CARRIERS’ LIABILITY ACT CLAIM COMMENCED IN WRONG COURT SHUTS PLAINTIFF OUT OF COMPENSATION – SYDNEY SEAPLANES PTY LTD V PAGE [2021] NSWCA 204
The following is a note about the effect of commencing a claim for compensation as a result of the death of a passenger in the wrong Court.
In Australia, there is compensation legislation in respect of injury or death suffered by passengers during airline or charter operations. There is both Federal and State legislation that creates the scheme which is based on and similar to international conventions. The Federal legislation applies to carriage within the constitutional power of the Commonwealth, and the State legislation applies to intrastate carriage. There is a single regime but a claim must be commenced under either the Federal Act or a State Act and claims under the Federal Act can be brought in the Federal Court of Australia.
On 31 December 2017 a seaplane crashed resulting in the death of a passenger. The passenger’s father commenced a proceeding in the Federal Court of Australia seeking damages under the Civil Aviation (Carriers’ Liability) Act 1959 as incorporated into New South Wales law by section 5 of the Civil Aviation (Carriers’ Liability) Act 1964 (NSW). The Federal Court, in 2020, held that it did not have jurisdiction to determine the claim as the flight took place wholly within New South Wales.
By the time of that decision, more than 2 years had passed since the date of the accident meaning the passenger’s father’s right to commence a new claim in the Supreme Court of New South Wales had been extinguished pursuant to section 34 of the Civil Aviation (Carriers’ Liability) Act 1959.
The passenger’s father filed a Summons in the Supreme Court of NSW seeking an order that the Federal Court proceeding be treated as a proceeding in the Supreme Court under the Federal Courts (State Jurisdiction) Act 1999 which provides, at section 11(2), “a person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order.” The Court held that a “relevant order” for the purpose of the Federal Courts (State Jurisdiction) Act 1999 refers to instances of “want of jurisdiction” by reason of a constitutionally invalid conferral, rather than instances where the Federal Court never had jurisdiction to award damages. Accordingly, there was no entitlement to an order that the Federal Court proceeding be treated as a Supreme Court proceeding. Given that the claim had been extinguished by reason of section 34, the passenger’s father was precluded from bringing any claim for damages.