Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701

Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701

Leave to amend the statement of claim to alter the class definition is granted because the amendment constitutes a new claim for relief arising out of the same facts as pleaded, and the amendment should take effect from the date it was articulated (2 May 2017). Claims potentially statute barred under Article 35 are not inevitably doomed, given possible overlap between classes. Costs orders are made accordingly.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Representative Proceeding / Application for Leave to Amend Pleading
Outcome
Leave to amend granted; costs orders made; directions hearing set.
Legal Topics
['representative Proceedings' 'amendment of Class Definition' 'limitation of Actions' 'jurisdiction' "compensation Under Civil Aviation (carriers' Liability) Act 1959 (cth)"]
['practice and Procedure' 'aviation' 'commercial Law'] ['representative Proceedings' 'amendment of Class Definition' 'limitation of Actions' 'jurisdiction' "compensation Under Civil Aviation (carriers' Liability) Act 1959 (cth)"]

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Procedural Posture

Representative Proceeding / Application for Leave to Amend Pleading

Legal Issues

  1. 1 ['Whether leave should be granted to amend class definition in representative proceedings' 'Whether claims are extinguished by Article 35 of Montreal Convention' 'Whether amendment constitutes a new claim for relief or foundation of law' 'Whether amendment arises out of same facts or substantially same facts as already pleaded' 'From what date the amendment operates']

Ratio Decidendi

Leave to amend the statement of claim to alter the class definition is granted because the amendment constitutes a new claim for relief arising out of the same facts as pleaded, and the amendment should take effect from the date it was articulated (2 May 2017). Claims potentially statute barred under Article 35 are not inevitably doomed, given possible overlap between classes. Costs orders are made accordingly.

Court Disposition

Leave to amend granted; costs orders made; directions hearing set.

Orders

  • ['Grant leave to the Applicant to amend her statement of claim in the form handed up at the hearing on 2 May 2017.' 'The amendments are to date from 2 May 2017.' "The Applicant is to pay the Respondent's costs thrown away by reason of the amendments." "The Applicant is to pay the Respondent's costs of the...