Walker-Eyre v Emirates[2012] QDC 364

DISTRICT COURT OF QUEENSLAND

1. [1]
   The question that arises in this case is whether the plaintiff’s claim for damages under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Act”) is subject to the provisions dealing with pre-litigation procedures contained in the Personal Injuries Proceedings Act 2002 (“PIPA”). On 7 November 2011 the plaintiff filed a claim and statement of claim in this court, claiming damages for personal injuries from the defendant under the Act. It is common ground that the plaintiff had not complied with the requirements of PIPA before doing so. The defendant submitted that as a result the proceeding should be struck out. The plaintiff, that PIPA did not apply. It is appropriate that this point be decided at any early stage, and it is convenient for it to be decided separately from other questions in the proceeding and before the trial, pursuant to UCPR r 483.^[1] On the hearing of the application I said I would formulate an appropriate question, and answer it; the consequences of the answer can then be left for further submissions. An appropriate question is:

“Was the plaintiff required to comply with the requirements of Pt 1 of Ch 2 of PIPA prior to commencing this proceeding?”

Background

2. [2]
   The issue arises in this way. The plaintiff alleges that on 11 January 2010 as part of a journey by air from the United Kingdom to Australia she was on a plane operated by the defendant which had landed at Brisbane Airport and was waiting to disembark when she was struck on the head by luggage falling from an overhead locker as a result of the actions of another passenger, causing her personal injury. The defence admitted that the plaintiff was on the aircraft, did not admit that the plaintiff was injured in the way alleged in the statement of claim, and denied that the plaintiff suffered a personal injury other than a minor scalp injury.

Legislation

3. [3]
   The Act deals with the application of various international Conventions, and in Pt IV carriage, other than that covered by the Conventions, to which the Act applies. The relevant convention is the 1999 Montreal Convention, which is given the force of law by s 9B of the Act. Section 9E of the Act provides:

“Subject to s 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not 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 9F preserves the liability of a carrier to indemnify an employer of a passenger or any other person in respect of any liability of that employer or other person relating to workers’ compensation, and to pay contribution to a tortfeasor who is also liable. Section 9L provides that for the purposes of s 38 of the Judiciary Act 1903 an action under the Convention is taken not to be a matter arising directly under a treaty. If it were a matter arising directly under a treaty, s 38 would have made the jurisdiction of the High Court exclusive.

4. [4]
   A copy of the Montreal Convention is in Sch 1A of the Act; Article 17 in Ch III,

dealing with the liability of the carrier and extent of compensation for damage, provides relevantly:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

5. [5]
   It is also relevant to refer to Article 21, which provides relevantly that:

“The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:

1. (a)
   such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

2. (b)
   such damage was solely due to the negligence or other wrongful act or omission of a third party.”

6. [6]
   Article 33 relevantly provides:

“2.In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

4. Questions of procedure shall be governed by the law of the court seized of the case.”

7. [7]
   Article 35 provides:

“1.The right to damages shall be extinguished if an action is not brought within a period of 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 that period shall be determined by the law of the court seized of the case.”

Plaintiff’s submissions

8. [8]
   It was submitted for the plaintiff that her right to damages under the Convention was by Article 17 expressly made to arise “upon condition only” that the requirement of that Article be satisfied. It was submitted that the effect of the provisions of PIPA, requiring various things to be done before any proceeding to enforce a claim in respect of personal injury was filed, was therefore inconsistent with the existence of the right under the Convention, and had the effect of imposing a further condition or conditions upon that right, namely the completion of the pre-litigation steps specified in PIPA. These requirements were by s 7 of PIPA made a matter of substantive law. It was submitted that therefore if PIPA operated in respect of the claim it would have the effect of modifying or qualifying the right which was given in unqualified terms by the Convention, which had been given the force of Commonwealth law by the Act.

9. [9]
   In this context reference was made in particular to the features of Article 21, which impose a relatively short time limit for proceedings, and provide that the right given under the Convention, which is by s 9E of the Act conferred in substitution for any civil liability of the carrier otherwise, is extinguished if the proceedings are not commenced within that time. It was submitted that the requirement to comply with the pre-litigation steps, or to obtain leave from the court under s 43 of PIPA (prior to commencing the proceedings) was in a practical sense inconsistent with the requirement in the Convention that the proceedings be commenced within the two year limit otherwise the right was extinguished. It was noted that this limitation provision had the effect of extinguishing the right, rather than merely barring the remedy, and that it would not be subject to extension either by provisions such as s 59 of PIPA, or by provisions for extension of a limitation period under Pt 3 of the Limitation of Actions Act 1974.

Defendant’s submissions

10. [10]
    It was submitted for the defendant that I was bound to find that the provisions of PIPA were not inconsistent with the Act because of the decision of the Court of Appeal in Martins v Stokes (2012) 260 FLR 134; [2012] QCA 36. It was submitted that the effect of that decision was that liability imposed on the Commonwealth by s 64B of the Australian Federal Police Act 1979 was subject to the requirements of PIPA, so that a proceeding seeking damages for personal injury brought against the Commonwealth without complying with PIPA would be struck out. Reliance was placed on the provisions of Article 33(4), and it was submitted that for the purposes of the treaty the pre-litigation requirements were procedural issues, being matters which regulated the enforcement of the rights conferred by the treaty and the Act, rather than matters which went to the existence of the right.

11. [11]
    It was submitted that there was no inconsistency between PIPA and the treaty and the Act, because in practice there would have been no difficulty in complying with the pre-litigation procedures prior to the commencement of a proceeding within the two year period allowed under the treaty, and because, if the pre-litigation procedures had not been completed within time, a proceeding could still have been filed within the limitation period subject only to the grant of leave by the court under s 43 of PIPA, which on the authorities would have been granted if the limitation period imposed by the treaty were about to expire, so that there was an element of urgency in commencing the proceeding. Accordingly there was in practice no difficulty in complying with the requirements of PIPA and being able to commence the proceeding within the limitation period allowed by the Convention. PIPA does not affect the circumstances under which a carrier is liable pursuant to the Convention and the Act, and is merely concerned with the steps required to be undertaken in order for that right to be vindicated in Queensland.

Analysis

12. [12]
    The Act and the operation in relation to claims under it of some other aspects of State law were considered by the High Court in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251. That case concerned a claim brought under Pt IV of the Act, but what was said by the High Court is, I think, equally applicable to a claim under Pt IA. At p 257 the joint judgment of five Judges said:

“Where Pt IV of the Carriers’ Act imposes a liability in respect of the death of a passenger, the liability is expressed by s 35(2) thereof as being in substitution for any civil liability of the carrier under any law in respect of that death. The result in the present case was that any operation of the law of the Northern Territory was displaced and the law of Victoria was, to this extent, rendered invalid by the operation of s 109 of the Constitution. … Mrs Hatfield’s rights flowed purely and solely from Pt IV of the Carriers’ Act.”

13. [13]
    Their Honours also said on p 258 that:

“Federal jurisdiction is national in nature so that no question arises in matters of federal jurisdiction which involves any choice of law between laws of competing jurisdictions; rather, what is required is identification of the applicable law in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth).

…

The effect of the foregoing is that ‘if an action is brought in a State court exercising federal jurisdiction, the law of that State will govern the action no matter where the evens in question occurred.’

…

That last step is subject to the overriding requirements of the Judiciary Act itself, in particular that found in the phrases in s 79 ‘except as otherwise provided by the Constitution or the law of the Commonwealth’ and ‘in all cases to which they are applicable’. It will be necessary to return to the significance of those qualifications later in these reasons.”

14. [14]
    It follows in the present case therefore that the starting point is that PIPA does not apply of its own force because of s 109 of the Constitution, and the relevant question is whether and to what extent PIPA is applied to the proceeding by s 79 of the Judiciary Act 1903. The Judiciary Act provides in s 79(1):

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

15. [15]
    The relevant considerations are therefore, first, whether PIPA is applicable in this case, and secondly, whether the Constitution or the laws of the Commonwealth otherwise provide. Depending on the answers to these questions, the relevant provisions of PIPA will be picked up and applied as federal law pursuant to s 79.^[2]

16. [16]
    There has been, I think, no definitive pronouncement by the High Court as to how it is determined whether cases are cases to which State laws are applicable for the purposes of s 79. It is clear enough that it is not sufficient that the State Act in terms would apply to the case. Presumably if in terms the State Act did not do so it would not be picked up, although the mere fact that laws are expressed in terms of application specifically to State or Territory courts does not mean that they would not apply in federal jurisdiction, including federal courts exercising federal jurisdiction.^[3] The State provisions may be expressed in terms that makes it impossible for them to be picked up; an example is Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 where it was held that a state act dealing with something like the appeal costs fund did not permit an indemnity certificate to be granted to an unsuccessful respondent in the High Court. Further, provisions of a state act which imposed functions which could not be exercised by a federal court because they were incompatible with the requirements for a federal court under Ch III of the Constitution could not be applicable.^[4]

17. [17]
    In Agtrack (supra) it was held that the relevant provision of the state act, a provision in the Limitation of Actions Act 1958 (Vic), was not picked up because it was not applicable in circumstances where the restriction imposed by s 34 of the Act, the equivalent for the purposes of Pt IV of Article 35 in the Montreal Convention, was not a relevant period of limitation for the purposes of the state legislation. Accordingly, it was not picked up by s 79: p 271.

Scope of PIPA

18. [18]
    The provisions of PIPA dealing with the scope of its operation are cast in wide terms. Section 5(1) provides that the Act binds all persons, and s 6(1), that the Act applies to all personal injury arising out of an incident. There is no dispute that the present proceeding is in respect of damages for personal injury; the term “incident” is defined in the Schedule as meaning “the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury.” On the basis of the allegations in the statement of claim the plaintiff suffered personal injury arising out of an incident.

19. [19]
    Subsection 6(2) excludes the operation of the Act in various circumstances where other legislation applies, but makes no reference to the Act. Subsections 6(3) and (4) exclude other particular types of personal injury which are irrelevant for these purposes, and subsection 6(5) provides that “this Act does not affect the seeking, or the recovery or award, of damages in relation to personal injury arising under any of the following” after which four Queensland statutes are identified, including the Civil Aviation (Carriers’ Liability) Act 1964 (“the State Act”), including the applied provisions as defined under that Act. Section 5(1) of the State Act provides that the provisions of Pt IV and IVA of the Act, other than certain sections, and subject to any regulation under the State Act: “shall apply to in relation to carriage to which this Act applies, and matters connected with such carriage, as if those provisions were incorporated in this Act …” The section went on to explain how aspects of that incorporation would operate in practice. Section 4 identifies the carriage to which the Act applies, which was broadly speaking carriage by air entirely within Queensland.

20. [20]
    The Act does not apply to all carriage by air, only that covered by one of the five international Conventions which it applies, or carriage covered by Pt IV, being essentially carriage which has an interstate element, or was wholly within a Territory, or had an international element but was not covered by one of the conventions: s 27(1). The State Act was obviously intended to complement the Commonwealth Act, a point emphasised by s 6A(1) of the State Act, which provides:

“It is Parliament’s intention 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.”

21. [21]
    It follows that if the plaintiff had suffered an injury on an aeroplane which had just completed a journey from one place in Queensland to another place in Queensland, so that the State Act applied, there could be no argument about the applicability if PIPA: it was expressly excluded by s 6(5). In these circumstances, it is somewhat curious that the legislature excluded PIPA in respect of claims under the State Act, but did not exclude PIPA in respect of claims under the Commonwealth Act. It may be of some significance that none of the legislation referred to in s 6(5), or for that matter s 6(2), was Commonwealth legislation. Presumably the legislature proceeded on the basis that it was appropriate for the application or otherwise of State legislation like PIPA to claims under Commonwealth Acts to be determined by the applicable provisions of the Constitution and federal law, since they are the provisions which would determine whether that was so.

22. [22]
    Nevertheless, the fact that the State Act was excluded from PIPA strongly suggests to me a legislative assumption that claims for damages in relation to personal injury under the Act would not be subject to PIPA, and a desire on the part of the legislature to ensure that the claims in respect of carriage by air which were covered by the State Act were brought into line with the assumed situation in respect of such claims under the Act.

23. [23]
    Section 7(2) of PIPA expressly makes the provisions of Pt 1 of ch 2 substantive rather than procedural law. It was submitted on behalf of the defendant that, notwithstanding the terms of s 7, the provisions of Pt I of Ch 2 should be treated as procedural provisions for the purposes of the Convention, and some reference was made to earlier decisions such as Johnson v Hill [2002] 2 Qd R 286, where Davies JA said at [25] that the requirement for notice to be given by a claimant before commencing a proceeding in the court in s 37 of the Motor Accident Insurance Act 1994 was a provision with respect to the mode of enforcement of the cause of action or to the fulfilment of a preliminary procedural condition rather than to the validity of the title to enforce it. It may well be that, in the absence of s 7, the requirement for notice before commencing a proceeding would be treated as a mere procedural requirement, but it seems to me that if s 7 expressly provides to the contrary then effect must be given to that section. Section 79 will pick up s 7 just as much as it will pick up any other provision of PIPA. Indeed, if s 79 picked up Pt I of Ch 2 without picking up s 7 it would change the nature of Pt I of Ch 2, which is not the way in which s 79 is supposed to work.

24. [24]
    The other relevant provision of PIPA is s 9(1), which provides that before starting a proceeding in a court based on a claim, the claimant must give written notice, in the approved form, to the person against whom the proceeding is proposed to be started.^[5] The term “claim” is defined in the Schedule as “a claim however described for damages based on liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty …” That expression I consider is on its face wide enough to include a claim for damages based on the strict liability created by the Convention as applied by the Act.^[6]

25. [25]
    There is at least one provision in PIPA which it seems to me is not applicable for the purposes of s 79: s 59. This provides in certain circumstances for a claimant to start a proceeding in a court based on the claim even though the period for limitation has ended. This refers to the period of limitation under the Limitation of Actions Act 1974, and so would not be applicable to the requirement in Article 35 of the Convention that the action must be brought within a period of two years from the relevant date otherwise the right to damages shall be extinguished. In some circumstances the Limitation of Actions Act 1974 will apply in relation to claims brought under a Commonwealth statute or against the Commonwealth because it is picked up by s 79 of the Judiciary Act, but that would not occur when the relevant Commonwealth statute provides otherwise, as is the case here.

26. [26]
    However, it does not seem to me that there is any reason why the provisions of Pt I of Ch 2 of PIPA would not be applicable to a claim to enforce the entitlement to damages for personal injury arising under the Act and the Montreal Convention. PIPA is wide enough in terms to encompass such a claim, and there is nothing about the operation of the Act or the Convention which would render such legislation not applicable. Indeed, I did not understand counsel for the plaintiff to argue to the contrary.

Otherwise provides

27. [27]
    The real issue therefore is whether the Act “otherwise provides” so that this part at least will be excluded from the operation of s 79 of the Judiciary Act. It was submitted for the defendant that the Act did not “otherwise provide” because there would in practice have been no difficulty in complying with the requirements of PIPA and still satisfying the requirements of the Act and the Convention. Reference was made to the decision of the High Court in Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47, where it was held that there was no inconsistency for the purpose of s 109 of the Constitution between the provisions permitting a license to be granted under the Broadcasting and Television Act 1942 and the requirements of the Environmental Planning and Assessment Act 1979 (NSW) for planning permission for the construction of, relevantly, a building from which a broadcast could take place, notwithstanding that the holder of the license was required to commence the service pursuant to the license within a limited period.

28. [28]
    In that case the court held that a license under the Commonwealth Act did no more than relax a general prohibition of broadcasting, and that that relaxation did not confer any immunity from other laws, Commonwealth or State: p 57. It did not indicate any intention to exclude the operation of other laws including State laws to which a licensee would be required to comply. The fact that an ability to obtain the necessary planning approval might prevent the grantee of a license from being able to exercise the authority conferred by the license did not mean that there was an inconsistency of laws, with the result being merely one of inconvenience to the licensee: pp 58-9.

29. [29]
    Reference was made to an earlier decision of the High Court in Airlines of NSW Pty Ltd v New South Wales (1964) 113 CLR 1, where it was held that the provisions of a Commonwealth Act requiring a license for an aircraft to operate within controlled airspace did not have the effect of excluding a requirement under a New South Wales Act in relation to the licensing of aircraft operating solely within New South Wales. This was because the Commonwealth Act was concerned with the safety, regularity and efficiency of the flight of aircraft, whereas the State Act was concerned with the economic control of transport for reward of passengers and cargo within the State; the two Acts operated in different fields, and served different ends: p 57.

30. [30]
    In Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Mason J as he then was said at p 260:

“If, according to the true construction of the Commonwealth law, the right [conferred by it] is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds.”

31. [31]
    I do not think that Fuller turned on the question of whether it was possible to comply with both the Commonwealth and the State law, but rather involved the question of the proper interpretation of the Commonwealth Act to see whether and to what extent it was intended that the regime established under the Commonwealth Act operated to the exclusion of State laws which might intrude into its operation. The court concluded in Fuller that there was no intention to exclude the State planning legislation, and in Airlines of New South Wales that there was no intention to exclude the State legislation dealing with the economic control of transport within the State. In the present case there is no intention on the part of the Commonwealth to exclude State laws in relation to matters of procedure, since the procedure of this court is made applicable to the case by Article 33(4).

32. [32]
    On the other hand, it is clear from s 9E that there was a legislative intention that the rights conferred in respect of personal injury suffered by a passenger would be in substitution for any liability of the carrier under any other law, and this would exclude the operation of any State law which would confer liability. So much is clear. What is less clear is whether the true intention of the Commonwealth statute is to exclude the operation of provisions in State legislation which impose requirements by way of the giving of notice, the exchanging of information and participation in a compulsory conference prior to the commencement of proceedings, which are by the State law expressly made provisions of substantive rather than procedural law: s 7(1). Before turning to my conclusion in relation to that question, I should say something about the authorities dealing with the test for whether Commonwealth legislation “otherwise provides” for the purposes of s 79.

Authorities on “otherwise provides”

33. [33]
    This question was addressed by the High Court in Northern Territory v GPAO (1999) 196 CLR 553. Gleeson CJ and Gummow J in a joint judgment said at [81]:

“The issue whether the Family Law Act makes relevant provision otherwise to s 97(3) of the Community Welfare Act may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act ‘otherwise provides’.”

34. [34]
    That case was concerned with the question of whether an immunity from production of documents conferred under the Community Welfare Act was overridden by the provisions of the Family Law Act for the production under subpoena of documents to the Family Court. It was held that it was not, their Honours adding at [84]:

“What is presently significant is that the provisions of Pt 13A of the Family Law Act [dealing with subpoenas] leave room for the operation of the immunity conferred by s 97(3) of the Community Welfare Act.

…

Section 112AC is particularly significant in its provision for ‘reasonable excuse’.

…

The apparently absolute terms of the command and subpoenas issued under other Rules of court are treated as permitting the recipients to rely on provisions such as s 97(3) as an answer to production.”

35. [35]
    Gaudron J concluded after an examination of the provisions of the Family Law Act at [145]:

“With perhaps one presently irrelevant exception, no provision of the Act or of the Rules bears on the question whether a person can be compelled to produce specific documents, for example documents which are the subject of legal professional privilege or are privileged on public interest grounds. The Act and the Rules being relevantly silent in that regard, the issue is left to the general law. That being so, neither the Act nor the Rules provides otherwise for the purposes of s 79 of the Judiciary Act.”

36. [36]
    This decision was cited by the Court of Appeal in Queensland in Ramsay v McElroy [2004] 1 Qd R 667 in support of the proposition that the question of whether the Commonwealth legislation otherwise provided was whether the Commonwealth legislation was irreconcilable with the State provisions: [25]. It seems to me with respect that the more recent Commonwealth authorities are applying the test in somewhat wider terms, and focusing on the scope of operation of the Commonwealth legislation, and the extent to which it may be taken to exclude the operation of State legislation, because if the State legislation operated it would derogate from the application of the Commonwealth Act. Indeed, one of the things decided by the High Court in Agtrack was that, because the Act provided for the extinguishment of the right on the expiration of the relevant two year period, a provision in a State Act or rule which had the effect of permitting the cause of action be pursued even though it had not been commenced within the two year period would derogate from the application of the Act so that the Commonwealth provision provided otherwise for the purpose of s 79: [60], where the test was expressed in terms of whether the State Act would have “derogated from” the effect of the Commonwealth statute, citing Macleod v ASIC (2002) 211 CLR 287 at [22].

37. [37]
    The question of the application of s 79 came before the High Court again in Macleod (supra), where the question was whether ASIC had power to appeal to the Full Court of the Western Australian Supreme Court from a decision of a single Judge. The High Court held that the Commonwealth legislation which set up ASIC conferred its functions and powers exhaustibly, so that it provided otherwise than for additional powers conferred by State laws, relevantly the State Act which permitted a party before a single Judge to appeal to the Full Court, to be picked up by s 79. The majority said at [44]:

“A law of the Commonwealth, such as s 49(2) of the ASC Act, is to be construed as requiring the officers or body in question to have and to exercise only such powers as the Parliament of the Commonwealth thereby has chosen to vest in them. Where the law of a State purports to grant some wider power or authority to such an officer or body, then the law of the Commonwealth will be one by which it is ‘otherwise provided’ for the purposes of s 79 of the Judiciary Act. The result is that federal law did not empower the ASC to institute and conduct the appeal to the Full Court, nor did s79 ‘pick up’ any provision of State law otherwise expressed in terms sufficiently broad to endow the ASC with the capacity to take those steps.”

38. [38]
    The majority had earlier said, after referring to Northern Territory v GPAO (supra) at [22]:

“If the Justices Act would have added to or derogated from those powers and functions created and conferred by the law of the Commonwealth, then it would not have been ‘picked up’ by s 79 because the Commonwealth law would otherwise have provided.”

39. [39]
    I should also say something about the decision in British American Tobacco Australia Ltd v Western Australia (2003) 186 CLR 541, mainly because that decision also involved the question of whether a State Act imposing a requirement of notice prior to a proceeding had been picked up by s 79. The appellant had sued to recover money paid in fees under a state Act similar to that which was held to be invalid, as imposing a duty of excise, in Ha v New South Wales (1997) 189 CLR 465. The respondent sought to have the proceeding struck out because the appellant had failed to comply with s 6(1) of the Crown Suits Act 1947 of Western Australia, which required notice to be given within a particular time after the cause of action accrued. The majority held that s 79 did not apply to pick up the requirement of notice because that requirement applied to the cause of action conferred in the previous section of the state Act, whereas s 39(2) of the Judiciary Act itself conferred a right to proceed against the state, and so provided otherwise than by s 5 of the state Act, so as to render s6 inapplicable: [67]. In the alternative, s 79 was excluded by the terms of s 64 of the Judiciary Act, which provided that “In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same … as in a suit between subject and subject.” This section was not to be read down so as to preserve a special privilege conferred on the state by s 6, so s 64 otherwise provided within the meaning of s 79: [68]-[84].

40. [40]
    It seems to me clear from the analysis I have just given that the particular reason why the notice requirements of the State Act in that case were not picked up were specific to the circumstances of that case, and would not apply by analogy here. The reasoning was concerned with the question of whether the provision in the State Act was applicable, and whether s 64 of the Judiciary Act otherwise provided for the purposes of s 79.

Analysis – otherwise provides

41. [41]
    In my opinion therefore the effect of the decisions of the High Court is that attention must be focused on the Commonwealth legislation and the way in which it operates, to see whether, if Pt I of Ch 2 of PIPA applies, it derogates from the effect of the Act. The exercise can be performed at two levels: by reference to a close examination of the actual text of the Convention, or by a broader consideration of the way in which the Act and Convention operate. As to the former, Article 17(1) of the Convention imposes liability for damage which expressly exists “upon condition only” that the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking. The significant word is “only”. Article 17 is I consider expressed so as to require no other condition for the liability of the carrier, and in that way “provides otherwise” than the provisions of State legislation which in its operation has the effect of imposing as a matter of substantive law additional conditions upon the liability of the carrier, namely completion of the pre-litigation procedures in Pt I of Ch 2 of PIPA, or the securing of the leave of the relevant court to commence the proceeding.

42. [42]
    Whether those requirements or conditions impose a substantial practical impediment to the enjoyment of the right conferred by Article 17(1) is not to the point; if they operated they would stand as conceptual impediments to the enjoyment of that right, and in that way would derogate from it. It is significant that what is provided by the Convention and the Act is strict liability, so that it is, in the terms formulated by Mason J in Wardley (supra), an absolute right arising under Commonwealth law, so that a provision of State law which takes away from that right is inconsistent. It is clear from the analysis of the High Court in Agtrack at pp 266-271 that the court treated the requirement that the proceeding be commenced within two years as an integral part of the federal statutory right to damages: [59]. Their Honours continued:

“If an action was not brought by Mrs Hatfield or for her benefit within the two year period required by s 34, what ensued was not the expiry of a relevant period of limitation, but the removal of a pre-requisite for the existence of the right sought to be litigated.”

43. [43]
    Applying that analysis by analogy to the provisions of the Montreal Convention, bringing the action within the two year period allowed by Article 35 was also the removal of the pre-requisite for the existence of the right conferred by Article 17(1), the right sought to be litigated. Hence the process of bringing the action within the period of two years is a fundamental requirement for the existence of the right to damages which is by s 9E conferred to the exclusion of any other right under any other law. Imposing pre-litigation impediments to a plaintiff’s taking that step derogates from the operation of the Act and the convention.

44. [44]
    This leads into what might be described as the wider reason why the Act and the Convention it applies do otherwise provide: that their whole scheme is inconsistent with the operation of Pt I of Ch 2 of PIPA. The Act and the Convention provide a detailed basis for the liability of a carrier, not just in relation to damages for personal injury, but also in relation to other losses in other circumstances. It is part of a scheme which is designed to provide an international harmonisation of liability in such circumstances. This is clear from the analysis of the High Court in Agtrack on the pages referred to earlier. The Convention is not without notice requirements: Article 31 deals with a requirement for timely notice of complaints about damage to checked baggage or cargo. But the Convention imposes no obligation for notice prior to a claim for damages for personal injury.

45. [45]
    Jurisdiction is conferred on a wide range of courts under Article 33, and the fact that it was thought necessary to provide expressly that questions of procedure would be governed by the law of the court seized of the case (Article 33(4)), and that the method of calculating the period of two years referred to in Article 35 would be determined by the law of the court seized of the case (Article 35(2)), emphasises that the Convention was intended to impose a regime which was essentially self-contained and definitive, and would apply indifferently in whatever jurisdiction it was enforced. The limitation on liability in Article 21 is expressed in terms of special drawing rights, rather than any particular currency, and there are provisions for the conversion of special drawing rights into national currencies in Article 23. In my opinion it would derogate from the overall scheme of the Convention as adopted by the Act if a Queensland law imposed, only for Queensland, the pre-litigation requirements imposed by Pt I of Ch 2 of PIPA.

46. [46]
    Indeed, it seems to me that there is an inconsistency between the Convention and PIPA even at the fundamental level of the basic approach to the resolution of claims. In the case of claims for damages for personal injury, the Convention emphasises the early commencement of a proceeding to enforce the liability of the carrier, with any attempts to resolve the claim not to prevent proceedings from being commenced. On the other hand, the approach underlying PIPA is that attempts should be made prior to commencing proceedings to resolve claims by settlement wherever possible, and that proceedings should not be commenced until the parties are already fully prepared for the resolution of the claim by settlement or trial: s 4(2). That reflects a very different philosophy from that underlying the Convention.

47. [47]
    I conclude that the Act does provide otherwise for the purposes of s 79, so that that section does not make Pt I of Ch 3 of PIPA applicable, and there was no requirement on the plaintiff to comply with those provisions prior to commencing the present proceeding. The question posed earlier is answered “no”.

Martens v Stokes

48. [48]
    The argument that I am bound to find to the contrary by the decision of the Court of Appeal in Martens v Stokes (supra) fails to take into account the differences between the legislation considered by the court in that case and the Act. The court there was concerned with a particular provision, s 64B of the Australian Federal Police Act 1979 (Cth), which relevantly provided:

“The Commonwealth is liable in respect of a tort committed by a member or a protective service officer in the performance or purported performance of his or her duties as such a member or a protective service officer in like manner as a person is liable in respect of a tort committed by his or her employee in the course of his or her employment, and shall, in respect of such a tort, be treated for all purposes as a joint tortfeasor with the member or the protective service officer.” [emphasis added]

49. [49]
    It is clear that the function of the section was to overcome the traditional rule that there was no vicarious liability for the torts of constables.^[7] The section in terms equates the liability of the Commonwealth for the acts of the members or protective service officers with the liability of an employer for the acts of an employee acting in the course of his or her employment. It directly and expressly reverses the prior exclusion of constables from the scope of vicarious liability, but it does not put the liability of the Commonwealth in such circumstances in any special position. The position remained what it is under the Judiciary Act s 64, the section which was directly and expressly applied by the Court of Appeal [36]-[38], in making PIPA applicable. Section 64 provides:

“In any suit to which the Commonwealth or the State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.”

50. [50]
    In these circumstances it was hardly surprising that the court concluded that a statute which was intended to take away the special position of the Commonwealth in relation to vicarious liability for the actions of constables, did not exclude a statute which was otherwise of general application in relation to claims for damages for personal injuries in Queensland. Section 79 was mentioned only in passing, with the comment made that the same outcome would apply; given the terms of the Commonwealth statute, that was with respect plainly correct. However in my opinion the effect of Martens v Stokes is only that, in cases where the Commonwealth Act does not otherwise provide, the requirements of PIPA will apply to a claim for damages for personal injuries arising under federal law. It does not establish that the requirements of PIPA apply in relation to all claims for damages for personal injuries arising under Commonwealth legislation. It contains no analysis of the legislation relevant here, and hence has nothing to say about the determination of the question that I have to decide.

Consequential orders

51. [51]
    It follows there is no question of my striking out the plaintiff’s claim for failure to comply with the requirements of PIPA. Instead, it would be appropriate to strike out any allegation in the defence of the defendant that the action was not maintainable because of the failure to comply with the requirements of PIPA, but apparently no such defence has been pleaded. The defendant raised the issue only in response to an application for a mediation order. I consider that the issue was sufficiently raised so as to make it appropriate that the question of whether or not the plaintiff had to comply with Pt I of Ch 2 of PIPA should be decided and was not hypothetical, but it does not appear that there is any direct consequence for the defendant’s pleading in its current state.

52. [52]
    On the other hand, there are deficiencies in the plaintiff’s pleading. In the first place, although the current pleading does rely on the Act, it appears to do so on the wrong basis. That is not fatal to the plaintiff’s claim; it is clear from Agtrack that the proceeding has been properly commenced for the purposes of the Act and the Montreal Convention, even if the plaintiff and her legal advisers had not had in mind the relevant Convention and the relevant provisions of the Act: [43]. It was not suggested that the requirements laid down by the High Court in Agtrack and Airlink (supra) had not been satisfied, so the proceeding can be said to have been commenced within the two year period allowed by the Convention; but it would be appropriate for the pleading to be tidied up so that the relevant provisions were relied on expressly. It is clear from those High Court decisions that this may be done by amendment even though the two year period has now expired.

53. [53]
    It is also clear from those decisions that it is unnecessary and irrelevant for the plaintiff to be pleading negligence on the part of the defendant in relation to this claim; such allegations were surplusage. Although it could be said that in a sense the plea was put on in order to anticipate and exclude an attempt by the defendant to limit its liability under Article 21, in my opinion in pleading terms the correct approach was simply to plead the strict liability of the defendant under the Convention, and that the proceeding had been commenced within the two year period, and leave it for the defendant to plead the limitation of liability if it sought to rely on it, and the necessary pre-condition for that to arise. It might then be appropriate for the plaintiff in reply to plead a positive case of negligence, or at least to put forward why she alleged that the defendant was not acting without negligence. Accordingly I think there is room for considerable simplification of the statement of claim, and that is desirable. There ought to be a re-pleading of the statement of claim by the plaintiff, and then an appropriate pleading by the defendant. I will however receive further submissions as to the consequences of my conclusion when these reasons are published.

54. [54]
    In the circumstances it is not necessary for me to decide what the appropriate order would have been had I concluded that the plaintiff had been bound to comply with the requirements of PIPA. It was submitted that Martens v Stokes was at least authority for the proposition that in such circumstances the appropriate course was to strike out the proceeding. It seems to me however that there was no particular consideration in that case of whether the effect of a failure to comply with PIPA necessarily meant that a proceeding should be struck out. No doubt the outcome was the product of the way in which the appeal was conducted.

55. [55]
    There are certainly some older authorities in Queensland to the effect that a failure to comply with the pre-litigation procedures in PIPA, and the other similar legislation dealing with motor vehicle accidents and industrial accidents, meant that proceedings commenced in breach of those provisions should be struck out. It seems to me however that the reasoning underlying that approach was shown to be false by the decision of the High Court in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364. That decision was applied by the Court of Appeal in Queensland in Hamling v Australian Meat Holdings Pty Ltd [2007] 1 Qd R 315, where it was held that the circumstances of that particular case justified a refusal to strike out a claim notwithstanding non-compliance with s 303 of the WorkCover Queensland Act. A similar situation occurred in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555, where it was held that the proceeding had been commenced contrary to provisions of the Workers Compensation and Rehabilitation Act 2003 which went to the substantive entitlement of a claimant to recover damages. Although that action could not succeed while that remained the situation, the Court of Appeal set aside an order striking it out, and substituted a stay until the provisions had been complied with, in the exercise of its discretion in the circumstances of that case. It was submitted that those decisions applied only in relation to those Acts and did not apply in relation to PIPA, but it seems to me with respect that such a submission does not do justice to the reasoning expounded by the High Court and in Phipps, and that those decisions are equally applicable to PIPA.

56. [56]
    Accordingly, had I concluded that PIPA applied, the appropriate course would have been to consider whether the proceeding ought to be struck out or whether it would be appropriate simply to stay it until the steps required in Pt I of Ch 2 of PIPA had been complied with. That would have required a consideration of the various factors said to be relevant in Hamling (supra), including that if the proceeding was struck out the plaintiff would be shut out from the claim, because the plaintiff’s right had been extinguished by the convention. I think it is also relevant that, although there would still be room for investigation and the gathering of information in relation to the issue of quantum, because liability is strict there would be no need for any consideration of liability unless the defendant was concerned to raise the issue of the limitation of liability. I would therefore indicate, in case this matter goes further, on a precautionary basis, that had I concluded that PIPA did apply, I would not necessarily have struck out the plaintiff’s claim, but may well have stayed the claim until the plaintiff had complied with Pt I of Ch 2 of PIPA.

57. [57]
    The remaining matters can be dealt with when this decision is delivered.