Gibson v Malaysian Airline System Berhad (Class Membership) [2019] FCA 1399

Gibson v Malaysian Airline System Berhad (Class Membership) [2019] FCA 1399

Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski were not class members under paragraph 7 of the amended statement of claim because the amended class definition had to be read consistently with Art 33 of the Montreal Convention. Fatima Dyczynski was travelling on a return ticket from Amsterdam to Perth, so her destination for Art 33 purposes was Amsterdam, not Australia. The ticket was issued through the airline's Amsterdam office or its head office in Kuala Lumpur, so the respondent's place of business through which the contract was made was not in Australia. It was also not suggested that Australia was Fatima Dyczynski's principal and permanent place of residence. Accordingly, the...

Jurisdiction
Australia
Judgment Date
28 August 2019
Procedural Posture
Representative Proceeding Concerning Claims Arising From Malaysian Airlines Flight MH17 / Interlocutory Application for a Declaration as to Class Membership After Settlement Approval
Outcome
The Court declared that Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski are not class members within paragraph 7 of the amended statement of claim.
Legal Topics
['representative Proceedings' 'class Membership' 'settlement Approval' 'montreal Convention Article 33 Jurisdiction' 'international Carriage by Air']
['practice and Procedure' 'aviation'] ['representative Proceedings' 'class Membership' 'settlement Approval' 'montreal Convention Article 33 Jurisdiction' 'international Carriage by Air']

Case Brief

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Procedural Posture

Representative Proceeding Concerning Claims Arising From Malaysian Airlines Flight MH17 / Interlocutory Application for a Declaration as to Class Membership After Settlement Approval

Legal Issues

  1. 1 ['Whether Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski were class members within paragraph 7 of the amended statement of claim and entitled to share in the settlement.' 'Whether the amended class definition should be construed by reference to Art 33 of the Montreal Convention.' "Whether Fatima Dyczynski's destination on the contract of carriage was Australia for the purposes of Art 33." "Whether the contract of carriage was made through the respondent's place of business in Australia."]

Ratio Decidendi

Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski were not class members under paragraph 7 of the amended statement of claim because the amended class definition had to be read consistently with Art 33 of the Montreal Convention. Fatima Dyczynski was travelling on a return ticket from Amsterdam to Perth, so her destination for Art 33 purposes was Amsterdam, not Australia. The ticket was issued through the airline's Amsterdam office or its head office in Kuala Lumpur, so the respondent's place of business through which the contract was made was not in Australia. It was also not suggested that Australia was Fatima Dyczynski's principal and permanent place of residence. Accordingly, the...

Court Disposition

The Court declared that Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski are not class members within paragraph 7 of the amended statement of claim.

Orders

  • ['Dr Jerzy Dyczynski and Mrs Rudhart-Dyczynski are not class members within the meaning of paragraph 7 of the amended statement of claim.' 'No order as to costs.']