The Federal Court of Australia recently determined that it did not have jurisdiction to consider a claim arising from a fatal seaplane crash in which the flight was entirely within New South Wales. The Court’s decision makes clear that the rights and liabilities created by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Cth CACL Act) do not apply to intra-state flights where any liability claims arise under the applicable State law.
Facts
The applicant was the father of a passenger who was killed when a chartered seaplane flight crashed shortly after take-off in December 2017. The flight took place entirely within New South Wales.
The applicant commenced proceedings in the Federal Court, claiming damages under ss 28, 31 and 35 of the Cth CACL Act ‘as incorporated by’ s5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) (the NSW CACL Act).
The respondent contended that the proceedings did not enliven any federal jurisdiction and should be dismissed and the Court determined the issue on the papers without oral argument.
The Court noted that s27(1) of the Cth CACL Act sets out categories of flights to which Part IV of that Act would apply, namely flights between States or Territories, intra-Territory flights and international flights.
The Court also noted that the subject flight did not fall with s27(1) of the Cth CACL Act. Accordingly, the NSW CACL Act applied to the flight as it was not carriage to which Part IV of the Cth CACL Act would apply.
Section 5 of the NSW CACL Act adopted relevant provisions of Part IV of the Cth CACL Act as if they were incorporated into the NSW CACL Act.
The Court considered s6A(1) of the NSW CACL Act which provided that ‘the applied provisions should be administered and enforced as if they were provisions applying as laws of the Commonwealth instead of being provisions applying as laws of the State‘.
Griffiths J had regard to Leeming JA’s observations in South West Helicopters v Stephenson [2017] NSWCA 312 that ‘a claim under the applied provisions would not of itself give rise to a matter in federal jurisdiction: the plaintiff’s claim arises under the State law, not the law of the Commonwealth which is only made applicable by State law‘ (emphasis added).
The Court rejected the applicant’s contentions that it had jurisdiction over the claim for the following reasons:
- Any purported federal claim made under the Cth CACL Act was ‘entirely misconceived’ as the rights and liabilities created by that legislation did not apply to the intra-state flight from which the claim arose;
- A claim under the applied provisions does not create a matter in federal jurisdiction – the claim arises under State law and not Commonwealth law, which is only made applicable by s6A of the NSW CACL Act; and
- Liability imposed by the Cth CACL Act does not apply directly to an intra-state flight by the operation of that Act – liability in respect of an intra-state flight arises as a result of the operations of ss 4 and 5 of the NSW CACL Act.
Griffiths J also noted that while the applicant had not expressly sought to rely upon the concept of ‘accrued jurisdiction’, such an argument would be rejected on the following grounds:
- There was no jurisdiction in respect of a federal claim; and
- The applicant’s contention that liability arose from s28 of the Cth CACL Act rather than the NSW CACL Act would be regarded as an attempt to ‘fabricate’ federal jurisdiction.
Commentary
The decision provides useful commentary regarding the interaction of State and Commonwealth aviation liability legislation. Most importantly, the decision makes clear that:
- The Cth CACL Act does not directly apply to claims arising from intra-state flights; and
- Liability claims arising from intra-state flights do not give rise to any federal jurisdiction.
In more recent times, Lawyers for injured passengers have sought to file claims in the Federal court of Australia, where jurisdiction can be invoked under the Cth CACL Act, in order to take advantage of a more favourable assessment of Legal cost, then that would be available in some State Courts. However, for air carriage wholly within a State, it is now clear that the Federal Court will not have jurisdiction to hear the matter.
This article was written by James McIntyre, Special Counsel.
