Last year, we wrote about a case involving a deadly seaplane crash dismissed by the Federal Court of Australia. The Federal Court held it had no jurisdiction to hear the claim, which involved a flight wholly within the State of New South Wales.
Jurisdiction arose under the applicable State civil aviation liability law, not the Commonwealth civil aviation liability law. Therefore, federal jurisdiction simply was not enlivened (and the claim could not he heard in a Federal Court).
The plaintiff in that case, however, has been provided a lifeline. The Supreme Court of New South Wales, a State Court, “deemed” those Federal Court proceedings to have actually been filed in the Supreme Court, to allow the plaintiff’s claim to survive.
Facts
Alexander Page was the father of a young girl who was a passenger on a de Havilland Canada DHC-2 Beaver seaplane, flying between Cottage Point, NSW and Rose Bay, NSW. She was killed on 31 December 2017 when it crashed into the Hawkesbury River.
Mr Page commenced proceedings in the Federal Court seeking damages which were dismissed for the reasons explained above. He then sought an order in the NSW Supreme Court that the Federal Court proceedings be treated as if they had commenced in the Supreme Court.
Sydney Seaplanes resisted the application, arguing the Supreme Court claim was filed out of time. There is a two-year time limit to commence proceedings from the date on which the aircraft ought to have arrived at its destination (namely, 31 December 2017).
The Supreme Court proceedings were not commenced until 11 May 2020.
From one court to another court – a “relevant order”
Section 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (State Jurisdiction Act) states:
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.
A “relevant order” was defined as an order of a Federal Court dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction.
Justice Adamson held that the Federal Court order dismissing Mr Page’s claim was a “relevant order”. That section, Her Honour said, was not limited to proceedings dismissed to making ancillary or consequential orders. It also extended to proceedings which had finally been determined by the Federal Court.1
Does the sky have limits? – a “limitation law”
Section 11(3) of the State Jurisdiction Act went onto to say that if the Supreme Court does make an order under section 11(2), the proceeding, despite the relevant order:
- becomes, and must be recorded by the Supreme Court, as a proceeding in the Supreme Court; and
- for the purposes of any limitation law and for all other purposes, is deemed to have been brought in the Supreme Court on the day on which the proceeding was first recorded as a proceeding in the Federal Court.
A “limitation law” was defined to include “any … law that provides for the limitation of liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced”.
Mr Page filed his claim in the NSW Supreme Court more than two years after the date of his daughter’s death. If Sydney Seaplanes were successful in arguing that Mr Page’s Supreme Court claim had been brought out of time, he would have lost his case again.
But if the law imposing the two-year limitation was a “limitation law”, the effect of section 11(3)(b) meant that the date in which his original proceedings were first recorded as Federal Court proceedings (namely, 23 December 2019), would be deemed to be the date that he brought his proceedings in the Supreme Court.
The court said that the law creating the two-year time limit (being the Commonwealth civil aviation law, as incorporated by the NSW law)2 – was plainly a “limitation law”. It limited the liability of a carrier by reference to time, stating that it will not be liable if an action is brought outside two years of the date of the material date.3
The intention of section 11 was to, essentially, ‘fix up’ the consequences of the Federal Court’s lack of jurisdiction in State matters. Whilst an order under that section would bring an end to the Federal Court proceedings, it should not be viewed as if there had never been proceedings in the Federal Court at all.4
Backdating the claim
The result was that the Supreme Court treated Mr Page’s claim as if it had been brought on 23 December 2019. His claim, therefore, was not out of time.
Justice Adamson made an order that the Federal Court proceeding be treated as a Supreme Court proceeding, and declared that the Federal Court proceedings was “deemed to have been brought” in the Supreme Court on 23 December 2019.
Outcome
It is clear the Federal Court will not have jurisdiction to hear claims arising from intrastate flights. This is because intrastate flight liability claims don not give rise to federal jurisdiction.
However, plaintiffs who wrongly file a claim in the Federal Court may still get a second chance. They may apply in a State court to effectively have their Federal Court proceedings be treated as if they had commenced in a State court to begin with.5
The power for a court to make this order, however, is discretionary. Section 11(2) of the State Jurisdiction Act says that the Court may make such an order.
It would be unlikely that a plaintiff could wait, for instance, ten years after the event before making an application. “Any delay between the order for dismissal and the commencement of proceedings in this Court would be germane to the exercise of the discretion,” the Court said.6
If you have any questions about liability arising from an air accident, please don’t hesitate to contact the specialists in our Aviation Group.
This article was written by Matthew Brooks, Partner and Lucas Moctezuma, Solicitor.
1 Page v Sydney Seaplanes [2020] NSWSC 1502, [61]-[62].
2 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34.
3 Page v Sydney Seaplanes [2020] NSWSC 1502, [65].
4 Page v Sydney Seaplanes [2020] NSWSC 1502, [79]-[81].
5 New South Wales is not the only State with State Jurisdiction legislation. See section 11 of the Federal Courts (State Jurisdiction) Act 1999 (Qld), Federal Courts (State Jurisdiction) Act 1999 (Vic), Federal Courts (State Jurisdiction) Act 1999 (SA), Federal Courts (State Jurisdiction) Act 1999 (WA) and the Federal Courts (State Jurisdiction) Act 1999 (Tas).
6 Page v Sydney Seaplanes [2020] NSWSC 1502, [80].
