Exit Distraction Free Reading Mode
- Unreported Judgment
Vock v Qantas Airways Limited QDC 269
DISTRICT COURT OF QUEENSLAND
Vock v Qantas Airways Limited  QDC 269
JEFFREY ALLEN VOCK
QANTAS AIRWAYS LIMITED
23 November 2021
15 October 2021
Kent QC DCJ
COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – SUMMARY JUDGMENT – where the defendant seeks summary judgement on the basis it was not for relevant purposes the “carrier” – where the plaintiff was injured disembarking a plane – where the limitation period has expired such that another defendant cannot be added
ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the defendant submits that it was not the correct defendant – whether the defendant is the “carrier” or alternatively a “contracting carrier” in line with the statutory interpretation – whether the defendant failed to provide information as to the correct entity – where the defendant submits that it did not make a representation that it was the correct party
Civil Aviation Act 1988 (Cth)
Civil Aviation (Carriers’ Liability) Act 1959 (Cth)
Civil Aviation (Carriers’ Liability) Act 1964 (Qld)
Uniform Civil Procedure Rules 1999 (Qld) r 293
Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251
Air Tahiti Nui Pty Ltd v McKenzie  77 NSWLR 299
Brannock v Jetstar Airways Pty Ltd  QCA 218
Commonwealth of Australia v Verwayen  170 CLR 394
Craine v The Colonial Mutual Fire Insurance Co Ltd  28 CLR 305
Deputy Commissioner of Taxation v Salcedo  2 Qd R 232
General Steel Industries Inc v Commissioner for Railways (NSW)  112 CLR 125
Klement v Pencoal Limited  QCA 152
Parkes Shire Council v South-West Helicopters Pty Ltd (2019) 266 CLR 212
Sarat Chunder Dey v Gopal Chunder Laha (1892) L R 19 Ind App 203
Swain v Hillman  1 All E R 91
The Henrik Sif  1 Lloyds Rep 456
Tritton Resources Pty Ltd & Ors v Ever Rock Navigation SA  FCA 276
Mr R McIlwaine SC for the plaintiff
Mr T Brennan SC for the defendant
Shine Lawyers for the plaintiff
HWL Ebsworth Lawyers for the defendant
- This is an application by the defendant for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), seeking judgment with costs against the plaintiff.
- The basis of the application is that having regard to the circumstances of the event causing the plaintiff’s injuries and the operation of the relevant statutory framework – broadly, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Commonwealth Act”) and the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) (“the Queensland Act”) - the plaintiff’s claim cannot succeed because
- the chosen defendant was not “the carrier” within the meaning of the Commonwealth Act such that the statutory entitlement to compensation is not engaged as against that defendant; and
- the relevant limitation period has expired leaving no recourse to add the correct defendant because any cause of action the plaintiff had is by operation of law extinguished. The limitation period in this case is two years, and may not be extended.
The Commonwealth Act enacts a number of international conventions and protocols dealing with air travel, and the State Act applies to intrastate travel as set out below.
Broadly, the issues which emerge are the merits of the contested construction argument as to the availability of the statutory cause of action, and the respondent’s secondary argument to the effect that in any case the applicant is estopped from denying that it was the carrier. As set out below, the estoppel argument is in my conclusion the deciding one, however the various arguments on both issues are canvassed.
- The plaintiff was injured on 10 April 2018 while disembarking QantasLink flight QF2331 at Brisbane, having flown from Gladstone. It seems reasonably clear that Qantas Airways, through Corporate Travel Management (“CTM”) contracted with an entity described as “Hospital and Health Service Central Queensland” (HHSCQ) in arranging the flight, the purpose of which was for the plaintiff to accompany his mother-in-law to Brisbane for medical treatment.
- The claim and statement of claim were issued on 1 April 2020, shortly before the expiration of the relevant limitation period on 9 April 2020 (thus the defendant was not required to serve and file its defence within the limitation period). The evidence also indicates that the respondent’s solicitor, Ms Kaurin, had been reasonably active in taking instructions and making arrangements for the issuance of initiating process in the period from September 2019 onwards. In particular, as described in her affidavit, she made various efforts to identify the correct defendant.
- The present argument surfaced on 5 May 2020 (shortly after the expiration of the limitation period) when the applicant’s defence was served on Ms Kaurin pleading, inter alia, that the defendant was not the “carrier” and thus not liable for the accident. The present application was filed on 28 June 2021 and argument was heard on 15 October 2021.
The applicant’s submissions
Statutory construction as to correct defendant
- The applicant submits that the plaintiff’s claim is for personal injuries resulting from an “accident” within the meaning of that term in s 28 of the Commonwealth Act which is incorporated into the law of Queensland by the Queensland Act.
- The carriage of a passenger intrastate, as is the case here, is governed by the Queensland Act.
- Pursuant to s 5 of the Queensland Act, Pt IV and Pt IVA of the Commonwealth Act (with some exceptions) apply to carriage to which the Queensland Act applies as if those provisions were incorporated in the Queensland Act. Thus the plaintiff’s claim is pursuant to s 28 of the Commonwealth Act as incorporated in the State Act. This creates strict liability for a carrier in defined circumstances and provides relevantly:
“Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason … any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
- The Commonwealth Act excludes common law remedies such as in negligence and contract (ss 35-36) and rather provides for strict liability with certain caps on damages.
- The applicant’s central proposition is that it was not relevantly “the carrier” and thus no liability is imposed upon it. The submission is that “the carrier” in s 28 is the legal person who does the “carriage” of the passenger (here, said to be Sunstate Airlines, i.e., crucially, not Qantas) for a number of reasons:
- (a)The meaning contended for is the ordinary meaning of “carrier”; that is, one who physically carries;
- (b)In the legislative context, the expression “the carrier” follows the phrase “where this part applies to the carriage of a passenger”. Thus “the carrier” is the legal person who undertakes that “carriage”;
- (c)The expression “where this part applies” is construed in accordance with s 5(1)(a) of the Queensland Act to be a reference to when the Queensland Act applies. Section 4 of the Queensland Act prescribes when it applies; relevantly, s 4(1)(a) provides that it applies to intrastate travel (intrastate travel is not covered by the Commonwealth Act – s 27(1)). It must be read with s 26 of the Commonwealth Act. It applies when the carriage is conducted by the holder of an “airline licence” or a “charter licence”: relevantly an air operator’s certificate (AOC) under the Civil Aviation Act 1988 (Cth). Section 27 of the CA Act sets out that activities which are authorised by an AOC are the operation of an aircraft (it seems clear, if not common ground, that for the relevant aircraft the holder of the AOC was Sunstate Airways; again, not Qantas);
- (d)This interpretation of “carrier” in s 28 operates harmoniously with s 5(1)(c) of the Queensland Act and s 27(4) of the Commonwealth Act. Conversely, the applicant’s argument is that to read “carrier” in s 28 as extending to a “contracting carrier” (which is the thrust of the respondent’s argument) would render those provisions meaningless;
- (e)the applicant’s contended meaning of the word “carrier” conforms with s 31 of the Commonwealth Act which limits the liability under s 28 of “domestic carriers” defined as “carriers operating a flight” within Australia and, so it is argued, with the legislative history of that provision. That is, it contends that it is the operating carrier which is made liable, not an extended definition to include legal persons whose involvement may only be a contractual one with the operating carrier;
- (f)the contended for meaning of “carrier” gives the operation of Part IVA of the Commonwealth Act (s 41E) and sections 28 BA and 28BI of the CA Act coherence with s 28, in that, so the argument goes, those who might actually carry passengers on an Australian aircraft (but not those who might merely contract for that carriage) must have insurance that will respond to the liability imposed by s 28. S 41E requires insurance to be held by those engaging in a passenger-carrying operation, and s 28BI imposes the same obligation on the AOC holder.
- As outlined above, it is submitted that it is clearly Sunstate Airlines which operated the relevant aircraft under an AOC held by it.
- The applicant submits that at all material times, Sunstate was registered on the Civil Aviation Safety Authority’s Aircraft Register as the operator of the aircraft. Further, at all material times, all flights with flight codes in the relevant range, including the subject flight, were operated by Sunstate. It is also submitted that “QantasLink” and “Sunstate Airlines” are business names registered to Sunstate. I pause to note that a lay observer might find it surprising that the name “QantasLink” is used not by Qantas but by a different entity, and that the distinction could be decisive of a cause of action, as may be the case here.
- Thus the applicant engages with the respondent’s argument that QAL was the “contracting carrier”. The applicant’s argument is that this is a term used in respect of international conventions and dealing with the liability of international carriers; it does not form part of the Queensland Act or Part IV of the Commonwealth Act and is inapplicable to the present case.
- If this is correct, the respondent does not have a claim against Sunstate in that it has been extinguished by operation of s 34 of the Commonwealth Act. I do not understand this submission to be contentious, if the appellant’s arguments as to the correct entity and estoppel prevail.
- The applicant relies on the legislative context to construe the meaning for which it contends. It points to s 26(1) of the Commonwealth Act, providing that an “airline license” is an air operator’s certificate in force under the CA Act authorising airline operations. “Domestic carrier” in s 26 means a carrier operating a flight for the carriage of passengers:
- (a)between a place in a state and a place in another state; or
- (b)between a place in a territory and a place in Australia outside that territory; or
- (c)between a place in a territory and another place in that territory; other than carriage to which Part IA, II or III applies.
Thus the applicant argues that s 26 is simply not engaged in the present circumstances, which was intra-state transport.
Further, it must be understood that the Commonwealth Act creates a statutory liability for injuries suffered in connection with intrastate air travel and excludes other common law remedies; ss 35-36. In particular, reference is made in this context to Parkes Shire Council v South-West Helicopters Pty Ltd where at paragraph  the plurality held:
“As to the first of the considerations referred to by Leeming JA, the liability contemplated by Art 17 of the Warsaw Convention and s 28 of the CACL Act is event-based; it is not concerned to draw upon the legal character of the event as a matter of domestic law. In particular it is not fault-based in terms of the domestic law of civil wrongs, nor, importantly is it tied to a contractual relationship between carrier and passenger. The persons who may sustain damage that may be the subject of a claim under s 28 are not confined to those who are carried pursuant to a contract of carriage. Section 35(2) of the CACL Act, in providing for substitution for other forms of civil liability, being those arising ‘under any other law’, employs language that comprehensively describes any basis, and any legal theory, which might ground a civil liability other than the provisions of Part IV.”
And at :
“The third consideration referred to by Leeming JA is focused upon the "rights of non‑passengers". But the focus of ss 28 and 35(2) is upon the liability of carriers for damage in respect of the death of a passenger. It was the evident intention of the Warsaw Convention and the CACL Act to limit that liability notwithstanding the domestic law of participating nations. The "cardinal purpose" of the CACL Act in giving effect to the Convention was to achieve uniformity in the law relating to liability of air carriers, so that, in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law. A construction of Pt IV consistent with the purpose of the Convention is to be preferred, especially given that by s 11(1) of the CACL Act the Warsaw Convention as amended by the Hague Protocol has the force of law in Australia, and s 25K has the same effect in respect of the Warsaw Convention as amended by the Hague Protocol and the Montreal Protocol No 4.”
In Parkes, the plaintiff widow and other family members sued out of time for nervous shock suffered on the death of the deceased, in intra state travel. The argument centred on whether the cause of action was extinguished by the operation of s 35(2) of the Commonwealth Act. It was concluded that it was.
Estoppel/Mistake as to Correct Entity
- The applicant further argues that there is no basis for an estoppel, which is raised by the respondent plaintiff. It points out that on 7 January 2020 and 24 March 2020 the applicant requested particulars of the basis of the plaintiff’s claim, however this was not responded to. It is argued that the applicant was at this stage properly enquiring as to the relevant circumstances, for example, the flight may have been part of an international flight which may have exposed Qantas to liability as the “contracting carrier”. Thus, it is argued that neither the defendant nor its solicitors contributed to the error by the plaintiff as to the correct entity.
- It is submitted by the applicant that a mistake arose from the plaintiff’s solicitor wrongly confusing the word “Qantas” with the identity of Qantas Airways Limited. Further it argues that the solicitor mistakenly relied on information from third parties, in particular CTM, who had booked the plaintiff’s flight, and possibly online searches of Flightera.net and the Airportia websites indicating that the flight was a Qantas flight (although, as outlined below at , the search of these websites was conducted after the proceedings were issued, and thus would not form the basis of any operative mistake; I do not understand the respondent to contend that they do).
- The applicant thus argues that there was no representation by it that the claim was against the correct party, and thus estoppel is not open. Reference is made to Tritton Resources Pty Ltd & Ors v Ever Rock Navigation SA  FCA 276 at . Derrington J referred there to an innocent misleading of the plaintiffs by the named defendant giving rise to an estoppel in Air Tahiti Nui Pty Ltd v McKenzie  at -. His Honour also referred to the circumstances of the case with which he was dealing, which included an absence of evidence that the defendant was aware the plaintiffs were labouring under a relevant mistake in the relevant period; in those circumstances estoppel could not be sustained. The applicant argues the present case is similar.
- Thus, the applicant argues that it is a clear case for summary judgment; the plaintiff has no real (as opposed to fanciful) prospects of success.
The Respondent’s submissions
- The respondent plaintiff argues that it is clear that the defendant, Qantas Airways, was the contracting carrier for the flight. He refers to the flight itinerary/tax invoice, part of Exhibit SW4 to the Affidavit of Ms Wijayasekara at page 46 of the exhibits. That document contains a heading “Ticket” which is followed by the words “Qantas Airways”. It was issued on 29 March 2018 for travel on 10 April, Gladstone to Brisbane. It is a document apparently generated by CTM for HHSCQ. It is evidence, so the respondent argues, of a contract between HHSCQ (or possibly CTM) and Qantas Airways for the travel.
- The respondent also refers to the evidence of Ms Kaurin. In her affidavit sworn 30 July 2021, she deposes at paragraph  to having conducted online searches on 18 December 2019 (i.e., within the limitation period) to confirm the flight information such as the carrier details and flight number. She found a copy of the Qantas World Timetable which is exhibited to her affidavit. Page 27 thereof refers to flight QF 2331 Gladstone to Brisbane. It is marked as a Qantas flight. The legend at the bottom of the page indicates that code-share flights are indicated by an asterisk. Ms Kaurin notes that no asterisk was placed near the flight number QF 2331, as the document shows. This obviously tends to support the position that there was no information available that the carrier was Sunstate Airlines, or more relevantly, anyone other than Qantas. There is no indication other than that the document is one published by the applicant, and that Ms Kaurin, on behalf of her client Mr Vock, thereafter conducted the litigation henceforth on the basis of the information therein, including, as she outlines, correspondence with the applicant describing the flight explicitly as a Qantas flight and issuing proceedings naming the applicant as defendant.
- The Timetable information was added to by the flight itinerary obtained from the staff at Gladstone Hospital which again shows the flight to be operated by Qantas Airways. This is consistent with the ticket referred to in paragraph  above.
- Ms Kaurin deposes to her assertion that she relied on what she was told by CTM as to the correct carrier (paragraph ) however as outlined above it seems clear she also acted on the Timetable, a document apparently published by the applicant.
Construction – was Qantas the contracting carrier?
- On the merits of the construction aspect of the application, the respondent argues that the application is misconceived, because even if Sunstate was the actual carrier, Qantas was the contracting carrier and therefore also liable to the plaintiff.
- It is pointed out that the term “carrier” is not defined in the Queensland or Commonwealth legislation. It is linked to the meaning of “carriage of passengers”. “Carrier” is defined in s. 41B of the Commonwealth Act to mean “a person engaged, or proposing to engage, in a passenger carrying operation.” This then is defined to mean “an air transport operation for the carriage of passengers” to which part 1A(ii), (iii) or (iv) applies.
- Section 4(1) of the Queensland Act provides that the act applies to the carriage of a passenger where the passenger is to be carried in an aircraft being operated by the holder of an airline or charter license, in the course of commercial transport operations under a contract for the carriage of passengers wholly within the State of Queensland. The respondent focuses on the words “under a contract for the carriage of passengers” which, it is argued, is broad and does not exclude or differentiate between an actual carrier and a contracting carrier. However, as noted above, those words are preceded by the condition that the operator has an airline or charter license, which is the air operator’s certificate referred to above; see s 2 of the Queensland Act. Section 2(2) applies the definitions in s 26 of the Commonwealth Act to the interpretation of s 4 of the State legislation.
- Nevertheless the respondent submits that the definition of “carrier” is broad and does not exclude a contracting carrier; however the difficulty for this submission appears to be the application of the definitions in the Commonwealth legislation referred to.
- It is also submitted that the Civil Aviation Safety Authority have defined “carrier” to include someone who holds an AOC, but, further, someone who offers to transport passengers to, from or within Australia on an aircraft operated by another carrier. It is not clear to me that the CASA publication is inconsistent with, or over-rides the other legislative provisions outlined above.
- The respondent points out that under the international conventions the concept of a “contracting carrier” does exist. There is no doubt this is correct; the response of the applicant is that the present case did not involve international travel to which the conventions applied, thus the Commonwealth Act was not engaged.
- Reference is made to Air Tahiti Nui Pty Ltd v McKenzie. In that case, the New South Wales Court of Appeal concluded that Air Tahiti was a “carrier” for the purpose of the Montreal No 4 convention. Air Tahiti had argued that its parent company “ATSA” was a carrier, as it was the operator of the aircraft, the employer of the flight crew and the holder of an air operators’ certificate. In that case, as here, the limitation period for an action to be commenced against the operator had expired.
- The Court held that where a travel or transport intermediary undertakes a contractual obligation for carriage (even if it cannot perform the contract itself) they are contracting as a principal. The Court concluded that Air Tahiti contracted (through the travel agent, Flight Centre) with the plaintiffs as principal for the carriage from New York to Tahiti. The court noted at paragraph :
“Travel and transport intermediaries may procure a contract of carriage as a broker or agent; or may undertake a contractual obligation for carriage. In the former case they are not a principal, but in the latter they are, even if they cannot perform the contract themselves but have to subcontract with an actual carrier. The phrase in Art I(b) is “agreement for carriage”, not “agreement of carriage.”
- Further, in Air Tahiti, the defendant was estopped from denying that it was the contracting carrier due to the representations made by the defendant’s solicitors that the plaintiff had identified the correct defendant. The present case does not feature any such representations by the solicitors, but the respondent does refer to representations he argues the applicant made, outlined above.
- Although the Air Tahiti case relates to international conventions as incorporated into Australian law pursuant to the Commonwealth Act, the respondent argues that the definitions and principles ought to be extended to the operation of the Queensland Legislation.
- The respondent also refers to Brannock v Jetstar Airways Pty Ltd. In that case the plaintiff was to be a passenger on a Jetstar flight and was injured in attempting to board a flight. Jetstar defended the proceedings on the basis that he was not injured as a result of an “accident” within the meaning of s 28 of the Commonwealth Act because they were not the result of an unexpected or unusual event or happening external to him. Jetstar applied to strike out the plaintiff’s claim as disclosing no reasonable cause of action. This was dismissed, however on appeal Jetstar was successful. The case turned on the defiant meaning of “accident”. Relevantly for present purposes, the respondent relies on observations in the judgment of White JA at :
“… While Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) does not carry any international convention directly into domestic law, it is accepted that Part IV extends principles relating to international air carriage into domestic law. In Povey, the High Court observed that, in construing Part IIIC of the Civil Aviation (Carriers’ Liability) Act (which applies the provisions of the Montreal No. 4 Convention), “international treaties should be interpreted uniformly by contracting states”, adding that:
“[t]he ultimate questions are, and must remain: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law?”
- Reference is also made to Parkes Shire Council v South West Helicopters (supra at ) as to the need to adopt a uniform approach to the interpretation of the law governing civil aviation. Parkes was a case where the plaintiffs sued out of time for causes of action not within the permitted statutory framework.
- The respondent also refers to General Steel Industries Inc v Commissioner for Railways (NSW) for the well-known principles as to summary judgment applications. This is to the effect that the jurisdiction is sparingly employed and not to be used except in a clear case. Another formulation of the test is found in Deputy Commissioner of Taxation v Salcedo where Williams JA quoted from Swain v Hillman  1 All E R 91 per Lord Woolf M R at 92:
“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
His Honour also noted the observations of Judge LJ at :
“This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable."
- Thus the competing arguments are, firstly, as to the construction point, and whether it results in the clear conclusion that the respondent cannot succeed because the applicant was not the carrier; and secondly, as to whether the respondent has prospects of success, which are more real than fanciful, on the estoppel argument.
- It seems logical to consider the possible estoppel first, in the sense that if that issue is concluded against the applicant, final resolution of the construction point may, and properly should, be left for the trial judge.
The factual framework relevant to estoppel
- The broad factual matrix bearing on estoppel is outlined above, however further details are also relevant. Ms Wijayasekara is the applicant’s manager in charge of Regional Operations – Major City Airports. She deposes to a number of facts and her affidavit exhibits documents. Firstly, that the carrier of QF2331 was Sunstate, not Qantas. “QantasLink” is a business name registered to Sunstate. A “flight range table” indicates that a number of flight codes, including QF2331are operated by Sunstate and have been since April 2018 (there does not seem to be any suggestion in the evidence that the plaintiff or his solicitors saw this document at any relevant time; it is unclear whether it is publicly available). The itinerary which she produces, SW4, indicates that the flight was a code share with Sunstate, although, curiously, as outlined above, the attached invoice under the heading “Ticket” mentions only Qantas Airways with no reference to Sunstate.
- The Qantas Conditions of Carriage (SW 3) are available on the Qantas website. They refer to the word “Qantas” as including the applicant and its regional airlines operating under the “QantasLink” brand. They also refer to arrangements with other carriers, known as “codeshares”, with the statement that passengers will be advised of the carrier operating at the time of reservation (Mr Vock in his affidavit, court file doc. No. 9, does not mention any such advice, although of course the reservation was made by CTM, not Mr Vock).
- Ms Wijayasekara sets out a number of documents to establish that Sunstate, not Qantas, had the AOC for the relevant aircraft; see paragraphs  to  of her affidavit and exhibits SW 5 to SW 7.
- Accepting that proposition for the moment, there is no suggestion any of this was news to Ms Wijayasekara or the applicant. That being so, the idea that Sunstate could be operating the flight without the applicant being aware of that fact could not seriously be considered; it seems inescapable that I should approach the matter on the basis that at all material times the applicant was aware that Sunstate, not Qantas, was the operator and the carrier (although it is less clear when the applicant’s legal representatives became aware of this).
- Ms Kaurin emailed Mr Brooks, a partner at the firm acting for the applicant, on 11 December in relation to this and another claim. Ms Kaurin then made further enquiries, including of Ms Hasse at the Gladstone Hospital (HHSCQ) and received a number of documents including a large number of itineraries, but not the vital one for 10 April. These other itineraries indicated that the flights they related to, all Gladstone – Brisbane or return, were codeshare with Sunstate. Ms Kaurin pursued the missing itinerary (paragraphs -) but importantly on 18 December 2019 did an online search and found the Qantas World Timetable as at 15 October 2018 which indicated QF2331 was not a codeshare flight.
- Thus Ms Kaurin wrote by registered post to the applicant’s claims manager on 19 December notifying of the claim including the flight number, date, time of arrival and the points of departure and arrival; a copy was emailed to Mr Brooks. There was a response from the solicitors for the applicant on 7 January 2020 asking a number of questions as to liability and quantum. A copy of inter alia the boarding pass and itinerary were requested. Ms Kaurin did not at that time have the copy of the itinerary to provide. It arrived on 10 January; the itinerary did not mention Sunstate. Mr Vock did not retain his boarding pass.
- The next event was Ms Kaurin emailing Mr Pool, the solicitor then with conduct of the matter for the applicant, on 16 March, requesting a copy of the incident report. This was followed up in a phone call of 23 March; Ms Kaurin expressed her concern as to the limitation period. The following day Mr Pool sent a letter requesting details of the oral incident report made.
- Proceedings were commenced on 1 April and sent to Mr Pool the next day by email. After some skirmishes service was accepted. The defence was filed on 30 April, but sent to Ms Kaurin on 5 May, denying liability on the basis the applicant was not the carrier. It seems the applicant did not expressly mention Sunstate as being the carrier until 12 October 2020. This led to further correspondence including Ms Kaurin’s letter of 1 December 2020.
Nature of estoppel
- Estoppel arises where a litigant may not be permitted to allege, in a pleading or at a trial, facts which are directly contrary to his previous representations. It is a rule of evidence whereby a party in certain circumstances is not allowed to allege or prove a fact, irrespective of whether the fact is true. An example is Klement v Pencoal Limited, where the appellant principal, who had revoked his agent’s authority, learned that the agent had subsequently forged his signature on transfers of real and personal property. Despite knowing this, he did not tell the transferee prior to settlement. The transferee paid the price to the purported agent. Thus the principal was estopped from years later contending the sale was a nullity. The representation implied by the appellant’s silence and inaction was that the agent could be relied on to produce valid transfers in performance of the appellant’s observations. The court found that the appellant stood by deliberately. His silence amounted to “an implied communication” of acquiescence in the forgery and the finding of estoppel was plainly supported. This is an example of an estoppel arising in the absence of an overt, positive representation.
- More directly relevant for present purposes is Air Tahiti Nui Pty Limited v McKenzie, mentioned above. There, the defendant was found to be estopped from denying its liability on the basis that its parent company, Air Tahiti Societe Anonyme (“ATSA”) was the only carrier. The primary judge had found the appellant’s solicitor knew that the other party laboured under the assumption that the appellant was the correct defendant and refrained from correcting him when it was his duty in conscience to do so; see Commonwealth of Australia v Verwayen  170 CLR 394 at 444.
- The court of appeal considered that finding, based on actual knowledge of the other side’s mistake, could not be supported. However there were representations by conduct, including in the appellant’s participation in preliminary discovery, to the effect it was the appropriate defendant. It was analogous to The Henrik Sif where the representative “impliedly represented… that… their principals, were capable in principle of being made liable on the bills of lading…subject to the merits of the claim”.
- Air Tahiti was not a case of mere silence as set out at  – :
“ This is not the case where it is sought to establish a representation by mere silence and inactivity. The appellant both acted and spoke and its conduct is within the principle stated by Black CJ in Demagogue Pty Ltd v Ramensky  FCA 557; (1992) 39 FCR 31 at 32:
"To speak of ‘mere silence’ or of a duty of disclosure can divert attention from [the] primary question. Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts and giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed." (emphasis added)
 There is nothing to suggest that either Mr Lee or the solicitor deliberately intended to mislead the plaintiffs’ solicitor, or were consciously aware of his mistake, or had in the forefront of their minds the distinction between the two legal entities and decided to say nothing. Many of the problems flow from the ambiguity created by the appellant's corporate and registered business names which may have misled Mr Lee and the solicitor as much as the plaintiffs’ solicitor. The position would have been very different if the appellant was registered as Air Tahiti Nui Sales or the like.”
- Further, the judgement continues, the appellant’s own mistake is not an answer to the estoppel. As set out in Sarat Chunder Dey v Gopal Chunder Laha, the law focuses on the position of the person who was induced to act – here, the respondent who was induced to issue proceedings naming Qantas as the defendant. If the person who made the statement did so without full knowledge, or under error, he has no one to blame but himself. Also see Craine v The Colonial Mutual Fire Insurance Co Ltd. It is not essential that there be any intention to deceive. Thus it would make little difference if the Qantas World Timetable referred to by Ms Kaurin, contained an error; it is the document’s effect on Ms Kaurin which must be considered.
- As in Air Tahiti, the present case could be an example of ambiguity created by business names. No doubt for perfectly good reasons, the allegedly true carrier, Sunstate, traded under the name QantasLink, giving rise to obvious potential confusion.
- Curiously, estoppel is not pleaded in this case – there has been no reply filed. However the parties have apparently been content to argue the application on the basis it is a live issue. It is raised in Ms Kaurin’s affidavit – paragraphs  and  - and both parties have thus engaged with the possibility of estoppel and made written and oral submissions on the topic. The applicant is to be complimented on this pragmatic approach to the issue, which is consistent with the philosophy of expeditious conduct of litigation in UCPR 5.
- The respondent says through Ms Kaurin that the applicant is estopped from denying it is the carrier in light of “the representations made by its solicitors who at no stage indicated that the claim was being conducted against the wrong entity until after the Plaintiff’s limitation period had expired” (paragraph ). This might be seen as a situation – comparable with Air Tahiti and Demagogue, supra - in which the respondent would emphasise the context in which the “silence” occurred: the plaintiff was, to the applicant’s knowledge, only focused on Qantas; the applicant must have known the true carrier was Sunstate; this fact was not obvious to the respondent; and the distinction was crucial with the limitation period expiring.
- Further, the applicant through Ms Kaurin relies on an overt statement: the online information as to the identity of the carrier (paragraph ). This is presumably the Qantas World Timetable she looked at in December 2019 (see  above). She received the relevant itinerary, naming only Qantas, on 10 January 2020, however this was a document apparently produced by CTM, not directly by Qantas. It does not appear to presently be suggested that this would form a representation by Qantas’ authorised agent to which Qantas could be held – certainly the applicant seems to regard CTM as being in the category of “independent third parties” which the respondent could not rely on.
- Thus the two aspects apparently relied on are the possible deliberate silence (although it may not make any difference if the applicant was mistaken rather than being deliberately silent, see  above) on the issue, while the respondent was, to the applicant’s knowledge, labouring under a misapprehension; and the representation to the world at large represented by the Qantas World Timetable, upon which the respondent acted.
- The applicant argues there is no arguable estoppel raised – it complains that it requested particulars of the basis of the claim in January 2020, but the plaintiff did not respond. It says it was proper, having received notice of the claim, for it to investigate the liability, for example the Gladstone – Brisbane leg may have been the start of an international flight, which may have exposed the applicant to liability as a contracting carrier under the Commonwealth Act (see  above]). It is not, however, clear on the evidence that any such enquiries were in fact being made – the letter of 7 January 2020 asks a total of 26 questions, which include many sub-questions, yet none relate to a possible international flight. The itinerary and other documents were sought (as outlined above, Ms Kaurin received the relevant itinerary on 10 January, but does not seem to have forwarded it to the applicant’s solicitors). The notice of claim on 19 December had already identified the flight as “Qantas flight QF2331” and described it as a domestic flight from Gladstone to Brisbane. Nothing in that correspondence refers to a subsequent international flight. Accepting, as I do, that the applicant knew or should have known at all material times that Sunstate was the operator and therefore the carrier for QF2331, it is hard to escape the conclusion that, on the present evidence, it did nothing to disabuse the respondent of his apparent mistaken belief that Qantas was the correct defendant (of course, as noted above, there is no evidence as to when the applicant’s solicitors, separately from the applicant, became aware of the true state of affairs). Without more, this could amount to a triable issue as to whether there was a representation, by the applicant’s silence and inaction in failing to correct the apparent misapprehension, possibly raising an estoppel as in Klement and Air Tahiti (supra). This is in addition to the possibility of the overt representation in the Qantas World Timetable.
- The applicant also argues that the plaintiff’s mistake was of law rather than fact, apparently based on Ms Kaurin’s assertion that Qantas was the contracting carrier. However the passage referred to in this context, paragraph  of Ms Kaurin’s affidavit, simply refers to her observation in viewing the Qantas World Timetable that Qantas was the only identified carrier. This is a factual assertion, not a legal one. It is incorrect to say that the applicant did not contribute to that mistake; there is no apparent contest that the Qantas World Timetable was a Qantas publication (and on the present information, it was quite wrong).
- The applicant also argues that the respondent’s solicitor’s mistake was misidentifying Qantas with the identity of QAL, the corporation. However this does not appear to arise in relation to the Qantas World Timetable.
- The applicant submits that the Qantas Group’s published terms of carriage show that “Qantas” refers, depending on the context, to QAL and also to Sunstate and other AOC holders forming part of the corporate group. No doubt this is a clue which may have been discovered by the respondent’s solicitor; there is no suggestion in Ms Kaurin’s affidavit that she did look at the terms of carriage, however in my view, on this interlocutory application I would hesitate to be too critical of her for not doing so, as it may not be the first place a solicitor would look to identify a defendant as well as the terms of carriage; this is particularly so if, as seems likely, she was aware that the legislation governing the claim created strict liability – the terms of carriage would thus be perceived to have less impact on liability than otherwise.
- It may well be, as the applicant says, that the respondent is not entitled to rely on publications by independent third parties, such as CTM; however that is not necessary for the estoppel claim to be arguable, as outlined above. The references by Ms Kaurin to later research (paragraph  of her affidavit) are not, as I understand it, intended to relate to the estoppel which arose much earlier in the context of the issue of the proceedings. The later searches she conducted as to Sunstate show – after the event - the difficulty of ascertaining the true position.
- It is not clear to me that Ms Kaurin can necessarily be criticised for not searching the “public register of Australian Aircraft” as the applicant argues. The exercise in doing so, described by Mr Pool in his second affidavit, presumably on instructions, would not, it seems to me, be obvious to even an experienced legal practitioner. To criticise Ms Kaurin for not using the register to find out if Qantas owned any Dash-8’s seems, with respect, to be something of a counsel of perfection.
- My conclusion, therefore, is that there is a triable issue as to whether an estoppel arises preventing the applicant from denying that it was the carrier. The respondent’s prospects of success on that issue are in my view real rather than fanciful. It follows that the application must be dismissed. In the circumstances it is not necessary for me to reach a concluded view on the question of whether, as a matter of statutory construction, the applicant was a carrier, or a contracting carrier, or neither.
- Thus the application is dismissed. The parties are to file and serve outlines of submissions as to costs, not exceeding four pages on the following dates: the applicant is to file and serve their outline by 30 November 2021; the respondent is to file and serve their outline by 7 December 2021. Obviously it is necessary in the ongoing conduct of the litigation for the respondent to file and serve a reply, agitating the estoppel discussed above in an appropriately particularised pleading (I note other amendments to the pleadings are also foreshadowed). It would be necessary to seek an extension of time for doing so under UCPR 7.
See Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at , -.
See Exhibit SK7 to the affidavit of Ms Kaurin, court file doc no. 9 at page 22; exhibit SK 15 at p160; email from Mr Rose to Ms Kaurin of 22 June 2021, exhibit SK 27.
See Ms Kaurin’s affidavit paragraphs 7 to 25.
Civil Aviation (Carriers’ Liability) Act 1964 (Qld) s 4.
Affidavit of Sonali Wijayasekara, court file doc. no. 7 at  – .
Affidavit of Ms Wijayasekara at .
Affidavit of Ms Wijayasekara at .
(2019) 266 CLR 212.
 77 NSWLR 299.
SK-10; commencing at p76 of the exhibits.
Affidavit of Ms Kaurin, paragraphs -
Exhibit SK15, p. 160 of the Exhibits.
Supra at footnote 9.
 QCA 218.
 112 CLR 125.
 2 Qd R 232.
Ms Kaurin’s affidavit paragraph , exhibit SK 7.
Ibid paragraph , exhibit SK 10, page 27 of 66.
Affidavit of Ms Kaurin, exhibit SK 13; also BAP 3 to the affidavit of Mr Pool, court file doc. no. 6.
Ibid Exhibit SK 15.
Affidavit of Mr Vock, Court File Doc. No. 12, paragraph 14.
Mr Pool’s affidavit exhibit BAP 6.
Ibid Exhibit BAP 9.
 QCA 152.
Supra, at .
 1 Lloyds Rep 456 at 463.
(1892) L R 19 Ind App 203 at 215.
 28 CLR 305 at 327.
Who saw, presumably, the “QantasLink” logo on the aircraft, the Qantas uniforms worn by the flight attendants and, as he outlines, the Qantas sign at the check in counter where he verbally reported the incident the following day (paragraph  of Mr Vock’s affidavit).
See the affidavit of Ms Wijayasekara at  and page 101 of the exhibits thereto indicating that the term “Qantas” means Qantas Airways Limited and Qantas’s regional airlines.
- Published Case Name:
Vock v Qantas Airways Limited
- Shortened Case Name:
Vock v Qantas Airways Limited
 QDC 269
Kent QC DCJ
23 Nov 2021