Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701

FEDERAL COURT OF AUSTRALIA

Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701 File number: NSD 1067 of 2016

Judge: PERRAM J

Date of judgment: 23 June 2017

Catchwords: PRACTICE AND PROCEDURE – representative proceedings – whether leave to amend pleading should be granted – whether claims extinguished by Article 35 of Montreal Convention – whether new claim for relief or new foundation of law for claim for relief – whether new claim for relief arises out of same facts or substantially same facts – whether amendment operates from date of commencement of proceeding or date of hearing of amendment application AVIATION – compensation under Civil Aviation (Carriers' Liability) Act 1959 (Cth) – consideration of 1999 Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) – Article 17 - Death and Injury of Passengers – Article 33 - Jurisdiction – Article 35 - Limitation of Actions

Legislation: Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 9B, 9D(2), 9D(5) Federal Court of Australia Act 1976 (Cth) ss 33H, 33H(1), 33K, 33K(1), 33K(2), 33N, 59(2B) Judiciary Act 1903 (Cth) s 79 Law and Justice Legislation Amendment Act 1994 (Cth) s 43 Federal Court Rules 1979 (Cth) (repealed) Order 13, Rules 2, 2(3), 2(7), 2(7)(a), 3A Federal Court Rules 2011 (Cth) rr 8.05, 8.21, 8.21(1)(g), 8.21(1)(g)(i), 8.21(1)(g)(ii), 9.05, 9.05(3), 16.53 Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) Arts 17, 33, 35