Supreme Court of SA|1991-07-11|Before: King CJ

TIMENY v. BRITISH AIRWAYS PLC No. 367 of 1991 Judgment No. 2961 Number of pages - 15 Limitation of actions (1992) 56 SASR 287 [1991] SASC 2961 (11 July 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), BOLLEN(2) AND COX(3) JJ

CWDS Limitation of Actions - action for damages pursuant to Article 17 of Warsaw Convention for injury sustained in accident on aircraft - 2 year limitation period prescribed by the Convention - Convention part of domestic law by virtue of Civil Aviation (Carriers Liability) Act of Commonwealth - whether power to extend time contained in s.48(1) Limitation of Actions Act (SA) applies by virtue of s.79 Judiciary Act - s.48 not in terms applying to Commonwealth Acts limiting time and therefore not applied by s.79 - further ground of want of power to extend in that Warsaw Convention does not merely bar remedy but extinguishes right - no right in respect of which action can be brought, after expiration of two year period - appeal against order of District Court judge dismissing appeal against order of master summarily dismissing application for extension of time, dismissed.

HRNG ADELAIDE, 4-5 June 1991 #DATE 11:7:1991 Counsel for Appellant: Mr G.L. Muecke Solicitors for Appellant: McQuade Hill and Co. Counsel for Respondent: Mr D.G.W. Howard Solicitors for Respondent: Murray and Cudmore

JUDGE1 KING CJ The question which arises on this appeal is whether a South Australian court in which an action is brought for damages pursuant to Article 17 of the Warsaw Convention as to International Carriage by air, has power to extend the time limitation on the right to damages prescribed by Article 29. 2. The facts and relevant provisions are set out in the judgment of Bollen J. 3. The Warsaw Convention is part of the domestic law of Australia by virtue of section 11 of the Civil Aviation (Carrier's Liability) Act 1959 of the Commonwealth. A State court which entertains an action under Article 17, exercises federal jurisdiction. A South Australian court exercising such jurisdiction is required by section 79 of the Judiciary Act 1903 of the Commonwealth, except in so far as it is inconsistent with federal law, to apply South Australian law, including the laws relating to procedure. The Warsaw Convention itself (Article 28) provides that questions of procedure shall be governed by the law of the court seised of the case. Legal provisions which bar the bringing of actions after the lapse of a certain interval of time are regarded by the law as procedural in nature: Pedersen v. Young [1964] HCA 28; (1964) 110 CLR 162 per Kitto J at p 166 and per Menzies J at pp 166-7. Section 48 of the Limitation of Actions Act of South Australia, which empowers a court to extend the time limit for the institution of proceedings, must necessarily also be regarded as procedural in nature. 4. It is first necessary to consider whether section 48, on its true construction, has any application to a time limit imposed by an Act of the Commonwealth Parliament. The word "Act" which is used in section 48(1), the subsection upon which the appellant relies, has the prima facie meaning, by virtue of section 4 of the Acts Interpretation Act, of an Act of the parliament of South Australia or its predecessors or an Act of the Imperial Parliament applying to South Australia by paramount force. The prima facie meaning does not include an Act of the Commonwealth Parliament, but that meaning is to be applied only if no contrary intention appears. 5. In John Robertson and Co. Limited (In Liquidation) v. Ferguson Transformers Pty Limited and Others [1973] HCA 21; (1973) 129 CLR 65, Menzies J at p 80, and probably Gibbs J at p 89 and Mason J at p.93, held that the word "statute" in section 37 of the Limitation of Actions Act includes a statute of the Commonwealth Parliament. It would be strange if the word "statute" in the Limitation of Actions Act included a Commonwealth Act, but the synonym "Act" in the same Act of Parliament did not. But that may be the result of the fact that "Act" has been given a restricted prima facie meaning by section 4 of the Acts Interpretation Act and "statute" has not been made the subject of definition in that Act. 6. The question remains whether an intention appears from section 48 which is contrary to the meaning of "Act" as defined in the Acts Interpretation Act. I can find nothing in the words of section 48 or the context which tends to indicate an intention to include Commonwealth Acts. There is one important consideration which tells in favour of an intention in accord with the prima facie meaning rather than contrary to it. It is beyond the constitutional power of the State parliament to make section 48 apply to time limits imposed by Commonwealth Acts. A State law purporting in terms to do so would be pro tanto ineffective of its own force to achieve that result. It could do so only if picked up by section 79 of the Judiciary Act. Section 48 can operate to authorize the extension of time limits imposed by Commonwealth law only, if at all, by virtue of section 79 of the Judiciary Act. When section 79 applies it "does not purport to do more than pick up State laws with their meaning unchanged": Pedersen v. Young supra per Kitto J at p 165; John Robertson and Co. Limited (in liquidation) v. Ferguson Transformers Pty Limited and Others supra per Menzies J at p 80, per Walsh J at p 83, per Gibbs J at p 89, per Mason J at pp.93-5. It would be rather far-fetched to imply into section 48 an intention, contrary to the meaning attributed to the word "Act" by section 4 of the Acts Interpretation Act, that it should apply to time limits imposed by Commonwealth Acts, in order to enable section 79 of the Judiciary Act to pick up the power and thereby to authorize its use by courts exercising federal jurisdiction in South Australia to extend such time limits. 7. I have reached the conclusion that section 48 does not, according to its true meaning, refer to Commonwealth Acts. It follows that, although the combined operation of section 79 of the Judiciary Act (Cth) and section 48 of the Limitation of Actions Act (SA) authorizes courts exercising federal jurisdiction in South Australia, to extend the time limits which are imposed by State law and which apply to actions under federal law by virtue of section 79, there is no power to extend time limits imposed directly by federal law. The status of the time limit imposed by Article 29 of the Convention, in the domestic law of Australia, is that of a time limit imposed by federal statute and I would hold that, even if the time limit in Article 29 could be regarded merely as a procedural provision limiting the time for instituting proceedings, there is no power to extend it. 8. If I am correct in the above conclusion, the appeal must be dismissed on that ground alone. If I am wrong on that point, however, it is necessary to consider whether section 48 can operate to enable an action to be brought to enforce the right which has been extinguished by Article 29. Bollen J has dealt fully with this issue and I agree with his reasoning. I add a few remarks. 9. The rule that time limit provisions are procedural in character has always been stated in language which limits it to provisions expressed in terms of barring remedies or prohibiting the institution of proceedings. The rule was expressed by Kitto J in Pedersen v. Young supra at p 166 as follows: "It is the established doctrine of English law, however, that statutes of limitation expressed to relate to the institution of proceedings do not provide substantive defences. They 'affect procedure, not substance'." (Emphasis mine) At the same page Menzies J said: "It is a well-established principle that statutes of limitation, except where title is affected, are rules of procedure only and form part of the lex fori. The reason why such statutes are so regarded is that they relate to the remedy and not the right." Windeyer J said at p.169: "And it is the established doctrine of our law that statutes of limitations in the form of the Queensland statute here in question bar remedies but do not extinguish common law rights." (Emphasis is mine) In John Robertson and Co. Limited (in liquidation) v. Ferguson Transformers Pty Ltd supra Mason J at p 92 referring to section 37 of the Limitation of Actions Act said: "The section of the South Australian Act is a provision which bars the remedy not the right. It is therefore a rule of procedure only." 10. While the practical consequences to the intended litigant will in most cases be the same, there is a clear conceptual difference between the barring of a remedy for infringement of a right and the extinction of that right. The former belongs to the area of procedural law and the latter belongs to substantive law. A law which merely authorizes the extension of the time prescribed for the institution of proceedings, cannot operate to revive a right which has been extinguished. If a State law were to purport to revive a right which had been validly extinguished by federal law, it would be inconsistent with federal law and invalid pro tanto by virtue of section 109 of the Constitution. It would not be picked up by section 79 which picks up State laws only "except as otherwise provided by the Constitution or the laws of the Commonwealth". 11. In my opinion, therefore, even if section 48 of the Limitation of Actions Act of South Australia could be construed as applying in terms to time limits imposed by Commonwealth Acts, an extension of time within which to institute the action would not operate to revive the appellant's right to recover damages under the Convention and would therefore be futile. 12. I would dismiss the appeal.

JUDGE2 BOLLEN J This is an appeal from a decision of Her Honour Judge Stevens in an appeal to her from a decision of the Deputy District Court Master. 2. The appellant was a passenger in an aircraft operated by the respondent. It was June 1985. The aircraft left Adelaide to go to London. It landed in Muscat to be refuelled. On 18th June 1985 the appellant was walking in a "corridor" of the aircraft. She fell or tripped on a small metal plate in the floor. She broke her thigh. 3. The respondent did not acknowledge liability to compensate the appellant. On 2nd May 1988 the appellant issued a summons out of the District Court of Adelaide seeking damages in negligence. But the claim was met by these pleas:- " 8. If the plaintiff suffered personal injury loss and damage as a consequence of the negligence of the defendant, its employees servants or agents (which is denied) the defendant says that this action is extinguished by virtue of the provisions of Article 29.1 of the Warsaw Convention of 1929 as amended at the Hague 1955 which said provisions apply to the plaintiff's claim by virtue of (a) paragraph 2 of Article 18 of the defendant's General Conditions of carriage applicable to fare paying passengers and/or (b) Section 11 of the Commonwealth Civil Aviation (Carriers' Liability) 1959 as amended and/or (c) the Provisions of the Carriage by Air Act 1961 of the United Kingdom this action not having being brought within two years from the plaintiff's arrival at her destination. 9. As to the plaintiff's application for an extension of time as claimed in the amended Particulars of Claim the defendant says that the plaintiff is not entitled to an extension of time in which to bring her action on the grounds (a) that the Parliament of the State of South Australia has in law no power to enact legislation which allows an extension of the limitation period set forth in the said Article 29 of the said Warsaw Convention and accordingly the provisions of Section 48 of the Limitation of Actions Act 1936 as amended of the said State do not apply to the said Article 29." 4. That is to say, the respondent asserted that by virtue of the "Warsaw Convention" any right which the appellant had had to damages was extinguished by lapse of time. I will come back to that Convention. 5. The appellant obtained leave to amend the Particulars of Claim to include an application for extension of time apparently contemplated pursuant to s.48(3) of our Limitation of Actions Act. The respondent sought summary dismissal of that application. Then the appellant applied to amend to include a claim pursuant to the Civil Aviation (Carriers' Liability) Act (Comm.) and for an extension of time pursuant to s.48(1) of the Limitation of Actions Act. The Civil Aviation (Carriers' Liability) Act is the Act by which the Parliament of the Commonwealth of Australia brings the Warsaw Convention into law in Australia. 6. I may say that the various interlocutory applications and proceedings were somewhat unusual and perhaps even rather confused. But that does not now matter. The Deputy Master held that the appellant's right to damages was extinguished before the action was instituted because the right had not been exercised with the relevant period and held also that s.48 of our Limitation of Actions Act cannot be invoked in respect of Article 29 of the Warsaw Convention as brought into law by the Civil Aviation (Carriers' Liability) Act. Judge Stevens upheld the decision of the Deputy Master. Her Honour said:- " In the final analysis, because of the very wording of Article 29.1 there is no amendment available to the plaintiff which would endow her claim with any chance of success because there is no existing right of action in respect of which the plaintiff can seek an extension of time

for instituting proceedings. Accordingly the appeal is dismissed." 7. The appellant appeals to this Court. We are not concerned with s.48(3) of the Limitations of Actions Act (the "new facts" subsection). We are concerned with s.48(1) as well as being much concerned with the Commonwealth legislation. Section 48(1) of the Limitation of Actions Act (SA) is:- " 48(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for - (a) instituting an action;

(b) doing any act, or taking any step in an action; or (c) doing any act or taking any step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require." I will recite relevant Parts of the Convention later. 8. In 1929 representatives of many countries met in Warsaw to agree upon a scheme for unification of some matters relating to international carriage by air. Australia was one of those nations. Agreement was reached. The Warsaw Convention came into existence. Eventually the Parliament of the Commonwealth of Australia gave that Convention the force of law by, as I have said, enacting the Civil Aviation (Carriers' Liability) Act 1959. That Act defined the Warsaw Convention thus (s.5 - the definition section):- " 'the Warsaw Convention' means the Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw on the twelfth day of October One thousand nine hundred and twenty-nine, and includes the Additional Protocol to that Convention with reference to Article 2 of that Convention." 9. Section 11 of the Civil Aviation (Carriers' Liability) Act is:- " 11(1) The provisions of the Convention have, subject to this Part, the force of law in Australia in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage." (Subsection (2) is unimportant.) 10. The Convention appears in the First Schedule of the Act. Article 1 is:- " This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking." Article 17 is:- " The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Article 28 is:- "1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made, or before the Court having jurisdiction at the place of destination. 2. Questions of procedure shall be governed by the law of the Court seised of the case." And most importantly for our purposes Article 29 is:- " 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." 11. The Convention applies to the flight upon which the appellant was travelling. It was an international carriage. It applies to her injury. The respondent says, not that the claim was barred by lapse of time, but that pursuant to Article 29 it is extinguished because action was not brought within two years of any of the events mentioned in the Article. The appellant says that the time can be extended under s.48(1) of our Limitation of Actions Act. The appellant contends that the question of time and extension is a procedural matter. The appellant refers to s.79 of the Judiciary Act (Comm). Mr Muecke, for the appellant, said that if the expression "an Act" in s.48(1) of the Limitation of Actions Act did not include an Act of the Commonwealth Parliament the "Judiciary Act picks it up as the law of the State of South Australia". He referred to paragraph 2 of Article 28 of the Convention (supra). He submitted:- " We say s.48 of the State Act can be invoked to extend time in which to institute proceedings under the Civil Aviation (Carriers' Liability) Act because s.48 is part of the law, including the procedural law, of South Australia and, accordingly, can be applied when South Australian courts are exercising federal jurisdiction. Next, the Commonwealth legislation here evinces an intention that both the substantive and procedural law of the forum has application, and the limitation period, in the Warsaw Convention, should not be interpreted as absolutely extinguishing rights or remedies of the plaintiff, and it never being possible to revive them." 12. Of course, Mr Howard, for the respondent, dwelt on the word "extinguished" in Article 29. As he emphasised, there is in truth a vast difference between the extinguishing of a cause of action and the barring of a remedy by lapse of time. In Australian Iron and Steel Ltd v. Hoogland [1962] HCA 13; (1962) 108 CLR 471 at 489 Windeyer J said:- " When time has run against a purely personal action the result, for a plaintiff, is that his remedy is barred but his cause of action is not extinguished; for a defendant, it is that he has, if he chooses to assert it, an immunity which Lord Esher called 'his existing right to the benefit of the Statute of Limitations'." 13. And, of course, time may be extended to revive the right to seek a remedy. But perhaps that cannot be done if the right is extinguished. Mr Muecke submitted:- " The appellant recognises that the word 'extinguished' is a strong word and perhaps that's what led the Master of the District Court, and the learned Judge from whom this is brought, to find as they did. But in my submission the sections and the Articles to which I have taken the court, nothing there would indicate that the contracting parties did not anticipate that both the substantive and the procedural law of the court hearing a particular case, can and should apply. Articles 28 and 29 as much as say so. The questions of procedure are to be governed by the law of the court seized of the case and the method of calculating the period of limitation shall be determined by the law of the court seized of the case, not necessarily confined, I would submit, to its procedural law." 14. Mr Howard submitted that the right which the appellant had had was extinguished by the failure to institute proceedings within two years. He said:- " Without repeating matters to which my friend has alluded, we have to look firstly at the Civil Aviation (Carriers' Liability) Act. As my friend put already, in practical terms, Part II of that Act substitutes the provisions of the Warsaw Convention for any other civil liability which might exist on a relevant carrier dealing with a relevant journey. That requires us to look, firstly, to the Convention and, so far as we can, interpret the Convention. In that regard I refer Your Honour firstly to Proctor's Case, not of the Full Court. Decision at first instance by Cross J, 1982, Volume 2, New South Wales Reports p.264. His Honour very conveniently provides a pocket history of the problems which arose early in civil aviation. That is p.265. He referred to the various problems of establishing what might have gone wrong, where it went wrong, all of those other difficulties which can exist in the event of an air disaster. And it referred to the Warsaw Convention and the coming together of the various contracting parties to provide some certainty and to assist all the parties to the Convention to have what we might call a code to cover liability, at least in relation to international travel. And I must harp on the point that we are dealing with international travel, not with domestic travel, whether it be within the State of South Australia or the Commonwealth of Australia. The fact that, for perhaps convenience or perhaps for other reasons, the provisions of the Convention have, in effect, been imported into the domestic law in the sense of travel within Australia or Australia and its Territories, is not to the point. What we are specifically dealing with, in my submission, is international travel and not the domestic situation. My submission is that when the court comes to interpret and apply, with an international Convention, some principles of a somewhat different nature have to be adopted. If I might refer Your Honours, by way of guidance, to a couple of works on statutory interpretation, namely Gifford Statutory Interpretation and Pearce and Geddes Statutory Interpretation in Australia. I would submit that there is a clear obligation to try to interpret the Convention in the same way in using the same sorts of methods as do other countries, even although I accept that that doesn't mean that the courts here are necessarily bound by the decisions which have been reached. But the purpose of approach, in my submission, is important. And if we consider that in the light of this Convention, we can find, in my submission, looking at the Convention as a whole, that it is intended to provide a code with limited rights in place of all the plethora of other provisions which might otherwise have existed and it is intended, in my submission, to provide certainty, not only for the carriers but also for those who travel with them. In relation to the question of the duty to construe so as to be in conformity with national law, there I say it becomes necessary and appropriate to look at the manner in which similar cases have been dealt with overseas, that is the cases dealing with the same sorts of provisions or the same Articles of the code. In that regard I refer Your Honour to Shawcross and Beaumont, and the particular paragraphs are 141.3. In my submission, the thrust of the paragraph is to this effect, that the Convention in relation to Articles 28 and 29 is to the effect that it is limited to a two year period and there is not meant to be any extension of that two year period. That is the position which seems to have been adopted in the United Kingdom and has certainly, according to the authorities referred to by the learned authors, been adopted in the United States. And I note also that the authors refer to the fact that in France there was a different interpretation, but I point out that the English or the United Kingdom interpretation and the United States interpretation seems to be the same, and it seems to be restricting the remedy granted to a very strict two year period." 15. I can find no case in a court of a country of the British Commonwealth which is directly in point. In effect, Mr Howard submitted that Article 29 means what it says and should be applied. That is the view which appealed to Judge Stevens. And it appealed to Cross J in the Supreme Court of New South Wales. In Proctor v. Jetway Aviation (1982) 2 NSWLR 271 Cross J said:- "A difficulty for this submission arises from the provisions of the Civil Aviation (Carriers' Liability) Act (Cth), s.34, which is incorporated by reference in the Aviation Liability Act of New South Wales. Unlike the Limitation Act, 1969, s.34 of the Federal Act does not fix a time limit for the bringing of a cause of action, but sets a fixed period for the

life of the cause of action itself; it provides that 'the right of a person to damages under this Part is extinguished if an action is not brought within two years...'. At least at first sight it would appear that the reasoning in the judgments to which reference has already been made is not to the point in claims under the Aviation Liability Act. For example, the remarks of Windeyer J (prior to the Limitation Act, 1969) in Australian Iron and Steel Ltd v. Hoogland and of Lord Goddard CJ in Jones v. Bellgrove Properties Ltd (in relation to the Limitation Act, 1939 (UK) that a cause of action is barred, not extinguished, by a limitation period - and which remarks appear to indicate that if the cause of action were in fact extinguished different consequences would follow - must be read in the light of the fact that 'extinguished' is the very word used in the Aviation Liability Act to describe the plaintiff's original cause of action under that Act, ie, once the two year period has passed. Counsel for the defendant submits that this is not a case of a cause of action still existing and being merely vulnerable, ie capable of defeat only if a defendant takes the point that the claim is out of time; the cause of action under the Aviation Liability Act in this case is now non-existent, extinguished, finished, gone forever. As it is now impossible to breathe life into the corpse of that cause of action the court would not grant an amendment to allow the plaintiff to initiate a claim on it." 16. Cross J accepted the submission of counsel for the defendant although he did not specifically adopt the vigorous words used by counsel. Cross J held that after the relevant date the plaintiff's cause of action under the Commonwealth Act (really under the Convention) ceased to exist. The Court of Appeal reversed the decision of Cross J on a different point ((1984) 1 NSWLR 166). It held that the extinguished right could be revised by use of the Rules of Court of the Supreme Court of New South Wales. The rule used by that Court has no counterpart in our Rules. Cross J had been asked, and refused, to amend pleadings of an action in negligence at the suit of the plaintiff to claim damages under the Convention. Judge Stevens correctly referred to the decision of the Court of Appeal thus:- " The judgment went on appeal to the Full Court where the Court decided that pursuant to Part 20 r.4 of the Supreme Court Rules (NSW) it could allow the amendment and that the amendment took effect from the date when the Statement of Claim was filed notwithstanding that the Limitation Act 1969s.63 provided that upon expiry of the period of limitation the cause of action is extinguished. Moffitt P said at p.174:- 'I have already referred to the plain words of r.4 which inescapably apply and were intended to apply to at least the Limitation Act 1969. That Act brought into one Act in relation to the great bulk of civil litigation a codified pattern of time limitation which would minimize confusion. At the same time it provided for extensions of the time limitation in defined circumstances. It dealt with the consequence of the expiry of the limitation period in a way different to that provided by earlier general statutes providing for time limitation of actions. By s.63(1) the cause of action was extinguished upon the expiry of the time limitation. However, this did not prevent the making of provision that in some cases the period of limitation could be extended even after the period had expired, so that by force of statute a cause of action which then no longer existed could by operation of a judicial order be made to exist again: ss.59(4)(b), 60, 61, 73. This is a legislative acknowledgement that an extinct cause of action could be "resurrected" by an appropriate legislative provision'. Further on p.175 he said:- 'The words of r.4 are simple and are equally apt to apply to either Act. Section 34 of the Commonwealth Act, enacted as part of the State Aviation Act in the case of a relevant intrastate flight, provides that the relevant right conferred by that Act "is extinguished if an action is not brought...within two years" of the relevant date. The State Act was an Act in force immediately before the enactment of the Supreme Court Act 1970 in terms of s.6. That State Act provided "a period of limitation" which was "relevant" to the appellant's application to amend the statement of claim and that period of limitation had expired after the date of the filing of the statement of claim.' Priestley JA said at p.186:- 'I mentioned earlier that Cross J may have been influenced in the view he took on the first step of the argument I am dealing with by considerations concerning the Warsaw Convention of 1929 to which Australia was a party. His Honour described in some detail in his judgment how that Convention came to be made and compromises which were no doubt made, at an international level, by the countries who became parties to the Convention. It may be that it was an element in His Honour's thinking that the rules of court of a State court should not be construed as permitting a departure from an integral part of a convention arrived at only after hard bargaining. However, as his Honour makes clear in his account of the way in which the Aviation Act came to be passed, it is entirely State law dealing with flights which are totalling intrastate. The whole matter is one of domestic New South Wales law of which the Supreme Court Rules form part and in my view limitation questions arising under the Aviation Act should be treated in the same way as limitation questions arising under any other Act, that is to say, that in every case it will be a matter of construction of the particular limitation provision read in light of the settled application of the relevant Supreme Court Rules.' It is clear from Proctor's case that in New South Wales, when dealing with State legislation, the Supreme Court Rules enable the Court to revive certain causes of action which have been 'extinguished'. Counsel have not argued that the Commonwealth or the South Australian legislation contains similar provisions. What emerges from Proctor's case is that it is only because of the statutory power that the State Courts can revive a cause of action which has been extinguished. The Full Court did not appear to question the interpretation by Cross J that at the expiration of two years the cause of action ceased to exist. Rather it accepted that while the cause of action was extinguished, it had statutory power to amend the claim and that the amendment dated back to when the claim was filed." 17. The Court of Appeal in New South Wales said, in effect: "That which appears to have died can be revived". The decision was one of revival or of resurrection not of extension of time. The instrument of revival was a Rule of Court not in existence in South Australia. I think that the reasoning and decision of Cross J is helpful although I note the suggestions in the reasons of the Court of Appeal that Cross J perhaps did not follow binding authority. Nevertheless, the reasoning of Cross J appeals to me. I think that the combination of Articles 17, 28 and 29 creates a "new" right of action for passengers injured on international carriage by air. I think there can be no doubt about this. It is the substitution for any civil liability that might exist of a new right given by the Convention. Section 13 of the Civil Aviation (Carriers' Liability) Act says as much. It is:- " Subject to the next succeeding section, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury." Section 12(2) makes the same provision of relation to death. 18. I think that the new right is a right to damages exercisable and existing for the period of two years mentioned in Article 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. 19. It may seem harsh that the requirement that proceedings be brought within two years should so operate. It may seem unattractive that a South Australian citizen should not, in relation to an injury sustained on international carriage by air, have the benefit of our Limitation of Actions Act if she is slow in bringing proceedings. But the countries contracting in Warsaw created a new right to damages. The new right is a right to damages without the need to prove negligence. It is compensation without fault. The contracting parties thought that that right should be exercised promptly. As I have said, many countries agreed in Warsaw. No doubt different countries had different time limits, different ideas about extension of time limits. In order to produce uniformity or unification the contracting parties decided that if a right was not exercisable within two years it should be extinguished. 20. I have spoken of "other courts" and "many countries". We are interpreting an international convention. The purpose of the Convention and the object of the countries meeting in Warsaw in 1929 was to produce uniform law on some aspects of international carriage by air. The correct approach to interpretation of such a Convention was laid down in Stag Lines Ltd v. Foscolo Mango and Co Ltd (1932) AC 328 per Lord MacMillan at 350. It was restated more recently by Lord Wilberforce in James Buchanan and Co v. Babco Forwarding and Shipping (UK) Ltd (1978) AC 141 at 152. Lord Wilberforce said:- " I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen in a normal manner appropriate for the interpretation of an international convention unconstrained by technical rules of English law, or of English legal precedent, but on broad principles of general acceptation: Stag Line Ltd v. Foscolo Mango and Co Ltd (supra)." Of course, His Lordship was talking about a Convention in which the question of translation from one language to another was important but I think the remarks have general application. The approach has been adopted for Australia by the High Court in Shipping Corporation of India v. Gamlen Chemical Co (1980) 147 CLR 142. 21. But there is an extension to this idea of interpretation. We may consider the decision of courts of any country which is a party to the Convention. In Fothergill v. Monarch Airline [1980] UKHL 6; (1981) AC 251 at 293 Lord Scarman said:- " The broad approach of our courts to the interpretation of an international convention incorporated into our law will settle. The international currency of the convention must be respected, as also its international purpose. The convention should be construed 'on broad principles of general acceptation'. The approach was formulated by Lord MacMillan in Stag Line Ltd v. Foscolo Mango and Co Ltd (1932) AC 328, 350: it was adopted by this House in the recent case of James Buchanan and Co Ltd v. Babco Forwarding and Shipping (UK) Ltd (1970 AC 141. The implications of this approach remain, however, to be worked out by our courts. Some can be explored in this appeal: but it would be idle to pretend that all can be foreseen. Our courts will have to develop their jurisprudence in company with the courts of other countries from case to case - a course of action by no means unfamiliar to common law judges." 22. Perhaps His Lordship was stating the obvious. I doubt that there can be any sound objection to a court's considering decisions of courts of other countries about the interpretation of the Convention. 23. We were referred to some of the "foreign authority". In Shawcross and Beaumont "AIR LAW" 4th ed. pp.146-147 the authors say:- " ...it is submitted that the most natural meaning of the text of art 29, which also represents accurately the intentions of the authors of the Warsaw Convention, is that the reference to the lex fori in paragraph (2) is intended to have a strictly limited effect and is not meant to permit any extension of the two-year period. This interpretation is supported by the majority of United States decisions on the point. There the matter has been complicated by the view, formerly widely held, that the Warsaw Convention did not itself create a cause of action, which made it harder for United States courts to hold that the two-year limit was a condition precedent to the bringing of an action, rather than a limitation provision which could be 'tolled' for infancy or disability. In Kahn v. Trans World Airlines Inc, the Appellate Division of the Supreme Court of New York, noting the changing views on the 'cause of action' point, but basing itself on the language and travaux preparatoires of the convention, held that the two-year limit was a condition precedent, and could not be affected by the infancy of the plaintiff. The same interpretation has been accepted in Belgium, Benin, India, Israel, Italy, Spain and Switzerland. In France the matter has proved extremely controversial, but in 1977 the plenary assembly of the Cour de Cassation, in the face of a considerable body of academic opinion and of decisions by regional Cours d'appel adopted a different interpretation, permitting the suspension of the two-year period in accordance with the provisions of French law." 24. We were particularly referred to Kahn v. Trans World Airlines App Div 443 NYS 2nd 79 (Supreme Court of New York, Appellant Division) and Srivastava v. Alia 129 Ill App 3d 988 (Appellate Court of Illinois). I think these cases to be most helpful even though I shy away from the idea of condition precedent. The headnote for Kahn's Case is:- " Airline passengers, a mother and her two infant children, brought action against airline more than two years after hijacking of airplane on which they were passengers for damages sounding in negligence arising out of the 'physical privation' and 'emotional distress' suffered by each of them as result of his or her ordeal. The Supreme Court, Special Term, Westchester County, Joseph F. Gagliardi J, entered summary judgment for airline on claims of mother but denied summary judgment as to each of infants' causes of action on grounds that the two-year time limitation of the limitations article of the Warsaw Convention was a statute of limitations subject to infancy tolling provisions. Airline appealed. The Supreme Court, Appellate Division, Gulotta J, held that the two-year time limitation contained in the limitations of the Warsaw Convention is a condition precedent absolutely barring any claims which have not been brought within two years after accrual, and not a statute of limitations subject to infancy tolling provisions." Gulotta J, speaking for the Court said, (p.85):- " From the foregoing brief survey, it is readily apparent that the New York courts have experienced some difficulty in attempting to determine whether Article 29 of the Warsaw Convention should be construed as a condition precedent to suit or as a Statute of Limitations. This difficulty, in turn, appears to stem in large part from the repeated attempts to

analyze the issue almost exclusively in terms of the general New York rule for distinguishing between the two types of time limitations as set forth in Romano v. Romano, 19 N.Y.2d 444, 280 NYS 2d 570, 227 NE 2d 389 supra, and from the further difficulty which has been encountered in attempting to answer the equally unsettled question of whether the Convention operates to 'create' an independent cause of action (see Romano v. Romano, supra). In taking this approach, the courts, in our view, appear to have overlooked a primary resource for interpreting the Convention (i.e., the intent of its draftsmen), which, we believe, conclusively answers the question of the proper construction to be placed upon Article 29, and does so without delving into the vagaries of attempting to determine whether the Convention itself 'creates' any causes of action." and (p.87):- " Accordingly, regardless of whether or not the Convention itself 'creates' any causes of action, it is readily apparent that the time limitation incorporated in Article 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' (Reed v. Wiser, 2nd Cir[1977] USCA2 339; , 555 F 2d 1079, 1090, cert. den. 434 US 922, 98 S Ct 399, 54 LEd.2d 279 supra). In the case at bar, the tort claims of the infant plaintiffs were thus not timely interposed, and the defendant's motion for summary judgment should have been granted in toto." 25. This case was followed in Srivastava v. Alia (supra), Lorenz J, speaking for the Court said (p.567):- " Plaintiff next contends that defendant was estopped from claiming that the cause of action accrued on November 18, 1981, because of its promise to investigate, trace and deliver the lost baggage. Defendant, according to the plaintiff, never advised him regarding the disposition of his video recorder or of his claim for damages. Essentially, plaintiff advances a theory of equitable estoppel to avoid the consequences of not filing his action within two years of November 18, 1981. Plaintiff's theory, however, fails to recognize that 'the two-year time limitation specified in Article 29 was intended to be absolute - barring any action which had not been commenced within the two-year period'. (Kahn v. Trans World Airlines Inc (1981), 82 App Div 2d 696, 709, 443 NYS 2d 79, 87.) In Kahn, the court held that 'it is readily apparent that the time limitation incorporated in Article 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'." 26. I think these cases helpful in our understanding of Article 29. I think they point to the soundness of the conclusion of Judge Stevens. The right given by the Convention must be exercised within the time contemplated by Article 29. If not it is extinguished, dead and gone forever. As I say, I see the need to bring action within two years as an integral part of the new right given by the Convention. 27. For all these reasons I think that the Deputy District Court Master and Judge Stevens, each came to the correct conclusion. The right given by the Convention was extinguished at midnight on 17th June 1987. 28. I would dismiss the appeal.

JUDGE3 COX J I would dismiss this appeal. In my opinion the time qualification in Article 29 of the Convention was an integral part of the right of action created by Article 28 and of the Commonwealth law that adopted it. In other words, the Commonwealth Parliament intended to give a remedy in this country that had a life of only two years. I agree substantially in this respect with the reasons of Bollen J.

Aviation (Carrier's Liability) Act 1959

Limitation of Actions Act 1936

Aviation (Carriers' Liability) Act 1959

Aviation (Carrier's Liability) Act 1959

Limitation of Actions Act 1936

Aviation (Carriers' Liability) Act 1959

TIMENY v. BRITISH AIRWAYS PLC No. 367 of 1991 Judgment No. 2961 Number of pages - 15 Limitation of actions (1992) 56 SASR 287 [1991] SASC 2961 (11 July 1991)

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Judgment (11 paragraphs)

TIMENY v. BRITISH AIRWAYS PLC No. 367 of 1991 Judgment No. 2961 Number of pages - 15 Limitation of actions (1992) 56 SASR 287 [1991] SASC 2961 (11 July 1991)

Legislation Cited (12)

Cases Cited (6)