In brief - Sydney Seaplanes Pty Ltd has successfully appealed to the New South Wales Court of Appeal to set aside the Supreme Court's orders, made under section 11 of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (State Jurisdiction Act), to treat previously issued Federal Court proceedings as proceedings in the Supreme Court. 

The matter concerned proceedings brought by Mr Page in a bid to circumvent the statutory two year time limit on claims brought under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Commonwealth CACL Act). Mr Page and his legal advisors had mistakenly commenced proceedings in the wrong jurisdiction and sought to use a previously untested ambiguity in the State Jurisdiction Act to rectify this error.

In Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204, the Court of Appeal set aside the primary judge's decision on the grounds that a literal reading of the State Jurisdiction Act does not conform to the legislative intent of the statute and the particular mischief which the legislature sought to address, being the jurisdictional chaos that had ensued following the High Court's decision in Re Wakim.

The result of this decision is to authoritatively limit the application of the State Jurisdiction Act to matters in which a "want of jurisdiction" arises as a result of reliance upon the validity of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). The Court is clear that it will not permit such remedial legislation to be broadly construed as a safety net for litigants who misguidedly commence proceedings without first considering the issue of jurisdiction.

For practitioners of aviation law, and others seeking to rely on the intertwined provisions of the State and Commonwealth carriers' liability acts, the decision is a reminder to carefully consider the application of each Act to ensure claims relating to inter- or intra-state carriage are brought in the correct jurisdiction in the first instance. 

Background

In 2017, a seaplane operated by Sydney Seaplanes crashed killing all six people onboard, including Heather Bowden-Page, the daughter of the Respondent (Mr Page). 

Mr Page subsequently commenced proceedings in the Federal Court on 18 December 2019 where he sought damages under the Commonwealth CACL Act, as incorporated into New South Wales law by section 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) (NSW CACL Act). 

In 2020, the Federal Court dismissed the proceedings for want of jurisdiction as the flight had taken place wholly within the state of NSW. Unfortunately, by the time the Federal Court handed down its decision, Mr Page's right to damages had been extinguished by the two year limitation period stipulated in section 34 of the Commonwealth CACL Act (as applied in NSW). 

In an attempt to circumvent section 34, Mr Page applied to the Supreme Court for orders under section 11 of the State Jurisdiction Act to the effect of treating the Federal Court proceedings as Supreme Court proceedings deemed to have commenced on 18 December 2019. 

Primary decision of the Supreme Court in Page v Sydney Seaplanes Pty Ltd t/as Sydney Seaplanes [2020] NSWSC 1502

Justice Adamson ruled in favour of Mr Page and declared that the Federal Court proceedings were to be treated as Supreme Court proceedings and deemed to have commenced within the prescribed two year period, thereby bringing the action within the ambit of the CACL Acts. 

Justice Adamson's decision was based on Her Honour's satisfaction of three key issues. 

First, Adamson J held the order made by the Federal Court fell within the literal meaning of section 11(1) of the State Jurisdiction Act, as it clearly refers to a federal court dismissing "a proceeding relating to a State matter for want of jurisdiction". 

Second, Adamson J considered that the definition of "limitation law" in section 11(1) relevantly extends to the two year time limit in section 34 of the CACL Acts as it limits the liability of the carrier by reference to time and, therefore, any established distinction between the "limitation" and "extinguishment" of an action is immaterial. 

Third, Adamson J reasoned that any inconsistency between the section 34 imposition of a two year time limit and the ability to back date proceedings through section 11(3)(b) of the State Jurisdiction Act was resolved, inter alia, by the NSW legislature's clear intent for section 34 to have paramountcy over other state laws. Specifically, Adamson J relied on section 6A of the NSW CACL Act, which provides that the provisions of the Act are to be administered and enforced as if they were laws of the Commonwealth, rather than laws of the state.

Sydney Seaplanes appealed this decision and the following three issues were raised for consideration by the Court of Appeal: 

  1. Was the Federal Court's order to dismiss the proceedings for want of jurisdiction a "relevant order" within the meaning of section 11(1) of the State Jurisdiction Act? (Construction Issue)

  2. Is section 34 of the Commonwealth CACL Act, as applied by the NSW CACL Act, a "limitation law" within the meaning of section 11(1) of the State Jurisdiction Act? (Characterisation Issue)

  3. Is section 34 of the Commonwealth CACL Act inconsistent with section 11(3)(b) of the State Jurisdiction Act? (Inconsistency Issue)

Decision on Appeal

1. The Construction Issue

The appeal turned on the question of whether Adamson J was correct to take a literal approach to the construction of section 11(1) and thereby reignite Mr Page's rights under the CACL Acts. 

The Court of Appeal held, in light of the context and purpose for which the State Jurisdiction Act was enacted, that it was "an unavoidable conclusion" that the "want of jurisdiction" referred to in section 11(1) refers only to a want of jurisdiction by reason of a constitutionally invalid conferral of jurisdiction as addressed by the High Court in Re Wakim; Ex parte McNally [1999] HCA 27.

The Court observed that while there was no doubt that the Federal Court's decision fell within the literal meaning of "relevant order", in that it was "an order of a federal court dismissing a proceeding relating to a State matter for want of jurisdiction", there was sufficient compelling extrinsic material to persuade the Court that the sole purpose of the State Jurisdiction Act was to respond to the change in law effected by Re Wakim

In contrast to the narrow textual approach of the primary judge, the Court of Appeal found this to be a case where the literal and grammatical meaning of the text must be read down in a way that is consistent with the intended purpose of the State Jurisdiction Act. In doing so, the Court relied on the explanatory memorandum, second reading speech and the broader context of the High Court's decision in Re Wakim to conclude that there is nothing to suggest that the purpose of the State Jurisdiction Act extends to proceedings commenced two decades after Re Wakim was delivered. 

In examining the State Jurisdiction Act in its context as a reaction to Re Wakim, the Court considered the words of the then Attorney-General to be particularly significant when, during parliamentary debate, he described the State Jurisdiction Act as a "stopgap measure", rather than the "ultimate solution", to deal with the aftermath of Re Wakim. Consequently, the Court found that "there is nothing to suggest that its purpose extended to benefiting all plaintiffs who commenced proceedings in federal courts without jurisdiction for any reason whatsoever".

The Court's decision on this issue was sufficient to grant the appeal and set aside the orders of the primary judge. However, for the sake of completeness, and in a manner that may prove useful for future application of the CACL Acts, Bell P went on to consider the Characterisation and Inconsistency issues. 

2. The Characterisation Issue

President Bell again disagreed with the primary judge on the characterisation of section 34 of the Commonwealth CACL Act. 

Justice Adamson held that the fact section 34 limits the liability of the carrier by reference to the time when a proceeding commenced was sufficient for it to be considered a "limitation law" within the meaning of section 11(1) of the State Jurisdiction Act. However, Bell P affirmed that there is a well-recognised distinction between the extinguishment of a right and the barring of an action to enforce a right and obtain a remedy and considered that this distinction ought to be maintained. 

The High Court considered this distinction in the context of section 34 in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38, where it held that section 34 is not a provision which adds a time limitation in respect of a right. Instead, what ensues when a litigant fails to commence an action within two years is "not the expiry of a relevant period of limitation, but the removal of a prerequisite for the existence of the right sought to be litigated".

In light of the foregoing, the Court held that section 34 is not a limitation law for the purposes of section 11(1) of the State Jurisdiction Act. 

3. The Inconsistency Issue

The Court did not consider this issue in great depth, but held that section 34 of the Commonwealth CACL Act was not inconsistent with section 11(3)(b) of the State Jurisdiction Act. 

The Court found there to be a distinction between the process by which a proceeding is deemed to have commenced at an earlier point in time, and the process by which there is a discretionary extension of time in which to bring a proceeding that is otherwise out of time. President Bell considered that the immediate case, as an example of the former scenario, does not give rise to any inconsistency. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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