Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 (07 September 2021) (Bell P at [1]; Leeming JA at [85]; Emmett AJA at [151])


Catchwords:


CIVIL PROCEDURE – jurisdiction – declaration that court has no jurisdiction to decide claim – claim for death or injury – carriage by air – occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Supreme Court claim brought more than two years after relevant carriage by air – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether claim in the Supreme Court was extinguished by s 34 of the Civil Aviation (Carriers’ Liability) Act 1959

CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – Supreme Court proceedings pursuant to s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where those proceedings are linked to incompetent Federal Court proceedings but operate independently of them – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) operates to extinguish any claim for damages under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) if not brought within two years after an accident – whether order made under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) undermined the purpose of s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – order under s 11(2) not a discretionary extension of time to bring a proceeding otherwise out of time

LIMITATION OF ACTIONS – operation of bar – action for compensation for death under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – where s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that the right to damages is extinguished if a party does not bring an action within two years of an aviation accident – characterisation of statutory bar – whether s 34 is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – where the law recognises a distinction between the barring of a right of action and its extinguishment

STATUTORY INTERPRETATION – contextual approach – context to be considered in the first order – context understood in a broad sense – including the existing state of the law, legislative purpose, legislative history and extrinsic materials

STATUTORY INTERPRETATION – departure from literal meaning – where literal reading of “relevant order” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) does not conform to the legislative purpose – where purpose determined by reference to immediate context and extrinsic materials

STATUTORY INTERPRETATION – legislative purpose – remedial legislation – where statute passed to remedy the effect of the decision of the High Court of Australia in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 – whether “want of jurisdiction” in s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) refers to the conferral of jurisdiction held to be invalid by the High Court

TRAFFIC LAW AND TRANSPORT – aviation – carriage by air – death or personal injury – intra-state carriage by air occurring entirely within New South Wales – where party brought claim under s 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) in the Federal Court – where Federal Court lacked jurisdiction to decide claim – claimant brought claim in the Supreme Court under s 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – whether order of the Federal Court dismissing claim for want of jurisdiction was a “relevant order” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW)

TRAFFIC LAW AND TRANSPORT – aviation – statutory liability – limitation of actions – characterisation of statutory bar – whether s 34 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) is a “limitation law” within the meaning of s 11(1) of the Federal Courts (State Jurisdiction) Act 1999 (NSW)

WORDS AND PHRASES – “relevant order” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1)

WORDS AND PHRASES – “limitation law” – Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(1)