Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Bhatia v Malaysian Airline System Berhad [2018] FCA 1471 File number: SAD 129 of 2018
Judge: CHARLESWORTH J
Date of judgment: 2 October 2018
Catchwords: PRACTICE AND PROCEDURE – applicant asserting right to damages against an airline carrier under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) – statutory cause of action – Commonwealth enactment giving international convention force of law – convention providing that right to damages extinguished if action not brought within two years – applicant started a proceeding within two years joining wrong entity as respondent – application to amend name of respondent after passage of two years – whether right to damages against proposed respondent extinguished – proposed order would have effect of substituting a person as a party in the proceeding – whether Court rule provides for relation back of time in which proceeding starts against substituting party – amendment under r 8.21 of the Federal Court Rules 2011 (Cth) cannot operate to revive extinguished right to damages – legislation providing for limitation of actions defence inapplicable – amendment application dismissed
Legislation: Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 9B, 9E, 28, 34, 35, Pts IA, IV, Sch 1A Judiciary Act 1903 (Cth) ss 39B(1A), 79 Limitation of Actions Act 1958 (Vic) s 34 Federal Court Rules 2011 (Cth) rr 8.01, 8.21, 8.22 Supreme Court (General Civil Procedure) Rules 1996 (Vic)
Cases cited: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 Air Link Pty Ltd v Paterson (2005) 223 CLR 283 Australian Iron & Steel v Hoogland (1962) 108 CLR 471 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Environinvest Ltd (in liq) v Former Partnership of Webster, White, Grindley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376 Fothergill v Monarch Airlines Ltd [1981] AC 251 Hall v Heart of England Balloons Ltd v Anor [2010] Vol 1 Llloyd's Rep 373 In re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495 Laroche v Spirit of Adventure (UK) Ltd [2008] 4 All ER 494 Laroche v Spirit of Adventure (UK) Ltd [2009] QB 778 Milor Srl v British Airways Plc [1996] QB 702 Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Sidhu v British Airways Plc [1997] AC 430
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