Austral Pacific Group Ltd v Airservices Australia

• Jurisdiction: Australia Federal only
• Judge: Gleeson Cj,Gummow,Hayne JJ
• Judgment Date: 03 August 2000
• Neutral Citation: [2000] HCA 39,2000-0803 HCA C
• Court: High Court
• Docket Number: B46/1999
• Date: 03 August 2000

Austral Pacific Group Limited (In Liquidation)

Appellant

and

Airservices Australia

Respondent

[2000] HCA 39

Gleeson CJ, McHugh, Gummow, Hayne AND Callinan JJ

B46/1999

HIGH COURT OF AUSTRALIA

Austral Pacific Group Limited v Airservices Australia

Negligence — Action by employee against appliance manufacturer –Manufacturer issued third party proceedings against Commonwealth authority employer — Federal jurisdiction attracted — Application by Commonwealth authority to strike out manufacturer's third party notice against it — WhetherCommonwealth authority was liable as a joint tortfeasor ‘in respect of the samedamage’ as manufacturer — Whether employee's non-compliance with the requirement of election in s 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ever subjected the Commonwealth authority to liability to the employee.

Federal jurisdiction — Whether s 64 of the Judiciary Act 1903 (Cth) operated — Whether s 79 of the Judiciary Act 1903 (Cth) ‘picked up’ ss 6 and 7 of the LawReform Act 1995 (Q) — Whether ss 44 or 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ‘otherwise provided’ within the meaning of s 79of the Judiciary Act 1903 (Cth).

Words and phrases – ‘matter’, ‘the Commonwealth’, ‘otherwise provided’.

Constitution, ss 75(iii), 76(ii).

Air Services Act 1995 (Cth), ss 7, 8.

Civil Aviation Act 1988 (Cth).

Civil Aviation Legislation Amendment Act 1995 (Cth), s 9.

Judiciary Act 1903 (Cth), ss 39(2), 64, 79.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45.

Law Reform Act 1995 (Q), ss 6, 7.

1 Gleeson Cj, Gummow AND Hayne JJ. This is an appeal from the Court of Appeal of the Supreme Court of Queensland1. It raises issues respecting the operation of Pt IV (ss 42–52) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Compensation Act’) and the operation of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) to ‘pick up’ a law of the State of Queensland respecting contribution between joint and several tortfeasors. The Queensland law is found in ss 6 and 7 of the Law Reform Act 1995 (Q) (‘the Contribution Act’). The amount of contribution recovered under that legislation may amount to a complete indemnity (s 7). Issues similar to those arising on this appeal have been the subject of decisions by the New South Wales Court of Appeal in The Commonwealth v Flaviano2 and the South Australian Full Court in Coomblas v Gee3.

Gleeson Cj

The facts and the history of the litigation

2 In the present matter, the Court of Appeal (McPherson JA, Pincus JA, Ambrose J) allowed an appeal against the dismissal of an application by the present respondent, Airservices Australia (‘Airservices’), to strike out a third party notice by the present appellant (‘Austral Pacific’). Austral Pacific had been sued in the District Court by plaint dated 9 January 1997. The plaintiff, Mr Crockford, claimed damages against Austral Pacific in respect of injuriessustained by him on 26 February 1994 at the airport at Cairns, whilst an employee of the Civil Aviation Authority (‘the CAA’), a body established by theCivil Aviation Act 1988 (Cth) (‘the 1988 Act’).

3 In the interval between 1994 and the institution of the action in 1997, the 1988 Act had been amended by theCivil Aviation Legislation Amendment Act 1995 (Cth) (‘the Amendment Act’) and Airservices had been established as a body corporate by s 7 of the Air Services Act 1995 (Cth) (‘the Airservices Act’). Section 9 of the Amendment Act provided for the assets and liabilities of the CAA to become the assets and liabilities of Airservices. For the purposes of this appeal it may be taken that this provision operated upon the causes of action on

which the plaintiff later sued in 1997, and made Airservices an appropriate defendant4.

4 In allowing Airservices' appeal against the dismissal of its application to strike out the third party notice, the Court of Appeal held that the effect of the relevant provisions of the Compensation Act was that there was no time at which the plaintiff could have successfully brought an action against Airservices. This meant that Austral Pacific could not satisfy a necessary condition for a good contribution claim against Airservices under the Contribution Act. The Court of Appeal followed the decision of the New South Wales Court of Appeal inFlaviano and shortly thereafter, in Coomblas, the South Australian Full Court also followed Flaviano. Flaviano concerned the contribution provisions in the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and Coomblas those in the Wrongs Act 1936 (SA). No relevant distinction appeared between the State statutes.

5 Before turning to consider the relevant statutory provisions it is convenient first to consider the claims pleaded by the plaintiff against Austral Pacific in the District Court and then the nature of the jurisdiction exercised by the District Court and thus by the Court of Appeal.

6 The plaintiff claimed that he had suffered a knee injury, multiple bruises and abrasions in the following circumstances. Austral Pacific had manufactured and supplied to the CAA a fire-fighting appliance and the plaintiff sustained his injuries whilst alighting from that appliance. He stepped onto the rubber step tread moulding, the moulding separated from the aluminium step and as a result the plaintiff lost balance and fell to the ground. The plaintiff sued Austral Pacific. He did not sue Airservices. The plaintiff pleaded that the appliance wasdefective and dangerous to use and that Austral Pacific had failed to discharge its duty of care owed to persons such as the plaintiff to ensure that the appliance was safe for use by the employees of the CAA.

7 Particulars of the plaintiff's loss and damage and special damages were required by the relevant rules of court. They do not appear in the record. It may be assumed that the claim is for economic and non-economic loss. The global damages claim in the plaint was for $200,000. In the Court of Appeal, Ambrose J said that it seemed likely that the plaintiff ‘will have an arguable case

that significant permanent impairment’ has resulted from a severe injury to his right knee5.

8 In the alternative, the plaintiff claimed damages against Austral Pacific for breach of the undertakings as to quality and fitness implied by s 71 of theTrade Practices Act 1974 (Cth) (‘the Trade Practices Act’) in respect of the supply of the appliance by Austral Pacific to the CAA. A claim also was made for breach of the warranty said to be implied by s 74 of the Trade Practices Act in a contract for the supply of services by Austral Pacific to the CAA. Provisions of that nature operate to regulate the contractual rights and liabilities of the contracting parties. They do not attract the operation of s 82 of the Trade Practices Act in favour of a person who suffers loss or damage by the conduct of another in contravention of a provision of Pt V of the Trade Practices Act6.

9 The claim in contract for damages for breach of obligations imposed by provisions such as ss 71 and 74 of the Trade Practices Act involved obligations that are statutorily created and take effect by a legal fiction, namely that the parties made a contract including the relevant obligations. That is how Brennan J analysed the matter inArturi v Zupps Motors Pty Ltd7. It follows that a party claiming damages for breach of such an obligation asserts a right which owes its existence to federal law8 thereby, in a State court, attracting the exercise of federal jurisdiction invested under s 39(2) of the Judiciary Act. However, the plaintiff was a stranger to any contract respecting the appliance between Austral Pacific and the CAA. It is unnecessary further to pursue this aspect of the matter. In the submissions in this Court the dispute between the plaintiff and Austral Pacific was treated as turning upon the claim in negligence.

10 Further, the third party notice issued by Austral Pacific against Airservices clearly engaged the District Court in the exercise of federal jurisdiction. The action by the plaintiff against Austral Pacific and the claim by Austral Pacific against Airservices were comprised in the one ‘matter’9. Federal jurisdiction was attracted on two grounds. First, any liability of Airservices to Austral

Pacific depended for its existence upon the position of Airservices as the successor to the CAA. The third party notice, in par 5, recognised this in terms. That successorship arose solely by reason of the provisions of s 9 of the Amendment Act. Had it not been for that provision Airservices would have stood outside the dispute between the plaintiff and Austral Pacific. Accordingly, there was a matter arising under the law of the Commonwealth, within the meaning of s 76(ii) of the Constitution. Secondly, Airservices was established as a body corporate by s 7 of the Airservices Act to perform such functions as the provision of facilities to permit safe aircraft navigation within Australian-administered airspace (s 8(1)(a)). This and other provisions of the statute10 indicate that Airservices is a Commonwealth agency or instrumentality which is included in the term ‘the Commonwealth’ in s 75(iii) of the Constitution11.

Contribution and federal law

11 At common law there is no right to contribution or indemnity between tortfeasors. Such rights must be founded in an applicable statute. No law of the Commonwealth was pointed to as directly conferring such a right upon Austral Pacific against Airservices. The only federal law relied upon was the Judiciary Act. It may be assumed for present purposes, for the contrary was not argued, that the investment of the District Court with federal jurisdiction became operative with the commencement of the third party proceeding and that this enlivened s 7912. There is a further assumption to be made. This is...