AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2012] NSWDC 220

District Court New South Wales

Medium Neutral Citation: AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2012] NSWDC 220 Hearing dates: 19, 21, 22 & 23 March, 8, 10 & 11 May 2012; close of evidence and last submissions: 20 August 2012 Decision date: 07 December 2012 Before: Levy SC DCJ Decision: 1.Verdict and judgment for the defendant on the plaintiff's claim; 2.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, unless a party can show an entitlement to some other costs order; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - civilian helicopter struck unmarked suspended electricity wire located in restricted military area - whether negligence and causation established - whether pilot's defence of peer professional opinion in Australia pursuant to s 5O of Civil Liability Act 2002 is made out; CONTRACT - bailment - onus of proof of cause of damage - whether alternative claim in contract made out; DAMAGES - assessment of claim for diminution in value of helicopter after repair - claim for loss of profits from charter opportunities during period of repair Legislation Cited: Air Services Act (Cth) 1995, s 7 Australian Standard AS 3891.1 - 1991; AS 3891.1 - 2003 Civil Aviation Act 1988 (Cth), s 30 Civil Aviation Regulations 1988 (Cth), 140, 157 Civil Liability Act 2002, s 5B, s 5O, s 34, s 34A, s 35, s 69, Pt 4 Commonwealth of Australia Constitution Act, s 109 Electricity (Amendment) Act 1993 Energy Australia Overhead Lines Maintenance Standard - H0102, 2003 Evidence Act 1995, s 155 Guidelines for Design and Maintenance of Overhead Distribution and Transmission Lines C(b)1, 1991; ESAA(b)1-2003 Occupational Health and Safety Act 2000 (NSW) Cases Cited: Batterham v Makeig [2010] NSWCA 86 Booksan Pty Ltd & Ors v Wehbe [2006] NSWCA 3; (2006) Australian Torts Reports 81-830 Bowling v Weinert [1978] 2 NSWLR 282 Heli-Aust Pty Limited v Cahill [2011] FAFC 62; (2011) 194 FCR 502 Hughes and Bremerman v Rooke (1954) St. R. Qld 45 Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Ltd [2011] FCR 473; (2011) 83 ACSR 140 Prestia v Aknar (1996) 40 NSWLR 165 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 Ruhani v Director of Police (No 2) [2005] HCA 43; (2005) 222 CLR 580 The Ship "May" v R (1931) SCR 374, at 382 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Category: Principal judgment Parties: AV8 Air Charter Pty Limited (Plaintiff) Sydney Helicopters Pty Limited (Defendant) Representation: Mr T Brennan (Plaintiff) Mr G Curtin SC with Mr G Gregg (Defendant) Norton White (Plaintiff) Gilchrist Connell (Defendant) File Number(s): 2010/348326