Black v Civil Aviation Safety Authority [2019] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: Black v Civil Aviation Safety Authority [2019] NSWSC 585 Hearing dates: 17 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Common Law Before: Harrison J Decision: Leave granted to plaintiffs to file amended statement of claim. Catchwords: CIVIL PROCEDURE – pleadings – where plaintiffs seeks leave to file further amended statement of claim – whether leave should be refused because the amendments are allegedly futile – whether rejection of amendments is appropriate without detailed analysis of whether alleged duty exists – whether defendants will suffer prejudice if amendments allowed – leave to file amendments allowed Legislation Cited: Civil Procedure Act 2005 (NSW), s 64 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 Category: Procedural and other rulings Parties: Julie Anne Black (Plaintiff) Civil Aviation Safety Authority (Defendant) Representation: Counsel: D A Lloyd (Plaintiffs) J Darvall (Fourth to Seventh Defendants)

Solicitors: GSG Legal (Plaintiffs) Minter Ellison (First Defendant) HWL Ebsworth Lawyers (Second and Third Defendants) Maitland Lawyers (Fourth to Seventh Defendants) File Number(s): 2016/314729 Publication restriction: Nil

Judgment 1. HIS HONOUR: By notice of motion filed on 19 March 2019, the first plaintiff and the fifth plaintiff seek leave pursuant to s 64(1) of the Civil Procedure Act 2005 to file a further amended statement of claim. The proposed pleading is annexed to the affidavit of Mark Gray-Spencer sworn the same day. 2. Although there are multiple parties to these proceedings, all of whom are potentially affected by the proposed amendments, the sole issue for determination by me, in the events that have happened, is whether paragraphs 92A and 100 of the proposed pleading should be allowed. Those paragraphs are as follows: "92A Between 19 October 2000 and 24 October 2013, Australian NDT and Joiner owed a duty of care to the current and future owners and operators of aircraft which may be tested by Joiner or Australian NDT or any person or entity to whom that business may be sold to: (a) clarify with CASA whether the approval in the CASA letter of 11 September 2000 was within the approved maintenance data under reg.2A CAR; (b) take proper steps to inform Aviation NDT and Tuck of the correct approved procedure for non destructive testing of the Aircraft; (c) not make incorrect statements about the procedure which CASA had approved for non destructive testing of the Aircraft; (d) advise Aviation NDT and Tuck that they should clarify with CASA whether the approval in the CASA letter of 11 September 2000 was within approved maintenance data under reg.2A CAR; and (e) take proper steps to ensure that the non destructive testing of the Aircraft was done by Australian NDT, Aviation NDT and Tuck in accordance with AD/PZL/5. 100 A reasonable person in the position of Australian NDT and Joiner would have taken the following precautions: (a1) clarified with CASA whether the approval in the CASA letter of 11 September 2000 was within the approved maintenance data under reg. 2A CAR; (a) not informed Tuck and Aviation NDT that the 11 page QP procedure was approved by CASA; (b) informed Aviation NDT and Tuck that the non destructive testing had to be carried out in compliance with AD/PZL/5 and that the 11 page procedure had never been approved by CASA; (c) advised Aviation NDT and Tuck that they should clarify with CASA whether the approval in the CASA letter of 11 September 2000 was within approved maintenance data under reg.2A CAR; and (d) taken proper steps to ensure that the non destructive testing of the Aircraft was done by Australian NDT, Aviation NDT and Tuck in accordance with AD/PZL/5." 1. These proceedings concern the circumstances in which, and the reasons why, the wing of an aeroplane flown by David Black detached during a flight on 19 August 2013 causing the plane to crash killing Mr Black. At the centre of the plaintiffs' allegations is the question of the correct procedures for non destructive testing of the plane and whether an inappropriate test had been performed that failed to detect defects with the wing that the approved testing would have revealed. That simple statement belies a wealth of difficult and complicated factual and technical issues that are at the heart of the current dispute. 2. The plaintiffs' amendments seek to bring forward an allegation that the sale by the sixth and seventh defendants of their aeroplane maintenance and safety testing enterprise to the fourth and fifth defendants in 2006 did not relieve the sixth and seventh defendants of what amounts to a continuing obligation to advise or warn or keep the fourth and fifth defendants informed at all times of current authorised or approved procedures for non destructive testing of aeroplanes, including any authorised amendments or alterations issued concerning them. The plaintiffs contend that such a duty was owed from at least as early as 19 October 2000 and up until as late as the fatal crash in question on 24 October 2013. 3. The sixth and seventh defendants maintain that the amendments should not be permitted as they are futile because no such duty as that alleged could possibly exist. They submit, by analogy with the principles relating to summary disposal, that the pleadings, if permitted, would be amenable to an application under either UCPR 13.4 or 14.28. They contend that the duty pleaded is one that would require them, in effect, to take steps to control the actions of a third party in order to prevent harm to strangers, and that no such obligation is known to the law. They contend that the nexus between the involvement of the sixth and seventh defendants with the fourth and fifth defendants several years later is too remote. 4. In response, the plaintiffs draw attention to paragraph 94 of the current pleadings, to which the sixth and seventh defendants take no objection, which is as follows: "94 Further, Australian NDT and Joiner owed a continuing duty to inform Aviation NDT and Tuck to correct incorrect statements about the procedure which was approved by CASA on 11 September 2000." 1. The plaintiffs submit that the proposed amendments are no more than a variation or variety of that allegation and that the absence of any application to deal with it reliably informs the arguable viability of the duty pleaded in proposed paragraphs 92A and 100. 2. I do not consider that the case which the plaintiffs now wish to plead is obviously futile in the sense that it is so hopeless that it is doomed to fail. I accept that there will be a vigorous contest about it but it is not in my opinion so patently unviable that an amendment to plead it should not be allowed. For example, the factual and regulatory framework within which the alleged duty is said to arise and to continue has not been explored in detail before me. Peremptory rejection of the proposed pleading without some analysis of that background is not appropriate in my view. If the alleged duty is as enigmatic as the sixth and seventh defendants contend, then they could move the Court for summary disposal if so advised or, alternatively on their analysis, the plaintiffs will not succeed in any event if the issue is still alive when the matter is finally heard. There is no suggestion that the sixth or seventh defendants will suffer any prejudice if the amendments are allowed beyond having to continue to maintain that the allegations should be rejected. 3. I consider that the plaintiffs should have leave to file the proposed further amended statement of claim in the form annexed to the written submissions of Mr Lloyd of counsel dated 30 April 2019