Air Express Ltd v Ansett Transport Industries Operations Pty Ltd [1981] HCA 75

High Court of Australia Aickin J. Barwick C.J. Stephen, Mason, Murphy and Wilson JJ. Barwick C.J. Gibbs, Stephen and Mason JJ. Air Express Ltd v Ansett Transport Industries Operations Pty Ltd

ORDER Claim dismissed with costs including reserved costs. Appeal dismissed with costs.

Cur. adv. vult.

1979, Aug. 17 Aickin J

. delivered the following written judgment:—

In these proceedings Air Express Ltd. ("Air Express") claims against Ansett Transport Industries (Operations) Pty. Ltd. ("Ansett") damages pursuant to an undertaking given by Ansett to the Court to "abide by any order which the Court or a Justice may make as to damage in case the Court or a Justice shall hereafter be of the opinion that the defendants shall have sustained any, by reason of this Order, which the plaintiff ought to pay".

That claim arises out of the decision of the Full Court in Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth [1] . In that case Ansett commenced proceedings against the Commonwealth of Australia and Mr. C. C. Halton, the Secretary to the Department of Transport, by a writ issued on 18th February 1977. The writ was generally indorsed and so far as now material it claimed as follows:

The plaintiff's claim against the defendants is for an injunction to restrain them and each of them their servants and agents

(b) from granting or causing or permitting to be granted Air Express Ltd. or any company related to Air Express Limited a permission in writing under the said Regulations to import two Carvair aircraft on the grounds—

(i) that the grant of the said permission in writing is in breach of provisions of an Agreement made 24 October 1952 between the Plaintiff and the firstnamed Defendant and Agreements made 26 September 1961, 21 October 1972 and 26 October 1973 between the Plaintiff, the firstnamed Defendant Ansett Transport Industries Limited and Australian National Airlines Commission, and