Vock v Qantas Airways Limited (No 2)
[2022] QDC 7
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- Unreported Judgment
- Vock v Qantas Airways Limited (No 2)[2022] QDC 7
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Vock v Qantas Airways Limited (No 2)[2022] QDC 7
Vock v Qantas Airways Limited (No 2)[2022] QDC 7
DISTRICT COURT OF QUEENSLAND
CITATION: | Vock v Qantas Airways Limited (No 2) [2022] QDC 7 |
PARTIES: | JEFFREY ALLEN VOCK (plaintiff) v QANTAS AIRWAYS LIMITED (defendant) |
FILE NO/S: | 1019/2020 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 27 January 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGES: | Kent QC DCJ |
ORDER: | The applicant is to pay the respondent’s costs of the application for summary judgment. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the respondent’s prospects of success on a triable issue were real as opposed to fanciful – where the defendant argues that the change of course by the plaintiff meant the parties’ costs were thrown away -– whether the defendant ought to have been aware of its problems in relations to the issue of estoppel - where costs are in the discretion of the court but follow the event unless otherwise ordered |
COUNSEL: | Mr R McIlwain SC for the plaintiff Mr T Brennan SC for the defendant |
SOLICITORS: | Shine Lawyers for the plaintiff HWL Ebsworth for the defendant |
Introduction
- [1]This is an argument as to costs arising from my earlier determination of an application by the defendant for summary judgment.[1]
- [2]I found that the defendant’s application should be dismissed. Because I had not heard the parties as to costs in any significant way at the hearing of the application (on 15 October 2021) it was ordered that the parties make written submissions as to costs, that issue then to be determined on the papers.
- [3]As indicated in the primary judgment, my conclusion was that there was a triable issue as to whether an estoppel arose preventing the applicant from denying that it was the “carrier” in relation to the flight giving rise to the circumstances of the plaintiff’s alleged injury (for the purposes of the relevant legislation); the respondent’s prospects of success on that issue are real as opposed to fanciful and thus the application could not succeed. For the reasons outlined, I did not express any conclusions on the further arguments as to whether, as a matter of statutory construction, the applicant was or was not, for relevant purposes, a carrier, the contracting carrier, or neither (those matters, in my view, properly to be left for the trial judge).
The defendant’s submissions
- [4]On the present issue, the defendant argues that the plaintiff should not have his costs, rather the costs of the application for summary judgment be costs in the cause. The reasons, in brief, are that the application apparently commenced before another Judge on a different basis; there was an argument at that stage as to whether, factually, the plaintiff’s allegations could result in the conclusion that an “accident” was established within the meaning of s 28 of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the CACL Act).
- [5]In the defendant’s argument, the plaintiff’s submissions and evidence prior to the matter coming on for hearing on 3 August 2021 (including the original correspondence giving notice of the claim) were deficient on this issue. Thus, the plaintiff sought time to put on evidence and submissions about that aspect of the matter. This subsequently happened, and in the defendant’s argument, this amounted to a different case being advanced. Thus, the matter was not further pressed by the applicant defendant on the insufficiency of the allegations of the “accident”; rather the defendant changed course to the arguments agitated before me (to the effect that the defendant was not the carrier and the limitation period, which may not be extended, had expired).
- [6]Thus, the defendant’s stance is that this change of course by the plaintiff meant that the parties’ costs of the original hearing were thrown away as a result of the plaintiff’s vacillation. The defendant also points out, as referred to in the judgment, that although estoppel was the deciding issue in the application, it is not actually pleaded at the moment.[2] The defendant further argues that the plaintiff’s evidence about the issues of “estoppel” and “accident” only came to light shortly before the application was to be heard.
The plaintiff’s submissions
- [7]In response to this, the plaintiff argues that his original notice of claim was accurate, even if it might be the case that it could have factually been enlarged. The original notice of claim letter, setting out the broad factual matrix, may not have referred to the flight attendants being near the bottom of the stairway, rather them being at the top or bottom of the stairway, but the letter’s purpose was to put the defendant on notice of the claim rather than exhaustively particularise the complete factual details.
- [8]While acknowledging, apparently, that the statement of claim might be expanded in relation to accident, the plaintiff foreshadows an application for leave to file and serve a reply, apparently inter alia enlarging the pleaded factual matrix (and no doubt raising estoppel).
- [9]The plaintiff generally refers to two rules of the UCPR (Qld): Rule 681 where costs are in the discretion of the court but follow the event unless otherwise ordered; and Rule 299, in relation to summary judgment, providing that where the unsuccessful applicant ought reasonably to have been aware of the opposing party’s point, the court may dismiss the application and order costs to be paid.
- [10]The plaintiff’s broad stance, as I understand it, is that the defendant ought to have been aware of its problems in relations to (at least) the issue of estoppel and therefore proceeded at its own risk. Thus, the plaintiff is entitled to his costs.
Consideration
- [11]In my view the plaintiff ought be successful on this issue. As referred to in the primary judgment,[3] the parties were aware of the decision of the New South Wales Court of Appeal in Air Tahiti Nui Pty Ltd v McKenzie[4] in which it was concluded the defendant was estopped from denying that it was the contracting carrier due to representations made by the defendant’s solicitors. As referred to in the primary judgment, the present case does not feature such representations by the solicitors, but the respondent referred to representations which he argues the applicant did make giving rising to the estoppel.
- [12]Therefore in my view, the defendant was always at some risk of being unsuccessful in the application on the basis of a potential estoppel, as I concluded. I dealt with the broad factual matrix relating to the question of estoppel at paragraphs [39] to [46] of the primary judgement. As summarised in paragraph [42], the applicant, on its case as presented, could not have been in any doubt that the relevant flight was in truth operated by Sunstate rather than Qantas, although it is, of course, less clear when the applicant’s legal representative became aware of that fact. Nevertheless, there were the representations – in the public domain, although not specifically directed to the respondent - to the contrary, referred to by the respondent, such as the Qantas World Timetable as at 15 October 2018 indicating that the relevant flight was not a codeshare flight.[5] Of course, the full evidentiary examination of the relevant circumstances will be a matter to be explored at the trial.
- [13]I accept that the defendant’s written submissions raised the question of the characterisation of an “accident” for the first time on the eve of the original hearing before Judge Farr SC. Then by the time the matter came on before me, that issue was no longer pressed, and the new issues of “carrier” and estoppel were argued before me. As the respondent plaintiff argues, he has been substantially successful on the summary judgement application on the issue of estoppel, and that at least was properly within the attention of the applicant by the time it made the determination to abandon the previous arguments and pursue the application on the different issue outlined above. In all the circumstances and considering the rules outlined above, my conclusion is that the plaintiff should have his costs of the application.