the present case, if the TP Act remedies apply, then federal jurisdiction would be engaged : CSL Australia Limited v Formosa [2009] NSWCA 363. This is relevant to an award of damages for non-economic loss. 39.Federal jurisdiction is also engaged by reason of the operation of the Civil Aviation (Carriers' Liability) Act 1959 (Cwth), which incorporates into Australia Law, the Convention for Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw 12 October 1929 , as the Warsaw Convention and Hague Protocol. 40.This raises the question of whether the assessment of damages provisions of the CL Act 2002, apply in this case. Malaysian Airlines submitted that the CL Act applied. 41.With regard to the plaintiff's claim for non-economic damages, on behalf of Malaysian Airlines, it was conceded, without demur from Mr Patel, that I should disregard the Warsaw Convention, as it did not apply to Mr Patel's claim for such damages for non-economic loss because he was not a passenger to whom the convention applied. 42.With regard to the claim for the value of the discarded baggage, if the Warsaw Convention is engaged, the statutory formula under the suite of documents described as the Warsaw Convention together with the Hague Protocols and the Montreal Protocols, governs the manner in which the loss of goods are to be valued and must be applied : Siemens v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418. 43.Article 22 of the Warsaw Convention limits the liability of the carrier in circumstances whereby checked luggage is damaged. This includes the circumstance of a partial loss of luggage. Under this convention, the applicable rate for assessment is limited to 250 French francs per kilogram. 44.A practical problem at once emerges with regard to the application of that formula as the foundation currency upon which it depends for its application, namely the French franc, no longer exists. 45.Protocol No. 4 of Montreal signed in 1975 amended Article 22 of the Montreal Convention to limit the airline's liability to 17 SDR per kilogram. An SDR is an international currency equivalent, set by the International Monetary Fund. The value of an SDR changes daily. 46.Neither the governments of Australia nor India ratified the Protocol No. 4 of Montreal signed in 1975. Having regard to the fact that the French franc no longer exists as a currency, Article 22.4 relevantly states that the French franc consists of " 65 milligrams gold of millesimal finesse 900 " and this may be converted into any national currency. Therefore, the calculation for the limitation for checked luggage and cargo under the relevant convention is according to that formulation multiplied by the determined number of kilograms of discarded luggage, namely 20kgs. 47.All precious metals prices are relevantly quoted in US dollars. For all Australian market transactions, the daily buy and sell rates are calculated by converting the US dollar Spot rates into Australian dollars. For convenience, the date of 9 December 2010 has been selected as the relevant rate and calculation date, in accordance with the submissions made on behalf of Malaysian Airlines. 48.On 9 December 2010, the US Gold Spot rate for bullion was $1391.25. A bullion is gold which is refined to the 995 standard or better. 49.One ounce is 31.103 grams or 31,103 milligrams. Therefore, the relevant price of gold in US dollars per milligram is US$0.0044730 ($1391.25 divided by 311030). 50.On 9 December 2010, one US dollar was equivalent to $1.0165 Australian dollars. Applying the conversion rate, one milligram of gold was equivalent to $0.00454680 Australian dollars. 51.I see no valid reason for not accepting the rates and conversions as has been submitted on behalf of Malaysian Airlines to cover the circumstances where the Warsaw Convention is engaged.

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