Supreme Court of Western Australia requires lower Court to Consider Application of the Montreal Convention 1999 (MC99)

29 January 2020

In a very recent decision of the Supreme Court of Western Australia1, the Court has ordered a Magistrate’s Court to deal with a claim against an airline in such a way that acknowledges the case involves Australian federal law, namely the legislation which makes MC99 part of the law of Australia.

The claimant brought action against the airline in the Magistrates Court under the Australian Consumer Law, even though the claim arguably arose from international carriage by air, in which case the claim would be governed exclusively by MC99. A defence for the airline raised MC99 and the exclusively issue.

While the Courts decision ultimately involved the procedure by which the claim would be heard in the Magistrate’s Court, the Supreme Court effectively ordered the Magistrate’s Court to deal with the case as a matter of federal law, and to consider the application of MC99 and the relevant Australian aviation liability laws, rather than simply as a matter of Australian Consumer laws.

The Court’s decision is yet another example of an Australian Court correctly applying the liability regime created to deal with claims arising from international carriage by air, to the exclusion of unrelated Australian domestic laws, in this case Consumer Laws. The decision therefore assists airlines and their insurers in resisting the push by claimants to formulate claims in a wide variety of ways in an attempt to avoid the rigours of MC99 and the exclusive liability regime it creates.

This article was written by Simon Liddy, Partner.

1 Re Magistrates Court Act 2004; Ex Parte Emirates Australia (2020) WASC 3.


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