SOUTH PACIFIC AIR MOTIVE PTY LIMITED and GROUP AIR PTY LIMITED v KENNETH MAGNUS, CIVIL AVIATION SAFETY AUTHORITY and AIRSERVICES AUSTRALIA

REASONS FOR JUDGMENT THE COURT: Before the Court is an appeal from orders made by Wilcox J on 27 November 1997. The appeal is brought pursuant to leave granted by his Honour. The issues raised in the proceedings are complex and concern, inter alia, the meaning and operation of the Civil Aviation (Carriers' Liability) Act 1959 ("the Act"). When the appeal was called on, members of the bench raised with counsel for the parties the suitability of the appellate proceeding in its present form. In order to understand that difficulty, it is necessary to say something briefly about the form of the principal proceedings and the history of the litigation. The principal proceedings were commenced by application and accompanying statement of claim. In the application, the applicant claimed: (1) damages; and (2) recovery of loss under s 82 of the Trade Practices Act 1974. By his amended statement of claim, the applicant (now the first respondent to the appeal) sued a number of respondents on several causes of action, including causes of action under the Act, under the Trade Practices Act and under the general law, arising out of the ditching of an aircraft. By an application made by the present appellants, South Pacific Air Motive Pty Limited and Group Air Pty Limited, pursuant to O 20 r 2 of the Federal Court Rules, orders were sought for the summary dismissal of the proceedings as brought against them. They argued that the proceedings did not disclose any reasonable cause of action against them. Having heard argument on the summary dismissal application, Wilcox J, for the reasons his Honour gave in dealing with what, on any view, were several complex legal questions, ordered that the application for summary dismissal should succeed, but only to a limited extent. It appears that the partial success of the proceedings was a matter of concession, but his Honour ordered that the proceedings should be dismissed to the extent, and only to the extent, that claims were made, on behalf of the applicant or any group member (these being representative proceedings), for relief in relation to any physical injury sustained by that person, including psychological damage sustained by that person as a result of that physical injury in respect of the ditching of the aircraft. As has been noted, his Honour then granted leave to appeal from that order, which is plainly interlocutory. We were informed by counsel that, at the time of the granting of leave to appeal, there was only a short argument before his Honour. As we have mentioned, when the appeal was called on for hearing, members of the Court raised with counsel the question of the form of the proceedings at first instance. In particular, it was put to counsel that although, as a matter of form, the notice of motion before the learned primary Judge was an application for summary dismissal, that is to say an application brought on the footing that no cause of action could reasonably be arguable, his Honour in his reserved reasons for decision appears to have dealt with the matter on the footing that the question was really one of law for ultimate determination. The Court also drew to the attention of counsel the circumstance that the grounds for appeal filed on behalf of the appellants also proceeded (or at least appeared to proceed) upon the understanding that the matter was to be addressed by this Full Court on the same basis that there had been before his Honour, so that there was therefore before this Court, a separate and ultimate question for final determination, rather than merely an application for summary dismissal on the basis that no cause of action was even reasonably arguable. The Court further drew to the attention of counsel the circumstance that the appellants' written outline of submissions, a document of some sixteen pages, dealing with many apparently complex legal issues, also proceeded upon the basis that the question for this Court (and previously for his Honour) was whether, in the ultimate legal sense, the cause of action alleged against the appellants had been demonstrated. It was not suggested either in the grounds of appeal or in the appellants' written submissions, that the principal proceedings were without any arguable legal foundation. The distinction between an application for summary dismissal on the ground that the proceedings disclosed no reasonably arguable cause of action on the one hand, and the stating or reserving of a separate question for determination upon the basis that the Court is requested to decide a point of law is, of course, plain enough. However, it is not at all clear whether the matters we have discussed here were drawn to the attention of the learned primary Judge at the time of the application for leave to appeal. It seems, regrettably, that they were not. Upon further exploration with counsel of the real issues in the appeal, it emerged that it was accepted on behalf of the appellants that it would be desirable, in the interests of the overall expedition of the proceedings, if an opportunity were granted to them to approach his Honour again, in effect, to seek from him an order for a separate determination of a question along the lines of his Honour's previous decision. The first respondent's position is, however, different. Senior Counsel for the first respondent has indicated (understandably) that, first, he will need to get instructions on the matter generally and, second, that, in any event, if the course foreshadowed on behalf of the appellants is adopted (that is to say, if his Honour is asked to reserve and determine a separate question), then the first respondent will need an opportunity to address the important procedural aspects of such an interlocutory application. In particular, Senior Counsel for the first respondent has indicated that he will need to get specific instructions on the question whether some or all of the facts relevant to the issue determined by Wilcox J should be accepted, or assumed at least for the purposes of the separate question. In all those circumstances, this Full Court is of the opinion that the parties should have the opportunity not only to reconsider the present form of the appellate proceedings, but also, if it be thought to be appropriate, to approach the learned primary Judge and to seek further orders in the present connection. We are of the view that we should accede to the appellants' application and stand the appeal over for this purpose. It is not necessary that we address, at this point, the question whether leave to appeal should be revoked. That is a matter which, no doubt, his Honour may well wish to consider and we say nothing further about it at this stage. The formal order of the Court therefore is that the appeal is stood over for further directions at a date to be fixed, and that costs of today's hearing are reserved. The date to be fixed may be arranged with my associate. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont